National Policy Statement for water resources and thresholds for water NSIPs – an update

After proposals to develop a NPS for water resources, Defra has revised proposals to amend the type and size of water resources infrastructure within the definition of NSIP in the Planning Act 2008.

17 October 2018

On 5 April 2018, the Department for Environment, Food & Rural Affairs (Defra) published a response to its 2017 consultation on the draft national policy statement (NPS) for water resources. Defra also set out proposals to amend the type and size of water resources infrastructure that would qualify as a nationally significant infrastructure project (NSIP) within the Planning Act 2008, and has launched a further consultation on this. Responses to the consultation were required by 26 April 2018 and the government published its response to the consultation in August 2018.

What are national policy statements?

NPSs set out government policy on different types of nationally significant infrastructure project. There are currently 11 NPSs, covering a range of development areas from energy to ports to national networks. There are also a number of draft NPSs, which are currently being progressed, including for airports, geological disposal infrastructure and water resources. The NPS for any particular type of NSIP will provide the framework within which a decision will be made on whether or not to grant development consent for a project.

What is a nationally significant infrastructure project?

NSIPs are large-scale developments (relating to energy, transport, water or waste) that require a particular kind of planning permission known as a ‘development consent order’ (DCO). DCOs are governed by the Planning Act 2008 and to qualify as a NSIP, development must exceed certain thresholds set out in the Act. DCOs can include a variety of consents, including planning permission, and the regime was designed to streamline the decision-making process for major infrastructure projects.

Response to the consultation on NPS for water resources

In March 2017 the government announced that it would be progressing a NPS for water resources. A consultation on this was launched in November 2017 to obtain views on the proposed approach, and also the types and scales of infrastructure that the NPS will apply to. The NPS is aimed to facilitate the development of new water resources infrastructure and improve the resilience of water supplies.

Defra published its response to the consultation earlier this year, and confirmed the following:

  • The draft NPS will take account of any new evidence around the need for resilience within the water sector, including work by the National Infrastructure Commission, Water UK and Defra’s 25 year environmental plan (which was published in January 2018).
  • Defra will develop the NPS around the three principles set out in the consultation:
    1. The NPS will set out the need for water infrastructure as part of a ‘twin track’ approach to managing water resources (using water more efficiently and increasing supply).
    2. The NPS will reinforce and make clear the role of water companies, water resource management plans (WRMPs) in identifying the most appropriate water resources schemes,including new water resources infrastructure.
    3. The NPS will reiterate the importance of developing and designing water resources schemes that meet the government’s objective to enhance the environment.

A draft NPS is expected to be published for consultation in autumn 2018.

Defra also held a further consultation on the types and sizes of water supply infrastructure that should be defined as NSIPs in the Planning Act 2008.

Further consultation on water resources infrastructure sizes and types

The Planning Act 2008 currently categorises three types of development as a water NSIP.

  • The construction of a new dam or reservoir where the volume of water to be held back by the dam or stored in the reservoir exceeds 10 million cubic metres.
  • The alteration of a dam or reservoir where the additional water to be held back or stored will exceed 10 million cubic metres.
  • Water transfer schemes (which move water from one river basin to another or between different water undertakers’ areas in England) where the volume of water to be transferred will exceed 100 million cubic metres per year.

The government’s response to the recent consultation confirms that it will adopt common thresholds for different types of water supply infrastructure, and undertake revisions to the definitions of water NSIPs in the Planning Act 2008. Specifically, the concept of ‘deployable output’ will be used to quantify the size of a water NSIP and the thresholds for different types of water supply infrastructure will be amended.

  • Dams and reservoirs: currently the threshold is a capacity to hold back 10 million cubic metres, or an increase in existing capacity of the same amount. Following feedback from a previous consultation that this threshold was too low, the government has confirmed that it will increase this to schemes that will hold back 30 million cubic metres or provide 80 mega litres per day of deployable output. This change is intended to capture reservoirs with large volumes which are likely to be more resilient in longer periods of drought, as well as smaller reservoirs with a high daily output, which can be essential in maintaining supplies during short term drought or supply interruption.
  • Water transfer: currently the threshold is where the volume of water transferred is expected to exceed 100 million cubic metres per year. This will be amended to change this to the transfer of water equal to or exceeding 80 mega litres per day deployable output (equivalent to 29.2 million cubic metres per year). This change could have the effect of forcing smaller schemes into the DCO regime but the consultation responses overall considered this threshold to represent a nationally significant scheme. 
  • Desalination plants: these are not currently within the Planning Act 2008 regime and a new definition will be added that includes plants designed to deliver a deployable output of at least 80 mega litres per day. In adding this type of infrastructure to the Planning Act regime, the government is acknowledging that these schemes can offer resilience benefits in areas prone to drought and can help to ensure that water supply needs can be met.
  • Effluent reuse: this is not currently included as a specific infrastructure type within the Planning Act 2008, because it is not a distinct infrastructure type and is often composed of a combination of water treatment works, transfer and wastewater treatment works. The government has confirmed that it will not be adding effluent reuse specifically as a NSIP. Section 35 of the Planning Act 2008 allows promoters of schemes to seek a direction from the secretary of state on whether a particular project should be assessed within the Planning Act 2008 regime. This option will remain for large effluent reuse projects.

Next steps

The government response to the latest consultation has confirmed the amendments that will be made to the thresholds and type of project that will qualify as a water NSIP in the Planning Act 2008. No timeframe has currently been given for the implementation of these changes. A further consultation on a full draft of the NPS on water resources will be carried out later in 2018.

Burges Salmon regularly advises on all aspects of NSIP and all issues of water law. If you have queries on either of these, please contact Julian Boswall (NSIPs) or Michael Barlow (water).

Key contact

Julian Boswall

Julian Boswall Partner

  • Energy, Power and Utilities
  • Infrastructure
  • Planning and Compulsory Purchase

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