UK: Missing Policy Statement Puts Investment At Risk

Last Updated: 22 May 2013
Article by Robbie Owen

A streamlined process for authorising nationally significant road and rail projects is now firmly in place, but projects are being put in jeopardy because of the absence of a national policy statement for national networks, say Robbie Owen and Tom Henderson.

Later this year the legal process for authorising "nationally significant infrastructure projects" will celebrate its fifth birthday. Introduced by the Planning Act 2008, its purpose was to establish a common process for authorising the largest projects in the transport, energy, water, waste and waste water sectors. The backdrop to its introduction was the need to simplify and fast-track the delivery of much-needed infrastructure in the UK, a cause which remains no less urgent five years later.

The process has taken promoters some getting used to, and has not been without its teething problems, but it is starting to bear fruit, measured by major schemes that have successfully navigated the process. The key benefits are that it condenses into largely a single process the range of legal consents that are commonly required for major schemes, with fixed timescales for the examination process and the taking of decisions by the relevant Secretary of State.

The Planning Act 2008 provided for the new process to be underpinned by a range of "national policy statements" (NPSs) setting out Government policy on nationally significant infrastructure projects. These are a central part of the process, for two reasons. First, the examination of a scheme cannot investigate issues of "need" or question policy once an NPS has been designated. Second, the presumption is that schemes that are in accordance with an NPS must be approved, unless local impacts outweigh benefits.

In short, it was believed that the designation of NPSs would create an infrastructure planning system that would be quicker, more predict- able, more accountable and more transparent.

While the 2010 general election caused an inevitable hiatus in policy-making, NPSs have now been designated in the energy, ports and waste water sectors. This means that the benefits of the Planning Act process are being fully realised for projects in those sectors. When it comes to road, rail and rail freight projects, however, the picture is very different.

First draft

A draft NPS on "national networks", covering the strategic road network, the rail network and strategic rail freight interchanges was promised for as early as October 2009. Despite rumours since then of its "imminent" publication it has failed to materialise, with limited explanation as to why. A transport strategy document was later promised by the DfT but has not appeared. The overall impression has been that little progress is being made, with no sign of a draft national networks NPS being published any time soon for consultation.

The DfT is now even going so far as to contend that a national networks NPS may not be needed. It is far from clear that transport ministers or officials even appreciate the distinct purpose of a national networks NPS and that its status would be very different from white papers and other government policy documents.

That is not, of course, to suggest that national policy is absent in these areas. The Government has published successive National Infrastructure Plans, which include its key transport priorities. The Government's rail investment strategy is set out in its High Level Output Statement, the latest running from 2014-2019, and it has published strategic rail freight interchange policy guidance in November 2011. The DfT has also published a 2012-15 Business Plan, which sets out coalition priorities for transport.

A vacuum

However, in the absence of a national networks NPS, decisions made by the Secretary of State on major road, rail and rail freight schemes under the Planning Act 2008 are simply made with regard to matters considered "both important and relevant". It is for promoters of schemes to identify and weigh up what is relevant from the (sometimes disparate) array of policy documents that may be available, and to justify the "need" for a scheme in relation to those.

It is fair to say that this has not prevented road and rail schemes emerging successfully from the Planning Act 2008 process – two rail schemes and one highway scheme have successfully obtained consent. But it is evident that promoters are having to make the running on the "need" case, identifying and weighing up not only relevant national policy in the sector concerned, but also reflecting on the National Planning Policy Framework, climate change policies and local planning policy.

This is at odds with one of the core principles behind the Planning Act regime, namely to speed up the authorisation process by removing uncertainty and debate over "need". A lack of policy and planning certainty can increase the risk associated with a project and can either increase its cost or put the whole scheme on hold.

What's the hold-up?

What is holding up the preparation of a draft national networks NPS for consultation? Perhaps it is the case that ministers perceive greater flexibility in being able to take decisions in an NPS- free environment? What is clear is that the Government is currently grappling with the future ownership and financing of the strategic road network, and is unwilling to bring forward an NPS until this is resolved. It is understood that the current plan is for a green paper on roads policy to be issued in the summer of 2013, which might clear the current blockage. However, the concern particularly given the highly controversial nature of road funding is that the green paper will be deferred, yet again, for political reasons.

Further delay on a national networks NPS should not be allowed to happen. Instead it should be one of the Secretary of State for Transport's top priorities, as its publication would send a strong message and help in the delivery of major infrastructure projects which, in turn, bring economic growth and jobs.

It would bring certainty for investors, and transparency for those both promoting and objecting to major road and rail schemes, such as the much talked about A14 upgrade in Cambridgeshire and TfL's proposed Silvertown Tunnel. The fear is that continued inaction on the national networks NPS will result in delays to the delivery of important improvements to our transport networks which we can ill afford.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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