UK: Draft National Policy Statement For Ports

Last Updated: 2 December 2009
Article by Tony Kitson and Kathryn Johnson

On 9 November 2009, the Department for Transport published its consultation on the draft National Policy Statement (NPS) for Ports. The Ports NPS will provide the policy framework for decisions by the Infrastructure Planning Commission (IPC) on port development that meets the thresholds to be considered as a Nationally Significant Infrastructure Project (set out in section 24 of the Planning Act 2008). The consultation is open until Monday 15 February 2009.

Key points from the consultation and draft NPS

  • Policy: Government policy for ports in the Interim Report of the ports policy review published in 2007 is retained. The draft NPS includes a bullet point list of other requirements that port development should satisfy (see paragraphs 1.10.2 and 1.10.3 in particular).
  • Need: The NPS requires the decision-maker to accept the need for additional capacity. The Government's view of need for port development is informed by the previously published demand forecasts carried out by MDS Transmodal in 2006, as updated in 2007. The NPS acknowledges that consents already granted for port development would offer capacity to meet the predicted demand. However, the Government considers that there is opportunity for other developments to come forward to with alternative or additional development that will satisfy demands that the consented developments are not meeting, and to provide additional container capacity to meet expected long term growth.
  • Location: The NPS is not locationally specific. It calls for capacity to be provided in a wide range of locations and accepts that the market is the best mechanism to determine the location of new development. The draft states that effective competition in the sector requires spare capacity to allow choice.
  • Assessment of impact: The NPS identifies a wide range of key considerations for the decision maker, and provides advice to applicants on the material necessary to support a DCO application. Particular points of note are:
    • Substantial weight should be given to the economic benefits of development.
    • There is no policy requirement for the decision maker to establish whether the development proposed is the "best" option amongst other potential alternatives. The NPS also makes clear that "alternatives" which are not in accordance with the NPS cannot be relevant or important to the IPC's decision.
    • Limited weight should be given to net carbon emissions performance of new ports development.
    • Climate change adaptation measures must be adequate for the life of the development, and the decision maker must be confident that the infrastructure would not be adversely affected by more radical climate change than currently predicted.
    • The NPS does not set target modal shares, but where access to port development is wholly or largely by road, developers must demonstrate why other modes of transport are not feasible.
    • If a statutory defence against nuisance claims is sought in a DCO application, the impacts must be subject to thorough examination. The statutory defence could be limited by the IPC to any part or parts of the project.
    • The NPS appears to give particularly detailed consideration to the assessment of flood risk and climate change adaptation.

The NPS in the wider planning system

The consultation and draft NPS make clear that the NPS will be of relevance to the wider planning system. Policies set out in the draft NPS "are also intended to constitute potential material considerations for applications for port developments which fall below the thresholds for an NSIP identified in the Act" (paragraph 5, consultation paper). The NPS will also be a relevant consideration for the Marine Management Organisation deciding applications made under the Marine and Coastal Access Act 2009. The recent guidance to Chief Planning Officers from DCLG (also published 9 November) advises local authorities that they must have regard to NPS when preparing development plans at regional and local level. Where the development plan already adopted does not take into account the NPS, the NPS is likely to be a material consideration in the determination of planning applications.


The draft Ports NPS does not take the opportunity to drive forward provision of new ports capacity. Rather than containing a new statement of policy, the draft NPS collates elements of existing policy and data on demand into one document. It is accordingly rather dull and formulaic. The draft adopts a prescriptive checklist format, both in respect of the content of the application and the information and assessments to be carried out by the promoter, and in the list of considerations for the decision maker to address when deciding upon an application for development consent. The premise of the new NPS was to provide a strong policy basis for quick decisions on national infrastructure, but the number of issues required to be addressed by the IPC suggests that tight control over procedure will need to be maintained in order to deliver decisions within shorter timescales than under the current system.

However, there may be benefit in a checklist approach for promoters, as the draft ports NPS will allow promoters a clear idea of the documentation and evidence expected, and the factors to be considered and the weight that will attach to each when the decision maker considering the application.

As there is seemingly little change between the current policy on ports and the draft Ports NPS, why designate an NPS now? It seems clear that the Ports NPS is necessary to support the Government's suite of energy NPS (published on the same day), as ports play a key role in the import and export energy supplies, servicing offshore installations and terminals for pipelines.

This article was written for Law-Now, CMS Cameron McKenna's free online information service. To register for Law-Now, please go to

Law-Now information is for general purposes and guidance only. The information and opinions expressed in all Law-Now articles are not necessarily comprehensive and do not purport to give professional or legal advice. All Law-Now information relates to circumstances prevailing at the date of its original publication and may not have been updated to reflect subsequent developments.

The original publication date for this article was 27/11/2009.

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