On 9 November 2009, the Department for Transport (DfT) published a consultation on a draft National Policy Statement (NPS) to guide planning decisions on port infrastructure (the Ports NPS). The consultation closes on 15 February 2010. The Government intends to finalise and formally approve the Ports NPS in spring 2010.

To whom is this consultation important and why?

Developers of port facilities classified as Nationally Significant Infrastructure Projects (NSIPs)

From March 2010, the development of port facilities in England or Wales which are classified as NSIPs under the 2008 Planning Act will require development consent (as opposed to a harbour empowerment order and possibly associated planning permission). Applications for development consent will be decided by the newly formed Infrastructure Planning Commission (IPC). The IPC will decide cases based very substantially on whether projects meet criteria set out in the Ports NPS.

Failure to present a planning application which satisfies the criteria set out in the Ports NPS is very likely to lead to development consent being denied, resulting in additional costs, delay and even loss of investment funding.

Developers of nationally significant port facilities need to have a clear understanding of the proposed Ports NPS and to seek to influence its drafting (by responding to the consultation) in order to ensure that it will provide the required support for future projects. If the Ports NPS does not support proposed projects, it will be very difficult to obtain consent for them.

Developers of other port facilities

Where proposed port developments do not qualify as NSIPs, the relevant planning authority (including the Marine Management Organisation established under the Marine and Coastal Access Act 2009) will need to consider the policies set out in the Ports NPS as “material considerations” in making development consent decisions.

In addition, pursuant to guidance to Chief Planning Officers from the Department for Communities and Local Government (November 2009), local planning authorities will be required to have regard to NPSs when preparing development plans (which set out decision making policy) at regional and local level.

What do I need to know?

Port facilities classified as NSIPs

NSIPs include the construction or alteration of harbour facilities in England and Wales (up to the seaward limits of territorial seas) which meet the following minimum capacity (or, in the case of harbour alteration, increase in capacity) thresholds:

  • Containers - 500,000 TEU (twenty-foot equivalent unit)
  • Ro-ro units - 250,000 units
  • Cargo - 5 million tonnes

The contents of the draft Ports NPS

The draft Ports NPS is divided into two parts as set out below.

1. Policy of planning for ports

Part 1 of the draft Ports NPS guides the IPC, when determining an application for an order granting development consent, to accept the need for future capacity of ports in order to: (a) cater for long-term forecast growth in volumes of imports and exports by sea for all commodities; (b) support the development of offshore sources of renewable energy; (c) offer a sufficiently wide range of facilities at a variety of locations to match existing and expected trade, ship call and inland distribution patterns; (d) ensure effective competition between ports and provide resilience in the national infrastructure; and (e) take full account of both the potential contribution port developments might make to regional and local economies.

The Ports NPS does not specify locations to be targeted for port development. Rather, it anticipates that market forces will determine location.

2. Guidance on assessment

Where, after considering Part 1 of the Ports NPS, the IPC reaches the view that a proposal for port infrastructure is in accordance with Government policy, it will then have to weigh the suggested benefits of the development proposal (including the contribution that the scheme would make to the national, regional or more local need for the infrastructure) against anticipated impacts.

Part 2 of the Ports NPS provides guidance on a list of economic, social and environmental impacts to be considered by the IPC (including the relative weighting of impacts, acceptable limits of adverse impacts and mitigating factors).

What does the consultation require?

The consultation seeks views on whether the draft Ports NPS provides a suitable framework for the IPC to make decisions on applications for development consent for NSIPs relating to ports.

What happens next? Process of reviewing the NPSs

Following the public consultation (and formal sustainability appraisals), the draft Ports NPS will be laid before Parliament, which may make recommendations on its content. Whilst the Secretary of State is required to lay a statement before Parliament setting out his response to such recommendations, he will not be obliged to follow them. The Government intends that the Secretary of State will designate the Ports NPS by March 2010.