The Neighbourhood Planning and Infrastructure Bill announced in the Queen's Speech will place the National Infrastructure Commission (NIC) on a permanent, independent statutory footing. In May the Government also responded to the consultation on the NIC's remit and governance which provides some more information on what the legislation will contain when it is brought forward.
The NIC will be charged with investigating and reporting on the UK’s long term (up to 30 years hence) infrastructure needs.
Government consultation earlier this year
The government consulted earlier this year on how the proposed NIC would operate, and how its recommendations would sit with National Policy Statements (NPS). Here is a link to our briefing on the consultation.
The government responded (18 May 2016) that it intends to introduce legislation to place the NIC on a permanent, independent footing as soon as parliamentary time allows. The key points from the government response are summarised below:
Status and governance
- The government will work towards ensuring the relevant criteria are met so that the NIC will achieve non-departmental public body (NDPB) status
- The government intends that the chair, commissioners and CEO will be appointed by the Chancellor
- The NIC will be subject to the Freedom of Information Act 2000 and Environmental Information Regulations 2004.
- The NIC will deliver a long term needs assessment once in every 5 year Parliament and complete Specific Studies on the most pressing and significant infrastructure challenges
- The government will commit to laying Specific Studies undertaken by NIC before Parliament
- The government will endeavour to respond to all of the NIC's recommendations (in the National Infrastructure Assessment and in Specific Studies) within six months, and will set a statutory deadline of 12months for responding to all recommendations
- NIC recommendations that the government intends to take forward will be accorded a special legal status, becoming 'Endorsed Recommendations' and Policy
- NIC will be given a duty to report annually on the government’s progress in delivering Endorsed Recommendations. This will draw on data collected by the Infrastructure and Projects Authority
- The government proposes to create a requirement for regulators to 'have regard' to Endorsed Recommendations and to explain how they will ‘have regard’ to the recommendations
- The government intends to enshrine in legislation the main aspects of the NIC's duties, to provide certainty and continuity in terms of the NIC's core purpose
- The legislation will also impose a duty on the government to issue a remit letter to the NIC once in every Parliament
- The Remit letter will set a fiscal remit for the NIC and a deadline to produce the NIA, and highlight any pressing objectives, e.g. regional economic growth
- Legislation will provide for a general duty to be transparent about the impact of its policy recommendations on the NIC
- It is expected that the NIC will issue calls for evidence when assessing infrastructure needs
- The government does not envisage extending the scope of the NIC's remit beyond those areas of economic infrastructure outlined in the consultation document, including (but not limited to) energy, transport, water and sewage, waste, flood defences and digital communications. It suggested the NIC should also consider the potential impact of infrastructure decisions on housing supply.
How the NIC will operate
- The NIC will have the power to access data and commission analysis from government departments, provided that these requests are reasonable and can be agreed in advance as part of a joint work programme
- The government considers that there is a strong case for the NIC to access data and existing analysis held by regulators, and expects to legislate to ensure that the NIC is bound by the same confidentiality agreements as regulators when handling sensitive data
- The government considers that the NIC should also have a right to request new analysis from regulators and public bodies, but does not intend to create an obligation for regulators and public bodies to accede to these requests. The NIC will be bound by the same confidentiality requirements as the regulators when handling such data
- Devolved administrations will not be able to ask the NIC to produce specific studies like the UK government can.
- The government will set out a timetable for reviewing a NPS in its response to the NICs recommendations, on a case by case basis. In setting a timetable the government will consider the extent of the work required to accommodate an Endorsed Recommendation.
- The government will legislate to ensure that the Secretary of State can take a decision in line with an Endorsed Recommendation where there is a conflict between the NPS and the Endorsed Recommendation.
- For NSIP applications where no NPS is in force, the government will ensure that, where relevant, Endorsed Recommendations are taken forward as an important and relevant matter in the decision making process.
- When reviewing a NPS the Secretary of State will need to exercise their discretion about how best to use any consultation undertaken by the NIC.
- The government will amend the National Planning Policy Framework (NPPF), as necessary following legislation, to give decision makers clarity on how Endorsed Recommendations should be taken into account, and to ensure that local authorities can work together to facilitate the delivery of Endorsed Recommendations.
- Ministers will be able to use their powers to intervene in local decision making where there is a risk to the delivery of an Endorsed Recommendation.
As anticipated the NIC will work by making recommendations to government, to be laid before Parliament. If the government decides to back them, the "Endorsed Recommendations" would become official policy and have weight in the planning system.
What had not been anticipated was that the Treasury would increase the weight that it will give to Endorsed Recommendations. The Response states that where there is conflict with an existing NPS, the Treasury will legislate to make sure ministers can decide planning applications "in line with an endorsed recommendation", instead of the NPS. In addition, councils may find that ministers can "use their powers to intervene in local decision-making".
This raises a number of questions. The implication of endorsed recommendations being able to override NPSs is unclear. It may be that the government purpose for the UK 2050 "Vision" against which to assess long-term infrastructure needs may turn out to be a national infrastructure plan? The Response is also silent on whether recommendations will be subject to strategic environmental assessment.