Nationally Significant Infrastructure: ensuring environmental protection protects growth
The Government has already demonstrated its intention to revise and reform planning guidance to support economic growth, in the NPPF, while affording proper protection to environmental receptors. The recent publication of the Defra Review of the Habitats and Birds Directives, signals a similar move towards the revision and simplification of environmental protection guidance.
In 2011 the Government published the National Infrastructure Plan, identifying 40 key nationally significant infrastructure projects (“NSIPs”), including both on- and off- shore wind energy. However, a number of these projects are also likely to have significant effects on habitats and species which are protected by European legislation and policy. There is concern that the identification, assessment and mitigation of such impacts could lead to delays, escalating costs and other obstacles in the implementation of these projects.
In November 2011 the Government announced a review of the working of the Habitats and Wild Birds Directives at a practical level, leading to the publication of the “Report of the Habitats and Wild Birds Directives Implementation Review” on 22 March 2012. The Report sets out the actions that Government will take to ensure that the Directives continue to provide environmental protection without unnecessarily stifling the development of required infrastructure and promotion of economic growth.
The Report found that in the large majority of cases the implementation of the Directives is working well, allowing both development of key infrastructure whilst ensuring that an appropriate level of environmental protection is maintained. However, it also recognised that some cases do encounter unnecessary delays. While the Directives may be only one contributory factor in project delays, a number of problems were identified with existing implementation. These included the complexity of the legislation and guidance, complexity of the authorisation process, the availability and comparability of data, and the culture and capacity of the organisations responsible for the operation of the Directives.
The Report recognised that these issues were magnified for large scale projects and were particularly challenging for offshore wind farms.
Four key areas of change
The Report identified four key areas for change to improve the implementation of the Directives: facilitating nationally significant infrastructure projects; improving implementation processes and streamlining guidance; improving the quality, quantity and sharing of data; and improving the customer experience. This briefing note focuses on the first two of these areas for change.
Steps to facilitate nationally significant infrastructure projects
The Review commits the Government to the following steps:
- April 2012: to establish a cross-Government Major Infrastructure and Environment Unit (“MIEU”) to improve pre-application identification of issues which need to be addressed for individual projects, and to support the resolution of issues associated with the Directives for the ‘top 40’ and other NSIPs. The focus will be on identifying and resolving Directive issues at the pre-application stage
- July 2012: to publish advice to clarify the role of competent authorities when several are involved in a single development
- July 2012: to consult on new guidance (to be finalised in November 2012) on the application of the ‘Imperative Reasons of Overriding Public Interest’ (“IROPI”) test for major projects
- Summer 2012: to set up a new Multi Stakeholder Infrastructure and Habitats Group to identify potential issues and improve collaboration on the ‘top 40’ and other NSIPs.
Steps to improving implementation and streamlining guidance
The Review commits the Government to the following steps from November 2012:
- to publish a new customer-focussed overarching guidance manual for public consultation, with a view to having the new guidance in place by March 2013. It will focus on the consenting process for plans or projects which affect Natura 2000 sites, and the licensing process for operations which might affect European Protected Species. It will explain both the legal tests and Government policy on application of the Regulations e.g. how to apply a risk-based approach that avoids excessive precaution.
- To review current guidance and to make proposals for simplification and clarification, with recommendations to be produced by 2013, and with actions to implement the new guidance to follow.
Next steps – an ‘NPPF’ for the environment?
The proposals seek to reduce delays and other obstacles associated with the implementation of the Directives, which unnecessarily undermine the promotion of key new infrastructure. However, although the Government is likely to take a pro-growth stance to the revised guidance, the scope for reform may be restricted by the European law which is in play, and which has been fully transposed in England and in the rest of the UK by Regulations.
These environmental Regulations under consideration directly implement European Directives and the Government can be held to account in the European Court of Justice if they fail to implement or apply the legislation correctly. Indeed this has happened in the recent past in relation to European Protected Species. In revising their guidance and in particular the definition of legal terms the Government will need to ensure that they do so in accordance with the Directives and the decisions of the European Court of Justice. If the interpretation is faulty then either the guidance or a consent could be challenged at a European level, leading to the potential for far more serious delays and costs in the long run.
Developers involved in large infrastructure projects are advised to watch any developments carefully over the rest of 2012. Of particular importance is the consultation on the new guidance on the IROPI test for major projects, and the new guidance manual on legal and other definitions, which should be published later in the year.