The six National Policy Statements relating to the energy sector have been laid before Parliament for approval. The House of Commons will hold a debate and vote on their approval. If Parliament approves the National Policy Statements, the Government plans to designate them as soon as possible thereafter.

Changes have been made to the National Policy Statements since they were first issued for consultation by the Labour Government in November 2009. This bulletin updates our commentary on the six statements and highlights areas of change.

The initial draft energy National Policy Statements (NPSs) were published by the Labour Government in November 2009 and were subject to consultation until February 2010 (see our e-bulletins dated 10 November 2009 and 17 December 2009 for more information). Following consideration of the responses to that consultation, Parliamentary scrutiny and the Coalition Government taking power, the NPSs and the Appraisals of Sustainability that underpin them were revised. In October 2010, the revised draft NPSs were re-issued for a further period of consultation that closed in January 2011. Subsequently, the Coalition Government made further revisions to the NPSs before laying them before Parliament for approval.

The additional scrutiny to which the energy National Policy Statements were subject prior to being laid before Parliament for approval and the latest changes made to the text, which are refinements rather than wholesale redrafts, should make them more robust and less susceptible to a successful legal challenge, although such challenges by opponents of the Coalition Government's energy policies still remain very likely.

If the NPSs are approved by Parliament they will be designated as soon as possible thereafter. They will provide the primary policy basis for deciding whether to grant applications for development consent for nationally significant infrastructure projects. Once the NPSs have been designated there will be a presumption in favour of approval for development proposals which are in accordance with the Overarching Energy NPS (EN-1) and the relevant sector-specific NPS. For those able to take advantage of the new regime as a “one-stop-shop” for project consents, the content of the NPSs, and understanding the implications of the changes made to them, will therefore be critical.

Policy updates

Some of the changes that have been made to the NPSs since the initial drafts were published in November 2009 reflect policy changes which have an effect on all or some of the NPSs. For example, to prepare the NPSs for approval the Coalition Government has updated them to refer, where appropriate, to the proposals contained in DECC's Electricity Market Reform consultation, which was launched in December 2010, and in respect of which a White Paper is expected imminently.

Similarly, all the NPSs have been updated in light of the Coalition Government's future plans for planning reform contained in the Localism Bill, which is currently at the Committee stage in the House of Lords. When the Localism Bill is enacted it will abolish the Infrastructure Planning Commission (IPC) established by the Labour Government. Responsibility for examining applications for development consent will be transferred to the Major Infrastructure Planning Unit (MIPU), a new body within the Planning Inspectorate. The IPC's decision-making powers in respect of energy projects will be transferred to the Secretary of State for Energy and Climate Change, currently Chris Huhne, who will be provided with a report and recommendations by MIPU before he makes the final decision on individual applications. All the energy NPSs therefore provide that if the Localism Bill is enacted, references to the IPC in its capacity as an examining body should be read as being references to MIPU, and references to the IPC in its capacity as a decision-maker should be read as being references to the Secretary of State.

The Localism Bill also contains transitional provisions giving the Secretary of State broad powers to give directions concerning how applications received by, or notified to, the IPC prior to its abolition are to be handled. This should provide promoters of affected projects with some comfort that their applications will continue to be progressed without delay notwithstanding the implementation of these proposed reforms.

Revisions since November 2009

Our commentary on the versions of the six energy NPSs issued for consultation in November 2009 is available here. Details of the revisions made since then to prepare them for approval, and updated commentary on each, are available via the links below.

Overarching Energy NPS (EN-1)

Fossil Fuel Electricity Generating Infrastructure NPS (EN-2)

Renewable Energy Infrastructure NPS (EN-3)

Gas Supply Infrastructure & Gas and Oil Pipelines NPS (EN-4)

Electricity Networks Infrastructure NPS (EN-5)

Nuclear Power Generation NPS (EN-6)

If you would like to view the approval versions of the National Policy Statements in full, the documents are available here.