UK: infrastructure planning winter round-up

Reforms to speed up the infrastructure consenting system have been on the cards for some time. We’ve been writing for years now about the pressing need to accelerate the delivery of major infrastructure projects to redress historic under-investment, meet future capacity, and decarbonise the economy urgently.

The outgoing Conservative government’s 2023 NSIP Action Plan identified a number of key areas for infrastructure planning reform (see our overview here).

These included a number of proposed operational reforms to the NSIP application process – notably the introduction of new service tiers from the Planning Inspectorate which include a new fast track consenting stream – and cost recovery for public authorities, for whom adequate resourcing is often a perpetual challenge.

The reforms have been introduced gradually over the course of the year, and so it’s currently too early to make a judgment on their efficacy. The promoters who will be paying the bills will be keeping a keen eye on progress and will hope that the reforms increase certainty for applicants and the ability of the system to drive forward applications efficiently. 

Out with the old government, and in with the new one – different strapline, same sentiment.

The incoming administration was faced with largely the same problems as its predecessors, and so August saw the publication of an ambitious suite of proposals to reform the National Planning Policy Framework (NPPF). The consultation on the proposed changes included some key infrastructure planning reforms, including:

1. bringing into the NSIP regime key high tech industries such as data centres, gigafactories and laboratories – recognising the critical importance of this infrastructure to Britain’s economy;
2. reforming the approach to plan-making and decision-taking for renewables development, with particular attention paid to bringing onshore wind development back into the NSIP regime; and
3. recognising the importance of infrastructure in achieving sustained economic growth and looking at providing undertakers with certainty in the delivery of new strategic water infrastructure.

We covered the proposals in detail here, and we’re expecting the government’s response to the NPPF consultation to be with us any day now.

The leading infrastructure decision of the year is surely that of the Supreme Court in Finch, which concerned the extent to which environmental impact assessments (EIA) must assess indirect effects of development (in this case, greenhouse gas emissions from the end use of oil extracted at the development as well as from the development itself). You can find our summary of the main issues and key takeaways from that case here.  

The West Cumbria Mining case

The first judgment to consider and apply the decision in Finch was handed down in September, as the High Court quashed the grant of planning permission for the development of an underground metallurgical coal mine in Whitehaven, West Cumbria. We’ve set out some of the key issues below.

A likely significant effect?

The claimant argued (amongst other things) that, in granting permission, the Secretary of State had failed correctly to apply the EIA Regulations by deciding that greenhouse gas emissions from the combustion of the coal mined at Whitehaven were not a likely significant effect of the proposed development and therefore did not require assessment under the EIA regime.

It was common ground between the parties, as in Finch, that the burning of the Whitehaven coal was an inevitable consequence of its extraction from the mine. It followed that the emissions from the combustion of that coal were likely significant effects of the project which should have been subject to the EIA process and considered by the Secretary of State in deciding whether to grant planning permission.

The High Court noted that a decision about whether an effect is ‘likely’ needs to have an evidential basis: “if a lack of evidence means that a possible effect is simply a matter of conjecture or speculation, then it would not be possible rationally to conclude that it is ‘likely’”. If there is insufficient evidence available to form the basis of a reasoned conclusion that a possible effect is ‘likely’, then “there is no requirement for that effect to be identified and assessed”.

Substitution

Separately, the developer had argued that emissions from the combustion of Whitehaven coal wouldn’t give rise to any material additional emissions because it would replace coal that would otherwise be supplied to the UK and European steel-making market from mines in the USA. In simple terms – if coal is mined at Whitehaven, then a broadly equivalent amount will remain in the ground in US mines.

The High Court started by making clear that the burden of establishing that there would be no net increase in greenhouse gas emissions because of the ‘substitution’ principle fell to the developer. This required the production of full information as part of the EIA process, and a very high degree of substitution – not far short of perfect substitution – would be required to be shown. Even if that could be shown, the developer would need to show that there would be no other demand for US coal substituted by the Whitehaven coal. The EIA did not address these points, and nor did it suggest that these matters were incapable of assessment. The High Court found that the Secretary of State’s handling of the substitution issue was legally flawed.

The UK’s leadership role

The claimants argued that the UK can only credibly claim to be a world leader on climate issues if it practises what it preaches. The grant of the planning permission for the Whitehaven mine was said to harm the ability of the UK to persuade other countries to reduce greenhouse gas emissions from the use of coal. The claimants argued that, even if the Secretary of State were to accept that the project would be a ‘net zero’ mine, this would still set a harmful precedent because any future projects of a similar nature would depend on the offsetting of greenhouse gas emissions – a finite global resource.  

The High Court accepted that these were principal important controversial issues attracting a legal duty on the part of the Secretary of State to give reasons explaining fully how those issues were resolved. The judge found that the ‘net zero’ claim, on which the Secretary of State had relied, was flawed, and that the Secretary of State had failed to deal with the issues raised by the claimants.

Takeaways

Following in the footsteps of the Supreme Court’s decision in Finch, the decision of the High Court in West Cumbria Mining gives rise to a number of interesting issues – in particular, the rigour with which a substitution argument must be justified by a developer and interrogated by a decision maker.  The emphasis on the UK’s global reputation is a noteworthy reason underpinning the High Court’s decision and confirms that likely impact on the UK’s standing on climate change is capable of being a material planning consideration.