Green growth characterises revised road and rail planning policy

That clear message can be read from the UK government’s proposals to revise the national networks national policy statement (NNNPS), and it aligns with both the 2021 Environment Act and the government’s broader international commitments.

The NNNPS sets out the government policy for nationally significant infrastructure projects (NSIPs) on the national road and rail networks in England under the 2008 Planning Act and decisions by the secretary of state on applications for development consent orders (DCOs) to authorise NSIPs must be decided in accordance with it However, it was designated in 2014  prior to government making legally binding commitments to achieving ‘net zero’ as well as other significant climate initiatives – such as the Transport Decarbonisation Plan. The government is therefore proposing revisions to the policy to bring it in line with these more recent policy developments.

The overarching priorities and themes of the new draft NNNPS clearly reflect the shift in the policy and legislative landscape from when the current NPS was designated. The ‘golden thread’ of green growth is woven throughout. However, it is also clear the government faces challenges to adequately reflect a number of wider initiatives.

The broader picture

The proposed ‘greening’ of the NNNPS is part of a wider package of measures being promoted by government to reduce UK greenhouse gas emissions and increase biodiversity. For instance, as the draft revised NNNPS acknowledges, transport is currently the largest contributor to UK greenhouse gas emissions. Yet, according to the draft NNNPS, carbon emissions from construction and operation of the strategic road network represent only around 2% of the UK’s total emissions. Other policies, such as those that encourage motorists to switch to using trains or which facilitate the transition to electric vehicles across the wider transport network, will have a significant direct impact in relation to decarbonising transport.

However, the draft revised policy does account for the need for a holistic approach in relation to planning decisions for nationally significant road and rail projects. For example, it makes clear that the secretary of state should “take account of the context of the challenge to climate change” when assessing applications for DCOs, and it expressly states that the “failure to address this challenge will result in significant adverse impacts to biodiversity”.

Under the proposed new NNNPS, the onus will be on developers to seek to avoid significant harm to biodiversity and geological conservation interests in the first instance by considering “reasonable alternatives”. However, it does provide for mitigations where this is not possible and further makes clear that “the benefits of nationally significant low carbon transport infrastructure development may include benefits for biodiversity and geological conservation interests and these benefits may outweigh harm to these interests”.

Climate factors

Publication of the government’s approach to assessing greenhouse gas emissions under the draft revised NNNPS has been highly anticipated. Its introduction could help developers and  operators  to understand how the government proposes to align its desire for infrastructure growth with a green and net zero future. There has been a suggestion of the direction of travel in previous decision letters from the Secretary of State on previous highways DCOs but the principles contained in them are now proposed to be crystallised in the revised NNNPS.

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The message from the draft revised NNNPS is that projects should assess their greenhouse gas emissions against the government's five-yearly carbon budgets, as it is those budgets which are the mechanism for achieving net zero, in accordance with the 2008 Climate Change Act and the Paris Agreement. Furthermore, the text places an emphasis on the economy-wide approach that government is taking to tackling climate change, including the non-planning policies aimed at decarbonising the transport system. This is the context in which greenhouse gas emissions will be factored into the secretary of state’s planning decisions under the revised NNNPS.

The draft revised NNNPS states that the secretary of state “should be content that the applicant has taken all reasonable steps to reduce the total greenhouse gas emissions from a whole life carbon perspective”. Under the plans, they would be obliged to “give positive weight to projects that embed nature-based or technological processes to mitigate or offset the emissions of construction and within the proposed development”.

However, the draft recognises the likelihood of “residual emissions from construction of national network infrastructure” and that “operational greenhouse gas emissions from some types of national network infrastructure cannot be totally avoided”. On this latter point, the draft revised policy emphasises that operational emissions will be managed in an “economy-wide manner” and that “a net increase in operational greenhouse gas emissions is not, of itself, reason to prohibit the consenting of national network projects or to impose more restrictions on them in the planning policy framework”. It seeks to clarify that “approval of schemes with residual carbon emissions is allowable and can be consistent with meeting carbon budgets, net zero and the UK's Nationally Determined Contribution [to meeting international targets in reducing emissions]”

It is likely that those proposed decision-making provisions will be subject to significant scrutiny throughout consultation on the draft revised NNNPS and, if they come into effect, through the examination of resultant projects subject to the policy themselves.

For developers and consultants preparing environmental assessments, there are important practical points to be aware of. For instance, the draft text confirms that a whole life carbon assessment approach should be adopted, and that applications for DCOs should include a carbon management plan that includes the potential to assess against statutory sectoral carbon targets should those come into force.

The draft revised NNNPS also provides that applicants for DCOs should submit a greenhouse gas reduction strategy, which should be secured in the DCO. It confirms that this should look to embed nature-based solutions to mitigate, capture or offset the emissions arising from construction of the development. The strategy could, according to the proposal, include mitigation through woodland creation on or adjacent to the site.

No further details are given, however, raising questions for developers. For instance, it is not clear how far a greenhouse gas reduction strategy needs to go in securing overarching, measurable outcomes. Taking the woodland creation as an example, questions remain as to how woodland would need to be secured – for example, how the land would be obtained if offsite or adjacent to the DCO limits, or how it would be weighed in the balance against other environmental impacts assessed, like landscape and visual and road safety concerns. The balancing of the benefits of mitigation proposals against their impacts is becoming ever more of an issue in DCO examinations and it appears that these debates will continue and become more prevalent as policies such as this, coupled with BNG, come into effect.

There will be an interlink with the need for a greenhouse gas reduction strategy and the upcoming BNG requirements and there may be a period of uncertainty as, for example, the ability to use compulsory acquisition powers for such land is proposed by applicants and determined by the secretary of state.

Biodiversity net gain and habitats

The draft revised NNNPS is quite ‘light’ on detail around BNG requirements, which is unsurprising as these will be relayed separately through BNG statements and are expected to apply from November 2025. However, what is also clear is that the government sees the BNG requirements as a helpful vehicle in which to bolster the ‘green’ benefits large-scale infrastructure can provide – for example, through sustainable drainage systems.

Unsurprisingly, there is also a clear acknowledgement of the government’s plans to revise the environment assessments and habitats assessments regimes and that applicants for DCOs will need to bear this in mind and adhere with any new legislative requirements. Whether the final outcomes of these plans, and any new processes put in place, will result in amendments to the draft NNNPS remains to be seen, but it would not be surprising if the assessment parameters will need to be amended, at least in part, to reflect new requirements, albeit the timing of those coming forward and the NNNPS being designated may not align.

It is worth noting that, specifically on habitats assessments, text in the draft revised NNNPS, if finalised in its current form, would place even more emphasis on developers reaching agreement on habitats assessment aspects with the statutory nature conservation body (SNCB) before submitting a DCO application. Where the SNCB indicates pre-application that adverse effects on the integrity of a protected site are “highly likely”, information to support a derogation case “must” be submitted with the DCO application. Given it is common that conclusions by the SNCB in relation to habitats assessment are not reached until deep into DCO examinations, without a shift in mentality, it could result in unnecessary work for developers, adding to the already burdensome pre-application process. That being said, this wording does broadly reflect that found in other draft NPSs - including those relating to energy.

Co-written by Imogen Dewar of Pinsent Masons.