DEFRA releases National Policy Statement for Water Resources Infrastructure

United Kingdom

On 29 November 2018, the Department for Environment, Food and Rural Affairs (“DEFRA”) released a consultation on its draft National Policy Statement (“NPS”) for Water Resources Infrastructure. The draft NPS sets out a framework for DEFRA and the Planning Inspectorate when considering development consent applications for nationally significant water resources infrastructure in England and Wales. This article sets out the key points from the draft NPS and considers its impact for the water industry.

What is an NPS?

Under planning legislation, a government department can issue an NPS (not to be confused with the Strategic Policy Statements issued by DEFRA under the Water Industry Act) setting out the policies that apply to Nationally Significant Infrastructure Projects (“NSIPs”) under their purview. Once issued, the NPS becomes the key piece of policy in the policy hierarchy that applies to an application for a development consent order (“DCO”) for that NSIP, and the government will be under a statutory duty to decide DCO applications in accordance with it (subject to certain exceptions). The designation of an NPS therefore lends certainty to the government’s decision-making process.

Which water projects constitute NSIPs?

DEFRA published a previous consultation in April 2018 on the designation of water resources industry NSIPs. The table below shows how this designation is set to change following DEFRA’s August 2018 decision on this consultation:

Type of water resources industry asset

Threshold under existing planning law

Threshold following August 2018 consultation decision

Reservoirs

Volume held back is in excess of 10 million cubic metres

Volume held back is in excess of 30 million cubic metres; OR

Deployable output exceeds 80 million litres per day

Water transfers

Volume to be transferred as a result of the development to exceed 100 million cubic metres per year

Deployable output exceeds 80 million litres per day (broadly equivalent to 30 million cubic metres per year)

Desalination

(Not included)

Deployable output exceeds 80 million litres per day

DEFRA also has the power to designate projects that do not meet the above standard criteria as NSIPs – e.g. aquifer re-charge and effluent re-use schemes.

What factors must be taken into account when considering planning applications for water resources NSIPs under the NPS?

Following the National Infrastructure Commission’s April 2018 report on water infrastructure, DEFRA recognises that at least 3,300 megalitres of water per day (Ml/d) of additional capacity will be required in the water system by 2050, of which at least 1,000Ml/d will need to be delivered through new infrastructure. Accordingly, the policy sets out an express presumption in favour of the grant of development consent where proposed infrastructure projects meet this need, along with assurances that conditions and s106 obligations must not be imposed unless necessary and reasonable.

Key factors to be taken into account when considering a DCO application in respect of a water resources NSIP include:

  • Environmental impact assessment and environmental net gain    
  • Impact assessment under the Conservation of Habitats and Species Regulations 2017    
  • Health and safety    
  • Air quality and carbon emissions    
  • Nuisance    
  • Flood risk    
  • Water quality

Next steps

The consultation closes on 31 January 2019. Stakeholders are invited to comment on all aspects of the draft NPS, with particular reference to the clarity and comprehensiveness of the assessment criteria it sets out and the interrelationship with water demand management policy. The NPS will be reviewed in parallel by the Environment, Food and Rural Affairs Select Committee. DEFRA aims to designate the final NPS in 2019.