Planning Act 2008: Guidance on the process for carrying out a review of existing National Policy Statements
Guidance on the National Policy Statements Review process.
Applies to England
Introduction
1. The Planning Act 2008 (“the Planning Act”) created a new development consent regime for major infrastructure projects in the fields of energy, transport, water, waste water, and waste. The Planning Act sets out the thresholds above which certain types of infrastructure development are considered to be nationally significant and require development consent.
2. National Policy Statements that are designated under section 5 of the Planning Act set out the national policy in relation to each infrastructure field set out in section 14(6) of the Act. The relevant Secretary of State must decide any Development Consent Order application in accordance with any relevant National Policy Statement unless one or more of the certain exceptions specified under section 104(4) to (8) apply. It is therefore important that there is regular consideration of whether and when to review National Policy Statements to ensure effective decision making in line with the latest government policy and relevant information.
3. Section 6 of the Planning Act sets out the process for reviewing a National Policy Statement. This guidance is intended to provide further clarification on the process for carrying out a review of a National Policy Statement.[1]
Purpose
4. This guidance is provided principally for the relevant Departments undertaking a review of existing National Policy Statements. It is also for the benefit of applicants, statutory consultees, other interested parties and the general public. Key aims are to promote best practice; to ensure consistent application of review processes; and to promote fairness, transparency and proportionality.
Legal status
5. This guidance is non-statutory. It is for the relevant Secretary of State concerned to consider whether and when to take forward any review and what matters need to be considered to meet the legislative requirements under section 6 of the Planning Act.
6. Nothing in this guidance should be taken as indicating that any requirement of Planning law or any other law may be overridden. The guidance does not in any way replace the statutory provisions of the Planning Act nor does it add to their scope. Only the courts can give an authoritative interpretation of legislation.
The National Policy Statement Review process
The National Policy Statement Review process
Stage one: Deciding when to carry out a review
7. Section 6(1) of the Planning Act imposes a duty on the Secretary of State to review a National Policy Statement in whole or in part whenever he or she considers it appropriate to do so. In carrying out this duty, the Secretary of State has discretion to decide the point at which a review of a National Policy Statement becomes appropriate.
8. Section 6(3) of the Planning Act sets out matters that must be considered when deciding when to review a National Policy Statement. In deciding when to review a national policy statement the Secretary of State must consider whether—
(a) since the time when the statement was first published or (if later) last reviewed, there has been a significant change in any circumstances on the basis of which any of the policy set out in the statement was decided,
(b) the change was not anticipated at that time, and
(c) if the change had been anticipated at that time, any of the policy set out in the statement would have been materially different.
9. The same considerations apply when considering whether to review part of a National Policy Statement.
10. These matters should not be taken as being exhaustive as there may be other considerations that are relevant to the decision on when to review, or part review, a National Policy Statement. As set out in section 10 of the Planning Act, the Secretary of State must exercise these functions with the objective of contributing to the achievement of sustainable development having regard to the desirability of mitigating, and adapting to, climate change and achieving good design.
11. Given the importance placed on National Policy Statements, going forward, the question of whether it is appropriate to review a National Policy Statement should be considered regularly. The exact timing of a review will depend how specific circumstances apply to each National Policy Statement, but it is expected that a public announcement on the consideration as to whether a review is required should be made at least every 5 years. [2]
12. Relevant Secretaries of State should make a public announcement when a decision is taken to review a National Policy Statement, or part of a National Policy Statement and provide reasons for this decision. This announcement will be in the form of a Written Statement to Parliament or as part of a wider public announcement.
13. Where the decision is to carry out a review, unless the Secretary of State has announced a decision to suspend all or part of the National Policy Statement, the National Policy Statement will remain in effect throughout the duration of the review.
14. Section 11 of the Planning Act sets out that, where certain conditions are met, the relevant Secretary of State has the power to suspend the operation of all or any part of a National Policy Statement until the review of that National Policy Statement or relevant part of that National Policy Statement has been completed. The relevant Secretary of State should also consider whether and when the requirements of the Environmental Assessment of Plans and Programmes Regulations 2004 (“the SEA Regulations”) apply prior to taking any final decision to suspend all or part of the NPS.
15. During the process of carrying out a review, section 108 of the Planning Act provides that the relevant Secretary of State may also decide to suspend an examination of a development consent order application until the review has concluded. Unless the Secretary of State announces that an examination should be suspended, examinations of development consent order applications should continue.
Stage two: Process for carrying out a review
16. The factors considered in carrying out the review will depend on the individual facts and circumstances which the Secretary of State considered to make the review appropriate, but may include things such as significant changes to social, environmental and/or economic data, and wider policy relevant to that National Policy Statement.
17. Section 6(5) of the Planning Act states that after completing any review in whole or in part, the relevant Secretary of State must either amend the National Policy Statement, withdraw the National Policy Statement, or leave the National Policy Statement as it is.
Amending a National Policy Statement
18. Under section 6(7) of the Planning Act, the Secretary of State may amend a National Policy Statement only if the consultation and publicity requirements set out in section 7 and the parliamentary requirements in section 9 have been complied with (as well as ensuring the additional requirements specified in section 6(7) have been met). This is unless the Secretary of State considers that the proposed amendment(s) to the National Policy Statement do not materially affect the policy as set out in the National Policy Statement (section 6(8)).
19. The degree to which stakeholders will be engaged in this process will be dependent on the circumstances of the particular National Policy Statement and the approach should be proportionate to the scope of the review proposed.
20. Under section 6(6) of the Planning Act where, after reviewing a National Policy Statement in whole or in part that, the relevant Secretary of State determines that a National Policy Statement should be amended, an appraisal of the sustainability of the policy set out in the proposed amendments should be carried out unless the Secretary of State considers that the proposed amendment(s) to the National Policy Statement do not materially affect the policy as set out in the National Policy Statement. The relevant Secretary of State should consider whether and when the requirements of the SEA Regulations apply as part of this decision.
21. Where a review is undertaken and a national policy statement is amended, the Secretary of State will arrange for the amendment, or the statement as amended, to be published and laid in parliament as required by section 6(9) of the Planning Act. This applies to both material amendments and non-material/minor amendments.
Withdrawing a National Policy Statement, leaving it as it is or making non-material / minor changes
22. Where a review is undertaken, and a decision is made to withdraw the National Policy Statement, leave it as it is, or to make non-material / minor changes, the Secretary of State will make this decision known through a written ministerial statement to Parliament or other public announcement. The relevant Secretary of State should also consider whether and when the requirements of the SEA Regulations apply as part of the decision.
Timescales
23. As set out in paragraph 11, consideration should be given by the relevant Secretary of State as to whether a review is required at least every 5 years. However, where circumstances merit, earlier consideration may be given. Any such decision will be communicated through a written ministerial statement or other public announcement.
24. In circumstances where the decision taken is to review a National Policy Statement, we would expect this to take approximately 12 months from the announcement that a review will take place. This should include any consultation, publicity and parliamentary requirements where the outcome of the review is to amend the National Policy Statement. It should be noted that this approximate timescale may be exceeded depending on the circumstances of the particular review. Where changes are required to amend the thresholds of certain infrastructure projects being classified as nationally significant infrastructure projects under the Planning Act, this may take place outside of the review period.
25. Depending on the circumstances, we would expect the review process to be shorter where the outcome of the review is that the National Policy Statement is withdrawn, left as it is or subject to non-material changes only.
Transition between National Policy Statements
26. Where a review is undertaken and a decision is made not to suspend the existing National Policy Statement (in whole or in part), it will continue to have effect for the purposes of the Planning Act. Any emerging draft National Policy Statements are potentially capable of being important and relevant considerations in the decision-making process, but the extent to which they are relevant is a matter for the relevant Secretary of State to consider with regard to the specific circumstances of each Development Consent Order application.
1. This guidance supplements advice set out in the Chief Planners newsletter of November 2009.
2. For the avoidance of doubt, this guidance should not be read as applying retrospectively and should not be read as meaning that the relevant Secretaries of State should now consider whether to review those existing NPSs which are more than 5 years old.