NATIONALLY SIGNIFICANT INFRASTRUCTURE PROJECTS (NSIPs)

1. Introduction

Nationally Significant Infrastructure Projects (NSIPs) are large-scale infrastructure developments in England and, for certain categories, Wales that are considered nationally important because of their scale, capacity, or strategic significance. They commonly include major energy generation facilities, electricity transmission infrastructure, highways, railways, airports, ports, water infrastructure, wastewater projects, and hazardous-waste facilities.

The principal statutory framework is the Planning Act 2008. Instead of obtaining conventional planning permission from a local planning authority, promoters generally require a Development Consent Order (DCO). The NSIP regime was designed to provide an integrated procedure for determining major infrastructure proposals while preserving environmental assessment, consultation, examination, and judicial oversight.

2. Planning Act 2008 Framework

Under Part 3 of the Planning Act 2008, infrastructure falling within statutory categories and satisfying specified thresholds can constitute an NSIP. Energy-related categories include certain generating stations, electric lines, underground gas-storage facilities, LNG facilities, gas-reception facilities, and pipelines.

The Secretary of State ultimately determines whether development consent should be granted. Applications are examined through the Planning Inspectorate's infrastructure-planning process.

A DCO is particularly important because it can combine several authorisations required for a major project and may include powers concerning compulsory acquisition of land, subject to statutory safeguards.

3. National Policy Statements

National Policy Statements (NPSs) are central to NSIP decision-making. Under the Planning Act 2008, they establish government policy for particular infrastructure sectors and provide the principal policy framework against which relevant applications are assessed.

For energy infrastructure, designated energy NPSs address matters such as national need, environmental impacts, electricity networks, renewable energy and other generation infrastructure.

Under section 104, where a relevant NPS has effect, the Secretary of State generally determines an application in accordance with it unless specified statutory considerations justify another outcome. Where no relevant NPS applies, section 105 provides the principal decision-making framework.

4. Environmental Assessment and Public Participation

NSIPs may require an Environmental Impact Assessment (EIA) under the Infrastructure Planning (Environmental Impact Assessment) Regulations 2017. Environmental information can cover biodiversity, climate, landscape, water, population, human health and other significant effects.

The Planning Act also places substantial emphasis on pre-application consultation. Promoters must consult prescribed bodies, relevant local authorities and affected communities. Consultation is therefore not simply administrative formality; it contributes to procedural legitimacy and enables potential impacts and alternatives to be examined before consent.

5. Case Law – R (Friends of the Earth Ltd) v Secretary of State for Transport [2020] UKSC 52

Facts: The case concerned the Airports National Policy Statement supporting a third runway at Heathrow. Environmental groups argued that the Secretary of State had failed properly to consider the UK's commitments under the Paris Agreement.

Legal Issue: Whether designation of the NPS was unlawful because the Paris Agreement had not been treated appropriately under the Planning Act 2008.

Judgment: The Supreme Court allowed the Secretary of State's appeal and held that the NPS was not unlawful on the grounds accepted by the Court of Appeal.

Legal Principle/Ratio Decidendi: The statutory meaning of government policy must be determined within the framework established by Parliament. Courts review whether statutory requirements were satisfied rather than substituting their own infrastructure policy.

Significance: The judgment demonstrates the interaction between climate obligations, national infrastructure policy and judicial review within the NSIP regime.

6. Case Law – R (Spurrier) v Secretary of State for Transport [2019] EWHC 1070 (Admin)

Facts: Multiple claimants challenged the Airports National Policy Statement concerning Heathrow expansion on environmental, climate, consultation and planning grounds.

Legal Issue: Whether the Secretary of State had complied with the Planning Act 2008 and related environmental obligations when designating the NPS.

Judgment: The Divisional Court rejected the principal challenges, concluding that the Secretary of State had acted within the applicable statutory framework.

Legal Principle/Ratio Decidendi: Strategic infrastructure policy involves substantial governmental judgment, but the exercise of that judgment remains subject to statutory requirements and judicial review.

Significance: The case illustrates the courts' approach to technically complex NSIP policy decisions and the limits of judicial intervention.

7. Case Law – R (ClientEarth) v Secretary of State for Business, Energy and Industrial Strategy [2020] EWCA Civ 214

Facts: ClientEarth challenged the government's decision not to review the National Policy Statement for Energy, arguing that developments in climate policy justified reconsideration.

Legal Issue: Whether the Secretary of State was legally required to review the NPS under the Planning Act 2008.

Judgment: The Court of Appeal dismissed the challenge.

Legal Principle/Ratio Decidendi: The statutory test governing review of an NPS must be applied according to the Planning Act; significant policy developments do not automatically make an existing NPS legally invalid.

Significance: The decision confirms the importance of NPSs as relatively stable policy instruments while recognising that their continued appropriateness remains governed by statutory review mechanisms.

8. Conclusion

The NSIP regime provides a specialised legal framework for infrastructure of national strategic importance. Through the Planning Act 2008, DCO procedure, National Policy Statements, environmental assessment, consultation and judicial review, it seeks to reconcile infrastructure delivery with environmental protection, public participation and accountable government. For major energy projects in particular, NSIP law is fundamental to determining whether, where and under what legal conditions nationally important infrastructure may be constructed and operated.