And yet, despite the significance of these policies and the urgency of the climate crisis, twelve long years passed without an update. The world of renewables spun at an astonishing pace in that interim: the Paris Agreement was signed, 12 COPs (of varying consequence) were assembled, the government adopted its binding net-zero commitment and waded through a resulting tidal wave of litigation, and, perhaps most importantly, the market for renewable energy finally began to generate serious heat. 

Earlier this year, the first ever updates to the policies were finally published. The 2023 editions came into force on 17th January 2024 (“EN 2023”). The new EN1 (general policies) and EN3 (renewable NSIP policies) together form “the primary policy” for decision-making on renewable energy NSIPS. 

Thus, it is worth reflecting on some important differences (and continuities) in the policy approach to renewable energy NSIPs, and the environmental implications of the government’s approach.

The Broad Strokes

The most significant general change is to technological scope. While EN 2011 set out policies in relation to biomass, offshore wind, and onshore wind, EN 2023 covers biomass, offshore wind, pumped hydro storage, solar photovoltaic generation, and tidal stream energy.

Onshore wind is a notable exception from EN 2023. It no longer receives a policy treatment, and is instead dealt with in a single footnote on page 7 of EN3, that says such projects will be determined under the 1990 Act. For a fascinating reflection on the implications of the government’s new approach to onshore wind, see this post by Andrew Fraser-Urquhart K.C. 

Where the policy frameworks overlap (biomass and offshore wind), there is substantial continuity in the policy approach. And the general presumption in favour of permitting energy NSIPs, absent a clear policy reason for refusal, remains (EN1, 2023, 4.1.3) 

Biomass

The key planks of the government’s new policy towards biomass plants are broadly similar to the old policy. Biomass and energy from waste (“EfW”) is still said to play an “important” role in decarbonisation, decision-makers will continue to weigh the GHG emissions of cultivating and hauling biomass as well as combusting it, and biomass plants should aim to offload their huge haulage needs from road to rail and water, so far as reasonably possible. 

The only changes of any plausible significance are in emphasis. For example, although EN 2011 merely required biomass proposals to be “compatible” with the waste hierarchy, EN 2023 casts that requirement more forcefully: “The proposed plant must not compete with greater waste prevention, re-use, or recycling, or result in over-capacity of residual waste treatment at a national or local level (EN3, 2023, 2.7.7.)” (my emphasis). A similar formulation is restated at EN3 2.7.29. 

The new wording would seem to justify a more robust enforcement of the waste hierarchy policy. That matters, because combusting waste for energy is the hierarchy’s second lowest priority, after prevention, re-use, and recycling. That means biomass plants are less likely to be permitted where they would divert waste from being re-used or recycled, which would presumably be true of sites in or near a great many urban centres.

And the waste hierarchy was already a stumbling block. For example, part of the reason for the refusal of a 2022 DCO application for a biomass plant (Wheelabrator Kemsley North) was that, despite the provision of 42MW of electricity being a “significant benefit”, it would result in an overcapacity of waste disposal in the local area and would put recycling targets at risk (4.19 of the SoS’ decision letter). 

An intriguing implication of this more robust approach to the waste hierarchy is that it essentially prioritises recycling over decarbonisation of the energy mix. Recycling is environmentally positive but it does not reduce emissions from energy generation, whereas, ceteris paribus, a greater share of EfW plants does. Given the overwhelming challenges the government faces in meeting its legally binding net-zero targets, it is perhaps surprising its policy approach to a commercially viable lower-carbon technology has now become, if anything, more cautious. 

Offshore Wind

What changes there are to the policies on offshore wind seems to be driven by the much greater scale of offshore windfarms anticipated by EN 2023. The government’s ambition is to generate 50GW from offshore wind by 2030. The policy framework recognises that the sheer number of wind turbines necessary to achieve the government’s climate goals is much more likely to disturb marine assets like MPAs, fish stocks, and navigation routes. 

Accordingly, the burden on applicants to assess the impacts of their schemes, and make preparations for suitable mitigation and compensation, is both wider in scope and more granular. 

Among a raft of studies to be conducted by applicants, assessments should be undertaken to predict the physical effects of hydrodynamic modifications, sediments and sediment transport, the impact of scouring on sensitive species, alongside voluminous detailed assessments on the impact on protected fish, marine mammals, and fauna (EN3, 2023, 2.8.126-2.8.131). Pre and post-project archaeological Written Schemes of Investigation are to be completed in consultation with Heritage England (2.8.77). And applicants should include “robust baseline data and detailed surveys” on their effect on commercial fishing (2.8.157). 

There is logic to expecting much more careful design when the scale of offshore wind delivered is much greater, and indeed much of this is merely spelling out the requirements of EIA development in the marine context. But it is hard to reconcile the government’s highly ambitious plans for offshore wind with these more demanding requirements, which will undoubtedly occasion much more time and expense in building new windfarms.

New Technologies

Although these were beyond the scope of EN3 2011, the below technologies are the subject of policies in the new policy framework.

Pumped Hydro Storage

PHS is a form of electricity storage that uses the difference in height between two reservoirs, and the transfer of water between them through a turbine, to store energy. 

The policy notes that “few technologies that are commercial or have been demonstrated at scale are able to provide storage services at the scale of PHS” (EN3, 2023, 3.9.17), making it likely to be a “key piece of infrastructure for enabling increased use of renewable generation” (EN3, 2023, 3.9.18). Applicants should “minimise adverse impacts” on water abstraction and discharge (3.9.42), should locate PHS sites so as to “visually enclose them at a low level” (3.9.36), and should minimise adverse impacts on recreational activities (3.9.46).

The policy thrust is therefore positive, and the only meaningful sticking point is to ensure PHS schemes don’t interfere with the water supply. It is encouraging that landscape and visual impacts, and recreational impacts, are not more forcefully emphasised. PHS schemes need to be built in hilly terrain by large bodies of water. Given such terrain seems liable to be aesthetically alluring, it is not hard to imagine a more robust approach to LVIA would prove a formidable stumbling block for PHS.   

Solar Photovoltaic Energy

Solar energy is plainly not a new technology, making it curious the original EN3  did not deal with it. The 2023 version notes that the government expects a five-fold increase in solar deployment by 2035, amounting to 70GW of renewable energy generation.

With that said, the framework requires applicants to assess a raft of possible impacts, which seem rather “nit-picky” given the crucial importance of solar development. Applicants must try to use brownfield or contaminated land where possible (though it is hard to imagine many such sites capable of hosting a large solar farm), and failing that try to use less productive farmland (despite solar farms not generally interfering with agricultural use of even BMV land). The building of “access routes” to solar farms “can be a significant consideration” (EN3, 2023, 3.10.21). Designs should also facilitate continued use of public rights of way (3.10.27) and should minimise visual harm from those PROWs (3.10.28). Applicants should identify the best routes for construction traffic and assume a worst-case scenario if they are uncertain (3.10.115). 

Overall, siting on agricultural land seems to be the most likely sticking point. That policy priority is hard to understand given that the combined use of land for farming and solar power, known as “agrivoltaics”, is both viable and indeed supported by the National Farmers Union (see “Planning for Solar Farms”, House of Commons Research Briefing, 2024, section 4.3). This policy approach seems likely to be a drag on solar farm approvals, given the sizeable land and visual exposure they require will often necessitate their being located on farmland.  

Tidal Stream Energy

The policy makes clear that Tidal Stream projects capable of being NSIPs (by generating over 100MW) are not yet commercially viable, but they may be in the late 2020s. 
The policies on Tidal Stream are therefore very brief and speculative. It notes that anticipatory research suggests NSIP-level Tidal Stream projects will have significant impacts on assets like marine life and the seabed. But otherwise, there is little elaboration, and it is somewhat unclear why Tidal Stream is mentioned at all in the NPS. 

Carbon Capture and Storage

The government expects Carbon Capture and Storage technology (“CCS”) to play a meaningful role in the path to Net Zero. The Carbon Budget Delivery Plan relies on its emissions reductions totalling 6 MtCO2 p.a. by 2030, and 10 MtCO2 p.a. by 2035 (Carbon Budget Delivery Plan, p.65). 

The policies on Carbon Capture are contained in EN1, the more general framework. As it explains, the “barriers to CCS deployment to date have been commercial rather than technical, and the business models, which may evolve over time, aim to support the deployment of the technology” (EN1, 2023, 4.86). 

Interestingly, CCS was provided for in EN 2011, and the government’s approach to it has not materially shifted these past 12 years. The policy framework remains fairly skeletal and focussed on anticipatory preparation. Of the few clear policies, the most significant requires proposals for various combustion plants to be “carbon capture ready”, in that they can be retrofitted with carbon capture technology once the dawn of commercial viability finally breaks. The policy relies on guidance issued in 2009 to that effect (EN1, 2023, 4.8.28). 

The policy notes a substantial barrier to CCS take-up, being the that there “are currently no cross-country carbon dioxide pipelines in the UK and considerable investment in pipelines will be required for the wider deployment of CCS” (4.8.22). Curiously although such pipelines would likely be NSIPs, no policies are set out in EN1 supporting such development. Overall, as in the Carbon Budget Delivery Plan, reliance on CCS seems to be a matter more of faith than fact, and is not meaningfully supported by much in the way of hard policy provision. 

Conclusion

Apart from technological scope, little has changed in the government’s approach to renewable technology NSIPs, despite the adoption of a binding net zero target between the 2011 and 2023 editions. The policies are quite a bit more detailed, and expect rather a lot more from applicants in designing their schemes. And that is perhaps surprising, given greater delivery presumably requires, if anything, fewer planning controls and a more forgiving route to development consent. 

Armin Solimani is a pupil barrister at Francis Taylor Building.