KING'S BENCH DIVISION
ADMINISTRATIVE COURT
PLANNING COURT
Strand, London, WC2A 2LL |
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B e f o r e :
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THE KING (on the application of) TRANSPORT ACTION NETWORK LIMITED |
Claimant |
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- and - |
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SECRETARY OF STATE FOR TRANSPORT |
Defendant |
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Mr James Strachan KC, Miss Rose Grogan and Mr Daniel Kozelko (instructed by Government Legal Department) for the Defendant
Hearing dates: 9 & 10 April 2025
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Crown Copyright ©
Mrs Justice Lieven DBE :
a. Ground One: The consultation on the draft NNNPS (defined below) was unlawful because the SoS did not conscientiously consider the substance of the Claimant's responses on modal shift and demand management.
b. Ground Two: The SoS failed to provide lawful reasons as to how the NNNPS could maintain reliance on the policies in the Transport Decarbonisation Plan ("TDP"), notwithstanding the judgment in Friends of the Earth v Secretary of State for the Department for Energy and National Security [2024] PTSR 1293.
c. Ground Three: The SoS unlawfully failed to re-consult on the Revised NNNPS following post-consultation amendments. Neither the SoS nor the Minister decided for themselves (as they were required to do) whether the amendments materially affected the NNNPS policy, so that they could rely on s.6A PA 2008 to avoid further consultation.
Chronology
"Applicant's assessment
5.17 Carbon impacts will be considered as part of the appraisal of scheme options (in the business case), prior to the submission of an application for DCO. Where the development is subject to EIA, any Environmental Statement will need to describe an assessment of any likely significant climate factors in accordance with the requirements in the EIA Directive. It is very unlikely that the impact of a road project will, in isolation, affect the ability of Government to meet its carbon reduction plan targets. However, for road projects applicants should provide evidence of the carbon impact of the project and an assessment against Government's carbon budgets.
Decision making
5.18 The Government has an overarching national carbon reduction strategy (as set out in the Carbon Plan 2011) which is a credible plan for meeting carbon budgets. It includes a range of non-planning policies which will, subject to the occurrence of the very unlikely event described above, ensure that any carbon increases from road development do not compromise its overall carbon reduction commitments. The Government is legally required to meet this plan. Therefore, any increase in carbon emissions resulting from the proposed scheme are so significant that it would have a material impact on the ability of Government to meet its carbon reduction targets."
[emphasis added]
"It's not about stopping people doing things: it's about doing the same things differently. We will still fly on holiday, but in more efficient aircraft, using sustainable fuel. We will still drive on improved roads, but increasingly in zero emission cars. We will still have new development, but it won't force us into high-carbon lifestyles."
"Accelerating modal shift to public and active transport
Public transport and active travel will be the natural first choice for our daily activities."
"The current National Policy Statement (NPS) on national networks, the government's statement of strategic planning policy for major road and rail schemes, was written in 2014 – before the government's legal commitment to net zero, the 10 point plan for a green industrial revolution, the new sixth carbon budget and most directly the new, more ambitious policies outlined in the transport decarbonisation plan. …
This review will include a thorough examination of the modelling and forecasts that support the statement of need for development … that planning decisions must take into account."
Draft NNNPS
"1.3 The Secretary of State will use this NPS as the primary basis for making decisions on development consent applications for NSIPs on the national road and rail networks in England."
"3.22 The government has, therefore, concluded that at a strategic level there is a compelling need for development of the national networks – both as individual networks and as a fully integrated system. The Examining Authority and the Secretary of State should, therefore, start their consideration of applications for development consent for the types of infrastructure covered by this National Policy Statement (NPS) on this basis. The Secretary of State should give substantial weight to those considerations of need where these align with those set out in this NPS.
3.23 The following sections set out more detail on some of the specific drivers of the need for development across the modes."
"3.31 These projections are not definitive predictions of what will happen in the future and are not a predictor of the level of expansion required on the national road network. They also do not reflect how transport demands may vary by mode or how road space may need to be distributed to better facilitate mass transit options (such as guided buses, trams, light rail and coaches), pressures on our road and give greater modal choice for journeys. They do, however, demonstrate that continued absolute traffic growth is likely under all scenarios, and therefore enhancements on the national road network will be necessary in order to ensure the national road network operates effectively in the face of growing demand. Infrastructure interventions can include measures such as addressing pinch points and improving flow aimed at addressing localised issues to help address reliability, predictability and capacity issues at specific locations, which can in turn improve overall performance of the wider network of local roads and the SRN in that location. Equally interventions could include measures to reallocate road space to systems for journeys addressing traffic growth via a vision-led approach to that plans (sic) for modal shift."
"Applicant's assessment
…
5.31 Having regard to current knowledge, a carbon management plan should be produced as part of the Development Consent Order submission and include:
…
• where there are residual emissions, the level of emissions and the impact of those on national and international efforts to limit climate change, both alone and where relevant in combination with other developments at a regional or national level, or sector level, if statutory sectoral targets are developed and come into force."
…
5.37 Operational greenhouse gas emissions from some types of national network infrastructure cannot be totally avoided. Given the range of non-planning policies aimed at decarbonising the transport system, government has determined 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. Any carbon assessment will include an assessment of operational greenhouse gas emissions, but the policies set out in chapter 2 of the NPS, apply to these emissions. Operational emissions will be addressed in a managed, economy-wide manner, to ensure consistency with carbon budgets, net zero and our international climate commitments. Therefore, 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."
[emphasis added]
Annex A | Revised NNNPS |
Annex B | Government response to the Transport Select Committee |
Annex C | Government response to consultation |
Annex D | Appraisal of Sustainability and appendices |
Annex E | Habitats Regulations Assessment |
Annex F | [Redacted] letter |
Annex G | Summary of key changes from NNNPS |
Annex H | Annex providing a summary of the HRA and explaining more about IROPI and the decision the minister needs to take |
Annex I | DEFRA IROPI opinion |
Annex J | Legal annex |
Annex K | Equalities Impact Assessment |
Annex L | Environmental principles policy statement assessment |
Annex M | Analytical assurance statement |
Annex N | Transport Select Committee report into the NNNPS review |
Annex O | Written Ministerial Statement announcing NNNPS review |
"In your view does the draft NNNPS provide suitable information to those engaged in the process of submitting, examining and determining applications for development consent for nationally significant infrastructure projects on the: a. strategic road network, b. strategic rail network, and c. strategic rail freight interchanges?"
"Government response
2.9 We welcome the valuable comments received through the consultation process, which raised a number of important comments and concerns. A number of these concerns related to the role of the NNNPS and its ability to address wider transport concerns such as modal shift and public transport. The NNNPS's purpose and function is to provide guidance and clarity about existing government policy to support and inform decisions about applications for the development of NSIPs on the road and rail networks and SRFIs. The NNNPS is not a vehicle for setting out a new transport strategy. Wider questions concerning the overarching transport strategy are therefore beyond the scope of this consultation.
2.10 The government notes the concerns raised about building more roads. The government is determined to maintain a top-quality strategic road network because of the vital role it plays in growing our economy and delivering long-term prosperity. The revised NNNPS recognises that there may be a range of interventions beyond building new capacity that would be suitable in addressing the challenges that have been identified and, at paragraph 3.42, it sets out some examples of what these other interventions might be. However, it is often not possible to identify viable technology solutions, public transport or other local alternatives because the strategic road network (SRN) is used for driving long distances. The revised NNNPS concludes that other interventions may not be sufficient and therefore infrastructure development may still be required.
2.11 A number of respondents argued that the government needs to reduce car kilometres travelled in order to achieve net zero. It is not the policy of government to reduce demand for travel. People should enjoy fair access to jobs, education, health, shopping, recreation, friends and family and government wants to facilitate that, not restrict it. The government is addressing carbon emissions from road transport through the measures announced in the Transport Decarbonisation Plan 2021, primarily the transition to EVs, which has now been taken forward by the enactment of the Zero Emission Vehicle mandate. The Carbon Budget Delivery Plan sets out how the sixth carbon budget (2033-37) will be delivered across the whole economy. …"
"… We have reinstated the material impact test from the current NNNPS to enable the decision maker to appropriately consider NSIPs which cause an increase in emissions. The text now states that "where the increase in carbon emissions resulting from the proposed scheme are so significant that it would have a material impact on the ability of Government to achieve its statutory carbon budgets, the Secretary of State should refuse consent."
"Recommendation 4
Transport Select Committee recommendation
"The draft revised NNNPS should be amended to explicitly state the Government's understanding of the legal precedent for permitting major infrastructure schemes which result in an increase in emissions, where that increase is judged as not likely to harm the achievement of a national target." (Paragraph 35)
Government response
Any residual emissions that cannot be avoided in a way that is efficient and cost-effective are managed within the government's overall strategy for meeting carbon budgets and the net zero target, as part an economy-wide transition. This is acknowledged in paragraph 5.30 of the revised NNNPS to explain why emissions from national network infrastructure is allowable.
However, for added clarity, we have reinstated text from the current NNNPS (para 5.42 of the revised NNNPS) which states that "where the increase in carbon emissions resulting from the proposed scheme are so significant that would have a material impact on the ability of government to achieve its statutory carbon budgets, the Secretary of State should refuse consent". This approach has been approved in caselaw, which accepts that a decision-maker may use carbon budgets as a benchmark in order to help arrive at a judgment on the significance of carbon emissions from a particular scheme, by looking at the scale of its emissions relative to the carbon budgets before reaching a judgment about the likelihood of the scheme harming the achievement of that budget."
"Regarding the committee's recommendation to model a wider range of scenarios where traffic levels on the SRN are reduced or maintained at current levels, our current analysis shows that it is likely that demand management policies would be necessary for this to be realised. Otherwise, projected changes in the three main drivers of traffic growth (GDP, population and motoring costs) lead to a projected increase in road demand (although the low economy scenario projects reducing trips for the last 15 years of the series, and if the trend continued would lead to reduced traffic levels). The government's policy is not to stop people travelling but to enable people to do the same things differently and more sustainably while still realising transport's social and economic benefits. For this reason, the Department for Transport does not model scenarios which incorporate policies designed to reduce demand."
"9. … Greenpeace and Transport Action Network, who disputed the Statement of Need set out in the draft NNNPS and challenged the government's approach to achieving net zero. Both organisations stated that the government should put in place policies to reduce demand for car transport and that this should have been considered as one of the alternatives under the AoS. Given the high profile of this subject, additional information is provided below in addition to the AoS which covers all the environmental impacts."
"13. The government is addressing carbon emissions from road transport through the measures announced in the Transport Decarbonisation Plan 2021 (TDP), primarily the transition to electric vehicles (EVs), which has now been taken forward by the enactment of the Zero Emission Vehicle mandate. The Carbon Budget Delivery Plan (CBDP) sets out how the sixth carbon budget (2033-37) will be delivered across the whole economy. Annex D paragraph 37 states: "Despite the intrinsic uncertainties of long-term sectoral emissions projections, we still have a reasonable to high level of confidence that the proposed policy package will deliver in line with what is needed to enable carbon budgets to be met." As a result the policy choices set out in the TDP are considered defensible, subject to the proviso set out that the government will keep them under review. The CBDP itself is subject to a current legal challenge due to be heard in the High Court on 22-24 February. Should this legal challenge be successful we would need to review the implications for the NNNPS, but it is not a reason to delay completion of the NNNPS review."
[emphasis added]
"16. The revised draft NNNPS includes a number of changes with respect to the treatment of carbon emissions compared to the current NNNPS. Chapter five includes a requirement for scheme promoters to carry out a Whole Life Carbon Assessment in line with the new PAS 2080 standard, and to demonstrate that they have made efforts to mitigate carbon impacts, using nature-based solutions where appropriate. This is explicitly to be taken into account by the SoS when coming to a decision on an individual scheme. The overall policy test on carbon is based on the need to weigh up the benefits of NSIP schemes on national networks against the environmental damage they may cause. This policy test is similar to that in the existing NNNPS, namely that schemes can still be consented if they lead to an increase in carbon emission, but that the SoS should refuse consent if the carbon emissions would have a material impact on the ability of the government to meet carbon budgets. This reflects the fact that carbon budgets are still the main mechanism for delivery of the UK's climate change objectives, so ensuring that a scheme does not materially impact the government's ability to meet carbon budgets is the correct test for the decision maker to apply."
The Planning Act 2008
"5 National policy statements
…
(5) The policy set out in a national policy statement may in particular—
(a) set out, in relation to a specified description of development, the amount, type or size of development of that description which is appropriate nationally or for a specified area; …
…
(7) A national policy statement must give reasons for the policy set out in the statement.
…"
"6 Review
(1) The Secretary of State must review each national policy statement whenever the Secretary of State thinks it appropriate to do so.
(2) A review may relate to all or part of a national policy statement.
(3) 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.
(4) In deciding when to review part of a national policy statement ("the relevant part") the Secretary of State must consider whether—
(a) since the time when the relevant part 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 relevant part 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 relevant part would have been materially different.
(5) After completing a review of all or part of a national policy statement the Secretary of State must do one of the following—
(a) amend the statement;
(b) withdraw the statement's designation as a national policy statement;
(c) leave the statement as it is.
(6) Before amending a national policy statement the Secretary of State must carry out an appraisal of the sustainability of the policy set out in the proposed amendment.
(7) 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 set out in section 9, have been complied with in relation to the proposed amendment and -
(a) the consideration period for the amendment has expired without the House of Commons resolving during that period that the amendment should not be proceeded with, or
(b) the amendment has been approved by resolution of the House of Commons—
(i) after being laid before Parliament under section 9(8), and
(ii) before the end of the consideration period."
"6A Interpretation of sections 5(4) and 6(7)
(1) This section applies for the purposes of section 5(4) and 6(7).
(2) The consultation and publicity requirements set out in section 7 are to be treated as having been complied with in relation to a statement or proposed amendment ("the final proposal") if—
(a) they have been complied with in relation to a different statement or proposed amendment ("the earlier proposal"),
(b) the final proposal is a modified version of the earlier proposal, and
(c) the Secretary of State thinks that the modifications do not materially affect the policy as set out in the earlier proposal."
"7 Consultation and publicity
(1) This section sets out the consultation and publicity requirements referred to in sections 5(4) and 6(7).
(2) The Secretary of State must carry out such consultation, and arrange for such publicity, as the Secretary of State thinks appropriate in relation to the proposal. This is subject to subsections (4) and (5).
(3) In this section "the proposal" means—
(a) the statement that the Secretary of State proposes to designate as a national policy statement for the purposes of this Act, or
(b) (as the case may be) the proposed amendment.
(4) The Secretary of State must consult such persons, and such descriptions of persons, as may be prescribed.
(5) If the policy set out in the proposal identifies one or more locations as suitable (or potentially suitable) for a specified description of development, the Secretary of State must ensure that appropriate steps are taken to publicise the proposal.
(6) The Secretary of State must have regard to the responses to the consultation and publicity in deciding whether to proceed with the proposal."
"10 Sustainable development
(1) This section applies to the Secretary of State's functions under sections 5 and 6.
(2) The Secretary of State must, in exercising those functions, do so with the objective of contributing to the achievement of sustainable development.
(3) For the purposes of subsection (2) the Secretary of State must (in particular) have regard to the desirability of—
(a) mitigating, and adapting to, climate change;
(b) achieving good design."
"104 Decisions in cases where national policy statement has effect
(1) This section applies in relation to an application for an order granting development consent if a national policy statement has effect in relation to development of the description to which the application relates.
(2) In deciding the application the Secretary of State must have regard to—
(a) any national policy statement which has effect in relation to development of the description to which the application relates (a "relevant national policy statement")…
(3) The Secretary of State must decide the application in accordance with any relevant national policy statement, except to the extent that one or more of subsections (4) to (8) applies.
…
(7) This subsection applies if the Secretary of State is satisfied that the adverse impact of the proposed development would outweigh its benefits."
Ground One
"Fairness is a protean concept, not susceptible of much generalised enlargement. But its requirements in this context must be linked to the purposes of consultation. In R (Osborn) v Parole Board [2013] UKSC 61, [2013] 3 WLR 1020 , this court addressed the common law duty of procedural fairness in the determination of a person's legal rights. Nevertheless the first two of the purposes of procedural fairness in that somewhat different context, identified by Lord Reed in paras 67 and 68 of his judgment, equally underlie the requirement that a consultation should be fair. First, the requirement "is liable to result in better decisions, by ensuring that the decision-maker receives all relevant information and that it is properly tested" (para 67). Second, it avoids "the sense of injustice which the person who is the subject of the decision will otherwise feel" (para 68). Such are two valuable practical consequences of fair consultation. But underlying it is also a third purpose, reflective of the democratic principle at the heart of our society. This third purpose is particularly relevant in a case like the present, in which the question was not "Yes or no, should we close this particular care home, this particular school etc?" It was "Required, as we are, to make a taxation-related scheme for application to all the inhabitants of our Borough, should we make one in the terms which we here propose?"
"… Second, in the words of Simon Brown LJ in Ex p Baker [1995] 1 All ER 73, 91, "the demands of fairness are likely to be somewhat higher when an authority contemplates depriving someone of an existing benefit or advantage than when the claimant is a bare applicant for a future benefit.""
"43. Having considered the various submissions made across Grounds 1, 2 and 4 of the Claimant's case, in my view it is convenient to commence an examination of the merits of the case with an enquiry into Ground 4. The reason for taking this approach is that at the heart of the dispute between the parties is the question of what the Defendant was doing when incorporating paragraph 209(a) into the Framework or, more particularly in relation to Ground 4, what a member of the public engaging in the consultation process and reading the publicly available material as a reasonable reader, would have concluded the Defendant was doing.
44. Whilst the Court's attention was not drawn to any authority bearing specifically on the correct approach to examining the meaning of documents produced within a decision-making process related to the creation of policy (and in particular the consultation process accompanying it), it appears to me to be obvious that the documentation must be read and examined in the spirit of the purpose for which it is produced. It must be read and considered from the standpoint of a reasonable member of the public or reasonable reader. Mr Warren drew attention to the observation of Lord Carnwath in his judgment in the case of Trump International Golf Club Limited v Scottish Ministers [2015] UKSC 74 where at paragraph 34, when considering the words of a condition on a planning permission, he indicated that the court would ask itself "what a reasonable reader would understand the words to mean when reading the condition in the context of the other conditions and of the consent as a whole." He described that as an objective exercise in which the court would have regard to the natural and ordinary meaning of the words involved alongside the overall purpose of the consent and any other conditions, and that in doing so would apply common sense. Whilst the content of a condition on the planning consent is not the same as the content of material produced in the process of making a policy by some margin, in my view the same kind of approach is necessary bearing in mind the nature and purpose of the exercise which is taking place. In relation to a consultation process the purpose of the documentation is to secure the engagement of the public and their contribution to the decision-making process on the issues which they are to be led to consider are the subject matter of the decision-making process, that is to say the issues within the scope of the decision- making process."
"139. The requirement that the consultation takes place at a "formative stage" means that at the relevant time the decision-maker must have an "open mind on the issue of principle involved": Montpelier §21 (ii). The question is whether the decision-maker had already made up its mind to adopt the proposal or whether it was willing to reconsider its proposal in the light of the consultation process if a case to do so was made out. There must be no actual pre-determination on the part of the decision-maker. Where the decision-maker is consulting on a particular proposal, the consultation must include consultation on whether the proposal should be adopted, and not just on how. However I accept the Secretary of State's submission that there is a legitimate distinction to be drawn between actual pre-determination on the part of the decision-maker and the decision-maker having a "pre-disposition" towards the proposal. The latter is permissible, and necessarily so in circumstances where the decision-maker is, as entitled to do, to determine the particular proposal upon which he wishes to consult, see Lewis v Redcar §§63, 95, 99, 106-107; Langton §§106, 107; Spurrier §§503-535, especially at §§ 509-511, 524, 531."
"Coughlan (4): Conscientious consideration
151. This requirement does not amount to an obligation to adopt the submission by any particular respondent, nor to adopt the majority view. The decision-maker is entitled to consider the whole range of responses and then to form his own view, independently of the views of any particular consultees. Further there is no obligation to consider each and every specific item of detail: West Berkshire CC §§62-63. There is an obligation to take account of the majority view, but no obligation to adopt that view: R (Assisted Reproduction and Gynaecology Centre) v The Human Fertilisation and Embryology Authority [2017] EWHC 659 (Admin) §117.
152. As to the information placed before the decision-maker, the decision-maker must know enough to ensure that nothing that is necessary, because legally relevant, for him to know is left out of account. But there is no requirement that he must know everything that is relevant. The claimant must establish that a matter was such that no reasonable decision-maker would have failed in the circumstances to take it into account as a relevant consideration: Langton §115 citing R (National Association of Health Stores) v Department of Health [2005] EWCA Civ 154 at §§60-63. To this extent, the Coughlan (4) requirement is based on a Wednesbury approach.
153. The scope of any obligation to give reasons, as part of the duty to give conscientious consideration, was addressed in Spurrier at §§131 to 137. After citing West Berkshire above, the Court went on to approve the approach of Ouseley J in R (Buckinghamshire CC) v Secretary of State for Transport [2013] EWHC 481 (Admin) at §549 and 624. Where there is a large number of consultation responses, conscientious consideration does not require a fully reasoned decision letter as following a public inquiry. The real question is whether the response to the problems is rational. Nevertheless there should be evidence of consideration of important points made by consultees: R (Morris) v Newport City Council [2009] EWHC 3051 (Admin) §38.
(2) Discussion
Pre-determination: Coughlan (1), and Ground 2
154. The starting point is to consider the particular duty of consultation in s.12(6) of the 2006 Act, both its wording and its statutory context. In my judgment, as a matter of construction, the subject matter of the consultation required by s.12(6) is "regulations" which the appropriate authority is considering making i.e. the proposed regulations. Thus, in the present case, where the Secretary of State was proposing to make regulations banning the use of e-collars, it was that proposed ban upon which he was required to consult."
a. The nature and content of an NPS may differ considerably from the very specific, i.e. identifying particular locations for development to a general, criteria based policy [99];
b. National need would be identified in an NPS but the weight to be given to that need would be a matter for the decision maker at the DCO stage [101]. Mr Strachan submits this is particularly relevant here, where the NNNPS gives general support to there being a need for new networks, but does not given any locational specific policy;
c. S.104(7) does not as a general proposition rule out the consideration of alternatives to the development proposed in the DCO [104].
"134. Giving the judgment of the court, Laws and Treacy LJJ held that the Secretary of State had been entitled to consider the whole range of responses made to him and then to form his own conclusions independently of the views of any section of consultees. In particular, he had not been obliged to explain why he had set the threshold at one level (ten units) rather than another in response to the representations received (three units). It was unnecessary for him to descend to that level of particularity or to conduct detailed analysis of alternative options before him. He was under no obligation to consult on every item of detail – or to consider and respond to every item of detail in the consultation responses (see [49] and [62]-[63]). It seems to us that that approach chimes with objectives identified in Moseley for a broad consultation exercise, for example with the public or a large section of the public, to ensure participation in the Minister's decision-making process and to promote better decision-making, here the formulation of a national policy."
"518. The statutory context of the PA 2008 bears some similarities to the legislation considered in CREEDNZ . It is concerned with projects of national significance. The decisions which the statute requires a Secretary of State to make may well concern policies or projects which have evolved over lengthy periods of time and which give rise to controversy. It is unrealistic to expect a Secretary of State not to have formed views on many issues, perhaps even strongly held views, by the time he comes to initiate consultation on a proposal to designate a new NPS under section 7, a fortiori by the time he comes to lay the proposal before Parliament under section 9. The Secretary of State may not designate a proposed NPS unless either the House of Commons votes to approve it, or a certain period of time elapses without the House voting that "it should not be proceeded with" (section 5(4)). Consequently, the statutory scheme expects the Secretary of State to be prepared to promote his proposed policy in Parliament, an exercise involving political judgment. Furthermore, a policy dealing with the need for new infrastructure may be closely linked to the identification of areas or sites where that need can properly be met and so a proposed NPS may also address that aspect ( section 5(5)(d) ). Thus, the views which a Secretary of State forms on a proposal to designate an NPS may also address locational issues and the merits of rival schemes."
Ground Two
"2.24 Government's Transport Decarbonisation Plan demonstrates how we will deliver transport's contribution to emissions reductions in line with net zero, much of which has already been delivered or is in progress."
"116. In our view, although section 5(7) requires an NPS to contain the rationale for the policy, it does not require every reason and consideration the policy-maker had in mind when promoting or designating the NPS to be set out in the statement, for the following reasons.
117. Section 5(7) is not concerned with reasons for making a decision, but rather reasons for making a policy. However, even in the former case, the duty to give reasons does not require the decision-maker to refer to every relevant consideration which he has taken into account. …
…
119. We consider section 5(7) , properly construed, requires a similar approach: the Secretary of State's obligation is to give reasons (i.e. rationale) for his policy. The inclusion of the policy-maker's rationale for his policy in a draft NPS contributes to the provision of adequate information to enable consultees to make intelligent responses in the consultation exercise. But that rationale should not be taken to represent the totality of the policy-maker's reasons for putting forward the policy. It is for the Secretary of State to make judgments about what matters to include in the NPS itself, and to what level of detail; and what material used to support those policies should be set out in other documents accompanying the draft NPS published for consultation (e.g. the AoS and any HRA). In such a complex area as aviation infrastructure policy, plainly it would be impractical to include in the NPS, whether a draft or as finally designated, every matter relied upon by the policy-maker as a reason for his policy; and for the reasons we have given, it is unnecessary for the Secretary of State to give reasons for rejecting every point made in response to consultation."
Ground Three
"5.41 Operational carbon emissions from some types of national network infrastructure cannot be totally avoided. Given the range of non-planning policies aimed at decarbonising the transport system, government has determined that a net increase in operational carbon emissions is not, of itself, more reason to prohibit the consenting of national network projects or to impose more restrictions on them in the planning policy framework.
5.42 Any carbon assessment will include an assessment of operational carbon emissions, but the policies set out in chapter 2 of this NPS, apply to these emissions. Operational emissions will be addressed in a managed, economy-wide manner, to ensure consistency with carbon budgets, net zero and our international climate commitments. Therefore, approval of schemes with residual carbon emissions is allowable and can be consistent with meeting international obligations arising from the Paris Agreement. However, where the increase in carbon emissions resulting from the proposed scheme are so significant that it would have a material impact on the ability of government to achieve its statutory carbon budgets, the Secretary of State should refuse consent."
"In an Annex to the ministerial submission, there was a table which asked whether certain "events" gave rise to a "significant change in circumstances" and were "unanticipated at time of publication [of the NNNPS]" and whether the policy would have been materially different (i.e. the three considerations referred to in ss. 6 and 11 of the 2008 Act). For each of "change in road traffic & congestion forecasts", "setting of carbon budget" and the TDP, the answer was "YES", "YES" and "Potentially YES". There was no event for which the answer was "YES" to each of the three questions. In the case of the TDP, there was this comment:
"The Transport Decarbonisation Plan recognises significant developments that have affected road demand and will impact of future traffic growth, and specifically commits to keeping road emissions stable in the medium term. This is a substantial policy change unanticipated at the time of designation, and invites a reconsideration of the assumption in para 5.17 of the NNNPS that 'it is very unlikely that the impact of a road project will, in isolation, affect the ability of government to meet its carbon reduction plan targets'.""
"Regarding sectoral targets, paragraph 5.31 of the consultation version of the NNNPS 2024 stated:
"Having regard to current knowledge, a carbon management plan should be produced as part of the Development Consent Order submission and include:
…
where there are residual emissions, the level of emissions and the impact of those on national and international efforts to limit climate change, both alone and where relevant in combination with other developments at a regional or national level, or sector level, if statutory sector targets are developed and come into force.""