Planning Inspectorate
The government has published guidance about national infrastructure planning which applicants, members of the public and other parties should read. See the?National Infrastructure Planning Guidance Portal.?The guidance should be read alongside the?Planning Act 2008?(the Planning Act).
This advice is non-statutory. However, the Planning Inspectorates advice about running the infrastructure planning regime and matters of process is drawn from good practice and applicants and others should follow our recommendations. It is intended to complement the legislation, regulations and guidance issued by government and is produced under section 51 of the Planning Act.
This advice should be read together with Planning Inspectorates Advice on the Environmental Impact Assessment Process and government guidance on the Planning Act process.
Aims of the WFD
The Water Environment Regulations 2017 (Water Framework Directive) (England and Wales) transpose the Water Framework Directive into UK law.
The WFD protects surface waters including rivers, lakes, transitional waters (referred to in this advice as estuarine waters), coastal waters and groundwater.
The aims of the WFD are:
- to enhance the status and prevent further deterioration of surface water bodies, groundwater bodies and their ecosystem
- to ensure progressive reduction of groundwater pollution
- to reduce water pollution, especially by Priority Substances and Certain Other Pollutants under Annex II of the Environmental Quality Standards Directive 2008/105/EC
- to support mitigating the effects of floods and droughts
- to achieve at least good surface water status for all surface water bodies and good chemical status in groundwater bodies by 2015 (Article 4), or good ecological potential for artificial or heavily modified water bodies
- to support sustainable water use
The 2017 WFD Regulations require the appropriate agency, namely the Environment Agency in England and Natural Resources Wales in Wales, to prepare River Basin Management Plans for each river basin district (RBD), for the approval of the appropriate authority. The appropriate authority is the Secretary of State in England and Welsh ministers in Wales.
There are 12 RBDs in England, Scotland and Wales, including two cross-border RBDs between England and Wales and one which crosses the borders between England and Scotland.
River Basin Management Plans describe:
- the current state of the water environment for each river basin district
- the pressures affecting the water environment
- the objectives for protecting and improving it
- the programme of measures needed to achieve the statutory environmental objectives of the WFD
These plans were first published in 2009 and are subject to regular review to ensure they comply with the main objectives of the WFD. The most recent review was completed in 2022.
Duties of the Secretary of State and Examining Authority
The 2017 WFD Regulations place a general duty on the Secretary of State, Welsh ministers, the Environment Agency, and Natural Resources Wales to exercise their relevant functions to secure compliance with the WFD (Regulation 3). Functions under the Planning Act 2008 are not relevant functions for this purpose.
These authorities and each public body (as defined in Regulation 2) also have a duty to have regard to the relevant River Basin Management Plan in exercising their functions (Regulation 33). This duty does apply to functions under the Planning Act 2008 in examining and determining NSIP applications.
When deciding NSIP applications, the Secretary of State will need to consider the potential effects of any proposed development on:
- the environmental objectives and measures within River Basin Management Plan and any supplementary plans and
- the ability of the UK to comply with the WFD, including (if applicable) the derogation provisions of Article 4.7
The Examining Authority for an NSIP application must also report on these effects and ensure the Secretary of State has enough information to decide whether the development has implications for the UKs obligations under the WFD. This includes information in support of any derogation that may be sought.
Several National Policy Statements state that the Environmental Statement must contain information on impacts arising from the proposed development on water bodies or protected areas under the WFD and other relevant directives. See the National Policy Statements EN-1 Energy, EN-6 Nuclear, National Networks, Ports, Waste Water, and Hazardous Waste.
Regulation 5(2) (l) (iii) of the Infrastructure Planning (Applications: Prescribed Forms and Procedure) Regulations 2009 (the APFP Regulations) requires applicants to?provide a plan and information identifying water bodies in a river basin management plan, together with an assessment of any effects on such bodies likely to be caused by the proposed development.
Any WFD assessment must be conducted thoroughly and be easily identified amongst the application documents.
Relationship with Environmental Impact Assessment (EIA) and Habitat Regulations Assessment (HRA)
Most NSIP applications will need an EIA and often also require an HRA. Applicants should refer to the Planning Inspectorates?Advice Pages on EIA and HRA for further information on these assessments.
The WFD assessment, EIA and HRA are separate assessments but all are integral to the application and there is a direct relationship between them.
These assessments influence decision-making in different ways:
- the WFD assessment informs the Secretary of State in relation to the duty to have regard to the River Basin Management Plan and any supplementary plans (Regulation 33 of the 2017 WFD Regulations)
- the EIA informs the Secretary of State of likely significant effects from the Proposed Development and its findings must be taken into consideration (Regulation 4(2) of the 2017 Infrastructure Planning (EIA) Regulations)
- the HRA has required stages to be followed by the decision maker when authorising development consent which can only be granted if the requirements of the Habitats Regulations are met (Regulation 28/61 of the relevant Habitats Regulations)
A WFD assessment will need to record the effects of the proposed development on the WFD objectives and relevant River Basin Management Plans. This information must be clearly identified in the application documents. and it is recommended that the assessment be submitted either as a separate report or as a separate assessment within the environmental statement.
Applicants can use the EIA scoping procedure to submit information identifying the water bodies within relevant River Basin Management Plans likely to be impacted by the development, including the methodology for assessment. This will help alert the Planning Inspectorate, the Secretary of State, and relevant consultees to the implications of the proposed development on the WFD early in the pre-application stage.
Applicants are advised to describe the methods they plan to use in their WFD assessment within their EIA scoping report.
Consultation bodies
The Environment Agency and Natural Resources Wales must comply with the WFD and are statutory consultation bodies under the Planning Act 2008. Applicants should seek the views of the Environment Agency and/or Natural Resources Wales early in the pre-application process and during examination if necessary.
Discussions may include:
- the need for a specific WFD assessment
- the scope and methodology of any WFD assessment
- the potential impact of the proposed development on water bodies within the relevant River Basin Management Plan and compliance with the objectives of the WFD
- any mitigation measures needed to ensure compliance
- the information to be submitted as part of the NSIP application to inform the tests of Article 4.7, if a derogation is necessary, which should be gathered early in the process, including at the design options appraisal stage
Applicants should use the pre-application consultation process to obtain advice from the consultation bodies. This should include confirmation that all relevant water bodies have been considered, that all potential impacts to these waterbodies have been considered and whether the requirements of the WFD have been met.
The outcome of this consultation should be recorded as part of the WFD assessment or appended to the relevant chapter of the environmental statement.
Where the Environment Agency and, or Natural Resources Wales agree that a specific WFD assessment isnt needed, this should be reported, and the relevant consultation res