The new draft Wales Bill 2016-17 (the Bill) was published on 7 June 2016. Much of it consists of amendments to the Government of Wales Act 2006 (GoWA). It will give effect to the Government's policy of moving to a reserved powers model for Wales and to provide a clearer separation of powers between what is devolved and what is reserved. The Assembly would be enabled to legislate on any subject except those specifically reserved to the UK Parliament. The majority of the provisions set out the powers that are being transferred to the National Assembly for Wales (the Assembly) and or the Welsh Ministers.
New powers devolved to Wales
The Bill devolves further powers to the Assembly in areas where there was political consensus in support of further devolution; in summary, these include devolving:
- responsibility to the Assembly for functions under legislation concerning harbours, harbour authorities and pilotage (note that the port of Milford Haven would be reserved)
- responsibility to the Assembly for functions for energy consenting for generating stations with 350 megawatt (MW) capacity or less
- responsibility to Welsh Ministers for marine licensing and conservation and energy consents in the Welsh offshore region
- powers on licensing of onshore oil and gas extraction (including shale gas licensing); and
- responsibility to the Assembly for competence on sewerage.
In addition the Bill includes further provisions relevant to energy which were not contained in last year's first draft of the Bill:
- giving a formal consultative role to the Welsh Government and Assembly in designing (or amending) renewables incentives
- a duty on OFGEM to lay annual report and accounts before the Assembly, submit reports, and appear before Assembly Committees; and
- the devolution of responsibility for mineral access rights for underground onshore extraction of oil and gas in Wales.
The Bill, if passed in its current form, would devolve energy planning powers to Wales for all generation projects up to 350MW capacity both onshore, and in Welsh territorial waters.
Associated developments, for example overhead power lines and sub-stations, would also become a matter for the Welsh planning system.
The Bill also provides that Welsh ministerial responsibility for marine licensing in the Welsh inshore region should be extended to the Welsh offshore region.
The Bill is expected to complete its passage through the UK Parliament in this session 2016-17.
For more detail on planning for electricity generating stations and marine licensing and conservation please see below.
Planning for electricity generating stations
Projects up to and including 350MW
The Bill gives effect to the policy intention to devolve to Wales the responsibility for energy planning development consents for projects up to and including 350MW, onshore and in Welsh territorial waters.
The effect of the draft provisions is to dis-apply the Secretary of State’s power under the Planning Act 2008 (the 2008 Act) to grant development consent for all electricity generating stations in Wales and in Welsh territorial waters insofar as such projects do not exceed a capacity of 350MW, and for all onshore wind powered generating stations with no upper limit.
Note that the effect of dis-applying the 2008 Act without consequential further amendment would mean that consenting of electricity generating stations would have to be in accordance with section 36 of the Electricity Act 1989 (the 1989 Act). The Bill therefore contains provisions with the combined effect to remove the application of the 1989 Act in so far as they relate to electricity generating stations up to and including 350MW in Wales. Those amendments then effectively clear the way for Welsh Ministers to consent projects under the dedicated process for developments of national significance (DNS) inserted into the Town and Country Planning Act 1990 (TCPA 1990), as it applies in Wales, by the Planning (Wales) Act 2015.
However, the TCPA 1990 does not apply offshore. Hence the draft Wales Bill makes provision to devolve section 36 of the 1989 Act to Welsh Ministers for the determination of projects not exceeding 350MW in Welsh territorial waters and in the Welsh Zone (i.e. offshore).
Note that until such time as the draft Wales Bill provisions come into force, development consent for energy generating stations above 50MW will continue to be determined by the Secretary of State under the provisions of the 2008 Act, with the exception of onshore wind.
The reserving of planning consents for generating stations above 350MW (except onshore wind) means that those applications of national importance will continue to be considered at the UK level under the 2008 Act.
Onshore wind 10 to 50MW and over 50MW up to 350MW
All onshore wind powered generating stations (without the upper limit of 350MW) are devolved via section 78 of the Energy Act 2016, which comes into force on 12 July 2016.
Onshore wind projects above 50MW have since March 2016 (when amending regulations were made) also been captured by the relatively new consenting route in Wales for DNS projects, which already includes onshore generating stations of between 10-50MW.
The effect will be that applications for planning permission for (a) the construction of onshore wind farms with a generating capacity of 10MW or above, and (b) the extension or alteration of an onshore wind farm with an expected increased generating capacity of 10MW or above, in Wales must be made to the Welsh Ministers.
In summary, this means that onshore wind projects of 10-50MW and those over 50MW-350MW will be dealt with by the DNS process.
The DNS application will be examined by a Planning Inspector who will make a recommendation to the Welsh Minister based on planning merits and national priorities. The Welsh Minister will determine the application.
Public rights of navigation offshore
The Bill also makes provisions that Welsh Ministers would in the future be able to make declarations extinguishing public rights of navigation out to the seaward limits of the territorial sea in relation to generating stations up to 350MW. The provisions, if implemented, would mean that Welsh Ministers would in the future be able to make declarations extinguishing public rights of navigation, so as to ensure safety, out to the seaward limits of the territorial sea, in relation to generating stations up to 350MW.
The Bill provisions also provide that Welsh Ministers would have the power to allow for the imposition of navigation duties by Welsh Ministers in relation to generating station consents up to 350MW in waters adjacent to Wales out to the seaward extent of the ʺWelsh zoneʺ.
Alignment of associated development consent
The Bill also takes forward the recommendation of the Silk Commission, (also taken forward in the St David's Day Agreement) that the responsibility for granting consent for associated development for energy projects should be aligned with the responsibility for granting consent for the main project.
There is currently no provision in the 2008 Act for the Secretary of State to grant development consent for associated development for an energy generation project in Wales. The Bill now devolves consents for energy generation projects up to, and including, 350MW to Wales. In order to allow that Welsh Ministers can grant associated development with generating stations that they will be able to consent, the Bill provides that overhead electric lines which are necessarily associated with such generating stations (subject to a limit of 132kV nominal voltage) can be consented by Welsh Ministers.
The Bill also contains provisions which would ensure that associated development for power stations generating more than 350MW are dealt with by the Secretary of State.
Marine licensing in the Welsh offshore region
The Bill provides for the implementation of the recommendation of the Silk Commission (taken forward in the St David's Day Agreement), that the existing executive responsibilities for marine licensing in the Welsh inshore region should be extended to the Welsh offshore region.
The Bill would ensure that Welsh Ministers are the appropriate licensing authority for Wales, the Welsh inshore region and the Welsh offshore region, unless the activity to be licensed falls within specified "reserved activities" for which the Secretary of State would remain the licensing authority.
The Bill would also extend the list of "reserved activities" so as to additionally reserve, in relation to the Welsh offshore region only, any activity falling within the subject matter of Part 6 (pollution etc.) of the Merchant Shipping Act 1995 (MSA).
Consequential provisions of the Bill would extend the activities in relation to which a marine enforcement officer cannot exercise enforcement powers to include, in the Welsh offshore region: (i) an activity concerning or arising from the exploration for, or production of, petroleum; and (ii) any activity falling within the subject matter of Part 6 of the MSA.
The power to appoint persons for enforcement purposes relating to any activity in Wales, the Welsh inshore region or the Welsh offshore region concerning the exploration for, or production of, petroleum would also be given the Secretary of State under the Bill's provisions.
Marine conservation zones
The Bill provisions appoint the Welsh Ministers as appropriate authority in the Welsh offshore region allowing them to designate areas as marine conservation zones (MCZ) in that region. Note that the Bill also provides that proposed designation of an MCZ that includes any part of the Welsh offshore region would require the Secretary of State's agreement.
Thoughts on the legislative timetable
The Bill was introduced to the House of Commons on 7 June 2016 and received its second reading on 16 June 2016.
The EU referendum may leave the UK Government too preoccupied and with little time to dedicate to Welsh devolution, at least in the immediate short term. The Bill's progress, along with all other legislation will be subject to the parliamentary timetable, though it is currently difficult to predict that what a return to other business will look like after the referendum.