The current position
Applications for generating stations in England and Wales with a generating capacity above 50 megawatts (MW) onshore, and 100 MW offshore, currently follow the nationally significant infrastructure project (NSIP) consenting route under the Planning Act 2008. This means that they are processed by the Planning Inspectorate (PINS) and decided in Westminster by the Secretary of State for Energy and Climate Change (DECC).
However, a number of legislative changes are currently progressing which will see the consenting of some of the energy projects devolved to Wales.
The draft Wales Bill was published on 20 October 2015. It proposes that the power to determine all consents for onshore and offshore generating stations with a capacity of 50MW to 350MW will be devolved to Welsh Ministers; this includes onshore and offshore wind. Note that Wales already has responsibility for energy projects under 50MW.
Determination of onshore wind applications above 50MW will also be devolved, but via a different route. The Energy Bill, currently progressing through Parliament, will remove onshore wind projects over 50MW from the UK wide nationally significant infrastructure project (NSIP) regime. This will mean that once those changes come into force it will be up to Wales to decide how these are consented in Wales.
However there are a number of uncertainties on how energy projects in Wales will be consented going forward. This is particularly so as the draft Wales Bill was published when it is not yet clear where the thresholds for the new consenting regime under Planning (Wales) Act 2015 for developments of national significance are going to be set.
Developments of National Significance in Wales: 25 – 50MW?
Over the summer the Planning (Wales) Act 2015 came into force, on 6 July 2015. The Act creates the category of developments of national significance (DNS), together with the framework for consenting these. The DNS process is in many ways very similar to the consenting process for NSIPs in England, although there is one very notable difference. This is that applicants will receive a 'planning permission' (not development consent) under the Town and Country Planning Act (TCPA).
Implementing regulations in Wales will be required to provide the detail and to set the precise thresholds for projects at which these will fall into the DNS categories. A consultation, including on the thresholds, ended on 12 August 2015, and the outcome is still awaited.
The consultation proposed the threshold of 25 to 50MW for energy generation DNS, but this has not yet been confirmed. Reported speculation suggests that the proposed lower threshold may be revised up to 50MW. Any projects under the DNS thresholds, wherever these will eventually be set, would be consented by the local planning authority under the TCPA.
It is also currently unclear where the upper threshold for DNS might be set. The Welsh government is likely to be considering whether it is possible to include the larger schemes (i.e. 50 - 350MW schemes which it is proposed to devolve via the changes in the draft Wales Bill) in the consenting process for DNS. But this is unconfirmed to date.
There are differences between the proposed consenting route for DNS and the Planning Act 2008 consenting route for NSIPs. This may suggest to Welsh Ministers that if larger schemes are now to be included in the DNS process, there may have to be revisions to the proposed DNS process. However, if it were to be decided not to include the larger schemes in the consenting process for DNS then a different consenting process may have to be brought forward for these schemes in Wales.
The draft Wales Bill also seeks to resolve an anomaly in the current consenting process as it applies to NSIPs in Wales which was clearly demonstrated by the recent Swansea Bay Tidal Lagoon and Hirwaun gas-fired power plant consents which we set out in our briefing here. The anomaly is that the Planning Act 2008 regime excludes approval for associated development for projects in Wales. The draft Wales Bill contains provisions, which if implemented, would enable requests for associated development consent to be considered together with the main project. That would also include the ability to use related powers such as compulsory acquisition which have had to follow a separate process.
We noted above that the power to determine onshore wind applications above 50MW will also be devolved to Wales, but via a different route.
On coming to power the new Conservative Government committed to remove onshore wind from the NSIP consenting regime. In Wales, this change would mean that either local authorities or Welsh ministers would determine applications for wind schemes.
The change is being progressed by the UK Government by provisions included in the Energy Bill, which if implemented would devolve decision-making powers over such schemes to Wales.
The Welsh secretary, Stephen Crabb, is reported to have said that decisions on applications for "all onshore wind farms" in Wales would be devolved to councils. However, the Welsh government position is unconfirmed to date so that it is currently unclear if the power to consent onshore wind farms in Wales would be given to councils or to Welsh Ministers, or to both.
It is likely that Welsh Ministers are now considering the consenting routes for the projects over the originally proposed DNS thresholds. It had been understood that the Welsh government was aiming to bring the implementing regulations for DNS forward by spring 2016. However, progress may now be delayed, particularly if it is decided to expand the DNS regime to incorporate major energy projects. The Welsh Affairs Committee is currently undertaking pre-legislative scrutiny of the draft Wales Bill prior to its formal introduction to parliament. The outcome of the consultation on DNS thresholds is still awaited.