The current system for delivering major new energy projects in the UK is fraught with problems and has arguably stifled investment in infrastructure. Numerous consents from various agencies are often required. Public inquiries are inevitable, given the local controversy that is usually attendant upon such projects, leading to huge costs for the developer and long delays, in terms of long lead-in times before getting to the hearing stage, protracted hearings involving many participants and then significant lapses of time before the relevant government department delivers its decision.
In an attempt to overcome these problems the recently published energy and planning white papers propose what amounts to a preferential regulatory system for nationally significant infrastructure projects that should, among other matters, ensure the delivery of the new energy generation capacity that the government envisages will be required in the next two decades1. This involves further changes to the development consents regime, beyond those already introduced by the Planning and Compulsory Purchase Act 2004 for major infrastructure projects, and further bolstering the Renewables Obligation to bring forward investment in the clean energy technologies that will help to meet the government’s climate change objectives2. This overview considers the proposed changes to the development consents regime in light of the recent introduction of the government’s Planning Bill into parliament, which, when passed, will provide the legal architecture to deliver it.
New development consents regime
The Planning Bill indicates that there are three elements to the new development consents regime:
- the introduction of national policy statements to establish the national need for major infrastructure projects, including energy projects;
- a new application process for nationally significant projects, with decisions being taken by an independent body, the Infrastructure Planning Commission (the Commission); and
- the encouragement of earlier public participation in the formulation of proposals for major infrastructure projects.
National policy statements
The Bill defines a national policy statement as a statement issued by the secretary of state setting out a national policy on one or more specified descriptions of development. They will deal with, for example:
- the amount, type or size of development of that description that is appropriate nationally or for a specified area;
- the criteria to be applied in determining whether a location is suitable and the relative weight to be applied to the criteria;
- suitable, potentially suitable and unsuitable locations; and
- the circumstances in which the developer will be required to take mitigation actions.
Reasons must be given for the policy set out in the statement. National policy statements are intended to address the current absence of a clear, coherent national policy framework for major infrastructure projects, which means developers are required to establish the need for the proposed development in the context of each application submitted. In an attempt to create the right conditions for investment by the private sector, the statements are expected to look forward 10 to 25 years, with the secretary of state required to review them whenever it is considered appropriate to do so, for example, in the light of significant new developments, including changes in energy technologies.
The secretary of state for business, enterprise and regulatory reform will be responsible for producing energy national policy statements. These are likely to consider the development necessary to meet the government’s objectives on providing new generation capacity and hence its security of supply objectives, taking account of relevant economic, environmental and social considerations – all national policy statements are subject to the requirement for a sustainability appraisal. It is expected that a number of national policy statements will be produced for the energy sector and that these may be more generic than those for other affected sectors (including transport, water and waste) because more flexibility is likely to be available for potential developers on factors such as capacity and location.
Draft national policy statements must be subject to full public consultation before their adoption – and to parliamentary scrutiny. The Bill also requires appropriate publicity within the affected community if a particular location is referred to in a national policy statement.
The contents of national policy statements, as well as other decisions by the secretary of state on national policy statements, can be challenged by judicial review before the courts. Challenges are, however, subject to a time limit of six weeks from the statement’s publication or the decision’s being made.
Following the adoption of a relevant national policy statement, a decision maker would need to consider only the specific and local effects of a proposed development in determining an application for development consent. A national policy statement will therefore be the primary point of reference for nationally significant infrastructure projects (see ‘Nationally significant energy projects’ below) and will be a material consideration afforded significant weight3 in planning applications considered by the local planning authority or secretary of state under the Town and Country Planning Act 1990.
Nationally significant energy projects
The Bill indicates that projects that are considered nationally significant will be subject to a new application regime, with decisions on development consents being taken by the Commission rather than the relevant secretary of state.
The following major energy projects are considered nationally significant for the purposes of the Bill:
- the construction of new power stations or extensions to existing ones whose generation capacity is more than 50 megawatts onshore or 100 megawatts offshore;
- the installation of an above-ground electric line;
- the creation of underground gas storage facilities; and
- the construction of a cross-country pipeline or other commercial pipeline that currently requires authorisation under section 1(1) of the Pipelines Act 1962.
The secretary of state has the power to amend the definition to include other energy infrastructure projects by secondary legislation and the Commission will decide whether the new regime applies in the event of any doubt.
Development consent is required for any development that is, or forms part of, a nationally significant infrastructure project. The new regime will lead to the rationalisation of the various existing development consents regimes that may apply to energy projects – including, for example, the requirement to obtain planning permission or consent under the Electricity Act 1989 or to apply for an order under the Transport and Works Act 1992 – into a single regime with a harmonised set of requirements and procedures, cutting through the confusion and complexities inherent in the existing system.
Either an individual commissioner or a panel of commissioners (the examining authority) is able to examine applications received by the Commission; the chair of the Commission will determine how the application is handled. The Bill requires that the examination stage be completed within six months. The examining authority will hold a preliminary meeting to enable the parties to make representations on how the application should be examined. It will then decide the process and the appropriate timetable. The six-month period runs from the last day of the preliminary meeting and may be extended if appropriate.
Decisions on applications for development consent, which must be taken within a further three-month period (again the Commission is able to extend this in appropriate circumstances), will be taken by the council of the Commission on a majority basis if they are subject to the individual procedure, or by majority decision of the panel. The Bill grants the secretary of state the power to intervene and to determine applications himself in certain circumstances. Where this applies, the Commission will examine the application and then report to the secretary of state on its findings.
To achieve the time frames provided, most evidence given to the Commission will be in writing, rather than orally as is currently the case. The Commissioner or panel, rather than the applicant and opposing parties, will have the discretion to call witnesses and test the evidence by means of direct questions. Interested third parties will have an opportunity to be heard once the Commission has completed its examination in an ‘open floor’ stage. An oral hearing must, however, be held if the commissioner or panel decides it is necessary for its examination of an issue to receive oral representations or to enable an interested party to have a fair chance to put their case.
Commission decisions must comply with any relevant national policy statements unless there are exceptional circumstances. If the Commission decides that the application should be granted, a development consent order will be made, which may also enable the compulsory acquisition of land provided certain conditions are met. A development consent order, if granted, will be subject to the same conditions as planning decisions taking by local planning authorities and a statement of reasons must also be provided. The decision to grant or refuse a development consent order can be challenged by judicial review; challenges are subject to a six-week time limit.
Effective public consultation
Aside from the opportunity for public consultation afforded during the development of national policy statements, promoters of nationally significant infrastructure projects are required by the Bill to consult certain people and categories of people, including affected landowners, on their proposals and to have appropriately publicised their proposals within the affected community before submitting their applications to the Commission. Consultees will have at least 28 days to respond to the consultation documents. Engagement with the appropriate local authority and consultation with other public bodies, such as the Environment Agency and relevant highway authority, is also required.
The onus is placed firmly on the project promoter to ensure that appropriate consultation and publicity are carried out: failure to comply with the procedural requirements will result in the Commission’s refusing to accept the application. Furthermore, the developer is under an obligation to consider any relevant responses and take these into account before submitting any application to the Commission.
It remains to be seen whether the new development consents regime will achieve its aim of streamlining the current regime and delivering the new energy infrastructure required in the UK by 2030. The proposals are ambitious and concerns have been expressed over a number of elements but particularly on safeguarding the rights of local communities to be consulted and heard on proposals that affect them. It is therefore likely that the Bill will face a rough ride through the legislative process and could be subject to further amendment before the new regime comes into force – the earliest this could occur is 2009. Even then, national planning statements may take a significant time to filter through, given the consultation requirements that apply; by way of transition, the government has indicated that it proposes to adopt relevant existing planning policy statements (PPSs), including the renewable energy PPS and draft climate change PPS when the latter is adopted.