On 23 July 2015, only two days after setting out DECC's priorities for 2015 in Committee, Amber Rudd the new Secretary of State at DECC, granted consent for two new power plants; one at Eye Airfield in Mid Suffolk and the other at Hirwaun Industrial Estate South Wales. The decisions are noteworthy particularly for the reason of the approach that was taken to associated development, which we consider further here.
Both applications for nationally significant infrastructure projects (NSIPs) were for gas fired simple cycle gas turbine (SCGT) power plants with a generating capacity of no more than 299MWe. The applications included the electrical and gas connections, and the Suffolk scheme also included a new substation, access road and junction. Whilst both schemes are similar and were consented, doubts arose as to as to which parts of the infrastructure are "integral" to the main development and which are considered "associated development" (ie development not strictly integral to the project but necessary to and associated with it).
In both schemes the promoter and the Examining Authority (ExA) considered that the gas and electrical connections were integral to the generating station, and at Suffolk that the substation and access road were "associated development". However the Minister took a different view and considered the gas and electrical connections to be "associated development" and modified the DCOs accordingly.
In England this poses no difficulties since in England a DCO may be authorised and compulsory acquisition powers granted for associated development. But not so in Wales where the legislative regime prevents a DCO from being granted which includes associated development. This frustrates the "one stop shop" for infrastructure in Wales and also adds a further complication to the use of compulsory acquisition powers for associated development which should flow from a DCO.
Other decisions which considered associated development in Wales
There have been different approaches by Ministers consenting generation schemes in Wales. The applicant in Hirwaun had relied on a previous decision in the Brechfa Forest Wind generation scheme (12 March 2013) in which the Secretary of State granted a DCO for a generating station and where the substation and an access track were found to be integral to the project and not associated development. That decision was made under the 2009 guidance on associated development which was later recast in 2013. However despite this it is doubtful whether Brechfa is the correct approach.
In the more recent decision on the Swansea Bay Tidal Lagoon the proposed 275kV grid connection was excluded from the final DCO because it was held not to be integral to the project, but associated development and on that basis outside the Planning Act 2008 regime in Wales. The Swansea decision however differed from the decision now made at Hirwaun because consequent on the decision to exclude the grid connection the Minister also removed from the DCO any compulsory acquisition plots related to the grid connection route.
The Hirwaun decision: the Examining Authority's report
The Examining Authority (ExA) considered that "the grid connection is an essential part of the power generation plant, as without the ability to export electricity to the NG there is no purpose in the plant generating electricity, and indeed it would not generate electricity without the grid connection." In relation to the gas connection the ExA states that this "is essential to bring fuel to the Plant so that it can physically generate electricity."
The Examining Authority's report to the Minister acknowledges that whereas in England there are no statutory limitation on the types of development that could be "associated development", in Wales the categories for associated development are very narrow and none apply in the current circumstances. In relation to both the grid and gas connection the ExA concludes that, these are "form an integral part of the NSIP applied for."
Secretary of State decision
The Minister acknowledged that the gas connection (and related AGI) and grid connection are necessary for the development. However the Minister did not agree that they are part of the generating station [para 3.19] and concluded that they are not of the limited type of associated development that can be consented under the Planning Act 2008 in Wales and that they therefore could not be consented under the 2008 Act.
The Hirwaun decision is particularly noteworthy because although the Minister decided that the grid and gas connection should be excluded from the DCO she also decided that the compulsory acquisition powers in relation to these elements may be included in the order provided that the land is required to "facilitate" or is "incidental to" the development. The Minister also included amendments to the DCO to ensure that the compulsory acquisition powers in relation to the plots for the gas and grid connections are subject to the receipt of the appropriate consent. The applicant will therefore need to secure additional consents, however the Minister's decision notes that subject to the necessary generation licence the electrical connection works may fall within the applicant's permitted development rights, although the gas connection will require an application for planning permission.
Whist this is a novel way to circumvent the prohibition on associated development in Wales it might be storing up future problems. Ordinarily, planning permission is granted prior to or in tandem with a compulsory purchase order to demonstrate that there is no planning impediment to the scheme. Also the "associated development" for which planning permission is eventually granted for the Hirwaun works might differ from the scheme for which compulsory acquisition powers are reserved.
However, that the ExA has considered the connection works in detail and recommended approval for it as part of the main development, should provide a good planning ground to support a separate application. It is also worth noting that other projects (eg Burbo bank extension, which Bond Dickinson advised on), successfully resolved the associated development difficulties in Wales by another route; by promoting onshore works through the Town and Country Planning Act process with a compulsory purchase order under the Electricity Act 1989 and together with a Welsh Marine Licence for the project in welsh territorial waters.
The Mid Suffolk scheme is also noteworthy. The Local Impact Report prepared by the local authorities was influential in determining that the substation associated with that scheme should be housed within a substation hall (GIS version). National Grid had pushed for the cheaper AIS insulated substation with equipment open to the air. It suggested that restricting the choice prevented it from performing its duty to balance amenity consideration against other obligations to be economic and efficient. The Minister didn't agree and consented the GIS version. She did however agree with National Grid that there should not be a requirement (condition) to ensure that the substation was not to be constructed in advance of the generation station. The Minister noted the overarching requirement of the company's transmission licence to develop and maintain an efficient, coordinated and economical system of electricity generation meant that it was therefore unlikely to commence construction works in advance of the generating station.