UK: Wales Bill

The Wales Bill (“the Bill”) is currently awaiting the committee stage following its second reading in the Commons on 14 June 2016.

The Bill, as currently drafted, seeks to devolve powers from Westminster to the National Assembly for Wales and/or the Welsh Ministers following the Scottish model of devolution except for a number of reserved matters.

Energy devolution

The Bill devolves powers in relation to planning consents for energy projects by disapplying the Secretary of State’s powers under the Planning Act 2008 to grant development consent. Under the Bill Welsh Ministers will be able to grant consent for all onshore and offshore energy projects of up to (and including) 350MW within their territory. Powers relating to all onshore wind generating stations, without limit, are already devolved under the Energy Act 2016.

Additionally, associated development is also devolved under the Bill enabling Welsh Ministers to consent to overhead electric lines up to 132kV (connected with a generating station of less than 350MW), and related project infrastructure (e.g. access roads, substations and grid connections) for onshore and offshore energy projects of up to 350MW (amending section 36 of the Electricity Act 1989). Until the Bill comes into force the current limit for consent by Welsh Ministers (excluding onshore wind) is 50MW with projects above this threshold still requiring a Development Consent Order (“DCO”) made by the Secretary of State.

For the few projects in Wales which will still require a DCO when the Bill is introduced, amendments are proposed allowing associated development to be included within that consent.

It is worth noting that the Developments of National Significance (Specified Criteria and Prescribed Secondary Consents) (Wales) Regulations 2016, which came into force on 1 March 2016 applies to electricity generating stations that are expected to have a total installed capacity between 10 and 50MW. Therefore, these limits would need amending to align with the Bill to prevent projects over 50MW and no more than 350MW falling between two separate procedures. This has been done for onshore wind.

In relation to renewable energy schemes, the Bill creates a duty for the Secretary of State to consult Welsh Ministers prior to creating or amending renewable energy incentive schemes, unless such amendments are minor/technical in nature. The incentives include the Renewable Heat Incentive, Renewables Obligation, Feed-in Tariff and Contracts for Difference. The creation of a levy to fund incentives are, however, reserved.

Welsh harbours and marine licensing

The Bill amends the Planning Act 2008 to remove Welsh harbour projects that are wholly in Wales or in waters adjacent to Wales, transferring a range of functions and powers relating to port development with the exception of reserved trust ports. Reserved trust ports are reserved matters under the Bill, however, the impact assessment confirms that the only port to be reserved is Milford Haven given its strategic significance to the UK.

The Bill also seeks to extend the existing executive responsibilities relating to marine licencing in the Welsh inshore region to the offshore region. Additionally, the Bill also appoints the Welsh Ministers as the appropriate authority in relation to the offshore region, which allows them to designate areas as conservation zones.

Oil and gas exploration

Welsh Ministers are to be given the power to decide whether oil and gas exploration will take place within the Welsh onshore territorial area under a new licensing regime for oil and gas. The Secretary of State will retain the power to amend provisions and model clauses of existing onshore petroleum licences.

Hydraulic fracking consents are also devolved under the Bill with Natural Resources being the relevant environmental regulator.

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