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Home / News and Insights / Blogs / Planning Act 2008 / 1038: Solar, nuclear and ideas for reform

Mustafa Latif-Aramesh
Partner and Parliamentary Agent

Today’s entry reports on the application of the ‘critical national priority’ test for a solar development, an information disclosure dispute in relation to the Wylfa Newydd Nuclear Power Station, and takes a look at what we might learn from the U.S. and New Zealand.

Always look on the bright side of life

A decision taken under the Town and Country Planning Act in relation to a solar development provides an interesting application of the ‘critical national priority’ policy introduced in EN-1. For context, that policy holds that the urgency and need for renewable energy infrastructure ‘will in general outweigh any other residual impacts not capable of being addressed by the application of the mitigation hierarchy.’ On the face of it, this is a powerful policy, but the use of the words ‘in general’ is borne out by this particular recovered appeal.

This recovered appeal was about a solar development that would power 4,800 homes (which the Secretary of State calls ‘modest’). The Secretary of State refused to grant planning permission. The Secretary of State acknowledges the CNP for the solar development, explicitly citing EN-1, but goes on to say that the impact on an AONB, harm to a public right of way, and reduction in agricultural land all meant that the overall planning balance was, in the view of the Secretary of State, negative, and the case that permission should be granted was not made out. In particular, he does not consider that the need and the benefits of the project ‘constitute exceptional circumstances which justify major development in the AONB.’

Is that what you would have guessed would be the application of the Critical National Priority policy? It’s important not to panic about this decision in the DCO context given the ‘modest’ contribution to energy production (at 11.8MW well below the NSIP threshold) and there were also local plan conflicts, which arguably would not have carried as much weight in the context of section 104 of the Planning Act 2008. In other words, the NPS (including the CNP policy) itself is going to be at the top of the consideration hierarchy for DCO projects. But it does nonetheless show how caution is required in relation to the new powerful policy, and the specific use of the words ‘in general.’

Free Wylfa

An interesting case decided by the First-tier Tribunal (General Regulatory Chamber) this week, shows an interesting interface between DCO projects and the Environmental Information Regulations, the naughty sibling of the Freedom of Information Act. The case concerned the withdrawn DCO application for a nuclear power station at Wylfa Newydd, promoted by Horizon.

A concerned citizen had requested – following the withdrawal of the DCO application by Horizon – ‘provisional advice’ provided to the Secretary of State in relation to the application, and ‘the Secretary of State’s respective view (albeit, incomplete)’. BEIS (as it was then) responded that it did hold the information, but it would not disclose that information because (1) it was internal communication and (2) it was ‘material in the course of completion.’ The concerned citizen argued that because the application was withdrawn, the latter exemption from disclosure could not be relied upon. BEIS responded that ‘That justification does not end where that work is left unfinished, as was the case when the Wylfa Newydd application was withdrawn, and the public interest must still be considered.’

This was then escalated to the Information Commissioner who decided that notwithstanding that ‘if a document is unfinished at the time of the request and there is no prospect of completion, that in itself does not provide an argument for disclosure’, that ‘the withheld information comprises documents which are complete.’ The Commissioner also decided that the ‘internal communications’ exemption was not made out: that exemption relies on a supplementary public interest decision, and in this case, ‘the need for a safe space is strongest when the issue is still live. In the circumstances of this case, the application was withdrawn by the time of the request, and any potential future applications would result in other internal communications bespoke to those applications. He therefore does not accept that officers responsible for providing advice to the Secretary of State would be significantly impacted by disclosure in this case.’ He therefore concluded that ‘disclosure of the requested information allows for scrutiny by an informed public.’

This decision was the subject of the appeal to the First-Tier Tribunal. What did they decide? No dice, Secretary of State. The Secretary of State had attempted to argue that the fact that the documents were marked ‘Official – Sensitive’ meant that it was clear that the documents were confidential and their disclosure could have damaging consequences. The Tribunal rejected this – that label does not prevent disclosures in this context in and of itself.

To be clear, the documents so far withheld included the “Decision Submissions” prepared by officials to assist the Secretary of State in deciding the DCO application. I think the tribunal’s decision is arguably problematic: the government must have space to have free and frank discussions about projects without that entering into the public domain (even later). Disclosures like these may have the perverse incentive of simply disincentivising those discussions and the advice, leading to worse decision making which ultimately does not serve the public interest.

Learning from the former colonies

 In previous blogs we have followed what the pesky Europeans have been up to in the context of EIA and infrastructure delivery, but something we don’t really focus on is whether we can learn anything from the former colonies. But perhaps we should. My interest in this point was piqued by a recent Wall Street Journal editorial – ‘A Simple Idea for Speedier Government‘ – which looked at the efforts of U.S. Democratic Governor of Pennsylvania, Josh Shapiro, to streamline permitting in his state. He ordered every state agency to adopt a strict timeline for issuing permits, and created a single office for businesses and individuals to apply. You might say big whoop, what’s new about that? But he supplemented that with a programme called ‘PAyback’.

PAyback requires the state to refund application fees if it fails to issue permits on time. The results have been outstanding: the program has been running for less than six months, and Department of Environmental Protection, which decides when developers can break ground, has reduced its backlog for new permits by 41%. Back in the UK, we are dealing with the resourcing of statutory parties. There’s no doubt that resourcing is partially an issue in getting prompt responses, and ensuring examinations are proportionate by ensuring positions between parties are, if not agreed upon, at least known prior to the start of an examination.

But should we consider something like PAyback for the DCO regime? Not necessarily. Much of the post-application delay rests with additional consultations and information requests at the decision stage. If there is genuinely a new issue that crops up, or other parties are responsible for the information requests at the decision stage, you might consider it unfair that an arm of the state should have to refund application fees and expenses. On the other hand, you might argue that the results from Pennsylvania are too delicious to miss out on, so it may import some urgency into decision making. In that context, it’s worth noting that there are already mechanisms for recovering costs from other parties (including promoters) under the Planning Act 2008, so this is just putting everyone on an equal footing. This is way above my pay grade, and – in the absence of steps to reduce repeatedly failing litigation – I’d be wary of hasty decisions being more amenable to judicial review, but perhaps a mechanism for clawback may be necessary as a last resort measure.

Another former colony, New Zealand, also caught my eye. Recently, they have up-zoned 3 / 4 of Auckland’s residential land to legalise townhouses, terraced homes, or multi-story apartments in areas that previously only allowed detached single-family homes. Again, the results are pretty phenomenal. Joseph Pilitano notes ‘New Zealand (population: 5.2 million) permitted 37 thousand housing units, more than the San Francisco and Los Angeles metro areas combined (population: 17.3 million). Auckland, a city of only 1.7 million, permitted 15 thousand units last year—while preliminary data shows the 5 boroughs of New York City (population: 8.3 million) permitted a meagre 9.2 thousand units by comparison.’

There’s no certainty that broader zoning would be politically viable in the UK, and we continue to believe that DCOs should be extended to housing (and, incidentally, the limit of 500 dwellings on housing-related development in a DCO should be removed). Anyway, I know you don’t care about housing (shame on you), but the Kiwi-zoning reminded me of an idea we had to create ‘infrastructure zones’. The full details of that idea are in that blog, but in short we posited the idea that Special Development Orders (made by the Secretary of State) could be used to create broad areas of streamlined consenting. In that post, we noted that SDOs are relatively broad in development that can be progressed, and interestingly, if you go back far enough, you can even find them being used for nuclear waste ground investigations, as well as utilities infrastructure over railways.

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