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Home / News and Insights / Blogs / Planning Act 2008 / 746: Two storage projects approved

Today’s entry reports on the latest decisions on nationally significant infrastructure project applications.

In the last ten days, two infrastructure projects consisting of the storage of water (to generate electricity) and gas respectively have been approved, leaving just five live applications in progress.

Glyn Rhonwy pumped storage project

The first is a pumped storage project in Snowdonia where water is pumped up a hill during times of low electricity demand and let down again to generate electricity at times of high demand. The National Infrastructure Commission likes ‘peak smoothing’ projects such as this as it reduces the need for more power stations.

Here are the facts and figures about the latest decision:

  • Project: a pumped storage project two disused quarries in Snowdonia in north Wales, capable of producing 99.9MW of electricity;
  • promoter: Snowdonia Pumped Hydro Ltd;
  • application made: 21 October 2015;
  • one inspector – Stuart Cowperthwaite (his second, first on his own);
  • 63 relevant representations, below average;
  • 20 written representations, below average;
  • 489 questions in the first round – very high;
  • No compulsory acquisition hearings, three issue specific hearings and two open floor hearings – below average;
  • one Local Impact Report, from Gwynedd;
  • examination exactly six months, recommendation exactly three months, decision exactly three months;
  • 504 days from application to decision, 16 1/2 months, about average; and
  • 692 documents on the Planning Inspectorate web page on the date of the decision (not including the relevant representations), high.

The decision letter has one or two points of note.

It says that there were late submissions that batteries would be an alternative, but this was dismissed: ‘no clear and demonstrably better alternative has been put to the Secretary of State’. Should a project be refused because there is a clear and demonstrably better alternative? That’s a long-running question and I think the answer is no: as long as the project in question’s benefits outweigh its adverse impacts (i.e. it is good enough), then it should be granted. If we were only allowed to build the best project at any one time we’d never build anything (or at most one project at a time).

One of the issues was that there was the possibility of unexploded ordnance (‘UXO’) in the quarries, including chemical and nerve agents, but the latter types were dismissed as having no evidence for them, and ‘ordinary’ UXO would be dealt with by an Ordnance Management Plan – the first time I’ve come across one of those.

Every project has its species, and this one’s was the water plantain. Wikipedia tells me this is not a form of banana but it did have a role in the development of gothic architecture.

The inspector proposed additional requirements on five issues but had not consulted the applicant on these. The government then did so, the applicant objected, but the requirements were nevertheless imposed. Shades of not falling into the Preesall trap of imposing undiscussed requirements there. Message to inspectors: consult parties on proposed drafting changes or ask the government to do so if there isn’t time.

The Ministry of Defence had not agreed to compulsory acquisition proposals in relation to some of its land which is considered to be Crown Land. The part of the government deciding the application, the Department of Business, Energy and Industrial Strategy, consulted the MoD during the decision period but it did not reply. The applicant agreed to remove the land from compulsory acquisition powers, but it does seem a bit unfair that that had to happen because two parts of the government didn’t talk to each other. Future applicants should note that the MoD should be engaged with early.

Some planning conditions imposed to an existing sub-NSIP planning permission were added as requirements to this Development Consent Order.

Keuper gas storage

The second decision was to authorise a gas storage project in Cheshire, the Keuper project (not sure if it’s ‘Cooper’, ‘Q-per’, ‘Coyper’ or ‘Kyeper’ – perhaps someone will enlighten me).

The decision letter keeps you in suspense, it’s nearly at the bottom of page 3 that it declares that consent has been granted.

  • Project: a project to store up to 500 million cubic metres of gas in brine caverns in Holford in Cheshire;
  • promoter: Keuper Gas Storage Ltd, part of Ineos;
  • application made: 24 November 2015, the last application that year;
  • one inspector – Jonathan Green (his fourth, always as a single inspector);
  • 22 relevant representations, low;
  • 13 written representations, low;
  • 267 questions in the first round – above average;
  • One compulsory acquisition hearing, three issue specific hearings and no open floor hearings – average;
  • Two Local Impact Reports, from Cheshire West and Chester, and Halton;
  • examination exactly six months, recommendation one day less than three months, decision exactly three months;
  • 477 days from application to decision, 15 1/2 months, below average; and
  • 425 documents on the Planning Inspectorate web page on the date of the decision (not including the relevant representations), average.

Points from the decision letter (a short one at nine pages) I note are as follows.

On compulsory acquisition, paragraph 4.6 sets out seven tests, not just the two from the Act itself (which are the first two), said to be from ‘the 2008 Act, case law and guidance’, which is worth reproducing in full for future reference:

  • the land is required for the development to which the consent relates, or is required to facilitate or is incidental to that development;
  • there must be a compelling case in the public interest;
  • there must be a need for the project to be carried out;
  • there must be consistency and coherence in the decision-making process;
  • all reasonable alternatives to compulsory acquisition have been explored;
  • the applicant has a clear idea of how it intends to use the land and can demonstrate that funds are available to pay for the acquisition; and
  • the decision maker is satisfied that the purposes stated for the acquisition are legitimate and sufficient to justify the inevitable interference with the human rights of those affected.

In the case of this project, all these were satisfied in relation to land at four farms in the vicinity.

Some items that might have been requirements in the DCO were the subject of a section 106 agreement, signed on the day the inspector sent his report to the Secretary of State: a local liaison group, a heavy goods vehicle routing obligation and a phasing plan controlling phasing of this and another nearby gas storage project.

The Secretary of State seems to be in an inspector-telling-off mood (see previous decision), noting that he (the SoS) made a change to the DCO that the inspector recommended but didn’t put in his own recommended DCO.

There is a little breather for the government as the next decision is not due until 8 June, for the Richborough Connection (overhead line) Project in Kent. That’s nothing compared to the breather after 2 December – the Government may have no decisions to make in 2018 at all, at the current rate.

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