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14 February 2018

788: Ofgem at odds with DCO decision

Today’s entry reports on a decision reached by Ofgem on a power line project.

National Grid successfully navigated the Hinkley Point C connection project through the Planning Act 2008 process to receive consent to build the power line from the new nuclear power station to Seabank near Bristol just over two years ago.

In order to mitigate its visual impact and ensure that the benefits of the project outweighed its adverse impacts and in the light of public consultation responses, National Grid proposed that traditional ‘lattice’ pylons be replaced by more modern, shorter but more expensive ‘T pylons’ along some parts of the route.

They then had to get confirmation from Ofgem, the gas and electricity markets regulator, that what they were doing was the most efficient and economical, so that they could recover the cost of the project from electricity bills. Ofgem, having not participated in the examination of the DCO but having held its own later consultation on that and other issues, originally objected to the use of T pylons saying they were too expensive and not necessary, and even now aren’t satisfied that National Grid have justified their use.

Ofgem’s decision letter can be found here. They have at least said that in future they will get involved before a DCO application is made, but for this project their initial attitude was that National Grid should prove that T pylons were the difference between getting consent and not getting it, and they are still asking for more evidence of why T pylons were proposed and what their visual benefits are.

All that somewhat misses the point, in my view, as it may not be National Grid that proposes the use of T pylons or other more expensive visual mitigation measures, they may be imposed by the decision-maker, the Secretary of State for Business, Energy and Industrial Strategy. What then? To me, the answer is for Ofgem to participate in the examination of the project and have its concerns weighed with others’. Unhelpfully, the government removed it from the list of statutory consultees in 2015 but of course it could be included anyway. Perhaps the Ministry of Housing, Communities and Local Government could consider adding such regulators back in if they have an approval role outside the planning process.

More generally, the consideration of an application for development consent is a very detailed and onerous process and it should be the sole, or at least main, opportunity to weigh up all competing issues rather than deciding them later on a different basis.

As water projects enter the Planning Act 2008 regime, this issue could become of more widespread concern.

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