940: Proposals for a nuclear modular DCO, and Defra consultation on nature recovery
Today’s entry reports on hopes to speed up nuclear projects and Defra’s consultation on the nature recovery green paper, which covers potential changes to EIA and HRA.
Towards a small modular DCO
The Financial Times reports that ministers ‘want to replicate the country’s successful Covid-19 vaccine task force to deliver new nuclear power stations at ‘warp speed’. This follows a meeting held on Monday with the Prime Minister, following which the Telegraph claims that he ‘is readying an overhaul of planning laws to speed up the building of nuclear power stations as Europe fights to wean itself off Russian gas’. Further detail on this may be set out in the government’s Energy Security Strategy when it is published (apparently next week). Until then, and given the Spring Statement did not contain much for infrastructure, what might this streamlining look like? Without endorsing the upending of the Planning Act 2008, I’ve set out some questions to be considered, assuming it is accepted that the process should indeed be streamlined.
First, we’ve suggested a series of reforms which we think would benefit the DCO process, the most pertinent are a presumption of a time limited pre-examination period to help set a benchmark for the length of that period, as well up-front reductions in the examination period and closing down of issues as part of the examination process itself.
Just because a project is a nuclear project does not necessarily mean that there needs to be a full 5 examiner panel nor that the full six month examination period must be taken up: small modular reactors (SMRs) are nuclear power stations that can mostly be prefabricated and produce around a quarter of the power of a standard nuclear reactor; the sites are in some cases 1/16th of the size of a conventional nuclear build with the consequent reduction in impacts.
Second, we’ve also suggested strengthening of planning policy in relation to nuclear power stations. It is interesting to note that despite the site-specific national policy support for the Wylfa Newydd Nuclear Power Station, and the need to reach net zero targets by 2050, that the Examining Authority on Horizon’s withdrawn proposals seemed to find it difficult to conclude that the need for the development outweighed the impacts to the national network of Sites of Special Scientific Interest (SSSIs). This is leaving aside the habitats issues on that project.
As we previously reported, the government has said a new nuclear NPS is incoming – it will be important for that policy document to consider a streamlined process and tests that could apply to SMRs and other advanced nuclear projects which are smaller in scale and impacts compared to the conventional Hinkley and Sizewell style projects. Should there be an EN-6-lite which reduces the policy requirements for SMRs and less-than-conventional-build projects?
Third, and relatedly, promoters may well salivate at the conditions attached to the Electricity Act 1909 consent and deemed planning permissions for the Sizewell B development granted in 1986. There are a grand total of nine conditions. By contrast, Horizon’s draft Development Consent Order for Wylfa Newydd had, by the end of its examination, almost 100 ‘requirements’ (the equivalent of planning conditions for a Development Consent Order) leaving aside the detailed commitments in various section 106 agreements and control documents.
This is of course a crude comparison, because not all conditions and requirements entail the same level of burden. Changes in legal environmental requirements and the wider planning policy context since the 1980s also mean that promoters no doubt accept that more is required to ensure environmental and community benefits. Indeed, condition one of the Sizewell planning permission is effectively a wide-ranging requirement for a further consent. Nonetheless, it’s quite a stark comparison. In the context of formulating a streamlined set of policy tests, the burdens associated with implementation need to be appropriately balanced against the urgent need for energy security and carbon reduction targets.
Fourth, in addition to reducing the number of conditions/requirements, the processes for discharging them should also be considered. Some organisations have established teams within government departments which work to discharge requirements to help speed up delivery. Subject to the fifth consideration below, the benefit of a bespoke team discharging requirements is that these people could become increasingly specialised, minimise public funds being spent, and ensure consistent decision making. Of course, this needs to be balanced against particular circumstances of a project (which may require calling upon existing statutory bodies and local authorities), but the option of a specialised group inside BEIS to discharge requirements could be an attractive one. Alternatively, should consideration be given to a HS2/Crossrail-style regime for ‘qualifying authorities’, effectively giving local authorities a deeper role in implementation if they agree to expeditious timescales for consultation and approvals? Should cross-SMR issues be dealt with nationally by the Secretary of State, with more local matters dealt with via the HS2/Crossrail type system?
Fifth, what if we fundamentally changed the options here? Thinking about the vaccine task force which is what the reports above suggest the warp speed nuclear task force should be based on, they went above and beyond in securing contracts with a wide range of potential vaccine suppliers, vastly more than the UK population actually needed (based on a two-dose regiment). Do we need more and varied consenting routes for nuclear developers?
Going back to the Sizewell B decision mentioned above, the previous planning regime permitted the Secretary of State to grant deemed planning permissions (under the Town and Country Planning Act 1971, may it rest in peace) when giving their consent under the Electricity Act 1909. There was no requirement to seek or grant a deemed planning permission. Provided that 1909 Act consent was obtained, there was in the post war period the ability to seek planning permissions through conventional means. Given the relative reduced scale of impacts associated with SMRs, should there be an option for local authorities to grant planning permission (particularly or exclusively where the sites are on existing or decommissioned sites)? We don’t have all the answers – should we be more willing to accept trial and error, something which could be achieved via overlapping planning regimes? This needn’t be a mandatory consenting route (and the DCO route should remain open), but increasing the potential options may encourage regulatory competitiveness.
Sixth, and again related to the last suggestion, how do we expedite the required consultation processes? The Telegraph report suggests that ‘Local people may have their ability to oppose new plants stripped away under proposals being considered by ministers, but industry bosses are more concerned about the Environment Agency and Marine Management Organisation… slowing them down’. Could there be an exclusion from consultation of particular matters (eg, safety) which are dealt with under the existing Generic Design Assessment and nuclear safety licences processes? Could there be a national consultation on a series of measures and designs thereby reducing the content of local consultations? Alternatively, what about a replication of the process which applies to the geological disposal facility is: if a community has opted in, should promoters be given an easier time?
I’m afraid you’ll need infrastructure planning specialist lawyers to advise on the answers to all of these questions.
Defra consultation on nature recovery
Defra has published its consultation on nature recovery which gives an idea of where the government might be heading on EIA and HRA. There are four key takeaways.
First, the government is considering reducing the various environmental designations, like Special Areas of Conservation (SACs), Special Protection Areas (SPAs), and SSSIs and other acronyms. The consultation document states that “layering of these different processes and obligations distracts from our ability to focus resources strategically or holistically on actions on-site and pressures off site in a way that best delivers for nature”. Accordingly, the government is asking whether it might be better to have “a single type of designation on land with different tiers of protection which would bring more consistency to the legal requirements, while enabling a tailored approach to better drive the recovery of each site”.
Option one in the consultation document is a consolidated designation of ‘highly protected sites’ (which would apply to ‘a limited number of sites of the highest international importance’) and ‘protected sites’ (such as SSSIs, SACs and SPAs). Option two is renaming the existing / streamlining existing protected designations. Both Options one and two reference the potential for consolidated ‘highly protected’ and ‘protected’ sites, but under Option one ‘highly protected sites’ would have a higher protection than SPAs whereas under Option two it appears they would have protection which is equivalent to SACs/SPAs. Option three is consolidating all designations into one type of protected site.
Second, the government is also consulting on consolidating the process for the designation of these protected sites.
Third, there are proposals to clarify the Habitats Regulations, and tests in Habitats Regulations Assessments. The consultation document sets out that ‘the approach should focus on the threats and pressures both on and off the site that, when addressed, will make the greatest difference to the site and help drive nature recovery whilst enabling truly sustainable development.’ Relatedly, HRA specialists are singled out for praise; the consultation document sets out:
‘… the UK Government wants to make sure that there is space for individual evidence-based judgement by an individual case officer on an individual case. The scourge of modern government has been the obsession with uniformity of procedure, which has led to a scenario where the consistency of the process to avoid litigation risk has become elevated above the quality of decision making.’
Fourth, there is an allusion to streamlining Environmental Impact Assessments, but not much detail. Watch this space.
The consultation closes on 11 May 2021.