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Home / News and Insights / Blogs / Planning Act 2008 / 958: Turning the lights off in West London, a new pipeline and end of Statements of Common Ground

Today’s entry looks at the section 35 direction for the Hynet hydrogen pipeline, the electricity capacity issues in London and the slow demise of Statements of Common Ground.

Hynet West Pipeline Section 35 Direction

Cadent have received a section 35 direction in connection with the HyNet North West hydrogen pipeline. Three things of wider interest.

First, we previously noted the bizarre judgment from the High Court which held that projects which were the subject of section 35 directions were infrastructure projects of national significance that were not ‘nationally significant infrastructure projects’. The effect of that conclusion would be that National Policy Statements would not have ‘effect’ in relation to the project and section 105, not section 104, would apply. We also noted there was a way around this – ie, directing the application of NPSs to projects using section 35(ZA) (as they have done in other section 35 directions).

On this occasion, the Secretary of State declined to make such a direction, noting as follows:

The Secretary of State has also decided that he will not direct that the Energy National Policy Statements should apply to the HyNet North West Hydrogen Pipeline and that any application should be determined in accordance with section 104 of the 2008 Act. Instead, when he considers any eventual application for development consent, he will decide how much weight to give the National Policy Statements at that stage.

Note the draft of EN-1 sets out the following in respect of hydrogen projects brought into the regime via a section 35 direction:

where the application is for hydrogen infrastructure not covered by sections 15-21 of the Planning Act, the Secretary of State should give substantial weight to the need established at paragraphs 3.4.11 to 3.4.15 of this NPS

If this is unamended in the soon-to-be updated and designated NPS, will the Secretary of State really be in a position to ‘decide how much weight to give the National Policy Statements at that [decision] stage’? There is also an interesting use of section 35ZA of the direction which is useful to ensure there is no need for further consultation:

‘To the extent that any consultation carried out by the applicant prior to the date of this direction complies with the requirements of Part 5 of the Act (or any legislation made under that Part), those consultation requirements shall be treated as having been complied with notwithstanding that the consultation was carried out prior to the date of this direction.’

Second, the Secretary of State declined to class as nationally significant the pipeline spurs because ‘they are local infrastructure’ but ‘there are alternative consenting routes for the Pipeline Spurs, including as associated development in any application for development consent made in respect of the proposed Project under the Planning Act 2008’. In effect, they will still be consented via a DCO, just as associated development, not NSIP works – sorry, I mean PNS (‘projects of national significance’) works which is apparently not an NSIP).

The SoCG is dead, long live the Principal Areas of Disagreement Statement (PADS)

On the A66 project, the Examining Authority has requested a Principal Areas of Disagreement Statement (PADS), slightly taking a swipe at Statements of Common Ground.

The ExA notes that whilst SoCGs ‘are useful and have a place in the Examination, SoCGs can often overlap and duplicate respective Written Representations (WRs) and/or Local Impact Reports (LIRs) particularly on areas of agreement or no concerns’. The ExA has therefore requested, in respect of the pre-examination phase, PADs which ‘need only be a summary position at the Pre-examination stage.’

This, perhaps, not that seismic a change; SoCGs are more often than not, Statements of Uncommon Ground. Promoters looking to pre-empt this on other projects may wish to tread carefully; objectors may seek to excessively de-construct or break down issues which may have the effect of overstating the number of issues at large. Similarly, local authorities and stakeholders will need to ensure that they are raising matters which they would like examined, noting that the justification in the procedural decision is to enable ‘the identification of the principal issues and provide a clear focus for the Examination and subsequent written questions to be asked.’

Watt off the press

The Financial Times reports that developers in west London face a potential ban on new housing projects until 2035 because the electricity grid has run out of capacity to support new homes. The Greater London Authority wrote to developers warning that ‘major new applicants to the distribution network . . . including housing developments, commercial premises and industrial activities will have to wait several years to receive new electricity connections’. One of those developers is apparently close to a solution though it has not yet been confirmed.

A response to a Freedom of Information Act request on this issue is available here, in which the GLA states:

SSEN explained to us that the issue is due to a lack of capacity within the electricity network. Resolving the capacity issue is dependent on upgrades to National Grid Electricity Transmission (NGET)’s transmission network. SSEN has said that the capacity issue was unexpected and is the result of data centres and batteries requesting and securing connections—rapidly reserving capacity that otherwise might have gone to developers. SSEN has said that this unexpected demand from data centres and batteries is equivalent to the demand from tens of thousands of homes. NGET has shared that the transmission network is also seeing a high volume of requests from data centres and batteries wanting connections directly to the transmission network. NGET already has upgrades planned to the transmission network, but these will not be complete until 2029.

This is somewhat the converse of the housing theory of everything: electricity capacity is not just about electricity capacity, it’s constraining housing, and having a material impact on a web of issues. BEIS have launched a call for evidence in relation to electricity network infrastructure in which they note that electricity demand could increase by 60-90% from 2020 to 2035 and 125-225% by 2050, making all these problems worse unless generation and the transmission and distribution networks are reinforced dramatically.

By the by, the challenge to the refusal of development consent for the AQUIND Interconnector project is proceeding on the basis there are arguable grounds which merit consideration at a full hearing, likely to be towards the end of this year.

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