975: Hello carbon capture, goodbye tidal energy

Today’s entry reports on the grant of consent for a carbon capture initiative, a Cumbrian coal venture and the unsuccessful attempt to revive a Welsh tidal lagoon project.

Nobody puts Keadby in a corner

The Secretary of State has granted development consent for the Keadby 3 Carbon Capture Power Station. A few key facts:

• Project: the construction, operation and maintenance of a CCGT generating station, and a carbon capture plant;
• promoter: Keadby Generation Limited (a subsidiary of SSE);
• application made: 1 June 2021;
• application decided: 8 December 2022, so just over 18 months;
• single inspector: Christopher Butler;
• 15 relevant representations: very low;
• 54 questions in the first round: low;
• one issue specific hearings, one compulsory acquisition hearings and one open floor hearing: low; and
• 612 documents on the Planning Inspectorate web page on the date of the decision: about average.

A few points to note from the decision letter.

Stop reading between the lines! I originally spotted this in the Sizewell C Nuclear Power Station decision letter and thought it was an interesting quirk, but the Secretary of State explicitly cautions that ‘unless it is specifically stated that the Secretary of State disagrees with the ExA’s conclusions or recommendations then any perceived difference in emphasis between the summaries in this letter and the ExA’s Report should not be inferred as conveying disagreement with the ExA’s Report’. This goes beyond the usual ‘I agree with the ExA unless I don’t.’ Who is this directed at?

Just over 90% of the construction-related carbon will be captured, geosequestered and not released into the atmosphere. In relation to the operational phase, the CCGT plant cannot be brought into operation until the carbon capture plant is also in operation. Relatedly, we return to the issue of maximum capacity outputs. The ExA imposes a maximum capacity cap of 910 MW, a position justified as follows:

…in the absence of an EP specific to the Proposed Development, I consider it important and relevant to control the gross output capacity of the proposed power station, as being up to 910 MW at International Organization for Standardization (ISO) standard reference conditions, as specified within Schedule 1 (Authorised Development) of the rDCO, attached at Appendix C of this report.

I have made my view on maximum capacity limitations known, and it may be questioned whether this should prevent a carbon capture project – which contributes to meeting our Net Zero target – from increasing its energy output without going through an entire new consenting process, where there are no further physical works consented and the environmental permits would apply (and indeed, there is a requirement which requires such permits to be in place under the DCO). Given this practice, it would be beneficial for the government to set out clearly its position on maximum capacity limitations for low-carbon technologies.

There are two alternatives works in relation to water supply in Schedule 1 to the DCO: Work No. 4A authorises water abstraction from a canal, and Work No. 4B authorises abstraction from the river Trent. Both options are maintained, but the powers of acquisition are limited depending on which option is utilised (see article 21), and written confirmation of which option is taken forward is required (see requirement 5).

We again have interesting an overlapping DCOs point. My colleagues negotiated protective provisions for the benefit of National Grid Carbon’s future DCO carbon pipeline project. Relatedly, article 8(2) goes part of the way in addressing the Hillside judgment (cf. our post on Hillside and DCOs here.

Last chance lagoon

The Court of Appeal has refused an appeal in relation to the Swansea Tidal Lagoon project. We covered the High Court judgment here.

For context, under the Planning Act 2008, development consented under a DCO must be begun within 5 years (as per s154 of the Planning Act 2008 and regulation 5 of the 2015 Regulations). However, this is subject to any contrary provision in the DCO.

The appellant, the company wanting to develop the project, argued the High Court was wrong and that “commencement” of the development under the Order was different from the development “beginning” under section 155 of the Planning Act 2008. This mattered because under the latter, the project had arguably started; under the former, the DCO expired. The Court of Appeal concludes that the High Court was right: the purpose of the definition of “commencement” in the DCO was specifically to dislodge the s155 wording. As the project hadn’t commenced under the terms of the Order, it had effectively expired.

I think that is probably the right result, but I’m not sure about all parts of the reasoning. First, there is a curious statement in the judgment where their Lordships state as follows in relation to the developer’s position:

It would produce an artificial and dysfunctional state of affairs, in which development could be ‘begun’ but not ‘commenced’ possibly for many years to come. This is not a plausible proposition. It entails two separate and divergent time limits…

As a general proposition, this doesn’t seem correct – indeed, their Lordships explicitly note a circumstance where that could be the case:

…the DCO deliberately provided for preliminary works to be carried out before the pre-commencement conditions were discharged. This did not generate the need for a separate or different period to be specified for implementation under section 155.

I agree that on the specific facts, the standard, statutory time limit was probably dislodged through the definition of commencement in this specific DCO. However, a DCO could use language which made the distinction between ‘commence’ and ‘begin’ to enable preliminary works stopping the clock for the purposes of s155, but not constituting the point at which requirements needed to be discharged. In other words, the time limit for ‘beginning’ development does not necessarily need to align with the timeline for the discharge of requirements (where those requirements are triggered by ‘commencement’).

Indeed, consider the A428 Black Cat to Caxton Gibbet Development Consent Order 2022 which uses the word ‘begin’ in the Time Limits requirement, but ‘commence’ in all other requirements. The first extract above therefore seems wrong as a matter of fact that the two terms cannot connote two separate time periods, though undoubtedly, clarity and certainty in that effect needs to be explicitly spelt out. This is despite their Lordships acidly noting that the National Infrastructure Planning Handbook, edited by counsel for the developer, did not suggest two time limits were appropriate.

The other element of the judgment which seems questionable is the following statement from their Lordships:

The consequences [of the developer’s argument] are also at odds with the principle that where, as in the case of the DCO, powers of compulsory acquisition are conferred together with consent for a development project, those powers should not last indefinitely. The uncertainty created by indefinite powers of compulsory purchase is hard to reconcile with the statutory purpose evident from section 154, and the clear intent of article 27(1) and Requirement 2, to the effect that the time limits for the use of compulsory purchase powers should coincide with those for the implementation of the DCO.

Except that in the Swansea Tidal Lagoon DCO (as well as almost every other DCO), the time period for compulsory acquisition starts to run from when the DCO is made or comes into force in contradistinction to the Time Limit requirement (which runs from ‘commencement’ of the development). There is no suggestion that the compulsory acquisition period is ‘indefinite’ – because it starts to run earlier and is time limited! Indeed, looking at the Keadby 3 DCO discussed above, the Time Limit requirement is 7 years (from commencement of the development), but the compulsory acquisition period is 5 years (from the date the Order is made). The discrepancy between the two is not uncommon in a series of DCOs; and that distinction should not be used to support a claim that a Time Limit requirement is limited.

At your beck and coal

Whilst we say goodbye to Swansea Tidal Lagoon, we say hello to a coal mine in Cumbria. The decision letter is an interesting read, particularly in relation to recognising the use of offsets. The Secretary of State ‘recognises the views of many objectors to the scheme that the use of offsetting is contrary to the attainment of a net zero model’ but goes on to note that ‘it is acknowledged as a valid approach by the CCC to achieving net zero in the sixth carbon budget’. The overall conclusion is that ‘the proposed development would have an overall neutral effect on climate change and is thus consistent with Government policies for meeting the challenge of climate change.’

The decision letter relies on the Court of Appeal judgment in Finch about whether downstream emissions (from burning the coal) should be assessed as indirect effects and concludes they do not because they are too uncertain (para 35) but also suggests that since coal will be used anyway and this is a better source emissions-wise than some others, the effects of downstream emissions ‘may well be considered neutral or slightly beneficial’, which seems to contradict the previous argument on uncertainty. You can’t have your coke and heat it! Expect litigation on this one. (Note, Finch is being heard by the Supreme Court in June 2023).

Things to brighten your day

Ministers have confirmed that the frankly ridiculous extension of Best and Most Versatile land to cover Grade 3b will not proceed. That step could have caused significant damage to the provision of new solar development across the UK which we’ve previously commented on.

The Government has also announced that they will be consulting on ‘moving away from rigid requirements for sites to be designated in local plans’ in the NPPF. This seemingly doesn’t goes as far as bringing onshore wind back in the Planning Act 2008 regime with the Government suggesting that ‘decisions on onshore wind sites will continue to be made at a local level’ and would only be permitted where they can demonstrate ‘local support and appropriately address any impacts identified by the local community’, so is only a small step in the right direction.

D(elayed)CO

Finally, the A1 Morpeth to Ellingham has been delayed again. Initially it was supposed to be decided on 5 January 2022; this was extended to June 2022, and then to December 2022. It has now been extended to September 2023 (!). That means it will be decided a whopping 1 year and 9 months after its initial deadline.