989: Go Go Power Rangers: the PowerBook, Powering Up Britain and New Power National Policy Statements

This week’s entry reports on a comprehensive PowerBook filled with recommendations to streamline the DCO regime, the Government’s ‘Powering Up Britain’ document, and briefly comments on the revised draft energy National Policy Statements (which will be covered in detail in next week’s blog).

PowerBook

The PowerBook, published by Britain Remade, was launched this week and is endorsed by Ed Miliband, MP (the Shadow Secretary of State for Climate Change and Net Zero), as well as Conservative MPs. It is also endorsed by a collection of cross-sectoral renewable energy organisations and nuclear developers. It contains 25 recommendations, but for the purposes of this blog post, I’ll only focus on a few.

Under the first head of reforms to the Planning Act 2008, perhaps most explosively, the PowerBook recommends that ‘the [relevant departmental] Secretary of State should be responsible for making a final decision on whether to accept projects for examination.’ In effect, the PowerBook would have the Planning Inspectorate defenestrated from making decisions at the application submission stage. On the one hand, this has the risk of potentially increasing the risk of judicial review at the decision stage, though successful judicial reviews are rarely, if ever, based on such matters. On the other hand, Britain Remade argues that ‘the last three years has seen the same number of refusals and withdrawals at the first hurdle as in the first ten years of the NSIP regime – this must be reversed with political accountability. ’

In their favour, notwithstanding the withdrawal notes, it is slightly problematic that two of the three applications forced into withdrawal in the last three months have been resubmitted, one of them in nine days, and then accepted; the other has been resubmitted with a decision due shortly. The PowerBook specifically refers to another example (East North Hants) of a quick withdrawal-and-resubmission. Those precedents may suggest that greater use of the pre-examination period is required.

Relatedly, I was pleased to see an endorsement of two recommendations made by BDB Pitmans in the PowerBook, namely that (1) guidance should also allow the ‘examination’ phase to be taken into account, as well as applying a ‘presumptive’ pre-examination so that deficiencies can be corrected in that period rather than being rejected, and (2) create a statutory requirement on the Secretary of State to consider if additional questions to the developer are necessary two months into the three-month decision timeframe. We think both are key: the former will empower the Inspectorate to allow applications to go through where they can be managed, rather than deferring their applications, and the latter recommendation seeks to curtail the SoS’s increased dithering. These were included in our formal response to the NSIP Reform Consultation, which you can read here.

On post-DCO secondary consents, the PowerBook also recommends undoing the potentially perverse situation that environmentally better changes could be prevented because of the limitation on changes that give rise to ‘materially different’ environmental impacts. There is helpful movement on this front: two draft DCOs have sought to address this point (see Article 2(10) here and Article 2(9) here; I’ll let you guess the law firm behind both). Encouragingly, the Examining Authority on the A66 has also been open to remedying this issue (see Question DCO 2.1 here).

National Highways’ method for discharging DCO requirements is also praised, and the PowerBook recommends creating an equivalent ‘discharging’ unit to help post-DCO secondary consents go through as quickly as possible for energy projects. The specific recommendation is to ‘create a Clean Energy Task Force to speed up the deployment of new energy projects modelled on the existing National Case Team in the Department for Transport, which discharges ‘requirements’ (the equivalent of planning conditions) for road projects.’ The DfT’s National Case Team is one of the best triumphs in infrastructure delivery in the UK in recent years, and we should all make a greater point of seeking to expand, not curtail, its use.

On nuclear, there are specific recommendations on endorsing (and giving policy support) to nuclear development on any suitable site, as well as endorsing the need for ‘standardisation’, which may in some cases conflict with other policy requirements. It’s clear the Government wants to see a programmatic, fleet approach to the delivery of new nuclear, and requiring potentially burdensome site-by-site adjustments will cause delays, which in turn will degrade the necessary supply chains. You can find more detail on these recommendations in our article in the New Civil Engineer here.

On environmental assessments, there is an endorsement of the approach adopted by Spain in removing EIA requirements for relatively small-scale solar and wind projects, as well as creating more certainty around data banks and carbon assessments. There is often a knee-jerk response to announcements like this, but it’s important to realise that the last few decades have imposed a huge cost on development. The Government’s own impact assessments of the EIA Regulations for infrastructure projects note, ‘a recent example of £1,000,000 for the production of a scoping report for Phase 1 of a new railway’ and conclude that ‘administrative burden is still high.’ To steal a joke I heard this week, God told Moses he had good news and bad news on his way out of Egypt: the good news was that he could part the seas to lead his people away from the Pharaoh, and the bad news was that such a parting would require an Environmental Impact Assessment. It is welcome that the Government acknowledges this, and the PowerBook provides a realistic way forward.

Relatedly (to environmental consents, not parting the Red Sea), the PowerBook also contains the recommendation to effectively abolish Section 150 of the Planning Act, which requires consents from particular statutory bodies for the disapplication of particular consents / permits. The report says this will ‘create a true one-stop shop for major energy infrastructure projects’ and should be replaced with a requirement for ‘the relevant Secretary of State to have due regard to public comments from relevant agencies’. This is worth considering, particularly given how often the Secretary of State disagrees with the conclusions of environmental and statutory organisations on their assessments of environmental impacts. On that front, it’s noteworthy that Sizewell C recently obtained their environmental permits outside of the DCO process; how much of that information could have been provided as part of the DCO process, with a more streamlined approval process?

On consultation, the PowerBook recommends ‘a ‘Consultation Unit’ which can legally certify that a project’s consultation is adequate […to] ensure developers are not incentivised to ‘over-consult’ when there are additional opportunities for interested parties at the examination stage’. Removing the power of the Inspectorate to consider whether consultation is adequate in favour of a Consultation Unit is interesting, and there is a similar arrangement in France. But I do wonder whether updates to guidance, rather than creating a new body, would do the job.

On guidance, the PowerBook recommends ‘amending statutory planning guidance to explicitly consider proportionality, the use of public funds, and the impact of delay on critically needed infrastructure when determining whether a consultation is adequate’. It’s worth bearing in mind that position, which no doubt reflects the established case law on consultation, though it’s worth spelling out given the heightened propensity for consultation being used as a delaying tactic.

At the launch, Ed Miliband said he would support the Government in implementing the reforms in the PowerBook. Will the Government implement this, or will the industry wait until Sir Beer Korma and Ed Miliband have the keys to Marsham Street?

Powering Up Nuclear, Solar, and Wind

The Government also published ‘Powering Up Britain’ (PUB?), and to be honest it’s largely a collection of announcements already made. It reaffirms the Government’s clear policy that it wants to ‘speed up planning’, the establishment of Great British Nuclear, investments in sustainable aviation fuels, hydrogen, offshore floating wind and carbon capture projects, and electric vehicle charging. Interestingly, it does newly confirm that ‘the Electricity Networks Commissioner, Nick Winser, has been tasked to advise government on what more can be done to accelerate grid delivery, and will present recommendations to ministers in June. The Government promises a further Action Plan on that issue. It also reveals that the Future Nuclear Enabling Fund will be announced shortly, suggesting that the rumours of the fund being rolled over into GBN are not true.

Perhaps the most significant aspect is not a new policy but a ‘bat signal’ that, notwithstanding statements made during last year’s leadership hustings, solar developments are important. Powering Up Britain specifically states:

‘Solar has huge potential to help us decarbonise the power sector. We have ambitions for a fivefold increase in solar by 2035, up to 70GW, enough to power around 20 million homes. We need to maximise deployment of both ground and rooftop solar to achieve our overall target. Ground-mount solar is one of the cheapest forms of electricity generation and is readily deployable at scale. Government seeks large scale solar deployment across the UK, looking for development mainly on brownfield, industrial and low/medium grade agricultural land. The Government will therefore not be making changes to categories of agricultural land in ways that might constrain solar deployment.’

This is seemingly playing out in (non-DCO) applications – a called solar development was granted planning permission by government this week. The decision letter disagrees that a new, large solar farm would have an unacceptable impact on the character of Wrekin Forest and states ‘significant weight should be given to the production of electricity, identified as meeting the expected needs of up to 8,657 homes’. Interestingly, the decision letter also ‘let the mask slip’ a little endorsing the inspector’s argument that ‘taking into account the fact that solar farms are often located in rural areas, he disagrees that the proposal would extend the urban fringe’.

The revised Net Zero Strategy, which the Net Zero Growth Plan part of Powering Up Britain supposedly is, still falls short of the sixth carbon budget in terms of quantified savings. The NZS successfully challenged in July 2022 exceeded the budget by about 45MT from quantifiable savings, with the extra savings to be found from ‘qualitative’ judgment. The new one is still 32MT short. However at para 177 of the judgment the judge concludes that it is not necessary to achieve 100% of the savings from quantifiable effects alone.

Power National Policy Statements – Preliminary Comments

A more detailed analysis of the revised Energy National Policy Statements will follow next week, but I just wanted to note three things in passing. The most significant change is the introduction of a ‘Critical National Priority’ presumption for offshore wind development, which means that the urgent need for offshore wind will in general outweigh any other residual impacts not capable of being addressed by application of the mitigation hierarchy. This is to be welcomed, but one hopes that government will consider broadening this out to new nuclear, solar and other forms of clean energy.

Second, the discrepancy we noted in relation to ‘without prejudice’ derogations in the context of Habitats Regulations between the last draft NPS and the NPS for Roads, Rail, and Freight has not been corrected – that may be justifiable for offshore wind given the inevitable marine environments, but should that carry over to every single type of energy NSIP? The revised NPSs also take the concept of a GHG Reduction Strategy from the National Networks NPS.

Finally, and in a further ‘bat signal’ for solar, no changes have been made to the need statement in the context of solar. In particular, the revised draft confirms that ‘all the generating technologies mentioned above [including solar] are urgently needed to meet the Government’s energy objectives’.

Detailed analysis will be included in next week’s blog.

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