1052: National security in DCO applications, and GB Energy

Today’s entry reports on an interesting example of national security in the DCO context, the establishment of GB Energy and muses on bananas.

DC007

The Aquind Interconnector project was refused development consent a while back, much to the industry’s surprise. Following that refusal, the High Court – predictably – quashed that refusal and remitted the application for re-determination by the Secretary of State. During the course of this re-determination, the Ministry of Defence had raised concerns ‘relating to sensitive matters of national security and [requested] information on how that material would be handled within the planning process.’

For context, section 95A of the Planning Act 2008 sets out that the Secretary of State may direct that representations of a specified description may be made only to persons of a specified description including where ‘the public disclosure of that information would be contrary to the national interest’. The Secretary of State consulted on a proposed approach to dealing with the MoD’s concerns.

This week, the Secretary of State has issued a letter on how it proposes to deal with the issue, and this can be summarised as:

• the MOD will be required to set out the nature of its concerns and how they relate to the application for development consent. The MOD should do this to the fullest extent it can, in writing, and should note that this should be in a form which can be published on the PINS website;
• if the MOD considers any relevant information cannot be shared with the Applicant because of matters of defence or national security, any such confidential information must be submitted as a separate and confidential annex;
• the Applicant will then have the opportunity to respond in writing to any representations from MOD that have been published and shared with the Applicant;
• if any of the confidential representations are considered to raise potentially material planning considerations relevant to the determination of the application and which may affect the determination, the Attorney General’s appointed representative will then make representations on the Applicant’s behalf;
• the MOD representative will then be given an opportunity to respond as necessary to such written representations from the Applicant and the Applicant’s appointed representative; and
• the Secretary of State turns their mind, and in theory, makes a decision assuming no further information is required.

What fun. It’s worth contrasting this approach with the ‘SIPPA’ (sensitive information in planning applications) approach adopted in conventional planning permissions. That approach entails the applicant requesting that the local planning authority does not publicise the application on their website (if that is their practice) and that sensitive information is kept separately from the main Register, so that it is only available on special request.

There have been limited instances where section 95A has been invoked in the DCO context: a closed hearing requested by the MoD in relation to the Southampton to London Pipeline (later withdrawn), a request for a potential closed hearing on the VPI Immingham Scheme (which I don’t believe took place) and the Norfolk Vanguard project even mooted one. There have also been meeting notes of pre-application discussions between the Home Office and PINs in relation to the expansion of Heathrow.

For King and Country…

Our new overlords have made movements on the new entity, GB Energy, a publicly-owned energy company. The Founding Statement for GB Energy sets out that it will invest (and own) energy generation, ‘support the development across clean energy technologies, including through the major partnership between Great British Energy and The Crown Estate’, develop what is referred to as a local power plan (which ‘roll out small and medium‑scale renewable energy projects’ which are public and private partnerships).

On the Crown Estate partnership, the aim is to ‘bring forward new offshore wind developments, with the potential to deliver up to 20‑30G W of extra offshore wind seabed leases to the market by 2030’. That, of course, is the outcome. The mechanism to get there includes investing in ports, and ensuring ‘that future development, including the next round of leases, has lower risk for developers, enabling faster buildout from leasing. We will work closely with the sector to ensure that the competitiveness of existing projects is not impacted, and that these changes to future development are successful’. It will be interesting to see what this means in practice: a more solid base for strategic compensation, along with wider DCO reforms would go much, if not most, of the way into practically achieving that.

…or BANANA Republic?

I am sure we all have different views of ‘NIMBYs’ (not in my back garden) but one thing the current Government appears to reject, and I hope all the readers of this blog would reject, is the BANANA (Build absolutely nothing anywhere near anything) view. A small number, including those behind repeatedly failing litigation are not always driven by the particular impacts, or location, and appear to be targeting even low carbon technologies.

This probably seems quite trite, I think we need to weigh the costs of not delivering development a lot more seriously. In that vein, an interesting new study about Chernobyl has been published. For context, following the incident at Chernobyl, there was reduced investment in nuclear technology. Part of this was driven by safety concerns (which would not have arisen in the West, and worth noting that nuclear power is hundreds of times safer, per kilowatt-hour (kWh) of electricity generated, than fossil fuels) but it’s worth using that as a lens for how anti-development views can actually end up causing more harm.

The new study from some very clever boffins finds not only that the reduced investment in the wake of Chernobyl reduced nuclear power plants, but also looks at the knock-on implications of not having low-carbon nuclear technology rolled out. Specifically, they worked out that reduction in nuclear power led to a loss of approximately 141 million expected life years in the U.S. and 33 million fewer expected life years in the UK. Not bringing forward development therefore clearly has significant impacts. Relatedly, the Founding Statement for GB Energy confirms that Great British Nuclear will continue in its mission. Good.

But the point is much broader, Sam Dumitriu has an excellent post on how ‘zero building’ damages the quest for net zero. We should all be more full-throated that when we are arguing for more streamlined planning, trying to avoid abuses of consultation and judicial review, that it is with the intention of simply enabling development because development is very much a good thing. As I said, very trite, but perhaps I’ve been spending too much time listening to Gwen Stefani’s BANANAs.