952: Project Speed starts to bear fruit, and new National Policy Statement for Nuclear Fusion

Today’s entry looks at the Northumberland Line, and proposals for a nuclear fusion National Policy Statement.

Is Project Speed bearing fruit?

The Northumberland Line, a project under the Transport and Works Act, has now been granted an Order authorising land acquisition, level crossing closures and works in connection with the project. Incidentally, my colleague Duncan O’Connor led on the project. The decision letter is available here.

This was one of the projects progressed under ‘Project Speed’ and timelines should make us in the Planning Act 2008 world blush given recent delays:

• Consultation: (four week consultation) in October 2019 and (four week consultation in) December 2020
• Application date: May 2021
• Inquiry: November 2021
• Inspector’s report: March 2022
• Decision: June 2022

This is quite a feat given the complex nature of the project, the various interrelated planning permissions (see Schedule 1 of the draft Order here, and the interface between the promoter (Northumberland County Council) and Network Rail.

From the decision letter, there is an interesting issue in connection with the fact that 40% of the existing railway corridor is owned by Lord Hastings, the Duke of Northumberland and the Duke of Portland. The Secretary of State removed a provision which had been sought by the applicant to remove the obligation for Network Rail to pay rents to those landowners. It’s worth noting that the Secretary of State seemingly has no in principle objection to such a provision (incidentally, check out article 52(6) of the Hinkley Point C Nuclear Power Station Order and article 23(2) of the Meaford Gas Fired Generating Station for examples of private agreements being abrogated in the DCO context).

The decision letter otherwise sides with the promoter – on matters as wide ranging as a coffee drive-through by Asda, to impacts on the local road network.

On the same day as the Order was made for the Northumberland Line, the decision letter for Network Rail’s Order for part of the Transpennine Route Upgrade was also issued. This was also a Project Speed initiative and had similar timescales to the Northumberland Line.

Related to Project Speed, the A66 Trans-Pennine Upgrade DCO application has been submitted. An interesting medium of recording advice from the Planning Inspectorate under section 51 can be seen here. The front end note states that ‘a new approach to the recording of s51 advice is being trialled’ and that the ‘format used should be considered as transitional at this time as the approach will continue to evolve’.

Nuclear Fusion National Policy Statement

The Government has published its response to the consultation on its proposals for a regulatory framework for fusion energy entitled ‘Towards Fusion’. Here are a few highlights.

First, there will be a Nuclear Fusion National Policy Statement (NPS). The ‘intended outcome’ for this NPS is said to be ‘establishing a more efficient planning process for fusion energy facilities’. Interestingly, 71% of consultees agreed there should be a bespoke Nuclear Fusion NPS (with the remaining percentage split between ‘don’t know’ and ‘no’). The update on this is to be provided in the ‘coming months’.

Second, the Government intends to legislate (in the Energy Security Bill) to confirm that fusion energy facilities will not be legally defined as nuclear installations for the purposes of the Nuclear Installations Act 1965. Under the 1965 Act, ‘nuclear installation’ refers to a ‘nuclear reactor’ or certain installations that can produce or use atomic energy. The long and short of it is that the statutory definitions of ‘nuclear reactor’ and ‘atomic energy’ refer to nuclear fission, rather than fusion.

The practical effect of excluding nuclear fusion from the ambit of the 1965 Act is that it will not require a licence the purpose of installing or operating a nuclear facility. This seems sensible given these facilities given the hazards are different between fission and fusion facilities (though query are all nuclear fission facilities more risky than nuclear fusion facilities?).

Third, one question under consideration was whether there should be additional opportunities for the public to be consulted during the regulatory process. The Government’s conclusion is interestingly ‘no’,  with the summary responses noting that ‘the Government believes that the existing regulatory framework provides broadly sufficient opportunity for public engagement.’

Finally, in relation to nuclear waste, the Government has concluded that it ‘does not believe that changes to regulations on radioactive waste are necessary in relation for fusion.’ Though nuclear fusion is not expected to produce nearly as much waste as conventional nuclear fission facilities, there is some uncertainty about exactly how much waste is being produced so it seems wise not to set a definitive requirement at this stage.

Removing barnacles

This week also saw the annual NIPA Conference return; Simon Gallagher (DLUCH) expressed the Government’s view that the Planning Act 2008 was fundamentally working, but that some ‘barnacles’ had formed over time and needed removing. He summarised there being six ‘buckets’ which the Government was working on, namely:

1. updating and tightening the National Policy Statements
2.  fast-tracking (likely a reference to fast-streaming proposed for offshore wind projects initially)
3. regulatory changes required to progress further ‘lean’ processes
4. community engagement
5. environmental Assessments and the intention for Environmental Outcome Reports to be outcome, rather than process focused; and
6. resourcing for those involved in process to ensure end-to-end can function as intended.