House of Commons - The proposals for national policy statements on energy

The proposals for national policy statements on energy - Energy and Climate Change Contents

4 THE NPSS AS PLANNING DOCUMENTS

79. The primary role of the energy NPS series is to set out Government policy so as to provide a clear basis for the decisions on planning applications for major infrastructure developments taken by the IPC. However, they may also be material considerations in decision-making on applications that fall under the Town and Country Planning Act regime. Accordingly, this Chapter considers whether the draft NPSs are fit for purpose as planning documents. First, we contrast the site-specific nature of EN-6 with the non-spatial approach taken in EN-2 to 5. We then examine the relationship between the energy NPSs and the rest of the town and country planning system, including the treatment of infrastructure that is associated with energy proposals.

The draft nuclear NPS

80. EN-6 identifies 10 sites as suitable for potential nuclear development. These are at Bradwell in Essex; Braystones, Kirksanton and Sellafield in Cumbria; Hartlepool in Cleveland; Heysham in Lancashire; Hinkley Point in Somerset; Oldbury in Gloucestershire; Sizewell in Suffolk; and Wylfa in Anglesey. With the exception of Braystones and Kirksanton, all of the sites are adjacent to existing nuclear power stations that are either still in operation or have closed and are being decommissioned.

81. In evidence, one area of concern in relation to the proposed sites was the Government's assertion that all them will be needed. EN-6 states that: "the Government believes that only a limited number of sites are potentially suitable for the deployment of new nuclear power stations by the end of 2025. The Government has therefore concluded that it is necessary to include all 10 sites in this NPS to ensure that sufficient sites are available for development [...]".[157] The Planning and Environment Bar Association (PEBA) told us the effect of identifying a site in the NPS as potentially suitable would be to set a strong presumption in favour of consent that would be hard for the IPC to resist.[158] The Law Society agreed, stating: "The government says that it has put forward only 10 sites and it needs every single one [...] to ask [the IPC] to say it believes it has found a really important adverse effect and one of the 10 cannot go ahead is a major decision for that body".[159] We note that the Government's assertion in the nuclear NPS that all 10 sites are needed could also be taken to mean there is an expectation that some will not get planning permission from the IPC. The Commission emphasised its process would not be a rubber-stamping exercise.[160] It told us: "The public position of the IPC is that clearly the NPS is a very significant document but it does not mean to say that Commissioners would ultimately agree all 10 sites. If it is the view of the panel [...] that the adverse impact locally of a particular individual nuclear power station was so great that it overruled the national benefits of that energy then that panel would have the right to turn down that application".[161]

82. EN-6 also states that:

162

A number of witnesses questioned the assertion of IROPI. The Nuclear Consultation Group told us: "every effort is expended to get the IPC to basically allow those sites because of overriding national interest [...]".[163] The Sustainable Development Commission believed this may need to be tested in the courts, noting: "That is quite a dangerous statement to make [...] and a robust case to meet that statement is not made in the NPS at the moment".[164] There was also concern over the status of the declaration of IROPI in Annex A to EN-6. Natural England told us: "[...] it is not clear from the drafting whether the intention is for that test to apply to the NPS as a whole or to individual sites [...] as it is drafted now it meets the criteria for the overall NPS but that test will need to be applied to individual site decisions".[165]

83. We understand the necessity for making the nuclear NPS site-specific as to do otherwise would be less than open in a situation where there are so few alternatives. We are concerned, however, that the inclusion of 10 sites coupled with the statements that all are needed and the Government can find no alternatives that would better respect the integrity of designated European sites may place undue pressure on the IPC to permit developments on those sites. We are reassured by the IPC's statement that if local impacts did outweigh national benefits on these sites then it would refuse the application. However, we feel that the independence of the IPC could be more clearly expressed in the NPS in terms of its ability to refuse consent for any of the 10 nuclear sites. The Department should also clarify whether its opinion on Imperative Reasons of Overriding Public Interest (IROPI) refers to the nuclear NPS as a whole or to the selection of individual sites.

The non-nuclear NPSs

84. Whether the suite of non-nuclear NPSs should be more locationally specific was an issue raised by witnesses from across different sectors. For example, WWF said "It is clear that the NPSs are not spatial plans or policies [...] They do not include any vision or sense of place, no indication of where national infrastructure should be or can be suitably located (apart from nuclear), no aspirational policies to achieve decarbonisation of the energy sector whilst protecting the environment, and they fail to adequately address two essential elements of spatial planning—(a) the management of the competing uses for space; and (b) the making of places that are valued and have identity".[166] Accordingly, in this section we examine the issues of whether the non-nuclear NPSs should be more locationally specific, and if they should be linked to some form of national spatial framework.

AREAS OF SEARCH AND CORRIDORS

85. Two potential ways in which witnesses suggested the non-nuclear NPSs could be more locationally specific was through some form of "areas of search" approach for particular types of energy generation, or defined "corridors" for electricity transmission. The Campaign to Protect Rural England (CPRE) told us: "there need to be more criteria to guide the decision-makers in ensuring that development is located in the most appropriate locations that are beneficial for economic, social and environmental reasons and away from areas that are seen and are judged to be likely to be most damaging".[167] The Sustainable Development Commission echoed this view, stating: "there are certain areas where it would be inappropriate to put onshore wind [...] It would just give people a clearer idea of what the national Government policy was, and it would also help developers".[168] This latter point was reinforced by the RSPB which told us that, "[...] having a greater spatial expression in the plan gives developers a degree of certainty about what is going to be appropriate and [...] would be very helpful".[169] The Local Government Association said too: "the NPSs could give more of a strategic steer [...] about the kinds of places where it would be appropriate to bring forward proposals for energy infrastructure [...]".[170]

86. One specific example given by the SBGI's Gas Storage Operators Group (GSOG) was that EN-4 on gas supply infrastructure could recognise the geological constraints affecting the location of underground gas storage: "There are two forms of underground gas storage which are in use in the UK [...] Both types of storage require very specific geological conditions and the locations available for development of storage are very limited".[171] More generally, it is worth noting that the Welsh Assembly Government has already adopted an approach of identifying 'Strategic Search Areas' for major wind farm proposals and that the Crown Estate has recently announced the areas for the third round of licences for offshore wind farm development.[172] On this point, we were told by the UK Business Council for Sustainable Energy that: "We suggest that the spatial nature of the Crown Estate's leasing process could also helpfully have been included in the renewables NPS and referenced in the overarching NPS".[173] Elsewhere, the Environment Agency told us about work led by DCLG and DECC that is looking at capacity assessments for each English region to deliver a variety of renewable and low-carbon forms of energy.[174]

87. The energy generation industry, however, did not believe the identification of broad areas of search would create benefits. For example, the British Wind Energy Association said: "[...] this would be a significant departure from existing government policy on energy. It would result in a significant increase in costs all around [...] and particularly to the industry in having to reassess all its current projects in the planning system".[175] RWE Npower supported this view, stating: "the resource intensity and time involved in undertaking that exercise, both in central and local government [...] will only serve to delay the NPSs and have a knock-on effect in terms of bringing new projects forward".[176] The Renewable Energy Association also noted that: "[...] however you word a spatial policy to say that this is the preferred area or an area of search, it does immediately [...] demote all other areas to a lesser status. There are many examples of projects which have been promoted in areas which might not have been immediately obvious [...]".[177]

88. A related issue is whether, for example, EN-5 on electricity networks could identify the main transmission 'corridors' that will require future construction or reinforcement. Some witnesses pointed to the fact that corridors had already been identified in the work of the Electricity Networks Strategy Group in their 2009 report, A Vision for 2020, which identifies where grid upgrades are most likely to be required in the next decade. Some witnesses were surprised that this approach had not been carried forward into the draft NPS. Scottish and Southern Energy told us: "If you look at the example of the Scottish National Planning Framework, they have adopted within that a representation of the areas where the lines may need to be developed [...] There are only limited spatial areas where those can and will be sensibly developed, and that is sensible then to specify in the NPS".[178] However, National Grid were sceptical of this approach, noting: "the number of permutations for the start and finish points and the number of permutations in between all of those start and finish points" meant it would be difficult to make this approach work within the NPS.[179]

89. Several witnesses suggested that the more locationally specific an NPS was, the easier it would be to engage the public in the planning process. It is worth noting that we received a large volume of submissions on nuclear power in comparison to other issues. For example, the Sustainable Development Commission told us: "[...] without having any spatial element, it is very hard to engage people in this whole process and that is one of the critical weaknesses [...] in the National Policy Statements".[180] We examine this issue more closely in the next Chapter.

90. Whilst we accept EN-1 to 5 should not be as specific on the location of energy infrastructure developments as the nuclear NPS, we believe there are ways in which the non-nuclear NPSs could take greater account of spatial issues. Possible examples include: those areas of the transmission network requiring reinforcement to meet the UK's renewable energy targets; the Welsh Assembly Government's strategic search areas; the DCLG/DECC work on regional capacities for renewable generation; and areas with suitable geology for gas storage. Such an approach would not constrain the choice of sites for developers but would provide valuable guidance and an incentive to bring applications forward in the most appropriate locations. Nor would it constrain the decision-making of the IPC, which should treat all applications on their merits. It could also facilitate greater public engagement in the NPS process.

A NATIONAL SPATIAL STRATEGY

91. Some witnesses raised the issue of having some form of overarching statement of national spatial priorities to which all the NPSs on energy, transport, waste and water could relate.[181] For example, the Sustainable Development Commission told us it had consistently supported the idea of a national spatial strategy.[182] Elsewhere, the Institution of Civil Engineers noted the lack of a spatial link between the draft energy NPSs and the draft ports NPS.[183] One benefit of such an expression of spatial impacts and priorities could be that it would provide a means of linking together all the NPSs. For energy developments it could facilitate the location of new infrastructure nearer to sources of demand. In considering this issue, it is worth noting the recommendation of the then Transport, Local Government and the Regions Select Committee in its Report on the 2001 Planning Green Paper which argued that policy statements should relate to the national spatial strategy, and that Wales already has a Spatial Plan and Scotland a National Planning Framework.[184]

92. We believe the Government has not fully explored the potential for some form of English national spatial strategy. Such a document could provide the means of drawing together the many spatial aspects and implications of not only the energy NPSs, but all the NPSs. It could also provide the means of relating policies in the NPSs more clearly to the range of existing national spatial policies and environmental designations. However, we do not believe such a strategy should be a pre-requisite of designation of the energy NPSs.

The relationship between the energy NPSs and the overall planning system

93. The Planning Act 2008 states that the IPC will make decisions on development consent for the following types of nationally significant energy infrastructure:

Onshore electricity generation stations with a capacity of over 50 MW;
Offshore electricity generation stations with a capacity of over 100 MW;
Certain underground facilities for the storage of gas in natural porous strata by a gas transporter;
Certain cross-country pipelines of the kind previously covered in the Pipelines Act 1962 and certain gas transporter pipelines; and
Overhead electricity lines of 132 kV and above.

94. The energy NPSs will not only form the basis for decision-making by the IPC, but are also meant to form a key part of the wider policy context for decisions on energy proposals that fall below these thresholds. Although this is not spelt out clearly in the draft NPSs, these decision-makers will include: local planning authorities; the new Marine Management Organisation; the Planning Inspectorate, when dealing with any appeals; and the Secretary of State for Communities and Local Government if dealing with 'called-in' planning applications or 'recovered' appeals. One example of the importance of the NPSs within the overall planning system concerns renewable energy. The British Wind Energy Association told us around 70% of onshore projects in England and Wales will go through the town and country planning regime rather than being dealt with by the IPC.[185] It is, therefore, vital that the energy NPSs are fit for purpose in fulfilling their wider role. In the next few sections we consider a number of aspects relating to the relationship between the energy NPSs and the rest of the planning system.

NPSS AND THE TOWN AND COUNTRY PLANNING REGIME

95. A key issue raised in evidence was whether the draft energy NPSs provided adequate guidance for those authorities and bodies that are required to take decisions on energy infrastructure that falls below the thresholds set out in the Planning Act 2008. The draft overarching energy NPS states that: "In England and Wales this NPS may [...] be a material consideration in decision-making on applications that fall under the Town and Country Planning Act 1990 (as amended). Where relevant, decision-makers of such applications in England should apply the policy and guidance in this NPS as far as practicable".[186] In November 2009, the Chief Planner at the Department for Communities and Local Government (DCLG) wrote to Local Planning Authorities (LPAs) in England, stating: "NPSs may specifically set out policies which will need to be taken into account by decision-makers other than the IPC [...] LPAs and other decision-makers should therefore take account of those policies when determining applications for consent for below-threshold infrastructure applications made under the town and country planning regime".[187] This letter appeared to strengthen the extent to which the NPSs are meant to guide LPAs' decision-making on applications that fall to them.

96. Our evidence raised concerns that the role of the energy NPSs in providing guidance for other parts of the planning system has not been clearly established. For example, the Energy Networks Association told us: "We need to make sure that the difference between what happens on DECC consents, the Town and Country Planning Act and the IPC is absolutely seamless, and that there is not one going off in one direction and another going off in another direction".[188] The UK Business Council for Sustainable Energy highlighted the potential risk of perverse incentives if developers favoured one system of decision-making over another. It said: "The reason you need consistency both in terms of the process and the efficiency of the two regimes is that you do not want to skew the market so that developers bring forward very many more large projects and no smaller scale projects".[189]

NPSS AND REGIONAL AND LOCAL PLANS

97. A second and related aspect is the relationship between NPSs and regional and local plans. The DCLG Chief Planner's letter stated that: "Regional planning bodies and local planning authorities must [...] have regard to NPSs when preparing their plans at regional and local level".[190] The Town and Country Planning Association expressed concern at this statement, noting that the development of the NPSs by different government departments outside of DCLG created a risk that there would not be proper integration between the policy content of the Statements and regional local planning frameworks.[191] RWE Npower told us, however: "our expectation is that the development plans will in time be aligned with the NPSs [...] Clearly there is that opportunity for conflict. At the end of the day, a dispute is resolved ultimately through the law [...]".[192]

98. It is worth noting that the 2007 Planning White Paper, which introduced the new system, envisaged a symbiotic relationship between different levels of policy. It stated that: "Where national policy statements are more locationally specific, they would need to set out clearly how national interests and local impacts had been considered and balanced in setting the policy. This would include taking into account relevant national planning policy and the development plan for the locations being considered".[193]

NPSS AND OTHER NATIONAL PLANNING POLICY

99. There are two aspects to integrating planning policy at a national level—the relationship between the energy NPSs and other NPSs and that between the NPSs and existing guidance used by Local Planning Authorities, such as Planning Policy Statements (PPSs). On the first of these, the Royal Institute of Chartered Surveyors (RICS) expressed concern that consideration of the draft energy NPSs would be in isolation to other NPSs on issues such as roads, rail and airports, despite the fact that much of the energy infrastructure in the draft NPS would be reliant on locating near to good road or rail links. RICS felt this made it difficult to have a joined-up approach to strategic planning in the UK.[194] We note too that the Transport Committee, following its consideration of the draft ports NPS, has recommended delaying designation until the Department for Transport has produced the national networks NPS.[195]

100. We also received evidence suggesting a lack of clarity on the relationship between the policy statements contained in EN-1 to 6 and those in existing Government planning guidance. The BWEA believed central Government departments had not yet decided the relationship the NPSs would have to PPSs. The Association told us: "it makes no sense to have two policies that have the same weight when one is saying something slightly different potentially in emphasis to the other, and they both claim to deal with renewable energy".[196] For example, the Campaign for National Parks pointed out that the guidance on development within nationally designated landscapes in para 4.24.7 of EN-1 is at odds with current Government policy for assessing major development proposals within National Parks, as set out in Planning Policy Statement 7. Whereas EN-1 attempts to define exceptional circumstances as those where development can be demonstrated to be in the public interest, PPS7 states that both exceptional circumstances and public interest must be demonstrated, as the two are not always necessarily equivalent.[197] Overall, the Sustainable Development Commission summed up the situation thus: "At the moment, it is very unclear how these things all fit together [...] what Government needs to do is very clearly set out that relationship".[198]

101. We are concerned that the current status of the NPSs within the wider planning system is, at best, ambiguous. Whilst the NPSs' role in relation to the IPC is embodied in statute, their important role in relation to Local Planning Authorities (LPAs) and other bodies has not been addressed with sufficient thoroughness. For example, it is not clear what weight LPAs should give to NPSs in their decision-making. Nor is it clear what happens in cases of conflict between an NPS and other Government statements of planning policy. This ambiguity risks creating perverse incentives for developers within the planning regime.

102. We note the Chief Planner has attempted to provide some clarity on the role of the NPSs within the planning system. However, this intervention has raised more questions than it has answers. We recommend the DCLG should first consult on, and then issue, definitive guidance on the role that all NPSs will play in the preparation of plans at the regional and local levels and in informing and guiding decision-makers other than the IPC in considering applications for relevant infrastructure projects. This guidance should clarify whether there is a hierarchy of planning documents, for example in relation to NPSs and Planning Policy Statements, and how decision-makers are to deal with conflicts between different policy statements when they arise. We do not believe the Government should designate the energy NPSs until this guidance is in place.

Associated infrastructure

103. The Planning Act 2008 allows the IPC to deal with development that is associated with a main proposal in a single application.[199] Associated infrastructure includes a variety of developments, such as: fuel depots; measures to prevent coastal erosion; substations; distribution lines; security measures; and waste heat plant and pipe work. DCLG has published guidance stating: "Associated development should not be an aim in itself but should be subordinate to and necessary for the development and effective operation [...] of the NSIP that is the subject of the application". Furthermore "The IPC can only consider associated development in conjunction with the main application and has no power to consider a separate application unless this is an NSIP in its own right".[200] An applicant can still apply for permission for associated development through the town and country planning regime.

104. The associated infrastructure provision was widely welcomed in the evidence we received. The UK Business Council for Sustainable Energy told us: "One of the key benefits of the new regime is the opportunity for developers to bundle up all the different associated developments in one application [...]".[201] Equally, National Grid said: "the flexibility built in to enable us to bring an integrated application or to bring applications that will be considered in different timescales is very important".[202]

105. We also received evidence of a degree of concern about the possibility of delay in gaining consent for associated development that was not included in a main 'bundled' application.[203] National Grid, for example, told us: "We must [...] make sure that we do not build a process where we consent the main plant items through IPC and then we are frustrated by having got [...] permission for the power station, the line, the sub-station, but we cannot get the equipment to the sub-station site because we cannot get access roads".[204] Elsewhere, the Royal Institute of Chartered Surveyors (RICS) said: "If a developer is looking at proposals for a particular large power plant development [...] it will want to know that that proposal is going to be able to go into operation—not just receive consent for the proposal on site, but also that the remaining infrastructure which is necessary will be provided".[205]

106. We support the flexibility within the overarching NPS for applicants to decide whether to include associated development within an application to the IPC for consent for the main NSIP development or to apply for consent for it via other routes. However, we are concerned that there are potential risks of delay where associated infrastructure falls under a different planning regime. This opportunity for delay strengthens the case we have already made for a clearer statement of the relationship between an NPS and the rest of the planning system.

157 EN-6, para 2.5.3-4 Back

158 Ev 459 (Planning and Environment Bar Association) Back

159 Q 584 (Law Society) Back

160 Q 683 (Infrastructure Planning Commission) Back

161 Q 664 (Infrastructure Planning Commission) Back

162 EN-6, para 1.6.2 Back

163 Q 250 (Nuclear Consultation Group) Back

164 Q 115 (Sustainable Development Commission) Back

165 Q 630 (Natural England) Back

166 Ev 574 (WWF) Back

167 Q 163 (Campaign to Protect Rural England) Back

168 Q 84 (Sustainable Development Commission) Back