House of Commons - Energy and Climate Change

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

Memorandum submitted by WWF

EXECUTIVE SUMMARY

1.1 WWF welcomes the opportunity to submit evidence to the Energy & Climate Change Select Committee on the draft National Policy Statements on Energy Infrastructure currently being consulted on by the Department for Energy & Climate Change (DECC). WWF believes in a future where people and nature thrive. Best known as the world's leading conservation body, we have seen first-hand how wildlife, the environment and human activity are all interlinked.

1.2 WWF regards climate change as one of the most serious threats facing the planet and human development, and one which demands urgent global and national action. We believe that a major and urgent switch from polluting fossil fuels to renewable energy sources in the UK is essential to mitigate the impacts of climate change. Our absolute priorities must be a strong drive for energy efficiency, demand reduction and sustainable, low-impact renewable energy technologies. We strongly support the government's commitments to reduce the UK's greenhouse gas emissions by 80% by 2050 and to deliver the UK's fair share of the EU renewable energy target for 2020, but in doing so it must respect wider concerns over environmental sustainability.

1.3 When National Policy Statements (NPSs) were first proposed in the Planning White Paper[320], WWF saw them as an opportunity to develop clear national policy that would benefit the proper planning of the UK's infrastructure needs. However, the draft energy NPSs are highly deficient as planning documents that are to properly guide decisions of the Infrastructure Planning Commission (IPC). Our particular concerns are:

(a) the NPSs are not fit for purpose planning documents. They lack spatial elements (with the exception of the Nuclear NPS), they are not integrated with each other or with the existing planning system, the content provisions within the Planning Act 2008 are not properly addressed, they may unlawfully fetter the discretion of the IPC in making decisions, and they do not have as a central objective the achievement of sustainable development;

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(d) the public consultation and parliamentary scrutiny processes are not sufficiently robust and proportionate given the significance of the NPSs. There has been no early and effective engagement of key stakeholders and the public generally, which may lead to unnecessary delays and the potential for legal challenge;

(e) there is no remit for the carbon and climate change impacts of proposals to be considered by the IPC, and it is specifically directed not to consider carbon budgets or the benefits of one technology over another. This places undue faith in policy interventions and market practice to deliver a low carbon economy;

(f) the NPSs set out an unlimited, urgent need for all types of energy infrastructure, yet there is no attempt to guide how much and what type of infrastructure is needed or where it should go. This statement of unlimited need effectively gives unjustified, overwhelming weight to fulfilling this need, whilst significantly diminishing the importance and weight of local social, economic and environmental impacts; and

(g) there is significant uncertainty about how the NPSs will relate to existing Welsh planning policy, particularly TAN 8, and what status such policies will have in IPC decisions. This raises concerns as to whether positive planning policies for renewable energy in Wales will be made redundant.

1.4 Given the above concerns, WWF does not consider that the NPSs are fit for purpose to provide a satisfactory and robust decision making framework for the IPC.

2. WWF AND ITS ROLE IN PLANNING REFORM

2.1 WWF followed with interest the progression of the Planning Bill through parliament and engaged in the debate by submitting briefings and amendments on various aspects of the Bill, both individually and as part of the Better Planning Coalition[323]. Since the Planning Act 2008 received Royal Assent, WWF has been and wishes to remain a key stakeholder in finalising the processes to be adopted for the purpose of implementing the Act.

2.2 WWF believes that the planning system is integral to delivering required action for mitigation of and adaptation to climate change and that good planning is essential for achieving sustainable development and biodiversity conservation. Our aim is to ensure that implementation of the new planning system for nationally significant infrastructure projects (NSIPs) delivers a framework for furthering sustainable development while facilitating positive planning for full decarbonisation of the UK energy sector by 2030. We believe there should be an integrated approach between marine and terrestrial planning which protects biodiversity and the environment while supporting the Government's commitments to lead a shift towards a green, low carbon economy.

3. EVIDENCE

The Nature of NPSs as Planning Documents

3.1 Both the Barker Review[324] and the Planning White Paper stated that a fault of the existing planning system is that there is no clear national policy framework for the development of major infrastructure. In the past, this has caused uncertainty and delays in decision-making whilst the national policy and the need for the development are clarified at the public inquiry stage. It was therefore proposed that a central element of the planning reforms under the Planning Act was for the case for NSIPs to be set out in National Policy Statements. It was government's intention that NPSs would "set the policy framework for the infrastructure planning commission's decisions and identify any special considerations which the commission should take into account"[325].

3.2 As part of the Better Planning Coalition, WWF supported in principle the introduction of NPSs and were of the view that clear national policy would benefit the proper planning of the UK's infrastructure needs. Many organisations saw this reform proposal as an opportunity to develop a national spatial strategy, to create a proper strategic framework for decision-making on individual projects which fully incorporated environmental considerations. In particular, NPSs could be used to ensure a successful transition to a decarbonised UK energy sector by 2030. However, we have been disappointed with the draft NPSs produced, as they fall far short of developing and describing a national vision for sustainable infrastructure development within the UK or a positive and proactive framework for delivery of low carbon and clean energy infrastructure.

3.3 As the system of NPSs do not fit easily within the context of existing planning policies and practice, it has been difficult to predict the level of information that would or should be included. The Planning Act[326] sets out a number of requirements for the development and content of NPSs which are useful to consider. Even though a number of content requirements are not mandatory, they are indicative of what NPSs are intended to include. WWF would argue that a number of the provisions have not been met by the draft NPSs and this therefore diminishes their ability to adequately set the policy framework for IPC decisions. For example:

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(b) whilst attempting to outlining some "factors influencing site selection", it is arguable whether the NPSs provide any useful criteria to be applied in deciding whether a location is suitable for development. The factors mentioned largely include matters which may affect the technical or financial feasibility of projects, such as grid connection, transport links and access, interest in the land. Other planning considerations that are not included, but may be relevant to determining suitable locations are missing—for example: proximity to human populations, designated sites, other infrastructure development and other required resources; previous land uses and zonings by other planning authorities; existing known development restrictions or controls; availability of the resource relied on (eg wind); suitability of the land type for development (eg whether the particular soil type or substrate is suitable for particular infrastructure types); archaeological interests;

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(d) apart from the Nuclear NPS, none of the NPSs identify one or more locations as suitable for infrastructure development;

(e) there is limited if any criteria specified for the design of development. For example, the Fossil Fuels NPS sets out the policy requirements for new coal-fired power stations and that the IPC is not to consent a project that fails to meet these requirements. However, there are no criteria specified for the design of power plants in order that they should meet these requirements. In a local development situation, one would expect to see detailed criteria on the design of acceptable development dealing with height, dimensions and siting of buildings and other infrastructure on the site, materials to be used, façade detail, considerations for minimising visual and environmental impact, density limitations, etc;

(f) there is not always clearly identified reasons for all the policies set out within the NPSs. Much of the time, the reader is required to decipher the reasons from the overall context of the document;

(g) whilst the government's policies on climate change mitigation and adaptation are mentioned and summarised within the NPSs, there is a failure to explain and connect how the policies within the NPSs take account of and contribute to the achievement of such climate change policy, or even the necessary cut in carbon emissions set out in the Climate Change Act 2008. In this way, it is difficult to link the provisions related to government policy and need in the Overarching Energy NPS (EN-1) with the more detailed criteria provided within the technology specific NPSs.

3.4 It is important to remember that the IPC is a planning authority when considering the NPSs and how they will assist the IPC in making decisions. The critical role of planning in delivering climate change and sustainable development objectives, as well as the increased public interest and involvement in the planning process, means that there is an ever pressing need to ensure transparency and accountability in decision-making. Like other planning authorities, the IPC will have a difficult balance to strike between approving proposals that will help to drive forward change, whilst at the same time being sensitive to public opinion and maintaining the highest standards of probity and good administration. There will be a heightened need to demonstrate that any decision reached has been properly arrived at and is legally right—that the decision is arrived at after taking into account all relevant considerations, ignoring irrelevant considerations and is not unreasonable or tainted by bias or pre-determination. For these reasons, it is essential that the NPS (as the primary document for consideration by the IPC) sets the appropriate backdrop with the appropriate level of detail for allowing the IPC to make legally right decisions.

3.5 The Planning Act provides fairly broad discretionary powers to the IPC in making decisions on NSIPs, as is generally the case with planning authorities given the need to assess each application on its planning merits. In making a decision, the IPC is to have regard to any applicable NPS, any local impact report, any prescribed matters relating to the development, the appropriate marine policy documents[331], and any other matter which the IPC thinks is important and relevant to the decision[332]. What is "important and relevant" has not been defined in either the Planning Act or secondary legislation and guidance.

3.6 It is worth noting that the well known term "material considerations" used in local planning decisions has not been used here. What is a material consideration has been well defined over time, both in legislation, planning documents and the considerable case law on the subject. Whilst planning authorities are not allowed to make decisions on grounds not accepted in law as material considerations, which particular considerations are material will vary from planning application to planning application and what is accepted as being material has expanded significantly over time. Despite the legal limitations, it is essentially at the discretion of the planning authority deciding the application to decide what is material to the decision and, therefore, must be taken into account.

3.7 In contrast, what is "relevant" to a decision is not so easy to define and is ultimately left to the consideration and discretion of the decision maker, subject to the right to judicially review a decision on the grounds that a determination as to what is relevant is flawed. There are many examples within the NPSs where the government clearly seeks to advise the IPC what is not relevant and important to consider[333]. In some cases, WWF would argue that the matter to be excluded from consideration may actually be relevant and important in a planning sense. This is particularly so in respect of the carbon impact and the technical and financial viability of developments. We question whether this is lawful. In effect, this approach by government may actually fetter the discretion of the IPC and therefore limit its decision-making powers. Our concern is that this could result in the IPC failing to take into account all relevant considerations, being guided by government bias or lobbying pressure as to the type of infrastructure that should be built and thus rendering its decisions unlawful. We query whether these limitations would be applied to decisions made by the Secretary of State.

3.8 It is arguable whether the NPSs are fit for purpose planning documents—WWF would say that they are not. It is clear that the NPSs are not spatial plans or policies. They are merely restatements of existing government energy policy seeking to establish an unbridled need for energy infrastructure coupled with information on impacts to be considered in examining applications. 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.

3.9 Furthermore, because the NPSs are not spatial, they are not integrated even though they have been presented as a package. There is no sense in which the published NPSs fit together to form part of a single strategic national infrastructure plan, but rather each NPS is presented as a separate plan or programme for the particular infrastructure type. Whilst the overarching energy NPS is intended to be read with each of the technology specific energy NPSs, there is a distinct lack of connectivity between each of the technology specific NPSs.

3.10. WWF is also concerned about the interaction of NPSs and the planning regime for national infrastructure with local infrastructure development. We advocate for increased development of community renewable energy schemes where possible. In our view, not only do such schemes contribute to meeting targets for renewable energy, but they also increase local knowledge and awareness of the benefits of renewable energy and improve acceptance of new clean energy projects through community funded projects (which may provide profits for the community). We are concerned that the implementation of the planning reforms under the Planning Act may lead to a further and repeated centralisation of energy infrastructure, where energy infrastructure projects are deliberately built bigger to be above the threshold of the Act so that advantage can be taken of the benefits of a faster system leading to smaller, community based schemes being seen as unnecessary, despite the UK having goals for much more embedded generation, distributed energy and district heating with CHP. This is not helped by the statements made within EN-1 that the Government does not consider that decentralised and community energy schemes are likely to lead to significant replacement of larger-scale infrastructure[334] and, therefore, their effect on the need for new large scale infrastructure will be limited[335]. Our concern is that this could adversely impact on the economic development and sustainability of communities, as well as on the positive involvement of communities in renewable energy provision. In our view, there must be improved links between national, regional and local energy infrastructure development to enable development at all levels.

Environmental Assessment

3.11 In drafting the NPSs, the government has undertaken Appraisals of Sustainability (AoS), incorporating Strategic Environmental Assessment (SEA), and a Habitats Regulation Assessment (HRA). It is WWF's view that the environmental assessments undertaken are fundamentally flawed and fail to comply with the necessary legal requirements. In fact, it could be argued that the way in which the assessments have been carried out is nothing less than a case study on how to circumvent the spirit of the SEA and Habitats Directives. As a result, it cannot be said that the NPSs have been developed with sufficient regard to achieving sustainable development, minimising adverse environmental impacts and maximising the environmental benefits.

Appraisal of Sustainability

3.12 WWF and RSPB jointly commissioned Collingwood Environmental Planning to undertake a review of the AoSs for the NPSs[336]. Attached at Annex A is a table summarising the key outcomes of the review in respect of each NPS. The consultants concluded that the quality of the assessments was variable, but often poor and in some cases had critical failings. The most problematic areas arose from the overall approach adopted and the context in which the AoSs were used. The way in which sustainability was conceived within the AoSs, as "weak sustainability", and the assumption that low carbon equates to sustainability meant that a satisfactory assessment of the environmental impacts of the NPSs was not achieved.

3.13 The way in which NPS objectives and the AoS assessment framework were defined was variable and inconsistent. The NPS objectives are narrow and lack focus, they also fail to have as a central objective the achievement of sustainable development. As a result, significant constraints are placed on the nature of what might be considered a reasonable alternative. Whilst the consultants undertaking the AoSs raised a number of alternatives for consideration, these were dismissed by DECC as unreasonable and were, therefore, not considered within the appraisal[337]. In this way, the framing and consideration of alternatives was flawed and it is questionable whether those actually considered were reasonable. This resulted in lost opportunities to engage in a real debate and further specify existing policy as well as avoid environmental impacts through the appropriate selection of the most environmentally favourable options. The proper consideration of alternatives is crucial because this allows for refinement of a plan/programme to avoid adverse environmental impacts. The consultants commented that "[t]he alternatives considered are often those considered reasonable for Government rather than reasonable from the point of view of being possible and plausible alternatives to the objectives of the plan in question, as required by the Directive."

3.14 In many cases, the appraisals were not actually assessing the impact of the NPSs on the environment, but rather the impact of the NPS on the consenting process—which is not the same. The real physical effects of the consequences of NPSs, their ability to speed up the planning process and result in greater impacts that occur sooner, were not assessed. In this way, it can be said that the quality of the assessment was insufficient to meet the requirements of the SEA Directive. Further, there was an over-reliance on mitigation which leads to a missed opportunity of seeking to avoid impacts by assuming that mitigation measures will work and failing to undertake a proper assessment.

3.15 It is difficult to ascertain the extent to which the appraisal process has actually influenced the development of the NPSs in an effective manner. Only if real alternatives had been considered, such as different technology mixes, might the process have been able to influence the direction of the NPSs. An assessment of all energy technology mixes could have been done and would have been highly beneficial to help provide a useful policy framework, but the AoSs show either a poorly conceived approach by the Government or an actual intention to circumvent the purpose of the SEA Directive. The application of SEA appears disingenuous because there appears to be little real intention to allow the assessments to influence the planning process.

Habitats Regulation Assessment

3.16 In WWF's view, the HRA is completely inadequate and it is questionable whether it adds any value to the NPS process at all. Government has stated that this has been done at a strategic level because of the inability to identify particular designated sites that may be impacted, and therefore the impacts that may arise as a result of development, yet this should not be used as an excuse for a sweeping assessment that fails to properly address any of the tests of the Habitats Directive.

3.17 Whilst the HRA correctly outlines the background to the Habitats Directive, the relevant stages of assessment and screening and the law and policy surrounding the treatment of European sites, the assessment itself wholly departs from these principles. The need to exhibit a precautionary approach on a case-by-case basis to the consideration of proposals affecting European sites is replaced by a blanket assumption that all proposals will proceed on the basis that there is a "need for new nationally significant energy infrastructure"[338]. As a result, there is inadequate assessment of alternative solutions and an assumption that such projects will automatically satisfy the test of Imperative Reasons of Overriding Public Interest (IROPI). This is a deeply worrying assumption to give to the IPC which has no basis in the text of the Habitats Directive, European guidance or the case-law of the European Court of Justice.

3.18 WWF is concerned to note that paragraph 7.2 of the HRA appears to fundamentally misrepresent the provisions of Article 6(4) of the Habitats Directive. It is the feature(s) of interest on a European site that determines which limb of Article 6(4) applies, not the nature of the plan or project in question. Furthermore, the extent to which a plan or project meets either the IROPI test or "beneficial consequences of primary importance for the environment" will vary on a case by case basis depending on the nature of the site and the type, location and scale of the proposed plan or project. To assert that such proposals will automatically satisfy the test in either limb, and thus never require an opinion from the Commission, is potentially unlawful and deeply troubling. WWF would ask the Government to correct this misunderstanding in the HRA as a matter of some urgency.

3.19 WWF is also concerned to note that the environmental assessments focus wholly on the provision of new sources of energy, with scant regard for the contribution that energy conservation or demand management can make to reducing the UK's energy requirements. Given that measures targeted at curbing energy use could apply across the UK, it is entirely appropriate for them to be addressed at the strategic level within the NPSs (and thus the HRA and AoS/SEA) and, clearly, measures aimed at reducing energy consumption would be very beneficial for designated sites as they would reduce the pressure for damaging developments affecting them.

3.20 In addition, the NPSs themselves do not provide sufficient guidance to the IPC or applicants on how to properly consider the tests under the Habitats Directive for specific projects that negatively impact on Natura 2000 sites. Coupled with the flawed approach taken to considering the tests in the strategic HRA and the restrictive test for considering alternatives proposed by EN-1, there is a real risk that HRAs undertaken at the project level will not properly apply the tests to consider all alternative solutions and IROPI. WWF is concerned that, in the absence of proper guidance in the NPSs, project level HRAs may seek to rely on the strategic HRA as evidence that these tests have been met, rather than giving the required consideration to the precise details and objectives of the proposal in terms of assessing the specific impacts of a proposal on designated sites, framing and assessing alternatives and determining what IROPI would be in the particular case.

Public Participation in Decision-Making

3.21 Whilst WWF acknowledge that there is not a legal requirement to consult in the early stages beyond the statutory consultees, we have been frustrated by the lack of positive and early engagement by DECC in the drafting of the NPSs and particularly the environmental assessments, despite numerous attempts to provide our expertise and assistance. Any information that was provided to us was very general (normally headings only), caveated by the fact that the NPS was in early stages of drafting and therefore subject to change, and we were completely cut off from the process of Appraisal of Sustainability/SEA and Habitats Regulation Assessment.

3.22 WWF has considerable concerns about how robust and influential the public consultation and parliamentary scrutiny processes will be. Whilst the consultation period is 15 weeks, it has been over the period of the Copenhagen summit, which fully engaged many energy and climate change specialists, and the Christmas and New Year break. Further, the timetable for parliamentary scrutiny has meant that those wishing for the Energy & Climate Change Committee to consider their responses have had a shorter period to consider the NPSs and prepare their submissions. We have also heard that the public events organised by DECC, albeit welcomed, have been poorly attended.

3.23 WWF is mindful that the UK is a contracting Party to the "Aarhus Convention"[339]. Having ratified the Convention in February 2005, the UK is expected to apply the provisions of Article 6 of the Convention to public participation in decisions on specific activities, which we believe covers consultation before designation of the NPSs. Article 6(2) requires the government to inform the public concerned, either by public notice or individually as appropriate, early in an environmental decision-making procedure, and in an adequate, timely and effective manner of a number of matters concerning a proposed environmental decision.

3.24 Given the importance and highly technical nature of the NPSs, we feel it is crucial that local communities and local authorities are engaged from an early stage and made aware of how the decision making processes and their involvement in them will be changed. However, it appears that the efforts of the government to allow for public engagement have been kept to a minimum, barely enough to meet the necessary legal requirements, and the processes used are lacking in creativity and effective measures for useful engagement. This is disappointing. We submit that such an approach is insufficient and that more needs to be done to ensure active, effective and extensive involvement of the public so that they can truly have a say about how their energy is to be supplied in the future.

3.25 In respect of the Appraisal of Sustainability/SEA process, WWF submits that it is highly unsatisfactory that the assessments were undertaken in complete isolation from any wider stakeholder or public participation—contrary to practices adopted for Offshore Energy and Severn Tidal Power. Undertaking SEA effectively so as to deliver the objectives of the SEA Directive requires time and resources invested early in the planning process and a receptive planning process to avoid unnecessary expenditure and delay later on. The more consultation and assessment is squeezed in the planning process, the more likely that recourse will be sought through judicial review and the less likely that the objectives of the SEA Directive will be achieved. One of the key ways in which SEA can benefit strategic decision-making is to provide a framework within which strategic participation of the public and stakeholders can occur. The inclusion of public participation can assist in better informing options at scoping stages and in the assessment of options, can provide opportunity for social and institutional learning by those undertaking the SEA and allow for the exchange of knowledge and information among stakeholders and participants[340]. It is our view that the lack of public participation in the appraisal/SEA process has adversely affected the development of the NPSs and will ultimately result in further delays to implementing the new system.

The Carbon Impact of Infrastructure Development

3.26 One of the key drivers in the NPSs is the transition to a low carbon economy and the policy context outlined within EN-1 reflects the government's Low Carbon Transition Plan. However, the capacity of the IPC to consider how individual projects can contribute to meeting the objective of a low carbon economy is curtailed. The government's stated view is that the planning system is not the correct vehicle for delivering all aspects of energy and climate change policy and, therefore, there will be many elements of the policy that are not relevant to IPC decisions. For example, EN-1 outlines the important policies for greenhouse gas emission reductions in the UK, but then advises the IPC that it does not need to assess individual applications for their carbon emissions against carbon budgets[341]. Rather, the NPS asserts that existing energy and climate change policy, such as the EU Emissions Trading Scheme (EU ETS) and Carbon Capture and Storage (CCS), is sufficient to ensure that the right technology and energy mix will come forward to achieve the transition to a low carbon economy so that the IPC does not need to consider the relative advantages of one technology over another. This is a false assumption, which places undue faith in unproven policies to deliver and may still lead to approval and construction of highly carbon intensive infrastructure.

3.27 Whilst WWF agrees that the planning system cannot deliver all aspects of energy and climate change policy, we would argue that the government cannot pick and choose which parts of the policy will be relevant for the IPC. The planning system is an essential element in the delivery of low carbon infrastructure and what projects are consented by the IPC will undoubtedly have an impact on the ability of the UK to meet its targets for greenhouse gas emission reductions and renewable energy provision. We submit that it is a fundamentally flawed approach to advise the IPC to disregard aspects of government energy and climate change policy merely because it is not the delivery vehicle. If the IPC is to make decisions in order to achieve the core purposes of the NPSs and to contribute to the achievement of a low carbon energy sector, surely the carbon impacts and emissions of each and every development are likely to be an important and relevant factor for the IPC to consider.

3.28 In the absence of the Government accepting the Committee on Climate Change's (CCC) recommendation of the need for the energy sector to be almost decarbonised by 2030, new electricity generating capacity will be consented in a vacuum with no clarity over the emissions trajectory required of the sector which would guide investment, and the decisions taken by the IPC. Under these circumstances and without the IPC being allowed to explicitly take carbon emissions into account it is hard to see how we have guarantees that energy generation will follow a low carbon trajectory.

3.29 EN-1 provides a reiteration of Government policy which relies on the EU ETS as the main mechanism to deliver emission reductions from the power sector[342]. It has been clearly recognised by the CCC that the carbon prices needs to be "buttressed" to prevent lock in to further high carbon infrastructure. Also, this reiteration of the EU ETS mantra further ignores the CCC recommendation for the need for the power sector to be close to decarbonised by 2030. Under the trajectory for the EU ETS emissions cap from 2013 onwards, a 1.74% annual reduction means that emissions will not reach zero until around 2070 (or in reality much later as access to significant levels of offset credits from outside the EU are not included in this projection). This is 40 years after the deadline for the power sector recommended by the CCC. Whilst this is more of a criticism of Government policy rather than the NPS per se, it provides an example of how government policy and the markets created by policy/ decision-makers (eg the EU Emissions Trading Scheme's carbon market) cannot be relied upon to ensure that only low carbon infrastructure projects are submitted for consent to the IPC. Reliance upon the EU ETS implies that what actually happens on the ground in terms of energy infrastructure does not affect carbon budgets (eg if we exceed our cap we will just buy allowances which means someone somewhere else will have to reduce their emissions)—regardless of whether it locks the UK into another 30-40 years of high carbon infrastructure. This is an incorrect and flawed approach.

3.30 WWF submits that the IPC must have a remit to consider the carbon impacts and carbon emissions from proposals submitted to it for consent. Not only is this a relevant consideration, it must be recognised that the planning system is an integral element for delivery of a low carbon energy sector. At the local and regional level it is becoming increasing common for planning authorities to take into account the sustainability of project proposals and how they may contribute to increasing climate change impacts. For this reason, it is wrong to exclude a carbon assessment of a project as part of the full and proper examination of the planning merits of an application.

Assessment of National Need

3.31 The question of need is not new in the planning system and lies at the heart of strategic planning. There are many examples of where need is considered within planning policy, such as for retail and business development, housing and development within the green belt. However, in each case there is a test applied to determine the need and this is backed by significant evidence establishing the need and how proposals will fulfil this need.

3.32 Case law has considered the question of need in planning and a recent case which is relevant to mention here is Vicarage Gate Ltd v Secretary of State for Communities and Local Government and Kensington & Chelsea RBC[343]. Judge Gilbart QC commented[344]:

"`demand' is not a synonym for `need', nor necessarily a proxy for it|. `Need' is a term which can cause difficulty if not used carefully, and problems can and do occur when definitions are extracted from dictionaries and applied in a way which is inappropriate to a planning decision|. The true position is that `need' is properly used in the planning context to express a strong planning case being made for provision of some type of development. Thus for example, if a planning policy | looks to meet an identified demand for a type of use or development, and does so in a way which expresses a strong planning case for its being met, then there will be a `need' in planning terms to meet that demand."

3.33 WWF submits that the way in which the NPSs seek to establish need for energy infrastructure is not consistent with the test stated above nor appropriate in a planning context. In fact, we would argue that the need sections of the NPSs address aspirations for meeting projected demand and potential national benefits of secure energy supply rather than actual need and the planning case for it being met. As a result, what is established is an unbridled need for all infrastructure types, at any point in time, and the IPC is advised that it is to start from the basis that need is established for all applications regardless of the facts and details of any particular application. This statement of significant need is then used throughout the NPSs to limit the consideration of alternatives and other relevant planning considerations and provide an overriding presumption in favour of development for all forms of energy infrastructure, even highly polluting ones.

3.34 In attempting to establish need, the NPSs rely on data which shows a projection of expected future demand for energy. No provision is made in this data for reducing future demand below currently projected levels. This, therefore, indicates a "predict and provide" approach implying a lack of serious consideration of options for demand management. That this is the NPSs' approach is confirmed by the brevity and content of the paragraphs on reducing demand[345]. Clearly, there is a need for bulk generation and a need for new large energy infrastructure. However, the Planning Act suggests that the NPSs should quantify these needs. This cannot be achieved without a serious and quantified assessment of the potential of demand management and energy efficiency measures.

3.35 It is also elementary economics that demand cannot be assessed in isolation from price. Any quantification of future total demand for electricity should be based in part on projections of future energy prices, which in turn depend partly on expected future price impacts of national and international measures to reduce carbon emissions (eg emissions trading systems). Similarly, any Government strategy for future provision of electricity supply should be based partly on an assessment of the potential for using economic instruments (such as taxation and emissions trading systems) as a means of reducing demand below projected levels. The NPSs fail to make any such assessment, or even to consider the need for such an assessment.

3.36 WWF disputes that there is a significant, urgent need for the development of all types of energy infrastructure, despite the fact that there will be closures of existing plant. A report from energy consultants Pöyry in 2008[346] concluded that over the next 10-20 years, around 30% of our conventional, climate damaging electricity generation capacity is scheduled to close. However, if the UK meets its own 2020 targets of 20% energy savings and sourcing 15% of energy from renewable technologies, there will be no "energy gap" and no new unabated conventional power stations will need to be built before 2020, either as base load or for back up electricity. This analysis shows that, in contrast to the views of some parts of the government and industry, there is little or no need for large scale investment in new conventional baseload technology to "keep the lights on" in the UK up to 2020. Instead, the focus should be on delivering existing targets and commitments for renewable energy and reducing energy consumption.

3.37 EN-1 provides as part of the justification for establishing need that sufficient generating capacity needs to be available to meet demand at all times, with a safety margin or spare capacity to accommodate peak demand. Further, "the larger the difference between available capacity and demand|the more resilient the system is in dealing with unexpected events, and consequently the lower the risk of a supply interruption"[347]. However, a recent DECC consultation[348] states:

"The approximate relationship between the capacity margin and expected energy unserved is shown in chart 1.18. What this highlights is that, while initially the expected energy unserved falls very rapidly as the margin of spare capacity increases, it later levels off. We therefore face diminishing returns in terms of increased security from increasing the capacity margin. This relationship between expected energy unserved and the capacity margin is key when looking at the benefits from increasing capacity or reducing (peak) demand. Relatively small changes to either can make a significant difference to a system that is not particularly secure—and conversely, for a system that is already quite secure, it may be very expensive to significantly increase the level of security. 1.10 However, we should not focus too closely on the capacity margin as a means of ensuring security of supply, as this relationship may not hold when the mix of generating technologies is significantly different from today. For example, simply de-rating renewables generation capacity may not capture all its complexity such as the way the output from different wind farms may be correlated."

3.38 EN-1 advises that additional back up generation capacity will be required to cope with the higher levels of "intermittent and unpredictable wind"[349]. A recent review of evidence completed for WWF and others by David Milborrow[350] shows that concerns about the "intermittency" of wind power can now be put to rest. There is no technical reason why a significant amount of electricity generated by appropriately and sensitively sited wind farms cannot be used to supply the National Grid. David Milborrow found evidence, and a consensus of expert opinion, over many years that demonstrate:

(a) wind power can significantly reduce our climate damaging CO2 emissions;

(b) fluctuations in wind strength can be managed technically and at modest and declining cost;

(c) high proportions of wind power in our energy mix are feasible, and are already successfully integrated in other countries; and

(d) a range of technological developments already underway could allow for a steadily increasing use of wind power and the phasing out of conventional carbon-based fuels as a backup technology. Additional short term operating reserve (plant that can power up in under four hours) will likely be required, but additional back-up plant are not likely to be required.

For these reasons, it is misleading to suggest that wind is more "intermittent" than existing generation capacity, for example nuclear. Indeed wind is variable rather than intermittent, but this variability can be managed.

Implications for Devolved Administrations

3.39 Energy policy is a reserved function. In Wales, the IPC will be the relevant body to decide NSIPs. However, it is currently the case that all decisions relating to renewable energy in Wales must take account of the Assembly Government's policy as defined by TAN 8.[351] TAN 8 was developed "for efficiency and environmental reasons|" to ensure that large scale (over 25MW) onshore wind developments could be concentrated into particular areas defined as Strategic Search Areas (SSAs) that could minimise any environmental impacts—and this policy has been a successful one. TAN 8 has had a significant impact on developer confidence by offering a clear policy framework within which to operate and since its publication there has been an increasing stream of planning submissions and approvals.

3.40 It is unclear how the NPSs will relate to existing Welsh planning policy, particularly TAN 8, and what status such policies will have in IPC decisions. WWF is concerned that if TAN 8 and the SSAs are not considered within the NPSs or IPC decisions on sites located in Wales, that this will affect the favourability of the sites. It is unclear if the applications will still carry a presumption a favour of development of renewable energy. Further, it is uncertain if there will be certainty in approach between consenting of NSIPs and energy projects below the threshold that will be decided in consideration of differing national policies and how this will consequently affect confidence from both investors and communities.

3.41 Given the limitations on the jurisdictional application of the new planning regime for NSIPs, there are going to be clear differences across the UK in terms of policy. The obvious example being nuclear energy where Wales has clear concerns about this technology option. The NPSs do not reflect differing national preferences or the fact that Wales has adopted more ambitious targets for emissions reductions and renewable energy[352]. TAN 8 has been developed with the specific intention of meeting challenging and specific renewable energy targets for the region. As a result, it is difficult to know if Wales can have confidence that a decision making framework and body that is not responding to or is defined by the particular needs of devolved administrations will be able to respond in a way that ensures delivery of its specific targets.

3.42 It has been identified that in Wales there will still be alternative consenting regimes for major infrastructure developments. Applicants will have the choice of applying under the Transport & Works Act (T&W Act) for offshore energy projects. If one of the stated objectives of the new planning system is to streamline procedures, consolidate and reduce the complexity of consenting regimes and ensure consistency in approach, how will this be achieved if there are still alternative consenting regimes? It is unclear why the reforms are different in respect of Wales. WWF queries what will determine whether one regime is adopted over the other, how public participation and stakeholder engagement will be guaranteed in both regimes, what the status of the NPSs will be in an application under the T&W Act and how consistency in decisions can be assured.

3.43 In respect of developments within England, the applicant can include within an application to the IPC all associated development or ancillary matters that form part of the development. This would include things such as cabling, substations, etc. This has benefits in allowing all aspects of infrastructure development to be considered as one application for the developer in terms of costs, time and progressing the development, but also for other interested parties in considering the full impacts of the development proposed. However, the IPC is stated not to have power to consent associated development for proposals in Wales. This means such development will have to be consented by the local planning authority under the existing regime. WWF queries why there is a difference in approach for Welsh developments and whether this will cause delays and problems for the developer which are intended to be addressed. This again is contrary to the stated intention and objectives of the planning reforms to streamline the system, reduce the number of consents required and ensure the whole of the project is considered as one.

4. WWF RECOMMENDATIONS

4.1 That the Appraisals of Sustainability and Habitats Regulation Assessments be re-considered and further assessment undertaken to allow for full and proper consideration of alternatives and their environmental impacts.

4.2 That time and resources are given for a further review of the draft NPSs in view of the reports of scrutiny by the Energy & Climate Change Select Committee.

4.3 That the draft National Policy Statements be revised:

(a) in light of the outcomes of the further environmental assessments and to include any refinement to the options that therefore arise;

(b) in order to address the content requirements of the Planning Act;

(c) to incorporate spatial elements and criteria, and a more integrated approach, to assist applicants and the IPC in determining the most suitable locations for such infrastructure;

(d) to refine the statements of need such that there is a more accurate assessment of what is the actual need in planning terms and what infrastructure must be built to fulfil this need. This must be done in conjunction with a serious and quantified assessment of the potential of demand management and energy efficiency measures; and

(e) to allow the IPC to play its role in delivery of the UK's climate change policies by requiring the IPC to consider the carbon impacts of each development and provide it with the discretion to refuse development that would adversely impact on the ability of the UK to meet its greenhouse gas emission reduction targets;

4.4 That the interrelationship between national, local and regional infrastructure development be considered in greater depth, so as to ensure that decentralised and community based schemes do not become superfluous.

4.5 That further, more effective ways of engaging key stakeholders, experts, the communities impacted and the wider public in a debate over the country's energy infrastructure needs are explored and utilised.

4.6 That the interrelationship between the NPSs and devolved planning regimes and policies be considered in greater depth. Where necessary to revise the NPSs to ensure there are no inconsistencies between devolved policies and the NPSs, and to ensure that the NPSs do not constrict the ability of devolved administrations to guide major infrastructure development so as to achieve their own higher emission reduction and renewable energy targets.

January 2010

320 Planning for a Sustainable Future: White Paper, May 2007 Back

321 Directive 2001/42/EC of the European Parliament and of the Council of 27 June 2001 on the assessment of the effects of certain plans and programmes on the environment ("the SEA Directive") which has been transposed by The Environmental Assessment of Plans and Programmes Regulations 2004, The Environmental Assessment of Plans and Programmes (Wales) Regulations 2004; Back

322 Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora ("the Habitats Directive") which has been transposed principally by The Conservation (Natural Habitats, &c.) Regulations 1994 Back

323 The Better Planning Coalition was established in 2007 and comprised 17 of the UK's main environmental, conservation and civic organisations who came together out of a deep concern over many of the recommendations of the Barker Review of Land Use Planning. For more information on the work of the Coalition see: http://www.wcl.org.uk/betterplanning_home.asp Back

324 Barker Review on Land Use Planning, Final Report-Recommendations, by Kate Barker, December 2006 Back

325 Planning White Paper, pg 43 para 3.4. Back

326 Section 5 Back

327 Draft Overarching National Policy Statement for Energy (EN-1), Part 3, pages 13 and 14. Back

328 For example see Draft National Policy Statement for Renewable Energy Infrastructure (EN-3), paras 2.5.28-29 on biomass, pages 25 and 26 on offshore wind, 58 and 59 on onshore wind. In contrast, we note that the Draft National Policy Statement for Fossil Fuel Electricity Generating Infrastructure (EN-2) prescribes the use of grampion conditions used in local planning permissions to require details and evidence to be submitted to the IPC before construction can commence. WWF suggests that similar requirements could be imposed in respect of the uncertain details surrounding wind farm developments. Back

329 For example, see EN-3, pages 9 under heading "Combustion Plant Types and Scale" Back

330 For example, see EN-1 para 3.3.11, para 4.18.12; EN-3 pages 22-24 and 56-57 on factors influencing site selection and design, Draft National Policy Statement for Electricity Networks Infrastructure (EN-5) paras 2.2.5 and 2.2.6 Back

331 An amendment introduced by the Marine and Coastal Access Act 2009, Section 58(5) Back

332 Planning Act 2008, Section 104: Decisions of the Panel and Council. Back

333 For example, see EN-1 paras 2.1.1, 2.1.5, 3.1 (conclusions on need), EN-3 paras 2.5.11, 2.5.13, 2.5.17, 2.5.23, 2.5.41, 2.5.42, 2.6.30, 2.6.32, 2.7.10. Back

334 Draft Overarching National Policy Statement for Energy (EN-1), pg 20, para 3.3.18. Back

335 Draft Overarching National Policy Statement for Energy (EN-1), pg 21, para 3.3.23. Back

336 "Appraisals of Sustainability and the New National Policy Statements: Opportunities Missed and Challenges to Come?", Collingwood Environmental Planning (2010) Back

337 See "Planning for New Energy Infrastructure: Appraisal of Sustainability for the Draft Overarching National Policy Statements for Energy" (EN-1), Entec, Nov 2009, pages ix and x Back

338 See para 4.10 Back

339 The UNECE Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters Back

340 These comments are taken from the CEP Review of the AoS/SEA process for NPSs commissioned by RSPB and WWF. Back

341 See EN-1 page 8, para 2.1.5. Back

342 EN-1, pg 8 and pg 9, paras 2.1.10 to 2.1.13 Back

343 [2007] EWHC 768 (Admin); 2007 WL 1292590 Back

344 At paragraph 33 under "Discussions and Conclusions" Back

345 EN-1 paras 3.3.16-19, pages 19 and 20. Back

346 Pöyry Energy Consulting, Gareth Davies and Brenden Cronin, Implications of the UK meeting its 2020 renewable energy target, July 2008 http://assets.wwf.org.uk/downloads/poyry_2020renewablestarget.pdf Back

347 EN-1, page 15, para 3.3.1 Back

348 Delivering secure low carbon electricity: A call for evidence-http://www.decc.gov.uk/en/content/cms/consultations/electricsecure/electricsecure.aspx Back

349 EN-1, page 17, para 3.3.9 Back

350 "Managing Variability" report, July 2009-http://assets.wwf.org.uk/downloads/managing__variability_report.pdf. The Committee may also be interested to read more into a study being undertaken by Poyry Consultants for National Grid, "The Implications of Renewables and Intermittent Generation on Gas Markets". Some preliminary results can be found here: http://www.ilexenergy.com/pages/Documents/Flyers/Other/GasIntermittency-Flyer_v2_0.pdf Back

351 Technical Advice Note (TAN) 8: Renewable Energy 2005 http://wales.gov.uk/topics/planning/policy/tans/tan8/?lang=en Back

352 In Wales the One Wales agreement sets out a commitment to deliver a 3% cut each year in carbon dioxide emissions to 2011 in areas of devolved competence. http://www.plaidcymru.org/uploads/publications/281.pdf The Welsh Assembly Government has adopted a target of 4TWh of electricity per annum to be produced by renewable energy by 2010 and 7TWh by 2020. In order to meet these targets the Assembly Government has concluded that 800MW of additional installed (nameplate) capacity is required from onshore wind sources and a further 200MW of installed capacity is required from off shore wind and other renewable technologies. See TAN 8, para 1.4 pg 3 http://wales.gov.uk/desh/publications/planning/technicaladvicenotes/tan8/tan8main1e.pdf?lang=en and the Joint Ministerial Assembly Government Energy Statement, July 2004. Back



© Parliamentary copyright 2010	Prepared 23 March 2010