Memorandum submitted by the Country Land
& Business Association
1. INTRODUCTION
The Country Land and Business Association is
the membership organisation for owners of land, property and businesses
in rural England and Wales.
We speak for everyone who believes in a living
and working countryside. Through the experience and expertise
of members and staff, we promote our members' interests and influence
decision makers to ensure the positive development of the rural
economy. CLA professionals lobby continuously at EU, national
and regional level in the interests of our members ensuring a
visible presence and influence in the media and with Government.
2. THE NATIONAL
POLICY STATEMENTS
PROCESS
The CLA has two overarching concerns regarding
the process of making and delivering NPS.
First, we are concerned that there is a democratic
deficit. We acknowledge that Parliament has an oversight of NPS,
but we do not regard this as adequate.
NPS, when made, will fundamentally affect the
property rights and lives of those facing the designated developments.
This has implications for our second point.
Second, we do not agree that the NPS process
gives proper consideration to the separate but linked powers that
the IPC will exercise in respect of compulsory purchase.
Under the Act, a developer seeking consent from
IPC will be granted not only planning consent but also approval
to compulsory purchase proposals.
We do not agree that the well established checks
and balances that exists to protect property rights are addressed
in the IPC process.
3. OVERARCHING
QUESTIONS
1. Do you think that the Government should
formally approve ("designate") the draft Overarching
Energy National Policy Statement?
No, we do not believe that overarching energy
national policy statement is acceptable in its current form.
2. Does the draft Overarching Energy National
Policy Statement provide the infrastructure Planning Commission
with the information it needs to reach a decision on whether or
not to grant development consent?
Yes, broadly the NPS provides IPC with the information
it requires for planning consent, but we note with deep concern
that the "development consent" process for IPC also
includes the grant of compulsory acquisition powers.
We do not regard the NPS as adequate for the
justification of a compulsory purchase order that may deprive
a home or business owner of his property.
Previously, infrastructure proposals involving
compulsory acquisition have been adequately dealt with under hybrid
bills or the relevant enabling Acts.
We would wish to see the same safeguards included
here.
We regard it as fundamentally important that
the NPS set out clearly guidance to the IPC that requires it to
be satisfied that the applicant has made every reasonable effort
to secure what land rights it requires by agreement before applying
for a development consent.
3. Does the draft Overarching Energy National
Policy Statement provide suitable information to the infrastructure
Planning Commission on the Government's energy and climate policy?
No, we regard the unnecessary and damaging limitation
of nuclear power to be deeply harmful to UK Plc. 10 nuclear
power stations may not be enough to keep the lights on in a low
carbon world.
4. Does the draft Overarching Energy National
Policy Statement provide suitable direction to the infrastructure
Planning Commission on the need and urgency for new energy infrastructure?
Yes, energy infrastructure is covered adequately.
5. Do the assessment principles in the draft
Overarching Energy National Policy Statement provide suitable
direction to the infrastructure Planning Commission to inform
its decision making?
No, the assessment principles should be amended
to give greater weight to private property rights.
6. Does the draft Overarching Energy Policy
Statement appropriately cover the generic impacts of new energy
infrastructure and potential options to mitigate those impacts?
Yes. The NPS covers mitigation adequately.
7. Do you have any comments on any aspect
of the draft Overarching Energy National Policy Statement not
covered by the previous questions?
We reiterate our concern that pre-judging compulsory
purchase issues may be damaging and potentially open to challenge.
We make comments below only where we have expertise
and advice to Government.
2. NPS THE IPC
AND THE
NATURE OF
THE CONSENT
The CLA argues that given the duality of the
development consent, covering both planning and compulsory acquisition,
there should be a significant upfront requirement on applicants
to prove to IPC they have made every reasonable effort to secure
the rights they require by agreement before applying for IPC consent.
This follows existing compulsory acquisition guidance set out
in CLG circulars and the compulsory acquisition manual.
3. DETAILED COMMENTS
EN-3—Renewables
Section 2.5: biomass and waste to energy
We have particular concerns over the National
Guidance on biomass and waste combustion.
At section 2.5 the Guidance states "the
combustion of biomass is likely to play an increasingly important
role…"
We consider that this prejudges technology issues
that should more properly be dealt with on a case by case basis.
We agree that the recovery of energy from biomass, particularly
biomass waste will become increasingly important, but we regard
giving carte blanche to large scale incineration with low levels
of energy recovery as wholly misplaced.
The key issue that we advise the IPC should
be guided to is the Best Practicable Environmental Option—covering
carbon saving as well other environmental outputs—for waste
treatment. This is likely to maximise carbon saving and materials
recovery if applicants are required to justify their proposals
against the options available—which include Anaerobic Digestion
for putrescible waste and gasification for dry biomass waste,
together with high temperature incineration with energy recovery
for plastics etc.
The current guidance is wholly misplaced. Consenting
very large scale mass burn technology will lock UK waste policy
into sub-optimal facilities for many years, and deny the valuable
feedstocks to other sectors better able to maximise societal benefits
from renewable energy and production of biofertiliser and biochar.
At section 2.5.8 it is not true to say
energy from waste plants at the scale covered by IPC take fuel
that would otherwise be sent to landfill.
50MW plants will demand long term contracts
for waste incineration that deny feedstocks to more benign treatment
plants such as AD and gasification, and disincentivise recycling
and re-use.
We point DECC to guidance hidden deep inside
the Waste Strategy that clearly favours AD over other waste technologies.
We quote from the waste strategy 2007:
24. The various energy from waste technologies,
their different feedstocks, carbon emissions performance, and
outputs are described in the 'summary guidance on energy from
waste technology' (Annex E) which is intended to act as a guide
to local authorities and others who are considering procurement.
The Government wishes to encourage local authorities and businesses
to consider using anaerobic digestion. Such use would complement
current work on measures to promote anaerobic digestion in farming,
where it has benefits for manure and slurry management. And in
suitable circumstances, spare capacity may be available in on-farm
anaerobic digestion plant to manage biowaste from the locality,
as is common practice in Denmark. Our recent research has suggested
that anaerobic digestion has significant environmental benefits
over other options for food waste (and may be particularly cost
effective for food waste if separately collected). Although anaerobic
digestion is currently a commonly used technology in some other
European countries this is not the case in England.
25. The electricity derived from the energy
recovered in anaerobic digestion is eligible for Renewable Obligations
Certificates. The WIP New Technologies Programme is also funding
demonstration project(s). Plants have been situated successfully
in light industrial estates within towns, and there is scope for
using food wastes derived from both household and business sources.
Defra has established an Anaerobic Digestion Policy Network to
take forward work on anaerobic digestion and maximise the synergies
between the different markets for it.
26. The digestate, produced by anaerobic
digestion has a range of potential uses on land, including as
a fertiliser or soil improver. Defra has asked WRAP and the Environment
Agency to develop a standard and protocol for the digestate to
help build market confidence in its recovery on land. Defra is
working to establish the full potential, while WRAP is charged
with developing this market along with its work to establish markets
for waste-derived compost. The Environment Agency intends to have
an operational protocol for anaerobic digestate by Spring 2008.
27. Subject to what is said in paragraph
25 above, the Government does not generally think it appropriate
to express a preference for one technology over another, since
local circumstances differ so much. Those making investment decisions
should consider the 'summary guidance on energy from waste technology',
and other similar information such as that which WIDP can supply—and
make their own decisions. It is not helpful to rule out a particular
technology—such as incineration—in advance, since
this unnecessarily restricts options and threatens to raise costs.
Annex E
1. The various EfW technologies, their
different feedstocks, carbon emissions performance, and outputs
are described in Table E.1 below.
2. This is intended to act as a guide
to local authorities and others who are considering procurement
options. As Chapter 5 of the Strategy states, the Government
wishes to encourage more consideration of the use of anaerobic
digestion (AD) both by local authorities and businesses. Such
use would complement strong measures which are being taken to
promote AD in farming, where it has benefits for manure and slurry
management. In suitable circumstances, spare capacity may be available
in on-farm AD plant to manage biowaste from the locality, as is
common practice in Denmark. Our recent research1 has suggested
that AD has significant environmental benefits over other options
for food waste and may be particularly cost effective for food
waste2 if separately collected. Although AD is currently
a commonly used technology in some other European countries this
is not the case here.
3. Apart from AD, the Government does
not generally think it appropriate to express a preference for
one technology over another, since local circumstances differ
so much. Those making investment decisions should consider the
information in this document and other information such as that
which the Waste Infrastructure Delivery Programme (WIDP) can supply—and
make their own decisions. It is not helpful to rule out a particular
technology—such as incineration—in advance, since
this unnecessarily restricts options and threatens to raise costs."
We argue the IPC should be given the same guidance
as waste authorities in this important matter.
At paragraph 2.5.29 guidance states the
IPC should accept that applicants may not know the precise details
of the plant they intend to erect.
We accept that in matters of precise detail
this is reasonable, we do not agree that IPC should grant consent
unless the whole life cycle carbon balance of the proposal is
known and compared to other alternatives for waste treatment.
Applicant should be required to demonstrate
to IPC they have considered all the options and can justify combustion
of valuable feedstocks at low levels of efficiency, rather than
adopting a source separated approach that delivers both more energy
and valuable fertilizer and soil conditioners.
At 2.5.33 "other locational considerations"
no mention is made of the land rights that may be required for
development consent to proceed.
SECTION 2.7: ONSHORE
WIND
The CLA argues that large scale onshore wind
installations are not discrete power stations as was originally
envisaged in the Energy Act provisions for national need for generation
stations above 50MW.
The largest turbine available is less than 5MW.
The fact that several may be grouped together does not make the
development a suitable case for IPC.
The CLA argues that such proposals are better
dealt with at local level so that the local circumstances and
impacts of a very large scale turbine group can be assessed.
We argue that this section should be removed
from the National Policy statement.
DRAFT NATIONAL
POLICY STATEMENT
FOR GAS
SUPPLY INFRASTRUCTURE
AND GAS
AND OIL
PIPELINES (EN-4)
The CLA represents the owners and managers of
the land which will be affected by these installations.
We note that the "development consent"
that will be granted by the IPC extends to an approval of compulsory
powers under the relevant Gas, Pipeline or Electricity Act, yet
see none of the safeguards that are built into those acts in the
guidance to IPC.
We were shocked that the only mention of the
impact on property owners arises at paragraphs 2.2.2 and
2.2.3 of the Electricity Networks NPS (EN-5), where it occurs
with a general assurance to applicants that IPC will grant them
the rights they require with no consideration of the rights of
the landowners who may be affected.
The CLA argues that given the duality of the
development consent, covering both planning and compulsory acquisition,
there should be a significant upfront requirement on applicants
to prove to IPC they have made every reasonable effort to secure
the rights they require by agreement before applying for IPC consent.
We suggest suitable drafting be included at
2.9.3 as follows:
2.9.3 Gas and Oil companies will need
either to own the land on, over or under which construction is
to take place (or to hold sufficient rights on or interest in
it), or to have written permission to install their pipelines
and associated equipment. They will also require subsequently
to have access to that land for the purposes of inspecting, maintaining,
repairing, adjusting, altering, replacing or removing the pipeline
or equipment.
The necessary agreements with landowners/occupiers
are generally obtained by the companies through a permanent or
long leasehold easement agreement. The IPC should ensure that
applicants use all reasonable endeavours to acquire the rights
they need by agreement before making and application for development
consent. The IPC can reasonably expect that the overwhelming majority
of these contracts will have been acquired by voluntary agreement
and will have been concluded before the IPC receives the application.
However, where the applicant wishes to install a new pipeline
or pipelines and despite making all reasonable efforts agreement
cannot be reached with the landowners, the applicant may apply
for a or compulsory rights order as part of their application
to the IPC. The applicant may also apply for the compulsory purchase
of land on the rare occasions it can justify that a compulsory
rights order does not confer sufficient rights and where this
is necessary. This would be unlikely to be sought where pipelines
and ancillary equipment are installed, but may occur where other
network infrastructure, such as a new pressure reduction station,
for example, is required and cannot be acquired by agreement.
Detailed comments
2.9 GAS AND
OIL PIPELINES
Paragraph 2.9.3 covers impacts of the proposal.
CLA argues that applicants should be required to assess the impacts
of their proposals on the interests of the landowners who will
be affected and set out proposed mitigation and working methodology
to minimize this impact.
The current "Letter of Undertaking"
agreed between the National Grid and the farming and landowning
organisations provides a model. A copy can be supplied on request.
At paragraph 2.9.7. the guidance turns to below
ground usage, ignoring the question of existing surface uses that
may impact in site selection.
The CLA argues that applicants should be required
to seek a route that avoids or minimizes damage to the interests
of land managers and landowners.
At paragraph 2.9.22 the guidance turns
to IPC decision making on landscape. Again we argue that this
should also take into account existing land use and the interests
of the landowner, particularly if he has alternative plans for
the land that may be incompatible with a proposed pipeline.
At paragraph 2.9.25 guidance on mitigation
should also point out that direct drilling can reduce the impact
on rural business activities and landowners' interests, for example
where a pipeline needs to cross land set out for a golf course
green or other valuable and intensively managed development.
At paragraph 2.9.30 the IPC should also
be guided to assure the protection of existing piped water supplies
and water availability both for human and livestock welfare, which
can be severed by pipelining activities.
The IPC should also have regard to the protection
of land drainage required to deliver agricultural productivity.
At para 2.9.33 mitigation should extend
to:
— Replacement water supplies where these
are cut off.
— Reinstatement of field drainage.
At para 2.9.34 the guidance is limited
to soil geology. This is inadequate. Cutting a trench for a pipeline
through valuable agricultural soils risks permanent harm to agricultural
productivity. Applicant should be required to demonstrate their
proposals and expertise in restoring agricultural soils when restoring
pipelines.
DRAFT NATIONAL
POLICY STATEMENT
FOR ELECTRICITY
NETWORKS INFRASTRUCTURE
(EN-5)
The CLA argues that given the duality of the
development consent, covering both planning and compulsory acquisition,
there should be a significant upfront requirement on applicants
to prove to IPC they have made every reasonable effort to secure
the rights they require by agreement before applying for IPC consent.
We regard the drafting at paragraphs 2.2.2 and
2.2.3 as wholly unacceptable and set out below our alternative
which we hope Government will adopt.
2.2.2 Electricity companies will need
either to own the land on, over or under which construction is
to take place (or to hold sufficient rights on or interest in
it), or to have written permission to install their electric lines
and associated equipment (for example, poles, pylons, transformers
and cables). They will also require subsequently to have access
to that land for the purposes of inspecting, maintaining, repairing,
adjusting, altering, replacing or removing the line or equipment.
2.2.3 The necessary agreements with landowners/occupiers
are obtained by the electricity company through either a wayleave
or permanent easement agreement. The IPC should ensure that applicants
use all reasonable endeavours to acquire the rights they need
by agreement before making and application for development consent.
The IPC can reasonably expect that the overwhelming
majority of these contracts will have been acquired by voluntary
agreement and will have been concluded before the IPC receives
the application. However, where the applicant wishes to install
a new line or lines and despite making all reasonable efforts
agreement cannot be reached with the landowners, the applicant
may apply for a "necessary" or compulsory wayleave as
part of their application to the IPC. The applicant may also apply
for the compulsory purchase of land on the rare occasions it can
justify that a wayleave does not confer sufficient rights and
where this is necessary. This would be unlikely to be sought where
lines and cables are installed, but may occur where other electricity
network infrastructure, such as a new substation, for example,
is required and cannot be acquired by agreement.
The above issues will be a relevant consideration
in the IPC's assessment of whether the electricity company has
properly examined both alternative routes and mitigation of the
effects of its proposals.
At paragraph 2.6 "impacts of electricity
networks" the guidance fails to refer to impacts on landowners
business and wider interests. Large scale electricity infrastructure
is recorded as significant disbenefit to rural tourism in a number
of studies in Wales and Scotland.
The applicant should be required to assess the
wider impact of its proposal on the rural economy and relevant
landowner interests as well as on the landscape and other generic
impacts in EN-1.
January 2010
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