Memorandum submitted by the Infrastructure
Planning Commission
INTRODUCTION
1. The IPC was established on the 1st October
2009, under the Planning Act 2008, to examine applications for
development consent for Nationally Significant Infrastructure
Projects (NSIPs), including energy infrastructure developments
above the thresholds specified in the Act. Once the National Policy
Statements (NPSs) have been designated by the Secretary of State,
the IPC will have the power to decide such applications, and must
do so in accordance with the relevant NPSs.
2. An important feature of the new infrastructure
planning regime is the separation of policy making from decision
making. Government sets the policy and the IPC is the planning
authority which determines applications in accordance with it,
taking account of other factors as set out in statute. It follows
from this separation of powers that it would be wrong for the
IPC to comment in any way on the policy of the Government. Our
comments in both written and oral evidence to the Committee will
therefore be restricted to the clarity with which policy is set
out in the NPSs and other aspects of their fitness for purpose.
3. The IPC considers that the Appraisals
of Sustainability, Strategic Sites Assessments and Alternative
Sites Study associated with the NPSs lie behind the policy, rather
than forming any part of the NPSs themselves, and it would not
therefore be appropriate for us to pass any comment on these documents
at all.
Overall fitness for purpose
4. The IPC considers that the draft NPSs
on Energy are all fit for purpose. The NPSs provide a sufficiently
clear statement of Government policy and appropriate guidance
to applicants and interested parties. They give the IPC sufficient
guidance on how various aspects of policy should be considered
in determining applications.
AREAS FOR
IMPROVEMENT
5. We have identified some areas in which
we believe there is scope to improve the clarity and fitness for
purpose of the whole suite of Energy NPSs, and some specific opportunities
to add clarity to individual components of the suite. Addressing
the issues with the current draft in these areas, before the NPSs
are designated by the Secretary of State, would offer significant
benefits for Commissioners and all other parties who need a clear
understanding of Government policy in relation to energy NSIPs.
Some further observations on the drafting have been set out directly
in correspondence with Government lawyers.
6. The cross-cutting issues are as follows:
(a) Summarising policy separately from contextual
discussion. The Energy NPS suite is a set of lengthy documents,
and while policy is clearly stated within them, it is not always
as clearly highlighted as it might be. Distinguishing statements
of policy from contextual discussion, perhaps by means of a highlighted
text box in each chapter or major section, would help accessibility
for all users of the NPSs. This is particularly the case for EN-2,
EN-3, EN-4 and EN-5.
(b) Use of language which risks creating tensions
with statutory provisions. At certain points in the text (for
example, EN-1 paragraph 4.1.1) the drafts run the risk of appearing
to restate provisions of the Act in their own terms. This has
no value as the terms of the statute obviously take precedence.
Moreover, while we fully accept that it is not the Government's
intention, the use of very directive language (eg "the IPC
must") may be seen as running contrary to the statutory requirement
for Commissioners to take account of all evidence before them
in reaching their decision.
(c) Inconsistency of language. It is perhaps
inevitable that in such a long and complex suite of documents
there will be some inconsistencies of language. This by no means
renders the NPSs unfit for purpose, but it may help to limit unproductive
debate about the nuances of meaning in different turns of phrase
if the department was able to introduce a greater degree of consistency.
We might suggest that a simple, neutral formulation such as "the
IPC should take into account" (EN-1 para 4.1.1) might be
used as a standard, replacing many instances of more complex forms
of words including "the IPC should have regard to the possibility
that" (EN-1 para 4.4.3); "it should/may be reasonable
for the IPC to" (EN-1 para 4.4.3); "these [considerations]
should not be used in themselves to refuse consent" (EN-1
paras 4.18.13, 4.24.10, 4.24.11, 4.28.9).
(d) Status of evidence cited in the NPSs. The
IPC expects that applicants and interested parties will submit
a diversity of expert evidence on some issues where it is the
responsibility of Commissioners to weigh benefits against adverse
impacts. Examples of such issues include (but of course are not
limited to) the extent of shadow flicker and noise from onshore
wind farms, and the implications of undergrounding electricity
transmission lines. The NPSs draw attention to evidence relating
to issues of this nature and in some instances appear to suggest
that the evidence cited is conclusive. Commissioners will, however,
wish to consider all evidence presented to them, and it might
be appropriate for the wording of the NPSs to acknowledge this
more explicitly.
(e) Carbon footprint. Consideration of climate
change impacts is likely to form an important part of the IPC's
examination of proposed energy NSIPs, and Commissioners must consider
all relevant evidence submitted. The National Policy Statements
make clear (EN-1 paragraph 2.1.5) that the IPC "does not
need to assess individual applications in terms of carbon emissions
against the [carbon] budgets". However, it is assumed that
the wider carbon footprint of an NSIP, including impacts along
the supply chain and over the whole life of the installation,
would be a relevant factor in IPC decision making. Further clarification
in the NPSs, on this area would be welcome.
(f) Role of the applicant. There is an occasional
appearance of confusion between the role of the applicant and
the role of the IPC. In all cases the onus for ensuring a high-quality
and compliant application lies with the applicant. For example,
in EN-1 paragraph 4.18.15, it is for the applicant to maximise
opportunities for biodiversity in their application.
(g) Design. The NPSs refer in a number of places
to the importance of good design. Given the policy significance
thus attached to good design, it would be helpful for the NPSs
to set out a clearer high-level framework for the consideration
of design issues, indicating more explicitly what components of
good design the Government considers applicants should be incorporating
into their proposals, and referring to the most relevant consultees.
(h) Devolved administrations. The IPC has a different
and more limited role in Wales, and a very limited role in Scotland.
While these differences are appropriately acknowledged at different
points in the NPSs (notably EN-3 section 2.2), it would be helpful
for there to be a single analysis—perhaps extending the
discussion of geographical coverage in EN-1 section 1.4—of
how the policy framework differs between England and the devolved
administrations.
(i) Security. In EN-1 section 4.15, the role
of the IPC in relation to security matters is left unclear. The
IPC has already asked the Government to clarify its position in
this regard with respect to all National Policy Statements.
7. Issues relating to individual National
Policy Statements are as follows:
(a) EN-1 paragraph 4.27.6. It would be helpful
if the NPS could spell out rather more substantively the Government's
policy on socio-economic impacts. It is self-evident that the
IPC will give little weight to unsupported assertions in this
or in any other matter.
(b) EN-3 paragraph 2.5.32. The policy on development
in the green belt set out here is not explicit. Any renewable
energy project will provide wider environmental benefits, and
the policy articulated here does not enable the IPC to determine
in any way whether these should normally or only rarely be deemed
to outweigh the harm of inappropriate development.
(c) EN-5 paragraph 2.9.15. The decision tree
as currently presented detracts from the clarity of the NPS. Its
implications are not identical to the draft text and need to be
spelled out explicitly in the text. For example the implied expectation
of optimal phasing is much stronger in the diagram than it is
in the text (paragraph 2.9.12), where it is simply identified
as common good practice. If the decision tree is to be retained
at all, the assessment criteria it presents must correspond fully
with the text.
January 2010
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