The revised draft National Policy Statements on energy - Energy and Climate Change Contents

3  Changes to the Planning Act 2008 and Parliamentary scrutiny

19. The Government has made several changes to the draft NPSs with the stated aim of improving democratic accountability for planning decisions. It has introduced a new ratification procedure; it has revisited the Appraisals of Sustainability; and it has announced major changes in the consent process set out in the Planning Act 2008, which will be taken forward in the Localism Bill. This section examines the changes to the Planning Act, the new ratification procedure and outstanding issues relating to the Appraisals of Sustainability.

Revised Appraisal of Sustainability

20. The Government cited the perceived weaknesses in the first Appraisals of Sustainability as the reason for re-consulting on all the draft National Policy Statements. The Minister told us that "It was pointed out to us that the Appraisal of Sustainability was not as clear and as forceful as it needed to be. We agreed with that representation, and, as that was in the overarching national policy statement on energy, we decided it was sensible to re-consult on all of them".[30]

21. The Appraisals of Sustainability are intended to fulfil the requirements of the EU Strategic Environmental Assessment Directive (SEA Directive).[31] According to Friends of the Earth, non-compliance with the Directive potentially leaves the NPSs "open to legal challenge on designation".[32]

22. The AoSs indicate that the energy NPSs should speed up transition to a low-carbon economy; that they will contribute positively to economic competitiveness and security of supply; but that Nationally Significant Infrastructure Projects (NSIPs) will have some negative effects on biodiversity, landscape and heritage. There may also be cumulative negative effects on water quality and health at the regional level.[33]

23. The original AoSs compared the effect of implementing established policies within the framework of an NPS against a business as usual scenario. The previous Committee reported that the section comparing NPSs to "reasonable alternatives", as required by the Strategic Environmental Assessment Directive, did not give proper consideration of alternatives.[34] Article 5(1) of the SEA Directive states that:

Where an environmental assessment is required under Article 3(1), an environmental report shall be prepared in which the likely significant effects on the environment of implementing the plan or programme, and reasonable alternatives taking into account the objectives and the geographical scope of the plan or programme, are identified, described and evaluated.[35]

24. The revised AoSs include consideration of a wider range of alternatives in order to compare the likely environmental, social and economic effects (positive and negative) of the revised draft NPSs with other options. This includes strategic alternatives for the overall goals of energy policy—to maintain safe, secure and affordable energy supplies, together with moving to a low-carbon economy and reducing carbon emissions by at least 80% by 2050. Alternatives include placing a greater emphasis on greenhouse gases mitigation or adopting a different approach to putting transmission and distribution lines underground, or "undergrounding". The AoSs do not reassess the overall policy objective, but the balance of contributing objectives for reaching the overall goal. The Government makes the case for the plans set out in EN-1 to EN-6 on the grounds that the alternatives would perform less well against one or more of the criteria of affordability, security of supply and climate change mitigation.[36]

25. According to the AoS for the revised draft EN-1, placing more emphasis on low-cost energy would be likely to have an adverse effect on energy security (through increased imports and less diversity of supply); increase carbon emissions; have a worse effect on the built and natural environment; but have beneficial effects on the economy and human health in the short term (as more income is made available for other spending).[37] Placing more emphasis on CO2 reduction would have a positive effect on the environment and may compare favourably from a human health and well-being and economic perspective, but this alternative would be difficult to achieve through the planning system without risking security of supply.[38] Placing more emphasis on reducing other environmental impacts would be beneficial for the natural and built environment, but present risks to energy security.[39]

26. Evidence submitted to the Committee by the RSPB suggested that "contrary to European Commission guidance on the application of SEA, alternatives to the NPS policies are not addressed in the same way and to an equivalent level of detail".[40] They argued that the handling of alternatives contravenes the Government's own guidance and that "the appraisals deal with alternatives in such a brief and cursory way that they repeatedly fail to give meaningful information about their likely impacts on the environment".[41]

27. When we raised this point with the Minister, he replied that:

The approach that we take to consultation is very often that the Government express a preference, and a desired way forward [...] but then we will often set out the other alternatives and why we believe our chosen way is a better way of achieving that. Consultation on one option doesn't sound to me much like a consultation, however, so there clearly have to be other options within it.[42]

28. We welcome the improvements that have been made to the Appraisals of Sustainability since the publication of the first draft NPSs, but we note the continuing dissatisfaction in some quarters. We recommend that to avoid charges of non-compliance in the future, the Government publish guidelines on how, in carrying out Appraisals of Sustainability for future NPSs, it intends to ensure fulfilment of the requirements of the Strategic Environmental Assessment Directive. It should then consult separately on this statement of principles and practice. For the present, we consider that the Appraisals of Sustainability will pass muster.

Designating the National Policy Statements

29. Before they can be used to decide planning applications, the NPSs must be "designated" by the Secretary of State. The Planning Act 2008 requires NPSs to undergo parliamentary scrutiny before they are designated, but the Coalition has proposed a further step in the Localism Bill that each NPS should be "ratified" by Parliament.

30. Following the results of the first consultation, on 15 July the Minister of State, Department of Energy and Climate Change told the House in a Written Ministerial Statement that the Government would hold a further consultation on the draft energy NPSs.[43] On 18 October, the Secretary of State announced that consultation and laid the revised draft NPSs before the House.[44] He specified that the relevant period for scrutiny under Section 9(6) of the Planning Act 2008 would end on 31 January 2011. Standing Order No. 152H (Planning: National Policy Statements) stipulates that the designated or appointed Committee must report to the House at least 39 days before the end of the relevant period, in this case Thursday 23 December. However, in order to allow us to complete our scrutiny of the revised draft NPSs, the House agreed a motion that the designated date should be the fourteenth day before the expiry of the relevant period.[45] We are grateful for the Government's co-operation in enabling the House to grant us this added time.

31. The Government accepted our predecessors' recommendation that the revised draft NPSs be subject to a debate in the main Chamber. This took place on Wednesday 1 December.[46]

32. Previously, the Government had suggested that "Committees will have at least four to six weeks after the end of the three-month public consultation period to complete their work […] It means that the interval between the proposal being laid and the Committee producing its report will not be less than four months and will usually be longer than that".[47] Friends of the Earth made this point in their submission to the Committee.[48] This did not happen. In the case of the revised draft NPSs, which were laid before the House on 18 October, the consideration period is 14 weeks (until the end of the relevant period on 31 January) and the public consultation is running alongside our scrutiny. The Localism Bill, which contains amendments to the Planning Act arrangements which are material to our inquiry, was not published until 16 December.

33. We recognise that on this occasion a foreshortened period for scrutiny was acceptable, given that the draft Statements had been subject to full scrutiny by our predecessor Committee. However, we reassert the general expectation that the period of parliamentary scrutiny follows the public consultation period.

The formal ratification procedure

34. The Government has committed itself to providing an opportunity for the House to vote on each NPS prior to formal designation in order, as it sees it, to improve the democratic accountability of the process of deciding on new major infrastructure projects.[49] The procedure for ratification is laid out in Section 109 of the Localism Bill as a set of amendments to the parliamentary requirements under Section 5(4) of the Planning Act 2008. The Localism Bill was published on 13 December 2010.

35. Under Section 109 of the Localism Bill, a new "consideration period" is created. The consideration period consists of twenty one sitting days of the House. For the proposed parliamentary requirements to be met, the consideration period must pass "without the House of Commons resolving during that period that the statement should not be proceeded with" or with the statement being "approved by resolution of the House". According to new Section 9(8) of the Planning Act, which would be introduced by Section 109(13) of the Localism Bill, the consideration period cannot take place until after the end of the relevant period set out in Section 9 of the Planning Act and after the Secretary of State has laid before Parliament a statement setting out his response to any resolution or recommendations made as part of the parliamentary scrutiny. Only after this process is complete can an NPS be designated by the Secretary of State for the purpose of informing planning decisions.

36. We welcome the ratification procedure set out in the Localism Bill for adding a formal stage of parliamentary ratification before a Statement can be finally designated. We note, however, that the proposal is for a form of modified negative resolution procedure. Consequently, there is no guarantee that the House will vote on each individual National Policy Statement, although it is always open to the government to ensure a vote, and, under the new procedures for backbench business a committee or an individual Member could request one. We are not persuaded that this entirely fulfils the Minister's assurances to us, though we can also see the possibility of cases where a full vote on a relatively minor revision seems excessive. We would expect the Backbench Business Committee to give a sympathetic hearing to any request for a debate and vote on an NPS in circumstances where the government of the day appeared to be trying to avoid one.


37. Until the Localism Bill receives Royal Assent, there will be no statutory requirement for NPSs to be ratified, but the Government has committed itself to mirroring the process set out in the Localism Bill in an informal ratification procedure by making "[…] a commitment not to designate NPSs without going through an informal ratification process in which it will consider any votes to be binding".[50]

38. On 16 December, the Secretary of State for Energy and Climate Change, Rt Hon Chris Huhne MP, announced DECC's consultation on Electricity Market Reform.[51] He described a substantial undertaking, which could involve a number of major changes in energy policy. Friends of the Earth suggested to us that "perhaps it would be better if the NPS were ratified at the same time as the Localism Bill is passed".[52] This could provide coherence to the process and, secondly, ensure that the NPSs reflect up-to-date energy policy, "rather than having them ratified in 2011 and being almost immediately out of date".[53] CPRE added that "the same is true for the national planning framework, which is also being consulted on at this stage" and that "There is an opportunity to tie those things together".[54] UK Business Council for Sustainable Energy agreed that "if we are to have a new national planning framework […] and a radical rationalisation of planning policy statements, that all creates a further period of uncertainty. So rationalisation and ratification of the NPSs become even more critical to delivering that stable policy framework, particularly in the short term".[55]

39. We believe that although early ratification of the energy NPSs has some advantages completing the process in advance of the decisions on electricity market reform, the passage of the Localism Bill and the determination of the new planning framework could fail to provide the coherence and certainty that are part of the fundamental rationale for NPSs in the first place.


40. In the debate on 1 December, the Minister told the House that "We are in the course of a three-month consultation, which will finish on 24 January. There will quite possibly be amendments to the NPSs after that, which will be in the final version put before the House for debate, assessment and a vote".[56]

41. As with delegated legislation, there is no procedure for the House to amend a draft NPS directly. We and others can suggest amendments, the Minister may choose whether or not to incorporate them in a revised Statement, but then (under the proposals in the Localism Bill) the House will have to accept the Statement as a whole or reject it as a whole. If the House rejects a Statement whole, a Minister may come back with a further revision, but it will not be clear on what specific grounds the Statement was repudiated. The previous Committee recommended that each NPS "[…] be subject to a debate in the main Chamber on an amendable motion, offering the possibility of a vote"—or even a series of votes.[57] The Minister told the Committee on 30 November that whilst a reasoned amendment to the motion might be possible, amendment to the text of the NPSs would not be encouraged:

You'll vote on each of the six NPSs. You will have a chance to vote individually on them, but my understanding at this point is that it will be an unamendable motion […] perhaps a formal amendment could be accepted by Mr Speaker. But what would be difficult in the planned structure would be to allow, as in the Committee stage of a Bill, potentially many hundreds of amendments to be considered. There cannot be amendment in detail, but if people choose to put down amendments, it will be up to Mr Speaker to decide whether to accept them.[58]

42. The Minister also told the House that "On the question of how the process will move forward, we have assumed that there will be a debate about the national policy statements overall and, at the end of the day, votes on the individual statements, but we do not anticipate the scope for hundreds of amendments to them".[59]

43. The revised draft NPSs include a large number of changes from the original drafts. CPRE pointed out that "minor changes in wording can have major impacts" and stated that "We are concerned that democratic scrutiny of the revised draft NPSs has been made more difficult by these changes being summarised as drafting changes, ostensibly used simply or clarify, rather than changes in policy, which deserve public scrutiny".[60] Other witnesses also attested to the importance of points of detail in the practical effects of the NPSs. Written evidence from RenewableUK also suggested that "there remain a number of points of detail that need to be addressed and have not been changed from the original draft. These points, as detailed in our February 2010 response, contain detailed policy guidance that has the potential to unravel the development process".[61]

44. On the question of the form of debate on the NPSs, the Minister of State told the Committee that "I think the Committee would have a chance to feed into that structure. No firm decision has been made. If you thought it would be important to be able to discuss them individually, I think that the Committee could make its views known to the Leader of the House".[62]

45. We recognise that the process of amendment and scrutiny cannot continue indefinitely. Nor do we see it as a practicable proposition that the body of a National Policy Statement should be able to be amended line by line—they are not legislation and are not drafted in legislative language. However, we do think that the House should be given the opportunity to specify grounds for rejection of a proposed Statement and if necessary to determine the majority view on any such grounds. The House must have ample opportunity to discuss the NPSs in detail. We recommend that the Government makes sufficient time for a full day's debate on the revised draft NPSs, centred on EN-1 (with perhaps a four to six hour debate), but with a business motion providing time for an individual debate or at least an individual decision on each of the technology-specific NPSs. We urge the Chair to consider, where practicable, the scope for consideration of reasoned amendments on each Statement where these constitute a detailed rather than principled ground for rejection. We further recommend strongly that there is provision in a business motion for a separate vote on each of the six energy NPSs.


46. The second major change between the original and the revised draft NPSs will be in the decision-making process for individual planning applications. Since the first NPS consultation, the Government has announced that it will abolish the Infrastructure Planning Commission (IPC) and replace it with a Major Infrastructure Planning Unit (MIPU) within the Planning Inspectorate (an executive agency of DCLG).[63]

47. During the transitional period the IPC will continue to examine applications and will act as the decision maker where the relevant NPSs have been designated. If the NPS has not been designated, the IPC will make a recommendation to the Secretary of State who will make the decision. For applications under active consideration by the IPC when it is abolished, transitional provisions will enable MIPU to continue the examination without interruption. Applicants will not have to restart the process and the statutory timetable for decision-taking should match the current regime.

48. MIPU will assess planning applications on the basis of the NPS policy framework and final decisions will be taken by the Secretary of State on the basis of recommendations by the MIPU. According to a circular letter from Sir Michael Pitt, chairman of the IPC, "the expertise, processes and special character of the IPC will be retained by creating a Major Infrastructure Unit as part of a revised Communities and Local Government (CLG) structure that includes the Planning Inspectorate".[64] The Minister, Charles Hendry MP, told the Committee that the transition from IPC to MIPU would not cause any delays in the planning process and that it would not create significant costs:

In some areas there will be savings from that. In terms of the work, the recommendation will be carried across the Department. We believe that, with our existing resources, we can scrutinise that to make a final decision. At that point, some of the overheads will be reduced.[65]

49. The Minister suggested that ministerial decision-making would increase the democratic accountability of the process, as Ministers could be questioned more effectively by Members and by Select Committees than the IPC could.[66] We considered whether the transfer of responsibility for deciding individual applications from the IPC to the Secretary of State potentially introduced political considerations in the application process as Ministers would act in a quasi-judicial capacity in considering planning applications. However, the Minister insisted that decisions would not be made on a political basis.[67]

50. The change from decision-making by the IPC to the Secretary of State seeks to balance impartiality against democratic accountability and gives the decisive weight to the latter. This carries clear risks of decisions being either actually motivated by prejudice or irrelevant considerations or being perceived to be so. It is important to mitigate this risk. We recommend that the Localism Bill should set out explicit criteria against which the Secretary of State may choose to exercise his or her discretion in deciding a planning application against the advice of the IPC or MIPU. This decision should rest with the Secretary of State for Energy and Climate Change. In addition, the Secretary of State should be required to publish his or her reasons for going against the advice of the IPC or MIPU.

51. We consider that the transitional period in which the IPC will decide planning applications for major energy infrastructure, between the designation of the NPSs and the enactment of the Localism Bill is undesirable. We conclude that the potential hiatus between the designation of any NPSs and the transfer of decision-making powers away from the IPC provides a further reason why the ratification process should be timed to follow royal assent to the Localism Bill so that all future planning applications are decided by the same statutory authority.

30   Q 1 Back

31   Council Directive 2001/42/EC Back

32   Ev 43 Back

33   Department of Energy and Climate Change, Appraisal of Sustainability for the revised draft Overarching National Policy Statement for Energy (EN-1): Main Report, October 2010 Back

34   HC (2009-10) 231, para 125 Back

35   Council Directive 2001/42/EC, Article 5(1) Back

36   Department of Energy and Climate Change, Appraisal of Sustainability for the revised draft Overarching National Policy Statement for Energy (EN-1): Main Report, October 2010, para 3.8.6 Back

37   Department of Energy and Climate Change, Appraisal of Sustainability for the revised draft Overarching National Policy Statement for Energy (EN-1): Main Report, October 2010, Alternative A1 Back

38   Department of Energy and Climate Change, Appraisal of Sustainability for the revised draft Overarching National Policy Statement for Energy (EN-1): Main Report, October 2010, Alternative A3 Back

39   Department of Energy and Climate Change, Appraisal of Sustainability for the revised draft Overarching National Policy Statement for Energy (EN-1): Main Report, October 2010, Alternative A4 Back

40   Ev 39 Back

41   Ev 39 Back

42   Q 51 Back

43   HC Deb, 15 July 2010, col 40WS Back

44 Back

45   HC Deb, 8 December 2010, col 490 Back

46   HC (2009-10) 231, para 5 Back

47   HC Deb, 20 May 2009, col 1537-38 Back

48   Ev 43 Back

49   Department of Energy and Climate Change, The Government response to Parliamentary Scrutiny of the draft National Policy Statements for Energy Infrastructure, October 2010, para 1.12 Back

50   Department of Energy and Climate Change, The Government response to Parliamentary Scrutiny of the draft National Policy Statements for Energy Infrastructure, October 2010, para 4.3 Back

51   HC Deb, 16 December 2010, col 1064 Back

52   Q 125 Back

53   Q 125 Back

54   Q 125 Back

55   Q 166 Back

56   HC Deb, 1 December 2010, col 910 Back

57   HC (2009-10) 231, para 5 Back

58   Qq 2, 4 Back

59   HC Deb, 1 December 2010, col 926 Back

60   Ev 41 Back

61   Ev 47 Back

62   Q 3 Back

63   HC Deb, 29 June 2010, col 35WS Back

64   Norton Rose, Major infrastructure projects under the Coalition Government, 4 June 2010  Back

65   Q 12 Back

66   Q 9 Back

67   Q 22 Back

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