Growth and Infrastructure Bill

Memorandum submitted by National Grid plc (GIB 29)

Summary

1. National Grid is expected to invest around £35 billion in energy networks over the next eight years and we are therefore a major contributor to UK economic growth and a major ‘consumer’ of the planning and consents regime. We strongly support a planning and consenting regime that facilitates the development of energy infrastructure in a timely, economical and responsible manner. The Growth and Infrastructure Bill provides an opportunity for further consolidation and selective streamlining of the existing planning and consenting regimes.

2. Please find below our comments on a number of clauses in the Bill which we would like to bring to the Committee’s attention. We particularly welcome the proposals regarding the consenting regime for energy infrastructure projects under the Electricity Act 1989 (clauses 17-18) as well as the amendments to the Special Parliamentary Procedure (clauses 19-20). Subject to the limited additional changes we suggest below, we consider that these measures help to streamline to the planning regime for major infrastructure, whilst maintaining fair, transparent and robust decision making processes.

Introductory remarks

3. National Grid’s purpose is to connect people and businesses to the energy they use. Given the changing face of energy markets, the legal commitment to address climate change and the age of National Grid’s transmission assets we need to undertake a substantial amount of new energy infrastructure investment and development. National Grid is expected (in line with Ofgem’s initial RIIO proposals) to invest around £35 billion in regulated networks over the eight years to 2021 primarily in core UK transmission infrastructure. We are therefore a major contributor to UK economic growth and a major ‘consumer’ of the planning and consents regime.

4. In the context of the sheer scale of the energy challenge, it is important to have a planning system that facilitates the development of energy infrastructure in a timely, economical and responsible manner. National Grid has been a supporter of the planning system for Nationally Significant Infrastructure Projects under the Planning Act 2008, including the National Policy Statements and the streamlined decision making process that the Act established. We have also been supportive of the consolidation of national planning policy through the National Planning Policy Framework.

5. The Growth and Infrastructure Bill provides an opportunity for further consolidation and selective streamlining of the existing planning and consenting regimes. This opportunity should be used to ensure there is a clear legal framework which facilitates the provision of vital energy infrastructure in order to maintain security of energy supplies, facilitate the transition to a low carbon future, support economic growth and keep energy prices affordable.

6. We particularly welcome the proposals regarding the consenting regime for energy infrastructure projects under the Electricity Act 1989 (clauses 17-18) as well as the amendments to the Special Parliamentary Procedure (clauses 19-20). Subject to the limited additional changes we suggest below, we consider that these measures help to streamline to the planning regime for major infrastructure, whilst maintaining fair, transparent and robust decision making processes.

Representations on certain clauses in the Bill

7. Against this backdrop, please find below our views on a number of clauses in the Bill which we would like to bring to the Committee’s attention. Where applicable, we include suggestions as to how the Bill could be amended in order to provide further clarity and ensure the full delivery of its objectives.

Clauses 2-3 – Planning proceedings & compulsory purchase inquiries: costs

8. We welcome the introduction of appropriate mechanisms for awarding costs between parties at planning appeals etc. (clauses 2-3) but clause 2 should be strengthened so that the cost incurred to other parties can be recovered where a third party acts unreasonably.

9. We agree that there should be a power to recover the cost incurred to the Secretary of State and other parties from a party which cancels a hearing etc. at short notice or that fails to attend. This can help to ensure that these important procedures are not misused, for example, as a delay tactic simply to undermine legitimate proposals.

10. We are therefore particularly supportive of the power in clause 3 which allows the Secretary of State to award costs where an inquiry is cancelled or where a party does not appear at a compulsory purchase order inquiry. This power would provide an appropriate mechanism through which both the Secretary of State and other parties could recover their costs where another party acts unreasonably.

11. We believe, however, that clause 2 does not go far enough. The issue of late cancellations or failure to attend also arises in respect of the planning proceedings covered by clause 2. As currently drafted, the Bill would allow the Secretary of State only to recover his/her own cost where an inquiry or hearing has been arranged but does not take place. It would seem appropriate to extend this power so that the cost incurred to other parties could also be recovered, as would be the case in relation to compulsory purchase inquiries under clause 3.

Clause 4 – Limit on power to require information with planning applications

12. National Grid supports the provisions in clause 4 regarding information requirements for planning applications. We agree that planning authorities need to be able to require an appropriate level of information to determine planning applications in an efficient and sound manner. At the same time, it is important that applicants are only requested to provide such information that should reasonably be expected and that relates to matters which are likely to be material planning considerations.

13. We agree that information requests should be reasonable, having regard particularly to the nature and scale of the proposed development, and that only such information is requested that can reasonably be expected to be material in the determination of the application in question.

Clause 17 – Variation of consents under the Electricity Act 1989

14. We consider that there should be greater consistency between the changes to s36 of the Electricity Act 1989 and the provisions under s37 of that Act. Clause 17 introduces a power which allows the variation of consents for electricity generating stations granted under s36 of the 1989 Act. The Bill also provides that the person that benefits from an existing s36 consent can apply to the relevant consenting body for a variation of that consent. The Bill also makes provision in relation to procedural aspects of applications for s36 consent variation.

15. Under s37 of the 1989 Act, there is already a power to vary consents for electric lines. However, s37 in its current form does not state explicitly that the person benefiting from an existing s37 can apply for a variation of that consent, neither does s37 currently make provision for the process to be followed when an application for a variation is received.

16. For clarity and consistency with the changes proposed in relation to s36, the Bill should also make it explicit that the person benefiting from a s37 consent may make an application for a variation of that consent. This could be achieved by essentially mirroring the provisions in clause 17 relating to s36 consents.

Clause 18 – Consents under Electricity Act 1989: deemed planning permission

17. We welcome the provisions in clause 18 but believe further changes are needed to ensure the powers regarding deemed planning permission apply in the same way when granting or varying a s36/s37 consent.

18. Under the existing legislation, the Secretary of State, when granting consent under s36 or s37 of the Electricity Act 1989, can direct that planning permission be deemed to be granted for certain development. In conjunction with the changes proposed under clause 17, clause 18 provides that the power to grant deemed planning permission should also apply when varying a s36 or s37 consent.

19. We agree that the power to grant deemed planning permission should apply to both the granting and the variation of a s36 or s37 consent. However, it would appear that, as currently drafted, the power to grant deemed planning permission when varying a s36/s37 consent would apply to England but not to Wales, whilst that existing power when granting a s36/s37 consent would apply to both England and Wales (i.e. s90(2) of the Town and Country Planning Act 1990, as amended by clause 18(3) of the Growth and Infrastructure Bill, does refer to "granting" only). For consistency, the Bill should be amended so that the powers regarding deemed planning permission apply in the same way when granting or varying a s36/s37 consent.

Clauses 19-20 – Special Parliamentary Procedure

20. We support the proposed amendments to the Special Parliamentary Procedure (clauses 19-20). The objective of the Planning Act 2008 has been to provide a consenting process for Nationally Significant Infrastructure Projects (NSIPs) which enables streamlined decision making, whilst ensuring a fair and transparent process as well as appropriate stakeholder and community engagement. We have been supportive of the Planning Act and of the changes to the planning regime for NSIPs introduced through the Localism Act 2011. We strongly believe that a clear and streamlined planning framework is essential to attract the investment that is needed to deliver the sustained multi-billion pound infrastructure programme necessary to meet the country’s energy and climate change goals.

21. The Planning Act 2008 provides a fair, transparent and robust process where matters relating to the compulsory acquisition of land associated with an NSIP could be fully considered and scrutinised. Following the Localism Act 2011, all applications for development consent under the 2008 Act are now determined by the Secretary of State. We consider that it is appropriate to amend the Special Parliamentary Procedure (SPP) to reflect these important changes to the decision making arrangements as well as the practical experience gained since the 2008 Act was introduced.

22. We are therefore supportive of the proposed changes in relation to local authority, statutory undertaker and open space land (clause 19). It is worth noting that National Grid’s regulated businesses are classed as statutory undertakers, so our own operational land could be affected by these changes. We are satisfied that the Planning Act 2008 provides a robust, transparent and fair process for dealing with these compulsory purchase matters as an integral part of the examination and consenting process, without the need for a separate SPP.

23. In this context, we also support the modifications to the SPP itself (clause 20) as this ensures that consideration under the procedure is focused and limited to the issue that triggered it, i.e. the compulsory acquisition of special land or of rights over such land. This change helps to ensure consistency between the SPP legislation and the Planning Act 2008 as well as the Acquisition of Land Act 1981.

Clause 21 – Bringing business and commercial projects within the Planning Act 2008 regime

24. We consider that any thresholds for business and commercial development must be sufficiently high so that only those projects are brought within the 2008 Act that are genuinely of national significance. In addition, the Bill should be amended to ensure consistency of the provisions regarding "qualifying requests" under s35 of the Planning Act 2008.

A) The principle of including business and commercial development

25. National Grid does not have any strong views regarding the principle of bringing certain business and commercial development within the 2008 Act. However, depending on how the thresholds for these types of development will be set, these changes could potentially lead to a significant increase in the number of applications that are made under the 2008 Act.

26. There would be a need to ensure that the Planning Inspectorate has sufficient resources to deal with any increase in the number of NSIPs that may come before it. Otherwise there would be a risk that resources could be diverted away from other nationally significant infrastructure projects which could delay these important projects. It is therefore important that the thresholds for business and commercial development are set at a sufficiently high level so that only those projects are brought within the 2008 Act that are genuinely of national significance.

B) Provisions regarding "qualifying requests" under s35 of the 2008 Act

27. Clause 21 amends s35 of the 2008 Act regarding the power of the Secretary of State to direct that a project should be treated under the NSIP regime. As part of this, the Bill makes new provisions regarding the ability to make a "qualifying request" to the Secretary of State in relation to business and commercial development.

28. However, there are inconsistencies between the arrangements in the Bill for qualifying requests in relation to business and commercial development and the existing arrangements for qualifying requests regarding other the types of development under the 2008 Act (as amended by the Localism Act 2011). The Bill limits the ability to make a qualifying request in respect of business and commercial development to the (prospective) applicant/developer. In contrast, anyone could make a qualifying request in relation to any of the other types of development covered by the 2008 Act (energy, transport etc.).

29. When the Localism Bill was drafted, National Grid and others argued that the ability to make a qualifying request should not be open to anyone but should be limited to the (prospective) applicant and the relevant local authority. At the time, this was rejected. However, given that the Growth and Infrastructure Bill now introduces restricted arrangements for business and commercial development, the opportunity should be taken to make this consistent and apply restricted arrangements for qualifying request to all types of infrastructure covered by the Planning Act.

30. In addition, the Bill should also be used to address the current problem in the 2008 Act (as amended) that the ability to make a qualifying request does not stop, even when an application has been made. Requests to the Secretary of State to issue a direction under s35 could continue to be made after submission of an application, well into the stage of considering an application. This could cause unnecessary interference with an application and create ongoing uncertainty.

31. In order to achieve consistency and to streamline the process, the provisions in the Bill in relation to qualifying requests should be amended as follows:-

i) the ability to make a qualifying request in relation to all types of infrastructure development covered by the 2008 Act should be restricted to the (prospective) applicant/developer and the ‘relevant authority’, i.e. the authority to whom the application would ordinarily be made; and

ii) there should be a cut-off date for making a qualifying request, namely the date that the application is made – whereby no further requests can be made after that date.

Conclusions

32. National Grid is a strong supporter of a planning and consenting regime that facilitates the development of energy infrastructure in a timely, economical and responsible manner, whilst ensuring fair, transparent and robust decision making processes. The Growth and Infrastructure Bill provides an opportunity for further consolidation and selective streamlining of the existing planning and consenting regimes. This opportunity should be used to ensure there is a clear legal framework which facilitates the provision of vital energy infrastructure in order to maintain security of energy supplies, facilitate the transition to a low carbon future, support economic growth and keep energy prices affordable.

November 2012

Prepared 22nd November 2012