Growth and Infrastructure Bill

Memorandum submitted by RenewableUK (GIB 30)

This document outlines RenewableUK’s written evidence on the Growth and Infrastructure.

RenewableUK is the trade and professional body for the UK wind and marine renewables industries. Formed in 1978, and with over 680 members, RenewableUK is the leading renewable energy trade association in the UK. Wind has been the world's fastest growing renewable energy source for the last seven years, and this trend is expected to continue with falling costs of wind energy and the urgent international need to tackle CO2 emissions to prevent climate change.

Summary

RenewableUK generally welcome these provisions, particularly those regarding:

· Limits on power to require information with planning applications (Clause 4)

· The variation of consents under Electricity Act 1989 and Consents under Electricity Act 1989: deemed planning permission (Clauses 17-18)

· Special parliamentary procedure in cases under the Planning Act 2008 and Modifications of special parliamentary procedure in certain cases (Clauses 19-20)

We also welcome the Government’s proposed provisions under Clause 1, for the option to make planning applications directly to the Secretary of State. However, we would encourage the Government to further consider methods of addressing the fundamental shortage of planning resource and expertise within Local Planning Authorities, particularly with regard to energy matters.

Introduction

1. RenewableUK welcomes the opportunity to comment on the Growth and Infrastructure Bill. Planning for onshore wind at local authority level remains challenging for many developers, with a number of schemes going to appeal. Notwithstanding comments on individual provisions below, we welcome the aim of enabling the planning process to help unlock investment and build infrastructure crucial for security of energy supply and decarbonisation, while remaining committed to the principles of local decision-making and local accountability.

2. We note that periods of reform are often followed by periods of uncertainty while the reforms are gradually bedded in and their implications fully understood. Such uncertainty should be kept to a minimum, with any further proposals for reform and considered in light of other ongoing and emerging reforms [1] , and secondly, to ensure that reforms are well-defined and easy for local authorities, developers and communities to understand and implement swiftly and effectively, perhaps through the provision of accompanying guidance.

3. We further note that not all clauses would apply across the UK. Planning is, correctly in our view, a devolved matter. Nevertheless, consistency so far as this is possible would assist developers, so we would ask that the Government discuss these and future reforms with Ministers in the devolved administrations with a view to establishing coordinated and consistent reform programmes, as far as this is possible.

4. With these caveats in mind, we turn to individual provisions of the Bill.

Clause 1: Option to make planning application directly to the Secretary of State

5. Approval rates at Local Planning Authority (LPA) level remain alarmingly low in England with c.40% of capacity approved in 2011-12, albeit up from the previous year’s record low of c.26%. With a high number of applicants forced to take projects to appeal, and a relatively high rate of approval at planning appeal, onshore wind developers in England feel that in some respects, the local planning system could be said to be failing onshore renewables. We are therefore sympathetic to the Government’s proposals to provide developers with the option of applying to the Secretary of State (SoS) in prescribed circumstances. However, we have reservations as to whether this approach will help address fundamental problems of under resourcing in local authorities.

6. As noted above, RenewableUK remains committed to the principles of local decision-making and local accountability. We therefore welcome proposals to limit the application of these provisions to only the most extreme circumstances, where a LPA can objectively and definitively be shown to be stifling development for reasons that are overtly flippant, unduly political or otherwise unsound.

7. However, we feel that further work may be required to examine the causes of poor performance. Well publicised resource constraints, a lack of expertise in some planning departments and significant policy shake-up with the revocation of the Regional Spatial Strategies (RSSs) and introduction of the National P lanning Policy Framework (NPPF) will be contributing to poor performance. In such instances, given the primacy of the principle of local decision-making, it is felt that fixing these problems should be an equal priority. Extra guidance under the NPPF, for example, would be a relatively painless means of enabling LPAs to improve policy decisions, and the development sector is still awaiting clarity from Government on whether it intends to introduce, or allow the introduction, of further guidance with material weight in decision-making.

8. Finally, whilst recourse to the SoS may be appropriate in extreme circumstances, we feel that some form of incentive mechanism for LPAs should be introduced to complement this proposal and help ensure that applying to the SoS would not be necessary in the first place. Provisions to allow retention of business rates in the Local Government Finance Act, for example, could be reserved only for those authorities where planning performance is not deemed unacceptably poor.

9. We also remain concerned around the resourcing implications this may have on the Planning Inspectorate (PINS). PINS is already dealing with enhanced levels of case works as plans are updated to conform with the NPPF. This process will inevitably drag on beyond the April 2013 deadline. More applications are expected to go to appeal as the policies in updated plans are tested for the first time.

10. Within PINS, the National Infrastructure Directorate’s remit is set to expand under other provisions of the Bill (e.g. Clause 21). Clause 1 would create yet more casework and, moreover, as it is discretionary, not in a way that is easily visible. This will present a great challenge in terms of PINS resourcing, so we seek clarity from Government that exercise of this power will firstly not result in poorer performance than the LPA route, nor adversely affect PINS’ current operations, including important local plan inquiries and appeal decisions.

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

11. We suggest that any award of costs regimes are transparent and able to be applied consistently across the board. Additional guidance or planning circulars may therefore be required.

Clause 4: Limits on power to require information with planning applications

12. This principle is welcomed, but the wording of the Bill raises concerns over procedure and enforceability. The success of this provision depends ultimately on a developer’s willingness to challenge in the courts. Such proceedings will only be pursued in extreme circumstances, with developers just as likely to accede the LPA’s request where this constitutes the easier route. We therefore suggest that some streamlined procedural means of challenging unreasonable requests be introduced, perhaps by recourse to independent third-party (an arbitrator, PINS [2] , the Local Authority Ombudsman or upper-tier authority where there is both a county and district council, for example).

13. In addition, the present wording of the materiality test in the final paragraph of the Clause seemingly fails to account for information on a matter which is indeed material, but where the LPA is demanding an unreasonable or disproportionate level of detail. We submit that this is as significant an issue as flippant requests for irrelevant information and request that the wording of the Clause is therefore looked at again.

14. Finally, whilst it is accepted that ‘reasonable’ may ultimately be defined in the courts, we suggest that as much clarity as possible is provided upfront to applicants and LPAs to avoid the need for messy legal proceedings should it ultimately come down to that. Guidance or circulars should set out the Government’s expectations as to what it considers reasonable for a range of development classes of various sizes and these expectations should be developed in tandem with industry, LPAs and professional planning bodies.

Clause 5: Modification or discharge of affordable housing requirements

15. Government should consider widening the scope of this Clause to obligations other than those relating to affordable housing.

Clause 6: Disposals of land held for planning purposes

16. No comment.

Clause 7: Electronic communications code: the need to promote growth

17. It should be noted that communications infrastructure has the potential to interact or interfere with energy infrastructure, particularly overhead and underground electrical lines. We request that any amendments to the Telecommunications Act or applicability of the Electronic Communications Code does not allow, unintentionally or otherwise, for unnecessary interference with such infrastructure nor encourage potentially costly disputes to arise where such interests would conflict.

Clause 8: Periodic review of mineral planning permissions

18. No comment.

Clauses 9-11: Public paths and highways

19. These proposals are welcomed and should remove what is at present a wholly unnecessary burden for developers as well as providing early clarity to communities and users of the affected thoroughfares. Whilst perhaps not appropriate for this Bill, we would ask the Government to look to take a more radical approach to parallel consents with a view to following the aspirations (if not always the execution) of the Planning Act 2008, whereby disparate consents are considered collectively under a single application.

Clauses 12-14: Town and Village Greens and applications to amend registers

20. We welcome these proposals but note that the operation of the amended regime has the potential for considerable acrimony and delay in the courts. The final list of the trigger events should effectively balance the rights of developers with those of locals wishing to designate public spaces.

21. In addition, as any finite list of such triggers is always likely to miss out some genuine cases where registration is inappropriate, the Bill should also introduce bespoke streamlined appeal procedures where perverse intentions for designation are suspected but where the triggers are yet to be activated (a planning application is likely to be publicised fairly late in the day relative to initial assessment activities and discussions with landowners in the case of onshore wind, for example).

22. Greater clarity as to the relationship between these provisions and those on Assets of Community Value, as set out within the Localism Act, would also be of benefit.

Clauses 15-16: Power stations and conditions of licences under Gas Act

23. No comment.

Clause 17-18: Variation of consents under Electricity Act 1989 & Consents under Electricity Act 1989: deemed planning permission

24. We strongly welcome these proposals and fully endorse the Government’s reasons for pursuing them. The opportunity for significant benefits in connection with s36/37 amendments should not be missed, so we welcome the opportunity to comment on the forthcoming regulations in due course and would urge that Government is ambitious in its aims by introducing a process that is swift and predictable, but also robust and thorough to avoid unnecessary legal challenges.

25. We would add that this Bill presents an opportunity to clean up the lingering Electricity Act regimes, so we ask Government to consider using this clause to introduce statutory timeframes for the determination of historic s36/37 applications, too many of which remain undetermined many years after the application was made.

Clauses 19-20: Special parliamentary procedure in cases under the Planning Act 2008 & Modifications of special parliamentary procedure in certain cases

26. We welcome Government’s limiting of the Special Parliamentary Procedures (SPP) in respect of compulsory acquisition of local authority or statutory undertaker land . However, we also suggest that a full impact assessment is made in order to assess whether existing statutory undertakers’ land (and apparatus) are afforded sufficient protection once ss128-9 of the Planning Act 2008 are repealed. Whilst the current drafting of these sections of the 2008 Act are considered to be inappropriate, the potential to impede existing essential operations through compulsory acquisition of land should nevertheless be given special consideration as part of the Development Consent Order (DCO) examination. It may therefore be appropriate to make express provision for a hearing on these matters where they are raised by affected landowners and/or to revise the legal tests that the acquiring party would need to meet in order to be able to acquire such land compulsorily. Alternatively, acquisition of such land could be made subject to mandatory DCO requirements [3] where there is any question of negative impacts on present or future use of land for the carrying out of the undertaking.

27. We also think that there is a strong case for the repeal of SPP for nationally significant infrastructure projects (NSIPs) completely – on the grounds that DCO process is now determined by the Secretary of State and any objections by statutory undertaker or local authority to their land being compulsorily acquired can be considered as part of the DCO process.   

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

28. We understand that the Government will be consulting shortly on what type of projects will be nationally significant business and commercial projects. We think that there would be benefit in commercial / business projects being considered together with an associated infrastructure project (where the two development types are connected as part of the same development proposal, for example) but this is prevented within the current drafting of the Bill.

Clause 22: Postponement of compilation of rating lists to 2017

29. No comment.

Clause 23: Employee-owners

30. RenewableUK has encouraged its member companies to express a view in line with their own corporate aspirations.

The need for policy stability

31. While we support a number of provisions in the Bill, we would like to reiterate the need for a stable policy environment to ensure the continued investment in renewables in the UK.

November 2012


[1] Proposed changes to the EIA Directive and the level of extra casework being passed to the Planning Inspectorate as a result of the NPPF, for example. More details below.

[2] Noting, however, the points made above around resourcing.

[3] In the Planning Act 2008 s120 definition, akin to planning conditions.

Prepared 21st November 2012