Energy and Climate Change CommitteeSupplementary written evidence submitted by the Minister of State, Department of Energy and Climate Change
Thank you for your letter of 18 March 2013, seeking clarification on a number of points from my oral evidence to the ECC Committee as part of its inquiry into Hafren Power’s Severn Barrage proposal.
In response to the concerns raised by Gregory Shenkman, I believe it is quite clear both from my evidence and the transcript of it that the pages I showed the Committee are the Executive Summary not the business case itself. I am however happy for this to be clarified by a footnote in the transcript and will ask my officials to liaise with the Committee clerk on this matter.
I would like, however, to reiterate the point that I made to you at the hearing that, although we have seen the Hafren Power’s business case, we are not exactly sitting on a pile of compelling data. The document runs to around 124 pages. Of these, five are the executive summary, about 42 form the main body of the text and the remaining are annexes giving general information (for example charts of various programmes such as caisson construction).
The document does not address the various questions which DECC would need to see addressed before it could take a view on the credibility or otherwise of the project. Rather the document sets out, in broad terms, a programme of work which would be required to provide evidence to underpin any application to DECC for support for a hybrid bill.
The type of evidence we would need to see in support of the Hafen Power proposal includes, amongst other things:
In-depth study of environmental impacts. We anticipate that this would require both baseline studies and estimation of likely effects.
Detailed environmental compensation and mitigation plans.
Evidence of financial backers for the pre-planning/development stage.
Detailed information on turbines, including modelling of impacts, plans to move from concept stage to commercialisation including in-situ testing.
Gaining commitment to the project from low head turbine manufacturers.
Clear in-depth analysis of how much of the proposed benefits can be delivered in the UK.
Evidence of readiness for a Hybrid Bill—this includes, at least, major steps towards completing an Environment Impact Assessment and extensive stakeholder consultation.
A clear, understandable breakdown of the level of public support Hafren Power think they would need and a thorough, robust evidence base to support this.
Analysis of impact on upstream ports and navigation as well as detailed mitigation plans.
Detailed evidence supporting job creation figures.
Detailed evidence of the flood impact figures.
I have strongly encouraged Hafren Power to share the document with the Committee on a confidential basis so that the members of the Committee can draw their own conclusions on the document. I am very pleased to hear that they have provided you with a copy of the document.
With regards to the other 3 points for clarification which you raised in your letter:
(1) Can you set out what “full due process” would entail for a project of this scale, including what is involved in the “pre-consent process”? (Q352)
(a) If the Planning Act route is followed, there would be consultation as provided for in the Planning Act: first, on a National Policy Statement (“NPS”) and then on an application for development consent in respect of whatever barrage proposals were brought forward by developers.
The scope of NPS consultation would depend in part on how wide or narrow the focus of the policy statement was and on whether it dealt with the Severn Estuary specifically as a site potentially suitable for development. An NPS would need to set out both the generic case for tidal and wave power and policy on assessing applications. Under the Act, it would also require an “Appraisal of Sustainability”, which would assess the environmental impacts of the technology and, if specifying one (or more) potential sites, the impacts of developing each individual site in some detail, but still at a relatively high level. There may also need to be a high-level appraisal of the NPS from the point of view of the Habitats Directive if there was a potential to affect nature conservation sites designated under that Directive, as there would be for the Severn Estuary.
It is likely that an Appraisal of Sustainability of a draft wave and tidal NPS that referred to the Severn Estuary as a suitable site would need to address the economic consequences of a barrage (eg on the Port of Bristol) as well as what one might more conventionally think of as “environmental” impacts.
The final stage before a new NPS is designated by the Secretary of State is of course approval by Parliament—after scrutiny by Select Committee and in the House of Lords, followed by a vote on the floor of the House.
The “full-process” for a project of this scale submitted as an application to the Secretary of State under the Planning Act 2008 is set out in the Act itself, secondary legislation and in guidance documents issued by the Planning Inspectorate. I attach an internal overview of the process at Annex A.
(b) While we fully understand that interested parties would like to have a similarly detailed picture of how they would be consulted in the event of a barrage project being promoted under a hybrid Bill, we are not able to give this at present. First, the consultation processes that might lead to a hybrid Bill are not prescribed in detail by legislation to the same degree as is the case under the Planning Act—although there is provision in the Standing Orders of both Houses for accommodating the environmental impact assessment process. Secondly the process would depend on whether Government were to decide that there should be a Severn barrage or similar project and that Hafren’s proposals were the best proposals for such a project.
We have not yet reached a decision on these points and cannot, therefore, be specific on consultation. What we can say is that there would be consultation, and that any consultations would have to be designed and carried out having regard to the same underlying principles—many of them dictated by the requirements of EU law as to public participation in environmental decision-making—that have shaped the relevant provisions of the Planning Act. Within any consultation there would be opportunities for interested parties, both locally and nationally, to comment on both the principle of Government support for a barrage scheme and on the details of any scheme which was proposed to be the subject of a hybrid Bill. Such consultation would have to involve both economic and environmental considerations.
(2) Who would be the “lead competent authority” for making a decision on the barrage under the Habitats Directive derogation process of IROPI? (Q363–368)
(3) Could DECC provide an update on the discussions with the Swansea Bay Lagoon developers?
I believe that my letter of 14 March, which I enclose, has answered these two points but please do let me know if you request further information or any clarification.
I trust this answer the queries the Committee had but do not hesitate to contact me or my officials if we can be of further help with this inquiry.
March 2013
Annex A
PRE-APPLICATION PROCESS
Consultation
Part 5 of the Planning Act sets out statutory requirements for applicants to engage in pre-application consultation with local communities, local authorities and those who would be directly affected by the project. The front-loaded emphasis of consultation in the major infrastructure planning regime is designed to ensure a more transparent and efficient examination process.
Pre-application consultation […] should […] be carried out to a certain standard. Issues about the adequacy of consultation should be considered prior to the Inspectorate.
Applicants are required under section 37 of the Planning Act to produce a consultation report alongside their application, which details how they have complied with the consultation requirements set out in the Act.
The Secretary of State [Note—in practice PINS] will consider this report when deciding whether or not the applicant has complied with the pre-application consultation requirements and, ultimately, whether or not an application can be accepted
Environmental Impact Assessment
Most major infrastructure projects will fall within the scope of the Environmental Impact Assessment Directive, and will require an Environmental Statement to be prepared and submitted as part of the application. At an early stage the applicant needs to either inform the Secretary of State of their intention to submit an Environmental Statement along with its application, or where the developer is unsure whether an Environmental Statement is needed, that they intend to seek a screening opinion. A screening opinion should be sought as early as is possible for the environmental effects of the proposed development to be properly considered. The Secretary of State can also, through a scoping opinion, advise applicants on the content of any required Environmental Statement. The scoping opinion will be based on advice received from statutory consultees and other relevant organisations.
For major infrastructure projects, the Environmental Impact Assessment process is governed by the Infrastructure Planning (Environmental Impact Assessment) Regulations 2009. These Regulations ensure that the pre-application publicity and consultation requirements for the Environmental Impact Assessment process are consistent with those of the Planning Act.
Habitats Regulations Assessment
When considering whether a project has the potential to significantly affect the integrity of a site protected under the Habitats Regulations18 or any Ramsar site, the applicant must provide a report (normally in the form of a Habitats Regulations Assessment), with the application showing the site(s) that may be affected together with sufficient information to enable the decision-maker to make an appropriate assessment, if required. It is the applicant’s responsibility to consult with the relevant statutory bodies and, if they consider it necessary, with any relevant non-statutory nature conservation bodies, in order to gather evidence for the Habitats Regulations Assessment. This consultation should take place as early as possible in the pre-application process.
CONSENTING PROCESS
Application
Having completed the pre-application processes outlined above, the applicant submits an application for a Development Consent Order (DCO) with the appropriate reports and assessments—including a draft of the proposed DCO—to PINS (acting on behalf of SoS). The form of the application is set out in secondary legislation. PINS has 28 days to decide whether to accept or reject the application.
Pre-examination
If accepted, PINS advertises the application and invites interested parties to register with PINS. The developer and PINS will agree a date on which registration should close. There is no statutory time-limit and it may be around four months. After close of registration, PINS will hold a pre-examination hearing to set out the examination process (eg how many Inspectors will be involved, scheduled public examination hearings etc).
Examination
The formal examination period begins the day after the pre-examination period and lasts up to six months. PINS will take evidence from interested parties, hold public hearings on the application and may seek further information or advice from interested parties and statutory consultees.
PINS Recommendation
After examination, PINS will consider the evidence and make a recommendation to the Secretary of State on whether to grant a DCO. There is a deadline of three months from the end of the examination for submission of a Recommendation to SoS.
Determination
The SoS has a further three months in which to consider the Recommendation from PINS and determine either to make a DCO or refuse consent.
At the end of this period, SoS will make a DCO, or issue a report giving reasons why a DCO has been refused.
Post-Determination Challenge Period
After a DCO is made, there is a period of 6 weeks during which the DCO may be legally challenged (in effect a judicial review). If there is a JR, consent may be delayed for between one and two years.
Hybrid Bills
For a Hybrid Bill on an energy project, the Secretary of State for Energy and Climate Change would be the “Competent Authority” for Habitats Regulations Assessments and for approval on IROPI grounds:
Environmental Impact Assessments would fall within the general provisions of the Town and Country Planning (Environmental Impact Assessment) Regulations 2011 (2011/1824). These regulations implement requirements for EIAs, including publicity and consultation, set out in the EIA directive 2011/92/EU.