UK: Roundup - Referendums, Incinerator Dropped, Windfarm, NPS Progress

Last Updated: 27 October 2011
Article by Angus Walker

The Planning Act 2008 is one of the most important pieces of legislation affecting major infrastructure projects for many years. The same new procedure will be available for new nuclear power stations, onshore and offshore windfarms, railways, motorways, electricity pylons, and many more high-profile projects.

This is entry number 289, published on 24 October 2011, of a blog on the Planning Act 2008 infrastructure planning and authorisation regime. Click here for a link to the whole blog. If you would like to be notified when the blog is updated, with links sent by email, click here.

Today's entry reports on a miscellany of Planning Act-related news items.

There have been a few miscellaneous developments with the Planning Act regime and the Localism Bill, so here is a round up before I take a few days' leave this week.

Referendums dead

Two backbench Liberal Democrate peers tabled amendments to the Localism Bill to remove the powers for local referendums to be held if enough people petitioned for one. These were debated at the Report Stage and the government did not oppose them. The general referendum power, one of the main 'localist' planks of the Bill, has therefore disappeared. Referendums on some particular subjects covered in the rest of the Bill will still stand - e.g. excessive council tax rises and neighbourhood plans, but the general power is gone.

This was one of the areas that could have interfered with nationally significant infrastructure projects, since although the referendums were not binding, a vote against a particular project might have made it politically difficult to continue with. Previously, the government had introduced amendments to allow local authorities to turn down referendum proposals if they were on certain issues such as planning, but those would only have affected referendums on projects that local authorities supported.

Brig y Cwm application withdrawn

Although Covanta Energy got the green light for its energy from waste project in Bedfordshire ten days ago, today it has decided to withdraw its other application for another plant at Brig y Cwm near Merthyr Tydfil. The reasons given in its letter to the Infrastructure Planning Commission (IPC) are that the approach of the local authorities, that were to supply the plant, to what they will do with their waste have made it unviable.

The IPC had previously refused to allow changes to be made to the application without having to reapply from scratch, extending its examination period by two months in doing so. I suppose it can now reinstate its clean sheet of not having taken longer for any stage than as set out in the Planning Act.

So as they say in America, it's '0 for 2' for applications for nationally significant infrastructure projects in Wales, the IPC having refused to accept the first application ever made to it, for a power line near Neath. Three live applications in England remain on its books.

First wind farm application made

The latest of these is the subject of the next item. Vattenfall ('waterfall'), the energy company owned by the Swedish government, has made the first application to the IPC for a wind farm project, in this case for an extension to the Kentish Flats offshore wind farm that it already operates 5.5 miles from Herne Bay in Kent. The wind farm currently has a capacity of 90MW, and this extension would raise it to 120-141MW.

The threshold for most types of project to be considered 'nationally significant' and therefore subject to the Planning Act regime is a fixed size for either a new project or an extension to a project. In the case of electricity generation, however, an extension of any size is nationally significant if the extended project already is, or would become, over 50MW onshore or 100MW offshore. Thus adding a single turbine to an above-threshold project is considered nationally significant, which seems to me a bit of an anomaly. Arguably, extensions that don't even increase the generating capacity are also caught.

The IPC now has until 11 November to decide whether or not to accept the application.

Final Ports NPS published

After nearly two years since it published its first draft of the Ports National Policy Statement (NPS), the government has finally published a final version today. Unlike the case of the energy NPSs, there is to be no second round of consultation. Unless the House of Commons disapproves of the final draft, it will be adopted ('designated') in 21 days' time, i.e. 14 November.

Its conclusion on need is virtually unchanged - only 'and despite the recent recession' has been added: 'Against this background, and despite the recent recession, the Government believes that there is a compelling need for substantial additional port capacity over the next 20-–30 years, to be met by a combination of development already consented, and development for which applications have yet to be received.'

The revised draft also adds that 'the IPC should start with a presumption in favour of granting consent to applications for ports development', although when similar text appeared in the draft Hazardous Waste NPS the IPC commented that the NPS could not override its balancing act between benefits and adverse impacts.

The prospect of an amendment to the NPS fairly soon is raised by one paragraph: 'The Government may from time to time commission new port freight demand forecasts to be published on its behalf. These new forecasts would then replace the 2006–07 MDS forecasts, and the commentary in the preceding paragraph may be subject to some change in the light of them. It is intended to commission forecasts by 2012.'

No port applications have yet been made to the IPC, but in three weeks' time the policy background will be more firmly in place for doing so.

More IPC advice

Finally, the IPC has recently published an advice note on the 'consultation report' that must be submitted with an application. This is now its 14th advice note. The advice note has a suggested format for the report as an annex.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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