UK: Referendum On Infrastructure Project Runs Into Difficulties

Last Updated: 20 August 2012
Article by Angus Walker

One of the forthcoming applications for a nationally significant infrastructure project (NSIP) under the Planning Act 2008 is for a biomass plant in Southampton, being promoted by Helius Energy.  The project website is here.  The promoter has carried out two rounds of pre-application consultation and is expected to make the application in the final quarter of this year.

Meanwhile the local authority, Southampton City Council, has decided to carry out a referendum on the project in the two wards affected.  This is interesting because although the power for electors to cause referendums to be held was removed from the Localism Bill at a late stage, there was already a power for a local authority to hold a (non-binding) referendum of its own volition.  Parish councils also have an existing power to hold referendums.

The council resolved to hold the referendum in July, and was hoping to save costs by combining it with the existing election of a police and crime commissioner that it is holding jointly with Hampshire, Portsmouth and the Isle of Wight on 15 November.  However it has had legal advice to the effect that the elections cannot be combined and would have to be held separately, increasing the cost of the referendum from £5,000 to £45,000.

The council has asked the government to amend the Representation of the People Act 1985 to allow the polls to be held concurrently.  Even if this can be achieved by secondary legislation I doubt that it would happen in time.  The council may still decide to hold it separately, of course.

Although a referendum would be non-binding, it is interesting to consider what effect it might have on an application for an NSIP.  First, local fears about a project are not generally able to be a factor in a planning decision unless backed up by evidence, but the Planning Act changes the test for such factors from an objective one of 'material considerations' to a subjective one of the decision-maker thinking them 'important and relevant', which may or may not make a difference. Even if it can be taken into account, local opposition would weigh in the 'adverse impact' pan of the scales, but together with other factors it would still have to exceed the 'benefit' side, which may be difficult given the stated urgent need for new electricity generation.

A parallel can be drawn with a proposed energy from waste project in west Norfolk, where a referendum was held by King's Lynn and West Norfolk Council in early 2011 (cost: £53,000).  The result was 92% against from a 61% turnout, but Norfolk County Council nevertheless decided it was minded to approve the project in June this year.  It now awaits a decision by Secretary of State for Communities and Local Government Eric Pickles as to whether he calls the decision in for his own determination or not.

That project is below the 50MW threshold that would make it nationally significant as its capacity will be 24.2MW, but again the decision-maker is different from the referendum-holder.

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