An increasingly complex picture is emerging about who will be taking decisions on large energy projects in future, with the Planning (Wales) Act 2015 about to appear on the statute books and announcements in the Queen’s Speech about further energy devolution, alongside proposed changes in the rules for onshore windfarms. This blog post explores some of these complexities and highlights some of the issues that still need to be sorted out.
The Planning (Wales) Bill will shortly receive Royal Assent and the Welsh Government has already started consulting on what will be a ‘development of national significance’ (DNS) where it will be responsible for deciding on planning applications. It aims to have the new consenting regime in place by early next year. The consultation proposes that energy generation projects of between 25 and 50 Megawatts (MW) will be considered as DNS, along with certain associated development and secondary consents.
Meanwhile the Queen’s Speech announced a new Wales Bill that will devolve responsibility for onshore energy generating projects of up to 350 MW to Wales. It will also devolve decisions on energy projects up to the same size threshold in Welsh territorial waters. The 350 MW limit was recommended by the Silk Commission on the basis that it would bring most renewable energy schemes within a Welsh system, but larger schemes of ‘strategic importance’ would still be decided by the UK Government. The Silk Commission report cites the example of the Swansea Tidal Lagoon (320 MW) as one that would in future be decided in Wales. The latest proposal for a Tidal Lagoon near Cardiff is much larger (1,800-2,800 MW) and so would still be decided outside of Wales.
The Commission also recommended that in deciding on these ‘strategic’ projects the UK Government should take into account the policies of the Welsh Government. At present these are decided primarily using the National Policy Statements on Energy infrastructure approved by the UK Parliament during the 2010-2015 Conservative and Liberal Democrat coalition government. The law is clear that in a case of conflict between these policy statements and Welsh planning policy, the former should take precedence. It remains to be seen whether, as well as devolving powers for projects of up to 350 MW, a way of giving greater weight to Welsh planning policies will be found for UK Government decisions on larger projects.
Once these powers are transferred, the Welsh Government will have to decide whether or not to bring these larger (50-350 MW) energy schemes within the DNS definition. This is hinted at in the current consultation paper and the new Planning Act will give them the power to vary the definition. If this happens it will mean that a somewhat different process will apply to energy projects of this size in Wales compared to England, unless further changes are made to the approval system. The requirements for pre-application consultation on these Nationally Significant Infrastructure Projects (NSIPs) in England for example will be more rigorous than those that the Welsh Government is currently proposing for DNS schemes in Wales. Also the statutory timescale for making decisions on accepted DNS applications of up to 36 weeks is shorter than the NSIP timescale of around 12-15 months.
A further complication is the announcement in the Queen’s Speech that a new Energy Bill will remove onshore windfarms of over 50 MW from the NSIP regime. The background notes say this will mean that the primary decision maker for onshore wind consents of over 50 MW in both England and Wales will be the local planning authority rather than the UK Secretary of State. This will be true, but only if the Welsh Government doesn’t subsequently decide to include them in the DNS definition, which seems unlikely given that 25-50 MW energy schemes are already considered to be of national significance. One possible option would be to move the lower threshold back up to 50 MW. The National Policy Statements referred to above will presumably also need revising and approval by the new UK Parliament to reflect taking onshore wind out of the NSIP regime.
Gareth Barton, associate director at planning consultancy Turley’s Cardiff office was quoted in the Planning press last week as saying:
“I just can’t imagine you would get to a situation where Welsh ministers would determine schemes of 25 to 50 megawatts, but if you had a 100-megawatt scheme, it would be determined by Powys or Carmarthenshire rather than at a national level. It wouldn’t make any sense.
“Subject to timing, devolution of further powers through the Wales Bill should avoid this issue, resulting in all schemes between 25 and 350 megawatts being determined by the Welsh Ministers, while all onshore wind decisions in England would be made at the local level.”
The changes announced in the Queen’s Speech could however still mean that a Welsh local planning authority would be making a decision on a very large windfarm proposal of more than 350 MW, as well as dealing with those below 25 MW, with the Welsh Government deciding on those in between. The largest windfarm development approved to date in Wales at Pen y Cymoedd (299 MW) is not too far short of this upper limit. There is already a 350 MW onshore windfarm operating in Scotland – the Clyde onshore windfarm.
Author: Graham Winter
Contributing author: Louise Smith