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New planning regime faces uncertain future The consultation on the draft energy National Planning Statements has just concluded, but with legal challenges promised and a general election looming, the long-term future of the new planning regime is far from certain, says Roger Milne. This week, anti-nuclear power activists from the People Power not Nuclear Power Coalition blockaded the Sizewell nuclear power station site in Suffolk. They were protesting against what they claimed was a "flawed" government consultation on nuclear new-build. The consultation ended on 22 February, along with consultations on the rest of the suite of draft energy National Policy Statements (NPSs). Protests notwithstanding, ministers and utilities are acutely aware that the new planning regime for nationally significant projects such as new power stations, overhead transmission lines and reservoirs is facing a fraught period. MPs have just finished taking evidence on the draft energy NPSs and are due to report by 28 March, immediately before the Easter parliamentary recess. By then, the Lords should have completed its inquiry, an altogether shorter affair than the exercise in the Commons. Both committees are expected to call for a parliamentary debate, but this is not going to happen before the upcoming election and the Conservatives have promised that if they win they will require a parliamentary vote on the NPSs rather than the discussion-only debate envisaged by the current administration. *Legal challenges* Looming in the background is the possibility of a legal challenge to the process, which Friends of the Earth has made clear it will make unless there are significant changes to the final versions of the documents. Even if there are major textual changes, the government may not be out of what promises to be a legal quagmire. The environment group's legal department has written to the energy secretary citing a number of issues and highlighting four areas for possible legal challenge. Friends of the Earth has argued that ministers were wrong to tell the newly-established Infrastructure Planning Commission (IPC) that it should not consider the carbon emissions of individual projects. The green group has also questioned the advice to commissioners that all forms of energy infrastructure are needed. It has also claimed that the statements do not meet European legal requirements on Strategic Environmental Assessments and that the government's public consultation has been inadequate. Given that energy minister Lord Hunt has suggested that it could be the autumn before the NPSs are formally approved by the government ("designated" under the legislation), any legal challenge would have to wait until then. On that time frame it is possible that the NPSs will still be waiting for sign-off next year. This would either delay project determination by the Infrastructure Planning Commission or mean the relevant secretary of state would have to take the decision. *Process was "thorough"* During his appearance at the Commons committee, Lord Hunt deflected criticism of the consultation exercise over the draft energy NPSs. He said the exercise had been "thorough and effective" and made it clear that if there was a legal challenge, the government's response would be "robust". The minister said the door was not closed on Dungeness becoming a possible location for new-build nuclear, but he suggested that prospect remained highly unlikely because of the effect on the existing site of special scientific interest. Lord Hunt also defended the government's decision not to provide more of a spatial context for the non-nuclear NPSs. Had the government gone down that road it would have added big costs and delays to the exercise, the minister told the committee. And it would have created widespread blight, he said. Energy companies have been largely supportive of the NPSs, though they have argued that plenty of textual changes are required. Scottish and Southern Energy has argued that current guidance on new gas generation is unworkable because it implies that developers will have to demonstrate that fitting carbon capture and storage is technically feasible and economically viable. The good news for the government is that the IPC believes the draft NPSs are generally fit for purpose, although the commission has made the point that the documents need to be clearer about the distinction between policy and guidance. Legal organisations, green groups and regulatory expert Dieter Helm are not so favourably impressed. Sir Michael Pitt, chairman of the IPC, told Parliament that planning authorities dealing with nationally significant projects needed extra resources to fulfil their role under the new regime. During cross-examination by the all-party committee, he made it clear he was concerned about the use of planning performance agreements as a way of resourcing cash-strapped local authorities. He cited the controversy over the one negotiated between EDF Energy and the three Somerset councils affected by the company's plans for a new-build nuclear station at Hinckley Point. "This needs looking at," he said. *Election looming* Of course, the election means the future of the new regime is under something of a cloud. While the Conservatives have said they support much of the government's planning reform agenda, they still believe that ministers should take the final decision after a recommendation from a commission, which would subsumed by be existing independent Planning Inspectorate. Utility Week understands that the inspectorate is not overjoyed at the prospect. The Liberal Democrats have also made it clear that they want to see the so-called democratic deficit of the new regime overturned. All said, the brave new planning regime has some way to go before it is in its final form. There may yet be other troubles ahead. See Utility Week's Connected blog on MPs' scrutiny of the NPSs: http://bit.ly/bvwsjW Source: Utility Week © Faversham House Group Ltd 2010. News articles may be copied or forwarded
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