Legal Viewpoint - Welcome rejig for energy consents

A hidden gem among the more controversial proposals in the Growth and Infrastructure Bill appears to have gone largely unnoticed.

A simple reform relating to the ability to amend consents granted under the Electricity Act 1989 will have a positive and valuable impact on the energy industry.

Before the Planning Act 2008 introduced the consents regime for nationally significant infrastructure projects (NSIPs), power projects such as wind farms, energy-from-waste plants and gas turbine power stations with a generating capacity of over 50MW required consent from the "appropriate authority" - usually the energy secretary - under section 36 of the 1989 act. In the majority of cases, the developer applied at the same time for deemed planning permission under the Town and Country Planning Act 1990.

If successful, the developer would be granted a single consent incorporating deemed planning permission for the facility. Some of the country's most controversial power projects were granted consents under this regime and are still operating under them today.

A practical problem with this procedure is that there is no statutory provision for amendments to be made to the single consent. If a material change is needed, developers must submit a new application for revisions to the consent, with the likelihood of associated delay and additional costs.

Developers can apply to the local planning authority under section 73 or section 96A of the 1990 act to amend the deemed planning permission element of the consent. However, nothing in the law permits the appropriate authority to amend the section 36 element. This has resulted in two problems.

Firstly, amendments to the deemed planning permission, without a corresponding amendment to the section 36 consent, can lead to inconsistencies. Secondly, a section 73 application seeks a new planning permission for what is now technically an NSIP. Such applications therefore now fall under the remit of the Planning Inspectorate's national infrastructure directorate. As a result, even a relatively minor amendment to a pre-2008 power project would need to go through the application and determination procedures set out in the 2008 act, which was clearly not the government's intention.

Thankfully, the bill proposes to plug this gap in the law. It would enable regulations to be drawn up setting out a procedure for varying section 36 consents. The bill also proposes to amend the deemed planning provisions in the 1990 act. If passed, these simple changes to the law will at long last provide an easier route for the energy industry to change existing schemes, not least to upgrade their facilities to make them more environmentally friendly.

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