Why Welsh devolution drive has led to uncertainty on energy

Proposals to devolve power to determine large Welsh energy infrastructure projects from Westminster to Cardiff could mean that such applications will be considered under a new process being introduced under separate legislation from the Welsh government.

The Welsh Assembly building in Cardiff
The Welsh Assembly building in Cardiff

The draft Wales Bill, published this month, pledges to give ministers in the principality the power to determine all energy planning consents for onshore and offshore projects up to 350 megawatts. The move sees the devolution to Wales of energy-related nationally significant infrastructure projects (NSIPs), currently determined by the UK energy secretary under the Planning Act 2008. Power to determine onshore wind applications above 50MW will also be devolved, but via a different route.

The bill also seeks to resolve an anomaly with Welsh NSIPs – seen with the recent Swansea Bay Tidal Lagoon and Hirwaun gas-fired power plant consents – that excludes approval for associated development. The new legislation would enable requests for associated development consent to be considered with the main project.

The changes come at a time when the finer points of the Planning (Wales) Act 2015 have yet to be confirmed. Among them are the precise operation of Wales’ new development of national significance (DNS) option to allow ministers to determine infrastructure projects below the current NSIP thresholds.

The DNS system, which the Welsh government expects to go live next Easter, is intended to operate under the Town and Country Planning Act 1990 and see applications processed by the Planning Inspectorate (PINS). Ministers have indicated it will be used to determine energy schemes of 25 to 50 megawatts, but this is subject to confirmation later this year.

A further layer of uncertainty comes from Westminster’s commitment to remove onshore wind from the NSIP consenting regime under the provisions of the Energy Bill, which could devolve decision-making powers over such schemes to Wales before the draft Wales bill becomes law. The Welsh secretary, Stephen Crabb, has previously said the bill would devolve decisions on applications for "all onshore wind farms" in Wales to councils.

Planning asked the Welsh Government a series of questions about how it expected the draft Wales Bill to affect the infrastructure planning process. In most cases, its response was that it could not speculate on the outcome of UK legislation. However, a spokesman said Welsh ministers want a mechanism that is "simple and provides certainty for applicants and communities", and while the system is in the process of change "appropriate measures" would be taken "to ensure that the consenting system works as efficiently as possible".

PINS told Planning it is working on the basis that the DNS regime would be expanded to incorporate the new powers over major energy projects given to ministers under the draft Wales Bill, and that it expects that regulations could be used to let ministers deal with any transitional issues with onshore wind schemes of 50 to 350 megawatts.

Experts said while the latest infrastructure proposals give little immediate certainty, the ability to have both infrastructure and associated development considered together would be welcome. Roisin Willmott, the Royal Town Planning Institute’s director for Wales, said devolving responsibility for large energy projects to Welsh ministers means that these will be determined under a single policy environment, taking account of national planning policy for Wales and the Well-Being of Future Generations Act 2015. "Ministers will have the option to bring associated development into a single consent order, which could make it more straightforward for promoters of schemes," she said.

Richard Guyatt, planning partner at law firm Bond Dickinson, said he expects that the new system would require some "tweaking", as the 2008 act did. "But clients will certainly see the ability to timetable determination of a major project and its associated development together as a major plus," he said. "Getting a development consent order for your main scheme, but not the other elements doesn’t give developers the certainty they need."

Liz Evans, associate director at consultancy Nathaniel Lichfield & Partners in Cardiff, said bringing larger energy schemes into the DNS regime could be fairly easy, but may need determination timescales to alter. "The proposed pre-application consultation requirements for DNSs are not as rigorous as the NSIP regime and the timescale for decisions is shorter – 36 weeks instead of 12 to 15 months," she said. "The DNS route may not be appropriate for larger schemes and a Welsh version of the NSIP process may be required."

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