Explanatory Memorandum to:
1) The Developments of National Significance (Specified Criteria, Fees and Fees for Deemed Applications) (Wales) (Amendment) Regulations 2019
2) The Developments of National Significance (Wales) (Amendment) Regulations 2019
3) The Developments of National Significance (Procedure) (Wales) (Amendment) Order 2019
4) The Town and Country Planning (Environmental Impact Assessment) (Wales) (Amendment) Regulations 2019
The Explanatory Memorandum has been prepared by Planning Directorate and is laid before the National Assembly for Wales in conjunction with the above subordinate legislation and in accordance with Standing Order 27.1.
Minister’s Declaration
In my view, this Explanatory Memorandum gives a fair and reasonable view of the expected impact of:
1) The Developments of National Significance (Specified Criteria, Fees and Fees for Deemed Applications) (Wales) (Amendment) Regulations 2019;
2) The Developments of National Significance (Wales) (Amendment) Regulations 2019;
3) The Developments of National Significance (Procedure) (Wales) (Amendment) Order 2019; and
4) The Town and Country Planning (Environmental Impact Assessment) (Wales) (Amendment) Regulations 2019
I am satisfied the benefits justify the likely costs.
Minister for Housing and Local Government
21
January 2019
PART 1
1. Description
1.1 Sections 39 and 42 of the Wales Act 2017, among other things, prospectively devolve further responsibility to the Welsh Ministers for the consenting of onshore energy projects (excluding wind, responsibility for which is already devolved) up to and including 350MW and overhead electric lines up to and including 132KV where they are associated with a Welsh devolved generating station. These provisions will be commenced on 1 April 2019.
1.2 The legal effect of relevant provisions in the Wales Act 2017 is to place the consenting of this onshore infrastructure into the Town and Country Planning Act 1990 (“TCPA”). However, this creates a number of anomalies which require correction. The statutory instruments make consequential changes to procedures to enable the Welsh Ministers to determine such applications in the most appropriate way, as well as making some other minor procedural changes.
2. Matters of special interest to the Constitutional and Legislative Affairs Committee
2.1 The Explanatory Memorandum (including Regulatory Impact Assessment) covers four separate statutory instruments: one subject to the affirmative procedure and three which are subject to the negative procedure and which are scheduled to be laid conditional on the approval of the affirmative procedure statutory instrument by the National Assembly for Wales.
Statutory Instrument
|
Procedure |
The Developments of National Significance (Specified Criteria, Fees and Fees for Deemed Applications) (Wales) (Amendment) Regulations 2019
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Affirmative |
The Developments of National Significance (Wales) (Amendment) Regulations 2019
|
Negative |
The Developments of National Significance (Procedure) (Wales) (Amendment) Order 2019
|
Negative |
The Town and Country Planning (Environmental Impact Assessment) (Wales) (Amendment) Regulations 2019
|
Negative |
2.2 All of the above statutory instruments are reliant on each other and are interlinked through various references. It would not be possible to interpret the regulatory impacts made by each statutory instrument in isolation without explaining the wider legislative context. Hence, a composite Explanatory Memorandum has been prepared to describe these statutory instruments.
2.3 The Town and Country Planning (Environmental Impact Assessment) (Wales) (Amendment) Regulations 2019 are made under section 2(2) of the European Communities Act 1972. There is a choice of procedure in relation to instruments made under section 2(2) of that Act. The Regulations are also made under section 71A of the Town and Country Planning Act 1990 (TCPA) which is subject to the negative procedure. There were no factors indicating the affirmative procedure should be used for these Regulations.
3. Legislative Background
The Developments of National Significance (Specified Criteria, Fees and Fees for Deemed Applications) (Wales) (Amendment) Regulations 2019
3.1 Sections 39 and 42 of the Wales Act 2017 (“the 2017 Act”), among other things, make changes to the consenting arrangements for generating stations and overhead electric lines in Wales. In broad terms these sections devolve, to the Welsh Ministers, the function of granting consent in respect of the following to the Welsh Ministers (“newly devolved projects”):
(a) The consenting of generating stations both on and offshore with a capacity of 350MW or less. This excludes onshore wind, for which consenting for all such applications is already devolved to the Welsh Ministers; and
(b) The consenting of overhead lines with a nominal voltage of 132KV or less, where they are associated with a Welsh devolved generating station.
3.2 Part 3 of Schedule 6 to the 2017 Act also makes a number of minor and consequential amendments. The Wales Act 2017 (Commencement No.4) Regulations 2017 fully commences Sections 39, 42 and Part 3 of Schedule 6 on 1 April 2019. Hence, legislation relating to the newly devolved projects is included in the Regulations.
3.3 These Regulations are made in exercise of the powers conferred on the Welsh Ministers by sections 62D and 303 of the TCPA and powers conferred on the Secretary of State by section 333 of the TCPA, which are now exercisable by the Welsh Ministers.
3.4 Section 62D of the TCPA makes provision for applications for Development of National Significance (“DNS”) to be made directly to the Welsh Ministers. Section 62D(3) states a development is DNS where it meets criteria specified in Regulations made by the Welsh Ministers for the purpose of section 62D.
3.5 Section 303 of the TCPA enables the Welsh Ministers to make Regulations in respect of fees for planning applications and deemed planning applications. This includes DNS applications.
The Developments of National Significance (Wales) (Amendment) Regulations 2019
3.6 These Regulations are made in exercise of the powers conferred on the Welsh Ministers by sections 321B and 323A and Paragraph 1(2) of Schedule 4D of the TCPA.
3.7 Of the provisions most relevant to these Regulations, paragraph 1(2) of Schedule 4D of the TCPA enables specified functions of the Welsh Ministers to be exercised by an appointed person.
3.9 Section 323A of the TCPA enables the Welsh Ministers, by Regulations, to prescribe the procedure to be followed in connection with an inquiry or hearing held by or on behalf of the Welsh Ministers by virtue of any provisions under the TCPA and any proceedings considered on the basis of representations in writing.
The Developments of National Significance (Procedure) (Wales) (Amendment) Order 2019
3.10 This Order is made in exercise of the powers conferred on the Welsh Ministers by sections 59, 61Z, 62R and 333 of the TCPA and powers conferred on the Secretary of State by section 62 of the TCPA, which are now exercisable by the Welsh Ministers.
3.11 Of the provisions most relevant to this Order, Section 61Z(5) of the TCPA enables the Welsh Ministers to prescribe, by Order, the specified persons who must be consulted about a proposed planning application.
3.12 Section 62 of the TCPA enables the Welsh Ministers to make provision as to the form, content, manner and particulars of a planning application, including pre-application consultation reports. This applies to DNS by virtue of the Developments of National Significance (Application of Enactments) (Wales) Order 2016.
3.13 Section 62R of the TCPA enables the Welsh Ministers, by Order, to make provision regulating a manner in which an application directly to the Welsh Ministers is dealt with by them.
The Town and Country Planning (Environmental Impact Assessment) (Wales) (Amendment) Regulations 2019
3.14 These Regulations are made in exercise of the powers provided by section 2(2) of the European Communities Act 1972 and section 71A of the TCPA.
3.15 The Welsh Ministers were designated by The European Communities (Designation) (No.3) Order 2007 (S.I. 2007/1679) for the purposes of section 2(2) of the 1972 Act, to make regulations 'in relation to the requirement for an assessment of the impact on the environment of projects likely to have significant effects on the environment, insofar as it concerns town and country planning'.
3.16 The functions under section 71A of the TCPA were transferred to the National Assembly for Wales by S.I. 1999/672. Those functions were subsequently transferred to the Welsh Ministers by virtue of section 162 of and paragraph 30 of Schedule 11 to the Government of Wales Act 1998.
4. Purpose and intended effect of the legislation
The Developments of National Significance (Specified Criteria, Fees and Fees for Deemed Applications) (Wales) (Amendment) Regulations 2019
Changes to the specified criteria - Onshore generating stations
4.1 As a consequence of the changes made by the Wales Act 2017 (set out in paragraphs 3.1-3.2), the consenting of newly devolved projects will fall within Part 3 of the TCPA. The default position is the consenting of newly devolved projects will require planning permission from the Local Planning Authority (“LPA”) under section 58 of the TCPA. This creates a perverse situation whereby already devolved smaller scale projects, such as generating stations between 10MW and 50MW are consented by the Welsh Ministers through the DNS process, whereby larger scale generating stations between 50MW and 350MW are to be consented at the local level by LPAs.
4.2 The evidence which underlies the specified criteria for DNS indicates the performance of LPAs in achieving timely decisions on large scale energy projects is not satisfactory. It would be illogical for smaller projects to be dealt with at the national level, with larger generating projects consented at the local level. The purpose of this legislation is to alter this anomaly and ensure a logical and proportionate consenting procedure is in place.
4.3 In the Government response[1] to the consultation on DNS in 2015, it was stated the medium term objective would be to capture any new projects above the existing devolved upper limit as DNS. This view has not changed in the light of the devolution of generating stations of between 50MW and 350MW. The effect of the legislation is to extend the specified criteria for DNS to also include these projects.
Changes to the specified criteria - Overhead electric lines
4.4 Changes are proposed to the DNS specified criteria which relate to devolved overhead electric lines. Consents for overhead electric lines are currently issued under the Electricity Act 1989 (up to 132KV) or the Planning Act 2008 (132KV and above). These are both consents issued by the Secretary of State. Following commencement of the relevant parts of the Wales Act 2017, the consenting overhead electric lines up to and including 132KV which are associated with a devolved generating station will be placed within the TCPA for determination by LPAs by default.
4.5 Being determined by the LPA brings some concerns. Being linear projects, overhead electric lines tend to pass a number of LPAs. The requirement to gain separate consents from a number of LPAs may delay the development of such infrastructure in Wales.
4.6 Furthermore, overhead electric lines are necessary for the operational effectiveness and resilience of the electricity transmission and distribution network. Each link of the network, no matter what the scale, is critical to the network as a whole, ensuring power can be distributed sustainably and economically to customers. Accordingly, the purpose of this legislation is to address the need for such infrastructure to be consented at the national level.
4.7 The effect of this legislation is to place the consenting of overhead electric lines into the DNS process. While this may lead to the consenting of such lines taking longer than they do at present, the DNS process provides the only appropriate framework for decision at the national level in the TCPA, with appropriate consultation and scrutiny arrangements.
Changes to the specified criteria - Electricity storage
4.8 A further purpose of these Regulations relates to energy storage. It is acknowledged there are emerging storage technologies which will increase clean generation and energy efficiency in Wales and help the transition to a low carbon economy.
4.9 Small scale storage projects of between 10MW and 50MW must seek planning consent under the DNS process. However, such projects typically have minor impacts and occupy minimal land. No storage projects have been consented through this process as the cost and time taken for decisions is seen as prohibitive to storage operators. Prior to the coming into force of the DNS process in 2016, the performance in consenting such projects appeared to be reasonable at the local level.
4.10 The purpose of this legislation is to remove consenting barriers and to reflect the physical scale and impacts of storage technologies being developed. The effect of the legislation is to remove storage projects from the current DNS process, for decision at a local level. This is considered to be a more proportionate way to determine such projects. This proposal will not include pumped hydroelectric storage schemes, which on the basis of prior projects, continue to have significant environmental effects.
Changes to fees for applications – Overhead electric lines
4.11 Paragraphs 4.16 to 4.19 below detail changes made by the Developments of National Significance (Wales) (Amendment) Regulations 2019 relating to the procedure for applications for overhead electric lines. A consequential change is made in the Developments of National Significance (Specified Criteria, Fees and Fees for Deemed Applications) (Wales) (Amendment) Regulations 2019 which removes the requirement to pay a fee to the Welsh Ministers for determining an application, where the application is not determined by them. This is in accordance with public finance principles.
Changes to fees for deemed applications – Appeals under section 177(1) of the TCPA
4.12 An anomaly has arisen where an appeal against an enforcement notice could potentially be brought in relation to a development which is ascribed DNS status, on the ground planning permission should have been granted for the development (a Ground (a) appeal under section 174(2)(a) of the TCPA). Section 177(1) of the TCPA provides the Welsh Ministers, on an appeal against an enforcement notice, may grant planning permission. Section 177(5) of the TCPA requires, where such an appeal is brought, the appellant shall be deemed to have made an application for planning permission in respect of the matters in the enforcement notice as constituting a breach of planning control.
4.13 Where such an appeal is brought, legislation does not allow a fee to be allocated to the LPA where it concerns an application which would otherwise be a DNS. Current legislation provides a fee is payable for deemed applications if a fee would have been payable to the LPA on making an application for planning permission. However, as developments which qualify as DNS are made to the Welsh Ministers, no fee is payable to the LPA.
4.14 This situation is considered to be unfair, and the purpose of the legislation is to correct this anomaly. The LPA will ultimately bear the cost of issuing the enforcement notice, participating in an appeal and, if the appeal is unsuccessful, will also bear the cost of enforcing the planning permission. However, they will not be subsidised for this additional work. Were the application is a DNS application made directly to the Welsh Ministers, the LPA would receive a fee for participating in the application process. Accordingly, the Regulations make changes to address this and provide for a fee to be payable in these circumstances.
The Developments of National Significance (Wales) (Amendment) Regulations 2019
4.16 Paragraphs 4.4 – 4.7 above relates to the addition of devolved overhead electric lines to the specified criteria for DNS. The amendments made by the Developments of National Significance (Wales) (Amendment) Regulations 2019 have the purpose of expediting the process for such applications.
4.17 The development industry sees the current consenting process under the Electricity Act 1989 as proportionate and evidence suggests timely decisions are issued routinely under this arrangement. Decisions are typically made within 4-6 weeks by the Secretary of State. As of 1 April 2019, the Welsh Ministers will no longer have access to this regime where it concerns devolved overhead electric lines.
4.18 The DNS process has a maximum timeframe of 36 weeks, which can be significantly longer than the Secretary of State’s decision period. At present, there is a requirement for all DNS projects to be determined by the Welsh Ministers, rather than an Inspector appointed to examine the application. This can make up 12 weeks of the 36 week determination period for a DNS project.
4.19 The effect of the legislation will be to remove this requirement where it concerns overhead electric lines to produce timelier decisions. There are no other logical areas in the DNS process where time savings can be achieved.
The Developments of National Significance (Procedure) (Wales) (Amendment) Order 2019
4.20 Paragraphs 4.4 – 4.7 above relate to the addition of devolved overhead electric lines to the specified criteria for DNS. Amendments made by the Developments of National Significance (Procedure) (Wales) (Amendment) Order 2019 are consequential and add further validation requirements where a DNS application concerns a devolved overhead electric line. The effect of this change is to retain the status quo where it concerns the validation requirements for such applications and to reflect validation requirements for existing overhead electric line applications contained at Paragraph 1(2) of Schedule 8 of the Electricity Act 1989.
4.21 Additionally, the Order makes amendments to the list of bodies which must be consulted before the grant of planning permission for DNS. The effect of this change is to bring up to date the circumstances in which statutory bodies are consulted during the DNS application process with the circumstances specified in the Town and Country Planning (Development Management Procedure) (Wales) Order 2012 (as amended in this respect in 2016). This will ensure consistency with other planning applications.
The Town and Country Planning (Environmental Impact Assessment) (Wales) (Amendment) Regulations 2019
4.22 Directive 2014/52/EU (“the 2014 Directive”) requires the authority granting development consent for a particular project to make its decision in full knowledge of any likely significant effects on the environment. Before sections 39 to 42 of the Wales Act 2017 come into force, overhead electric lines are consented either under section 37 of the Electricity Act 1989 or the Planning Act 2008. The transposition of the 2014 Directive in relation to these projects is made by the Electricity Works (Environmental Impact Assessment) (England and Wales) Regulations 2017 (“the Electricity Works EIA Regulations”).
4.23 Following the coming into force of sections 39 to 42 of the Wales Act 2017, the consenting of devolved overhead electric lines will fall within the Town and Country Planning Act 1990. Accordingly the Electricity Works EIA Regulations will cease to apply.
4.24 The purpose of these Regulations is to transpose the 2014 Directive as it will relate to devolved overhead electric lines in Wales from 1 April 2019. These Regulations will add the installation of devolved overhead electric lines to Schedule 2 of the Town and Country Planning (Environmental Impact Assessment) (Wales) Regulations 2017. The effect of this is such projects will require to be screened for the requirement for an Environmental Impact Assessment in advance of a planning application.
4.25 The Regulations also make a consequential change to transitional provisions to clarify alignment with the 2014 Directive.
5. Consultation
5.1 A 12 week consultation ran from 30 April to 23 July 2018 on changes to the consenting of infrastructure in Wales. The consultation was drawn to the attention of a wide range of stakeholders including LPAs, generating station operators and their representatives, businesses, planning consultants, interest groups and other public sector agencies. A total of 47 responses were received.
5.2 Of the questions relevant to these statutory instruments, there was broad agreement with the proposals. On the whole, while consultees are dismayed with the placing of overhead electric lines into the TCPA by the Wales Act 2017, there was general agreement the approach as set out in these statutory instruments was a pragmatic one. A number of responses were submitted asking for further guidance to accompany the DNS process. In response, existing guidance will be strengthened as a result.
5.3 A summary of the consultation responses is available at: https://beta.gov.wales/changes-approval-infrastructure-development.
PART 2 – REGULATORY IMPACT ASSESSMENT
6. Regulatory Impact Assessment
6.1 This Regulatory Impact Assessment assesses the cost and impacts of making changes to the Developments of National Significance (“DNS”) specified criteria, as well as the consequential amendments to associated Regulations and Orders. It is divided into three parts and addresses three amendments to the DNS specified criteria. Those relate to:
(a) The consenting of generating stations between 50MW and 350MW;
(b) The consenting of devolved overhead electric lines up to and including 132KV; and
(c) The consenting of energy storage.
Consenting of applications for generating stations between 50MW – 350MW onshore
6.2 Two options have been considered:
· Option 1 – Do nothing. Planning applications for consenting generating stations between 50MW – 350MW will be determined by the relevant LPA(s) (with the exception of onshore wind)
· Option 2 – The maximum thresholds for Developments of National Significance (“DNS”) for generating stations (with the exception of onshore wind) are extended from 50MW to 350MW to ensure all applications of between 10MW – 350MW are consented via the DNS regime and determined by the Welsh Ministers. This is the preferred option.
Option 1 - Do nothing. Planning applications for consenting generating stations between 50MW – 350MW will be determined by the relevant LPA(s) (with the exception of onshore wind).
Description
6.3 The Wales Act 2017 devolves further responsibility for the consenting of energy and infrastructure projects to Wales, including extending the threshold of onshore energy generating projects to 350MW. This does not include applications for onshore wind, which are all consented in Wales, regardless of the output.
6.4 This option would retain the default position set out in the Wales Act 2017, whereby applications of between 10MW – 50MW would be consented via the DNS process and applications up to 10MW and those between 50MW – 350MW would be consented at the local level by the relevant LPA(s).
Costs
Welsh Government
6.5 This option would see no additional costs to the Welsh Ministers as the additional consenting powers for determining applications of between 50MW – 350MW would be undertaken by the relevant LPA(s) as the prescribed consenting authority.
Local Planning Authority
6.6 In the past 8 years, since the coming into force of the Planning Act 2008, there have been a total of 9 applications submitted for an energy generating station of between 50MW – 350MW within Wales, which is an average of 1.1 applications per annum.
6.7 As this option would require decisions on planning applications to be made at the local level, these applications would be subject to fees prescribed in the Town and Country Planning (Fees for Applications, Deemed Applications and Site Visits) (Wales) Regulations 2015 (“the 2015 Regulations”) and be calculated by site area, rather than output. Evidence shows a significant variation between the site area of these applications, which range from 4 hectares to 1,581 hectares. Based on a fee of £190 per 0.1 hectares[2] (up to a maximum fe