Energy security: can the planning system be effective? | Bryan Cave Leighton Paisner

Summary

The fundamental weaknesses in UK energy security revealed by recent world events have created a catalyst for urgent government review and prompted the publication of the Energy Security Strategy in April 2022. The planning system will play a key role in the implementation of this ambitious strategy, but it also has the possibility of derailing it. Changes are proposed to overcome planning hurdles, but will they be enough to keep the Strategy on track?

Prior to the current energy price shock triggered by post-Covid demands and Russia’s February 2022 invasion of Ukraine, national energy policy was already in the spotlight. However, the focus has been on how the energy supply should transition to clean energy in response to the climate emergency, rather than on how robust energy security is.

The direction of travel has been set out in a series of policy documents, most recently in the Energy White Paper in December 2020 (please see this BCLP Blog), the consultation on revisions to the National Energy Policy Statement in September 2021 (please see this BCLP Blog) and the Net Zero Strategy in October 2021, all of which focused on the changes needed to the UK’s energy supply to move to net zero.

However, fundamental weaknesses in UK energy security revealed by more recent global events have created a catalyst for urgent review and prompted the publication of the Energy Security Strategy in April 2022. While the direction of travel remains largely the same, ambitions have been accelerated.

What’s new?

The energy security strategy essentially requires increasing and accelerating the capacity of all “local” energy sources, but the largest proportion coming from new offshore wind and nuclear energy projects and increased production of oil and gas in the North Sea.

In short, the Strategy requires more energy to come from:

  • nuclear center – up to 8 new nuclear reactors (instead of 1 currently planned) to supply up to 24 GW by 2050, i.e. three times more than today and representing up to 25% of our electricity demand projected;
  • offshore wind – 50 GW with up to 5 GW of floating offshore wind by 2030 compared to the previous target of 40 GW with 1 GW of floating offshore wind – therefore a shift from the “40 by 30” challenge to (without heroic doubt) “50 by 30”;
  • hydrogen – up to 10 GW by 2030 with 50% “green” hydrogen compared to the previous target of 5 GW;
  • British low carbon oil and gas – it will continue to be the bedrock of UK energy security, with North Sea energy fields given a boost in the transition to net zero;
  • terrestrial wind – no target specified – there had clearly been a lot of hope in early 2022 for a change in policy to support onshore wind, but this did not materialize;
  • solar energy on roofs and ground – no target is specified.

Improvements to the network infrastructure to support the increased capacity are also considered in the strategy. However, no major new energy efficiency measures are proposed, rather the strategy summarizes previously announced policies. Critics have pointed out that the Strategy only addresses part of the energy conundrum.

The role of planning

These goals are simply ambitious given that the development and deployment of energy projects currently takes years, if not decades. Critics argue that the strategy overlooks onshore wind and solar power, which are the cheapest and fastest energy sources, and therefore could have an expanded role.

The Strategy attempts to address some of the barriers to delivery, with the planning and consent regime identified as one of the main ones. Some adjustments to the planning rules are proposed, but will they be sufficient to support the achievement of the objectives?

Solar

Only limited changes are proposed for solar developments (to strengthen the policy in favor of ground systems on unprotected brownfields and co-location with other functions, and to modify permitted development rights for rooftop solar) .

Offshore wind

More detailed amendments are proposed for offshore wind projects to reduce the consent time from the current position by up to four years through amendments to the Planning Act 2008, to strengthen the policy national level, introduce nature-based design standards and take environmental considerations into account. at a more strategic level.

Nuclear

Delivering new nuclear power plants probably presents the biggest challenge, and while the government says it will “radically change” the way it delivers new nuclear projects, it is less specific on whether this will involve changes in planning rules. However, it plans to work with regulators to “understand the potential for streamlining or eliminating duplication of licensing and licensing of new nuclear plants”, so changes may be on the way. A long-term siting strategy will be developed to identify locations for these projects and a new entity called the Great British Nuclear Vehicle will be created this year to help projects through the development process.

Network infrastructure

To support the network infrastructure improvements, NPS updates are promised that will recognize a new plan for the necessary strategic network infrastructure in the planning system to increase project certainty and accelerate delivery.

Comment

Energy projects are notoriously expensive, complex, time-consuming and controversial. Most of the energy projects identified in the Strategy are likely to be carried out under the DCO/NSIP regime. However, ambitions to speed up and improve this regime have been on the government’s agenda since November 2020, with a target of reducing delays by 50% announced in the National Infrastructure Strategy (see this BCLP Blog). Work is already underway to explore how this can be done and a first consultation was conducted (in August 2021) to gather feedback.

However, perhaps one of the most significant hurdles that could derail these ambitions is the possibility of legal and statutory challenges to new political and consent decisions and the risk of consequent delays. If the political will to achieve energy independence is not lacking, we anticipate that the potential challengers will not be lacking either. The balance between what we all pay for our electricity (coupled with the moral question of where our energy comes from given global events), sits alongside the needs of our planet and its ecosystems.

The government has made no secret of its frustrations with how its decisions can be challenged legally, and it launched an independent review of administrative law in July 2020 to determine whether judicial review reform is needed. However, the review concluded that no sweeping changes were needed, instead making only cautious and limited recommendations regarding changes in judicial powers. This means that government decisions are still subject to challenge and review by the courts in the same way as they always have been.

Although the consultation process on the NSIP regime reforms has already begun, it remains to be seen whether this will result in changes that significantly reduce approval times to implement the energy security strategy. However, the government will need to tread carefully to ensure that any changes introduced to the planning system are legal, as we expect potential challengers to be ready to step in to any perceived flaws in the way decisions are made. and the changes in this area are made.

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