Blog: 10 October 2019Authorised gas-fired power station DCO reinforces the primacy of the NPS

Will Spencer

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Will Spencer

Infrastructure and Environmental Planning Associate Director

Bristol office

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On 4 October 2019 the Government issued its decision to authorise a proposed gas-fired Power Station in North Yorkshire after it had been recommended for refusal by the Examining Authority (ExA). The decision has important implications for infrastructure planning as it reinforces the primacy of the relevant National Policy Statement (NPS EN-1) in decision making.

The application (by Drax Power Ltd) was for a ‘Carbon Capture Ready’ 3,600MW gas-fired generating station, together with two battery storage units and associated infrastructure. The recommendation for refusal was principally that a need for the gas generation capacity could not be demonstrated when assessed against the overarching aims of securing energy supply, energy affordability and decarbonisation in the NPS. The substantial increase in carbon emissions that would be caused by the development was considered to undermine the Government’s commitment to cut greenhouse gas emissions (GHG) and was given significant weight in the planning balance.

In authorising the development however, the Secretary of State was of the view that the ExA had misinterpreted the NPS.  More detail on this is set out in the SoS decision letter which states that:

  • The NPS establishes the need for all types of energy infrastructure, including ‘carbon capture ready’ fossil fuel generating stations and already takes account of the issues of energy supply security, affordability and decarbonisation;
  • The ExA was incorrect in finding that the significant adverse GHG emissions should carry determinative weight in the planning balance, once the benefits of the project are properly considered;
  • The GHG emissions impacts are considered to be relevant but should not displace the presumption in favour of consent defined by the NPS (and the substantial contribution to energy supply provided by the development
  • The SoS chose, unlike the ExA, not to give greater weight to the GHG impacts. 

The decision will no doubt prove to be a controversial one and we’ll await the inevitable legal challenge. 

The SoS notes that the recently announced ‘Net Zero’ target is not in itself incompatible with existing NPS policy, on the basis there are a range of pathways to delivering such emission reductions. It concluded there is no evidence that the consent would result in a direct breach of the Climate Change Act 2008, given that its targets apply across many different sectors of the economy.  Is this another area open to potential legal challenge? 

The wider implications of the decision will become clearer with time, however immediate reflections are that it reinforces the primacy of the NPS in decision making on NSIPs. The SoS has made a clear statement that the matter of need is not for scrutiny at Examination.  A brave and timely statement to make, even though the policy tests in the NPS are fairly unambiguous. 

The ExA is of course open to consider all matters it views as being important and relevant in the planning balance, albeit it was brave for the ExA to conclude on the issue of need in the first place (given this is meant to be a no-go area for Inspectors).  The ExA’s report provides a great deal of detail on its consideration of the application, and whilst they recommended consent was withheld, the report clearly gave the SoS the option to go the other way.  It is possible that the additional importance/weight given to the GHG impacts was a direct reflection of the strength of opposition from interested parties and the fear of legal challenge from such groups as ClientEarth. One is also led to contemplate the point at which the energy generating benefits of a scheme stop outweighing any potentially significant adverse impacts, certainly given that presumably the Government will want to demonstrate progress to delivering on the zero-carbon commitment.

One other notable observation is the SoS’s comments that battery storage facilities are ‘generating stations’ under the Planning Act 2008 and so would require a DCO should the relevant criteria be satisfied. Anyone considering whether to promote such a scheme should therefore take note, as it may affect their consenting strategies. There is a separate reference to the argument that battery storage proposals can also be Associated Development to an NSIP, however no conclusion is reached in this case given that (as noted) the Planning Act 2008 criteria are exceeded anyway.

An incredibly interesting decision given the current climate change emergency, and one that we have undoubtedly not heard the last of…

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