Out-Law Analysis | 23 Sep 2021 | 1:53 pm | 4 min. read
The UK government’s plans to decarbonise the energy market and wider economy are supported by its proposed changes to national planning policy on energy infrastructure.
Proposed revisions to its policy on the development of major electricity networks infrastructure (EN-5) are of particular significance and complement proposed updates to EN-1, the overarching national policy statement for energy infrastructure.
EN-1 and EN-5 are part of a wider package of reforms planned to the national policy statements for energy infrastructure in the UK – documents which guide decision-makers on the application of government policy when determining applications for development consent for nationally significant energy infrastructure under the Planning Act 2008 regime.
The current policy package was designated under the Planning Act 2008 in 2011. Like under the existing policies, the need for new energy network infrastructure to connect new generation and to reinforce existing network assets is set out in the proposed new EN-1. There is, however, fresh emphasis on ensuring that the UK’s energy networks are resilient and able to support the transition to ‘net zero’ emissions.
Some of the most significant proposed changes to EN-5, compared to its 2011 predecessor, concern the impact electricity network infrastructure has on the landscape. Greater emphasis is placed on applicants seeking to mitigate adverse landscape and visual impacts to the “fullest extent reasonably possible”.
The position outside of designated landscapes remains a complex balancing act for promoters to navigate
Under the existing EN-5, the policy is that new lines should ordinarily be overhead lines. The government has proposed to retain that presumption, but with a notable exception. There is now a presumption for the undergrounding of lines within nationally designated landscapes, including areas of outstanding natural beauty and national parks, where the landscape harm cannot be avoided by re-routing or mitigation measures.
This proposed change in policy could leave promoters needing to justify departures from the policy where national landscape designations overlap with sensitive ecological designations, which would tend towards preferring overhead lines to reduce ecological and geological impacts. This is not a wholly new problem. Promoters previously planning for the installation of new power lines have had to navigate this balance when selecting their scheme design, but that was without the national policy statements providing a starting position which favoured mitigation for landscape impacts.
The position outside of designated landscapes remains a complex balancing act for promoters to navigate. In each case, the harms from overhead lines will need to be weighed against options including re-routing and undergrounding, considering costs, feasibility and impacts of the alternatives. The emphasis of the test the Secretary of State should apply has changed here too, with the draft revised EN-5 suggesting that the Secretary of State should only grant consent for undergrounding sections of line outside of nationally designated areas in preference to overhead lines where satisfied that the benefits of undergrounding outweigh extra economic, social or environmental impacts and that technical obstacles can be overcome.
Developers are set to face new requirements around biodiversity arising from the new Environment Bill, which is currently progressing through the UK parliament. Under the proposed reforms, developers seeking planning permission will be required to demonstrate a 10% biodiversity net gain from their plans based on the biodiversity metric the Department for Environment, Food and Rural Affairs (Defra) has developed.
The prospect of legislative reform in relation to biodiversity net gain is anticipated with new text proposed for inclusion in EN-5.
The draft revised policy encourages applicants to exploit the linear nature of electricity network infrastructure to reconnect habitats through green corridors, hedgerow restoration and biodiversity stepping zones and to connect people to the environment with footpaths and cycleways.
This may change the nature of the way these corridors are viewed, particularly over agricultural land, and the rights that would be required over the land to affect these corridors.
Promoters might wish to highlight this point in responding to the government’s consultation, with a view to persuading the government to clarify the position in the finalised policy
The proposed new EN-5 also contains some welcome clarification around the use of compulsory acquisition powers to deliver new electricity network infrastructure.
The draft strengthens the policy support for networks being able to secure permanent rights for new infrastructure, in preference to wayleave agreements which contain qualified termination rights for landowners. The draft explicitly recognises the importance of permanent arrangements to fulfilling net zero targets set by the UK government.
Further clarification is also provided that compulsory acquisition of land and rights is also available for landscape mitigation. This is a notable change. It addresses the gap in the current policy whereby landscape planting to mitigate adverse landscape effects can only be delivered by agreement with landowners, necessitating complicated negotiations to secure the land to deliver the mitigation and management and maintenance rights to be able to rely on the mitigation effects over the long term. The draft new EN-5 acknowledges the need to be able to deliver and maintain landscape mitigation.
The draft revised EN-5 also appears to indicate that compulsory powers will be available in support of biodiversity net gain programmes. This is an area previously not covered by explicit national policy support. However, the wording on the matter is unclear. The draft policy refers to land acquisition for mitigation but cites biodiversity enhancements – which are not mitigation – as an example alongside landscape mitigation. Promoters might wish to highlight this point in responding to the government’s consultation, with a view to persuading the government to clarify the position in the finalised policy.
The draft revised EN-5 contains a new section that concerns the connection of offshore wind farms to onshore electricity networks. The section reflects broader messaging that runs through the proposed new EN-1 and EN-3, which concerns renewable energy infrastructure, about the government’s support for a more coordinated system connecting offshore generation, rather than through individual radial connections.
The draft revised EN-5 guides applicants that radial offshore transmission options to single wind farms should only be proposed where they are the only feasible solution and a coordinated solution is not possible. This approach is intended to reduce the number of landing sites required and related impacts to the environment and host communities. It ties in with Ofgem’s offshore transmission network review, and consideration of changes to the way that the regulatory framework handles planning for new connections.
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