Presentation by Elizabeth Dunn, Planning Partner at Burges Salmon, given at the Planning Inspectorate Wales conference on 30 September 2015

1. Planning Inspectorate Wales Stakeholder
Event
What can DNS learn from the NSIP
regime?
Elizabeth Dunn - Planning Partner
30 September 2015

2. Planning Inspectorate Wales
Stakeholder Event
Credentials
 Burges Salmon are specialist planning and infrastructure lawyers
 Advised on over 30 NSIPs to date, 20 for promoters: electricity
(nuclear, EfW, biomass, wind, grid), rail freight, highways, rail,
hazardous waste, pipelines, gas storage
 Highlights include:
- advising on second ever NSIP application
- securing first NSIP DCO from DECC (3 consents in total)
- led or major participation in 8 Examinations
- third Highways Agency accepted application
- two consented schemes in construction

3. Planning Inspectorate Wales
Stakeholder Event
Credentials (2)
 Extensive experience of planning for energy projects in
Wales including:
- 350MW Port Talbot biomass plant
- 299MW Pen y Cymoedd wind farm
- Brig y Cwm energy from waste facility
- Mid-Wales conjoined wind farm inquiry
- advising IACC on Wylfa new nuclear power station
- other application stage NSIPs

4. Planning Inspectorate Wales
Stakeholder Event
Overview
 Overview of NSIP regime
 DNS vs NSIP
 Opportunities and challenges for DNS

5. Planning Inspectorate Wales
Stakeholder Event
Overview of NSIP regime
 In place since 2008 - has evolved and changed
 Decisions by Ministers on recommendation from Examining Authority
 Statutory time period for examination (6 months) and decision (3+3 months)
 Applies to specific projects and thresholds, also voluntary regime
 Supported by suite of PINS advice notes and CLG guidance notes
 Underpinned by National Policy Statements approved by Westminster
 Front-loaded regime and aim for “one-stop shop”
 Consent is statutory instrument – power to amend and disapply legislation,
statutory nuisance defence, CPO and other powers available
 In England may include “associated development” within application
 Increased pre-application time, resource and cost vs certainty on timing and
framework for decision-making

6. Planning Inspectorate Wales
Stakeholder Event
Role of policy
 To date:
- 41 NSIPs approved
- 2 refused (although Preesall underground gas storage
granted on re-determination)
- 7 challenges, only Preesall successful

7. Planning Inspectorate Wales
Stakeholder Event
Role of policy (2)
 NSIPs supported by suite of National Policy Statements
(NPS)
 Are principal policy for determination of NSIPs
 Save for EN 6 (nuclear) are not location-specific
 Recognise need – for new renewable energy projects this
is ‘urgent’
 EN1 states a presumption in favour of granting consent to
energy NSIPs
 Identify likely issues and impacts and approach to project

8. Planning Inspectorate Wales
Stakeholder Event
LPA Role in NSIPs
 Prescribed consultee – “host” authority
 Agreement of Statement of Community Consultation (SoCC)
 Responses to pre-application statutory consultation
 Adequacy of consultation response
 Relevant representation
 Local Impact Report
 Engagement in examination, questions, SoCGs and hearings
 In Wales – determining “associated development” applications
 Planning performance agreement?
 S106/community benefit/legacy considerations
 Discharge “requirements” and enforcement

9. Planning Inspectorate Wales
Stakeholder Event
Challenges for NSIP regime
 Not “business as usual”
 Legalistic and prescriptive system that has needed amendment
 Extensive guidance and advice notes and pro-active team at PINS
 Expectation of front-loading – is it realistic for issues to be identified/resolved at pre-
application stage?
 Engagement and resourcing from prescribed consultees – LPAs, SNCBs, other interest
groups
 Accommodating the Rochdale Envelope approach – flexibility vs certainty for EIA and
consent
 A document-heavy system – extensive application material, focus on written questions
and representations during examination
 Autonomy and experience of Examiners
 Does the system genuinely encourage public participation and engagement?

10. Planning Inspectorate Wales
Stakeholder Event
Key elements of DNS
 Applies to specified projects and thresholds
 Decisions by Welsh Ministers on recommendation of Inspector
 Planning permission and (optional/call-in) secondary consents
 Statutory maximum timescale of 36 weeks for determination
 Pre-application advice must be given by WM and LPA upon request
 Requirement for developer to undertake pre-application consultation
and submit report with application
 Applications can be rejected if PINS considers inadequate
 PINS determines examination process with focus on written
representations

11. Planning Inspectorate Wales
Stakeholder Event
DNS vs NSIP
* NB Silk Commission recommendation of up to 350MW

12. Planning Inspectorate Wales
Stakeholder Event
DNS vs NSIP (2)
 A hybrid NSIP system for Wales?
 Positives
- Statutory timeframe for decisions
- Secondary consents, including highways, other
planning permissions, listed building consent
- Defining LPA role and prescribed timing of responses
- Frontloading S106 negotiations

13. Planning Inspectorate Wales
Stakeholder Event
DNS vs NSIP (3)
 Potential issues
- Expectation that pre-application consultation is on full
draft application documents
- It is enough of a one-stop shop? – limited CPO
- Securing secondary consents
- Prescribed period from PINS notification to submission
- Increased fees – PINS, LPA and WM

14. Planning Inspectorate Wales
Stakeholder Event
DNS vs NSIP (4)
 To be resolved?:
- Sufficient flexibility? No outline applications
- Post-acceptance representations
- Opportunities to amend application
- Examination process – will inspector fall back on
inquiry if difficult issues?

15. Planning Inspectorate Wales
Stakeholder Event
Opportunities and challenges
 DNS system has potential to deliver consents and increase developer
confidence in planning in Wales
 Important to learn lessons from development of NSIP system
 Clarity and transparency regarding process is essential
 Secondary consents will be challenging
 Increased expectation on promoters to front-load, must be matched
with delivery to timescales
 Engagement from LPAs, NRW and other stakeholders is key…
 So is having sufficient resource in place to properly administer the
system
 Need robust approach by WM to judicial challenges

16. Planning Inspectorate Wales
Stakeholder Event
This presentation gives general information only and is not intended to be an exhaustive statement of the law. Although we have taken care
over the information, you should not rely on it as legal advice. We do not accept any liability to anyone who does rely on its content.