The new Labour government: an occasional planning/environmental law diary - entry#7 (I have now stopped counting the weeks): pre-budget reflection.

#planning #environment #energy #law

Tuesday 29 October 2024 (posted 30 October 2024)

Summer is a distant memory, as are the draft NPPF consultation responses of September, and the Party conference recess.

We stand on the brink of the new Government’s first budget. It’s worth taking stock.

No point in further speculation regarding the new NPPF until we have the Government response to consultation. I will focus on energy.

What stands out for me from the first few months of this Labour Government is that:

(i)????????????????? so far as planning and energy-related decision-taking is concerned the Government has doubled down on its commitment to net zero;

(ii)??????????????? we also now have the National Energy System Operator (NESO, strictly the “Independent System Operator and Planner”), to complement Great British Energy, setting a framework for a key element of on-the-ground delivery, and perhaps an energy transmission grid fit for the low-carbon generators we have and will have; but

(iii)?????????????? we are in a holding pattern as regards the broader tapestry and tangible steps.

This week’s budget may shift the dial, though we presently only know so much. One thing we do know the budget will seek to deliver is infrastructure, lots of it, in line with one of Labour’s mantras through the election campaign, and facilitated by the Chancellor’s pre-announced changes to her fiscal rules (which pre-announcement landed her in hot water with the Speaker).

I will concentrate on those three areas: (a) decision-taking (where I will focus on energy from waste); (b) a budget for infrastructure (where I will focus on a lesser-known area of the legal framework: claims under Part I of the Land Compensation Act 1973); (c) the NESO.

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Decision-taking: focus on energy from waste

First, so far as decision-taking is concerned, to the initial flurry of consents for solar mega-farms (since sustained: see Cottam), we can now add grants for sizeable energy-from-waste schemes.

I have said previously that energy from waste is a trickier decision-nettle to grasp than many if not most other forms of low carbon energy, and a real test of the new Government’s net-zero mettle. Energy from waste is highly political, not least as many people believe that burning waste, even at very high temperatures, will cause serious harm to health. It is a quite different beast to e.g. fear of sleep disturbance from wind turbine blade thump or the like (not to downplay the seriousness of that if it does occur, simply to highlight the difference in the number of people fearful of a health effect).

I asked folk to watch this space, as I knew there were two recovered appeals for EfW with decisions expected/just in.

What I had not bargained for when I wrote that was that I would have to stay my pen out of extreme caution regarding any s.288 challenge (client request), before reporting on the 29 July 2024 permission granted by the Secretary of State for Housing, Communities and Local Government (SSHCLG) on application by Envar Composting Ltd for a healthcare waste energy recovery facility plus dry anaerobic digestion facility and pellet fertiliser facility, plus other items, in Cambridgeshire, near Huntingdon.

The Envar scheme will evolve an existing large-scale food and green waste composting site in a strikingly 21st century way. Presently, the food and green waste received at the site (almost all of the food and green waste generated by Cambridgeshire is handled by the site, some 130,000 tonnes pa) is heated and so sterilised in-vessel, then moved to windrows for regular turning, producing a decent compost (after sifting etc).

Under the scheme, the energy from the burning of healthcare waste (of which Cambridgeshire is presently a substantial net-exporter) will be used to drive a dry anaerobic digestion process for the wet fraction of the waste (essentially the food and the non-woody green waste, so the majority), capturing the biogas that is presently lost, and producing a high grade product that can be turned into fertiliser pellets, thus displacing artificial carbon-heavy fertiliser currently on the market. Undoubtedly ingenious, and offering a substantial annual carbon saving (some 40,000 tonnes of CO2 equivalent per annum) as well as other waste-related benefits. However, with inevitable adverse landscape impacts, and engendering a deeply held, if on the evidence scientifically unsupported, fear for health implications in the surrounding population.

What is most interesting about the decision, is that there was no doubt regarding the adverse landscape impacts, and a clear conclusion of conflict with the development plan taken as a whole, but that both the Inspector and the Secretary of State were satisfied the benefits, principally the carbon benefits and waste hierarchy and self-sufficiency benefits, outweighed the disbenefits. Decision here: https://assets.publishing.service.gov.uk/media/66a7755849b9c0597fdb062a/24-07-29_Combined_DL_IR_RtoC_-_St_Ives_Road_Somersham_-_3331431.pdf

Another more recent energy-from-waste decision to bear in mind is the SSHCLG’s grant of permission for a substantial energy-from-waste-recovery facility on the Isle of Portland: https://assets.publishing.service.gov.uk/media/66e8306ec069f68b7681bb7a/Recovered_appeal_-_Portland_Port__Castletown__Portland__Dorset.pdf. However, that is under s.288 challenge, and the conclusion that the proposal there (on a non-allocated site, on the Isle of Portland, well away from the main population centre in the waste plan area etc) is in accordance with the development plan is an interesting one (I have to declare an interest here too, as I am instructed for the s.288 claimant).

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We are promised a budget for infrastructure: some legal ramifications

With an infrastructure drive inevitably comes local, sometimes supra-local, opposition, and planning or other forms of public inquiry, or Development Consent Order hearings, into the bigger ticket items.

This generally marches hand in hand with a compulsory purchase process (including e.g. co-joined CPO and planning inquiries/DCO hearings straddling both) and compensation negotiations, or compensation litigation in the Upper Tribunal (Lands Chamber), for landowners with interests in land (including wayleaves) taken under statutory powers.

All potentially followed by judicial review or statutory challenge, as the case may be.

Many good textbooks exist. I defer to them.

What I want to spend a few paragraphs on here is a lesser known part of the compensation legislation: Part I of the Land Compensation Act 1973 (“Part I”). Part I is highly relevant to any infrastructure drive.

Part I provides for compensation, in certain circumstances, for owners (generally homeowners, but not exclusively) whose property has been diminished in value by “physical factors” from the use of highways or other “public works” that are immune from claims in common law nuisance.

Highways aside, the classic Part I “public works” are aerodromes and railways. But the categories of “public works” are not closed. What is required is either express or implied statutory immunity. The former is easy to spot. As to the latter, what is required is that the statute under which the public works are empowered must make nuisance an inevitability. The Lands Tribunal (the then-President, H.H. Judge Marder Q.C.) explained this long ago in Marsh v Powys County Council (1998) 75 P. & C.R. 538, a decision that sits comfortably with the Supreme Court’s more recent consideration of the limits of statutory immunity in Manchester Ship Canal Co. v United Utilities Water (2).

The Part I “physical factors” begin with noise and vibration and extend to include artificial light, dust and smoke. However, as with planning, there is no right to a view. Noise is almost invariably the principal physical factor at issue, but sometimes a case will present where e.g. artificial lighting is to the fore. I have been involved in many Part I claims down the years, and each is highly fact-specific (and location specific not only as regards the physical factors but also, crucially, the local market).

Expect to see an uptick in attempts by claimants to use Part I against the wave of infrastructure that now seems increasingly likely.

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The NESO: towards a strategic approach and a grid fit for net-zero?

Until recently, National Grid plc, a public limited company, was the UK’s electricity systems operator (ESO). However, the last Government’s Energy Act 2023 (EA 2023) makes provision, at its Part 5, for the Secretary of State to designate an “Independent System Operator and Planner” (ISOP), whose functions are defined, non-exhaustively, at s.161(3) as including:

(a) co-ordinating and directing the flow of electricity onto and over transmission systems;

(b) making and administering arrangements for the provision of services for the purpose of facilitating the co-ordination of the fl (sic) of electricity onto and over transmission systems;

(c) carrying out strategic planning and forecasting in connection with—

(i) the development of transmission systems,

(ii) the provision of services referred to in paragraph (b), and

(iii) other arrangements relating to the conveyance or supply of electricity;

(d) carrying out strategic planning and forecasting in connection with—

(i) the development of pipe-line systems for the conveyance of gas, and

(ii) other arrangements relating to the conveyance or supply of gas;

(e) providing advice, analysis or information in relation to the matters mentioned in section 171(1).

On 1 October 2024 the National Grid plc ESO transferred to public ownership and became the ISOP or, rather, as it is now billed, the National Energy System Operator (NESO). The mid-September announcement of the change came with the promise of ‘a new more strategic approach, which will help to deliver clean power by 2030. The …(NESO) will help connect new generation projects with the electricity grid, working alongside Great British Energy to deploy renewable energy, so bill payers can reap the benefits of clean, secure, homegrown power’.

It is well worth noting that the ISOP (NESO) will have a duty, pursuant to s.163 of the EA 2023, to promote particular objectives, including these at s.163(1) (which are then further explained at sub-sections (2), (3) and (4):

(1) The ISOP must carry out its functions in the way that it considers is best calculated to promote—

(a) the net zero objective;

(b) the security of supply objective;

(c) the efficiency and economy objective.

Albeit the duties are not hard-edged (see ‘best calculated’) there is at the very least now a better prospect of a strategic approach to the grid that aligns with those core objectives, and so the prospect of transmission delivery better tailored to increasingly green generation.

Now on to the budget.

As ever, only my own views, not advice etc.

ps the photo is taken on a run to Snaefell on the Isle of Man, where I recently spent a fascinating, and very enjoyable, week promoting an important piece of infrastructure – a first-time sewage treatment works for the town of Peel.

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