Publications - Commercial Litigation & Dispute Resolution - Scotland
10 November 2006
Best laid plans
by Craig Connal
(Published Utility Week)
Any reader of the recent energy review will have little difficulty in spotting the government's frustration with the role of the planning system in energy projects. At its most basic, planning is a compromise between the right of devel-opers to do anything they want and the right of the public interest to determine what is appropriate and where it should take place. Whichever way the balance in the resulting compromise swings, there will be complaints.Looking generally at large energy infrastructure projects, the energy review recognises that the consents system has a number of elements. These include public participation, the assessment of environmental impacts and the potential for public inquiries.
To make this system more "efficient", the review proposes that development proposals be reviewed against a proper strategic context. It says the government should employ more efficient procedures to streamline any public in-quiry and have appropriate mechanisms in place to ensure that the ultimate decision of the inquiry is not unduly de-layed. One can immediately see both the logic of these proposals and where challenges might emerge. It is important to understand just how far the review proposes this process should go in the context of nuclear new-build. First, the ques-tion of whether there is a need for nuclear power will be decided at national level. Any planning inquiry would proceed on the basis that there had been public consultation on the strategic issues and would not consider the matter further. Next there would be "justification", which would look at reactor design, decommissioning and waste management. Again, these matters would not be considered at inquiry.The government would then go further.There would be a "stra-tegic assessment involving public consultation" to determine the "high level" environmental impacts of nuclear new-build, the criteria for suitable sites and, crucially, how potential sites meet these criteria. None of these issues would be considered at inquiry either.So what is an inquiry to do? Apparently the inquiry would look at the relevance of the local plan, local environmental impacts (including mitigation and minimisation) and local benefits. The inquiry itself would be made much more efficient, even within that restricted role. Of course, if it has been established that nuclear new build is a good idea, that the design proposed is generally safe, that there are no strategic environmental problems and that the site proposed for the development is among those regarded as suitable, objectors can argue that there is little point in any further public participation because it is unlikely to have any impact on the result. Indeed, the Campaign to Protect Rural England has already complained that local people's right to voice their opposition at public inquiry will be drastically reduced under the new arrangements, and that the government may be guilty of restricting human rights. It has already been accepted that public participation is crucial.
Much may ultimately depend on the extent to which public participation takes place, and whether it is adequate to fulfil its proper role in the process.Some issues surrounding new nuclear power plant may not require public participation in any great detail. For example, technical aspects of reactor design may not lend themselves to such discussion. However, that most controversial of issues - disposal of nuclear waste - must give rise to particular difficulties. Although it is capable of being presented as a technical scientific issue, the nature of the uncertainty that it brings, against a background of enormous public concern, leaves waste disposal vul-nerable to challengers who wish to convince a court that the necessary requirements have not been met. A word on Scotland. Although energy policy in Scotland is reserved to the UK government, planning policy has been devolved to the Scottish administration. While the Scottish Executive is also looking to give increasing prominence to a national planning framework (thus removing them from local inquiries) the current administration is, particularly in the context of nuclear, an uneasy coalition between Labour and the Liberal Democrats. It may be relevant to note that a Scottish parliamentary election is looming in May 2007 at which the coalition partners will campaign separately, while looking over their shoulders - in particular at the Scottish National Party, which is hostile to nuclear generation. Questions may therefore arise as to whether what is set out in the energy review can be effectively delivered north of the border.
Craig Connal QC is partner and head of Commercial Litigation & Dispute Resolution at law firm McGrigors. Email: craig.connal@mcgrigors.com
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