Commercial awareness: Planning process gets boost

The new significant infrastructure projects regime will help prevent another wind-farm hiatus, writes Rory Trust of Burges Salmon


Rory Trust, trainee,  Burges Salmon
Rory Trust, trainee, Burges Salmon

The largest public inquiry into the consenting of wind farms in the UK will begin in June, deciding the fate of five projects with a combined capacity of about 500 MW.

The Mid Wales (Powys) Conjoined Wind Farms Public Inquiry will finally determine the fate of applications made as far back as 2007.

Public inquiries can be stressful, involving significant cost, time and uncertainty. Advising clients through this is as much about managing expectations and project management as it is about actually doing the advocacy.

As a first-year trainee in the planning unit at Burges Salmon I have been lucky enough to be involved with several public inquiries, including Mid Wales. Working with solicitor Cathryn Tracey and partners Patrick Robinson and Elizabeth Dunn, this has included attending client strategy meetings, liaising with witnesses and attending the inquiry.

As the Burges Salmon planning unit includes solicitor-advocates it frequently represents clients at inquiry as well as completing the preparation work. Listening to clients’ concerns throughout this process reveals a lot about the practicalities of delivering major energy projects through the planning system.

Holding public inquiries to determine planning applications for major infrastructure projects was replaced two years ago by the nationally significant infrastructure projects (NSIP) regime under the Planning Act 2008.

However, applications made before the NSIP regime came into force in 2010 are still being decided under the old system, under which applications for electricity projects above a certain capacity were determined by the secretary of state and could require a public inquiry.

This process can be protracted, resulting in a great deal of uncertainty. Developers in the Mid Wales Inquiry have had to wait years for confirmation of the local authority’s position and whether an inquiry will be called.

Under the new regime, planning applications for certain categories of development, known as NSIPs, are decided by the secretary of state following a planning inspector’s recommendation.

The NSIP regime has deadlines for each stage of the process: from the date of an application being accepted, a decision will be made within a maximum of 12 months.

Burges Salmon has advised on several of the first energy projects to be consented under the NSIP regime and the feedback from clients has been extremely positive.

While the final decision about whether a project will be given consent is no more certain under the regime, the set timelines provide a real commercial advantage. Clients can project-manage more effectively and implement provisions for issues such as procurement in the knowledge that they will have a decision by a certain date.

With new nuclear power stations, tidal energy projects and a raft of offshore wind farms in the NSIP pipeline, it is an exciting time to be at the forefront of planning.