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In recent years there have been increasing calls to streamline the consenting process for renewable energy development in light of the climate emergency. The war in Ukraine has changed our world in many ways, not least the need to eliminate our reliance on imported fossil fuel, increasing calls to accelerate the deployment of renewable energy.
What have the policy makers done about it?
The European Commission published REPowerEU in May 2022 (COM/2022/230). The plan recognises the need to accelerate the consenting process, proposing that Member State designate ‘go-to’ areas where renewable energy development would be permitted in principle and declares renewable energy as an overriding public interest. To give effect to this, the Council adopted Regulation (EU) 2022/2577 on 22 December 2022 laying down a framework to accelerate the deployment of renewable energy (the Regulation).
At national level the Government initiated a review of our planning laws to address the considerable time delays endemic in our planning system. This review was led by the Attorney General and a draft Bill was published on the 26 January 2023 (the Bill). The Bill consolidates and simplifies our planning legislation which has evolved into a legal labyrinth through the many amendments over the 20 plus years since its last overhaul.
Will these measures expedite the delivery of renewable energy projects?
The Regulation provides that “[the] planning and operation of plants and installations for the production of energy from renewable sources shall be presumed as being in the overriding public interest and serving public health and safety” for the purpose of the Habitats Directive (Directive 94/43/EEC), the Birds Directive (Directive 2009/147/EC) and the Water Framework Directive (Directive 2000/60/EC). The consequence of this is to rebalance the harsh application of these directives in the case of renewable energy development: for example, notwithstanding an appropriate assessment concluding that a proposed development will adversely affect a European Site, a consenting authority may nonetheless grant permission where there are no alternative solutions and appropriate compensation measures will be adopted.
The Regulation also permits Member States to exempt renewable energy projects from the requirement to undertake an environmental impact assessment where the project is located in “a dedicated renewable energy area… and… the area… has been subject to a strategic environmental assessment” – i.e. renewable energy ‘go-to’ areas.
The measures provided for in the Regulation are only effective for 18 months from the date of adoption but with provision to extend this period. It is likely that this period will be extended, or if not the substance of the Regulation replaced with a Directive.
The Bill requires all planning decisions to be made within mandatory maximum timelines – although the time periods are yet to be decided. Other changes include the specification of time periods for each of the stages of the judicial review process and not just the initiation of proceedings as at present.
One measure proposed under the Bill which has the potential to have a significant impact allows planning authorities to make an amended decision correcting any error of law or fact contained in a decision. The authority may also apply to the court to stay any judicial review proceedings and to seek directions on the steps required to amend the decision.
Regulation (EU) 2022/2577 represents an unprecedented measure with significant potential to streamline the consenting process. In particular, the exemption of renewable energy projects and associated infrastructure from the requirement to undertake an environmental impact assessment However, to realise this potential Member States need to act urgently and decisively to designate renewable ‘go-to’ areas.
Mandatory time periods to make decisions and the streamlining of the judicial review process are welcome, however, in the absence of adequate experienced resources it could have the opposite effect, with hurried decision making increasing the risk of judicial reviews. Similarly, the Courts Service needs to be adequately resourced if they are to manage the case load in accordance with the proposed time periods. Indeed, this critical constraint was acknowledged by the European Commission in COM/2022/591, proposing the Regulation:
“…ensuring adequate staffing of the permit-granting bodies and environmental assessment authorities with relevant skills and qualifications remains essential to reap the full benefits of any simplification of permitting procedures…”
Stuart Conaty, Partner, Energy and Natural Resources, Beauchamps