Manual of procedures for EU energy projects published

Angus Walker picture-13This entry reports on the publication of a manual of procedures for cross-boundary infrastructure projects.

A previous blog entry referred to so-called 'projects of common interest' (PCIs), energy projects that involved more than one member state of the European Union that had asked to be given such a status. The initial list had 24 projects where the UK was one of the member states, mainly interconnectors of gas pipelines or electricity cables.

Each member state was given a target of 16 May 2014 to publish a 'manual of procedures' about how such projects would get consent in compliance with the process set out in the corresponding EU regulation. There are some interesting implications for nationally significant infrastructure projects, so read on.

The manual

The UK manual of procedures was duly published on Wednesday, two days before the deadline. It can be found here. 

According to paragraph 2.3, the UK has decided to adopt the loosest of the three approaches to the 'one stop shop', the 'collaborative scheme'. In other words there are still to be consents that will be needed that are outside the main consent, but the main consenting authority, who in England is the Secretary of State for Energy and Climate Change, will keep tabs on them.

When a project is to seek consent, the first step is that the project promoter sends information about the project to the member states concerned, who have three months to decide whether the information is in order and the project is 'mature' enough to proceed. The UK government is at pains not to add to the burdens on project developers, and says that a short letter or email will do. Having said that, it then lists nine things the letter should contain:

  • A description of the main elements of the project in the UK;
  • A description of the main elements of the project in other member states;
  • The location of the project, including whether any Natura 2000 (protected ecological) sites are involved;
  • Whether it needs environmental impact assessment;
  • The main developer(s) in each member state;
  • Any consultations already carried out;
  • A preliminary project timetable, all the way up to operation;
  • Contact details of the consenting bodies in the other member state(s);
  • Contact details for the developer.

The consenting authority then has to do a bit of work to come up with a 'detailed schedule for the permit granting process', and in the UK this will be done within three months. This should contain:

  • The consents needed;
  • The consenting bodies, organisations and people likely to be involved;
  • The stages of the project and their duration;
  • Major milestones and deadlines;
  • The resources the consenting bodies are likely to need.

The manual notes that there is not normally a timescale set down for pre-application stages, so it will be for the developer to propose timescales. Even post-application, only the Planning Act 2008 regime has fixed timescales, for other regimes target timescales will be used (e.g. 16 weeks for ordinary planning applications).

Pre-application consultation is required, and although the Planning Act 2008 regime already requires this, the EU regulation for these projects is more prescriptive:

  • There must be an information leaflet about the project of no more than 15 pages;
  • Affected stakeholders must be informed about the project through the project website;
  • There must be written invitations to 'dedicated meetings' to discuss concerns.

The application is to be sent in draft to the consenting authority, who may ask for further information. The manual notes that the 28-day acceptance period under the Planning Act does not currently allow for this, and so it must be done in advance of actually submitting the application.

The timescale from draft applicaton file to decision is supposed to be no more than 18 months. This includes all subsidiary consents, applications for which the main consenting body should be copied into.

Section 5 of the manual compares all the various consenting regimes in England, Scotland, Wales and Northern Ireland for energy projects, and at Annex 1 there is a summary table of the main consents needed.

Analysis

The manual appears to be trying to squeeze the requirements of the EU regulation into existing consenting regimes, but with only limited success. For regimes other than the Planning Act 2008 pre-application consultation is voluntary, but if a project is in the list of PCIs it becomes compulsory. Even for projects under the Planning Act, there are extra tweaks to the consultation (e.g. written invitations to dedicated meetings, an information leaflet of no more than 15 pages) that are not required under that Act.

As acknowledged at paragraph 1.4 of the manual, this regulation has 'direct application', i.e. it is automatically part of UK law. Thus the processes set out in the manual are an additional compulsory layer that cannot be avoided.

The purpose of the regulation is to speed up these projects as they are deemed important for EU connectivity, and to incentivise developers they get 'improved regulatory treatment' and financial support unavailable to other projects.

Although 18 months is a bit shorter than the average time from pre-application consultation to decision for Planning Act projects, it is longer than some smaller projects take under other regimes. It would thus be a shame if the effect of the regulation in the UK was to slow down projects.

Although the common process set out in the regulation follows the Planning Act fairly closely, it is not exactly the same and so the differences become extra hurdles to spot and overcome. On the other hand some of the steps would be quite helpful if imported to the Planning Act regime such as the consenting authority coming up with a schedule of consents needed and other information. Something for the pre-application protocol, perhaps?

Perhaps the EU will move towards mirroring the Planning Act a bit more closely and vice versa, and it may also apply similar processes to other cross-boundary infrastructure projects such as transport projects. Definitely worth keeping an eye on.