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Evidence, Publics and Decision-making for Major
Renewable Energy Infrastructure
Contents
Introduction ................................................................ 1
Decision making under the Planning Act 2008 ......... 4
Key findings ................................................................ 6
Recommendations .................................................... 12
The project team ...................................................... 17
Academic publications ............................................. 18
Methodology ............................................................. 20
Acknowledgements .................................................. 24
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Introduction
This booklet outlines the main policy relevant findings and recommendations from a major academic study of decision making on large renewable energy developments. The UCL team1 has been engaged in a two and a half year ESRC-funded cross disciplinary academic study, Evidence, Publics and Decision-Making for Major Wind Infrastructure. We have produced a number of scholarly papers, containing detailed discussion of our academic and theoretical conclusions.2 Here, we present those aspects of our work that may speak more directly and immediately to practice and policy.
The UCL team is cross disciplinary, with considerable experience and expertise in planning, law, and science and technology studies. We share an interest in the governance of new technologies and infrastructure, as well as in climate change as a social challenge.
‘Nationally significant infrastructure projects’ (NSIPs), including large-scale renewable energy projects, were made subject to a new decision making process by the Planning Act 2008. We thought this new process for regulatory decision making on innovative climate change infrastructure was a phenomenon worthy of in-depth study. At the same time as the Planning Act 2008 introduced this new approach to regulatory infrastructure development, the Climate Change Act 2008 introduced targets and institutional structures to drive economy-wide reductions of carbon emissions. These two pieces of legislation will be central to the de-carbonisation of the UK’s
1 See p.17 for names and contact details. 2 See the list on pp.18-19
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energy infrastructure, which in turn raises significant issues around governance and public participation. The NSIPs process is moreover likely to become more significant with any extension of the regime, to cover for example ancillary housing or major commercial development.
The legislative framework provides a number of opportunities for interested parties, including local people, to be consulted on applications for development consent. Earlier work3 conducted by the research team suggested that the strong policy commitment to promoting low carbon energy infrastructure implies a prior ‘in principle’ assumption that the proposed development is necessary. This raises important questions about the ways in which decision makers might take local impacts and the views of affected communities into account. By contrast with much of the existing literature on wind energy, our primary concern has not been that public objections will stymie wind farm development. Our concern is rather with the social purposes and legitimacy of processes that provide legally guaranteed rights for publics to participate, but in a context that may restrict the potential for public concerns and aspirations to influence final regulatory decisions in any substantial way.
This ‘public participation’ strand to the project interacts with a close assessment of the construction and use of ‘knowledge’ within this NSIPs process. We explore the different ways in which knowledge claims may be introduced into the process, by diverse professional, governmental and lay actors. We examine how different methods of introducing and substantiating these claims affect the ways in which they are heard, and adopted as evidence suitable for providing reasoning and justifications for 3 Governance of Climate Change Technologies https://www.ucl.ac.uk/public-policy/for-policy-professionals/commissions/climate-change
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recommendations. We recognise that any decision making process seeks to satisfy multiple legitimacy communities,4 and we are particularly interested in the complexity of that, within the NSIPs process.
This project is an academic study of these issues. Our work has had multiple strands, as detailed in the methodology section below. We have analysed the significant archives associated with NSIPs applications, as well as the legal and policy framework. We have also engaged in qualitative explorations of the experiences of those involved in NSIPs renewable energy decisions, through focus groups, interviews and a survey. This sort of qualitative scholarship is designed to provide insights into how a process is understood and experienced by different participants. The intention is not to provide data that is statistically representative, but rather to uncover meaning within specific contexts. We report the NSIPs regime as it has been experienced by some participants; we found that this can sometimes differ from the regime as it is intended to operate, and from the aspirations of the professionals involved.
Our findings and recommendations draw holistically from the empirical, doctrinal and theoretical scholarship in which we have engaged. More detailed argument and evidence can be found in our published work. Our website will continue to be updated www.ucl.ac.uk/nsips.
4 See for example, Black, J. (2008). Constructing and contesting legitimacy and accountability in polycentric regulatory regimes. Regulation & Governance, 2(2), 137–164.
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Decision making under the Planning Act 2008 The Planning Act 2008 sets out a process for decision-making on NSIPs, as outlined in the diagram overleaf.
The developer informs PINS (the Planning Inspectorate) of the intention to submit an application for a Development Consent Order (DCO). The developer conducts scoping work and other studies. It runs a pre-application consultation, on which it is required to consult the relevant Local Authorities. Next, during an acceptance stage lasting 28 days, the developer submits an application for development consent, including an Environmental Statement, a draft DCO and a Consultation Report. PINS determine whether the application meets the required standards or not. If the application proceeds, an Examining Authority is appointed.
The examination then lasts a maximum of 6 months during which time evidence from the Application, Written Representations, Hearings, Site Visits, and answers to multiple rounds of questioning, is considered by the Examining Authority. Whilst our project focuses on the examination stage, the links between this stage and the pre-application stage, which can last several years, must not be underestimated.
The decision stage lasts a maximum of 6 months. The Examining Authority has 3 months to make recommendations and report its ‘findings and conclusions’ to the Secretary of State, who then takes the decision within a further 3 months. The decision is open to challenge by judicial review for a period of 6 weeks.
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Diagram: Route through the Planning Act 2008
• Developer informs PINS of intent to apply
• Prepares application• Conducts consultation
Pre-application
• Application assessed and meets the required standards
Acceptance
• Written Representations
• ExA Questions• Hearings• Site Visits
Examination
• ExA Report & Recommendation
• SoS Decision
Decision
• Opportunity for challenge and judicial review
Post-decision
28 days
6 months
6 months
6 weeks
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Key findings In this section we outline those aspects of our work that
speak most directly and immediately to policy and practice.5 Our findings relate particularly to the twelve low carbon energy infrastructure projects that we have studied (see methodology below). However, many of our findings will have implications for other examinations under the Planning Act 2008, and indeed other planning processes.
Our study focused particularly on the examination stage of the NSIPs process, but our research suggests that this cannot be divorced from pre-application consultation,6 and post-consent governance arrangements. Accordingly, some of our findings relate to these stages.
Participation
• The importance of the pre-application procedures, including consultation, is not always well understood and appreciated by local communities. Nor is good practice consistently applied by developers or local authorities across cases.
• Considerable efforts are made by some Examining Authorities to put lay participants at their ease, and enable them to make their representations at hearings.
• Structural issues nevertheless limit and shape the participation of local people and businesses within the NSIPs regime. Our
5 See also our publications online at http://www.ucl.ac.uk/nsips/Progress 6 See also Marshall, T., & Cowell, R. (2016). Infrastructure, planning and the command of time. Environment and Planning C: Government and Policy, 34(8), 1843–1866.
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work suggests that the following structural limitations are
most significant:
o participation makes onerous demands of all
stakeholders;
o resources and capacities (including time and funding)
to meet those demands are unevenly distributed;
o local people sometimes find the hearings intimidating;
o heavy reliance on websites and email for
communication can be problematic for some local
people and businesses.
• Evidence from lay publics was found to be more effective
when presented in a form equivalent to that produced by
experts within statutory agencies and consultancies.
• The local interested parties with whom we engaged for the
project held diverse views of the NSIPs processes. Although
there were some positive comments, other views were often
very negative.
• Participants we surveyed perceive there to be imbalances in
the power of different actors within the regulatory process.
• Negative perceptions and experiences of the NSIPs process
may undermine the legitimacy of decision making, particularly
for some local people in the vicinity of these infrastructure
projects.
• Some local people are not confident that agreements to
mitigate the adverse impacts of the project, made by
developers within the examination, will be implemented.
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Evidence
• Examining Authorities have significant freedom to shape the evidence that is provided in the examination, for example by asking questions and requesting fresh data. Contributions from local people can help to guide this process.
• The evidential demands of the regulatory process are considerable, requiring in some cases the generation of knowledge in challenging and novel areas.
• There is a strong preference, when explaining and justifying its recommendations, for the Examining Authority to rely on technical forms of knowledge, especially when methodologies have been accredited by government or professional guidance.
• Less formalised knowledge held by local communities (such as information on bird habits from bird watchers, or on noise from sleep diaries) is generally not relied on in the explanation of decisions.
• Robust evidence on socio-economic impacts is often not provided. Local authorities often present a weak understanding of their local economies. Developers are not willing or able to provide the certainty on choice of port, procurement chains and associated employment, which would underpin a stronger analysis of impacts.
• Monitoring the impacts of a project is a frequent condition of DCOs, but data from monitoring is not managed or
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aggregated, and there is no consistent use of that data in later decisions or policy.7
• The considerable time pressure within the Examinations (see diagram) can create problems for the production of convincing evidence and the resolution of conflicts around evidence.
• The aspirations towards an inquisitorial approach are constrained by the strict time limits.
• Statements of Common Ground play a powerful role within the process.
o Statements of Common Ground are a valuable way of streamlining decision making, highlighting open issues, and progressing applications;
o whilst all issues in principle remain open for decision by the Examining Authority, in practice, Statements of Common Ground between statutory authorities and the applicant (and sometimes others) can close down areas for discussion.
Site visits can play an important role in deciding which evidence to rely on in decision-making, particularly with regard to assessing evidence on landscape, seascape and visual impacts.
7 More generally, Farber, D. A. (2006). Bringing Environmental Assessment into the Digital Age. UC Berkeley Public Law Research Paper No. 877625, 64(2002), 347–349.
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Mitigation of impacts
• A major effect of the NSIPs regime, including the pre-application consultation as well as the examination, is to allow the negotiation of measures to mitigate project impacts. Mitigation can involve financial payments as well as changes to the infrastructure project itself.
• The monitoring and enforcement of agreements to mitigate the adverse impacts of a project rely on processes outside the NSIPs regime, including:
o monitoring of the impacts of the project during construction and operation by the developer;
o local authority and other regulatory (for example Environment Agency) responsibility for enforcing the terms of the DCO;
o ongoing and ad hoc governance arrangements, for example monitoring by and negotiation with local liaison groups.
• Fishing communities benefit from the outputs of the FLOWW (Fishing Liaison with Offshore Wind and Wet Renewables) group; however, there is nothing equivalent for other local business communities.
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Policy
• National Policy Statements play a powerful role in the NSIPs
decision, confirming earlier research.8
• Whilst local and Welsh planning policy is a material
consideration, and is considered in decision making, it has
limited impact in justifying the decision.
• Certain protective underpinnings to the NSIPs regime
(including for public participation, nature conservation, air
and water quality) find their basis and their strong
enforceability in EU law.
8 Governance of Climate Change Technologies https://www.ucl.ac.uk/public-policy/for-policy-professionals/commissions/climate-change
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Recommendations The following recommendations stem from the findings
outlined in the previous section. They are targeted at supporting present practice under the Planning Act, rather than arguing for any fundamental structural change to decision making on NSIPs.
Many of the recommendations below make implicit, but deliberate and important, recommendations that adequate funding be provided for this process.
For the UK Government and the Welsh Assembly Government
• Government needs to provide adequate funding for statutory bodies (Natural England, the Environment Agency, Natural Resources Wales, etc.) to meet the special demands placed on them by the NSIPs process, and its calls for evidence-based decision making.
• A dedicated funding stream should support the involvement of local residents and local business representatives in the NSIPs process, including at the pre-application stage. It is not appropriate to rely entirely on developers’ commitment to community engagement at the pre-application stage.
• Protocols for involving and recognising the impacts on local businesses beyond the fishing industry should be established.
• An accessible central government repository for the collection, aggregation and management of data from monitoring of NSIPs should be provided.
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For Local Government
• Local authorities should engage robustly with the pre-application consultations undertaken by the developer, emphasising the importance of full inclusion of local communities.
• Local authorities should host a website setting out all pre-application representations received by the developer, and the developer’s responses to them. This should remain accessible throughout the process.
• Local authorities should develop better intelligence on their local area, especially the local economy. They should invest adequately in Local Impact Reports, so that these properly represent the local area.
• Local Authorities should take seriously their obligations to monitor and enforce compliance with the DCO. They should explain to their local communities exactly what they are doing, and how local people can report concerns.
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For the Planning Inspectorate
• The considerable good practice of some Examining Authorities, in enabling lay people to feel that they have had adequate opportunity to put their views and concerns forward, should be shared more fully within PINs.
• When deciding whether to accept an application for a DCO, Examining Authorities should make use of their opportunity to scrutinise the substance and quality of pre-application consultation.
• Examining Authorities should make greater efforts to engage with lay knowledge that is relevant to the application, but is not expressed in formal or approved methodologies or approaches.
• Funding should be provided to ensure the fullest possible public involvement in decisions. This could include:
o funding for training or representation of the public at formal meetings;
o assistance to allow those unfamiliar with these sorts of archives to make use of the rich source of information provided by the NSIPs website.
• Opportunities should be provided for any interested parties to respond to Statements of Common Ground before they are finalised, for instance by a public register of draft Statements of Common Ground.
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For NGOs and local stakeholders
• Those representing local interests will have greater influence if they engage fully with the process, including the pre-application process, attending hearings, joining site visits and responding to rounds of questions put by the Examining Authority.
• Local interested parties will be more influential if they provide evidence that is commensurate in rigour and depth with that offered by the applicant and expert agencies. They should be aware of the importance of sourcing relevant expertise.
• As well as presenting their own views and concerns as rigorously as possible, local interested parties should critique the representations of others where appropriate.
• Local interested parties should give consideration to coordinating with each other and / or to consolidating their representations through an umbrella NGO.
• Local interested parties should keep a careful watch on the development of Statements of Common Ground.
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For developers
• Additional time building trust and community relations from the pre-application stage all the way through the process, extending to clarity on responsibilities for the monitoring of construction and operation, will contribute to more meaningful exchanges in consultations.
• Developers should help publics to understand the significance of all stages of decision making, especially the ways in which the pre-application consultation can set the scope of the issues up for discussion during the examination.
• Best practice in consultation should always be followed. The following practices were particularly important in our research:
o varied scheduling of events to enable access for different audiences;
o accessible location of events; o avoidance of last minute changes to venues and
timing; o a variety of communication options; o avoidance of jargon, careful explanation of technical
points. • Developers should appoint a named individual for the public
to speak to directly, and publicise this opportunity widely.
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The project team
Professor Yvonne Rydin
Chair of Planning Environment
& Public Policy, The Bartlett
School of Planning, Faculty of
the Built Environment
Professor Maria Lee
Professor of Laws, Co-director
of the Centre for Law and the
Environment, Faculty of Laws
Dr. Simon Lock
Lecturer in Science
Communication & Governance,
Department of Science &
Technology Studies, Faculty of
Maths & Physical Sciences
Dr. Lucy Natarajan
Research Associate, The
Bartlett School of Planning,
Faculty of the Built
Environment
With support on focus groups and interviews from Efstathia
Kostopoulou, Researcher at the Bartlett School of Planning.
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Academic publications A number of academic papers are in press or preparation; the following is a current list of titles. Please contact the lead author listed for details of the publication status of specific papers.
1. “Knowledge of Landscape in Wind Energy Planning” (Lee) Legal Studies. 37(1), 2017, pp. 3–24. DOI: 10.1111/lest.12156
2. “Artefacts, the Gaze and Sensory Experience: mediating local environments in the planning regulation of major renewable energy infrastructure in England and Wales” (Rydin, Natarajan, Lee and Lock). In Kurath et al. (ed.s) Rethinking Planning: tracing artefacts, agency and practices. Routledge. ISBN 978-3-319-60461-9
3. “Local Voices on Renewable energy projects: the performative role of the regulatory process for major offshore infrastructure in England and Wales” (Rydin, Lee, Lock and Natarajan). Under review
4. “Black-Boxing the Evidence: planning regulation and major renewable energy infrastructure projects in England and Wales” (Rydin, Lee, Lock and Natarajan). Under review
5. “Do Local Economic Interests Matter When Regulating Nationally Significant Infrastructure? The case of renewable energy infrastructure projects” (Rydin, Natarajan, Lee and Lock). Under review
6. “Navigating the participatory processes of Renewable Energy Infrastructure regulation: a ‘local participant perspective’ on the NSIPs regime” (Natarajan, Rydin, Lee and Lock). Under review
7. “Spatial Planning and Wind Power in Wales” (Natarajan). Under review
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8. “Techniques of knowing in administration: Co-production, models and planning law” (Lee, Natarajan, Lock, and Rydin). Under review
9. “Law, Planning and Science and Technology Studies” (Lee, Natarajan, Rydin and Lock). In draft
10. “Local Public Perceptions of the Regulatory Process for Major Renewable Energy Infrastructure” (Lock, Natarajan, Rydin and Lee). In draft
11. “Re-theorising Planning Regulation” (Rydin). In draft 12. “Public understandings of the NSIPs” (Lock). In draft 13. “The divergent expectations of stakeholder engagement:
developer and community views on the NSIPs processes” (Lock, Natarajan, Lee and Rydin). In draft
14. “Planning for rural communities & major renewable energy infrastructure” In Scott M., et al. (ed.s), Routledge Companion to Rural Planning. Routledge. (Natarajan). In draft
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Methodology The methodology for the project reflected the involvement of different disciplines, but was broadly qualitative in nature. The research design involved a) selection of NSIPs cases for study, b) data collection through various means, and c) data analysis using different approaches and d) development of a synthetic understanding through collaboration between the disciplinary perspectives.
Selection of our case studies: We looked at twelve renewable energy projects in England and Wales that had been through the NSIPs process to decision.
• 7 offshore wind farms (one was not granted consent) • 2 onshore wind farms • 1 biomass plant • 1 energy from waste plant • 1 tidal lagoon
These case studies were selected by considering the 14 renewable energy projects that had been through the regulatory process in the Summer of 2015. Three offshore wind-farms were excluded in order to keep the research task manageable within the given time-scale, given that the issues raised by these wind-farms were likely to have been covered by other cases in the sample. One offshore wind farm was subsequently added, in order to include the only wind farm application at the time to have been declined.
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Data collection: Three main methods were employed:
1. Close analysis of the Examining Authorities’ reports for these 12 cases; additional coding was undertaken using 119 codes across the five themes of actors, impacts, evidence, policy and mitigation, and the robustness of the coding verified.
2. Focus groups with local people involved in eight of these cases, together with a ‘control’ focus group of people involved in an NSIPs process in London; discussions were transcribed and coded using the five main themes.
3. An online survey of all local people and organisations associated with the 12 cases, plus the additional London case, where their contact details could be found (n=394).
Supporting data was collected through: selective follow-up of documentation held on the NSIPs website for the 12 cases; visits to two hearings, one accompanied site visit and a community engagement exhibition for three ‘live’ cases in total; and a round of telephone interviews with community consultation facilitators and national NGOs (n=9).
Data analysis: The close reading of the reports provided a form of analysis close to doctrinal analysis in legal studies; this was cross-referenced with repeated iterative rounds of software-assisted code runs performed using NVivo. Similarly close-reading of the focus group transcripts was cross-referenced with code runs using NVivo. The survey results (n=110) were analysed using simple descriptive statistics but the more useful data was often found in the answers within open-ended comment boxes.
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The final analysis of the research findings drew on all these elements ‘in conversation’ with each other, as well as with the theoretical literature and broader legal doctrinal material. Emergent findings were triangulated using different analyses of the different datasets. These were then validated through a series of workshops and telephone interviews with Examining Authorities, renewable energy infrastructure developers, national NGO representatives and the project advisory group.
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Project Cases
1. Walney Extension Offshore Wind Farm 2. Burbo Bank Extension Offshore Wind Farm 3. Clocaenog Forest Wind Farm 4. Brechfa Forest Wind Farm 5. Swansea Bay Tidal Lagoon 6. Navitus Bay Offshore Wind Farm 7. Rampion Offshore Wind Farm 8. Rookery South Energy from Waste 9. Kentish Flats Extension Offshore Wind Farm 10. Galloper Offshore Wind Farm 11. Triton Knoll Offshore Wind Farm 12. North Blyth Biomass Plant
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Acknowledgements
We are grateful to the Economic and Social Research Council
for funding our project under:
ESRC Award No. 164522: Evidence, Publics and Decision-
making for Major Wind Infrastructure
The research benefitted considerably from the contributions of
an Advisory Group, to whom the project team are very grateful:
Richard Broadbent, Natural England
Professor Richard Cowell, Cardiff University
Professor Patrick Devine-Wright, University
Dr Hugh Ellis, Town and Country Planning Association
Gemma Grimes, National Trust
Emma Harling-Philips, Pinsent Masons
Dr Peter Jones, UCL
Gary Kass, Natural England
Naomi Luhde-Thompson, Friends of the Earth
Robert McCracken QC, Francis Taylor Building
We owe a debt of gratitude to those who participated in the
research, via focus groups, interviews, the survey, and
workshops. These individuals and organisations gave their time
generously, and their contributions were invaluable.
Notes Page
Notes Page
December 2017
Project Website www.ucl.ac.uk/nsips
Cover image: Helen Haden via Flickr CC BY-SA 2.0
Project cases: map data © 2017 Google via My Maps
