Introduction
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| 1. |
The National Assembly
for Wales is seeking to transfer powers currently
held by the Secretary of State for Trade and Industry,
under Sections 36 and 37 of the Electricity Act
1989. |
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Section 36 of
the Act consents to the construction, extension
and operation of a generating station over
50 megawatts (MW), |
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Section 37 consents
to the installation of above ground electricity
lines. |
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The powers for maintenance
and control of energy under the Energy Acts of 1976
and 1983 are not being sought and are fully reserved
by the Department of Trade and Industry at UK level.
These powers are not therefore devolved to the Scottish
Executive. |
Issue
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| 2. |
At present responsibility
for consenting power stations with a generating
capacity of greater than 50 MW in England and Wales
rests with the Secretary of State for Trade and
Industry, under the provisions of Section 36 of
the Electricity Act 1989. The Assembly Government
is a formal consultee in the consents process but
has no statutory role in the process. The Assembly
Government’s has a limited role, while the
Scottish Executive has the statutory powers to consent
power stations under the Electricity Act 1989. |
| 3. |
Power station projects
are major infrastructure developments and as such
there is a political and public imperative for the
National Assembly for Wales to seek Section 36 and
37 functions under the Electricity Act 1989. In
essence, such functions would allow the National
Assembly for Wales to make its own decisions on
all power generation developments within Wales and
Welsh territorial waters and their associated overhead
line provision (grid connection). |
Current position
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| 4. |
As matters stand, any
proposed developments in Wales in excess of 50MW,
and which are accompanied by an Environmental Impact
Assessment, are made by developers to the Secretary
of State, DTI. She undertakes a full consultation
with statutory consultees, under the Town and Country
Planning (Environmental Impact Assessment) (England
and Wales) Regulations 1999,which are the Local
Planning Authority (LPA), Countryside Council for
Wales and the Environment Agency and formal consultees,
including the Welsh Assembly Government and Defence
Estates. |
| 5. |
In respect of the role
of the LPA in the process, the procedure for obtaining
consent under section 36 of the Electricity Act
1989 is set out in schedule 8 of the Act. Paragraph
2(i) of this schedule requires the applicant to
serve notice on the Department of Trade and Industry
(DTI) and to also inform the Local Planning Authority
(LPA). The LPA then has 4 months to respond to the
DTI. The LPA's role is therefore statutory and a
formal part of the section 36 consent process. Although
the LPA is not the decision-maker in relation to
section 36 consent it will usually undertake its
own wide consultations at the local level in coming
to a decision on whether to support or object to
the proposal. |
| 6. |
If the LPA formally objects
to the proposed development, a public local inquiry
(Pli) must be held. Only the LPA's objection automatically
triggers a Pli; in other cases an Inquiry will be
held at the discretion of the Secretary of State
for DTI. |
| 7. |
The Welsh Assembly Government
is a formal consultee in the Section 36 and 37 process
for power stations of greater than 50 MW. As such
it is asked to submit comment on the applications.
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| 8. |
In formulating its comments,
the Assembly Government is mindful of the limitations
on what it can legally say in that Parliament has
entrusted the consent decision to the Secretary
of State for Trade and Industry alone. Because it
is a decision which affects the rights of individuals
(including those of the applicants and objectors)
it is quasi judicial in nature and has to be taken
in accordance with strict legal guidelines. Failure
to do so would render the decision unlawful and
liable to challenge. |
Examples
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| 9. |
Since devolution two
power stations in excess of 50 MW have been proposed
under the provisions of Sections 36 and 37 of the
Electricity Act 1989. These are the Cefn Croes windfarm
in Ceredigion and the Rassau Combined Cycle Gas
Turbine power station in Blaenau Gwent. |
The Cefn Croes Windfarm
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| 10. |
The Cefn Croes windfarm
sought consent for the installation of 39, 1.5MW
wind turbine generators, the construction of access
tracks and ancillary development on land which forms
part of the Canolbarth Forest, Cefn Croes, Ceredigion.
The Application was made under Section 36 of the
Electricity Act 1989 to the Secretary of State for
Trade and Industry. A separate application for a
132KV overhead line was also sought under Section
37 of the Electricity Act 1989. |
| 11. |
In the case of Cefn Croes,
Ceredigion County Council Development Control and
Licensing Committee considered the application on
11July and found in favour of the Application. The
County Council therefore resolved not to object
to the proposal; this decision was taken against
the recommendation of its officials. |
| 12. |
As a formal consultee
the DTI sought comments from the Welsh Assembly
Government. In preparing a response to DTI and mindful
of legal limitations, the Welsh Assembly Government
took a strategic but objective approach in its consideration
of the Cefn Croes application. It balanced views
from across a broad range of its functions taking
account of views given by statutory advisors like
the Countryside Council for Wales and the Environment
Agency. The Assembly Government's response fully
set out the strategic views expressed from the economic,
environmental, conservation, tourism, agriculture,
planning and transport perspective. |
| 13. |
The DTI Energy Minister
announced the decision to approve the proposal on
23 May 2002. |
Rassau
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| 14. |
In 2001 the power generating
company Enron, made an application under the provisions
of the Electricity Act 1989 for the construction
of a 1,200MW power station at Rassau near Ebbw Vale,
the first such application since devolution. |
| 15. |
The Local Planning Authority
(LPA) was consulted as a statutory consultee by
the DTI and the Assembly Government was a formal
consultee. The LPA formally objected to the application;
this would have automatically triggered a Pli but
the company withdrew its application. |
| 16. |
The project, had it gone
ahead, would have contributed significantly to generation
in SE Wales where electricity costs are around 7%
above the UK average because of a shortage of local
generation. The Enron proposal represented a £400 million
capital investment. Construction would have taken
two and a half years involving 900 workers, 1,200
at the peak of activity. One hundred and fifty permanent
jobs were expected to be created. |
| 17. |
Despite the significance
of the project to the Welsh economy, The Welsh Assembly
Government was no more than a formal consultee on
the proposal. Regardless of the withdrawal of the
project the Welsh Assembly Government's position
meant that it effectively had no meaningful role
in considering a project of major economic significance.
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