Nuclear projects are subject to a long and arduous process before they can get started on physical development in the UK. In particular, they are required to obtain planning permissions, and environmental permits. One other consent – early on in the process – is obtaining ‘regulatory justification’, a topic that has been discussed in the blog on quite a few occasions. We’ve worked with developers in seeking to get over this hurdle.
Regulatory justification, broadly, is the approval required to show that the benefits of a nuclear technology outweigh the potential impacts on human health. Regulatory Justification is a requirement in the UK under the Justification of Practices Involving Ionising Radiation Regulations 2004, which requires regulatory justification on ‘a new class or type of practice’. This post-dates all the UK’s current reactors, the most recent of which, Sizewell B, was completed in 1995. All currently operating and historic reactors were ‘grandfathered-in’ as existing classes or types of practice of the use of ionising radiation.
We, and others (see here), have written about how this approval is being used on a technology-by-technology basis, rather than more general purpose as intended. This would mean that each SMR design would need to seek it’s own regulatory justification. We have been given permission to share this legal opinion which makes clear that an approach which determined all light-water fuelled reactors were justified is lawful and possible. Please do read the whole legal opinion, it’s a great read. In the meantime, a parliamentary question has been asked about effectively taking this approach.
Racing to 150
The government has announced that it has a target of fast-tracking the determination of 150 DCOs over the course of this parliament. You might want to underline the word ‘determination’ (not ‘granting’) in that sentence, but the drive is clear: the Prime Minister wants to send ‘a very clear message to the nimbys, the regulators, the blockers and bureaucrats’. The total number of DCOs granted since the regime came into force (15 years ago or so) is approximately 140, 10 below the target over the course of the coming five years.
The other interesting phrase the Prime Minister used was ‘fast-tracking’, but it does not appear that many developers are taking up the (formally defined, new) fast-track route. How could this target be met? There are currently 36 applications in the post-acceptance stage. As far as the official record is concerned, there are 46 applications at the pre-application stage (though that includes some zombie projects). Together, those would constitute just half of the target, but getting the other half to come forward – noting the requirements for pre-application consultation, EIA production and development, means that it is an ambitious target indeed.
A tale of two appeals
Whilst we’re waiting for some DCO decisions to be made, two appeal decisions caught my eye. First, an appeal where the Inspector and Secretary of State agreed that the proposal for a data centre in Slough would be inappropriate development in the Green Belt. This meant that there was a conflict with the local plan meaning some other material consideration would have to override that conflict, and for the purposes of the NPPF, ‘very special circumstances’ would need to be found. And, bam, they were indeed found: importantly the need for data centres to come forward was a substantial part of that finding (see paragraphs 271 and 272).
That is a welcome and stark departure from some of the more recent refusals from last year (see here) for a proposal in which very special circumstances were not made out by the need for data centres. Interestingly in the more recent decision, there is also an affirmation that legal costs borne by the council in connection with the development (see paragraphs 252-5 of the Inspector’s Report) should not be paid by the developer. This is an interesting contrast to much of the recent discourse on ensuring cost recovery, and is also to be encouraged.
The second appeal decision that caught my eye was the Secretary of State overruling an Inspector’s recommendation that a new prison in Lancashire should not be granted planning permission. The key issues in this appeal related to highway traffic and safety impacts. In all the cases, the Secretary of State finds limited harm reinforcing the point that highway impacts have to be really, really bad on an overall scale before they are a basis for refusing planning permission. In this case too, the need for the development (ie, prisons which are nearing 98% capacity nationally) carried the day.