Planning authorities

All decisions to build new plant will require review by a competent author­ity in the affected jurisdiction. This is recognised by the IAEA as a funda­mental feature of nuclear law and commonly referred to as the permission principle. Their Handbook on Nuclear Law describes the principle in the following terms:

. . . this principle holds that, unless specifically exempted, any activity related to the use of nuclear material and technology should be permitted only after competent authorities have determined that it can be conducted in a manner that does not pose an unacceptable risk to public health, safety and the envi­ronment. . . Where a nuclear related activity is deemed to pose a significant health or safety risk, governments require that an explicit authorization be issued by the regulatory body following an application and review process. . . The national legal infrastructure in each State will determine the conditions and procedures applicable to such authorizations and notifications, including any limits on the regulatory body’s power to impose additional requirements (Stoiber et al., 2003, pp. 34-35).

Prior to 2009, the UK planning system required the consent of the Secretary of State for the construction of any form of power station with a capacity greater than 50 megawatts. This was a requirement imposed by Section 36 of the Electricity Act 1989. The grant of consent operated in such a way that the applicant was usually deemed to have also been given plan­ning permission (see Town and Country Planning Act 1990 (TCPA, 1990, section 90(2)). Although to a certain extent the discretion of the Secretary of State was fettered by the evidence presented (including that from EIAs and public inquiries) which had to be judged against set criteria, the powers provided were extensive.

The Section 36 consenting procedure no longer applies in the UK and it has been replaced by a new regime introduced by the PA 2008 (McCracken, 2009). It was widely felt that the Section 36 regime was unsuitable for con­senting major infrastructure projects and too time-consuming. The chal­lenge was ‘to transform the regime for major infrastructure projects in order to achieve outcomes that are both faster and fairer; both more efficient and more accountable; and which both ensure more timely delivery, and improve the ability of communities and individuals to participate in the system’ (Kelly, 2008, p. 2). The Infrastructure Planning Commission (IPC) was created to decide applications relating to ‘nationally significantly infrastruc­ture’ such as generating stations, highways, airports, railways and hazardous waste facilities. Within a few months of its formation, the coalition govern­ment decided to abolish the IPC and replace it with another new body called the Major Planning Infrastructure Unit (MPIU) which will operate as a specialised branch of the Planning Inspectorate. The key reason for this change was that the coalition government wanted to ensure that elected ministers would be vested with decision-making powers rather than une­lected IPC commissioners. At the time of publication, the legislation which is intended to replace the IPC has not been given effect and the IPC con­tinues to be the relevant decision-making body in the intervening period. Despite the impending reform, it is expected that most of the changes introduced by the PA 2008 will be retained going forwards. The 50 mega­watts threshold continues to apply to generating stations, which effectively means that all new nuclear power plants will have to seek development consent from the IPC/MPIU. Schedule 1 of the PA 2008 fleshes out impor­tant constitutional details of the IPC and provides the Secretary of State with the powers to appoint the Commissioners. The creation of a specialist body such as the IPC/MPIU requires the appointment of Commissioners/ Ministers with the necessary expertise to assess major development pro­posals. Although the IPC (until it is replaced by the MPIU) is vested with most of the power to determine applications falling within their remit, the Secretary of State has retained residual powers (Sections 110-113 of the PA 2008) to intervene in the interests of defence or national security. The new planning regime in the UK shifts power from the government to the IPC/MPIU, but these steps towards independence have been offset by a suite of measures that have been introduced to ensure parliamentary accountability (Tromans, 2010, p. 141).

Regulators

The regulators will have an ancillary role to play in shaping the land-use planning debate. The authority tasked with overall responsibility for the regulation of nuclear installations will generally be involved in key planning decisions, since they will bear most of the regulatory responsibility for the plant during its lifetime. In the UK, this function is performed by the Nuclear Directorate (ND), a specialist organisation within the Health and Safety Executive (HSE), responsible for setting, monitoring and enforcing safety and security standards on nuclear sites. There are a number of other regulators that will have an interest in the planning debate, such as the Environment Agency (EA), the Office for Civil Nuclear Security, the Department for Transport and the coastal authorities. It is imperative for applicants to engage with the regulators from the outset because the IPC/ MPIU will ‘expect the applicant to have involved the relevant regulators at the pre-application stage so that the applicant can incorporate the regula­tors’ requirements in proposals’ (draft Nuclear National Policy Statement EN-6, paragraph 3.4.4).