How an obscure planning rule could add billions to energy bills

Why we need to repeal LURA's National Parks duty

Here’s a pet peeve: when journalists and campaigners act as if relatively recent changes in the law are immutable long-standing features of the British constitution on par with Habeas Corpus and Parliamentary Sovereignty. Examples include The Supreme Court (2009), The Office for Budget Responsibility (2010) and The Aarhus Treaty’s Cost Protection Caps (a 2013 change which runs contrary to a precedent dating back to the 13th Century).

Add to the list the duty to ‘seek to further the purposes of’ National Parks and Landscapes. The Times and Guardian are reporting Rachel Reeves is minded to remove the duty in a raft of pro-growth planning reforms to be announced ahead of the Autumn Budget. The Campaign for National Parks have described the changes as ‘absolutely devastating’. More than 170 green NGOs including the National Trust and RSPB have written to the PM telling him not to go ahead with the move.

National Parks protections have been in place since Clement Attlee was PM, yet the duty under discussion is relatively new. In fact, it is just two years old – part of Michael Gove’s 2023 Levelling Up and Regeneration Act (LURA).

When I’ve spoken to lawyers about the duty, there’s a consensus: it is a mess.

With or without this duty National Parks have extremely strong protections against inappropriate development. The National Policy Statements – the big documents that set out England’s infrastructure policy – are clear. They are to be afforded the ‘highest status of protection in relation to landscape and scenic beauty’. Building in these areas can only go ahead in ‘exceptional circumstances’. I should add the quoted text is from a National Policy Statement (for Ports) published before LURA came into effect.

So what’s wrong with this duty?

In short, it gives NIMBYs a new weapon to oppose development in the courts. It has already led to plans to expand a train station car park (and add some bike sheds) to be withdrawn after legal threats. The Kent CPRE tried to use it to block a 165-home development. They failed, but the project was delayed by half a year.

One key issue is the words ‘seek to further’ are not used in any other legal context. In short, it is exactly the sort of vague wording that invites the duty to be tested in the courts again and again. That’s a problem when even a failed legal challenge can add over £100m to a major road project (and presumably even more for bigger projects like nuclear power stations).

What’s worse is that even the Secretary of State kicking the can down the road and refusing to actually determine what amount is sufficient to discharge the vague duty: neither Gatwick Airport nor the Lower Thames Crossing can get a spade in the ground until they agree a ransom to pay to the local national landscape groups, or go through a protracted arbitration. Given the groups in the former often have demands of £38million, or in principle objections, the latter is likely.

Most of the reporting on the duty has focused on Reeves’s opposition, but the biggest advocate for its removal ought to be Ed Miliband. The most compelling threat to his sprint to a clean grid is the real risk that the National Grid fails to keep up. Wind farms are collectively paid billions each year to switch off when the power lines that take electrons from Scotland to England are too congested. Reforms to electricity pricing designed to mitigate this precise problem were rejected by the Government after strong opposition from renewables developers who argued it would push up the cost of financing for new wind farms.

The worst possible outcome now for Ed and, more importantly, us billpayers, would be bills going up because the grid infrastructure doesn’t exist to allow us to make use of all this new clean power.

The most controversial project under consideration by the National Grid is the Norwich to Tilbury transmission line. If I learnt anything from visiting the Conservative Party Conference, it was that MPs representing constituencies who don’t want to see pylons going through their patch have been licking their lips at the above rulings.

Legal challenges to the project were always likely. This is a project that disproportionately impacts a well-connected and well-heeled group of homeowners. Pylons East Anglia – a campaign opposed to the project – was founded by Rosie Pearson, a woman described by The Times as the ‘Queen of the NIMBYs’. I’ve spoken to planning experts who are convinced it was her organising that sunk Robert Jenrick’s major planning reform push.

And guess who Pylons East Anglia have hired as their KC: Lord Banner. The same man this and the last Government have turned to fix the problem of legal challenges delaying infrastructure projects. Funnily enough, his initial advice to them was to argue there was insufficient consultation, a route of challenge that is now being removed on the advice of the other infrastructure planning lawyer Reeves has turned to for advice and the advice of the infrastructure planning lawyer appointed to the Nuclear Regulatory Taskforce.

If this duty to ‘seek to further the purposes of’ National Parks and National Landscapes remains, legal challenges are inevitable and even if they are ultimately unsuccessful, there’s a decent chance that a judge will want to hear the case, probably delaying the project by a couple of years.

The National Energy Systems Operator (NESO) has not provided line-by-line breakdowns of the cost of delays to grid upgrades in their assessment of the Clean Power Plan, but it does estimate that annual constraint costs will be £4bn higher than otherwise if three network critical grid upgrades are not delivered on time. Some experts I’ve spoken to argue that NESO’s figures are likely to be significant under-estimates due to their assumption that a huge chunk of power demand appears in Scotland. And that’s before you consider the usual cost of delays like paying suppliers and workers to stand down at short notice. This could just be the most expensive legal challenge in British history, costing the public billions.

Many voters put their faith in Labour because they trusted them to bring electricity bills down. If, instead of a £300 saving, struggling households are hit with even higher bills they are unlikely to trust them again. Politics is a strange business, where tiny events can domino into massive impacts. There’s a compelling (but disputed) theory that a headbutt in one of parliament’s subsidised bars led to Brexit. It just may be that an obscure change in Michael Gove’s Levelling Up and Regeneration Act is what puts Nigel Farage in Number 10.