Energy Bill [HL]

Baroness D'Souza Excerpts

Tuesday 26th April 2016 Lords Chamber

[Lord Wallace of Tankerness]

The noble Viscount is rehearsing Second Reading arguments. We are dealing with some very small—but very important to the developers—changes to try to ensure justice. As I indicated, the Government will get their policy and will be able to close down the onshore wind industry subsidies, as they wish to do. What we are trying to do is to ensure that this very small and limited number of cases where substantial amounts of money have already been laid out by developers in trying to take the development to planning consent—and where in some cases the council had indicated that it was minded to consent after much local discussion and engagement—should be allowed to proceed.

To us it is a question of simple justice. I read somewhere the other day that the Scottish author William McIlvanney had said that Scotland’s motto was not,

“Wha daur meddle wi’ me?”,

but was really, “It’s no’ fair”. In this case, it isnae fair. The Minister himself said, when dealing with the end of the renewables obligation for solar of 5 megawatts and below, that,

“we have aimed to strike the right balance between protecting bill payers and protecting developers who have made significant investments, while being conscious of the need to decarbonise our energy infrastructure. That is why the order makes provision for a number of grace periods, which mirror those offered last year as part of the large-scale closure. Stakeholders have welcomed this consistency”.

Well, they do not welcome the inconsistency in dealing with onshore wind. He went on to say:

“One of the grace periods was designed to protect developers who could show that a significant financial commitment had been made on or before the date on which the proposals were announced. This required evidence that a planning application had been made, among other things, as a proxy for the financial commitment”.—[Official Report, 16/3/16; col. 1915.]

It seems to me that that is entirely in line with what we are proposing in these amendments. It is a question of simple justice, and even at this late stage I ask the Minister to think hard and seriously about these matters and to respond favourably. I beg to move.

[The Lord Speaker (Baroness D'Souza)]

My Lords, I should inform the House that if this amendment is agreed, I cannot call Amendments A2 to A4 by reason of pre-emption.

[Lord Foulkes of Cumnock]

My Lords, I am grateful for that explanation. My Amendment A2 is dealt with in this grouping, so it would be appropriate for me to speak to it now, as I understand it. One of my noble friends said to me earlier, “This issue is hellishly complicated” —I am not sure whether that is an unparliamentary phrase or not—and then added, “I do not think all these three amendments make it any simpler”. I apologise if that is the case.

All three amendments are very similar to each other, but perhaps rather immodestly, I think mine makes the issue a bit clearer than the others, particularly in relation to one case that the Minister knows I have a particular interest in—I know this sounds like special pleading, and I will come to that in a moment—which is the Sorbie project near Ardrossan in North Ayrshire. I know representations have been made to him about it, and I tried to intervene—I should perhaps have got up a bit earlier—to try to get some clarification in relation to Sorbie. Government legislation can be interpreted in different ways, and if the Minister had been able to say then that Sorbie is covered by his amendments and that they will be interpreted as allowing it, it would have saved me having to speak at all. That would have been merciful, but I will speak and then see if he can say in his reply whether or not it is included.

The key difference is that my amendment expressly covers the situation where the planning authority’s decision to grant planning permission was subject to a planning agreement being entered into. I do not think that the wording of the amendment of the noble and learned Lord, Lord Wallace, covers that scenario.

The lawyers who have been advising me say that my wording removes any uncertainty over whether a planning authority decision which was subject to a planning agreement being entered into can actually meet the criterion, “a grant of planning permission was resolved”. With my wording, Ofgem would not be able to say that if the planning authority made the decision subject to the planning agreement being entered into, it would not qualify.

Ultimately, the difference between the amendments is very slight and—this is the point—Ofgem might take the view that “resolved to grant” would include where this was subject to a planning agreement being entered into, because the most likely reason for a delay between a planning authority decision and planning permission, or a decision notice, being granted is that a planning agreement was required. So the principle behind both amendments is the same: that a planning agreement delayed the grant of the permission. My wording is slightly clearer on that point.

My noble friend Lord Grantchester’s excellent amendment in Motion A4 is the same as that of the noble and learned Lord, Lord Wallace, subject to one difference. As I understand it, my noble friend’s new amendment requires the planning permission to have been granted within three months of 18 June 2015, that is, by 18 September 2015. This amendment would not work for Sorbie or for Crookedstane, as the decision notices were not issued until December 2015 and January 2016 respectively. I am arguing that they should be included.

Subsection (f) of my amendment is specific to Sorbie, as it clarifies the different legislation which applied to this project as it was dealt with under delegated authority in Scotland. The existing legislation does not deal in any way with a planning application which was processed under delegated authority under the Planning etc. (Scotland) Act 2006.

I want those included. It may be a bit of special pleading, but I think that noble Lords who heard me last time will agree that it is a very good case, and I want to mention it briefly again. Sorbie Farm is a dairy farm in North Ayrshire. The price of milk was going down, and it was in financial difficulties. It was advised to diversify, and one of the obvious ways of diversifying in that area was to plan a wind farm, and it decided to go ahead in that way. A great deal of effort was put into it, and a lot of investment; the farm had already invested a great deal.

If the amendment were to be carried, it would in no way challenge government policy or the whole principle. Whether or not we agree with the points made by the Minister in his introduction, that would not be contested. The position in relation to Sorbie was that North Ayrshire Council approved it in June 2014. However—my noble friend Lady Liddell will understand this very well—it was called in by the Scottish Government due to an aviation objection which was subsequently withdrawn. The application was then granted on appeal in November 2015. Although the grace period wording would, on the face of it, allow the project to proceed, it is threatened by what those advising me consider to be inadequate drafting in the Bill, which my amendment is intended to clarify. It is not clear whether the approval date would be November 2015 or the original date when it was approved.

If the Minister can consider the matter and let me know at some point during the debate that Sorbie would be included, I would certainly be happier—no, I will not say that; I am never happy about government legislation, but I would be less distressed by it as it goes through.

Notwithstanding all that, and the special pleading for Sorbie, I support the amendment proposed by my noble friend on the Front Bench. It does not challenge the Government’s policy; it does not undermine the manifesto on which they were elected; it does not threaten any of the basic policy, but it brings justice to developers who were encouraged to develop renewable energy projects and who, in some cases, have invested up to £1 million each in getting them off the ground—or on the ground. They did it in very good faith, and then the ground was taken from beneath their feet by this Bill, which they were not expecting. The specifics of it were not included in the manifesto.

I hope the Minister will give serious consideration to accepting the amendment put forward by my noble friend Lord Grantchester, and even more serious consideration to accepting that Sorbie should not be excluded on the basis of this legislation as currently drafted.