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SITING OF NUCLEAR POWER STATIONS AND ‘PARTICIPATING LAW’ : EDITORIAL : (2008) 20 ELM 115
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Editorial ‘Streamlined’ siting of nuclear power stations:
the implications of ‘participation law’

In Meeting the Energy Challenge: A White Paper on Nuclear Power, the UK
1
Government has expressed a strengthened commitment to nuclear power as having
an important – if as yet unquantified – role in Britain’s transition to a low carbon
economy. The government’s decision, that it will take steps to ‘facilitate’ private sector
investment in nuclear electrical power, is welcomed by British Energy and other nuclear
1 Cm 7296 (10 January 2008).
2 These, together with seventeen other enterprises interested in developing a new fleet of nuclear power stations to replace
nuclear industry sites, are currently world pioneering works at sites such as Calder Hall, Sellafield, and Chapelcross,
2
in the hands of the Nuclear Scotland. The problem is that, in seeking access to what is clearly a lucrative electricity
Decommissioning Authority. British market, the nuclear industry suffers from one big handicap when compared to its
Energy’s expression of interest in new
nuclear build has seen its share price fossil fuel and renewable counterparts. Its power stations are considerably more
rise from next to nothing to £12bn: difficult than alternative sources to site within Britain’s public inquiry system, open
The Guardian, 1 August 2008. The as it is to a potentially lengthy process of public participation in which public
3
attraction of the market is its size – objections are heard and considered fully. That is why the industry has asked the
approximately one in five consumers government facilitate new investment by taking measures to ‘streamline’ the
of electricity are supplied by nuclear
power. development consent process, removing the prospect of delays and uncertainties
3 Sizewell B, the last nuclear power that could jeopardize the economic viability of nuclear power.
station to be approved within this
system, is held up by the Government Economics versus process rights is a familiar dichotomy within environmental law, yet
as illustrative of the unique difficulties it is unusual for these two discourses to be quite so starkly pitted against one another
of siting works of this nature which as they appear to be in the present context. This is evident from the extraordinary
must be overcome if the white paper coalition of opponents to the government’s preferred route for ‘streamlining’ the
is to be implemented. The public
inquiry alone lasted 27 months, then process for siting nuclear power stations set out in the Planning Bill, in which the
a record, with the planning process government is accused by critics of selling off rights to participate in land use decisions
as a whole taking six years. In today’s in precisely those controversial settings where the public will insist on them being at
climate, any nuclear new build would their strongest. As UKELA has pointed out in a working paper referred to in parliament
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surely be subject to an even longer
planning process that would dwarf during debate on the Planning Bill, the difficulties go beyond what is politically feasible;
5
the current controversy surrounding these proposals come up against legal constraints too. This is because the
the proposed coal fired power station participation rights which were at the time of Sizewell B simply a matter of national
at Kingsnorton. policy and law have now crystallized into legal rights and duties enshrined in European
4 See www.planningdisaster.co.uk. law. This editorial examines the implications of European ‘participation law’ in this
5 HL Debs, 15 July 2008, Lord Dixon- 6
Smith, col 1166. field, highlighting in particular the hybrid bill procedure as a potentially more suitable
6 In simple terms a hybrid bill is a public framework within which to deliver a development control decision that is both efficient
bill which is treated like a private bill and fair.
for part of its passage through
Parliament. This gives individuals and
bodies an opportunity to oppose the Streamlined nuclear decision making in the past
bill or to seek its amendment before
a Select Committee in either or in It will not be lost on many protagonists that the current participation agenda which
both Houses. Examples include the is proving so inconvenient to nuclear energy policy is something which has emerged
Channel Tunnel and the Dartford 7
Crossing. http://www.parliament.uk/ directly out weaknesses in the decision making process of the past. The first wave of
about_lords/prbohol.cfm. nuclear power stations was developed in accordance with the process laid out in the
7 The participative planning system is remarkable Atomic Energy Act 1946, which was nothing if not streamlined. It conferred
based on the Skeffington Report of on the appropriate minister the power to select a site, and build and operate a power
1967, People and Planning. In this it
was theorised that controversial station on it at their discretion. ‘Design me a plant in Cumberland next to that
decisions, such as concerning nuclear Windscale uranium factory’, instructed the Prime Minster Winston Churchill of
power sites, would command more government engineer Christopher Hilton in 1952. ‘I want it generating clean power
public acceptance if the public as soon as possible, and certainly before the Americans are able to generate nuclear
perceived that they had had a stake power commercially’. Less than four years later, the lights were switched on in the
8
in the decision making process
(whatever its outcome). In more Cockermouth residence in which Manchester atomic physicist, John Dalton, was born,
recent times, it has been suggested this being the first to be connected to the 196 MW plant at Calder Hall.
that public participation confers not
only the stamp of legitimacy but can The siting in Scotland of Dounreay in 1957 and Chapelcross in 1959 was equally
make for a better decision making svelte, and this was the pattern throughout the 1960s, when the majority of today’s
outcome because of the rich range nuclear power stations were approved, with little, if any, public participation. 9
of views it forces decision makers to
take into account. This ministerial model of decision making, which goes by various unpleasant sounding
8 www.calderhall.co.uk (see ‘History’). names, such as ‘technocratic’, or ‘top down’, worked perfectly satisfactorily so long
9 Sizewell A, for example, was approved as the public expressed trust in politicians and scientists. When trust broke down, as
in a matter of weeks, in the spring of
1957, only taking a further eight years it soon did, it was exposed as deeply flawed. Within a year of Calder Hall, the MP for
to come on stream because of South Ayrshire, Hector Hughes, was seeking reassurances that this and other plants
funding and construction difficulties. being constructed largely under a cloak of secrecy were safe. The government response

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