Advice to Richard Wearmouth
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- From
- Richard Wearmouth
- Date advice given
- 19 November 2010
- Enquiry type
Query 1 - clarification on how the IPC would apply the requirement that all power plants sized greater than 300MWe must be carbon capture ready (CCR) from the outset and where a coal plant was being proposed, that 300MW of carbon capture and storage (CCS) equipment is installed from the outset
Query 2 - potential ability of a DCO to accommodate flexibility
Advice given
a query was raised in the meeting minutes regarding Carbon Capture Ready and Carbon Capture and Storage requirements. You asked for .
Applicants will need to provide information to demonstrate that developments which are of a type covered by the Large Combustion Plant Directive are carboCan capture ready (complying with DECC guidance) before consent may be given. The document types which are likely to meet this purpose are identified in the draft NPS for Energy (EN-1) at section 4.7, including for example a written report and economic assessment. The IPC would encourage applicants to discuss CCR measures with DECC and the Environment Agency in the pre application stage and to consult them on the draft DCO requirements (and any Section 174 Agreement) which will be the means through which CCR will be secured and enforced.
Finally, following our meeting of 7th October, a written query was raised via your e-mail dated 22nd October 2010 relating to the potential ability of a DCO to accommodate the flexibility that you have identified may be appropriate for this proposal. In discussions with IPC colleagues, it is agreed that the Infrastructure Planning (Model Provisions) (England and Wales) Order 2009 anticipates that development may come forward in phases and a DCO might reasonably include a requirement which enables detailed design of an authorised development to be submitted for approval in stages. In principle therefore the requirement which you propose in your email of 22nd October 2010 appears reasonable as a means of allowing certain specific details of design, materials etc to be submitted and approved in two phases.
However, it is noted that the draft scoping report states that "Phase 1 and phase 2 have to be seen as separate decisions that can potentially be developed at the same moment." A phasing requirement cannot have the effect of side-stepping the statutory procedures required for the grant of development consent by enabling development consent to be granted for, in effect, two materially different and alternative schemes or enabling more than has been applied for (or assessed - see below) to be developed. Whether or not a CCGT is a materially different development to an IGCC (in other words whether there would be a material change of use from a CCGT to an IGCC constituting development) will depend of course on the facts. Development, in the Planning Act, has the same meaning as in the Town and Country Planning Act 1990 (see 32), subject to specific amendments which are not relevant here.
As you are aware, the decision maker under the Planning Act must also, amongst other things, comply with the requirements of the Infrastructure (Environmental Impact Assessment) Regulations 2009 (the EIA Regulations) and must therefore take into account the environmental information before granting development consent. The environmental statement must meet the requirements of the EIA Regulations and the description of the development in the ES must be sufficiently certain to comply with the requirements of paragraph 17 of Schedule 4 Part 1 of the EIA Regulations. The environmental impact assessment must also be able to assess the impacts arising from the range of options which would arise if the development were phased in the way that you propose.
In drafting the DCO to authorise the scheme, very careful consideration must therefore be given to the development description and to the requirements proposed to control what is contemplated in the grant of development consent. You will of course wish to take legal advice, upon which you can rely and in view of the above considerations you may wish, in due course, to submit legal submissions (making reference to relevant case law ) with the draft DCO to demonstrate that phasing the scheme in the way you propose is lawful.