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Advice to Biossence Limited

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Enquiry

From
Biossence Limited
Date advice given
1 May 2013
Enquiry type
Email

We are considering a project and unsure whether we would submit a planning application under Section 35 of the Electricity Act 1989 or under the Town and Country Planning Act 1990 to the local authority.

We understand a generation capacity of 50 MWe is the value at which over this capacity would apply to Planning Inspectorate.

Our question is: Is the 50 MWe on a Net Electrical Output basis or Gross Electrical Output basis?

Advice given

Thank you for your email regarding the definition of "capacity" as used in the Planning Act 2008 (PA 2008).

As per section 15 (2) of the PA 2008 a generating station would be considered a Nationally Significant Infrastructure Project (NSIP) if the following criteria is met; (a) it is in England or Wales, (b) it is not an offshore generating station, and (c) its capacity is more than 50 megawatts. Capacity is not defined in the PA 2008. The explanatory note to section 15 states that generating station has the same meaning as s.36 Electricity Act 1989. Capacity is not mentioned in the note however the note clearly relates s.15 to the Electricity Act. Furthermore, s235 PA 2008 defines extension and generating station as having the same meaning as given to them by the Electricity Act. In consideration it is our view that "capacity" has the same meaning as in the Electricity Act 1989 - namely electricity generating capacity.

It is our view that the Electricity Act and the Planning Act refer to gross capacity. This is because the Acts are not framed in terms of supply or consumption of electricity but in terms of capacity of the generating station. Given its ordinary meaning capacity would be interpreted as the ability of the generating station to produce electricity. However, only the courts can ultimately determine interpretation of legislation and the Planning Inspectorate does not have power to give a legally binding determination on this matter. We strongly advise that you seek your own legal advice on which you can rely.

Furthermore the Planning Inspectorate is only able to determine whether development consent is required for a project once an application has been formerly submitted under PA 2008 s.55.