Advice to Jacobs

Enquiry

• From: Jacobs
• Date advice given: 9 May 2011
• Enquiry type: Email

If a development, that has received development consent through the IPC, starts but never reaches its original planned capacity/electricity generation, e.g. only 1 line is developed and not 3 lines does this leave the developer open to a legal challenge based on the fact that they pursued the IPC route but have only developed 1 line that could have therefore gone through the LPA process?

What (if any) are the implications, if the built development does not meet the IPC threshold, on the developer?

Advice given

As an example, an on-shore generating station which does not have a capacity of more than 50 megawatts will not require development consent. If an application is required it will clearly therefore be for a station which has the infrastructure and technology to meet this capacity. If development consent is granted, the station must be constructed in accordance with the description of the authorised development (and accompanying plans) and the provisions and requirements in the development consent order (DCO), for example in relation to phasing of the development.

However, unless a DCO makes specific provision to ensure that a station does not generate at less than 50 megawatts, a developer may lawfully construct and operate the station (subject to compliance with all provisions and requirements in the DCO) without committing an offence under s161 of the Planning Act, even if the station at any time generates less than 50 megawatts. A DCO may, amongst other things, lawfully include any provision that appears to be "necessary or expedient for giving full effect to any other provision of the order" (s120 (5) (c ) of the Planning Act). Whether or not in any particular case the IPC (if decision maker) would choose to include a provision which controls generation/output would depend on the facts and circumstances of the application and having regard to important and relevant matters including any national policy statement which has effect in relation to the development.