Advice to Phil Jones
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- From
- Phil Jones
- Date advice given
- 5 August 2013
- Enquiry type
Can you please let me have your opinion on the following?
Section 14(1) of the Planning Act 2008 says that NSIPs include "(a) the construction or extension of a generating station" and that "(2) Subsection (1) is subject to sections 15 to 30".
Legislation.gov.uk says that S15 is "prospective". It also says that "There are outstanding changes not yet made by the legislation.gov.uk editorial team" and it lists them, including a number of commencement Orders. I can't see anything there relating to S15. Anyway, S241 appears to say that S15 came into force when the Act was passed.
Assuming that S15 is in force, S15(3) says an offshore generating station is an NSIP, if "(b) its capacity is more than 100 megawatts". Capacity isn't defined in the Act.
Take the case of an utterly predictable tidal energy scheme with turbines With a nominal capacity of 240MW which:
- can only operate at that rate for short periods of time when tidal conditions are conducive;
- over the year can only generate 400GWh, which equates to an overall rate of 46MW.
Does such a generating station have a capacity of "more than 100 megawatts"..? It would be helpful if you could quote some authority for your answer.
Phil Jones
Advice given
Thank you for your email regarding generating capacity.
Relevant statutory provisions
The Planning Act 2008 as amended (PA2008) specifies that an offshore generating station must (when constructed or extended) have a capacity exceeding 100MW to be considered a Nationally Significant Infrastructure Project (NSIP) (s.15(3)b). "Capacity" is not defined in the PA2008.
s.235 PA 2008 defines an "extension", in relation to a generating station, and a "generating station" as having the same meanings given to them as in the Electricity Act 1989. "Capacity" is not defined in the Electricity Act 1989.
It should though be noted that neither of these Acts are framed in terms of the supply or consumption of electricity, but rather in terms of the capacity of a generating station. Given its ordinary meaning capacity would, we think, be interpreted as the ability of a generating station to produce electricity, and not its actual final output to the grid, which may also vary from time to time.
Relevant policy
As you have identified the optimal, maximum performance of a generating station may not be consistently deliverable since such stations are not generally in continuous full-power operation. This difference is known as the capacity factor, and is key in estimating availability of supply. This is discussed in Part 3.3 of the Overarching National Policy Statement (NPS) for Energy (EN-1), which sets out overall Government policy in relation to energy NSIPs. Whilst an NPS is not, unlike the PA2008, primary legislation it has been formally designated by the Secretary of State.
When calculating the need for new generating stations, Government recognises that it will need to apply a capacity factor to the total capacity planned. This total capacity is referred to in footnote 26 to paragraph 3.3.14 of NPS EN-1 as the ‘nameplate capacity’ of a project. The NPS EN-1 glossary describes ‘nameplate capacity’ as “The rated output of the unit/station at the generator, and therefore includes station own use (parasitic power), and any other consumption/loss prior to despatch to the grid, local network, industrial site or similar transmission system”. This description covers the scenario you outline, of a rated output being higher than the output generally transferred to the national grid.
Conclusions
In our view "capacity", as used in the PA2008, probably therefore means the rated maximum gross output, or 'nameplate capacity', of the station.
Please note that the Planning Inspectorate does not have the power to give a legally binding interpretation on such matters. Only the Courts can ultimately determine the interpretation of legislation, and to date there has been no case law on this point under the PA 2008 regime.
It should also be noted that the Planning Inspectorate, on behalf of the Secretary of State, is only able to decide whether development consent is required for a project, under PA 2008 s.55, once an application has been formally submitted.
Yours sincerely