Advice to Norton Rose Fulbright LLP

Enquiry

• From: Norton Rose Fulbright LLP
• Date advice given: 7 January 2016
• Enquiry type: Email

The Planning Act 2008 provides that development consent is required for an onshore generating station if it has a capacity in excess of 50MW. Is development consent required if the generating station has a total installed capacity in excess of 50 MWp (DC) but in fact only has the technical capacity to export less than 50 MWAC to the grid?’

Advice given

In the absence of any statutory definition or applicable case law, we consider that the term ‘capacity’ within section 15 of the PA 2008 refers to the ‘Total Installed Capacity’ which is defined in the Renewables Obligation Order 2009 (SI 2009/785). The Renewable Order 2009 (SO 2009/785) refers to both the Total Installed Capacity and Declared Net Capacity as follows:

“total installed capacity” in relation to a generating station, means the maximum capacity at which the station could be operated for a sustained period without causing damage to it (assuming the source of power used by it to generate electricity was available to it without interruption);

“declared net capacity”, in relation to a generating station, means the maximum capacity at which the station could be operated for a sustained period without causing damage to it (assuming the source of power used by it to generate electricity was available to it without interruption) less the amount of electricity that is consumed by the plant;

We advise that our understanding is that the ‘Total Installed Capacity’ is the figure that should be used in deciding as to whether a generating station proposals are Nationally Significant Infrastructure Projects requiring development consent.