Advice to Donna Clarke

Enquiry

• From: Donna Clarke
• Date advice given: 7 May 2015
• Enquiry type: Email

Dear Mr Johannson,

Thank you for your email.

Is it correct that these provisions only apply to an existing generating station in one legal ownership? Therefore if a different entity were to construct a generating station on the same site in a different legal ownership with an independent grid connection that this would not be defined as an extension.

Your further advice would be appreciated.

Best regards

Donna Clarke

Advice given

Dear Ms Clarke

Thank you for your email dated 21 April 2015 requesting further clarification regarding whether extending the capacity of a generating station would make it an National Significant Infrastructure Project (‘NSIP’) under the 2008 Planning Act (as amended)(‘PA2008’).

The Planning Inspectorate (‘the Inspectorate’) cannot comment on whether the generating station to which you refer (“on the same site” and with “an independent grid connection”) can be constructed within the terms of the existing planning permission by “a different entity”. However, within the context of the PA 2008, it is an offence under section 160 if a “person carries out, or causes to be carried out, development for which development consent is required at a time when no development consent is in force in respect of the development.” Whether or not development consent is required does not depend on legal ownership but on whether the capacity of the generating station as constructed or extended would exceed 50 megawatts.

The definition of extension is set out in section 235(1) of PA2008 which states that it has the meaning given by section 36(9) of the Electricity Act 1989. This states that: ' “extension”, in relation to a generating station, includes the use by the person operating the station of any land (wherever situated) for a purpose directly related to the generation of electricity by that station'.

It will of course be for the developer who wants to construct the generating station to decide whether or not to apply for development consent taking legal advice (and advice from the local planning authority) and having regard to the terms of the existing planning permission.

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 section 44 of PA 2008, once an application has been formally submitted.

However, if you need any further advice regarding this project it might be beneficial for you to arrange a meeting with the Inspectorate so the project can be discussed in detail. Please note that the Inspectorate has a statutory duty under section 51 of PA2008 to record any advice given in relationship to an application or potential application and make it publicly available.