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Advice to Eversheds

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Enquiry

From
Eversheds
Date advice given
27 May 2010
Enquiry type
Email

Sir/Madam

Eversheds are advising in relation to a proposed wind farm project in Wales. It is considered that the project is a nationally significant infrastructure project for the purposes of the Planning Act 2008 because it comprises the construction of a generating station which is in Wales, is not an offshore generating station and its capacity, when constructed, will be more than 50 megawatts.

However, we have a query relating to the provisions of the Planning Act 2008 and the interpretation of 'generating station' for the purposes of the Act in relation to which we should be grateful for the IPC's guidance.

NATIONALLY SIGNIFICANT INFRASTRUCTURE PROJECTS

Section 14 of the 2008 Act lists a number of types of project which are nationally significant infrastructure projects ('NSIP') for the purposes of the Act. Subsection (1)(a) of section 14 provides for the construction or extension of a generating station to be an NSIP. Section 15 of the 2008 Act further provides that the construction or extension of a generating station is within section 14(1)(a) only if the generating station is or when constructed or extended is expected to be within subsection (2) or (3) of section 15. Subsections (2) and (3) set out the criteria, in terms of location and capacity, to be met in order for the generating station to comprise an NSIP. Of particular relevance in this case is subsection (2) which provides for a generating station to be within that subsection if it is in England or Wales, it is not an offshore generating station and its capacity is more than 50 megawatts.

For the purposes of the Planning Act 2008, section 235 of the Act gives the term 'generating station' the same meaning as in part 1 of the Electricity Act 1989. Section 64 (1) of the Electricity Act 1989 provides as follows -

" "generating station", in relation to a generating station wholly or mainly driven by water, includes all structures and works for holding or channelling water for a purpose directly related to the generation of electricity by that station; ".

Given the lack of a definition of what actually constitutes a generating station and the limited scope to carry out development associated with an NSIP in Wales under the provisions of the Planning Act 2008 (see below), it is crucial for the purposes of the above-mentioned proposed project that we are able to identify the development which may be included in, and be authorised by, the proposed DCO and the development which may not be included in the DCO so that any other relevant consents required for such development may be obtained in parallel with the proposed application for the DCO authorising the 'generating station'.

ASSOCIATED DEVELOPMENT

Section 115(1)(b) of the Planning Act 2008 (Development for which development consent may be granted) provides that development consent may be granted for development which is associated development.

Subsection (2) of section 115 defines associated development as development which is associated with the development for which development consent is required (or any part of it), is not the construction of or extension of one or more dwellings and is within subsection (3) or (4) of section 115.

Subsection (3) of section 115 deals with associated development in England.

Subsection (4) of section 115 provides that development is within that subsection if it is to be carried out wholly in Wales, it is the carrying out or construction of surface works, boreholes or pipes and the development within subsection (1)(a) with which it is associated is development within section 17(3). Section 17(3) relates to the development of underground gas storage facilities in Wales by a gas transporter.

Communities and Local Government Guidance on associated development published in September 2009 states (at paragraph 5 of the Introduction) that associated development "does not include development in Wales, except for surface works, boreholes or pipes associated with underground gas storage by a gas transporter in natural porous strata".

In circumstances where the Planning Act 2008 permits far greater scope to include associated development in a DCO (i.e. outside of Wales), the Communities and Local Government Guidance provides at Annex 'A' examples of the type of development, both in general terms and in NSIP specific terms, that may qualify as associated development. In the list of examples of associated development specific to individual categories of NSIP, included in the category 'Generating stations', are 'substations' and 'overhead/underground lines'.

Since the Guidance indicates that 'substations' and 'overhead/underground lines' are examples of associated development, it appears that the inference must be that those types of development do not comprise part of the generating station. If that is the case, given that it is not possible to include associated development in a DCO for a generating station in Wales, such elements of the proposed project would need to be sought to be authorised separately from the DCO.

In the event that the DCO may only authorise the wind turbines and cannot include the power to install the cables which will connect those turbines together, we would suggest that the wind turbines could in fact be viewed as a number of individual generating stations. If that is so, the individual generating capacity of each wind turbine is well below the 50 MW threshold prescribed by the 2008 Act and a DCO seeking development consent for them would be unecessary.

GUIDANCE REQUIRED

In view of the above, we would be grateful for clarification from the IPC on what constitutes a 'generating station' for the purposes of the 2008 Act and specifically, what development may be included in the proposed DCO in this particular case.

Advice given

Thank you for your patience in the compiling of this response and apologies for the wait:

Whether or not the wind turbines can be viewed as individual generating stations falling below the NSIP threshold in s15 or as a single NSIP requiring development consent would depend on the facts and circumstances - for example whether the turbines shared infrastructure such as access tracks, on-site cabling and grid connection and whether operation and decommissioning safety procedures were common in relation to all turbines and instructions comprised within a single operation and maintenance manual.

However, you will appreciate that the Commission is unable to give a view on interpretation of legislation, which is a matter that only the Courts can determine. The following link sets out full details on the IPC policy on the provision of S.51 advice: http://infrastructure.independent.gov.uk/wp-content/uploads/2010/03/Policy-on-s.51-advice-giving.pdf.

It will be for you to judge what constitutes the project, bearing in mind that it is an offence under s160 of the Planning Act to carry out development for which development consent is required without first obtaining that consent. The fact that a DCO for an NSIP in Wales may not authorise associated development (such as overhead lines and substations) is not relevant to determining whether a wind farm could be viewed as a number of individual generating stations. As you say, it is crucial that you identify the development which may be included in and be authorised by the proposed DCO so that any other relevant consents required may be obtained in parallel. The IPC encourages applicants who are proposing NSIPs in Wales to begin discussions about those consents with the relevant regulators as early as possible.