Advice to Pegasus Planning Group

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Enquiry

From
Pegasus Planning Group
Date advice given
8 June 2011
Enquiry type
Email

I understand that legally energy projects of more than 50MW have to go down the IPC route.

My query is whether projects of less than 50MW may also be referred to the IPC?

The context is, we have a client who is promoting an energy project for approx. 40MW and believes it may be preferable to use the IPC if possible. Your colleague mentioned that it may be possible for the Secretary of State to refer certain projects that do not meet the IPC minimum criteria to the IPC. Can you elaborate on this if this is the case?

Advice given

Firstly I should inform you that the IPC cannot advise on the merits of applications for development consent orders (DCOs) or proposed such applications, give legal advice nor interpret legislation as the latter is a matter for the courts. Specifically we cannot advise on whether a proposal constitutes a Nationally Significant Infrastructure Project (NSIP) requiring development consent. We would therefore suggest that you take your own legal advice upon which you can rely. For further information on the IPC's policy on giving Section 51 advice please visit our website at http://infrastructure.independent.gov.uk/wp-content/uploads/2010/03/Policy-on-s.51-advice-giving.pdf

Whether something is or forms part of an NSIP depends on whether the development concerned falls within the definitions in s.14-30 of the Planning Act 2008 (PA 2008) and this will depend on the facts. Section 15 (2) (c) of PA 2008 states that an onshore generating station is within this subsection if its generating capacity is more than 50MW.

Section 35 of PA 2008 allows the Secretary of State (SoS) to provide directions in relation to projects of national significance. If the development fulfils the requirements of s.35 (1) – (3), s. 35 (4) states that the SoS may direct the application to be treated as:

"(a) an application for an order granting development consent, and

(b) the development to which the application relates to be treated as development for which development consent is required."

S.35 (9) requires that the SoS must give reasons for this decision.

It is for the Secretary of State to decide whether to exercise this power in any given case.