Skip to main content
Find a National Infrastructure Project

Beta This is a beta service - your feedback will help us to improve it

Advice to Victoria Hamlyn

Back to list

Enquiry

From
Victoria Hamlyn
Date advice given
3 December 2010
Enquiry type
Email

I am a PhD student at the University Plymouth researching the legal regimes governing marine renewable energy in England and Wales (with a focus on wave energy). At the moment I am researching the consents, licensing and planning aspects of such developments, in particular the regime pre and post the enactment of the Marine and Coastal Access Act 2009 (MACAA) and the effects of the Planning Act 2008 on the licensing regime.

I have a couple of queries that I would appreciate your help with if this is possible:

  1. The DECC administers the development consent (section 36 of the Electricity Act 1989) for wind farms, but does this include wind farms which will generate over 100MW, or will this be directed to yourselves at the IPC?

  2. Under section 34 of the Planning Act it is stated that in Welsh territorial waters, an application can be made under section 3 of the TWA 1992 for a ‘Welsh offshore generating station’ within the definition of the Planning Act. If a section 3 Order is obtained, development consent for the carrying out of those works will not be required. Please could you provide me with some clarification in this area? Does a 'Welsh offshore generating station' within the meaning of the Planning Act represent a station generating over 100MW in Welsh territorial waters? Therefore could an offshore generating station in Welsh territorial waters producing over 100MW be administered a works order under the TWA and therefore not require a development consent from the IPC?

If this is the case, would it be the WAG/Welsh Ministers who process the application, even fro generating stations producing over 100MW?

Advice given

Offshore windfarms over 100MW in England and Wales require development consent under sections 14 (a) and 15 of the 2008 Planning Act (the Act).

In terms of the impact this has on current legislation, section 33 (h) means that consent is no longer required under section 36 of the Electricity Act 1989.

As you set out, the alternative route allowed for Welsh offshore generating stations is covered by section 34(1) along with sections 15 (3) and (4). These sections do not prevent an order under section 3 of the Transport and Works Act 1992 (TWA 1992) from authorising the carrying out of the construction or extension of a generating station that is or will be a offshore generating station as defined in section 34 (2) of more than 100MW. If that order is granted, development consent would not be required for those works.

It is worth noting that it is for a scheme promoter to decide under which regime they will apply for consent and what they seek consent for

A Development Consent Order (DCO) can allow for certain licenses to be incorporated into the order (see section 120 of the Act).

It is our understanding that applications for TWA orders relating to Wales are decided upon by the Welsh Assembley Government (WAG) if a scheme promoter were to choose the alternative route. I would recommend contacting WAG to clarify this position.

Note: under current arrangements, where a relevant NPS is in place the Commission determines an application for development consent (section 104 of the Act). Where no relevant NPS is in place the Commission makes a recommendation to the Secretary of State (SoS). The government has indicated that it will bring in legislation to give decision making powers to the SoS, through the forthcoming localism bill. Please contact CLG for more details of this.

Please note that we are required to publish any advice we give under section 51 of the Act, and that this is not legal advice on which you can rely.