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Advice to Norfolk County Council

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Enquiry

From
Norfolk County Council
Date advice given
2 March 2011
Enquiry type
Email

I would be grateful for your guidance on whether or not the installation of an anaerobic digester on an existing combined heat and power (CHP) plant site would fall within the ambit of the IPC?

My client department are currently in pre-application discussions regarding the installation at the site. The application will be for the installation of an anaerobic digester to produce biogas which would feed into the company's existing CHP plant to generate electricity.

The existing combined heat and power plant on the site generates more than 50 megawatts. The proposed installation of the digester would merely provide an alternative fuel source for the CHP to replace the natural gas used at present and would not increase the generating capacity of the CHP plant.

Having considered the legislation the main sticking point seems to be whether or not the installation of the digester constitutes an extension of the generating station under section 14(1)(a) of the Planning Act 2008. In a general planning sense you would expect the term "extension" to mean the extension of the current building or structure to increase its size. However in terms of a generating station does this include an increase in the generating capacity of the plant?

The CHP plant currently meets the requirements of section 15(2)(a),(b) &(c) of the Planning Act 2008 being situated in England and Wales, not an offshore generating station, and its capacity is currently more than 50 megawatts.

I am also aware of the definition of "development" within section 32(2) of the Planning Act 2008 which provides that the conversion of a generating station with a view to its being fuelled by crude liquid petroleum, a petroleum product or natural gas is treated as a material change in the use of the generating station.

I would be grateful for any guidance you could provide on this matter to enable an appropriate decision to be made by my client department.

Advice given

Thank you for your query dated 2nd March regarding a bio energy facility in Norfolk. You will need to consider whether the proposed project constitutes development within the meaning set out in s.32 of the Planning Act 2008 ("the Act") and if so, whether that development is, or forms part of, a nationally significant infrastructure project (NSIP) under s.14 of the Act. The construction or extension of a generating station is specified in s.14 (1) (a) and s.15 (1) states that an extension to a generating station falling within section 15(2) would be considered an NSIP.
Section 15 (2) of the Act sets out the following criteria : (a) it is in England or Wales, (b) it is not an offshore generating station, and (c ) its capacity is more than 50 megawatts. If the existing CHP plant has a generating capacity of more than 50megawatts you will need to consider the definition of "extension". This is set out in s.235(1) of the Act which states that it has the meaning given by s.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'. We appreciate that you are looking for clarification about the Commission's jurisdiction. However, whilst the Commission has a power under s51 of the Act to give advice about the general process for applying for an order granting development consent, or making representations about an application (or proposed application) for such an order, we are unable to provide a legal opinion as to whether development consent is required or on the interpretation of legislation, which is a matter that only the Courts can determine. We strongly advise applicants to seek their own legal advice on which they can rely.