Advice to Dalton Warner Davis LLP

Enquiry

• From: Dalton Warner Davis LLP
• Date advice given: 14 February 2013
• Enquiry type: Email

The construction or extension of a generating station is within section 14(1)(a) of the Planning Act 2008 if, among other things, the generating station is in England or Wales, is not an offshore generating station, and its capacity is more than 50 megawatts (MW). Article 33 of the EU Directive on the Geological Storage of Carbon Dioxide (Directive 2009/31/EC) requires that, prior to a new combustion plant, with a capacity at or over 300 MWe and of a type covered by the EU Large Combustion Plant Directive, receiving development consent, a number of assessments need to be carried out relating to the technical and economic feasibility of capturing, transporting and storing its emissions of CO2.

The generic term 'capacity' is followed through into policy, including NPS EN-1 and NPS EN-2, as well as the extant policy document 'Carbon Capture Readiness (CCR): A Guidance note for Section 36 Electricity Act 1989 consent applications (DECC 2009). The latter is referenced in the NPS and thus represents a material consideration.

Does the Planning Inspectorate interpret the policy definition of power station 'capacity', in megawatts, as the declared (rated or 'nameplate') 'gross' electrical capacity of all generating units on site, at a point in time? Or, alternatively, does it interpret 'capacity' as meaning the declared 'net' capacity? Net capacity accounts for parasitic loads, on site, required to power the actual production process.

Advice given

As per section 15 (2) of the Planning Act 2008 (PA 2008) a generating station would be considered a Nationally Significant Infrastructure Project (NSIP) if the following criteria is met; (a) it is in England or Wales, (b) it is not an offshore generating station, and (c) its capacity is more than 50 megawatts. Capacity is not defined in the PA 2008. The explanatory note to section 15 states that generating station has the same meaning as s.36 Electricity Act 1989. Capacity is not mentioned in the note however the note clearly relates s.15 to the Electricity Act. Furthermore, s235 PA 2008 defines extension and generating station as having the same meaning as given to them by the Electricity Act. In consideration it is our view that "capacity" has the same meaning as in the Electricity Act 1989 - namely electricity generating capacity.

It is our view that the Electricity Act and the Planning Act refer to gross capacity. This is because the Acts are not framed in terms of supply or consumption of electricity but in terms of capacity of the generating station. Given its ordinary meaning capacity would be interpreted as the ability of the generating station to produce electricity. However, only the courts can ultimately determine interpretation of legislation and the Planning Inspectorate does not have power to give a legally binding determination on this matter. We strongly advise that you seek your own legal advice on which you can rely.

Furthermore the Planning Inspectorate is only able to determine whether development consent is required for a project once an application has been formerly submitted under PA 2008 s.55.

With respect to the EU Directive on Geological Storage of Carbon Dioxide (Directive 2009/31/EC) and Guidance issued by DECC in 2009 - Carbon Capture Readiness (CCR) again, interpretation is ultimately a matter for the Courts and we are unable to provide a legal opinion on this. However it is important to note that the interpretation of capacity in relation to NSIP threshold and Carbon Capture and Storage threshold are not necessarily interlinked, particularly as the definition under the Directive will be influenced by the European Commission and the European Court of Justice. As stated above, we strongly advise that you get your own legal advice on this matter.