Advice to Alan Josling

Enquiry

• From: Alan Josling
• Date advice given: 18 August 2014
• Enquiry type: Email

I am involved in a planning application for a large scale ground based solar farm on a green field site in Hampshire. The applicant claims 49MW capacity for this solar farm. As this application involves 205656 panels of 1.66m x 1.00m it seems likely that the capacity is more than 50MW and that the applicant has stated under this level to try to avoid this application being called in for determination by central Government. Please can you tell me the criteria for defining the capacity of a solar farm for the purpose of calling in a planning application e.g. does it just take account of the panel capacity or does it include limitations within the sub-station linking it to the grid?

Advice given

Section 15 of the Planning Act 2008 as amended (the PA 2008) details the threshold at which a generating station project is defined as a Nationally Significant Infrastructure Project (NSIP). For onshore generating stations proposed within England or Wales, projects with a capacity of over 50MW will be considered as NSIPs.

For clarification, NSIPs do not fall under the process of ‘calling-in’; if a project meets the thresholds in the PA 2008, the Planning Inspectorate deals with the proposal (on behalf of the Secretary of State) from the pre-application stage through to recommendation of the decision to the Secretary of State. The Secretary of State then considers the recommendation and makes the final decision.

Under section 35 of the PA 2008, the Secretary of State can however give a direction for certain projects to be considered NSIPs, if they do not currently meet the thresholds within the PA 2008.

Unfortunately, the term ‘capacity’ is not defined within the PA 2008. Two definitions are provided in relation to renewable energy production and electricity generation licensing within the Renewables Obligation Order 2009 (SI 2009/785), as follows:

‘Total Installed Capacity’ in relation to a generating station, means the maximum capacity at which the station could be operated for a sustained period without causing damage to it (assuming the source of power used by it to generate electricity was available to it without interruption);

‘Declared Net Capacity’ in relation to a generating station, means the maximum capacity at which the station could be operated for a sustained period without causing damage to it (assuming the source of power used by it to generate electricity was available to it without interruption) less the amount of electricity that is consumed by the plant;

In the absence of any statutory definition or applicable case law, we consider that the term ‘capacity’ within section 15 of the PA 2008 refers to the ‘Total Installed Capacity’ as defined above. Please note however that the Planning Inspectorate is not able to provide legal advice on which applicants and others can rely, therefore applicants will need to ensure they have a robust argument to support their understanding of the capacity of their proposals. They should also be aware of section 160 of the PA 2008 which states that a person commits an offence if they carry out, or causes to be carried out, development for which development consent is required (under the PA 2008), where no such consent is in force.