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Advice to Addelshaw Goddard

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Enquiry

From
Addelshaw Goddard
Date advice given
16 March 2011
Enquiry type
Email

Our client operates a gas-fired combined heat and power plant (CHP Plant). The CHP Plant's electricity generating capacity is 70 megawatts. It is proposing to construct a bioenergy (anerobic digestion) facility (Bioenergy Facility) on land adjoining the CHP Plant. The Bioenergy Facility will create biogas which will be used to power the CHP Plant instead of the current natural gas fuel source. The Bioenergy Facility will not, in itself, generate electricity. The Bioenergy Facility would fall within the meaning of "development" as defined by the Town and Country Planning Act 1990.

We note that section 14(1)(a) of the Planning Act 2008 defines Nationally Significant Infrastructure Project as meaning the "construction or extension of a generating station". We also note that section 15(1) states that the construction or extension of a generating station is within s.14(1)(a) "only if the generating station is or (when constructed or extended) is expected to be within subsection (2) or (3).

The CHP Plant falls within subsection (2) as it is in England and Wales, onshore and has a capacity of over 50 megawatts. We have considered the definition of "extension" in section 235 of the 2008 Act which incorporates the definition of extension in section 36(9) of the Electricity Act 1989. Section 36(9) of the 1989 Act provides:

"Extension" in relation to a generating station includes the use by the person operating the station of any land […] for a purpose directly related to the generation of electricity by that station and "extend" shall be construed accordingly

The question to which we would appreciate an answer by the IPC's legal team is whether the Bioenergy Facility would constitute an extension to a generating station requiring a development consent order.

Relevant considerations that may inform the response are as follows:

  1. The Bioenergy Facility will not affect the generating capacity of the CHP Plant. We note that section 15(1) does not require the extension to a generating facility to increase its generating capacity. The IPC's view on our interpretation would be welcome.

  2. The relevant local planning authority have indicated that they would be prepared to determine an application for planning permission for the Bioenergy Facility.

A question for you, rather than your legal team: is the IPC lobbying the Government to change the definition of Nationally Significant Infrastructure Project either by the making of an order under section 14(3) of the 2008 Act or by the inclusion of provisions in the Localism Bill currently being considered by Parliament?

Advice given

Whilst the IPC has a power under s51 of the Planning Act 2008 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 and your clients will of course need to rely on your advice to them. However, we appreciate that you would like some clarification about the provisions of Section 15 and hope that the following is helpful

  1. Development consent is required for development to the extent that "the development is or forms part of a nationally significant infrastructure project" (NSIP) (Section 31 of the Act)

  2. The extension of a generating station may be an NSIP (Section 14 (1) (a) subject to Section 15 of the Act) . An extension is defined by reference to Section 36 (9) of the Electricity Act 1989. There may be an argument that a facility which has no function other than to process fuel (albeit for a generating station) is not directly related to generation. There is at present no case law in relation to Section 15 of the Act but you may wish to consider whether any case law on Section 36 (9) of the Electricity Act 1989 might assist in understanding "purpose directly related to the generation of electricity" in reaching a view as to whether the bioenergy facility may constitute an extension.

  3. Notwithstanding the above, you may wish to consider the following.

  4. Development consent may be granted for development which is (a) development for which development consent is required or (b) associated development (Section 115 of the Act) The bioenergy facility is not an NSIP in itself for which development consent is required. Depending on the facts the facility may be subordinate to and necessary for the development and effective operation of the CHP generating station and if so might properly be considered as associated development having regard to CLG guidance on associated development which includes offsite fuel storage as an example.

  5. If the bioenergy facility is associated development the IPC has no power to consider a separate application for it unless that application is made in conjunction with an application for an NSIP (CLG guidance on associated development para 11). Although the CHP plant is indeed a generating station with a capacity exceeding 50 megawatts (and falls within Section 15 (1) of the Act) it is we understand already consented and operational and does not require development consent under the Planning Act 2008 regime.

  6. It is an offence to carry out development for which development consent is required at a time when no development consent is in force in respect of the development (Section 160 of the Act) and it is for the local planning authority (LPA) to enforce this using the powers under the Planning Act. As the LPA has indicated a willingness to determine an application for planning permission for the bioenergy facility you may wish to seek their views about any potential breach of Section 160 in the event that the facility were constructed without development consent.

In response to your second question; the IPC is an independent body set up under the Planning Act 2008 (the Act) whose role is to examine applications for development consent for Nationally Significant Infrastructure Projects (NSIPs).

As you state in your enquiry, the definition of an NSIP is set out in section 14(1) of the Act which has provisions under section 14(3) for the Secretary of State to amend the type of infrastructure in subsection (1). This is a matter for the relevant Secretary of State and any parties that may be consulted by him or her.