Advice to TNEI

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Enquiry

From
TNEI
Date advice given
17 June 2011
Enquiry type
Email

i)When applying for a development consent for an offshore generating station, can a deemed planning permission be granted for the onshore elements requiring planning permission (such as the substation) and a deemed marine licence be granted for the offshore elements such as cabling and transmission infrastructure?

ii)If so, is the position different in England and Wales (my understanding is that it is as marine licensing is a devolved matter).

Advice given

Dear Andy

Thank you for your telephone query and subsequent email on 15th June 2011. Further to your query, I have the following information and advice for you which I trust will be of use:

Section 15(3) and (4) of the Planning Act 2008 ('the 2008 Act') states that the construction or extension of an offshore generating station is a Nationally Significant Infrastructure Project (NSIP) requiring development consent, if:

It is an offshore generating station. Its capacity is more than 100 megawatts. the generating station is in waters in or adjacent to England or Wales up to the seaward limits of the territorial sea, or in a Renewable Energy Zone (REZ), except any part of a REZ in relation to which the Scottish Ministers have functions.

For information, the territorial sea extends 12 nautical miles out from the ‘baseline’. The baseline is usually the low water mark around the coast. Marine waters to the landward side of the baseline are known as internal waters. The REZ extends up to 200 nautical miles from the baseline. The 2008 Act regime does not apply to proposed projects in Scotland or in Scottish waters.

In relation to your query regarding what would constitute 'construction' of an offshore generating station, Section 235 of the 2008 Act defines the meaning of 'construction' as per Chapter 2 of Part 2 of the Energy Act 2004 (see in particular section 104 of that Act) which includes:

placing it in or upon the bed of any waters; attaching it to the bed of any waters;
assembling it; commissioning it; and
installing it.

Where the thresholds in s.15(3) and (4) are met, the 2008 Act regime removes the need for a separate consent to be sought under Section 36 of the Electricity Act 1989 and for separate planning permission(s) for any onshore development that is integral to or, in England, associated with the NSIP. Associated development is defined in section 115(2) of the 2008 Act.

I would refer you to the DCLG Guidance on associated development, and in particular paragraph 10 and Annex A of this, which sets out guidance on what may constitute associated development with regard to proposed NSIPs including offshore generating stations. Annex A gives both general and specific examples of what may constitute associated development. Examples given in Annex A of what may constitute associated development specifically in relation to 'off-shore renewable energy installations' are:- onshore works including: substations overhead/underground lines jointing pits

The position of the 2008 Act regime differs for projects proposed in Wales and/or in Welsh waters. As discussed in our telephone conversation, associated development only applies in limited circumstances in Wales and therefore consent for any proposed onshore development in Wales, unless it is integral to the proposed NSIP, will need to be applied for separately, generally from the relevant Local Planning Authority(s).

In England, English waters and the REZ a marine licence can be included in and 'deemed' by a Development Consent Order (DCO) i.e. where the proposed project is a NSIP requiring development consent. This removes the need to seek separate consent for such licences from the Marine Management Organisation (MMO). It is up to applicants for projects in those areas to decide whether they wish to have a marine licence deemed by the DCO or to seek consent for this separately from the MMO.

The Welsh Government have jurisdiction in Welsh inshore waters in relation to consenting marine licences. Accordingly, it is not possible to have a marine licence included in and deemed by a DCO in this area - consent for any necessary marine licence in this area would have to be sought separately from the Welsh Government.

If you require any further information, please do not hesitate to contact us