Advice to Nathaniel Lichfield and Partners

Enquiry

• From: Nathaniel Lichfield and Partners
• Date advice given: 12 November 2010
• Enquiry type: Email

As discussed, our client is developing a proposals for a carbon reclaimation and processing plant for the purpose of generating aviation fuel. The input will be approximately 500,000 tonnes of household waste per year, which will be converted using a gasifier to BioSynGas (hydrogen and carbon monoxide). Using a Fischer-Tropsch unit the gases will be converted into liquid hdrorocarbons producing approximately 25 million gallons of biojet fuel per year. Using GE power generation systems the facility could also generate some 50MW of electricity for the National Grid. A further by-product is aggregate for use in the construction industry.

Based upon the above, we have considered the Planning Act 2008 and would be grateful if you could advise whether you think that this facility may comprise a Nationally Significant Infrastructure Project by virtue of:

Part 3 Section 15(2)c albeit the electricity to be generated is a by-product and as such we are not sure whether this facility would fall within the definition of a "generating station"; and/or Part 3 Section 18(2) if the gas storage complies with the volume and flow rate identified at 18(2)(a) and (b). However, it we are not clear whether the BioSynGas aviation fuel would be considered a Liquid Natural Gas? Is there another definition of LNG other than that at Section 18(3)?

We do not consider that the facility would be considered a 'gas reception facility' as the gas will be created from solid waste on site and then treated before it becomes a liquid fuel for off-site distribution, and as such does not comply with Section 19(3)(a). Do you consider this interpretation to be correct?

We would be most grateful to receive your feedback on the above.

Advice given

The advisory service we provide is solely concerned with the procedural aspects of the new planning regime . As you may appreciate, it is outside of our remit to advise whether a proposal is a Nationally Significant Infrastructure Project (NSIP), and if it is what should be included within any such application. Nor can we advise about the merits of any particular application or proposed application. An applicant or potential applicant must be satisfied that the thresholds and other provisions within the Planning Act 2008 (the 2008 Act) and the Regulations made under it have been met and complied with as appropriate. We would therefore suggest that you seek your own legal advice upon which you can rely.

Sections 15 (2) and (3) of the Act state that a generating station is considered an NSIP if it has a maximum generating capacity of 50MW onshore or 100MW offshore. Under regulation 6 (1) (b) of the application prescribed forms and procedure regulations a statement of connection to the national grid must be provided with an application for a generating station.

You will need to determine for yourself whether or not those elements of the project you describe, which are not related to the generation of electricity, could be considered as associated development. I refer you to CLG Guidance on Associated Development which can be found in the advice and guidance section of the IPC website. One of the key principles in determining whether or not works can be considered as associtaed developments is that they are subordinate to the NSIP; in the scenario you describe that would be subordinate to the electraicity generating element (over 50MW) that forms part of the scope of works you set out.

In terms of the potential gas element defining the project as an NSIP: Section 18 (1) (b) states that an LNG facility is considered an infrastructure project if the maximum flow rate of the facility is expected to be atleast 4.5 million standard cubic metres per day. Section 235 (1) defines "natural gas" as any gas derived from natural strata, including from outside the UK, therefore gases are not considered as natural gas if they are from any other source. Your interpretation of section 19 (3) (a) is correct and would not apply in this case, especially given the above definition.

There is power of direction under section 35 of the Act for the Secretary of State to direct an application to the IPC for the consenting of a DCO, however there are further requirements to this route and I suggest you consult the Act and seek legal advice upon which you can rely.