Advice to Nicola Lake
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- From
- Nicola Lake
- Date advice given
- 18 September 2014
- Enquiry type
Could you please provide us with your opinion as to whether the following application would be a NSIP application or whether we are able to continue with the application. A planning Application (our reference P2014/0733) has been submitted to us on the 28/07/14. The application seeks full planning permission for “Extension to the existing Maesgwyn wind Farm with an installed capacity of up to 30MW, comprising 10 wind turbines, anemometer mast, two sub-stations and a control building, access tracks and all associated building operations and landscaping, for an operational period of 25 years.” (This description of development has been taken from the application form). The original Maesgwyn windfarm that the application proposes to extend was granted permission under application P2006/1261. The decision notice for this application has been attached. It states the development of “a 45MW wind farm comprising 15m x 3MW wind turbines…”. However condition 2 of the permission omitted turbines 1 and 3, thereby reducing the permitted development down to 39MW. A subsequent application P2008/1484 was granted permission to increase the tip height of 10 of the original 13 turbines from 115m to 119.5m. The remaining three turbines were constructed under the original permission. There was no mention within the P2008/1484 of any change in the permitted power generating capacity of the development. Following validation of application P2014/0733, the issue of the combined generating capacity was raised. We checked with Section 15 of the Planning Act 2008 and it appears to the Authority that the application is an extension to an existing generating station which cumulatively would exceed the 50MW capacity. We sought clarification from the applicant’s agent as to why the application had been submitted to us for determination and their response is set out below. However, it would appear to the Authority that the reasons as set out by the agent in his email of the 29 August would not exclude the development from Section 15 and that the application would appear to be an NSIP development. Please could you provide us with a determination as to whether the application is an NSIP development. I have attached the relevant decision notices for the original development, a copy of the application form for the current proposed application, together with the application site plan which shows both the existing and proposed turbine layout. The layout plan shows both the existing and proposed turbines accessed off the same access track and the proposed turbines location adjacent to and amongst the existing turbines. If the current application is an NSIP development the following situation has been suggested - It is understood that the original development as constructed has an actual generating capacity of around 26MW. If the current proposed development were reduced in capacity down to 23 MW and the applicants submitted a legal agreement limiting their original development to a maximum generating capacity of 26MW, would this be sufficient to ensure that the current proposed development was no longer a NSIP development? Thank you for any help and clarification you can provide to help to resolve this matter. Please do not hesitate to contact me should you require any further information.
Advice given
You may find the following OFGEM document (Renewables Obligations: Guidance for Generators 2014) to be helpful, specifically paragraphs 1.10 onwards on page 66: https://www.ofgem.gov.uk/ofgem-publications/86998/guidanceforgenerators.pdf, I have also attached the document for your convenience.
There is no statutory definition of what constitutes a generating station. OFGEM has produced guidance as to how it will assess the question for the purposes of the Renewables Obligation (appendix 1 of the attached document), which we would consider to be a useful indication of how the question should be considered. In this case, the main factors appear to be the close relationship between the developers, and (upon reviewing the plan “Maesgwyn existing and proposed turbines Application site” included in your email) the lack of a clear division between the layout of these two sites.
Matters to consider under the chapter detailing, Components of a Generating Stations
Paragraph 1.12 - “If a generating station comprises several sets of equipment for generating electricity which are grouped together in a way which would ordinarily be seen as one generating station, then the generator of this generating station will need to point to something particular to justify these sets of equipment for generating electricity being seen as more than one generating station”.
Upon reviewing the plan for the application site/development, there is clearly considerable overlap in terms of the position of the turbines, particular in the north and northwest corner of the site. The plan could be interpreted as showing that the development is one generating station and therefore the applicant/developer would need to clarify this particular matter in order to dismiss this presumption, at present this is not evidently clear. The developer argues that “Given that the Welsh Government’s policy is to concentrate large scale (over 25MW) wind farms in the seven selected Strategic Search Areas, it is inevitable that separate generating stations will lie in close proximity to each other.”, however given the location of the turbines, it could be argued that the turbines go beyond that and are actually intermeshed, rather than just “in close proximity to each other”. Furthermore the description within their planning application form, has not helped their case in dismissing the presumption that the proposed “Extension of the existing Maesgwyn wind farm…” will operate as a separate generating station.
Paragraph 1.13 – “We will presume (although this presumption may be rebutted) that sets of equipment for generating electricity are ordinarily one generating station if they are on the same premises and where they are owned and or operated by the same or connected or associated or related persons”
In this particular instance the applicant argues that the sets of equipment are not on the same premises, as the land is in different ownership, however this links to the above point (whether the equipment is grouped so it is seen as a single generating station). The owners are separate entities, being different companies, however given the limited information provided we are unable to determine whether they are “connected or associated or related”, using the definition provided in the guidance, as we do not know the corporate structure or the relationship between Maesgwyn and MAESX.
Paragraph 1.15 lists various factors, of which the following would seem relevant:
• “what constitutes the premises”. • “shared electrical or mechanical connection”. • “whether the electricity is generated from the same renewable source”. • “whether there is a single NFFO [Non-Fossil Fuel Obligation] … contract governing the sets of equipment”. • “whether there is one connection to the transmission or distribution network”. • “whether there is the same or linked metering”, bearing in mind that “separate metering is a prerequisite for separate generating stations but it is not sufficient in itself for the sets of equipment for generating electricity to be treated as separate generating stations”. • “how the metering is registered under the Balancing and Settlement code”. • “in a scenario where a previously accredited generating station is or was located on the same site which is subject of an application for accreditation, we would consider whether the subject of the new application constitutes the same generating station as that which is or was previously accredited”.
If the developer were to provide “something particular to justify these sets of equipment for generating electricity being seen as more than one generating station”, and information to rebut the presumption that they are on the same premises and owned/operated by connected or associated or related companies, then this might make the situation clearer. With reference to limiting the capacity via a section 106. As you already noted section 15 of the Planning Act 2008 (as amended) ‘PA 2008’ sets out thresholds for generating stations defined as Nationally Significant Infrastructure Projects (NSIPs). The term ‘capacity’ is not defined within the PA 2008. The Renewables Obligation Order 2009 (SI 2009/785) however provides a definition in relation to renewable energy production and electricity generation licensing. In absence of any statutory definition or applicable case law, the Planning Inspectorate therefore considers that the term ‘capacity’ within section 15 of the PA 2008 refers to the ‘Total Installed Capacity’ as defined in the above Order as: ‘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); Although this is the interpretation of the Planning Inspectorate, please note that we do not provide legal advice on which applicants and others can rely, it is therefore for applicants to seek their own legal advice in order to understand the definition of the ‘capacity’ for the purpose of their projects. Applicants should also be aware of section 160 of the PA 2008 which states that a person commits an offence if the person carries 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.