Advice to NJL Consulting
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- From
- NJL Consulting
- Date advice given
- 26 September 2011
- Enquiry type
The revised Town and Country Planning (Environmental Impact Assessment) Regulations 2009 require developments modified or extended to be screened as a whole. If a wind farm currently has an output of say some 26MW and a proposed extension to the wind farm is planned with an additional 26MW giving a ‘whole’ total of 52MW, the EIA will assess the ‘whole’ development as a 52MW scheme. Would this scheme now fall to the IPC for determination due to it being over the required 50Mw or would the IPC see it as a ‘stand alone’ 26MW scheme?
Advice given
The Town and Country Planning (Environmental Impact Assessment) Regulations 1999 (SI 1999 No. 293) (the 1999 EIA Regulations) consolidated, with amendments, the Town and Country Planning (Environmental Impact Assessment) Regulations 2011 (SI 2011 No. 1824) (the 2011 EIA Regulations) have no bearing on the Planning Act 2008 (PA2008) regime. Projects falling within the scope of the PA2008 regime are subject to the Infrastructure Planning (Environmental Impact Assessment) Regulations 2009 (SI 2009 No. 2263) (the 2009 EIA Regulations).
You will need to consider whether the proposed project constitutes development within the meaning set out in section 32 of the PA2008 and, if so, whether that development is, or forms part of, a nationally significant infrastructure project (NSIP) under section 14 of the PA2008. The construction or extension of a generating station is specified in section 14(1)(a) and section 15(1) states that an extension to a generating station falling within section 15(2) would be considered a NSIP. Section 15(2) of the PA2008 sets out the following criteria: (a) it is in England or Wales, (b) it is not an offshore generating station, and (c) its capacity is more than 50 megawatts.
You will need to consider the definition of "extension" and this is set out in section 235(1) of the PA2008 which states that it has the meaning given by section 36(9) of the Electricity Act 1989. This states that : " "extension", in relation to a generating station, includes the use by the person operating the station of any land (wherever situated) for a purpose directly related to the generation of electricity by that station". If the extension to an onshore generating station results in an onshore generating station of over 50MW, then development consent may be required.
Whether or not an Environmental Statement (ES) is required depends on whether an NSIP is development falling with Schedule 1 of the 2009 EIA Regulations (in which case an ES is mandatory); or Schedule 2 of the 2009 EIA Regulations which is screened by the IPC (on request) as being likely to have significant effects and is therefore EIA development requiring an ES. A windfarm NSIP is a Schedule 2 development (paragraph 3 'Energy industry') and, if likely to have significant effects, an ES is required. We are finding that applicants are not asking for a screening opinion but are making a notification under Regulation 6(1)(b) that an ES will be provided. If the proposed change/extension has significant adverse effects, an ES will be required (Schedule 2 paragraph 13(a) of the 2009 EIA Regulations).
We appreciate that you are looking for clarification about the IPC's jurisdiction however, whilst the IPC has a power under section 51 of the PA2008 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 or an ES are required or on the interpretation of legislation, which is a matter that only the Courts can determine. We strongly advise applicants to seek their own legal advice on which they can rely.