Cyngor i JLL

Ymholiad

• Oddiwrth: JLL
• Y dyddiad y rhoddwyd y cyngor: 24 Gorffennaf 2017
• Math o ymholiad: Post

JLL have been instructed by AES Electric Ltd to provide planning strategy advice regarding developing and operating a grid scale battery storage project located at the Culham Science Centre, Abingdon.

AES Electrical Ltd intend to construct and operate a battery storage facility in excess of 50 MW at the Culham Science Centre.

You will be aware that South Oxfordshire District Council granted planning permission for a grid scale battery storage project, with a 250MW transformer, in November of 2016 at the Culham Science Centre (Ref: P16/S2368/FUL) .

You will also be aware that in response to a pre-application Inquiry, on 4th January 2017 the Planning Inspectorate (PINS) issued advice regarding the planning permission granted by South Oxfordshire District in that the project likely requires to have a development consent order under the terms of section 31 of the Planning Act 2008. However, there remains some uncertainty regarding whether a grid scale battery storage facility should be treated as a ‘generating station’ and accordingly whether a Development Consent Order should be required.

There is uncertainty due to it being unclear whether a rechargeable battery can be considered as resulting in the generation of electricity on its discharge cycle and accordingly it is unclear whether it should be treated as a ‘generating station’ (See: R. on the application of Redcar and Cleveland BC) v Secretary of State for Business Enterprise and Regulatory Reform [2008] EWHC 1847 (Admin)). The call for evidence document ‘A smart, flexible energy system (2016)’, which is cited in the PINS advice that is referred to above, sets out the Governments position on battery storage, in that it is considered as generation “for the time being”. This implies the matter is under consideration, the document remains in draft form and the position set out within it is by no means definitive in terms of the legal definition of a ‘generating station’.

On this basis, this letter constitutes a formal request under the terms of section 51 of the Planning Act 2008, for PINS to advise whether a grid scale battery storage facility of over 50 MW in installed capacity will be treated as a Nationally Significant Infrastructure Project under the terms of the 2008 Act.

Cyngor a roddwyd

The Planning Inspectorate (the Inspectorate) recognises that battery storage is a new and novel form of energy infrastructure and further consideration and work is ongoing to understand the technology better and the regulatory framework it will operate in. The Department for Business, Energy and Industrial Strategy (BEIS) issued a call for evidence regarding energy storage on 10 November 2016. The call for evidence closed on 12 January 2017: https://www.gov.uk/government/consultations/call-forevidence-a-smart-flexible-energy-system. Paragraph 22 of the call for evidence document states that, "For the time being BEIS, the Scottish Government and the Welsh Government agree that a storage facility is a form of electricity generating station. This means that a storage facility with a capacity of >50MW in England and Wales will need development consent as required by sections 15 and 31 of the Planning Act 2008 or Scottish Ministers’ consent under section 36 of the Electricity Act. We believe further clarity is needed within the planning framework about how to classify and treat storage projects, given the emerging nature of the market and new technologies." BEIS are currently reviewing the responses received from the call for evidence and considering how battery storage fits into the wider energy infrastructure landscape.

The Inspectorate does not have the power to give a legally binding interpretation on whether the potential battery storage proposal to which you refer would be classed as a National Significant Infrastructure Project. Only the Courts can ultimately determine the interpretation of legislation, and to date there has been no case law on this point under the PA 2008 regime. It will of course be for the developer who wants to construct the generating station to decide whether or not to apply for development consent taking their own legal advice which they can rely on.

Within the context of the PA 2008, it is an offence under section 160 if a “person carries out, or causes to be carried out, development for which development consent is required at a time when no development consent is in force in respect of the development.” It should also be noted that the Planning Inspectorate, on behalf of the Secretary of State, is only able to decide whether development consent is required for a project, under section 44 of PA 2008, once an application has been formally submitted. Please note that the Inspectorate has a statutory duty under section 51 of PA2008 to record any advice given in relationship to an application or potential application and make it publicly available.