Advice to Medway Council

Enquiry

• From: Medway Council
• Date advice given: 22 October 2019
• Enquiry type: Email

Dear Inspectorate. I am a planning officer working for the Medway Council. I am writing to seek your advice with regard to the above proposal. Medway Council is about to receive two separate planning applications for two 49.99MW gas fired electricity generating units. These two units will be located side by side within a large compound and share some facilities like site office car parking , see attached site location and layout plans. Having regard to the section 15(2)(c ) of the Planning Act 2008, it appears to us that although individually these gas fired electricity generating units will be within the threshold of the section 15(2) (c ) of the Act; due to their proximity to each other and their combined MW electricity generating powers they would exceed the Acts threshold limit and as such they should be considered under the NSIP regime. However, in response to the Medway Council challenge that the proposals together will exceed the threshold for the application to be determined under the Town and Country Planning Act 1990 the applicant, SEATERA ENERGY has provided a legal opinion in support of their assertion that the proposed Gas Fired electricity generators ought to be regarded as a separate generating station and thus that the proposed development was properly to be regarded as falling below the threshold set by the section 15(2)(c ) of the Planning Act 2008. In addition the applicant has also cited decisions by Stoke on Tees Borough Council to grant planning permissions for two similar 49.9MW gas fired electricity power stations on 4th January 2019 under ref 18/2079/FUL and 18/2082/FUL. I have enclosed for your info proposed layout of the proposed 49.9MW Gas fired electricity stations. I am writing to seek your considered views as whether we should treat these applications as two separate standalone gas fired electricity power station with 49.9MW each and consider them under the Town and Country Planning Act 1990 or advise the applicant that due to the proximity of the power station to each other and sharing compound and some facilities these projects should be regarded as a combined units that exceed the threshold set by the Planning Act 2008. Therefore, the proposals represent a Nationally Significant Infrastructure project and require a Development Consent Order under the Planning Act 2008. Looking forward to your considered opinion and help in this matter. Yours sincerely M. Harouni Senior Planning Officer

Advice given

Dear Mr Harouni Thank you for your query regarding the proposed development of two 49.99MW gas fired electricity generating units which are due to be submitted to Medway Council. You request the Inspectorate’s view on whether they be should treated as two separate standalone gas fired electricity power stations with 49.9MW each and consider them under the Town and Country Planning Act 1990, or advise the Applicant that due to the proximity of the power stations to each other and sharing compound and some facilities that they should be regarded as a combined units that exceed the threshold set by the Planning Act 2008. As you will be aware, under Section 14(1)(a) of the Planning Act 2008, as amended (PA 2008) the construction or extension of a generating station is defined as a Nationally Significant Infrastructure Project (‘NSIP’). Section 15(2) of PA 2008 provides that the construction or extension of an onshore generating station in England is within section 14(1)(a) only if the generating station is, or (when constructed or extended) is expected: not to generate electricity from wind; and to have a capacity of more than 50 megawatts. The definition of extension is set out in Section 235(1) of PA 2008 which provides that, in relation to a generating station, it has the meaning given by Section 36(9) of the Electricity Act 1989. That provision of the Electricity Act states that ““extension”, in relation to a generating station, includes the use by the person operating the station of any land or area of waters (wherever situated) for a purpose directly related to the generation of electricity by that station…”. You state that the Applicant, Statera Energy, have indicated that they have sought their own legal advice in support of their view that the proposal ought to be regarded as a separate generating station and that it should properly to be regarded as falling below the threshold set by the Section 15(2)(c ) of PA 2008, also citing recent decisions by Stoke on Tees Borough Council to grant planning permissions for two similar 49.9MW gas fired electricity power stations on 4 January 2019 under ref 18/2079/FUL and 18/2082/FUL. The Council will need to satisfy itself, taking its own legal advice if appropriate, as to whether or not any proposal submitted to it can be considered and determined by the local planning authority under any regime other than the development consent regime provided for by PA 2008. It should be noted that, under Section 160 of PA 2008, it is an offence 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”. If the Council are minded to conclude that these two applications are interconnected you will need to explain to the Applicant why you consider this proposal to be an NSIP and suggest the Applicant contact the Inspectorate to discuss the NSIP process. However, the Applicant may choose to ignore such advice and lodge them as two separate TCPA applications. Please note that the Inspectorate has a statutory duty to record and make publicly available any advice given under s51 of the PA 2008 about: applying for an order granting development consent; or making representations about an application, or a proposed application, for such an order. If you wish to seek any further advice in relation to the NSIP planning regime and these proposals, please contact me using the above contact details. Thank you Tracey Williams Case Manager National Infrastructure Planning The Planning Inspectorate,Temple Quay House,Temple Quay, Bristol BS1 6PN Direct Line: 0303 444 5085 Helpline: 0303 444 5000 Email: Tracey.Williams@planninginspectorate.gov.uk