Advice to Cheshire West and Chester Borough Council

Enquiry

• From: Cheshire West and Chester Borough Council
• Date advice given: 29 October 2019
• Enquiry type: Email

Dear Sir/Madam, I have been liaising with a developer in respect of a potential project for electricity generation utilising compressed air which would be stored underground using pre-existing caverns which would be modified. My question is whether the proposal, in your view, falls within the definition of an NSIP. Below is the developers reasoning for why they believe it does not. Can I get your view on this please? 3/ Concerning the Planning Act 2008 and the generation threshold, it would be good to get your legal guys to check/confirm we are still within local planning jurisdiction , the following i hope helps clarify our position • In our opinion, consideration of our facility with regards planning would fall solely under section 15 of the Act (generating stations) and not under section 17 (underground gas storage) because the purpose of the facility is electricity storage (which currently has no legal definition and is therefore consumption plus generation) not gas storage. • In our opinion a 50MW generation capacity falls within local planning jurisdiction, because 14.2.c states "more than 50MW" (my emphasis). • 49MW net Generation capacity (into the distribution grid), using existing caverns (only changes to above ground equipment - all underground expected to remain exactly the same), We would use compressors for charging only (no generation) between 50-70MW. o our view is we do not fall under Part 3 clause 15.2 -> Generating Stations as our output will be less than 50MW o our view is we would be assessed under clause 15 Generating Stations if anything and not assessed under clause 17 “ Underground storage facilities” since we a/ are not storing gas (as in natural gas which is what we assume the word gas refers to) b/ we are not creating underground gas storage as the caverns already exist c/any caverns would in any case be auxiliary (or secondary) to the main purpose of generation • 49MW net Generation capacity (into the distribution grid), using NEW caverns, we would use compressors for charging only (not for generation) between 50-70MW maximum electricity consumption. o our view is we do not fall under Part 3 clause 15.2 -> Generating Stations as our output will be less than 50MW and this is regardless of consumption size o our view is we would be assessed under clause 15 Generating Stations if anything and not assessed under clause 17 “ Underground storage facilities” since we a/ are not storing gas (as in natural gas which is what we assume the word gas refers to) b/any caverns would in any case be auxiliary (or secondary) to the main purpose of generation

Advice given

Dear Mr Holmes Thank you for your query regarding the proposed potential project for electricity generation utilising compressed air. 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…”. 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 the project is an NSIP, you 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. The inspectorate has previously issued advised to the developer for this project which has been published on the Inspectorate’s National Infrastructure website. https://infrastructure.planninginspectorate.gov.uk/legislation-and-advice/register-of-advice/?ipcadvice=49e1a1693a 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