Advice to Mr Grubb

Enquiry

• From: Mr Grubb
• Date advice given: 12 June 2024
• Enquiry type: Email

I write in relation to an instruction we have received on a proposed solar farm application in England which we believe should be consented through the Town and Country Planning Act (1990), but I thought it would be prudent to check with PINs whether it may qualify as an NSIP project first, given PINs are in effect ‘gatekeepers’ for the NSIP regime. We have been guided by NPS EN3 which confirms “3.10.44 From the date of designation of this NPS, for the purposes of Section 15 of the Planning Act 2008, the maximum combined capacity of the installed inverters (measured in alternating current (AC)) should be used for the purposes of determining solar site capacity.” “3.10.45 The capacity threshold is 50MW (AC) in England and 350MW (AC) in Wales.” The technical specification of the site shows there would be 16 inverters each with a power of 3.125 kVA, equating to 50 MW AC capacity. I have also checked the grid offer and this is 49.99 MW. I’ve concluded fairly unequivocally that the lawful process is therefore the TCPA1990 process rather than the NSIP process, however I would be grateful for your view on this before we go any further. Could you please confirm that this project would not be an NSIP project and should instead be consented by the Local Authority? Many thanks

Advice given

Dear Mr Grubb, I believe you may have already received a response from our NI Enquiries mailbox, however since this has been passed to me by my colleague Ewen (I partially hold responsibility for overseeing solar casework in National Infrastructure) allow me to provide a further response to your query for completeness. 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 of PA 2008, amongst other things, provides that the construction or extension of an onshore generating station in England is within section 14(1)(a) only if the generating station, when constructed or extended, is expected to have a capacity of more than 50 megawatts. Development consent for development that is or forms part of a NSIP must be sought through the NSIP regime, as provided for by PA 2008, rather than under other legislation including, where relevant, the Town and Country Planning Act 1990 (see section 31 of the PA 2008). An application for such a project would be submitted to the Planning Inspectorate in accordance with the process outlined on the National Infrastructure Planning website. It is for the developer to ensure it follows the correct planning route, taking its own legal advice if appropriate and advice from the relevant planning authority. If the decision is taken to submit an application to the relevant local authority, the authority will need to satisfy itself in turn, as to whether or not the proposal can be considered and determined by the planning authority under any regime other than the development consent regime provided for by the 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”. Please note that the Planning Inspectorate does not have the power to give a legally binding interpretation on such matters. Only the Courts can provide a definitive interpretation of legislation. The Planning Inspectorate, on behalf of the Secretary of State, is only able to decide whether an application for an Order granting development consent can be accepted for examination, under section 55 of PA 2008, once an application has been formally submitted. This email should not be taken as providing any view on which is the appropriate consenting regime for these proposals, nor should any advice given in this email be taken to pre-judge any future decisions that may be made by, or fetter any discretion of, the Secretary of State in relation to these proposals. Please note that the Inspectorate has a statutory duty to record and make publicly available any advice, such as this, 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 a development consent order. I trust this is helpful, Kind regards