The list below is a record of advice the Planning Inspectorate has provided in respect of the Planning Act 2008 process.
There is a statutory duty under section 51 of the Planning Act 2008 to record the advice that is given in relation to an application or a potential application and to make this publicly available. Advice we have provided is recorded below together with the name of the person or organisation who asked for the advice and the project it relates to. The privacy of any other personal information will be protected in accordance with our Information Charter which you should view before sending information to the Planning Inspectorate.
Note that after a project page has been created for a particular application, any advice provided that relates to it will also be published under the ‘s51 advice’ tab on the relevant project page.
Advice given between between 1 October 2009 and 14 April 2015 has been archived. View the archived advice.
General
Enquiry
1. Would a battery storage project with a capacity of more than 50 MW be classified as an NSIP?
2. If a site already has consent for a 40MW Gas fired electricity peaking plant and either the same or a new developer wanted to develop another project of between 10MW and 40MW on a directly adjacent site, is there a potential that the 2nd application would be classed as a NSIP/DCO project (because the two projects somehow become aggregated)?
Advice given
1. The Planning Inspectorate (PINS) 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 of Business Energy and Industrial Strategy (BEIS) issued a consultation and call for evidence regarding energy storage on 10 November 2016. The consultation closed on 12 January 2017: attachment 1
Paragraph 22 of the consultation 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 consultation and considering how battery storage fits into the wider energy infrastructure landscape and the policy position will be clarified in due course.
2. Firstly, may I explain that PINS does not have the power to give a legally binding interpretation on whether the potential generating station proposal to which you refer (40MW Gas fired electricity peaking plant by either the same or a new developer of a generating capacity of between 10MW and 40MW on a directly adjacent site) would be classed as a NSIP/DCO 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.
However, may I refer you to the legislation below which should help advise you.
Under section 14(1)(a) of the Planning Act, 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 clarifies that the construction or an extension of a generating station is within section 14(1)(a) only if the generating station is or (when constructed or extended) is expected to be, amongst other things, a generating station that is in England or Wales, not an offshore generating station, and its capacity is more than 50 megawatts.
It may also be helpful to look at the definition of extension as set out in section 235(1) of PA 2008 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'.
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.” Whether or not development consent is required does not depend on legal ownership but on whether the capacity of the generating station as constructed or extended would exceed 50 megawatts.
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.
