Seabank 3 CCGT

The list below includes a record of advice we have provided for this project. For a list of all advice issued by the Planning Inspectorate, including non-project related advice, please go to the Register of advice page.

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, including the name of the person who requested the advice, and to make this publicly available.

Preview
Enquiry received via meeting
response has attachments
Responses to enquiry raised by the applicant at the meeting with the Plannining Inspectorate on 19 February 2013 regarding:

- Carbon Capture Readiness (CCR) and the "Appropriate Authority"
- The Benefit to an Order Article in a Development Consent Order (DCO) and how this works
- Extending the life of a DCO
The Planning Inspectorate provided following advice:

Carbon Capture Readiness (CCR) and the "Appropriate Authority"

In the meeting on 19 February 2014, you mentioned that the proposed site of the Seabank 3 CCGT may incorporate an area, set aside for, the potential future installation of carbon capture technology.
The full details of the requirements in relation to CCR are set out in in the ?Guidance on Carbon Capture Readiness (CCR) and Applications under Section 36 of the Electricity Act 1989?, DECC, November 2009. (See also the review of that guidance as to required footprint for some types of plant [attachment 1]).

Currently the Carbon Capture Readiness (Electricity Generating Stations) Regulations 2013 (the 2013 Regulations)(in force from: 25.11.2013) relate to Development Consent Orders (DCO) under the Planning Act 2008 (PA 2008) and to consents under section 36 of the Electricity Act 1989 for the construction of combustion plants with a rated electrical output of 300 megawatts or more.

Before making such an order (regulation 3) or granting such a consent (regulation 5) the Secretary of State must determine whether certain conditions are met relating to the feasibility of carbon capture and storage. If the conditions are met, the order or consent must include requirements or conditions for suitable space to be set aside for equipment necessary to capture and compress all the carbon dioxide that would otherwise be emitted from the plant.

The "Appropriate Authority" as defined in the 2013 regulations refers to the Secretary of State for the purposes of determining carbon capture readiness and conditions to be imposed under s. 36 consents. For DCO's the Secretary of State is also the relevant authority under reg. 5 - he "must not make a relevant consent order" (DCO) unless the "CCR conditions are met". These are met if "in respect of all of its expected emissions of CO2 "

(a) suitable storage sites are available;

(b) it is technically and economically feasible to retrofit the plant with the equipment necessary to capture that CO2; and

(c) it is technically and economically feasible to transport such captured CO2 to the storage sites referred to in sub-paragraph (a).

Additionally, the determination must be made on the basis of (a) a CCR assessment of the combustion plant prepared by the person who made the application for the relevant consent order; and (b) any other available information, particularly concerning the protection of the environment and human health (Reg 3 (2)).

Similar principles are applied to the Secretary of State's determination whether to grant a s. 36 consent (Reg 5).

The Examining Authority will have regard to advice from the Environment Agency as to whether the applicant has demonstrated they propose to retain sufficient space to accommodate the CC equipment and that it is technically feasible to retrofit the CC technology selected.

The Benefit to an Order Article in a DCO and how this works

Section 156(1) of the Planning Act 2008 sets out the general position - if an order granting development consent is made in respect of any land the order has effect for the benefit of the land and all persons for the time being interested in the land. Where Articles 4 and 5 of the Model Provisions are used, or a variant thereof, this overrides s. 156 (1) (see s. 156 (2) "Subsection (1) is subject to?any contrary provision made in the order.")

A DCO will usually therefore contain articles dealing with the benefit and transfer of the benefit of the order. Generally it would follow article 4 of Schedule 1 to the DCO Model Provisions and thus grant only the applicant the benefit of the Order (who would be identified as the beneficiary of the Order).
Transfer of the benefit of the Order may be based on article 5 of Schedule 1. Provision may be made for delivery of various aspects of the authorised project by an infrastructure provider (as for example in the case of Thames Tideway Tunnel, an infrastructure provider under s. 36D Water Industry Act 1991). The article might therefore allow for the transfer of powers (with the exception of compulsory acquisition) to the infrastructure provider to facilitate delivery. It may also allow for transfer of powers to other bodies with the consent of the Secretary of State.
Advice on process was given in reply to a query about Willington C Gas Pipeline on 26.10.2011. The following principles can be extrapolated for this:
- Post-decision granting of consent to transfer of benefit of an order is a matter for the DCO decision maker, ie the Secretary of State
- There is no formal procedure for obtaining the consent of the SoS to the transfer of the benefit of the order or any of its provisions once an order has been granted.
- Developers with the benefit of a DCO that provides for a transfer will need to write a letter to the relevant department requesting consent. The department will then consider this as appropriate and write back accordingly.
- Applicants who do not themselves intend to develop a project, or who anticipate selling their interest on, should make this clear during the examination process (or ideally earlier).
- One of the ancillary matters listed in schedule 5 PA 2008 refers to the transfer of property, rights, liabilities or functions. Applicants should therefore give some indication in their application on what are their ultimate plans.

Extending the life of a DCO

In the event that an undertaker is not able to avail itself of the provisions for a non-material change to the DCO it would have to seek to make a change to the Order under paragraph 2 (2) of Schedule 6.

However, the procedure for making material changes to orders should only be used where the proposed change is one that could not have been foreseen at the time of the original application (to prevent an application being made in stages). Further compensation may be payable where a person with an interest in the land has incurred expenditure in carrying out works rendered abortive by the change or has incurred loss attributable to the change. Therefore a material change to the DCO may be costly in terms of the procedure to be undertaken, information to be provided and any potential claim for compensation.

The process is closely modelled on the procedure for the original application: the applicant is required to carry out a pre-application process comparable to that required for the original application, notify the Secretary of State and publicise it in the same way in which the original application was publicised. Only new information relating to the change applied for needs to be provided with the application. Once the application is submitted, the applicant must notify those persons consulted at the pre-application stage and publicise the application. The format for notification and publicity broadly follows that for the pre-application stage and the Secretary of State must follow substantially the same examination procedure as previously.

There is a certain lack of flexibility in the current procedure and a discussion document
[attachment 2]

has been published that includes a proposal to split the current material changes definition into two categories: minor material change and significant material change. A more proportionate change procedure could then be used for minor changes - for example, more limited consultation and publicity and discretion about whether to ask for further representations or hold a hearing (see p19). Conceivably this might be appropriate for such matters as an extension to the life of the order. Responses to the consultation are currently being considered.

If the Secretary of State considered it necessary at the time development consent is granted, to provide for an extension of the DCO in order to give full effect to the order then he would appear to have powers to include such a provision in the original order. S154 (1) (b) PA would have the effect of allowing a longer period than that prescribed (5 years) provided that this is "specified in the order granting the consent".

Before development begins the default position is that (s154(1) "Development for which development consent is granted must be begun before the end of? (a) the prescribed period, or (b) such other period (whether longer or shorter than that prescribed) as is specified in the order granting the consent." By s154 (2) if the development is not begun before the end of the prescribed period the DCO ceases to have effect at the end of that period.

Compulsory purchase: by s. 154 (3) where a DCO authorises the compulsory acquisition of land, steps of a prescribed description must be taken in relation to the compulsory acquisition before the end of? (a) the prescribed period, or (b) such other period (whether longer or shorter than that prescribed) as is specified in the order. By s154 (4) if such prescribed steps are not taken before the end of the period applicable under subsection (3), the authority to compulsorily acquire the land under the order ceases to have effect.

The prescribed period is defined by Regulation 3 of Infrastructure Planning (Miscellaneous Prescribed Provisions) Regulations 2010: development for which development consent is granted must be begun before the end of a period of five years beginning on the date on which the order granting development consent is made. In relation to the compulsory acquisition of land, and a notice to treat is served, that notice must be served before the end of 5 years starting with the date the DCO is made.

I am not aware of an applicant requesting an extension of the life of a DCO between the date it was granted and the date by which it had to be implemented. As noted above the legislation effectively requires that provision is made within the order itself when it is granted. Although changes to a DCO may be made under Schedule 6 to the PA 2008 if the Secretary of State "is satisfied that the change is not material" - it would not be prudent to rely on this provision as an extension might well be regarded as a materially significant change.

In the event that an undertaker is not able to avail itself of the provisions for a non-material change to the DCO it would have to seek to make a change to the Order under paragraph 2 (2) of Schedule 6. However the procedure for making material changes to orders should only be used where the proposed change is one that could not have been foreseen at the time of the original application (to prevent an application being made in stages). Further compensation may be payable where a person with an interest in the land has incurred expenditure in carrying out works rendered abortive by the change or has incurred loss attributable to the change. Therefore a material change to the DCO may be costly in terms of the procedure to be undertaken, information to be provided and any potential claim for compensation.

The process is closely modelled on the procedure for the original application: the applicant is required to carry out a pre-application process comparable to that required for the original application, notify the Secretary of State and publicise it in the same way in which the original application was publicised. Only new information relating to the change applied for needs to be provided with the application.

Once the application is submitted, the applicant must notify those persons consulted at the pre-application stage and publicise the application. The format for notification and publicity broadly follows that for the pre-application stage and the Secretary of State must follow substantially the same examination procedure as previously.

08 April 2014
URS - Bill Gregory
Enquiry received via meeting
response has attachments
Meeting with applicant to provide update on the project.
Please see meeting note attached.

19 February 2014
SSE Plc Seabank 3
Enquiry received via phone
The caller enquired as to why Cardiff Council was included in the list of prescribed consultation bodies notified by the Planning Inspectorate under regulation 9(1)(a) of the Infrastructure Planning (Environmental Impact Assessment) regulations 2009 (as amended).
The Planning Inspectorate advised that Cardiff Council was identified as an 'A' authority due to Flat Holm, an island in the Bristol channel being under Cardiff Council's administrative area, which shares a border with part of the channel under Bristol City Council's administrative area (Bristol City Council being a 'B' authority).

03 June 2013
Bill Gregory
Enquiry received via meeting
response has attachments
Project update and discussions on the Draft Carbon Capture Readiness Report, Draft Best Available Technology Report, the Rochdale Envelope, and associated Development outside the scope of the DCO.
Please see meeting notes attached.

22 March 2013
SSE
Enquiry received via meeting
response has attachments
Inception meeting between SEE and The Planning Inspectorate
Please see attached meeting note

03 October 2012
SSE - Andrew Scott