Overview of the Regulatory Framework affecting Wind and Solar Energy Developments
| Author | William Webster |
| Pages | 17-42 |
Chapter 2
Overview of the Regulatory Framework affecting Wind and Solar Energy Developments
ONSHORE ENERGY
2.1 In England onshore energy projects with a generating capacity of 50MW or less
The 50MW threshold meant that there was a clustering of energy storage projects below the 50MW to avoid the nationally significant infrastructure project (NSIP) regime with some providers choosing to develop multiple projects with batteries of less than 50MW rather than one larger battery.
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decisions for electricity storage (except pumped hydro) of any size will also be under the 1990 regime although currently this is only the case for storage below 350MW. In determining applications to build onshore wind farms in their local areas it is government policy to give local people much greater say.
PERMITTED DEVELOPMENT
2.2 Permitted development rights (PD rights) exist which allow development for small-scale renewable energy development (referred to as ‘microgeneration’) associated with dwelling houses and within the curtilage of a dwelling house.
There are, however, designations which could affect whether or not PD rights apply which include whether the property: (a) is subject to a direction under article 4 of the GDPO removing certain PD rights; (b) is situated in a National Park, Area of Outstanding Natural Beauty (AONB) or Conservation Area; or (c) is listed as being of Special Architectural or Historic Interest.
PLANNING ACT 2008
2.3 Renewable and low carbon development over 50MW is normally considered under the Planning Act 2008 (as amended by the Localism Act 2011) (PA 2008) which passes responsibility for dealing with development consent applications for what are termed ‘nationally significant infrastructure projects’ (NSIPs) to the Planning Inspectorate (PINS) which examines applications and makes recommendations to the SoS at the Department for Business, Energy & Industrial Strategy (DBEIS) for development consent (as opposed to planning consent) on energy applications and associated development (NSIPs are addressed in more detail in Chapter 3, including NSIPs in Wales). This includes offshore generation stations with a capacity of over 100MW in English and Welsh territorial waters and in relation to the renewable energy zone,
596) (GPDO), Pt.14 (Classes A–I were previously found in the Town and Country Planning (General Permitted Development) Order 1995 (SI 1995/418), Sch.2, Pt.1 and provide PD rights for the installation, alteration and replacement of a wide variety of renewable energy generating equipment on domestic premises; Classes J–O were previously found in the 1995 Order, Sch.2, Pt.3 and provides rights relating to non-domestic premises).
development applications DBEIS considers the environmental consequences of proposals involving NSIPs, applying European requirements for Environmental Impact Assessments (EIAs).
2.4 NSIPs dealt with by PINS under the PA 2008 include projects within the field of energy and include overhead lines. In relation to electricity generating stations, section 15 (which extends to Wales) is complex and imposes thresholds by reference to the capacity of the generating station. In 2016 onshore wind farms with a capacity of over 50MW were removed from the NSIP regime.
ELECTRICITY ACT 1989: SECTION 36 CONSENTS FOR ONSHORE AND OFFSHORE ELECTRICITY GENERATION
2.5 Section 36 consents granted by the SoS for the DBEIS are concerned with the construction, extension or operation of a generating station (which was disapplied by the PA 2008).
2.6 In cases involving offshore installations in English and Welsh territorial waters with a generating capacity above 1MW and below 100MW, responsibility for the grant of a section 36 consent rests with the Marine Management Organisation (MMO),
Generating Stations) (England and Wales) Order 2001 (SI 2001/3642) reduces permitted capacity to 1MW in the case of offshore generating stations wholly or mainly driven by wind or water (provided the waters are not within an area in which development requires planning permission under the TCPA 1990).
October 2007 on s.36: ‘The consenting process for onshore generating stations above 50MW in England and Wales’.
Marine and Coastal Access Act 2009.
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consents for offshore generating stations which have a capacity of more than 100MW still rests with the SoS under the PA 2008 and with Scottish Ministers for proposals in Scotland.
2.7 Conditions can also be attached to the section 36 consent itself, essentially for energy policy reasons, covering what the energy development is, how much time the applicant has to start the development and, more recently (for non-CHP fossil fuelled generating stations), requiring the development to have enough land for carbon capture and storage.
2.8 Applicants may seek clarification from DBEIS concerning the scope of the application for a section 36 consent at the same time as they request a ‘scoping opinion’ from the SoS for the purposes of the EIA.
VARYING SECTION 36 CONSENTS
2.9 Section 36 consents granted by the SoS for the Department of Energy and Climate Change (DECC) (now the SoS for the DBEIS) or their predecessors or the MMO can be varied. By applying to vary a section 36 consent it may be possible to obtain consent for a generating station to be constructed, extended and/or operated in a way that would not have been consistent with the existing consent.
ENVIRONMENTAL STANDARDS
2.10 In formulating any proposals for the construction or extension of a generating capacity, applications under section 36 involving generating stations of a capacity of not less than 10MW subject a licence holder to environmental duties imposed by Schedule 9, paragraph 1 to the Electricity Act 1989 which require...
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