The planning system’s treatment of electricity storage and co-location is complex, in part because the framework was devised without storage technologies in mind. Whilst storage technologies may be standalone or co-located with other forms of generation, the planning system does not distinguish between the two. As such, if developers propose to develop storage, there are a number of issues that must be considered to ensure that the electricity storage facility is lawfully consented.
Department for Business, Energy & Industrial Strategy (BEIS) and Ofgem committed to addressing this issue in the Smart Systems and Flexibility Plan (published in July 2017) and its update (published in October 2018) – as we reported on here and here. This week, BEIS launched a consultation on “proposals regarding the planning system for electricity storage” (the Consultation) on the consenting of large scale electricity storage in England. BEIS’s proposals provide much needed clarity to the industry.
There are currently a variety of different options for obtaining planning consent for the co-location of electricity storage projects. The scale of a project is a determinative factor in how to approach planning. For example, if the construction or extension of a project has a generating capacity of:
- 50MW or under, then it is likely to be consented under Town and Country Planning legislation by the local planning authority; but
- more than 50MW, then a different consenting regime under the Planning Act 2008 will apply and a development consent order (DCO) will be required.
The DCO process is a one stop shop for the consenting of a project and can incorporate additional powers including compulsory purchase powers, but it is more timely and procedurally burdensome that traditional Town and Country Planning including requirements to undertake statutory pre-application consultation.
BEIS previously provided some clarity in confirming that electricity storage projects should be treated as generation. However, there has been a lack of clarity as to how this categorisation applies to projects where generation and storage are co-located. This is due to a lack of clarity as to the definition of a generating station in the planning context, and the thresholds applied in the Planning Act 2008, do not distinguish between standalone projects involving one generating technology and scenarios involving storage and traditional generation.
Under BEIS’s proposals:
- standalone electricity storage projects with a capacity of more than 50MW will continue to fall within the nationally significant infrastructure project (NSIP) regime and would have to be consented pursuant to a DCO; and
- co-located projects where the capacity of the generating station, excluding any electricity storage, is more than 50MW or where the capacity of any electricity storage is more than 50MW will fall within the NSIP regime and will be consented pursuant to a DCO.
As a result, providing both of the storage and generation elements of a co-located project remains below 50MW separately, the project can be consented by the local planning authority.
BEIS’ proposals provide welcome clarity to the industry, and will require a number of amendments to the Planning Act 2008 to amend and introduce appropriate thresholds.
However, the proposals will only apply to projects in England. In:
- Wales, the Wales Act 2017 will come into effect in April 2019. The effect of this Act is to remove onshore generating stations in Wales with a capacity of up to and including 350MW from the NSIP regime. Therefore, electricity storage facilities in Wales with a capacity of:
- up to and including 350MW will be consented by the local planning authority; and
- more than 350MW will require a DCO under the NSIP regime; and
- Scotland, the NSIP regime does not apply. Therefore, generating stations with a capacity of:
- up to and including 50MW be consented by the local planning authority under Town and Country Planning legislation; and
- more than 50MW will require consent under section 36 of the Electricity Act 1989, although it is worth noting that the Electricity Act will be amended to reflect the above changes (insofar as it applies to England only).
Whilst the Consultation is focussed on larger scale electricity storage projects, it provides welcome clarification on smaller scale projects by confirming that:
- where storage is installed within an existing premises to support its primary use, there are no external changes proposed to the premises, and the majority of electricity is used on the premises, it would be unlikely that a material change of use had occurred and therefore it would not be considered development requiring planning permission under the Town and Country Planning legislation; and
- permitted development rights that permit the extension of certain existing business premises may be used to provide additional space to accommodate electricity storage where this is subsidiary to the primary use of the premises and the majority of electricity stored is used on the premises.
What next?
The deadline for consultation response is 25 March 2019.
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