Infrastructure Planning– Changes to Consents for Electricity Storage

3rd December 2020

From the 2nd December 2020, development consent for electricity storage (except pumped hydro storage) will not need to be sought through the Nationally Significant Infrastructure Project (“NSIP”) regime (as currently set out in the Planning Act 2008). Instead, developers will need to seek planning permission from the relevant Local Planning Authority. The changes are being introduced by Infrastructure Planning (Electricity Storage Facilities) Order 2020 SI 2020/1218 (“the Order”).

Amendments

• The Planning Act 2008 (“PA 2008“) will be amended to remove electricity storage facilities (except for pumped hydroelectric storage facilities) from the category of generating stations whose construction requires development consent as a NSIP.
• S15 PA 2008 sets out the circumstances in which construction or extension of a generating station will constitute an NSIP. This will be amended to exclude an exempt storage facility, that is, an electricity storage facility which is not a pumped hydroelectric storage facility.

Comparison of the NSIP and Planning Permission Regimes

The application process for a Development Consent Order (“DCO“) begins with pre-consultation, where a developer notifies the Planning Inspectorate of its intention to carry out development. The developer will at this stage consult the public and technical bodies in respect of the proposed development. The Planning Inspectorate then has 28 days to decide whether to accept the application, this will depend upon whether the application and consultation meets the required standards. Once a NSIP application is accepted the Planning Inspectorate will set an examination timetable and an Examining Authority can be appointed. The Examining Authority can be a single Examining Inspector or a panel of up to 5 Examining Inspectors. The Planning Inspectorate has 6 months to carry out the public examination. Within 3 months of the examination closing, the Inspector must provide his or her recommendation the Secretary of State. The Secretary of State then has a further 3 months to issue their decision on whether to grant development consent. The NSIP regime can take up to 13 months for a decision, not including the consultation period. The decision can then be challenged by way of judicial review which has a 6 week deadline from the date of the Secretary of States’ decision.

In respect of the planning permission process, a planning application is submitted to the local planning authority. The Local Planning Authority then validates the application as soon as reasonably practicable. The Local Planning Authority will then publicise the application and carry out the consultation process. The length of consultation and consultees depend upon the application. The Planning Officer will then prepare a report and a recommendation to approve or refuse the application. The Planning Officer’s report will then be considered by a Planning Committee of elected councillors. The Planning Committee is not bound to follow the Planning Officer’s recommendation. Target determination deadlines are 8 weeks for standard applications, 13 weeks for complex applications and 16 weeks for EIA developments. In reality however, these timeframes are rarely met. Formal extensions of time are frequently agreed with the Planning Officer.

Analysis

There are opportunities and challenges from this change. In theory, decision making timescales should be faster on a planning application and all of the ‘upfront’ expensive costs associated with a DCO will be avoided.

However, some local authorities are under increased strain in respect of funding, and ultimately resourcing, which may hinder faster decision making at the local level. The change also introduces a loss of CPO powers which a DCO project would have had the benefit of. Without these CPO powers, actual delivery of schemes once planning is secured at the local level could take longer.

The change also means a loss of protection against any claims for nuisance – DCO projects have statutory protection whereas schemes which obtain permission at the local level (or on s78 appeal) do not. Developers will need to be alert to this new risk.

To read more about how Net Zero will shape your business click here.