Electricity Storage Facilities
Planning Legislation and Policy Issues
1.1. This note summarises the status of electricity storage facilities in planning legislation in England, related planning policy issues and reviews possible future changes in this area.
2. Executive Summary
2.1. Due to the pace of technological development in this area, the consenting regimes for electricity storage facilities are not clearly and unambiguously set out under the relevant planning legislation.
2.2. The stated position of UK Government is that large-scale (over 50MW) storage facilities are to be treated as Nationally Significant Infrastructure Projects ("NSIP") but this is inconsistent with the relevant legislation. If such facilities are treated as NSIPs this will have consequences both in terms of time and cost for applications and in terms of additional burdens on co-located generation/storage facilities. We have set out the background to the different legislative requirements in section 3.
2.3. The UK Government has signalled an intention to bring forward reforms to clarify the planning process for electricity storage facilities. A review of possible simplifications to the process is proposed and although the timeframe for this is not yet clear, the thrust of policy in favour of electricity storage is now clearly established and should offer an opportunity to shape a more positive consenting regime for storage planning going forward.
3. Existing Legislation
3.1. On the face of it, electricity storage facilities would be categorised as storage plant rather than generation plant and therefore within planning Use Class B8, defined by the Town and Country Planning (Use Classes) Order 1987 as, "Use for storage or as a distribution centre". Accordingly they would be subject to consent through the regime set out in the Town and Country Planning Act 1990 ("1990 Act") and determined by local planning authorities ("LPA"). Depending on whether the installation of the plant itself requires building or engineering works, it may also require planning permission for the operational development of installing the facility,
3.2. However, the current position of the UK Government is that storage facilities of over 50MW should be subject to the NSIP regime as set out in Part 3 of the Planning Act 2008 ("2008 Act"), which grants consent by way of a Development Consent Order ("DCO"). The UK Government's position is not stated in a formal planning policy but was instead set out in a consultation document (discussed in more detail in section 6
GIB ELECTRICITY STORAGE PLANNING NOTE
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below) which argues that storage facilities should be considered as "generating stations", to which Sections 14 and 15 of the 2008 Act apply if they have capacities of over 50MW. Whilst the DCO process provided greater certainty it is generally lengthier and involves significant additional work and consultation compared with the 1990 Act process, resulting in higher costs and longer lead times.
3.3. The 2008 Act follows the approach of the Electricity Act 1989 ("1989 Act") which does not precisely define the term, "generating station". Section 64 of the 1989 Act states that in relation to hydro-electric facilities, all structures for holding or channelling water for purposes directly related to generation of electricity are included within the generating station. This does mean that a traditional pumped storage hydro facility would be a generating station, and may well be the basis for the UK Government's position. The term "generating station" does, however, rely on the word "generate" which is also not specially defined in the 1989 Act and would have its ordinary dictionary meaning. We do not therefore see how the existing legislation could be interpreted to include non-hydro storage facilities as "generating stations".
3.4. It is currently difficult to be definitive about would happen if an application for an electricity storage facility of over 50MW was submitted to a LPA for determination. It is possible that the LPA would refuse to accept the application on the basis that a DCO is required, but this is by no means certain. We are aware of cases where storage facilities of over 50MW (indeed, up to 250MW) have been permitted through the normal planning regime under the 1990 Act. Applications for DCOs are now made to the Planning Inspectorate (as successor to the Infrastructure Planning Commission) and their website does not show any applications for electricity storage facilities other than pumped hydro.
3.5. The existence of different routes of applying for permission with different capacity thresholds may also pose particular problems for proposals to co-locate new generating capacity with storage capacity if the generation and storage portions of the project are considered as a single facility.
4. Policy Considerations
4.1. There is no specific planning guidance in relation to electricity storage facilities under either the 1990 Act or 2008 Act. Accordingly, any application for planning permission to a LPA under the 1990 Act would be determined, as is the case for other applications, primarily with reference to the relevant local plan policies. These will of course vary between local planning authorities; however we would expect the following issues potentially to arise:
4.1.1. Land supply. Although all local plans should include provision for B8 land, allocations for this use are likely to have been made with the anticipation of modern warehousing-type uses, the locations of which may not be suitable for electricity storage. Conversely, more suitable sites may be constrained by settlement boundary or green belt policies.
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4.1.2. Visual impact. Associated with the supply of suitable sites is the potential visual impact of an essentially industrial development on more rural and less-developed areas. In this respect, national Planning Practice Guidance on Design will need to be considered. The importance of the design of storage facilities is borne out by a recent appeal decision on an application near Chesterfield where the industrial character of a 20MW facility was found to be detrimental to the rural character of the area.
4.1.3. Noise. National Planning Practice Guidance sets out how noise should be considered in the planning process.
4.2. The primary planning policies applying to applications under the DCO process are the National Policy Statements ("NPS") designated under section 5 of the 2008 Act. In relation to energy projects, a suite of six NPS were adopted in 2011, comprising an Overarching National Policy Statement For Energy (EN-1) supported by specific statements for Fossil Fuel Generation (EN-2), Renewable Energy (EN-3), Gas Supply (EN-4), Electricity Networks (EN-5) and Nuclear Power (EN-6). Although none of the existing specific statements will apply to battery storage, the overarching NPS EN-1 will apply.
4.3. Part 4 of EN-1 sets out general policies or "assessment principles" including a number of areas relevant to battery storage projects:
4.3.2. 4.3.3. 4.3.4.
Design criteria. Decision makers "need to be satisfied that energy infrastructure developments are sustainable and, having regard to regulatory and other constraints, are as attractive, durable and adaptable (including taking account of natural hazards such as flooding) as they can be. In so doing, the [Planning Inspectorate] should satisfy itself that the applicant has taken into account both functionality (including fitness for purpose and sustainability) and aesthetics (including its contribution to the quality of the area in which it would be located) as far as possible" (Paragraph 4.5.3). Climate change adaptation. Decision makers, "should be satisfied that applicants for new energy infrastructure have taken into account the potential impacts of climate change using the latest UK Climate Projections available at the time the Environmental Statement was prepared to ensure they have identified appropriate mitigation or adaptation measures." (Paragraph 4.8.7) Grid connections. Paragraph 4.9 notes that grid connections are separately handled by National Grid or the relevant regional Distribution Network Operator. Wherever possible, applications for generating stations and their related infrastructure should be made in an integrated manner and if they are not, decision makers must be satisfied that there are no obvious reasons why the necessary approvals for the other element are likely to be refused. Pollution control. This includes air quality, water quality, land quality and noise and vibration.
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4.4. Part 5 of EN-1 lists specific requirements for a number of generic impacts that may arise from infrastructure projects. These impacts will have differing relevance on a project-by-project basis, but impacts with particular relevance to battery storage projects include:
4.4.1. 4.4.2. 4.4.3.
Landscape and visual. Applicants should carry out a landscape and visual assessment and report this in the Environmental Statement, including construction impacts. In addition to specific impacts in designated areas such as National Parks and AONBs, designations in local plans should be considered. Decision makers should judge whether any adverse impact on the landscape would be so damaging that it is not offset by the benefits (including need) of the project. (Paragraph 5.9) Land use, open space and green infrastructure. The Environmental Statement should identify existing and proposed land uses and any effects from the proposed facility on these uses. Applicants should seek to minimise impacts on the best and most versatile agricultural land and preferably use land in areas of poorer quality (grades 3b, 4 and 5) except where this would be inconsistent with other sustainability considerations. Applicants should determine whether their proposal, or any part of it, is within an established Green Belt and if it is, whether their proposal may be inappropriate development within the meaning of Green Belt policy. (Paragraph 5.10) Noise and vibration. Paragraph 5.11.4 sets out the items to be included in a noise assessment. Decision makers should not grant development consent unless satisfied that the proposals will: avoid significant adverse impacts on health and quality of life from noise; mitigate and minimise other adverse impacts on health and quality of life from noise; and where possible, contribute to improvements to health and quality of life through the effective management and control of noise.
5. Alternative Approaches
5.1. If electricity storage does in fact fall under the existing Use Class B8, it would theoretically be possible for existing buildings with general B8 planning permission to be used to house electricity storage equipment. Such an approach has not to our knowledge been tested, and planning permission may be required for other aspects of such an installation (for example, where external plant is required in relation to a grid connection).
5.2. Where storage is to be co-located, it may also be possible to use the existing permitted development rights granted to statutory electricity undertakers by Class B, Part 15 of Schedule 2 of the Town and Country Planning (General Permitted Development) (England) Order 2015. These are broadly framed but include;
5.2.1. The extension or alteration of buildings on operational land (except for increases in height, volume increases of more than 25% and floor space increases of over 1,000 sqm) (Class B(d))
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5.2.2. The erection of buildings solely for the protection of plant or machinery (to a maximum height of 15 metres) (Class B(e))
5.2.3. Any other development carried out (except erection of buildings, alterations materially affecting design or appearance of buildings, and installation of plant over 15 metres high) (Class B(f))
There may therefore be potential to retrospectively install the storage plant itself under Class B(f) and the buildings to contain it under Class B(e).
6. Future Reforms
6.1. Reform of the planning system in relation to electricity storage has recently been under consideration in the context of Flexible Energy Systems, following a call for evidence sponsored by Ofgem and the Department for Business, Energy and Industrial Strategy in November 2016. A Smart Systems and Flexibility Plan was published in July 2017, together with a summary of the responses to the call for evidence and Ofgem's detailed responses.
6.2. The main result of this from a planning perspective is a proposal to undertake a further review into simplification of planning for electricity storage, with a particular emphasis on the need for specific guidance for storage and on the NSIP threshold and how it should be measured. It is anticipated that this could lead to a higher MW threshold applying, or possibly the use of an alternative metric such as the total capacity in available MWh.
6.3. This putative review is, however, based on the idea that storage should fall under the DCO process rather than traditional planning and this is reinforced by other measures proposed in the Plan. "When Parliamentary time allows" an amendment to the existing definition of "generating station" is proposed to include an "Electricity Storage Facility". This is based on a definition of "Electricity Storage" proposed by trade bodies as, "the conversion of electrical energy into a form of energy which can be stored, the storing of that energy, and the subsequent reconversion of that energy back into electrical energy." The detailed responses to the call for evidence indicate that this decision reflects the desire of operators to have reforms of Ofgem's licensing system in place as swiftly as possible, with Ofgem's detailed response indicating that, "we recognise that storage can provide the same function to the grid of providing electricity as conventional generation".
6.4. As the intention to review further has only recently been announced, there is no indication of when or how this will be undertaken, or of the Government's initial view on more detailed matters such as permitted development rights in relation to capacity expansions.
DAC Beachcroft September 2017
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