UK: Analysis Of Planning Act Project Thresholds (1)

Last Updated: 18 September 2012
Article by Angus Walker

Today's entry looks at the effectiveness of the current Planning Act thresholds.

Since the government has announced that it is going to review the Planning Act thresholds and categories, I thought I would get the ball rolling with an analysis of the current thresholds.  Today's entry looks at the seven energy project thresholds.

I've given each one a rating according to its 'complexity' (i.e. how easy it is to interpret - the more stars, the more complex), 'height' (i.e. how high the threshold is relative to the number of projects of that type in general - the more stars, the higher and so fewer projects come within the regime) and 'ignorance' (i.e. my guess as to the likelihood of projects being authorised and constructed without recourse to the regime when arguably they come within it - the more stars the greater likelihood).

Electricity generation

Complexity **
Height *
Ignorance ****

The 50MW onshore / 100MW offshore threshold is simple and relatively low.  The one word in the definition that raises complexity to two stars and ignorance to four stars is 'extension'.  There are two points here.  First, all the other numerical thresholds have a size for a new piece of infrastructure and a size of an extension to an existing piece of infrastructure.  Not so for electricity generation - there is only a size for new infrastructure.  An extension of any size, if the original project can generate at least 50MW, or the extension takes it over 50MW, is a nationally significant infrastructure project (NSIP).  Thus to increase the output of a power station from 80MW to 80.1MW requires a Development Consent Order (DCO) application under the Planning Act.

A solar panel on the roof of a power station would count.  One new wind turbine added to a windfarm, or replacing an existing one with a more powerful one would count, if both of these were already over the 50MW threshold.  I have heard anecdotally of a power station dropping plans to have an on-site generator to allow it to start up in the event of a power cut because that would have required a DCO.

The second issue is what 'extension' actually means.  You might think it necessarily means an extension to generating capability, but it doesn't say that.  The government is relaxing the rules on extensions such as conservatories to houses, but would adding a conservatory to a power station require a DCO? That's why ignorance is at four stars.  I don't believe that no extension to any 50MW-plus form of electricity generating plant has been authorised or built since 1 March 2010, and if it has, arguably the Planning Act should have been used.  If it should, a criminal offence is committed as soon as a spade goes in the ground.

Electric lines

Complexity ***
Height **
Ignorance **

The threshold currently applies to electric lines (i.e. pylons and wires between them in ordinary language) and the main test is whether they carry 132 kilovolts or more.  The test is reasonably complex (a) because there are parts in addition to the voltage requirement and (b) there are some regulations that you would not be aware of by looking at the Planning Act that exempt various small projects.

The threshold is fairly low but would become much higher by the simple change of making it 'over 132kV' rather than 'not under 132kV'.  That is because at a stroke it would remove the 'electricity distribution network' from the Planning Act regime, which is the second tier of lines and whose highest-rated lines are 132kV, leaving the 'electricity transmission network', which is the highest tier, and pretty much one sole applicant for these projects, namely National Grid.

The ignorance rating is low, but there may be the odd transgression through misinterpretation of the exemptions.  There have been no electricity distribution network applications since (and perhaps because of) the ill-fated Western Power Distribution application that was not accepted for examination in August 2010.

Gas storage

Complexity *
Height ***
Ignorance *

The threshold is a numerical one based on storage capacity or flow rate outwards, either of which may be triggered.  There is one current application for such a project despite this high threshold, which was based on 1% of needed gas storage capacity nationwide.  The one application, however, is about 15 times the threshold, so is well above it.  Little chance of ignorance given the height of the threshold and the consequent publicity that an application would receive.

LNG and gas reception facilities

Complexity *
Height ****
Ignorance *

These two categories have the same storage capacity and outward flow rate thresholds respectively as gas storage.  There have been no applications yet, or even any on the list of forthcoming applications.  There are very few of these in the country - around half a dozen, I think, so a high threshold with little chance of ignorance.

Gas transporter and other pipelines

Complexity ****
Height **
Ignorance **

These two categories are based on (different) lengths in both cases, and additionally pressure in the first case. Two issues cause complexity.  First, the relationship between the two thresholds causes a bit of difficulty.  The difference between the two is whether a pipeline is being constructed by a gas transporter or not.  But what if a project is being promoted by a non-gas transporter that requires a gas pipeline diversion, where the power to carry out the diversion can be transferred to a gas transporter (quite a common scenario).  It comes under one threshold if the power isn't transferred, and another if it is.  What you do later could therefore theoretically affect whether you should have made a DCO application in the first place.

The solution, since there will probably be an underlying project that already requires a DCO, may simply be to include the diversion in the application without saying whether it is itself an NSIP or just associated development, since it doesn't really matter.  That's a bit unsatisfactory, though.

Secondly, the part of the second threshold dealing with diverting a pipeline is rather complex: if you are diverting a pipeline but haven't built it yet, then the diversion is an NSIP whatever its length, so a one metre change to plans would theoretically require a DCO.

So that concludes the first part of the analysis.  Already a set of traps for the unwary.  The remainder, for transport, water, waste and waste water will follow.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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