Changes to planning system will mean faster and more flexible consenting for battery storage projects

The government has announced legislation to change the consenting process for battery storage projects in England and Wales. These confirm the government's previous proposals, set out in a recent consultation on reforming the planning regime for electricity storage. The changes represent the latest phase of the government's Smart Systems and Flexibility Plan, part of which seeks to remove barriers for the deployment of electricity storage projects.

The changes will take battery storage schemes over 50MW out of the national infrastructure consenting scheme of development consent orders and place decision making with local planning authorities. The aim is to enable large battery storage projects to come forward at lower up front development costs and in a quicker timescale.

Background

As it stands, in England, any storage project below 50 MW requires consent by the relevant local planning authority (LPA) under the Town and Country Planning Act 1990 (TCPA). Consent for a project over this threshold is subject to the Nationally Significant Infrastructure Project (NSIP) regime under the Planning Act 2008 (PA 2008).

Similarly, in Wales, consent for a storage project up to 350 MW is subject to the TCPA and any project which exceeds this threshold comes under the NSIP regime.

Following two rounds of consultation, the government proposed carving out storage projects from the NSIP regime, except for pumped storage projects which would continue be consented under the PA 2008.

What is changing?

On 14 July 2020, the government responded to its follow-up consultation and announced the following changes in respect of the consenting regime for storage projects:

• The government will bring into effect legislation which removes electricity storage from the NSIP regime in England and Wales
• The government has confirmed that it will introduce two statutory instruments to amend the PA 2008 and the Electricity Act 1989 (EA 1989). The process of implementing these instruments began on 14 July 2020. The effect of the new legislation will allow storage projects regardless of capacity to be consented by LPAs under the TCPA 1990, except for pumped hydro storage which will remain part of the NSIP regime.
• The effect of the legislation will mean the removal of electricity storage from both the onshore and the offshore NSIP regime

  The current consenting process for offshore projects is under the NSIP regime and Section 36 of the EA 1989. The government has confirmed that consent for offshore storage projects will now be granted via a marine licence under the Marine and Coastal Access Act 2009. These are granted by the Marine Management Organisation in England and Natural Resources Wales in Wales.

As part of its follow-up consultation, the government published draft forms of the legislation to be brought into force. By way of its recent response, the government has confirmed the following in respect of the forthcoming legislation:

• The proposed legislation will not impact the overall classification of electricity storage as a subset of generation. However, for the purpose of the NSIP regime it will no longer be considered a form of generating station and thus not a form of development which requires a Development Consent Order under Section 31 of the PA 2008.
• The legislation will impact standalone storage projects, composite projects (where storage is constructed alongside another form of generation) and extensions to existing projects already consented under the NSIP regime.
• The removal of electricity storage from the NSIP regime will apply from the date when the legislation comes into force. Therefore, any applications which have been accepted into the NSIP regime before the legislation comes into force will continue to be dealt with under the current process.

Differences between England and Wales

Whilst the changes are intended to be co-ordinated across England and Wales, for the time being there will remain a disparity between the two regimes.

The government has made it clear in its response to the follow-up consultation that Section 35 of PA 2008 will continue to apply in England for storage projects. By virtue of this, the Secretary of State has the discretionary power to direct a particular project to the NSIP regime. This power will apply in respect of both onshore and offshore projects in England and English waters only.

In respect of offshore projects, the planning regimes in England and Wales will not be automatically aligned once the new legislation is brought into effect. As mentioned above, the current offshore consenting process requires Section 36 consent under the EA 1989. Section 36 consents are devolved to the Welsh government and as such the Welsh government will need to put additional legislation in place before offshore projects in Welsh waters can be carved out the NSIP regime.