Energy Bill

Written evidence submitted by Eversheds LLP, on behalf of Community Wind Power Limited (EB 19)

Energy Bill – Onshore Wind Approved Development Condition

We write on behalf of our client, Community Wind Power Limited, ahead of the second reading debate on the Energy Bill which will take place on the 18th January 2016. We understand that no amendments will be tabled at the second reading debate itself, but the Bill will be examined in detail at the following Committee stage which is expected to commence shortly thereafter.

It is our client’s expectation that at the Committee stage, the Government will seek to reintroduce the proposed amendments of Lord Bourne of Aberystwyth which were previously put forward at Report stage. Our client is concerned that those proposed amendments contain an anomaly which discriminates between those onshore wind projects which receive consent under Section 36 of the Electricity Act 1989 ("the 1989 Act") as compared to those receiving consent under the Town & Country Planning Act regime.

At present, the Government’s amendments propose the insertion of (inter alia) a new section 32 LJ into the 1989 Act. These amendments propose circumstances which provide a grace period to qualify for the Renewables Obligation for onshore wind projects which are consented after the 18th June 2015. The amendments proposed at sub-sections 32 LJ (4)(b) and (c) would allow Town & Country Planning Act schemes to qualify in circumstances where those projects have either been refused or not determined at a local level such that a right of appeal had arisen prior to the 18th June 2015 if they are subsequently consented following an appeal.

This establishes the principle for projects with an installed capacity below 50MW that where a Local Authority objects to a project being consented, but either the Secretary of State or the Scottish Ministers disagree and proceed to grant consent, then those projects should still be capable of qualifying under the grace period. However, that principle is not applied to section 36 projects in similar circumstances, where the Secretary of State or the Scottish Ministers are required to hold a Public Inquiry following an objection from the Local Planning Authority.

Our client believes that this approach is inconsistent and without logical distinction, and is prejudicial to developers who have Section 36 projects in exactly the same position as those submitted under the Town & Country Planning Act. Accordingly, they have proposed an amendment as set out in the Appendix to this letter which will address the situation, and ask that it is given urgent consideration at the Committee stage.


1. After proposed subsection 32LJ(4)(d) insert:


"(e) evidence that:

(i) an application for consent for the station or for additional capacity was made under section 36 of this Act;

(ii) the consultation period prescribed by Regulations made under paragraphs 2(3) or 3(1)(c) of Schedule 8 to this Act had expired on or before 18 June 2015;

(iii) the Secretary of State caused a public inquiry to be held under paragraph 2(2) or 3(3) of Schedule 8 to this Act or decided that a public inquiry need not be held;

(iv) the Secretary of State granted consent after 18 June 2015; and

(v) any conditions as to the time period within which the development to which the permission relates must be begun have not been breached."

January 2016


Prepared 28th January 2016