Planning matters

As the UK moves away from large coal and gas power-stations that had built in measures to regulate the flow of energy on to the national grid, in favour of low and zero-carbon sources that can have peaks and troughs of output, Battery Energy Storage Systems (‘BESS’) are important to ensure that the maximum amount of energy generated is utilised. The decarbonisation of the energy sector is an important part of our just transition away from carbon rich energy sources and provides environmental and economic benefits, such as clean and reliable energy at low cost to customers.

Anyone involved in the renewable energy industry will know firsthand the nature of the rapidly evolving technology and the challenges this presents for applicants and decision makers. The time elapsed from the submission of a planning application, to planning permission being granted and to construction of the development commencing can mean that the technology has moved on such that schemes need to be varied before implementation. Often the BESS ‘kit’ that has planning permission is no longer available on the market or new and improved ‘kit’ is now available.  To that end, it would be beneficial to find a consistent way of managing this that enables the control of consented development schemes without requiring new applications to deal with relatively minor but potentially still material changes to layout or the dimensions of the BESS ‘kit’.

The Scottish Government has highlighted the role of planning conditions for energy schemes by publishing their standard ‘consent conditions’ for consideration in terms of onshore wind Section 36 consents (electricity generating stations over 50MW). Within this, there is a standard condition (set out in full later in this blog) in respect of energy storage facilities associated with a wind farm and a condition for micro-siting that could be applied/adapted for BESS schemes. Lichfields believes such an approach would be suitable for planning applications relating to BESS schemes of less than 50MW granted by Planning Authorities as well as larger Section 36 consents from the Scottish Government.

From our experience working on renewable energy projects, non-material variation (‘NMV’) applications are often utilised to secure amendments to permissions when there are no appropriate conditions against which to introduce changes. However, what is considered to be a ‘non-material’ amendment will vary from council to council. Please note that there are no minor material amendment applications in Scotland. To this end, conditions that provide a degree of flexibility but also provide the local authority with control would be beneficial.

At a time when local authority planner capacity is stretched, we believe that well-crafted planning conditions can provide appropriate control and comfort to the local authority whilst still allowing the developer to account for the changing nature of BESS “kit” without the need for new applications. With this in mind, we set out the following conditions, the use of any one of them could build in necessary flexibility:

While there has been a move away from conditions which list out approved drawings as planning permissions now include schedules, a condition which lists out the approved drawings provides inbuilt flexibility as Section 42 of the Town and Country Planning (Scotland) Act 1997 (comparable to a Section 73 application in England) allows for applications for non-compliance with conditions attached to a planning permission to be made. In practice, this means that an application could be made to swap approved drawings for new drawings for an already consented development. Most importantly, a Section 42 application can consider ‘material’ changes.

Below is the proposed standard condition (10) from the Scottish Government for onshore wind farms, which we believe could be utilised widely for BESS developments.  Not all standalone BESS schemes will be EIA developments, and this condition should be amended accordingly by removing the text which is bold where EIA does not apply.  There will also be an amendment to the “Reason” in such circumstances, but this could be achieved by replacing ‘the EIA Report’ with ‘the application’ as shown below.

 

Even where details have been submitted as part of a detailed application, these are often subject to change before implementation.  This condition or a version of it would allow changes to the BESS ‘kit’ to be assessed and approved by planning authorities after detailed permission was granted, reflecting the nature of these developments.

 

We have in fact encountered a version of this condition attached to a BESS planning permission and found it to work very well. Discharge of condition applications are material considerations, and the example condition secures control for the local authority while ensuring there is flexibility for the developer should some external kit need to be altered.

 

Below is the proposed standard condition from the Scottish Government for onshore wind farms regarding micro-siting, which we believe could be amended for BESS developments. We have deleted the text that would not apply to BESS developments to leave an acceptable potential condition.

Following on from this and set out below is an adapted condition that we have seen utilised on other renewable energy projects that would do a similar job.

‘BESS containers, buildings, compounds, areas of hardstanding, the internal road network and access shall be constructed in accordance with the Approved Layout. A variation of the indicated position of any BESS Containers or other development infrastructure detailed in the Approved Layout shall be submitted to and approved in writing with the planning authority. The position will only be acceptable where it is compatible with the other conditions attached to the permission’.

These potential conditions reflect the fact that BESS developments are practical developments, often in close proximity to existing substantial pieces of infrastructure (electricity substations, pylons, etc). As such, once the principle of development has been established and assuming all other matters (e.g., visual, noise, drainage, etc.) are acceptable, variations should be acceptable within set parameters.

Flexible conditions are a more consistent and transparent way to manage potential variations to consented BESS schemes compared to NMV applications. They can also accommodate material changes. This is important as we consider it is unreasonable to expect completely new applications for minor/moderate changes just because there are no suitable conditions to do this, when the principle of development has been established. In a worst-case scenario, this could lead to a perpetual cycle of application, permission, and non-implementation due to changes to the ‘kit’.

We would encourage all applicants for planning permission to engage the local authority regarding suitable conditions. We would also encourage case officers to familiarise themselves with the day-to-day realities of BESS projects in the way this has been done for Wind Energy projects and build in flexibility to conditions even where it has not been explicitly requested. Conditions must reflect that the BESS units applied for can quickly become outdated technology and/or may not be procurable and implementable when construction is scheduled. Inevitably, there will be variations in size and the efficient siting of new ‘kit’, which would mean it does not match exactly with the consented scheme.  This should not preclude the development coming forward and should not necessarily result in the need for a new planning application.

Lichfields’ Edinburgh offices work with BESS developers all over Scotland and have an excellent track record in gaining planning permissions and collaborating with existing commissions to enable development.

If you want to discuss an energy project, please get in touch.