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Battery Storage and EIA Regulations

You’d think that standalone battery storage developers would know the regulations for planning for their own developments right? Well, lately we’ve seen a fair few BESS developers fall foul of a fundamental step in the process. Has a BESS proposal near you fallen foul of it too?

Basics

If you are new to this there are a few basic things to understand first. It took us a while to get to grips with it at first too.

Battery Energy Storage Systems (BESS)

Large-scale BESS can come in a few different forms. For the purposes of this article we are considering Integrated BESS (i.e. BESS directly connected to a solar or wind development) and Standalone BESS (i.e. BESS that is not directly connected to or associated with another energy development project).

EIA Regulations

EIA stands for Environmental Impact Assessment. The Town and Country Planning (Environmental Impact Assessment) Regulations 2017 apply to certain developments proposed in the UK. The regulations set out a procedure for identifying projects which should be subject to an Environmental Impact Assessment, and for assessing, consulting and coming to a decision on those projects which are likely to have significant environmental effects. There are three steps to an EIA.

  1. EIA Screening – if a development is potentially an EIA development it must under go a step called EIA Screening with the local planning authority (your Town or District Council). This is to determine if there are any likely significant effects, and therefore is an EIA must be done. If it is determined not to be EIA then steps 2 and 3 below are not required and the developer can skip straight to a standard planning application.
  2. EIA Scoping – if a development is determined to be an EIA development during EIA Screening, then the developer asks the local planning authority to state what topics are to be scoped into the EIA, and scoped out of. These are topics such as biodiversity, flood risk, landscape, etc. This simply means that some topics are considered likely to have significant effects and must be assessed in more detail as part of the EIA.
  3. Environmental Statement or ES – when the developer prepares their planning application documents they will carry out the EIA and produce their Environmental Statement, or ES. They submit the planning documents and the ES together as one planning application.

Note: a developer may decide they will produce an ES without going through the Screening or Scoping phases. This is allowed. However, a developer may not excuse themselves from an ES of their own accord. This must be decided by the local planning authority.

What do the Regulations say?

The EIA Regulations break developments down into three categories: Schedule 1, Schedule 2, and Schedule 3. For the purposes of BESS we need to look to Schedule 2 part 3(a) which states two conditions.

  1. Industrial installations for the production of electricity, steam and hot water (unless included in Schedule 1);
  2. The area of the development exceeds 0.5 hectare.

The majority of BESS (Integrated and Standalone) fall into this category.

If the development is for Integrated BESS then there is likely solar or wind as the main part of the project, and BESS have been tagged on to the side. It is clear this project falls into this category, and therefore must be assessed under EIA Screening. And we’re yet to come across an Integrated BESS development that has skipped this stage.

If the development is for Standalone BESS then this is where some developers are falling foul of the EIA process.

It is important to understand here that whilst BESS do store electricity, they are able to produce a supply of that electricity when needed. Furthermore, Ofgem categorise battery storage as a subset of electricity generation and National Grid categorise it as energy supply for their grid management purposes.

Thus, BESS developments can be deemed to fall under Schedule 2 part 3(a) for EIA purposes, and therefore must be submitted to the local planning authority for EIA Screening. But some aren’t doing this.

Why is it being missed?

In all honesty, we don’t know why the developers are missing the EIA Screening stage. We have seen two different situations.

  1. The developer has ignored the EIA Screening stage completely, making no mention of it whatsoever in their documentation. We do not know if they are unaware of their obligations, or if they are pretending they don’t exist and trying to get away with it.
  2. The developer recognises they fall under Schedule 2 part 3(a), but then carrying out their own EIA Screening exercise, determining that they are not an EIA development, and excusing themselves from it.

In both cases there is also the potential issue that the local planning authority are not entirely aware of their obligations to the EIA Regulations, and so don’t enforce it either. You can help them out with this.

What does this mean?

Provision 3 of the Town and Country Planning (EIA) Regulations 2017 tells us:

“The relevant planning authority, the Secretary of State or an inspector must not grant planning permission or subsequent consent for EIA development unless an EIA has been carried out in respect of that development.”

This means that if a development that should be considered an EIA development is granted planning permission, but does not go through the EIA process, then you potentially have the opportunity to overturn the decision by Judicial Review.

And how do you know if a Standalone BESS development is an EIA development? It must go through the EIA Screening stage. And this must be determined by the local planning authority, NOT the developer.

Here at CARE Suffolk one of the BESS developers around Bramford tried to do their own EIA Screening exercise. As part of our objection to the development we put forward the argument that the project must go through the EIA Screening stage with the local Council making the decision. We were successful in our argument and the developer was required to go through that part of the process. It was determined not an EIA development, but it was important that it went through the process correctly.

What to write to your local planning authority?

First, is the proposed development over 0.5 hectare in size? Yes, proceed.

Second, has the developer made any mention of EIA Screening in their planning application documents and/or was that determined by the local planning authority? No, proceed. (Developers will mention this and the outcome in the documents if they have done it).

To give you a helping hand, we’ve written a general outline of an argument if you find a BESS development in your area has not gone through the EIA Screening stage. Please do feel free to copy this or amend it as you see fit. Also please please check the Planning Practice Guidance note in point 3 is still correct as it may have changed between this being written and being re-checked for accuracy.

  1. We are/I am concerned that the Proposed Development was not submitted to the LPA for EIA Screening.
  2. The Proposed Development falls under the Town and Country Planning (Environmental Impact Assessment) Regulations 2017 Schedule 2 part 3(a) as an “Industrial installations for the production of electricity” and “exceeds 0.5 hectare” in size.
  3. Battery Storage is a way of storing electricity and producing a supply of electricity to the grid as and when needed. Furthermore, Ofgem is the National Energy Regulator for Great Britain and under their electricity generation licence scheme battery storage, such as this one, is a subset of electricity generation. Thus, it is deemed that this battery storage development falls under Schedule 2 part 3(a) of the 2017 Regulations. https://www.ofgem.gov.uk/publications/decision-clarifying-regulatory-framework-electricity-storage-changes-electricity-generation-licence
  4. Optional: We recognise that the applicant has assessed themselves for EIA Screening. However, as per Planning Practice Guidance Paragraph: 017 Reference ID: 4-017-20170728 “The local planning authority (or the Secretary of State as the case may be) should determine whether the project is of a type listed in Schedule 1 or Schedule 2 of the 2017 Regulations.” It is not for the applicant to determine whether the proposal is an EIA Development or not, it is for the local planning authority to decide.
  5. Optional: Whilst we are aware that other BESS approved in the area in recent years (list the application numbers) were not considered as EIA development, the proposed development is not being assessed in (insert year(s) of those applications). So any claims of ‘precedent’ can not overrule the duty to properly assess the proposed development in today’s circumstances.
  6. Ideal: we can’t write this point for you as each application is unique. But here you need to consider any likely significant effects of the development and put forward a short and concise argument as to why they may make it an EIA Development. You can see our real life example here.
  7. Optional: Other recent proposals for energy generation in the area, which include battery storage, have been screened by the Council to be EIA Development (list the application numbers).
  8. Under the Town and Country Planning (Environmental Impact Assessment) Regulations 2017 provision 3 it states that a local authority must not grant planning permission for an EIA Development unless an EIA has been carried out.
  9. To determine whether this is an EIA Development can only be done by the local planning authority, and we/I cannot see that this has formally been done. Thus, the applicant must submit the development for EIA Screening for the local planning authority to determine prior to any determination of this planning application.

Summary

We hope this article has been useful to you and it gives you a helping hand to ensure any BESS developments near you are not skipping any important steps in the planning process.

Ensuring this step in the process is completed may not get you any further ahead in the grand scheme of things. After all, the local planning authority may determine the application to not be an EIA Development and things proceed as before. But it does ensure the correct procedure is followed, and it lets both the developer and the local planners know you are watching carefully.

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