The Electricity (Offshore Generating Stations) (Variation of Consents) (Wales) Regulations 2019

Made: 18 February 2019

Laid before the National Assembly for Wales: 20 February 2019

Coming into force: 1 April 2019

The Welsh Ministers, in exercise of the powers conferred on them by sections 36C(2) and (6) and 60 of the Electricity Act 1989 , make the following Regulations:

Title and commencement

1

The title of these Regulations is the Electricity (Offshore Generating Stations) (Variation of Consents) (Wales) Regulations 2019 and they come into force on 1 April 2019.

Interpretation

2

In these Regulations—

• “the Act” (“y Ddeddf”) means the Electricity Act 1989;

• “the 1990 Act” (“Deddf 1990”) means the Town and Country Planning Act 1990 ;

• “the EIA Regulations” (“y Rheoliadau AEA”) means the Electricity Works (Environmental Impact Assessment) (England and Wales) Regulations 2017 ;

• “applicant” (“ceisydd”) means a person who has the benefit of a section 36 consent and makes a variation application in respect of it;

• “development” (“datblygiad”) has the meaning given in section 55 of the 1990 Act (meaning of “development” and “new development”);

• “generating station” (“gorsaf gynhyrchu”) includes a proposed generating station ;

• “infrastructure consent development” (“datblygiad cydsyniad seilwaith”) means any development associated with the relevant section 36 consent in respect of which—an order under section 60(1) or 90(1) of the Infrastructure (Wales) Act 2024 has been granted; orthe applicant, on making a variation application, is making an application for consent under the provisions of the Infrastructure (Wales) Act 2024;

• “proposed development” (“datblygiad arfaethedig”) means—the generating station, or extension of a generating station, which the applicant would be authorised to construct under a relevant section 36 consent if that consent were varied as requested in a variation application;the way in which a generating station so constructed or extended would be authorised to be operated under the relevant section 36 consent as so varied; ...any section 90 development in respect of which section 36 consent is not required; ; and any infrastructure consent development in respect for which section 36 consent is not required;

• “relevant planning authority” (“awdurdod cynllunio perthnasol”) means in the case of a variation application, or a request for a section 90 direction which accompanies the variation application, any of the following bodies—a local planning authority (within the meaning of Part 1 of the 1990 Act (local planning authorities: general)) in England and Wales; a district council in Northern Ireland,which are identified by the applicant under regulation 3(1)(e) or by the Welsh Ministers under regulation 4(7);

• “relevant section 36 consent” (“cydsyniad adran 36 perthnasol”) means the section 36 consent in respect of which a variation application is made;

• “section 36 consent” (“cydsyniad adran 36”) means a consent under section 36 of the Act (consent required for construction etc. of generating stations) including any variations to that consent made under section 36C(4) of the Act which relates to a generating station in Welsh waters (within the meaning of section 36 of the Act) that does not or will not when constructed or extended exceed 350 megawatts;

• “section 90 development” (“datblygiad adran 90”) means any development in respect of which—a section 90 direction was given on granting the relevant section 36 consent; orthe applicant, on making a variation application, requests the Welsh Ministers to give a section 90 direction;

• “section 90 direction” (“cyfarwyddyd adran 90”) means a direction under section 90(2) or (2ZA) of the 1990 Act (deemed planning permission for development with government authorisation);

• “variation application” (“cais amrywio”) means an application to the Welsh Ministers to vary a section 36 consent made under section 36C(1) of the Act.

Content of variation applications

3

• (1) A variation application must—

• (a) be made in writing;

• (b) describe the location of the proposed development by reference to a map;

• (c) state—

• (i) why it is proposed that the relevant section 36 consent should be varied;

• (ii) what account has been taken of views expressed by persons who have been consulted by the applicant about the proposed variation;

• (d) include—

• (i) a draft of the variations which the applicant proposes should be made to the relevant section 36 consent; and

• (ii) copies of any maps or plans not referred to in the relevant section 36 consent but which the applicant proposes that the relevant section 36 consent should refer to after it is varied; and

• (e) identify which of the bodies referred to in the definition of “relevant planning authority” in regulation 2 are, in the applicant's opinion, likely to have an interest in the variation application.

• (2) A variation application must include particulars of—

• (a) the relevant section 36 consent, and, if that consent was not granted to the applicant, how the applicant has the benefit of that consent;

• (b) any section 90 direction given on granting the relevant section 36 consent;

• (c) any permit, licence, consent or other authorisation (other than the relevant section 36 consent) given in connection with the construction or operation of the proposed development (a “relevant authorisation”), including any variation or replacement of a relevant authorisation; ...

• (d) any application that has been made for a relevant authorisation or variation of a relevant authorisation;

• (e) any order granted under section 60(1) or 90(1) of the Infrastructure (Wales) Act 2024 associated with the relevant section 36 consent; and

• (f) any application submitted for, or for variation of, an infrastructure consent associated with the relevant section 36 consent, made in accordance with the provisions of the Infrastructure (Wales) Act 2024.

• (3) Where the applicant requests the Welsh Ministers to give a section 90 direction on varying the relevant section 36 consent, the application must—

• (a) identify the section 90 development in respect of which that request is made and describe its location by reference to a map;

• (b) state—

• (i) why it is proposed that the direction should be made; and

• (ii) what account has been taken of views expressed by persons who have been consulted by the applicant about the proposed direction; and

• (c) include—

• (i) a draft of the proposed direction; and

• (ii) copies of any maps or plans to which it is proposed that the section 90 direction should refer which are not—

• (aa) referred to in the relevant section 36 consent or any section 90 direction given on granting the relevant section 36 consent; or

• (bb) included in the application in accordance with paragraph (1)(d)(ii).

Assessment of suitability for publication

4

• (1) Where the Welsh Ministers receive a variation application, they must—

• (a) consider whether or not it is suitable for publication in accordance with regulation 5; and

• (b) give the applicant a notice under paragraph (2) or (6) within three weeks of receipt.

• (2) If the Welsh Ministers do not consider that the application is suitable for publication, they must give notice to the applicant—

• (a) of their decision and the reasons for that decision; and

• (b) that it may make representations to the Welsh Ministers with a view to persuading the Welsh Ministers that the application is suitable for publication.

• (3) Where the Welsh Ministers give notice under paragraph (2), they must—

• (a) specify in writing a date by which any representations under paragraph (2)(b) are to be made; and

• (b) if the applicant fails to make representations by the date so specified, give the applicant a refusal notice.

• (4) Paragraph (5) applies where the applicant makes representations to the Welsh Ministers further to a notice given to it under paragraph (2)(b).

• (5) If, having considered the applicant's representations, the Welsh Ministers—

• (a) still consider that the application is not suitable for publication, they must give a further notice under paragraph (2) or a refusal notice; or

• (b) consider that the application is suitable for publication, they must give a notice under paragraph (6).

• (6) If the Welsh Ministers consider that the application is suitable for publication, they must give the applicant notice of their decision.

• (7) Where—

• (a) paragraph (6) applies; and

• (b) there are bodies referred to in the definition of “relevant planning authority” in regulation 2—

• (i) that the Welsh Ministers consider are likely to have an interest in the application; and

• (ii) that have not been identified by the applicant under regulation 3(1)(e),

the Welsh Ministers must identify those bodies in the notice given under paragraph (6).

• (8) For the purposes of this regulation, a variation application is suitable for publication in accordance with regulation 5 if—

• (a) in a case where an EIA report is required to be prepared in connection with the variation application under the EIA Regulations (because the application is for EIA development within the meaning of those Regulations), an EIA report has been provided to the Welsh Ministers; and

• (b) it appears to the Welsh Ministers that—

• (i) the applicant wishes to construct, operate or extend a generating station in a way which the relevant section 36 consent does not authorise it to do;

• (ii) the proposed development does not differ from the generating station to which the relevant section 36 consent refers to such an extent (in its construction, extension, operation or likely environmental effects) that it requires authorisation by—

• (aa) an order granting development consent within the meaning of section 31 of the Planning Act 2008 (when development consent is required); or

• (bb) a new section 36 consent (rather than a variation to the relevant section 36 consent); and

• (iii) there is sufficient information in the application to enable the Welsh Ministers to determine the application.

• (9) In this regulation—

• (a) “EIA report” has the meaning given in the EIA Regulations;

• (b) a “refusal notice” is a notice that the Welsh Ministers have decided under section 36C(4) of the Act that it would not be appropriate to make any variation to the relevant section 36 consent.

Publication

5

• (1) Where an applicant has received a notice under regulation 4(6), the variation application must be published, and its publication advertised, in accordance with this regulation.

• (2) The applicant or, where paragraph (3) applies, the Welsh Ministers must publish on a website (the “application website”)—

• (a) a summary of the variation application;

• (b) the application;

• (c) a link to the relevant section 36 consent, any section 90 direction given on granting the relevant section 36 consent and any statement (in the form of a decision letter, decision notice or otherwise) given by the appropriate authority under regulation 10(3) of the Electricity Works (Environmental Impact Assessment) (England and Wales) Regulations 2000 or regulation 33 of the EIA Regulations on granting the relevant section 36 consent.

• (3) This paragraph applies where the Welsh Ministers notify the developer in writing that the Welsh Ministers will comply with the obligations in paragraph (2).

• (4) The applicant must serve a copy of the application on the relevant planning authority (if any).

• (5) The applicant must publish notice of the variation application—

• (a) in two successive weeks in one or more local newspapers which are likely to come to the attention of those likely to be affected by the proposed development;

• (b) in the London Gazette;

• (c) in Lloyd's List and in one or more newspapers circulating in Wales, England and Northern Ireland; and

• (d) if there are in circulation one or more appropriate fishing trade journals which are published at intervals not exceeding one month, in at least one such trade journal.

and serve a copy of the notice on the relevant planning authority (if any).

• (6) The notice required by paragraph (5) must—

• (a) not be published before the applicant has complied with paragraphs (2) and (4) or, where paragraph (3) applies, the Welsh Ministers have complied with paragraph (2) and the applicant has complied with paragraph (4);

• (b) state—

• (i) that a variation application has been made and that the applicant has received a notice under regulation 4(6);

• (ii) the address of the application website, and that further information about the application is to be found on the application website;

• (iii) the date, not less than four weeks after the date on which the last notice is to be published, by which any person other than a relevant planning authority must send objections to the proposed development, or other representations about the application, to the Welsh Ministers; and

• (iv) the address to which any such representations are to be sent; and

• (c) identify—

• (i) the applicant;

• (ii) the relevant section 36 consent;

• (iii) the generating station to which it relates; and

• (iv) a place which is reasonably accessible to those likely to be affected by the proposed development where copies of the variation application may be inspected.

Public inquiries into variation applications

6

• (1) The Welsh Ministers may cause a public inquiry to be held into a variation application if they consider it appropriate to do so having considered—

• (a) any representations made about a variation application to the Welsh Ministers—

• (i) which a relevant planning authority makes within two months of the date on which a copy of the application was served on it under regulation 5(4); and

• (ii) which any other person makes on or before the date specified in accordance with regulation 5(6)(b)(iii),

where those representations are not withdrawn; and

• (b) all other material considerations.

• (2) If the Welsh Ministers cause a public inquiry to be held into a variation application they may do so in addition to or instead of any other hearing or opportunity to make representations about the application.

Withdrawal of variation applications

7

• (1) An applicant may withdraw a variation application at any time by notice in writing to the Welsh Ministers.

• (2) If a variation application is withdrawn after it has been published in accordance with regulation 5, the Welsh Ministers must notify the relevant planning authority and the consultation bodies within the meaning of the EIA Regulations that it has been withdrawn.

Allowing further time

8

The Welsh Ministers may in any particular case allow further time for the taking of any step which is required or enabled to be taken by virtue of these Regulations, and references in these Regulations to a day by which, or a period within which, any step is required or enabled to be taken are to be construed accordingly.

Revocation

9

The Electricity Generating Stations (Variation of Consents) (England and Wales) Regulations 2013 are revoked so far as they apply to a variation application.

Signed

Julie James — Minister for Housing and Local Government, one of the Welsh Ministers — 2019-02-18

Explanatory note

(This note is not part of the Regulations)

Footnotes

[^f00001]: 1989 p. 29. Mewnosodwyd adran 36C gan adran 20(1) a (2) o Ddeddf Twf a Seilwaith 2013 (p. 27) (“Deddf 2013”) ac fe’i diwygiwyd gan adran 39(12) o Ddeddf Cymru 2017 (p. 4) (“Deddf 2017”) a pharagraff 48 o Atodlen 6 iddi. Mae diwygiadau i adran 60 nad ydynt yn berthnasol i’r Rheoliadau hyn.

[^f00002]: Diwygiwyd adran 36 gan adran 93 o Ddeddf Ynni 2004 (p. 20) , paragraffau 31 a 32 o Atodlen 2 i Ddeddf Cynllunio 2008 (p. 29), adran 12(7) ac (8) o Ddeddf y Môr a Mynediad i’r Arfordir 2009 (p. 23) , adran 78 o Ddeddf Ynni 2016 (p. 20) ac adran 39(7) i (11) o Ddeddf 2017 a pharagraff 47 o Atodlen 6 iddi. Nid yw’r diwygiadau eraill yn berthnasol i’r Rheoliadau hyn.

[^f00003]: Amnewidiwyd adran 90(2) a (2ZA) gan adran 21(2) o Ddeddf 2013 ac fe’i diwygiwyd gan adran 39(13) o Ddeddf 2017.

[^f00004]: Diwygiwyd adran 55 gan adrannau 13(1) a (2) a 14 o Ddeddf Cynllunio a Digolledu 1991(p. 34) , a pharagraff 9 o Atodlen 6, ac Atodlen 19 iddi, adran 49(1) o Ddeddf Cynllunio a Phrynu Gorfodol 2004 (p. 5), a pharagraffau 1 a 2 o Atodlen 6, ac Atodlen 9 iddi, a chan O.S. 1999/293.

[^f00005]: 1990 p. 8 .

[^f00006]: Gweler adran 64(1) o Ddeddf Trydan 1989 (“Deddf 1989”) am y dehongliad o “generating station”.

[^f00007]: O.S. 2017/580, y mae diwygiadau iddo nad ydynt yn berthnasol i’r Rheoliadau hyn.

[^f00008]: 2008 p. 29> .