Electricity Act 1989

36 Consent required for construction etc. of generating stations. E+W+S

(1) Subject to subsections [F1 (1A) to] (2) and (4) below, a generating station shall not be constructed [F2 at a relevant place (within the meaning of section 4), and a generating station at such a place shall not be], extended or operated except in accordance with a consent granted by the Secretary of State.

[F3 (1A) So far as relating to the construction or extension of a generating station, subsection (1) is subject to section 33(1) of the Planning Act 2008 (exclusion of requirement for other consents for development for which development consent required).

(1B) So far as relating to the operation of a generating station, subsection (1) does not apply if the operation is authorised by an order granting development consent under the Planning Act 2008.]

[F4 (1C) This section is subject to section 12 of the Marine and Coastal Access Act 2009 (which transfers certain functions of the Secretary of State to the Marine Management Organisation).]

[F5 (1D) Subsection (1) does not apply to an English or Welsh onshore wind generating station.

(1E) “English or Welsh onshore wind generating station” means a generating station that—

(a) generates electricity from wind, and

(b) is situated in England or Wales, but not in waters in or adjacent to England or Wales up to the seaward limits of the territorial sea.]

(2) Subsection (1) above shall not apply to a generating station whose capacity—

(a) does not exceed the permitted capacity, that is to say, 50 megawatts; and

(b) in the case of a generating station which is to be constructed or extended, will not exceed the permitted capacity when it is constructed or extended;

and an order under this subsection may make different provision for generating stations of different classes or descriptions.

(3) The Secretary of State may by order provide that subsection (2) above shall have effect as if for the permitted capacity mentioned in paragraph (a) there were substituted such other capacity as may be specified in the order.

(4) The Secretary of State may by order direct that subsection (1) above shall not apply to generating stations of a particular class or description, either generally or for such purposes as may be specified in the order.

(5) [F6 Subject to subsections (5A) and (5B),] A consent under this section—

(a) may include such conditions (including conditions as to the ownership or operation of the station) as appear to the Secretary of State to be appropriate; and

(b) shall continue in force for such period as may be specified in or determined by or under the consent.

[F7 (5A) In the case of a generating station in respect of which a controlled activity, within the meaning of the Water Environment (Controlled Activities) (Scotland) Regulations 2005, will be carried on, the Secretary of State shall, before granting a consent under subsection (1), obtain and have regard to the advice of the Scottish Environment Protection Agency on matters relating to the protection of the water environment and have regard to the purposes of Part 1 of the Water Environment and Water Services (Scotland) Act 2003.

(5B) In the event that the conditions of a consent granted under subsection (1) on matters relating to the protection of the water environment, and the conditions of an authorisation granted under the Water Environment (Controlled Activities) (Scotland) Regulations 2005 differ, and cannot reasonably be reconciled, the relevant conditions of that consent shall be treated as modified to the extent necessary to be consistent with the conditions of that authorisation.]

(6) Any person who without reasonable excuse contravenes the provisions of this section shall be liable on summary conviction to a fine not exceeding level 5 on the standard scale.

(7) No proceedings shall be instituted in England and Wales in respect of an offence under this section except by or on behalf of the Secretary of State.

(8) The provisions of Schedule 8 to this Act (which relate to consents under this section and section 37 below) shall have effect.

(9) In this Part “extension”, in relation to a generating station, includes the use by the person operating the station of any land [F8 or area of waters] (wherever situated) for a purpose directly related to the generation of electricity by that station and “extend” shall be construed accordingly.

Textual Amendments

F1 Words in s. 36(1) inserted (1.3.2010) by Planning Act 2008 (c. 29), s. 241(8), Sch. 2 para. 32(2) (with s. 226); S.I. 2010/101, art. 2 (with art. 6)

F2 Words in s. 36(1) inserted (1.3.2005) by Energy Act 2004 (c. 20), s. 93(1)(4), 198(2); S.I. 2005/442, art. 2(1), Sch. 1

F3 S. 36(1A)(1B) inserted (1.3.2010) by Planning Act 2008 (c. 29), s. 241(8), Sch. 2 para. 32(3) (with s. 226); S.I. 2010/101, art. 2 (with art. 6)

F4 S. 36(1C) inserted (1.4.2010) by Marine and Coastal Access Act 2009 (c. 23), s. 12(7)(a)(8), 324(3); S.I. 2010/298, art. 2, Sch. para. 4 (with art. 4(1))

F5 S. 36(1D)(1E) inserted (12.7.2016) by Energy Act 2016 (c. 20), ss. 78, 84(3); S.I. 2016/602, reg. 3(g) (with reg. 4) (as substituted by S.I. 2016/710, reg. 2)

F6 Words in s. 36(5) inserted (S.) (1.4.2006) by The Water Environment and Water Services (Scotland) Act 2003 (Consequential Provisions and Modifications) Order 2006 (S.I. 2006/1054), art. 1(1), Sch. 1 para. 1(2)(a)

F7 S. 36(5A)(5B) inserted (1.4.2006) by The Water Environment and Water Services (Scotland) Act 2003 (Consequential Provisions and Modifications) Order 2006 (S.I. 2006/1054), art. 1(1), Sch. 1 para. 1(2)(b)

F8 Words in s. 36(9) inserted (1.3.2005) by Energy Act 2004 (c. 20), s. 93(3)(4), 198(2); S.I. 2005/442, art. 2(1), Sch. 1

Modifications etc. (not altering text)

C1 S. 36 restricted by S.I. 1990/442, art. 3(1)(a)

C2 S. 36 modified (S.) (27.5.1997) by 1997 c. 8, ss. 57(2), 278(2) (with ss. 64, 219)

S. 36 modified (S.) (27.5.1997) by 1997 c. 10, ss. 10(2), 31, 40(2) (with ss. 9(3), 10(5), 38(6))

C3 S. 36: transfer of certain functions (S.) (1.7.1999) by S.I. 1999/1750, art. 2, Sch. 1 (with art. 7)

C4 S. 36 restricted (21.11.2003) by The Norfolk Offshore Wind Farm Order 2003 (S.I. 2003/2830), arts. 1, 16 (with art. 23)

C5 S. 36 excluded (16.4.2004) by The Gunfleet Sands Offshore Wind Farm Order 2004 (S.I. 2004/933), arts. 1, 16

C6 S. 36 excluded (19.11.2004) by The Scarweather Sands Offshore Wind Farm Order 2004 (S.I. 2004/3054), arts. 1, 26 (with art. 38)

C7 S. 36 functions modified (12.4.2006) by The Scotland Act 1998 (Transfer of Functions to the Scottish Ministers etc.) (No. 2) Order 2006 (S.I. 2006/1040), arts. 1(2), 2 (with art. 6)

C8 S. 36: transfer of functions (13.4.2006) by The Scotland Act 1998 (Transfer of Functions to the Scottish Ministers etc.) (No. 2) Order 2006 (S.I. 2006/1040), arts. 1(1), 3 (with art. 6)

C9 S. 36(1): transfer of functions (1.4.2010) by Marine and Coastal Access Act 2009 (c. 23), ss. 12, 324(3); S.I. 2010/298, art. 2, Sch. para. 4 (with art. 4(1))

C10 S. 36(1) excluded (E.W.) (1.3.2016) by The Onshore Wind Generating Stations (Exemption) (England and Wales) Order 2016 (S.I. 2016/21), arts. 1(1), 3 (with art. 4)

C11 S. 36(2) modified (S.) by S.I. 1990/392, art. 2

C12 S. 36(2) modified (E.W.) (1.12.2001) by S.I. 2001/3642, art. 2

C13 S. 36(2) modified (S.) (26.9.2002) by The Electricity Act 1989 (Requirement of Consent for Offshore Generating Stations) (Scotland) Order 2002 (S.S.I. 2002/407), art. 3

C14 S. 36(5): transfer of functions (1.4.2010) by Marine and Coastal Access Act 2009 (c. 23), ss. 12, 324(3); S.I. 2010/298, art. 2, Sch. para. 4 (with art. 4(1))

C15 S. 36(7): transfer of functions (1.4.2010) by Marine and Coastal Access Act 2009 (c. 23), ss. 12, 324(3); S.I. 2010/298, art. 2, Sch. para. 4 (with art. 4(1))