Energy from biomass

Renewable energy is a hot topic at present. Some of the ‘big subjects’ under debate are the need to increase low carbon energy production to enable the UK to meet its international obligations and the impact on the National Grid of intermittent wind supplied energy, as well as fuel poverty. The role of regulation and/or competition law in achieving diverse aims is another ‘big subject’.

However, there is a significant amount of detailed work involved in bringing about the development of renewable energy production. A Willans Partner discusses the role of planning and environmental permitting regimes in getting projects off the ground, so as to help with those big subjects.

Background Facts

• In order to produce energy from biomass waste, a production plant has to be developed. Depending on its size and the processes involved, this can have a varying impact on landscape, amenity and traffic as well  as other environmental considerations.
• In simple terms, ‘biomass’ means any material that is plant-based but it can also apply to animal- and vegetable-derived material. In the context of energy production, biomass can comprise energy crops and virgin wood or material that falls within the definition of ‘waste’ eg food, agricultural or industrial. The impact on land use and on the environment varies depending on the material.
• There are thresholds in applicable legislation that determine whether an environmental statement must be submitted along with a planning application. This is a complex area, both in technical and legal terms, and professional advice should always be sought. There are good grounds for legal challenge if planning permission has been granted without a proper assessment of environmental impact. In due course the very large production plants will need to apply for planning consent to the newly-formed Infrastructure Planning Commission, rather than a combination of the local authority for planning and consent from the Secretary of State for Business, Innovation and Skills.

The Future

We are told the government will consult this summer on extending permitted development rights (ie deemed permission given in certain circumstances, avoiding the need for a full planning application) for small-scale biomass energy plants. This is likely to cover units to be incorporated into farm use or the equivalent.

In the meantime, planning permission will need to be granted for any proposal and more often than not these are contentious applications. Sometimes this is because of public perception that the processes involved use unproven technology, or a fear about the impact of the incineration aspects of the process.

Whether or not an environmental permit is required for the operation depends on size. On the whole, most energy from biomass plant will need a permit. The rules (Environmental Permitting Regulations 2007) state that a permit is required for any installation that carries out an industrial, waste or intensive farming activity. Waste operations are also covered, eg waste transfer stations or treating waste soils with mobile plant.

The definition of waste has caused the courts problems over many years. It stems from the European Waste Directive, the aim of which is stated to be “to ensure waste is recovered and disposed of without endangering human health and without using processes and methods that could harm the environment”. Some processes are either defined as exempt or they qualify for an application for a standard permit.

Some will comprise activities defined as Part B or Part A(2), when the local authority is the authorising body. Part A(1) activities are regulated by the Environment Agency. They apply, for example, to combustion activities where fuel is burned in an appliance with a thermal input of more than 50MW. If a boiler or furnace is involved then the threshold reduces to 20MW but where waste is burned, the threshold drops to 0.4MW. Even those that fall outside this area of pollution control will need to comply with the Clean Air Act 1993, which is enforced by the local authority, and can be relevant to schemes which use burning processes in urban areas.

If you need clear and pragmatic legal advice, we’re here to help so please get in touch.

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