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22/07/2021

Legal landscape: The importance of definitions in the world of battery storage

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Increasing our energy storage capacity is vital if the UK is to achieve its net-zero carbon goals. The government has removed one of the main planning barriers but there are still construction law hurdles to be overcome, writes Angus Evers

Although renewable energy sources such as wind and solar may produce low-carbon electricity, they cannot provide the ‘baseload’ power that non-renewable energy sources do. Their output is directly related to climatic conditions. When the wind is blowing and the sun is shining, the grid may not need electricity not generated by wind and solar plants, but when the wind is not blowing and the sun is not shining, gas or diesel-fired ‘peaking plants’ may need to  make up the shortfall.

Large-scale battery storage projects offer a solution to even out the intermittent nature of renewable energy production and a change in planning rules in December 2020 should make obtaining planning permission for battery storage projects over 50MW faster and cheaper.

The Infrastructure Planning (Electricity Storage Facilities) Order 2020 came into force on 2 December and removes electricity storage facilities (except pumped hydroelectric storage facilities) with a capacity of 50MW or more in England and 350MW or more in Wales from the category of generating stations whose construction or extension requires consent under the Planning Act 2008.

“There is currently no guidance on whether they will be considered as power generation sites”

Applications for battery storage projects in England and Wales now fall under the jurisdiction of local planning authorities under the Town and Country Planning Act 1990, even if co-located with generating facilities that fall under the Planning Act 2008.


In brief

  •  Battery storage smooths dips in grid capacity under renewables
  •  But there is ambiguity about whther they can be defined in law as generating stations

 So it is unclear whether they qualify for the same freedom from constraints as generation projects


The Housing Grants, Construction and Regeneration Act 1996 (HGCRA) has provided the foundation of construction law for over 20 years. But contracts for the installation of plant and machinery at power generation sites do not fall within its ambit. Therefore, such contracts do not have the protection of a statutory payment regime, adjudication or the contractor’s right to suspend works.

Grid-level energy storage projects sit in an unusual limbo. There is currently no guidance on whether they will be considered as power generation sites. Therefore, do contracts to build such sites fall under the ambit of the HGCRA? A few points may provide guidance:

First, what is ‘generation’? It is the production or creation of something, in this case electricity. Regeneration is the act of bringing something back. It is not possible to regenerate something without some form of generation. It might be argued that there is a difference between primary generation (initial creation) and secondary generation (regeneration), although this may be a difference for difference’s sake.

    Second, the scientific perspective. An energy storage site takes in electricity, stores it as another form of energy and then regenerates it into electricity.  Scientifically, there is little difference between power generation and power regeneration. Both involve the conversion of energy into electricity. It may be suggested that there is little difference between the generation and regeneration of electricity.

    Third, public policy.. When the HGCRA was being drafted, the process plant and power equipment sectors successfully lobbied to be excluded from its scope. When updated in 2011, the exclusions were retained, so public policy must be taken not to have changed in the intervening 15 years. It is difficult to see why, when equipment to supply and generate power is excluded from the HGCRA by policy, equipment used to store power should not also be.

    Angus Evers is an environmental lawyer with Shoosmiths

    Image credit | iStock

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