Welcome to the second instalment of our newest series, the R-EV-OLUTION, in which we will be tackling the key questions facing local authorities in the roll out of public EV charging infrastructure.
In this instalment, we break down the key legislative requirements local authorities must consider in the roll out of public EV charging infrastructure. When developing and implementing an EV charging infrastructure strategy, local authorities will need to satisfy themselves that they are compliant with their statutory duties as a public body, as well as legislation more specific to the financing, construction and ownership of EV charge points. This can range from the regulation of electricity supply to land ownership and consumer rights. Such areas can be complex and unfamiliar for some local authorities, so it is important to ask and understand:
“What legal obligations does my local authority have when developing and implementing public EV charging infrastructure?”
Local Government Legislation
As creatures of statute, local authorities may only do what they are empowered to do. Simply, they must have the vires to act. For local authorities seeking to supply electricity and operate EV charging infrastructure in-house, this can present challenges. Although the Government has pledged to oblige local authorities to develop and implement local EV charging strategies1, there remains no specific power or duty for local authorities to act in this regard. There also remain wide prohibitions on local authorities selling electricity unless this is produced in association with heat2 or from renewable sources.3
Local authorities may in the absence of any specific powers or duties seek to rely upon the general power of competence in s.1(1) Localism Act 2011. This gives local authorities the power to do “anything that individuals generally may do.” For authorities seeking to roll out EV charging infrastructure on a not-for-profit basis, s.3 Localism Act 2011 enables them to charge for the service to cover costs. Alternatively, local authorities do have the power to trade commercially under s.4 Localism Act 2011. Local authorities exercising the general power for a commercial purpose will nevertheless need to do so through an authority owned company.
Depending on the selection of the optimal delivery model during the detailed development phase some vires matters may arise in respect of (1) the design and build of EV charging infrastructure and (2) the supply of electricity to customers. If a local authority were to install EV charging infrastructure and/or act as electricity supplier in any capacity at all, whether directly (in-house) or indirectly (via a wholly owned or jointly owned company), it must ensure that in doing so, it is acting within the remits of what it is legally permitted to do under statute.
1. HM Government, Taking Charge: the electric vehicle infrastructure strategy (March 2022)
2. Section 11(3) Local Government (Miscellaneous Provisions) Act 1976
3. Section 2 Sale of Electricity by Local Authorities (England and Wales) Regulations 2010
Consumer Rights Legislation
Business-to-consumer contracts are governed by an extensive body of consumer protection law, including the Consumer Rights Act 2015. A local authority’s decision to supply electricity to customers via public EV charge points will likely engage such legislation, providing customers with certain inalienable rights.
Local authorities will need to ensure that their sale terms and conditions take into account such rights, including the prohibition on restricting or excluding certain liabilities and the statutory controls surrounding transparency and fairness. Fundamentally, they will need to demonstrate that their terms do not create a significant imbalance which places consumers in a less favourable position than that ordinarily provided for them in law.
Land Permissions and Consents
As we discussed in the previous instalment, a key challenge for rolling out EV charging infrastructure is the complexity of the consents, licences and permissions regime. Whilst the nature and number of those required will be heavily influenced by the chosen sites, typical consents required include Section 8 Agreements4 for infrastructure constructed and maintained on highways, Section 278 Agreements5, permanent traffic management orders6 and Section 50 Street Works Licences7.
Local authorities will also need to consider whether they benefit from permitted development rights for the installation and maintenance of EV charge points.
For EV charging infrastructure installed on highways – Class A, Part 12, Schedule 2 of the Town and Country Planning (General Permitted Development) (England) Order 2015 (GDPO) applies.
For EV charging infrastructure installed on private land – Classes D and E, Part 2, Schedule 2 of the GDPO applies, only where specific conditions are met.
Third parties looking to install EV charging infrastructure on highways may still need to obtain planning permission.
We will be dedicating a future instalment to land and development considerations for EV charging infrastructure, so watch this space!
4. S.8 Highways Act 1980
5. S.278 Highways Act 1980
6. S.6 Road Traffic Regulation Act 1984
7. New Roads and Street Works Act 1991
Electricity Supply Legislation
An area of which local authorities may be less familiar is the licensing regime for the supply of electricity. Simply, any person who generates, distributes or supplies electricity to a premises must be licensed to do so under s.4 Electricity Act 1989. However, establishing whether a licence is required is particularly challenging for EVs, which do not fit neatly within the existing legislative model of supply being determined by a ‘premises’.
As premises comprise any land, building or structure, this implies a degree of permanence and fixed-location with the land. Consequently, Ofgem have taken the view that, under most circumstances, an electric vehicle will not be a premises. This means that in most situations, selling power to an EV driver won’t be a supply8.
However, conveyance of power to a charge point (or other charging infrastructure) is likely to be caught by the definition on the basis that it is a fixed structure. Together, these mean that the provision of power to an EV charge point (or the premises it’s located at) is supply, but the charging of the vehicle from the charge point is not supply. This is important if a local authority wishes to use its own generated electricity via a private wire to supply an EV charge point.
There are nevertheless exemptions to when the licensing regime will bite. For local authorities concerned that they may be caught by the regime, consideration should be had for the application of three class exemptions under Schedule 4 of the Electricity (Class Exemption from the Requirement for a Licence) Order 2001:
- Class A (Small suppliers) – supply of no more than 5MW of self-generated electricity, of which only 2.5MW are supplied to domestic premises
- Class B (Resale) – Resale of electricity (from a licensed and / or Class C supplier) to consumers’ premises
- Class C (On-site supply varied up to 100MW) – Supply of self-generated electricity (exclusively or in combination with power from a licensed supplier) to ‘onsite’ consumers
8. Ofgem “Taking charge: selling electricity to Electric Vehicle drivers” (March 2022)
Examples of electricity supply
Supply on street
- Requires License: (A) to (B) as it is supply to premises (non-domestic customer).
- Exempt: (A) to (B) could fall under Sch 4 Class C (On-Site) exemption if it is a private street not operated by the local Distribution Network Operator.
- (B) to (C) is not a supply.
Supply Destination
Not self generated:
- Requires License: (A) to (B) as it is supply to premises.
- Exempt: (B) to (C) as it falls under Sch 4 Class B (Resale) exemption.
- (C) to (D) is not a supply.
Self generated:
- Exempt: (A) to (B) and (B) to (C) fall under Sch 4 Class C (On-site) exemption, combined with Sch 4 Class B (Resale) exemption, due to resale of self-generated electricity.
- (C) to (D) is not a supply.
Supply to On-Site Fleet
- Requires License: (A) to (B) as it is supply to premises.
- Exempt: (A) to (B) could fall under Sch 4 Class C (On-Site) exemption if scenario involves an industrial site with own private distribution network and onsite supplier (most likely operating as a Class C exempt supplier).
- (B) to (C) is not a supply.
EV Charging Standards
Finally, when acting as (or procuring) an infrastructure operator, local authorities will need to ensure their EV charging infrastructure complies with the Alternative Fuels Infrastructure Regulations 2017. These regulations require public EV (and hydrogen) charging infrastructure to meet common technical specification and customer experience standards to enable a minimum level of access and information for consumers. Such standards include:
- making geographic location data of EV charging points available to the public;
- incorporating intelligent metering systems into EV charging points; and
- enabling ad-hoc provision so that consumers can access a recharging point without entering into a pre-existing contract.
Conclusions
In the emerging world of EV, local authorities may be confronted with unfamiliar regulatory and legislative requirements. It is important that time is dedicated to understanding these requirements, not only to ensure compliance throughout the life of the project, but to also meaningfully inform and shape the authority’s strategy for effective delivery of public EV charging infrastructure.
Has this instalment sparked an idea?
If anything you’ve read here has prompted a question, generated an idea or got you thinking about the challenges affecting your local authority, it would be great to hear from you. Please use the box below to send us a question – and we’ll aim to answer it in the next instalment!
Next in the series:
We look at the range of delivery models that could be used by local authorities to roll out public EV charging infrastructure, including:
- Ownership and in-house models
- Granting of a concession
- Leasing arrangements
