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Advice to Nick Lloyd-Davies

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Enquiry

From
Nick Lloyd-Davies
Date advice given
30 August 2011
Enquiry type
Email
  1. Would the IPC require an application for a direction deeming Hazardous Substances Consent (HSC) to have been granted to be made at the same time as submission of the application for development consnet?
  2. If initial information relating to the application to deem HSC is submitted with the application for development consent, would the IPC accept the submission of additional information at a later stage on the basis that such information would not materially alter the preliminary ?best estimate inventory? of substances provided at submission stage?
  3. If the IPC took that view that the new information supplied appeared to be materially different relative to preliminary information already provided, would the IPC refuse to accept the submission of this information, and if so, could EDF Energy then withdraw its request for an HSC direction without compromising the main development consent application process?
  4. If the IPC, after examining the hazardous substances information, decides for whatever reason that it cannot issue a direction deeming HSC to have been granted, will this in any way affect the IPC's ability to grant the DCO or could it affect the timetable for examination and determination of the DCO application?

Advice given

? The power for the decision-maker to direct in relation to hazardous substances consent is contained in s12 of the Planning (Hazardous Substances) Act 1990; the power arises 'on making an order granting development consent'. There are no prescribed regulations concerning the form or content of any request to include a direction that hazardous substances consent be granted on making a development consent order. ? The footnote at paragraph 4.12.1 EN-1 suggests that an application for hazardous substances consent can be applied for either at the time of submitting the DCO application or subsequent to it, however it also advises that the HSE should be consulted about the application at the PA 2008 pre-application stage. There are no regulations nor any other guidance that we are aware of which set out when an application for such a direction should be made. ? In view of EN-1 guidance, it is likely the IPC would consider that a request for hazardous substances consent would be a separate, and therefore severable, part of the DCO application. This means that it would be entirely open to the IPC to grant development consent but on the facts of the case consider it should refuse to direct that hazardous substances consent be deemed to be granted. However, it is clear that the decision-maker's assessment of the request for a direction must be carried out at the same time as the consideration of the DCO application. ? When considering the request for hazardous substances consent the IPC would need to have available to it all necessary information. For guidance on the required information the applicant should refer to existing Circular guidance and the form and content of an application for express consent. ? Where the environmental impacts of a proposed project have been assessed in an environmental statement, the applicant must ensure it complies with relevant law and guidance on EIA. In particular, the applicant would need to demonstrate that any further information submitted did not affect the results of the significant impact assessment carried out. Clearly, there may be published information the applicant would wish to call on to explain why the proposed variations in hazardous substances information were not significant and feed that into the EIA carried out. ? With regard to IPC process, the applicant should consider the extent to which submitting further information in relation to the hazardous substances request during the examination would cause interested parties difficulties. The IPC's examination timetable will provide dates by which written representations should be submitted and comments made on such written representations. If an applicant wishes to delay submitting information on the matter of the hazardous substances consent, it should explain in its DCO application the reasons for this, and the likely timetable so that these matters could be taken into account by the examining authority when setting the timetable for the examination. It is possible the ExA might set a deadline for submission of such additional material to coincide with the deadline for submission of written representations, for example.