Advice to Paul Gripton
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- From
- Paul Gripton
- Date advice given
- 15 October 2018
- Enquiry type
Query from Paul Gripton by email on 24 September 2018:
Please find attached a letter detailing the issues and advice sought, mentioned in our previous phone conversation. It is lengthy but evidenced.
Advice given
Response by email on 15 October 2018:
With apologies for the delay, please see our response to your queries below:
Query 1: Are the discharging authorities and EDF Energy, non-compliant with the DCO and/or the EIA Regulations and Directive if they failed to comply with DCO provisions involving Discharge of Requirement PW 10 (TIMP) Traffic Incident Management Plan?
Response: In the event that requirements of a DCO have not been correctly discharged, and the applicant proceeds with a development, then the applicant may be proceeding to construct an NSIP in the absence of Development Consent. Section 160 of the Planning Act 2008 is clear that a ‘person commits an offence if the person carries out, or causes to be carried out, development for which development consent is required at a time when no development consent is in force in respect of the development.’
Query 2: If it were shown that the Councils (as discharging authorities) and the undertaker were non-compliant, would West Somerset and Sedgemoor District Councils be responsible for ‘enforcement’ against themselves and EDF Energy?
Response: The local planning authority would be responsible for enforcing compliance with the requirements of the DCO. If you have raised a matter relating to non-compliance with them, and they have not responded to your satisfaction, you should first exhaust their complaints procedure. If having done that and you are still dissatisfied, you may wish to refer the matter to the Local Government Ombudsman.
Query 3: Do the updated EIA Regulations 2017, apply to change/Requirement Discharges (involving HPC) undertaken after 16th May 2017, including the new provisions regarding ‘risk to human health’ and part 12 concerning ‘objectivity and bias’ regarding an authorities duty including the need for ‘functional separation’ and conflict of interest measures?
Response: The Infrastructure Planning (Environmental Impact Assessment) Regulations 2017 (the EIA Regulations 2017) came into force on the 16th May 2017. At that point and in accordance with Regulation 37 of the EIA Regulations 2017 the previous Infrastructure Planning (Environmental Impact Assessment) Regulations and Amending legislation were revoked (see Regulation 37 of the EIA Regulations 2017). The EIA Regulations 2017 include a transitional provision (Regulation 37 (2)) which would allow for previous Regulations (as specified) to continue to apply where certain circumstances are met (Regulation 37 (2) (a & b)). The extent to which the transitional provisions apply is a matter for the Competent Authority (for the purposes of the Regulations) in determining their duties in accordance with the EIA Regulations 2017 it will be relevant for any such decision to take into account the specific details of the application as made.
Query 4: Should, the possibility of materially new or materially different environmental effects other than those assessed in the Environmental Statement be identified under subsequent requests for change/discharge, what response is required by the undertaker/authorities, including public involvement?
Response: Section 153 and Schedule 6 of the Planning Act 2008 include provision for changes to, and revocation of, orders granting development consent. An Applicant seeking to make any such change is required to follow the process prescribed by the Planning Act 2008 and any other relevant secondary legislation including the EIA Regulations 2017. The discharge of requirements in a Development Consent Order (DCO) is a matter for the relevant discharging authority. A proposed change to an Order Granting Development consent or request to discharge specific DCO requirement(s) may engage the EIA Regulations 2017 ‘subsequent application’ regulations (Regulation 22-25) although the extent to which they apply will depend upon the specific nature of proposal and decisions to be taken by the relevant Competent Authority for the purposes of the Regulations.
Query 5: When considering if there are materially new or different effects,(with respect to EIA impacts/regulations) do the discharging authorities take mitigation into account or is the ‘test’ as stated in the DCO (Schedule 2 para 4) just to identify (unmitigated?) new or different effects than those included in the Environmental Statement? Whilst identifying and applying mitigation is important, basically is consideration of effects including mitigation preventing identification of significant effects and circumventing the EIA regulations and Directive, including the need for subsequent public participation and possibility to comment?
Response: The approach to be taken to determine the applicability of the EIA Regulations 2017 to the discharge of requirements in a Development Consent Order (DCO) is a matter for the relevant discharging authority.
Query 6: With regard to the updated TIMP and the ‘new’ Section 5 - Which now includes Significant Road Works as an incident and exceptional circumstance, consequently involving compensatory extended HGV delivery periods outside the normal permitted limits during unsocial hours. – The Transport Review Group, (which contains significant EDF Energy representation and voting rights that they have used previously when deciding change on their own proposals) appear to have usurped the role of the discharging authorities contrary to the DCO, carrying out the role and decisions designated to the recognised discharging authorities. Basically are the discharging authorities (West Somerset and Sedgemoor District Councils) allowed to transfer their role and responsibilities for granting agreement or approval designated to them under the DCO to a group under which the proposer has a significant voting right (with a history of using it) on their own proposal?
Response: The Planning Inspectorate does not comment on the role of a local planning authority when performing functions required as a discharging authority. Please see the answer to point 2 regarding the opportunity to raise the matter with the Local Government Ombudsman.
Query 7: The TRG through the S 106 agreement appear to have a different, lower standard than that undertaken by discharging authorities under the DCO requirements when ‘testing’ their satisfaction that there are unlikely to be materially new or different environmental effects . Under the DCO authorities must be ‘satisfied’, which is an absolute obligation. The TRG under the S 106 agreement are required to be ‘reasonably satisfied’ which is a lower qualified obligation. Should the TRG test to the higher standard prescribed under the DCO if they are allowed to grant agreement/approval of exceptional circumstances under Requirement PW10?
Response: The Planning Inspectorate does not comment on the role of the local planning authority when performing functions required as a discharging authority.