Advice to SSE Renewables
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- From
- SSE Renewables
- Date advice given
- 17 November 2011
- Enquiry type
- Phone
During a final engineering review of the proposed development, it has become clear that in order to construct the onshore works, there is a requirement (which was not previously identified) for a crane to oversail a length of approximately 75 metres of land which is subject to an easement granted to Essex and Suffolk Water for a buried water pipe. Galloper Wind Farm Limited (GWFL) is not proposing to do any works to dig up the land or affect Essex and Suffolk Water's access rights. This, together with proposed hedgerow planting included as mitigation for visual impact, has meant that GWFL has had to revise its application boundary since the consultation undertaken in June/July 2011.
GWFL wishes to advise the IPC that it is reconsulting Essex and Suffolk Water as a precaution to ensure its pre-application consultation obligations have been met. The change to the application boundary has two implications. Firstly, Essex and Suffolk Water is now classed as a person falling within the categories set out in Section 44 of the 2008 Act, rather than a prescribed consultee simply as a result of being a statutory undertaker. In summary, Section 44 includes landowners and persons having an interest in the land to which the proposed application relates. Secondly, the right to oversail ESW's interest will be included within GWFL's application for a DCO as part of the compulsory purchase powers it is requesting.
Advice given
This advice is without prejudice to any decision made by the Commission under s.55 of the Planning Act 2008 (the 2008 Act).
In making the decision under s.55 of the 2008 Act, the Commissioner appointed needs to be satisfied that, amongst other matters, the applicant has complied with Chapter 2 of Part 5 of the 2008 Act (pre-application procedure) (see s.55(3)(e) and s.55(4)(a)).
The consultation report, which as you know is an application document required under s.37(3) of the 2008 Act, should demonstrate (under s.37(7)): '(a) what has been done in compliance with sections 42, 47 and 48 in relation to a proposed application that has become the application, (b) any relevant responses, and (c) the account taken of any relevant responses.'
The consultation report should therefore give details of what has been done in compliance with s.42 prior to submitting the application, including explaining how persons within one or more of the s.44 categories have been consulted under s.42(d). The consultation report also has to include details of any responses received by the deadline, and the account taken of any such relevant responses. Although in this advice we have mainly dealt with your consultation of Essex and Suffolk Water, you will also need to ensure that these details are included in the consultation report in relation to your consultation of British Energy Generation Limited.
In the particular circumstances discussed, you will need to be satisfied that your pre-application consultation duties have been met before submitting an application to the IPC. Your s.42 consultation letter to Essex and Suffolk Water of 16 November 2011should therefore be appropriately recorded in the consultation report. If you receive a response from Essex and Suffolk Water at any time within the 28 day deadline that you have set, the details required by s.37(7)(b) and (c) should be also recorded in the consultation report which can then be submitted with the application.
It would potentially be open to you to include in the consultation report details of any substantive verbal response received from Essex and Suffolk Water prior to the application being submitted. For example, where a written response from Essex and Suffolk Water was still pending at the time the application was submitted, but they had confirmed that this would be consistent with their verbal response. If details of a verbal response are provided in the consultation report then you would need to ensure that the consultee confirms the verbal response in a letter to you which can be made available to the Commission, within the 28 day period for acceptance, if it so requests.
In the circumstances here, submitting an application prior to the receipt of any response from the consultee would be at your own risk. The consultation report should be complete at the point of submission - there is no provision in the 2008 Act which would allow an addendum to a consultation report to be submitted after the application has been received by the IPC.
This advice is consistent with advice we have previously given (see link below) in respect of the Ipswich Rail Chord application currently at examination stage and to which we would draw your attention.