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Advice to Alan Rayner

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Enquiry

From
Alan Rayner
Date advice given
22 January 2014
Enquiry type
Email

  1. Are you able to confirm that the "host" authorities for the purpose of s43 of the 2008 Act are:     a) Dorset county council as the upper tier authority.     b) East Dorset DC as the lower tier authority?

  2. In view of this, are you able to confirm that the Unitary Authority on the Isle of Wight will be excluded from the right to see an advance copy the Consultation Report and to make comments on adequacy under s56(4) during the Acceptance assessment?

  3. Further, can you confirm that the Unitary Authority will nevertheless be invited to the Preliminary Meeting with a "Rule-6" letter - and have opportunity to submit a "Local Impact Statement" (LIS) that will be considered equally with any Local Impact Reports (LIRs) that may be submitted by other authorities under s60 of the Act?

  4. Can you confirm that the reduction of rights accorded to the Unitary council as a result of the drafting of s43 (and s102) of the Act is a cause of concern that the Inspectorate will refer to the formal review of the Act due to occur during 2014?

  5. Consequent upon changes to the scheme, would the list of consultees in Appendix One of the November 2011 Scoping Opinion still be valid? What changes would be needed if it were to be complied now?

  6. Are there any other aspects of the process where exclusions arising from the drafting of s43 currently place the Unitary Authority in a less advantageous position than it would be if the Solent were to be deemed of zero width and thus Wight be contiguous with Hampshire?

My impression is that the island despite being the second nearest land to the proposed development (just one kilometre further than Dorset) may be at significant disadvantage compared to places like Wiltshire that have no immediate impact from the development. Thus I would hope that relevant minds can give this issue some attention. Whilst the LIS procedure reduces the detriment to local interests resulting from s60 there is still some detriment in that the decision-making Secretary of State is not obliged to have the same regard to any LIS as is required to be given under s105(2) to a Local Impact Report.

Advice given

  1. In May 2011 the Planning Inspectorate received a notification from the applicant, Navitus Bay Development Ltd, under Regulation 6 of the Infrastructure Planning (Environmental Impact Assessment) Regulations 2009. This triggered the requirement for the Inspectorate to produce a list under Regulation 9 of those regulations. On the basis of the information provided by the applicant in relation to this request, the following local authorities were identified by the Inspectorate as host authorities under the ?B? and ?C? tests described in s43 of the Planning Act 2008:

    a) New Forest National Park b) Dorset County Council c) Hampshire County Council d) Christchurch Borough Council e) Bournemouth Borough Council f) East Dorset District Council g) New Forest District Council

  2. The Consultation Report will be sent to s43 local authorities at the start of the Acceptance period to seek an ?Adequacy of Consultation Representation? from them. Since none of the proposed development is within the Isle of Wight and it does not share a boundary with any of the ?host? authorities listed above; the Isle of Wight Council is not a s43 local authority as prescribed by the PA2008 and therefore the Consultation Report would not automatically be shared with it at the Acceptance stage. What constitutes a s43 local authority is a matter of fact, and the tests in the PA2008 are clear.

This scenario however does not mean that the Isle of Wight Council could not request that the Consultation Report is sent to it at the same time as to the s43 local authorities, or that the Planning Inspectorate (on behalf of the Secretary of State) could not have regard to any representation received from the Isle of Wight Council in making its decision as to whether the applicant has complied with Chapter 2 Part 5 of the PA2008. It also does not preclude the Isle of Wight Council from making representations to a s43 local authority, including a request for the content of that representation to be considered as part of the s43 authority?s ?Adequacy of Consultation Representation? to the Inspectorate.

As you are aware, the Isle of Wight Council will be afforded the opportunity to register as an interested party and on this basis make written and oral representations to an appointed Examining Authority (ExA) at the appropriate time.

  1. As described above, the Isle of Wight Council would not be a s43 local authority for the scheme as currently proposed, and therefore it would not be automatically invited to the Preliminary Meeting under Rule 6 of the Infrastructure Planning (Examination Procedure) Rule 2010 (as amended). The Council, however, can secure an invitation by making a relevant representation at the appropriate time. An appointed ExA also has discretion to invite ?Other Persons? to a Preliminary Meeting; where it feels representations from them would help its consideration of how an application should be examined.

S60 of the PA2008 states that the Inspectorate, on behalf of the Secretary of State, must invite all s56A local authorities to submit a Local Impact Report. An appointed ExA may also invite representations to be provided by local authorities not covered by s56A of the PA2008, which could comprise the same type of information that would be included in a Local Impact Report. The weight attributed to any such statement would be at the discretion of that ExA.

  1. The ?2014 Review? of the Planning Act 2008 regime is being undertaken by the Department for Communities and Local Government (CLG). The Inspectorate is unable to make any comments pre-empting how CLG will interpret its findings, or on any amendments to the regime which may or may not emerge from these. Details on how to respond to CLG?s consultation in relation to the ?2014 Review? can be found on pages 7 and 8 of the following document: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/262984/Reviewing_the_National_Significant_Infrastructure_Planning_Regime_-_Discussion_document.pdf

  2. The list of consultees identified in Appendix One of the Inspectorate?s 2011 Scoping Opinion was generated based on a GIS shape file provided by the applicant at that time. A shape file in this context identifies the Order limits (or ?red line boundary?) of the proposed development.

Immediately prior to the submission of a DCO application, the Inspectorate will request a contemporary GIS shape file from the applicant based on the Order limits of the proposed development as applied for. From this an up-to-date list of consultees will be generated, reflecting any geographical or jurisdictional changes to any Schedule 1 bodies. It is from the list generated at submission of a DCO application that the Inspectorate will base its statutory correspondences in the Acceptance and Pre-examination periods.

  1. I would reemphasise the content of my responses to questions 1 and 2, where the PA2008 provides mechanisms for non-prescribed local authorities to provide representations on the adequacy of consultation, and to register as interested parties and become fully engaged with the examination process. I would also request that any comments on the PA2008 statute in the context of the ?2014 Review? should be made directly to CLG by the means described in my response to question 4.