1. Section 51 advice
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Advice to DONG Energy

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Enquiry

From
DONG Energy
Date advice given
16 July 2010
Enquiry type
Email

  1. Is the IPC expecting DONG to consult (S42 + 47) with the non-prescribed consultees too?

  2. Some of the local authorities consulted in the scoping exercise are a significant distance from the project site/cable route options. Would you expect to engage with them to the same extent we will engage with host local authorities?

  3. Does IPC expect promoters to publish their consultation report well before (e.g. 1 ½ - 2 yrs) or shortly before (e.g. ½ - 1 year) the submission of the Environmental Statement for the DCO application?

Advice given

  1. When deciding whether or not to accept an application, the Commission must be satisfied that the applicant has complied with the pre-application consultation and publicity procedures set out in Chapter 2 of Part 5 of the 2008 Act. This includes the applicant's consultation obligations under sections 42 and 47. With regards to s.47, please note that this relates to consultation of the local community (not the statutory consultees specified in s.42). The s.47 consultation programme and methods are for the applicant to determine, although you should have regards to the Guidance referred to below in relation to this.

In reaching its decision whether or not to accept an application the Commission must (amongst other matters) have regard to the extent to which the applicant has had regard to CLG's Guidance on pre-application consultation and IPC Guidance note 1 on pre-application stages.

CLG's Guidance on pre-application consultation at paragraph 66 states that "for each sector there are a range of bodies in addition to those specified as statutory consultees that may also possess important information, and who may therefore be able to make an important contribution. Promoters are therefore encouraged to consult widely on proposals."

IPC Guidance Note 1 on pre-application stages states at para. 21 that "If applicants identify and consult fewer consultation bodies (as part of their s42 obligations) than the IPC consults in relation to a scoping opinion request a clear explanation should be provided when the application is submitted. This will assist the IPC to reach a conclusion about whether or not to accept the application" Paragraph 22 goes on to advise "The consultation report will enable applicants to flag and explain any differences between the IPC?s consultation under the EIA Regulations13 and their own s.42 consultation".

2)As noted above, the s.47 consultation programme and methods are for the applicant to determine having regard to relevant Guidance in relation to this. The local authorities consulted under s.42 on a statutory basis are defined by s.43 of the Act. In essence, the Act requires that applicants consult all authorities whose land the proposed development would fall within ('B' authorities), and all those (both County and District) sharing a border with them ('A' authorities). Please note that the identification of 'A' and 'B' authorities set out in s.43 of the Act is not restricted by their distance from the proposed development.

Applicants are required to consult 'relevant' Parish Councils as part of their s.42 consultation (see Schedule 1 of the Applications: Prescribed Forms and Regulations 2009). The Commission has decided to apply the 'A' and 'B' test as set out in s.43 of the Act to the identification of relevant parish councils for the purposes of EIA scoping consultation (see IPC Advice Note 3). There may be implications if an applicant consults fewer consultation bodies (as part of their s.42 obligations) than the Commission consults in relation to the scoping opinion request, unless reasonable justification is given. Applicants should have regard to the Commission?s guidance and advice in relation to this. You should fully detail your s.42 and s.47 consultation and s.48 publicity activities, any relevant responses received and the account taken of these in the consultation report. We would also refer you to the applicants duty to take account of responses to consultation and publicity under s.49 of the Act.

  1. The consultation report must be submitted, together with other prescribed documents and any ES , with your application for development consent. The consultation report is a material consideration in the Commission's decision as to whether or not to accept an application (under s.55 of the Act). The Commission encourages Applicants to submit draft copies of the DCO and ES at least 6 weeks ahead of the proposed formal submission of the application for review by the Commission. Please note that the Commission is not able to comment on the merits of an application or proposed application.