Advice to on behalf of Capture Power Ltd
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- From
- on behalf of Capture Power Ltd
- Date advice given
- 15 September 2014
- Enquiry type
Emails received from Capture Power Ltd on 12 June, 18 July and 3 September 2014 regarding section 42 (s42) consultation undertaken by the applicant.
Advice given
We write further to your emails dated 12 June, 18 July and 3 September 2014 regarding section 42 (s42) consultation undertaken by the applicant on the White Rose Carbon Capture and Storage (CCS) project.
These emails broadly set out that the applicant has undertaken, or is currently undertaking, the following rounds of consultation pursuant to s42 of the Planning Act 2008:
i) Prescribed consultees, s43 local authorities and certain non-prescribed consultees - 17 June to 15 July 2014 (as set out in your email dated 12 June 2014) ii) s44 parties - 22 July to 19 August 2014 (email dated 18 July 2014) iii) Site notices erected in areas relevant to unknown land ownership interests and further letters to parties whose original letters for the section 42 consultations in June and July 2014 could not be delivered by Royal Mail - 5 September to 6 October 2014 (email dated 3 September 2014)
Together with the above, the emails also contained what was described as ?s46 notifications?.
As you correctly state in your email dated 3 September 2014 the Planning Inspectorate formally acknowledged the s46 notification included within your email of 12 June 2014, however the applicant is awaiting formal acknowledgement of the ?s46 notifications? contained within your emails dated 18 July and 3 September 2014.
Please note that the requirement within s46, in summary, is for applicants to inform the Planning Inspectorate before they begin s42 consultation. This requirement was satisfied by your first s46 notification which accompanied your email of 12 June 2014. If s42 consultation is carried out in phases, as in this instance, there is no requirement to inform the Planning Inspectorate before each phase. The Planning Inspectorate will therefore not formally acknowledge the ?s46 notifications? that accompanied your emails dated 18 July and 3 September 2014 as that could have implications for any consultation undertaken before these (i.e. the first two rounds of s42 consultation). If the Planning Inspectorate were to acknowledge the latter two ?s46 notifications? it might, for example, be interpreted as meaning that the applicant were starting again with the new notifications for a new/modified application and thereby ?writing off? any previous consultation. The Planning Inspectorate clearly presume that this is not the case, however do advise if otherwise.
As such, and in summary, the Planning Inspectorate note the emails which set out the consultation dates of the second and third rounds of s42 consultation (emails dated 18 July and 3 September 2014), however it is only the first s46 notification (accompanying your email dated 12 June 2014) that will be treated as formal under s46 of the Planning Act 2008.
Also, it is noted that within the draft Consultation Report issued to the Planning Inspectorate on 16 July 2014 that Chapter 9 is titled ?Stage 2 - ?Formal? consultation: section 46 ?duty to notify secretary of state of proposed application?. In sections 9.1 to 9.4 of the Report (including Table 9.1: s46 notification dates) the applicant sets out all the dates they sent s46 notifications to the Planning Inspectorate. Given the above it is advised that within the Consultation Report you may wish to refer to the first s46 notification sent to the Planning Inspectorate to demonstrate that you have complied with the statute. However, by referring to the latter two s46 notifications as formal this may create confusion and, instead, you may wish to simply advise that you kept the Planning Inspectorate informed of each subsequent phase of consultation via email.