Advice to East Anglia THREE Limited
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- From
- East Anglia THREE Limited
- Date advice given
- 16 June 2014
- Enquiry type
The applicant contacted the Planning Inspectorate seeking a view on how an IROPI (Imperitive Reasons of Overriding Public Interest) case should be presented, at what point in the proceedings such a case should be put forward, and if there is any guidance in place now or planned for the future.
Advice given
Thank you for your enquiry, I have spoken with colleagues in the Environmental Services Team and the Planning Inspectorate are able to provide the information provided below which will hopefully be of assistance to you in preparing the application. When preparing an application for Nationally Significant Infrastructure Projects (NSIPs) under the Planning Act 2008 (PA 2008), as amended by the Localism Act 201, applicants must consider the potential effects on protected habitats. If an NSIP is likely to affect a European site and/or a European marine site, the applicant must provide a report with the application showing the site(s) that may be affected together with sufficient information to enable the competent authority to make an appropriate assessment (AA), if required. Where an AA has been carried out and results in a negative assessment (in other words, the development will adversely affect the European site(s), despite any proposed avoidance or mitigation measures, or if uncertainty remains), consent can only be granted if there are no alternative solutions, there are Imperative Reasons of Overriding Public Interest (IROPI) for the development and compensatory measures have been secured. Applications intending to proceed on the basis of IROPI will need to provide sufficient information to the Examining Authority (ExA) to demonstrate that the three sequential tests required under Article 6(4) of the Habitats Directive have been met. These are as follows: ? There must be no feasible alternative solutions to the plan or project which are less damaging to the affected European site(s); ? There must be ?imperative reasons of overriding public interest? (IROPI) for the plan or project to proceed;and ? All necessary compensatory measures must be secured to ensure that the overall coherence of the network of European sites is protected. To date there has been only one NSIP case that has proceeded on the basis of IROPI, this was for the Able Marine Energy Park. The link to the project on the National Infrastructure Planning website is provided below. You may wish to review the details of this case to better understand some of the associated issues. http://infrastructure.planningportal.gov.uk/projects/yorkshire-and-the-humber/able-marine-energy-park/ We also encourage you to review the Planning Inspectorate Advice Note 10 (AN10) which explains how the four stages of the Habitat Regulations Assessment (HRA) process interact with the stages of the PA 2008. This includes a summary of Stage 3 (assessment of alternatives), Stage 4 (IROPI), and compensatory measures. AN10 can be found at the following location: http://infrastructure.planningportal.gov.uk/legislation-and-advice/advice-notes/ More detailed guidance is also available from Defra regarding article 6(4) of the Habitats Directive (this is the article of the Habitats Directive that provides a derogation which would allow a plan or project to be approved in limited circumstances even though it would or may have an adverse effect on the integrity on a European site). This document can be accessed here: http://www.defra.gov.uk/publications/files/pb13840-habitats-iropi-guide-20121211.pdf Given the nature of your enquiry we also remind you of the role of the Major Infrastructure Environment Unit (MIEU) in Defra that supports progress on individual infrastructure projects and intends to improve processes for infrastructure projects by: a) Playing a key early risk management role to identify issues associated with the Directives for projects; b) Ensuring collaboration between all parties to support resolution of issues as necessary; c) Introducing and overseeing a new process for agreeing evidence requirements; and d) Providing greater clarity to developers on key requirements. We understand and welcome that you have been working with the MIEU to develop an evidence plan to provide a formal mechanism to agree upfront with relevant stakeholders the HRA information you need to supply to us as part of a Development Consent Order (DCO) application. The Planning Inspectorate has also recently published its Prospectus for applicants which sets out our service for applicants at the pre-application stage of the NSIP process, I enclosed a link to this in a previous email but have included it below for ease of reference. Of particular relevance here is our ability to review and comment on draft documents including draft HRA reports and our ability to offer detailed advice under Section 51 in relation to the applicant?s approach to HRA. The prospectus can be accessed at the link below: http://infrastructure.planningportal.gov.uk/wp-content/uploads/2014/05/NSIP-prospectus_May2014.pdf I trust you will find this information useful; however, we would welcome the opportunity to discuss and understand this issue with you in more detail perhaps by telephone or at a meeting.