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Advice to Protect Coastal Sussex

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Enquiry

From
Protect Coastal Sussex
Date advice given
9 October 2023
Enquiry type
Email

Dear Emily Davies, We thank you for the clarity in the detailed response. PINS may appreciate our view, that the documented evidence of the many shortcomings of this Application does not tally with the subjective evaluation in Section 55 checklist; nor the Section 51 Advice PINS offered to the Applicant on 7 Sept 2023. At the same time, we feel extending the pre- Examination period is still warranted to deal effectively with the many outstanding issues before going into the Examination, including the serious matters that PINS raised in the s51 Advice Letter. You now point us to the Planning Act and offer guidance on a Judicial Review. May we ask if the Planning Inspectorate can offer S51 Advice on Section 108 of the PA2008 " suspension during review of national policy statement" which is applicable in the Rampion 2 case. https://www.legislation.gov.uk/ukpga/2008/29/section/108 It is not feasible to offer Relevant Representations without the NPS being settled. This is a highly time sensitive Section 51 Advice request in view of the advice you offer on a Judicial Review and the 6-week timeframe that must include exchanges around a pre-Action Protocol Letter and a potential remedy. We feel that suspension of the Rampion 2 Examination now during review of the national policy statement, as wisely provided in the Planning Act, is a much preferred as well as obvious and appropriate remedy for the many problems with this Application, rather than a Judicial Review as we have previously stated we would hope to work together rather than against to ensure the best outcome for all. Respectfully yours, Secretary Protect Coastal Sussex On behalf of PCS Co-Chairs: Chris Lee, Aldwick Melanie Jones, Middleton on Sea Lawrence Haas, Littlehampton Meera Smethurst, Cowfold

Advice given

Good afternoon, Thank you for your e-mail below. Current Pre-examination Status of the Application Firstly, your comments about extending the pre-examination period, which support those made by some Local Authorities during the Adequacy of Consultation responses, are noted, and have been seen by the Examining Authority (ExA). It is for the ExA to set a date for the Preliminary Meeting (PM), the close of which will trigger the start of the Examination. It is important to note that no date has been set at this stage as we are still within the Relevant Representation period. After the close of that period, the ExA will review the representations, the application and any other information received to determine the main issues to be considered and the structure of the Examination, including an appropriate start date. Guidance on the examination of applications for development consent is available on the Inspectorate’s website. All parties will be notified of the PM date in due course when the ExA issues its letter inviting parties to the PM, under Rule 6 of the Infrastructure Planning (Examination Procedure) Rules 2010. As you say, s108 of the Planning Act 2008 (PA2008) provides the Secretary of State (SoS) with a power to suspend examination of an application whilst a national policy statement (NPS) is reviewed. That is ultimately a matter for the SoS to consider and this is not delegated to the ExA. As such, it is open to you to make submissions directly to the Department for Energy Security and Net Zero on this matter. Status of the National Policy Statements S104(3) of the PA2008 specifies that, where applicable, the SoS must decide the application in accordance with any relevant NPS (except to the extent that one or more of the exceptions specified in that section applies). The SoS DESNZ has decided to conduct a review of the 2011 Energy NPS EN-1 to EN-5 under s6 of the Act. However, they have not decided to suspend those statements during the review period under s11 of the Act. Hence, the current suite of energy NPS’ (EN-1 – EN6, which came into force in July 2011), remain as the designated policy for the purposes of s104. However, emerging draft NPSs are potentially capable of being ‘important and relevant’ under s104(2)(d). This is explained in the consultation document for the draft energy NPS’ which sets out the transitional arrangements and specifies ‘The Secretary of State has decided that for any application accepted for examination before designation of the updated energy NPSs, the original suite of energy NPS should have effect. The amended energy NPSs will therefore only have effect in relation to those applications for development consent accepted for examination after the designation of the updated energy NPSs. However, any emerging draft energy NPSs (or those designated but not having effect) are potentially capable of being important and relevant considerations in the decisionmaking process. The extent to which they are relevant is a matter for the relevant Secretary of State to consider within the framework of the Planning Act and with regard to the specific circumstances of each development consent order application’. Relevant Representations In terms of making a Relevant Representation (RR), as indicated in our previous response, we would strongly encourage you to submit one by the deadline of Monday 6 November 2023. A valid RR would ensure that you become an Interested Party (IP) which gives you the right to fully participate in the Examination, both in writing and orally at Hearings. Parties that do not make a RR, and do not become IPs, do not have an automatic right to participate; their participation is solely at the discretion of the ExA. The Inspectorate has prepared a series of Advice Notes to assist parties in engaging in the NSIP process. Advice Note 8.2 provides information on how to register to participate in an Examination. Section 6 of the Advice Note sets out what an RR must contain. Section 6.5 specifies ‘A Relevant Representation should relate to the application. It must include a summary of points which you agree and/or disagree with about the application, highlighting what you consider to be the main issues and impacts’. Section 6.7 specifies ‘Once the Examination has started, you can continue to rely on the Relevant Representation you submitted in order to register as an Interested Party or you can submit a further written representation by the deadline that will be set out in the Examination Timetable. This can expand on the matters included in your Relevant Representation’. As such, IPs will have the opportunity to expand on RRs with a Written Representation (WR) when the Examination is underway; a deadline for receipt of the WR will be set in the examination timetable which will be set by the ExA under Rule 8 of the Infrastructure Planning (Examination Procedure) Rules 2010. In addition to AN8.2, you may find the remainder of the AN8 series of assistance in providing more information about the NSIP process. As per our previous response, a copy of your e-mail, and this response, will be published as section 51 advice on the Rampion2 project page. We hope this is of assistance. Kindest,