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Advice to RWE npower

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Enquiry

From
RWE npower
Date advice given
14 January 2011
Enquiry type
Email

at our last IPC meeting we discussed the fact that our Phase 1 consultee list differed from that provided by the IPC with the scoping report.

We compiled the consultee list and submitted this as a draft to the IPC and as a final version with the consultation material in July 2010.

When we received our scoping opinion, in August, we noticed that the 'Prescribed Consultee List' used by the IPC in respect of the EIA Regs was much more extensive than the list that we had used for the purposes of S42.

In particular, in respect of local authorities (S42(b) & S43) our list of 'B' authorities is only those bordering the district councils and not the county councils.

In respect of Statutory Undertakers, our list was restricted to the licensed utilities that were known to operate in the area. (We do not propose applying for any powers in relation to SU's interests.)

We now intend to repeat our Phase 1 consultation by writing to all the local authorities on the list, including both those consulted and those not previously consulted.

Our question concerns the other parties on the list -

Q: Is the list of 'prescribed consultees' for EIA purposes (issued with the EIA scoping opinion) also the list of prescribed persons under S42(a)?

Advice given

Thanks for the update with regards to your intention to repeat phase 1 consultation by writing to all the local authorities on the list used by the IPC for EIA scoping purposes to ensure that you've included all 'A' authorities ('B' authorities are those Local Authorities in which the development is located).

With regards to your question: As per regulation 3 of the Infrastructure Planning: Applications Prescribed Forms and Procedures Regulations 2009 (APFP Regulations ): The list of prescribed consultees for S.42(a) is set out in in column 1 of the table in schedule 1 APFP Regulations.Column 2 of that table defines the circumstances when particular categories of consultees need to be consulted.

Regulation 8(6) of the Infrastructure Planning (Environmental Impact Assessment) Regulations 2009 (EIA Regulations) requires the IPC to consult with 'the consultation bodies' before adopting a scoping opinion. Reg 2 (1) of the EIA Regulations defines 'the consultation bodies' as "(a) a body prescribed under section 42(a) (duty to consult) and listed in column 1 of the table set out at Schedule 1 to the Infrastructure Planning (Applications: Prescribed Forms and Procedure) Regulations 2009 (a) where the circumstances set out in column 2 are satisfied in respect of that body;

(b) each authority that is within section 43 (local authorities for purposes of section 42(b));and (...)"

In other words the table in schedule 1 APFP Regulations is the starting point for determining the consultation bodies for both the IPC's scoping opinion consultation and the applicant's consultation under S.42 (a). However, as IPC advice note 3 (http://infrastructure.independent.gov.uk/wp-content/uploads/2010/05/Advice-note-3-scoping-opinion.pdf): goes on to explain "in some cases, the Commission must exercise discretion in deciding which bodies should be consulted by adopting a "relevance test" and/or by deciding whether certain circumstances apply (the "circumstances test")". Advice Note 3 then goes on to explain in detail how the IPC applies the relevance and circumstances test and identifies statutory undertakers etc. In addition, the advice note sets out "a limited category of bodies, not prescribed by the APFP, who will be consulted by the Commission before adopting a scoping opinion".

The IPC has therefore issued guidance specifically about the point on whether or not the applicant's list of S42 consultees needs to be identical to the IPC's list of consultees for the Scoping Opinion in the IPC Guidance Note 1 (http://infrastructure.independent.gov.uk/wp-content/uploads/2010/04/IPC-pre-app-guidance-note-1.pdf): "Paragraph 21: When meeting their statutory pre-application obligations under s42 of the Act applicants must make diligent inquiry, carry out their own investigations and take legal advice as appropriate. Applicants may nonetheless find it helpful to recognise and understand the approach taken by the IPC when meeting the IPC?s own obligations under the EIA Regulations (see the relevant advice note). The IPC has undertaken a careful review of the consultation bodies prescribed under s42(a) of the Act and considers that its approach to identifying those consultation bodies is reasonable and proportionate.

Before accepting an application for examination the IPC must conclude that the applicant has complied with Chapter 2 of Part 5 of the Act (pre- application procedure). 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(12).

Paragraph 22: The consultation report will enable applicants to flag and explain any differences between the IPC?s consultation under the EIA Regulations(13) and their own s42 consultation. Differences may arise as a result of additional information becoming available to promoters as part of their due diligence exercise which was not available to the IPC when identifying consultation bodies or because promoters have, on the basis of additional information, properly exercised judgment and reached a different decision. This should be made clear in the consultation report."

(12) In accordance with s55(3)(e) of the Act

(13) IPC scoping opinions include a list of consultation bodies consulted before adopting the scoping opinion. The IPC is also required to inform the applicant, under regulation 9(1)(b) of the consultation bodies notified.