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Advice to Northumberland County Council

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Enquiry

From
Northumberland County Council
Date advice given
30 October 2012
Enquiry type
Email

Are we required to send S42 consultation to all of the consultees identified in the Scoping Opinion, even those that gave a negative response?

Advice given

When a scoping request has been received, the Secretary of State is required to provide the developer with a list of the notified consultation bodies, and any regulation 9(1)(c) persons. Details of any non-prescribed consultation bodies will also be provided, if appropriate. The list you have received will have been compiled in relation to the Secretary of State?s duty to notify the consultation bodies in accordance with regulation 9(1)(a) of the EIA Regulations. You, as the developer may use this list to inform your pre-application consultation but you should not rely on this when carrying out your own s.42 consultation exercise.

The developer of a proposed NSIP, when meeting their statutory pre-application consultation obligations under s.42 of the 2008 Act must make diligent inquiries, carrying out their own investigations and taking their own legal advice, as appropriate. It is the responsibility of the developer to ensure that their pre-application consultation fully accords with the requirements of the 2008 Act, and associated regulations and guidance.

You may wish to be mindful that before accepting an application for development consent the Secretary of State must conclude that the developer has complied with chapter 2 of part 5 of the 2008 Act (pre-application procedure). If developers identify and consult fewer consultees (as part of their s.42 obligations) than the Secretary of State notifies under regulation 9 of the EIA Regulations and/or consults in relation to the scoping opinion request, a clear explanation should be provided within the developer?s consultation report. This will assist the Secretary of State in reaching a conclusion about whether or not the developer has complied with chapter 2 of part 5 of the 2008 Act.