Advice to Lewisham Borough Council
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- From
- Lewisham Borough Council
- Date advice given
- 30 May 2012
- Enquiry type
Could you provide us with some advice on the issue of selecting alternative sites once the Thames Tunnel application is accepted.
LB Lewisham object to both of the Thames Tunnel preferred sites within the borough and consider that, based on evidence, there are alternative sites that are better suited (Borthwick Wharf Foreshore or Paynes Wharf).
Are you able to advise if it is within the scope of the Examining Authority to consider alternatives and whether there is the possibility that alternative sites could be selected through the Examination process?
We are concerned that it will be time consuming and expensive for us to undertake further technical assessment, particularly in relation to engineering aspects and it is likely we will only do further work if the Examining Authority are able to consider alternatives to those that Thames Tunnel put forward.
Advice given
The fundamental principle of this process is that it is frontloaded, having already assessed alternatives during the pre application phase. In general terms, if the applicant chooses not to accept the Council's suggestions of alternative sites at the pre application stage, then it is their risk to take in terms of this potentially leading to objections from an important interested party to the chosen sites at the examination, when it is highly unlikely to be possible to make changes of the type you have described.
The examining authority can only consider the application as submitted and as assessed in the Environmental Statement. In this context you should carefully consider your own resources and the fact that you are not expected to assess alternative sites or put forward alternatives at the examination.
Post submission changes to the application can be considered by the Examining authority, but the ability of the Panel to accept them is limited. The consideration of the extent to which the examining authority can consider post submission changes is a matter of legal interpretation as to their materiality, whether they have been environmentally assessed and considerations of natural justice in terms of those who may be affected by the consideration of alternatives.
Clearly this is a new regime which is currently being tried and tested in this regard. Bob Neil issued a ministerial statement in the wake of a decision by the Panel examining the Brig y Cwm Energy from Waste proposal near Merthyr Tydfil, not to accept post submission changes. The link below will take you to this statement: http://infrastructure.planningportal.gov.uk/wp-content/uploads/2011/11/111130_Ltr-from-Bob-Neill-MP-re-s114.pdf
My advice to you would be to make sure that you have clearly and unambiguously expressed your views to the applicant about the alternative sites and your reasons for your preference of them over the applicant's preferred sites, at the pre application stage. You may also draw their attention to their duty under s.49 of the PA2008 (as amended) to take account of responses to pre application consultation and publicity and to have had regard to them. The applicant is duty bound to record yours and others views in their Consultation Report and explain why they did or did not agree with them. The Consultation Report will be an application document that will be considered by any Examining Authority that is appointed. You may also wish to highlight whether or not you will continue to object to their chosen sites at the examination and the limitations of the process in considering changes to the application post submission, and consequently the risks to them of having to deal with your objections to their preferred sites at the examination.