Advice to RSK Environment LTD

Enquiry

• From: RSK Environment LTD
• Date advice given: 1 December 2010
• Enquiry type: Email

I have now spoken with Tees Refining Limited regarding progression of the project in light of your recent email.

Our view is that, given the inherent linkages between the various components of the proposed Teesside Oil Processing Plant, the project ought to be considered as one single application by the IPC. We are, however, mindful of the IPC's position that they are unable to accept this type of development as it is not listed under the Planning Act 2008 as an NSIP. We also acknowledge that the IPC are unable to register the project, and any pre-application information relating to the project, in its current form.

We have engaged Redcar & Cleveland Borough Council and have informed their Planning Department of the current position. The Council expressed concern regarding splitting the project up for the purposes of obtaining the necessary consents; however we collectively agreed a strategy going forwards which broadly aligns with Point 1 of your email below in so far as we will, for the purposes of pre-application, separate out the NSIP components and progress these with the IPC to secure consent by way of a single DCO application. The remaining scheme components will be progressed under The Town and Country Planning Act 1990 as appropriate, and the necessary consent(s) will be sought by way of standard planning applications.

Two NSIPs are to be progressed through the IPC, these being the proposed harbour works and proposed power station. Accordingly, to facilitate registration of the 'scheme' we will change the project title to "Teesside Oil Processing Plant: Harbour Reception Facilities and Power Station". We will take a view on what we believe constitutes 'Associated Development' and inform you of our conclusions in due course.

For the purposes of pre-application consultation, the intention is to consult on the scheme as a single project to meet the various requirements of the IPC and the Planning Act 2008 (e.g. production of an SOCC). We accept your comments with regard to providing a clear, consistent message throughout consultation and will endeavour to ensure this is conveyed to statutory agencies, non-statutory bodies and the general public throughout the process.

Two EIA Scoping Reports will be produced for the project. The first report will capture the above NSIPs and will be issued to the IPC for comment. The second report will cover all remaining project components to be covered via the Town and Country Planning Act 1990, and will be issued to Redcar & Cleveland Borough Council for comment. To ensure clarity and consistency in the approach to consultation, we would appreciate it if the IPC can provide a list of consultees whom they intend to issue their IPC Scoping Report to, such that we can replicate this consultation list for those components to be progressed under the Town and Country Planning Act 1990.

With regard to consultation undertaken to date, a series of data request letters were issued to statutory and non-statutory consultees in October 2010 with a view to acquiring baseline environmental data. The intention is to follow this up in the next month with targeted meetings with several statutory consultees, and a series of letters to identify environmental issues which consultees believe to be genuinely associated with the project as a whole. The letters will also explain the reasons why, procedurally, two EIA Scoping Reports have to be produced for the project. Having now opened a line of dialogue with Redcar & Cleveland Borough Council, we will shortly be seeking their views on the form and coverage of the community consultation which will be undertaken post EIA Scoping.

In parallel to the above, it is the intention of Tees Refining Limited to formally engage the Secretary of State and request they examine the project with a view to making a Direction under the provisions of the Act to ultimately direct the entire project to the IPC for consideration. We are aware that any Direction would only become 'live' immediately at the point of submission of a local planning application towards the end of 2011.

We trust this provides the necessary clarity regarding how the project will be progressed with the IPC, and trust this will enable the IPC to formally register the project.

Advice given

Firstly, we note from your e-mail that the applicant's intention now is to seek a Direction from the Secretary of State under s.35 of the Planning Act 2008 (the 2008 Act) in relation to the currently 'non-NSIP' element (e.g. the oil processing plant) . Please could you therefore confirm that your client is not intending to seek an Order from the Secretary of State under s.14 of the 2008 Act.

In any event, the Commission considers that you will need to be extremely careful to clearly and consistently distinguish between the NSIP and currently non-NSIP elements. This is particularly relevant to your fifth paragraph below (highlighted blue). In other words you should clearly identify and distinguish between those projects which can legally come to the IPC now (which from your description we currently understand to be the power station and harbour facility), which can be formally consulted upon under ss.42 and 47 of the 2008 Act, and those elements which are dependent on you obtaining a s.35 Direction from the Secretary of State (SoS), in relation to which you may wish to carry out informal pre-application consultation.

Similarly, in relation to your penultimate paragraph (highlighted in purple below), you should note that the project any s.35 Direction might relate to would be the currently 'non-NSIP' element (i.e. the oil processing plant) - not the 'entire project'. By the 'entire project' I take it you mean not only the oil processing plant, but also the power station and harbour facility for which an application(s) can already be made to the IPC. You would also need to have already submitted a planning application(s) to the relevant LPA in relation to the currently 'non-NSIP' element (e.g. oil processing plant) before any s.35 Direction could be made by the SoS.

Concerning the non-NSIP element, you will also need to make clear to consultees that you are carrying out informal pre-application consultation only in relation to that element. This may only count as being compliant with the statutory pre-application procedures under the 2008 Act at acceptance stage if you can obtain a separate Order or Regulations from the SoS to this effect (see the 4th paragraph from the end of my previous e-mail of 5 November below). Please also be aware that there is further potential for confusing consultees since the LPA will be carrying out statutory post submission consultation in relation to any TCPA planning application(s), if the non-NSIP elements were to be consented in this way and if a Direction by the SoS was not made soon after the submission of such TCPA planning application(s).

Before carrying out any consultation, you will therefore need to give careful consideration to how the two elements are described. I strongly recommend your client to obtain their own legal advice upon which they can rely in relation to (inter alia) which elements should be included in (an) application(s) for a development consent order (DCO), including any associated development, and reflect this in the description of the project accordingly. As the potential need for new oil pipelines was also mentioned at our meeting on 21 October 2010 you should also satisfy yourselves whether or not any part of the project falls under s.21 of the 2008 Act, for which development consent may be required.

Furthermore, I do not think that the proposed NSIP project title is ideal, since it still expressly refers to the oil processing plant, which we do not presently have jurisdiction to entertain and an application for which may never come to the IPC or its successor body. The IPC would therefore prefer e.g. Teesside generating station and harbour facilities' - provided there are no other NSIP elements to the project which we are currently not aware of.

Concerning the EIA process, both the NSIP and non-NSIP elements would be EIA development and require the submission of an Environmental Statement (ES) with the respective DCO/planning applications. Both ESs will need to take full account of any in combination and cumulative impacts including those arising from the 'related' DCO and planning application projects (as relevant). You will also need to give careful consideration to the description of the development for which you will be seeking a DCO and submission of a plan sufficient to identify the land in order to comply with Regulations 6 and 8 of the EIA Regs.

In relation to the IPC's statutory scoping consultation list, the IPC will prepare this list using the 'red line' plan submitted to us which relates to the land for which the DCO will be required - i.e. the NSIP elements. The IPC will not be able to take the other elements of the proposed development (e.g. the oil refinery) into account when producing our statutory consultee list. You will therefore need to consider this when you prepare your own s.42 consultation list. In other words, the IPC's list of statutory consultees, relating to a 'red line' that includes the NSIP elements, will not necessarily incorporate all consultees that might be brought in by including the oil processing plant within the 'red line' boundary. The IPC's list may therefore not be the same as the LPA's scoping consultation list for the TCPA 1990 element. Our list should, however, inform your s.42 consultation exercise in relation to the proposed NSIPs.

You need to give careful consideration to the proposed timescales regarding these projects. For example, when it would be most appropriate and useful to request any scoping opinion from the IPC (and the LPA). Also, the likely timescale to obtain any s.35 Direction and how this would sit with your proposed planning application submission date (late 2011) and intended DCO application date (which it would be useful if you could clarify in the light of the further correspondence we had since our meeting in October).

Given the proposal's complexity, with some elements currently falling under the 2008 Act and uncertainty over whether or not the SoS may direct the other elements to be dealt with by the IPC under the 2008 Act, close liaison with the relevant Local Authorities to ensure their full understanding of the 2008 Act regime seems particularly important. I have therefore been thinking that it may be helpful to set up a meeting between yourselves, the IPC and Redcar & Cleveland Borough Council. In this regard, please could you let me know whether you have been liaising with any other Local Authorities.

I hope you find these comments helpful.

I would be grateful if you could let me know of any progress made since our meeting in October, in particular regarding seeking a possible s.35 Direction by the SoS, the intended DCO application date and whether or not you would like us to set up a meeting with yourselves and Redcar and Cleveland Borough Council.