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Advice to Advance Environment

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Enquiry

From
Advance Environment
Date advice given
24 February 2011
Enquiry type
Email

It seems to me that Section 20 3(b) of the Planning Act 2008 “the construction of the pipe-line must be likely to have a significant effect on the environment” is too open-ended.

If we have a reasonable sized pipeline, below the >800mm diameter and 40km length threshold, do we ask IPC to screen it for EIA under Section 20 3(b) of the Planning Act 2008 to see if it is NSIP as it’s “likely to have a significant effect on the environment”, and therefore undertake EIA under 2009 Regs, or do we ask DECC to screen it under the PGT (EIA) Regs ? Or both ? If IPC say it isn’t an NSIP do we then have to get DECC to screen it afterwards, for significant effect on the environment, or as IPC have stated it won’t have “significant effect on the environment” does this negative screening carry-over as effectively a negative Environmental Determination under PGT Regs (surely we don’t have to undertake the same screening process twice) ?

Advice given

Thank you for your enquiry.

As stated in my previous e-mail, whether a proposed pipeline project is an NSIP under s.20 of the Planning Act 2008 (the 2008 Act) will, amongst other matters, depend on whether a developer is a "gas transporter" as defined under s.235(1) of the 2008 Act ("Interpretation").

Under s.127 of the 2008 Act, public gas transporters are deemed to be statutory undertakers for the purposes of the Acquisition of Land Act 1981. They are also listed on the OfGEM public register. You will need to be satisfied that your client, Southern Gas Networks, is a gas transporter for the purposes of the 2008 Act regime. If a developer is not a "gas transporter", a proposed pipeline may constitute an NSIP under s.21 of the 2008 Act.

If a developer is a "gas transporter", then a project will be an NSIP under s.20 either on the basis that the pipeline is "more than 800 millimetres in diameter and more than 40 kilometres in length" (s.20(3)(a)) or "the construction of the pipe-line must be likely to have a significant effect on the environment" (s.20(3)(b)), provided that each of the other conditions set out in s.20(2) to (5) of the 2008 Act will, when the pipe-line has been constructed, have been satisfied.

Where a gas transporter pipeline is below the threshold stated in s.20(3)(a), the pipeline must satisfy the test in s.20(3)(b) to constitute an NSIP under s.20 of the 2008 Act, where the threshold is ‘construction of the pipe-line must be likely to have a significant effect on the environment’.

If the Commission is requested to adopt a screening opinion, it will, in such an opinion, set out its conclusion as to whether in its view a proposed project is EIA development but will not comment on whether the project is an NSIP requiring Development Consent. The IPC is only able to formally determine whether Development Consent is required for a project when we consider whether an application should be accepted under s.55 of the 2008 Act.

If, for example, a developer decides at pre-application stage that the thresholds set out in the 2008 Act are not satisfied or the IPC determines at acceptance stage that a project is not an NSIP, then a developer may need to seek consent for their scheme under a different consenting regime.

If the IPC has adopted a screening opinion for a proposed project this would not necessarily affect the conclusion reached in any screening opinion adopted by any other consenting authority, as the 2008 Act regime is a separate statutory regime. As mentioned above, screening is not a mandatory requirement under the EIA Regulations.

We note your comments concerning the wording of s.20(3)(b) of the 2008 Act. However, should you wish to make any formal representations on the drafting of legislation then these should be directed to the relevant Government Departments, which in this case are DCLG and DECC.

Please note that the IPC is unable to give legal advice on which applicants or others can rely. We would therefore suggest that you or your client seek their own legal advice, upon which you or they can rely.

We would also note that the IPC cannot provide a definitive legal opinion on the interpretation of legislation, which is a matter that only the Courts can determine.