Advice to Environment Agency

Enquiry

• From: Environment Agency
• Date advice given: 3 September 2013
• Enquiry type: Email

Enquiry about whether or not a Flood Alleviation Scheme the Environment Agency and partners are progressing could reasonably be considered as an NSIP.

The scheme is the Lower Thames Flood Alleviation Scheme (LTFAS) estimated to cost circa £256 million to and designed to protect some 15,000 homes and a number of business and critical infrastructure. It includes the construction of a 17km flood diversion channel through the administrative boundaries of seven planning authorities, and will require a number of other consents and authorisations. By virtue of is size, location and nature it is caught by and will require EIA, HRA and WFD regulatory compliance.

Advice sought about whether PINS considers that this project might be considered an NSIP candidate project

Advice given

The types of project that are designated as NSIPs are set out in Section 14 of the Planning Act 2008 - as amended (PA2008). Sections 15 to 30 of the PA2008 then set down size thresholds which these types of infrastructure projects must meet in order to be considered as NSIPs. There is no category of NSIP in the PA2008 which would appear to include a flood alleviation scheme (channel) of the type you describe. However, we are not able to provide you with legal advice about whether your project is an NSIP and so you must pursue this with your own legal advisors to get a definitive view based on the details of the scheme.

The Localism Act 2011 amended the PA2008 to provide a clearer route for developers of schemes, which are not NSIPs, but which the developer considers to be of national significance, to request the Secretary of State (SoS) to direct the scheme to be dealt with via the DCO process. Sections 35 and 35A of the PA2008 set down the powers of this provision. Essentially, it requires a developer to make a request to the relevant SoS. You should seek further advice about the process of making any request of that nature from DEFRA.

Of course I or another colleague would be happy to meet with you to discuss the DCO process, however, it would make sense for you to establish the status of your project first in terms of whether it is an NSIP and, if not, to speak to DEFRA about the prospects for a SoS direction under s.35 of the PA2008. Clearly with a project of this scale we would be interested to be kept informed about the outcomes of any communication you may have with DEFRA, or any conclusions your legal advisors may have about the status of this project.