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Advice to David Purchon

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Enquiry

From
David Purchon
Date advice given
4 November 2011
Enquiry type
Email

Mr Purchon raised questions in relation to IPC consent conditions and their enforcement; The IPC's role in controlling disturbance and nuisance during construction; and the issuing of abatement notices.

Advice given

  1. An IPC consent for a development will probably be granted subject to conditions. Those conditions may be drafted by IPC staff and/or suggested by consultees such as the District and County Councils. Where will the duty to monitor and enforce those conditions lie?

Development consent for an NSIP will be granted by a Development Consent Order (“DCO”). A DCO may contain “requirements” (s.120(1) and (2) of the Planning Act 2008 (the 2008 Act)). These include requirements corresponding to conditions which could have been imposed under any of the consents referred to in s.33(1) of the 2008 Act, for example planning conditions under section 72 of the Town and Country Planning Act 1990.

Relevant local authorities such as District and County Councils can suggest appropriate requirements, whether as consultees at the pre-application stage, or as interested parties during the examination of an application.

Requirements might, for example, require the subsequent approval of detailed project designs or schemes to mitigate adverse impacts. The 2008 Act does not presently include any provisions dealing with the discharge of requirements. The DCO will therefore need to identify the appropriate body whose approval is required.

The duty to monitor and enforce requirements, and other provisions, of a DCO lies with the relevant enforcing body...In most cases this will be the relevant local planning authority (see Part 8 of the 2008 Act).

  1. A development may require an IPPC consent in addition to the permission of the IPC. The IPPC regime will not operate until plant becomes operative. Does the IPC have a role in controlling disturbance and nuisance during construction? If not where does the duty lie?

A DCO can contain requirements for controlling matters such as noise during construction. The Examining authority may, during its examination, decide to include requirements in a draft DCO to address such issues, for example where such issues have been raised in representations.

The IPC’s functions generally cease once a DCO has come into force. The duty to monitor and enforce requirements would then lie with the appropriate enforcing body, usually the relevant local planning authority.

  1. When commenting on the early NPS documents (for CIEH) queries arose about the effect of an IPC consent might have on the nuisance provisions of the Environmental Protection Act, particularly so far as noise and dust nuisance were concerned. If a developer is constructing a plant or transmission line/pipeline in accordance with an IPC consent and a District Council receives complaints of nuisance which officers think are justified will they be able to issue an abatement notice to say control hours of working, construct noise barriers etc. or does the new regime preclude this?

In the absence of any provision to the contrary in a DCO, s.158 of the 2008 Act provides a defence to civil or criminal proceedings for nuisance arising from carrying out the development authorised by a DCO or doing anything else authorised by it.

Whilst this does not preclude the service of an abatement notice under s.80 of the Environmental Protection Act 1990 (and s.80 implicitly requires the service of such a notice by a local authority in appropriate circumstances if they are satisfied that a statutory nuisance exists), an authority might choose not to prosecute for any failure to comply with a notice. This is because the person prosecuted would be likely to lodge an appeal at which the defence in s.158 of the 2008 Act would be raised.

Section 120(5) of the 2008 Act enables a DCO to modify or exclude statutory provisions such as the statutory nuisance regime in the Environmental Protection Act 1990. The inclusion of such proposed statutory modifications or exclusions in a draft DCO would have to be explained in an applicant’s Explanatory Memorandum, submitted with the application, and justified to the Examining authority during its examination of an application.