Advice to William Runciman

Enquiry

• From: William Runciman
• Date advice given: 2 June 2011
• Enquiry type: Email

IPC has cropped up in relation to a planning application for a wind farm submitted I believe just prior to your coming into existence. As an individual it sounds to me as if your role is to streamline the planning process, it would also appear to me that another benefit is to take some or all of the weight off the local planniners, especially for major projects. From my experience they are extremely well intentioned, but don't have sufficient time to be able to devote to dealing with major developments which need special knowledge. If I am correct can you please explain what the advantages would be of a wind farm developer submitting a hastily cobbled together plan immediately prior to your organisation coming into existence, I believe on 1st January 2010. I would also be interested to know if when considering new proposals such as wind farms you have to consider. a. Whether the proposal is part of a joined up national policy. I am thinking specifically of means of connection to the National Grid, and whether the connection is in the right place for the national benefit,or whether there are better alternatives b. whether the connection method is economic, or are there better alternatives that would suit the nation better as part of joined up development. c.Do you have to take into account financial viability, and track record of the company making the proposal, and whether in your opinion they actually have the wherewithal to carry out their plan. I am totally in favour of sustainable development of renewable energy. However I am concerned that as with most new industries mistakes are being made at the early stages, and with a little extra thought now the national benefit would be much greater.

Advice given

The IPC was established on 1 October 2009 under the Planning Act 2008 (PA 2008) to streamline the planning system for nationally significant infrastructure projects (NSIPs). It started operating in April 2010. In England, the IPC examines applications for development consent from the energy, transport, waste, waste water and waste sectors. In Wales, the IPC examines applications for energy and harbour development, subject to detailed provisions in the Act; other matters are for Welsh Ministers.

I should inform you though that the IPC cannot advise on the merits of applications for development consent orders (DCOs) or proposed such applications, give legal advice nor interpret legislation as the latter is a matter for the courts. Specifically we cannot advise on whether a proposal constitutes a Nationally Significant Infrastructure Project (NSIP) requiring development consent. We would therefore suggest that you take your own legal advice upon which you can rely. For further information on the IPC's policy on giving Section 51 advice please visit our website at http://infrastructure.independent.gov.uk/wp-content/uploads/2010/03/Policy-on-s.51-advice-giving.pdf.

Whether something is or forms part of an NSIP depends on whether the development concerned falls within the definitions in s.14-30 of PA 2008 and this will depend on the facts. Wind farms may fall within s.15 if the conditions of that section are met.

If the proposed development falls within s.14-30 then s.31 of PA 2008 applies, i.e. development which is or forms part of an NSIP requires development consent. The IPC may only consider onshore generating stations above 50MW as stated in Section 15(2)(c) of PA 2008 unless directed otherwise by the Secretary of State.

The IPC can accept an application for development consent only if it fulfils the criteria set out in s.55(3) of PA 2008 including that "the applicant has, in relation to a proposed application that has become the application, complied with Chapter 2 of Part 5 (preapplication procedure)" (s.55(3)(e) PA 2008).

In response to the latter part of your enquiry, Sections 104 and 105 of PA 2008 set out the matters that the decision maker has to take into account as part of the decision making process.

Relevant National Policy Statements (NPSs) must be taken into account under Section 104 (2) (a). These set out environmental, social and economic policy objectives and provide clarity on the need for national infrastructure during the decision making process. S.104(3) specifies that the IPC must decide a development consent application in accordance with any relevant NPS, except to the extent that one or more of subsections (4) to (8) of s.104 applies. Where no relevant NPS has been designated the IPC makes a recommendation to the Secretary of State who then needs to decide the application in accordance with s.105 PA 2008.

It is a matter for the decision maker to decide on a case by case basis the “important and relevant” matters. It is therefore for the examining authority/the decision maker to consider whether the financial viability of a development and/or the history of the developer need to be taken into account as an important and relevant matter.

For further information on how the PA 2008 process works please see our advice notes published on our web-site, particularly Advice Note 8 which is a step by step guide through the planning process for major infrastructure projects: http://infrastructure.independent.gov.uk/legislation-and-advice/our-guidance-and-advice/.