Advice to Sheridan Treger

Enquiry

• From: Sheridan Treger
• Date advice given: 29 April 2011
• Enquiry type: Phone

What is offshore development and where in regards to offshore development would an application have to be publicised under section 48 of the 2008 Planning Act?

Advice given

Further to our conversation on the 29th March 2011, you enquired about the definition of offshore and where you must publish section 48 notifications in regards to an offshore development.

"Offshore Development"

As I mentioned, there is no specific definition of ‘offshore development’ in the Planning Act 2008 (the 2008 Act).

Under the 2008 Act, development consent is required for development to the extent that the development is or forms part of a nationally significant infrastructure project (NSIP). NSIP types are defined generally in s.14, including relevant areas in s.14(7). Which include certain specified areas offshore.

Detailed thresholds for each NSIP type are set out in sections 15-30. Although the thresholds for a number of NSIP types allow for such projects to be situated ‘offshore’, some projects that are currently on our Programme of Projects (on the IPC website) are offshore generating stations (i.e. wind-farms).

Under s.15(3) and (4) of the 2008 Act an offshore generating station is a NSIP, requiring development consent, if its capacity is more than 100 megawatts and it is -

In waters in or adjacent to England or Wales up to the seaward limits of the territorial sea, or In a Renewable Energy Zone, except any part of a Renewable Energy Zone in relation to which the Scottish Ministers have functions.

The territorial sea extends 12 nautical miles out from the ‘baseline’. The baseline is usually the low water mark around the coast. Marine waters to the landward side of the baseline are known as internal waters. The Renewable Energy Zone (REZ) extends up to 200 nautical miles from the baseline.

Publicising a proposed application

As you are aware, a potential applicant is under a duty to publicise any proposed application for development consent under section 48(1) of the 2008 Act “in the prescribed manner”.

The prescribed manner is set out in the Infrastructure Planning (Applications: Prescribed Forms and Procedures) Regulations 2009 (the APFP Regs). Regulation 4(2) of the APFP Regs requires that a potential applicant must publish a notice, which must include those matters set out in Reg. 4(3), for at least two successive weeks in one or more local newspapers circulating in the vicinity in which the proposed development would be situated, once in a national newspaper and once in the London Gazette.

In relation to proposed offshore development, Reg. 4(3)(d) states that the notice publicising the proposed application must be published once in Lloyd’s List and once in an appropriate fishing trade journal.

It is for a potential applicant to establish the “vicinity in which the proposed development would be situated” to in turn establish which local paper(s) to publicise the proposed application in. Potential applicants are advised to seek their own legal advice on which they can rely and they may also wish consult with the relevant local authority(ies) as they will be asked to comment on adequacy of consultation should an application be submitted.

Where a proposed development is EIA development, an applicant must at the same time as publishing the notice under s.48(1), send a copy of that notice to the consultation bodies and to any person notified to the applicant in accordance with regulation 9(1)(c) of the Infrastructure Planning (Environmental Impact Assessment) Regulations 2009.