Advice to Henry Le Brecht
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- From
- Henry Le Brecht
- Date advice given
- 7 June 2010
- Enquiry type
I have recently been having conversations with Gary Mohamed of DECC regarding Determination Assessments associated with high pressure gas pipelines.
Specifically in this case we are assessing the following pipeline with these specifications:
Project Justification: Diversion of an existing National Transmission System (NTS) pipeline to allow for the expansion of a quarry.
Length: Approx 2km
Operating Pressure: 70bar g
Diameter: 900mm
Sensitive Areas: Not located within or in the vicinity of any sensitive areas e.g. a SSSI
Potential Sensitive Environmental Effects: No potential significant effects upon the environment have been identified during our assessment.
DECC indicated that in this case it would not be for the IPC to consider this project and an application should be submitted to the Secretary of State for determination pursuant to the Gas Transport EIA Regulations 1999.
In seeking your advice, we are not only searching for clarification of the situation on this one example, but seeking to move towards good practice in interpreting the Act and relevant NPSs as the IPC starts operation fully. I'm sure you share our aspirations for the provision of clear guidance that allows for rapid, yet sound, decision-making without imposing unreasonably on either the IPC, local authorities, developers or government departments, such as yourselves.
Interpreting the Legislation
Section 20 of the Planning Act states: “20 Gas transporter pipe-lines
(1) The construction of a pipe-line by a gas transporter is within section 14(1)(f) only if (when constructed) each of the conditions in subsections (2) to (5) is expected to be met in relation to the pipe-line.
(2) The pipe-line must be wholly or partly in England.
(3) Either—
(a) the pipe-line must be more than 800 millimetres in diameter and more than 40 kilometres in length, or
(b) the construction of the pipe-line must be likely to have a significant effect on the environment.
(4) The pipe-line must have a design operating pressure of more than 7 bar gauge.
(5) The pipe-line must convey gas for supply (directly or indirectly) to at least 50,000 customers, or potential customers, of one or more gas suppliers.
(6) In the case of a pipe-line that (when constructed) will be only partly in England, the construction of the pipe-line is within section 14(1)(f) only to the extent that the pipe-line will (when constructed) be in England.
(7) “Gas supplier” has the same meaning as in Part 1 of the Gas Act 1986 (c. 44) (see section 7A(11) of that Act).”
While our project meets nearly all the requirements it fails on one – namely (3)(a) as it is not more than 40km. However if your example impacted on sensitive areas it would meet the requirements of (3)(b) and therefore would need to be submitted to the IPC for determination. Our project does not impact on a sensitive area as defined by the regulations.
Also in conservation of Section 21 as follows:
“21 Other pipe-lines
(1) The construction of a pipe-line other than by a gas transporter is within section 14(1)(g) only if (when constructed) the pipe-line is expected to be—
(a) a cross-country pipe-line,
(b) a pipe-line the construction of which would (but for section 33(1) of this Act) require authorisation under section 1(1) of the Pipe-lines Act 1962 (c. 58) (cross-country pipe-lines not to be constructed without authorisation), and
(c) within subsection (2).
(2) A pipe-line is within this subsection if one end of it is in England or Wales and—
(a) the other end of it is in England or Wales, or
(b) it is an oil or gas pipe-line and the other end of it is in Scotland.
(3) For the purposes of section 14(1)(g) and the previous provisions of this section, the construction of a diversion to a pipe-line is treated as the construction of a separate pipe-line.
(4) But if—
(a) the pipe-line to be diverted is itself a nationally significant pipe-line, and
(b) the length of the pipe-line which is to be diverted has not been constructed,
the construction of the diversion is treated as the construction of a cross-country pipe-line, whatever the length of the diversion.
(5) For the purposes of subsection (4), a pipe-line is a nationally significant pipe-line if—
(a) development consent is required for its construction by virtue of section 14(1)(g), and has been granted, or
(b) its construction has been authorised by a pipe-line construction authorisation under section 1(1) of the Pipe-lines Act 1962 (c. 58).
(6) “Diversion” means a lateral diversion of a length of a pipe-line (whether or not that pipe-line has been constructed) where the diversion is beyond the permitted limits.
(7) The permitted limits are the limits of lateral diversion permitted by any of the following granted in respect of the construction of the pipe-line—
(a) development consent;
(b) authorisation under the Pipe-lines Act 1962;
(c) planning permission.”
So non-gas transporter pipeline diversions would be submitted to the IPC for determination.
In summary unless the gas transporter pipeline meets all the requirements of section 20(2)-(5) then DECC are of the view that any application should be submitted to the Secretary of State for determination pursuant to the Gas Transport EIA Regulations 1999.
Please confirm that you agree with the interpretation of the legislation developed from our own research and correspondence with DECC.
Advice given
With regard to your recent questions relating to the status of projects if the proposed pipeline meets the requirements in Section 20(2) to (7) of the Act it will constitute a nationally significant infrastructure project requiring development consent. However, whilst the Commission has a power under s.51 of the Act to give advice about the general process for applying for an order granting development consent, or making representations about an application (or proposed application) for such an order, it is unable to provide a definitive legal opinion as to whether development consent is required, or on the interpretation of legislation, which is a matter that only the Courts can determine. It is the policy of the Commission strongly to advise applicants to seek their own legal advice, upon which they can then rely. You may wish therefore to adopt this course of action. I have attached a link to the IPC's policy on giving section 51 advice:
http://infrastructure.independent.gov.uk/wp-content/uploads/2010/03/Policy-on-s.51-advice-giving.pdf
Should you choose to pursue the DECC consenting route it will be for DECC to satisfy itself that it has jurisdiction. Section 160 of the Act establishes penalties for undertaking development for which development consent is required, without the appropriate order.
You should also note that if you submit an application for a consent to another authority the authority could ask the Secretary of State to consider whether to direct that the project is an NSIP and be dealt with by the IPC.