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Advice to RSK Environment Ltd

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Enquiry

From
RSK Environment Ltd
Date advice given
5 November 2010
Enquiry type
Email

Email regarding a proposed application for an oil processing plant in Teesside. A query was raised as to whether an oil processing plant can lawfully be determined as an NSIP under the current Planning Act 2008.

Advice given

Firstly I should inform you that the IPC is unable to give legal advice upon which applicants (and others) can rely, nor can we advise on the merits of applications for development consent orders (DCOs) or proposed such applications. We would therefore suggest that you take your own legal advice upon which you can rely.

Further to our telephone conversation on Monday 1st November, I have now taken further advice as to your request to call this proposed project Teesside Oil Processing Plant'. The Commission considers that at present we could not lawfully accept an application for development consent for a project described as an 'oil processing plant', as none of the sections in Part 3 of the Planning Act 2008 (the Act) currently relate to such projects. In other words the IPC would be acting unlawfully if it was to accept (and examine) an application for a project which is beyond the powers given to it in the Act.

We also consider that the IPC would not at present be able to accept a notification under s.46 of the Act or a Regulation 6(1)(b) notification or Regulation 8(1) request for a scoping opinion under the Infrastructure Planning (Environmental Impact Assessment) Regulations 2009 ('EIA Regs') since all these provisions refer to a 'proposed application' for a Development Consent Order and there is not presently, in our view, sufficient certainty that an application we could lawfully accept is likely to be forthcoming. Given this current lack of certainty we reserve our decision as whether it is appropriate at present for this proposed oil refinery-encompassing project to be included in the list of projects on our website.

We therefore consider that there are in principle two possible consenting options available to Tees Refining Ltd:-

  1. To progress only those element(s) of the overall project which constitute a nationally significant infrastructure project (NSIP) in their own right through (a) development consent application(s) to the IPC under the Act. Tees Refining should seek their own legal advice as to which elements should be included in such (an) application(s) and reflect this in the title and description of the project accordingly. The remainder of the project could be progressed in parallel under the relevant consent regime(s); or

  2. Seek either an order from the Secretary of State (SoS) (under s.14 (3)) for a project described as an 'oil processing plant' to be added as a new type of NSIP under s.14(1) of the Act or a direction (under s.35) of the Act by the SoS for an application for such a project to be treated as an application for development consent and referred to the IPC. Either way, Tees Refining Ltd. will probably wish to make submissions to the Secretary of State as to why this proposed type of 'oil processing plant' does properly and lawfully fall within one of the fields referred to in s.14(6) or s.35(2) of the Act. You may also wish to note that there are several 'pre-conditions' under s.35 which must be met for the SoS to be able to make a direction under s.35 including that an application for planning permission must have been made to the relevant authority (see s.35(1)). It is for lawyers acting for Tees Refining Ltd. to make the case and for the relevant Government Department, which is likely to be DECC, to be satisfied that the Secretary of State may lawfully make an order under s.14 or a direction under s.35. It would be for the SoS to decide, whether or not to make such an order or direction. It is not though clear to us as to the likely timescale for obtaining any such direction or order.

You may also wish to give consideration to which elements of the project (however described) are integral to the proposed NSIP and which (if any) are 'associated development' (under s.115(2)) or are ancillary matters. CLG have published Guidance on 'associated development' which is available on our website, and a (non-exhaustive) list of ancillary matters are set out in Schedule 5 of the Act.

Should you decide to progress the proposed 'oil processing plant' project via an order or direction under the Act, it is our view that, save for giving advice under s.51, the IPC can only lawfully carry out its statutory functions in relation to an oil refinery-encompassing project (in particular receive an EIA Regs. notification/request, adopt a scoping opinion, or accept a s.46 notification) once it has been given sufficient assurance by the SoS/DECC that an order/direction is likely to be forthcoming. You may wish to make legal submissions to us as to why you consider that the IPC would be acting lawfully in this regard pending such assurance from the SoS/DECC.

We would also advise you to make representations to the SoS to make an Order or Regulations (under s.35(5) or s.232 as relevant) allowing the IPC at acceptance stage to treat any 'informal' pre-application consultation carried out by Tees Refining Ltd. as being compliant with the statutory pre-application procedure (in accordance with s.55(3)(e)). This would be to enable you to fulfil your pre-application consultation obligations under the Act in advance of having an order/direction from the SoS.

In the light of the above advice, please could you confirm to us in writing which approach Tees Refining Ltd is proposing to take in progressing the overall project, including the 'oil processing plant', and reflect this in the proposed NSIP 'project title' accordingly. You may also wish to make legal submissions to the IPC to justify and substantiate the approach you are proposing to take.

We would also be grateful if you could provide us with further details (if any) about any (non-statutory) pre-application consultation that Teesside Refining Ltd (or you on their behalf) are already carrying out or are proposing to carry out (with proposed timescales). Please note the potential to cause confusion amongst consultees about what is being consulted on, and on what basis. Tees Refining Ltd. should therefore take great care to avoid creating confusion amongst consultees and make it clear that at this stage any consultation they (or you on their behalf) are carrying out is non-statutory. Tees Refining Ltd. should also make it clear to consultees what (if any) alternatives are being consulted upon, the importance of alternatives in the consultation process, the reasons why particular choices have been made and whether there are opportunities for consultees to propose, for example, alternative sites, siting or options.

I trust that the above advice is clear. I would re-emphasise that Tees Refining Ltd should obtain their own legal advice on which they can rely as to how to best progress this proposed project lawfully. Please do not hesitate to contact me should you require any further information in relation to this matter.

The IPC gives advice about applying for an order granting development consent or making representations about an application (or a proposed application). The IPC takes care to ensure that the advice we provide is accurate. This communication does not however constitute legal advice upon which you can rely and you should note that IPC lawyers are not covered by the compulsory professional indemnity insurance scheme. You should obtain your own legal advice and professional advice as required.

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