Advice to Cotswold District Council

Enquiry

• From: Cotswold District Council
• Date advice given: 7 June 2011
• Enquiry type: Email

I would be grateful for your thoughts as to whether the IPC would be the determining authority for a development 50 - 200 MW gas fired turbine plant, rather than the District Council, due to the scale and nature of the proposed development.

It would also be helpful if you could provide clarity as to the District Council’s role in the process in the event that the IPC are the determining authority.

Advice given

Whether something is or forms part of an NSIP depends on whether the development concerned falls within the definitions in s.14-30 of the Planning Act 2008 (PA 2008) and this will depend on the facts of the case. Section 15 (2) (c) states that a generating station is within this subsection (therefore constitutes a Nationally Significant Infrastructure Project) if its capacity is more than 50 megawatts.

Concerning district councils' role in the PA 2008 process I set out below several key aspects, but would also advise you to look at CLG Guidance for Local Authorities for a more comprehensive synopsis. I should also inform you 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 therefore suggest that potential applicants take their own legal advice upon which they 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.

At the pre-application stage there is a statutory duty for the applicant to consult with the host (“B”) Authority about the content of the Statement of Community Consultation (SoCC). This document is a statutory requirement which sets out how the applicant intends to consult the local community under section 47 of PA 2008; Paragraph 5 of CLG Guidance for Local Authorities provides further clarification about the Local Authority’s role in this consultation.

Under section 42 of PA 2008 host (“B”) and bordering (“A”) Local Authorities are statutory consultees. The applicant will have a duty to consult these authorities concerning the proposed development at the pre-application stage in compliance with PA 2008 and relevant secondary legislation; more information regarding this stage and the role of Local Authorities can be found in paragraph 9 of CLG Guidance for Local Authorities. If an application is accepted for examination, B and A authorities will be registered as interested parties and invited to make relevant and written representations. IPC Advice Note 8.1 – Opportunities to be Involved provides an overview of the process including when these representations can be made.

If an application is submitted, any host (“B”) or bordering (“A”) authorities are invited to make an “adequacy of consultation” representation on the developer's consultation report which the developer must submit to the IPC with an application. The IPC does this as part of the checks the IPC carries out to determine whether or not it can accept the application for examination. In deciding whether or not to accept an application the IPC must, amongst other matters, have regard to any adequacy of consultation representation received by it from a local authority consultee. Detailed advice about such 'adequacy of consultation representation' and the role of the Local Authority is available in paragraph 7 of CLG Guidance for Local Authorities.

If an application is accepted for examination, both host (“B”) Authorities and bordering (“A”) Authorities will be invited to submit a Local Impact Report under Section 60 of PA 2008. If the relevant National Policy Statement (NPS) has been designated the decision maker is the IPC. If no relevant NPS has been designated, the IPC will make a recommendation to the Secretary of State who will then determine the application. In either case the decision maker must have regard to any Local Impact Report(s) as set out in sections 104 and 105 of PA 2008. For further information on Local Impact Reports see IPC Advice Note One: Local Impact Reports and paragraph 10 of CLG Guidance for Local Authorities.