Advice to Pinsent Masons LLP
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- From
- Pinsent Masons LLP
- Date advice given
- 12 December 2011
- Enquiry type
The IPC’s advice is requested regarding the interpretation of its advice in Advice Note Fifteen: Advice digest (October 2011) (“AN15”). The relevant advice relates to the timing of the production of, and consultation on, preliminary environmental information (“PEI”) pursuant to The Infrastructure Planning (Environmental Impact Assessment) Regulations 2009 (“IPEIA Regulations”). I quote below the specific part of the relevant AN15 to which this request relates:
“The statement of community consultation (“SOCC”) needs to state whether the proposal is environmental impact assessment (EIA) development and how the PEI is to be consulted on (regulation 10 of the EIA Regulations), and so when a developer consults a local authority on the SOCC the local authority will need to have the PEI available at that time so that its response can be an informed one.”
As highlighted, the IPC’s AN15 envisages that the relevant local authorities should have received the PEI from the applicant by the time that the applicant begins its consultation on the SOCC pursuant to section 47(2) of the Planning Act 2008 (“Planning Act”).
However, the legal obligations regarding the production of, and consultation on, PEI, which are set out in regulation 10(2) of the IPEIA Regulations, do not appear to go so far as AN15 as above. I quote below that regulation:
“The consultation statement prepared under section 47 (duty to consult local community) must set out - ...(b) if that development is EIA development, how the applicant intends to publicise and consult on the preliminary environmental information.”
This regulation requires the SoCC to include information about the PEI, but it does not impose any legal obligation on the timing of production of, or consultation on, the PEI. The PEI must be produced and consulted on in accordance with the proposals set out in the SoCC, and no more than that.
Accordingly, it would appear that the IPC’s advice quoted above, which suggests that the PEI should be made available to the relevant local authorities at a specific point in time, goes beyond the statutory and regulatory requirements of the Planning Act and the IPEIA Regulations.
In practice, it may also be that applicants are practically likely to experience difficulties in producing or will be unable to produce detailed PEI in time for the consultation on the SoCC. This point is recognised by the IPC elsewhere in AN15 [page 6, right column, second paragraph].
In conclusion, the IPC’s advice is requested on the following issue: Is the IPC’s advice in AN15 [page 6, left column, third paragraph] consistent with regulation 10(2) of the IPEIA Regulations or, if not, does the IPC consider there is another legal obligation (and if so what) relevant to the advice in AN15 on this point? Alternatively, was the reference to PEI intended to be a more general reference to initial high level environmental issues, similar to the issues highlighted in the site assessments annexed to the nuclear national policy statement (EN-6), rather than a formal reference to PEI?
Advice given
As you will be aware Advice Note 15 (AN15) dated October 2011 is a digest of section 51 advice previously given by the Infrastructure Planning Commission (IPC). AN15 is not statutory guidance made under sections 37 or 50 of the Planning Act 2008 (PA 2008) and the digest is intended to assist applicants by collating advice already given into topic areas.
To clarify further the advice already given, the only legal obligation relating to preliminary environmental information (PEI) is that the Statement of Community Consultation (SoCC) must set out how the applicant intends to publicise and consult on the PEI. PEI is defined in the Infrastructure EIA Regulations 2009 and means the information referred to in Part 1 of Schedule 4 which has been compiled by the applicant.
When an applicant chooses to consult the local authority about the SoCC the PEI compiled at that time may not be detailed and may, for example, amount to a broad indication of the matters in Part 1 of Schedule 4. The EIA Regulations do not establish a minimum level of information or specify that "detailed" environmental information should be produced at this stage. However, the more detailed the PEI is the greater the likelihood of obtaining an informed response from the local authority about how to consult on the PEI.