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Advice to Timothy Bull

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Enquiry

From
Timothy Bull
Date advice given
16 March 2011
Enquiry type
Phone

The caller enquired about the appropriate mechanism for establishing whether a pipeline will have a significant effect on the environment and therefore be considered an NSIP under section 20 (3) (b) of the 2008 Planning Act.

Advice given

The IPC has considered this issue in response to a similar enquiry recently. See below for a summary of the response given.

Whether a proposed pipeline project is an NSIP under s.20 of the Planning Act 2008 (the 2008 Act) will, amongst other matters, depend on whether a developer is a "gas transporter" as defined under s.235(1) of the 2008 Act ("Interpretation"). Under s.127 of the 2008 Act, public gas transporters are deemed to be statutory undertakers for the purposes of the Acquisition of Land Act 1981. They are also listed on the OfGEM public register.

If a developer is not a "gas transporter", a proposed pipeline may constitute an NSIP under s.21 of the 2008 Act. If a developer is a "gas transporter", then a project will be an NSIP under s.20 either on the basis that the pipeline is "more than 800 millimetres in diameter and more than 40 kilometres in length" (s.20(3)(a)) or "the construction of the pipe-line must be likely to have a significant effect on the environment" (s.20(3)(b)), provided that each of the other conditions set out in s.20(2) to (5) of the 2008 Act will, when the pipe-line has been constructed, have been satisfied.

Where a gas transporter pipeline is below the threshold stated in s.20(3)(a), the pipeline must satisfy the test in s.20(3)(b) to constitute an NSIP under s.20 of the 2008 Act, where the threshold is ‘construction of the pipe-line must be likely to have a significant effect on the environment’. If the Commission is requested to adopt a screening opinion, it will, in such an opinion, set out its conclusion as to whether in its view a proposed project is EIA development but will not comment on whether the project is an NSIP requiring Development Consent.

The IPC is only able to formally determine whether Development Consent is required for a project when we consider whether an application should be accepted under s.55 of the 2008 Act. If, for example, a developer decides at pre-application stage that the thresholds set out in the 2008 Act are not satisfied or the IPC determines at acceptance stage that a project is not an NSIP, then a developer may need to seek consent for their scheme under a different consenting regime. If the IPC has adopted a screening opinion for a proposed project this would not necessarily affect the conclusion reached in any screening opinion adopted by any other consenting authority, as the 2008 Act regime is a separate statutory regime.

Please note that the IPC is unable to give legal advice on which applicants or others can rely. We would therefore suggest that you or your client seek their own legal advice, upon which you or they can rely. We would also note that the IPC cannot provide a definitive legal opinion on the interpretation of legislation, which is a matter that only the Courts can determine.

The IPC if requested will base its opinion on a screening or scoping request under regulation 6 or regulation 8 of the The Infrastructure Planning (Environmental Impact Assessment) Regulations 2009 on responses from statutory consultees such as the Environment Agency and Natural England. You could enquire with these statutory consultees as to what they would consider a significant environmental effect. If a Screening or Scoping opinion is requested from the commission, this information would be made readily available during formal consultations with these bodies; in advance of this you may wish to discuss these matters with statutory consultees. However, I must repeat that any opinion issued by the IPC in respect of Regulation 6 or 8 of the The Infrastructure Planning (Environmental Impact Assessment) Regulations 2009 has no bearing on whether the project will constitute an NSIP.

For the full previous enquiry and response, please see the Register of Advice available on our website (http://infrastructure.independent.gov.uk/legislation-and-advice/register-of-advice/ and search “pipeline”, the advice is dated 3/3/2011).