Advice to Alan Rayner

Enquiry

• From: Alan Rayner
• Date advice given: 14 September 2012
• Enquiry type: Email

The developers of a project for which the formal application has not yet been submitted have issued a DRAFT Environmental Statement that was used for the consultation under section 42 (now closed).

The text of the Draft ES makes many references to documents on which reliance is placed to support the case made in the draft ES. However not all of these documents have been made available. In one particular case, the developers have advised that the copyright is owned by another energy company and that such other company has declined to authorise release into the public domain.

Within its formal s42 response, one local authority has included a list of three specific documents not made available - and other potential Interested Parties have drawn attention to this issue.

Clearly there is scope for statements to be misleading if taken out of context and without opportunity for evidence to be tested by reference to full relevant sources.

Are there any precedents for the Examining Authority "striking out" supporting material on the basis of lack of access to source material by Interested Parties?

Given that there is still time for the developers to prepare their "final" ES, would it be advisable for them to remove reliance on such "non-available" material before finalising their application for a DCO?

Advice given

In response to your email of 9 September 2012, I can advise you that the Infrastructure Planning (Environmental Impact Assessment) Regulations 2009 (as amended) ('the EIA Regs') describe an environmental statement as:

'a statement (a) that includes such of the information referred to in Part I of Schedule 4 as is reasonably required to assess the environmental effects of the development and of any associated development and which the applicant can, having regard in particular to current knowledge and methods of assessment, reasonably be required to compile, but (b) that includes at least the information referred to in Part II of Schedule 4'.

Therefore the minimum requirements are set out in Part II of Schedule 4 which states the environmental statement must include:

– A description of the proposal, comprising information about the site and the design and size or scale of the proposal – A description of the measures envisaged in order to avoid, reduce and if possible, remedy significant adverse effects – The data required to identify and assess the main effects which that development is likely to have on the environment – An outline of the main alternatives studied by the applicant and an indication of the main reasons for the applicant's choice, taking into account the environmental effects – A non-technical summary of the above information.

Therefore it can be seen that an environmental statement must include 'the data required to identify and assess the main effects which that development is likely to have on the environment'. This is necessary as the primary purpose is to inform the decision maker of the environmental implications of the proposals. It should also inform statutory consultees, other interested bodies and members of the general public. Without the supporting information that has been relied upon, there is no evidence base and the environmental statement would be inconclusive.

Whether or not an environmental statement meets the minimum requirements of Part II of Schedule 4, is a matter for consideration at the acceptance stage of a DCO application. A DCO application which requires an environmental statement can only be accepted if it is accompanied by an environmental statement that meets the minimum requirements.

If a DCO application has been accepted and it is considered at a later date during the examination or pre-examination stage that the information provided in an applicant's environmental statement is insufficient to permit a proper evaluation of the project's likely environmental effects and this information is required to give proper consideration to the likely environmental effects of the proposal, then a request can be made under Regulation 17 of the EIA Regs for further information.