Advice to EDF
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- From
- EDF
- Date advice given
- 23 June 2010
- Enquiry type
Please see questions asked in the advice given column.
Advice given
Dear Mr Wyatt,
Thank you for your queries.
Before advising upon your questions I would like to clarify that the role of the IPC is to process and examine applications for Nationally Significant Infrastructure Projects (NSIPs) which are defined within Part 3 of the Planning Act 2008 ("the Act"). The Commission are able to give advice under s51 of the Act, although if you require legal advice which you can rely on you will have to seek your own legal advice.
We have endeavoured to give as full answers as possible on the basis of the information you have provided to us. We do not though have sufficient information to advise further on some of the particular matters you have raised. If having considered our answers, s.16 of the Act and the Regulations below, you require further advice then please contact us again with a detailed explanation of the individual circumstances you are referring to.
Below I have provided links to statutory instruments' which relate to overhead electric lines under s16 of the 2008 Act. The links to the relevant provisions are as follows:-
The Overhead Lines (Exemption)(England and Wales) Regs 2009/640 (2009 Regs) disapplied Section 37 of the Electricity Act 1989 to various specified minor works i.e. Section 37 consent was not required in the circumstances set out in this SI. These Regulations came into force on 6th April 2009.
This position was not carried over when the relevant sections of the 2008 Act came into force. Consequently, The Overhead Lines (Exempt Installations) Order SI 2010/277 amended Section 16(3) of the 2008 Act. This came into force on 1st March 2010. Its effect is to make it the case that the installation of an overhead line is not an NSIP if it is exempt from the requirement for consent under Section 37 of the Electricity Act 1989 consent by virtue of the 2009 Regs.
http://www.opsi.gov.uk/si/si2010/uksi_20100277_en_1
The Overhead Lines (Exempt Installations) (Consequential Provisions) Order 2010/29 has the effect, from 1st March 2010, of amending the 2009 Regs. This Order has the effect of ensuring that minor works, which are exempt under the 2009 Regs when they are to be carried out in respect of an existing line where consent has already been given under the Electricity Act 1989, will also be exempt when they are to be carried out in respect of an existing line where consent has previously been given under the 2008 Act (for an overhead line that is an NSIP).
The three sets of Regulations relating to overhead lines referred to above have the overall effect, subject to the detailed content and effect of each set of Regs., that minor specified works to existing lines will not require consent under section 37 of the Electricity Act 1989 or the Planning Act 2008, as appropriate.
Taking your questions in turn:
Q1) Where an existing overhead line scheme is covered by the Exemption regulations except for part which crosses a protected area (SSSI) would the IPC requirements be that the whole scheme is subject to IPC consideration or just the affected section?
Whether a particular proposed scheme is an NSIP requiring development consent under the 2008 Act is a matter that a prospective applicant would need to consider and if necessary take their own advice on, as is the scope of what should be included within any such application.
As you will be aware section 16 of the Act relates to the installation of above ground electric lines. We would specifically refer you to Regulation 2009/640 Reg. 3(1)(c) and (e) where the relevant exemptions only apply if 'no part' is within a European Site or an SSSI. That, taken together with s.31 of the 2008 Act which refers to consent being required for development which is or forms part of an NSIP, should answer your question when applied to the facts of any given project.
Details in relation to the full extent of any proposed works, including those under the Exemption Regulations, would have to be provided to the IPC if the proposed NSIP development is EIA development since the cumulative impact of these (and of any other proposed or commenced schemes in the vicinity) would need to be considered as part of any Environmental Assessment (see also our answer to question 6) below).
Similar considerations would also apply in relation to any proposed NSIP development that is likely to have a significant effect on a European Site under the Habitats Regulations. Regulation 5(2)(g) of The Infrastructure Planning (Applications: Prescribed Forms and Procedure) Regulations 2009 requires that sufficient information has to be provided by an applicant to enable the Commission to make an appropriate assessment of the implications for the site if required under the Habitats Regulations.
Q2) In 1 above where English Nature have been consulted and provided conditions the IPC involvement is minimal what is the fee basis? Does the full process have to be undertaken?
The policy basis for the charging of fees under the 2008 Act regime is a matter for central Government and not the IPC. More information on the policy basis for the fee charging regime can though be found in the Government guidance on the Fees Regulations (please see the link below). We can though give you generic advice about fees in relation to applications for DCOs.
As with other planning regimes, applicants are required to pay fees to cover the IPC's cost of processing applications. These are set out in The Infrastructure Planning (Fees) Regulations 2010 (Fees Regulations). Guidance issued by CLG sets out central Government advice on these fees Regulations. These can be viewed from the following links:
http://www.opsi.gov.uk/si/si2010/uksi_20100106_en_1
http://www.communities.gov.uk/documents/planningandbuilding/pdf/infrastructurefeesguidance.pdf
The fee is broken down into different stages in the process. An initial fee of £4,500 must accompany all applications upon formal submission (regulation 5 of the Fees Regulations). This initial fee is payable irrespective of the size and complexity of an application scheme.
The total fee payable to the IPC will depend on whether the application will be examined by a Single Commissioner, a panel of three Commissioners or a Panel of more than three Commissioners and how many days the examination will take. This decision of appointment, in most cases, is made by the Chair of the Commission. The size and complexity of a proposed scheme are major factors in this appointment decision and hence how much will be paid in fees overall.
Further fees are payable throughout the process, for example a fee in respect of the initial decision (Regulation 6), a fee in respect of the Examining authority handling an application (initial and final payments, Regulations 8 and 9). As noted above, these further fees will be dependent on number of Commissioners appointed to examine an application and where relevant on the length of the examination process.
Please also be aware that a fee is required for applications under section 52 and 53 of the Act 2008 for obtaining information about interests in land and rights of entry to land.
Q3) Where a scheme has separate 2 parts, the first being covered by the Exemption Regulations and the IPC are not consulted but part 2 requires IPC consent does the IPC require full details of the works taking place under the Exemption Regulations? Also will lines of lower voltages need to form part of the application if an IPC application is made (whole scheme) are Substations included or does Town & County planning apply?
Please see our comments in reply to Q1) above in relation to EIA and Habitats matters, and also see our answers to questions 4) and 6) below).
We would refer you to s.31 of the 2008 Act. It is a matter for an applicant or potential applicant to determine whether part(s) of a project fall within the terms of s.31 and so need a DCO.
Q4) Consultation Process. Please confirm the extent of which Local / County authorities need to be consulted as part of the process? (is it All adjoining Authorities at all levels Local and County?)
Yes, in summary all adjoining County and District Authorities would need to be consulted under s.42. In more detail:-
Sections 42 & 43 of the Act set out relevant persons & identification of local authorities to be consulted. Section 42 states:
The applicant must consult the following about the proposed application-
(a) Such persons as may be prescribed
(b) each Local Authority that is within section 43,
(c ) the Greater London Authority if the land is in Greater London, and
(d) Each person who is within one or more of the categories set out in section 44
Further to this, section 43 details the identification of local authorities for the purposes of s.42 consultation. These include both District and County Councils.
(1) A local authority is within this section if the land is in the authority's area.
(2) A local authority ("A") is within this section if -
(a) the land is in the area of another local authority ("B"), and
(b) any part of the boundary of A's area is also a part of the boundary of B's area.
It is therefore necessary for a potential applicant to consult both host ("B") authorities and any neighbouring ("A") authorities under s.42.
The CLG have also issued guidance on pre-application consultation which identifies the roles and responsibilities of Local Authorities: http://infrastructure.independent.gov.uk/wp-content/uploads/2009/08/guidancepreapplication.pdf
CLG Advice note 3 "scoping opinion consultation" also assists in the identification of consultation bodies.
http://infrastructure.independent.gov.uk/?page_id=2150
Q5 Press adverts as part of consultation/ submission. Should adverts be placed in All area papers of consultation or just those where the works take place?
Section 48 of the Act sets out the statutory duties placed on an applicant to publicise a proposed application. Regulation 4 of the Infrastructure Planning (Applications: Prescribed Forms and Procedure) Regulations 2009 prescribes the manner in which an applicant must publicise a proposed application: http://infrastructure.independent.gov.uk/wp-content/uploads/2009/08/uksi_20092264_en.pdf
Q6 Scoping, who decides when / where an EIA is required and is there scope for LPA to charge for this consultation?
Should a screening decision or scoping opinion be requested by a potential applicant for consent for a proposed NSIP development, such a request should be made to the IPC. If a screening decision is requested from the IPC, then it would be for the IPC to decide whether an Environmental Impact Assessment (EIA) is required.
An EIA is required if the proposed development falls with the criteria set out in Schedule 1 of The Infrastructure Planning (Environmental Impact Assessment) Regulations 2009. Schedule 2 of those Regulations sets out the types of development which may require an EIA. Schedule 2 paragraph 3(b) includes the transmission of electrical energy by overhead cables. The selection criteria for deciding whether an EIA is necessary for Schedule 2 development are set out in Schedule 3 of the EIA Regulations.
It is not within the remit of the IPC to determine if LPAs can or cannot charge for their consultation input.
Q7) Where a customer requires IPC consent does the Electrical connection for part of this if below 132kV? How does this process work when customer’s plans are likely to be further advanced than the network operator?
We would again refer you to s.31 of the 2008 Act. It is a matter for an applicant or potential applicant to determine whether part(s) of a project fall within the terms of s.31 and so need a DCO.
The second part of your question is primarily a commercial matter and not one we can comment or advise on, although policy (set out in a relevant National Policy Statement) may give advice on such matters in due course.
Q8 Form of submission, are these in paper format or electronic? Which forms should be used for an overhead line? Do they differ for New Lines as opposed to replacement / refurbishment of existing?
The form of application submission is set out in s.37(3) of the 2008 Act and in Regulations 5 and 6 of the Infrastructure Planning (Applications: Prescribed Forms and Procedure) Regulations 2009 (the APFP Regs.) and in Schedule 2 of those Regulations. You will see that there are detailed requirements as to the documents and plans etc. that have to accompany an application.
Guidance Note 2 issued by the IPC sets minimal standards for and provides guidance on application documents. At paragraph 11 this states that:-
'The applicant should submit 3 paper copies of the full application submissions together with a list of all of the application documents that accompany the prescribed form (see Schedule 2 of the APFP Regs). In addition, the IPC should be provided with an initial further 10 copies of the full application submissions compiled on DVDs (in a format to be agreed in advance with the IPC). The IPC may need to request additional paper or DVD copies on a case by case basis.'
http://infrastructure.independent.gov.uk/wp-content/uploads/2010/04/IPC-app-docs-guidance-note-2.pdf
CLG has also issued guidance on application documents (URL below).
http://infrastructure.independent.gov.uk/wp-content/uploads/2009/08/applicationformguidance.pdf
Q9) Does the IPC act for retention of lines as part of the application (i.e. where consent withdrawn by landowner where works require IPC consent) or DECC?
Please provide further explanation on this query so that we are able to provide you with a response We would though draw your attention to paragraph 6, of Part 1, Schedule 5 of the 2008 Act , keeping electric lines installed above ground, which can be a matter that is ancillary to development under the 2008 Act regime.
Q10) Where an existing overhead line is constructed to 132kv lattice steel tower design but running at a lower voltage would the IPC be expected to be consulted if the only change is the operating voltage?
We would refer you to our reply to Q 1) above in relation to when development consent for an NSIP might be required.
The consultation/notification provisions in relation to applications for NSIP development are set out in the 2008 Act and the related secondary legislation. We are unable to provide advice on consenting regimes other than the one introduced by the 2008 Act. You will therefore need to take your own advice as to what consultation/notification requirements might need to be complied with should consent not be required under the 2008 Act.
Q11)Would the IPC / DECC consider a 132kV trident wood pole application?
We are unable to express a view on behalf of DECC, and you would have to raise any query with them direct.
Subject to s.31, s.16(1) and (2), the exclusions in s.16(3) and the Exemptions Regulations, an overhead electric line on or above 132kv would be considered a NSIP and therefore come under the jurisdiction of the IPC.
I hope this information and the web links to legislative and guidance documents have been of use.
Should you require further advice, particularly regarding the questions which require further explanation, then please do not hesitate to e-mail me.
Kind regards