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Advice to Advance Group UK Limited

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Enquiry

From
Advance Group UK Limited
Date advice given
15 February 2011
Enquiry type
Email

Pipelines

Q1) If a pipeline is 800mm and over 40km in length then it is deemed NSIP by the Planning Act 2008. By the same criteria it is deemed EIA by the Infrastructure Planning (EIA) Regs 2009. Consent is then via MIPU under the Planning Act 2008 with an Environmental Statement. If a pipeline is less than this threshold the Infrastructure Planning (EIA) Regs 2009 lists “oil and gas pipeline installations (not Schedule 1)” as Schedule 2. Does this mean that ALL pipeline projects need to be screened by MIPU, even if they are 100m long? If not, where is the threshold ?

Q2) If the Screening process determines that no EIA is needed, what then? Do we revert back to the Public Gas Transporter (EIA) Regs 1999, as amended 2007 (the previous regime for larger pipelines) or do we construct under permitted development rights under the GPDO 1995 (the previous regime for smaller pipelines and also the process previously adopted for projects Screened as non-EIA).

Q3) Likewise, if a facility is huge and processing 4.5 million cu m per day then it is deemed NSIP and will no doubt also need EIA as a Schedule 2 development under Infrastructure Planning (EIA) Regs 2009. If an AGI is less that this threshold the Infrastructure Planning (EIA) Regs 2009 lists “industrial installations for carrying gas” as Schedule 2.

Does this mean that ALL AGI projects need to be screened by MIPU, even if they are a simple above-ground valve plus security fence ? If not, where is the threshold?

Q4) If the Screening process determines that no EIA is needed, what then? Do we revert back to the Town and Country Planning Act 1990 and seek a planning permission from the local planning authority (the previous regime)? Or do we have deemed permission to build from MIPU? If we had a middle-sized compound could the LPA request an EIA under the standard Town and Country Planning (Environmental Impact Assessment Regs) 1999, as amended, even though the project isn’t NSIP?

General

Q5) Are the Public Gas Transporter (EIA) Regs 1999, as amended 2007 (the previous regime for larger pipelines) now defunct in England or do we still use them in some way?

Q6) Is the IPC now MIPU or is there a difference?

Advice given

Pipelines

A1) An applicant will need to identify whether a proposed project is a Nationally Significant Infrastructure Project ("NSIP") in accordance with the categories set out in s.14 of the Planning Act 2008 ("the Act") by identifying the type of project and the threshold criteria that needs to be satisfied for the project to qualify as an NSIP. For example, a gas transporter pipeline would be an NSIP requiring a Development Consent Order ("DCO") from the Infrastructure Planning Commission ("the IPC") if the pipeline is more than 800mm in diameter and more than 40km in length (s.20(3)(a) of the Act). If the project does not meet the threshold criteria set out in the Act (s.15-30, depending on the type of project), then a DCO is not required from the IPC. The applicant will then need to apply for planning permission, if appropriate, under a different planning regime for example the Town and Country Planning Act 1990.

Once an applicant has determined if the project is an NSIP they will then need to determine if the project is an EIA development. Regulation 6(1) of The Infrastructure Planning (EIA) Regulations 2009 (the "EIA Regulations"), requires the applicant to either request a screening opinion from the IPC (Regulation 6(1)(a)), even if the applicant believes that the NSIP is a non-EIA Development, or alternatively notify the IPC that the development is an EIA development (Regulation 6(1)(b)).

A proposed project may fall within either Schedule 1 of the EIA Regulations, in which case the project is an EIA development, or within Schedule 2, where the development may be an EIA development depending on the whether the development is likely to have significant effect on the environment by virtue of factors such as its nature, size or location. If the proposed development falls within the description of a Schedule 2 development, the IPC will determine if the project is an EIA development taking into account the screening criteria set out in Schedule 3 of the EIA Regulations (Regulation 7(2)). Where a screening opinion is requested from the IPC and the IPC determines that the project is an EIA development, the IPC will notify the Secretary of State (Regulation 6(7)).

Please note that whether a pipeline project is an NSIP under s.20 or s.21 of the Act will depend on whether the applicant is a "gas transporter" as required under s.20 of the Act. If not, the proposed pipeline project may quality as an NSIP under s.21 of the Act instead.

Further information is provided on making screening and scoping requests to the IPC in the IPC's Advice Note 7: Environmental Impact Assessment, Screening and Scoping. A copy of this Advice Note is available on the IPC’s website - http://infrastructure.independent.gov.uk/legislation-and-advice/our-guidance-and-advice/.

A2) If a project meets the relevant NSIP threshold criteria set out in the Act for the project type then it will be an NSIP and must be submitted to the IPC for a DCO. Not all NSIPs will be an EIA development requiring the production of an Environmental Statement to be submitted with the draft DCO application. In the event of the IPC determining that an NSIP is not an EIA development, it may still recommend to the applicant that certain supporting information should be provided on environmental issues, such as landscape and ecology.

If the proposed pipeline does not constitute a NSIP, under either s.20 or s.21 of the Act, an application will need to be made under another consenting regime, if required.

AGI Compounds

A3) As with pipelines projects discussed above, the applicant must first determine if the project is an NSIP in accordance with the categories set out in s.14 of the Planning Act 2008 ("the Act") by identify the type of project and the threshold criteria that needs to be satisfied for the project to qualify as an NSIP. For example, a construction of a gas reception facility within England with a maximum flow rate of at least 4.5million cu m per day would qualify as an NSIP requiring a DCO from the IPC (s.19(1) of the Act).

The applicant will then need to either notify the IPC that the development is an EIA development and that it intends to produce an ES or ask the IPC for a screening opinion (Regulation 6 of the EIA Regulations). Following a screening request the IPC will follow the approach set out above in the response to Question 1.

If the AGI compound does not constitute a NSIP, under Section 19 of the Act, an application will need to be made under another consenting regime, if required.

A4) As with gas pipelines, if a project meets the relevant threshold criteria set out in the Act for the project type then it will be an NSIP and must be submitted to the IPC for a DCO. Not all NSIPs will be an EIA development requiring the production of an Environmental Statement to be submitted with the draft DCO application to the IPC. In the event of the IPC determining that a proposal is not an EIA development, it may still recommend to the applicant that certain supporting information should be provided on environmental issues, such as landscape and ecology.

If the development does not constitute a NSIP, under Section 19 of the Act, an application will need to be made under the appropriate previous consenting regime, if required.

General

A5) The Public Gas Transport (EIA) Regulations 1999 are not connected to the DCO process. The relevant EIA Regulations under the DCO process are The Infrastructure Planning (EIA) Regulations 2009.

A6) Under the Localism Bill, the IPC as an independent body will be abolished and replaced by a Major Infrastructure Planning Unit (MIPU) within the Planning Inspectorate. This is currently anticipated to take place in April 2012. Until this time the IPC will continue to function and examine applications as normal.

Please note that the IPC cannot provide confirmation on whether a project is a NSIP and recommend that applicant's determine this using the criteria under the relevant sections of the Act and by taking their own legal advice.