Advice to Keith Morrison

Enquiry

• From: Keith Morrison
• Date advice given: 29 July 2013
• Enquiry type: Email

Query regarding the submission of s46 notification and the timing of the publication of the Statement of Community Consultation in relation to East Anglia 3 and 4.

Advice given

Mr Morrison,

Having considered your email, my understanding is that East Anglia Three and Four intend to submit their draft Statement of Community Consultation (SoCC) under s47 of the Planning Act 2008 (PA 2008) to the relevant local authorities in early August. This would happen before being in a position to provide detailed Preliminary Environmental Information (PEI) to those authorities, before commencing s42 consultation and prior to submitting a s46 notification. We understand that s42 consultation and the s46 notification is currently anticipated to be provided in the second quarter of 2014. Having reviewed this approach, I would like to provide the following comments.

The only express legal obligation relating to PEI is that the SoCC must, under Reg. 10 of the Infrastructure Planning (EIA) Regulations 2009 (the EIA Regulations), set out how the applicant intends to publicise and consult on the PEI. PEI is defined in Regulation 2 of the EIA Regulations as meaning the information referred to in Part 1 of Schedule 4 which has been compiled by the applicant. When an applicant consults the relevant local authorities about the draft SoCC the PEI compiled at that time, if any, 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. There is no requirement, for example, for the PEI to be in the form of a draft Environmental Statement. However, the more detailed the PEI is at the time of consultation on the draft SoCC the greater the likelihood is of obtaining an informed response from the local authority about how to consult on the PEI.

A SoCC needs to state whether the proposal is EIA development and, as noted above, how the PEI is to be publicised and consulted upon (Reg 10 of the EIA Regulations). Hence, when an applicant consults a local authority on a draft SoCC the local authority will ideally need to have the PEI available at that time so that its response can be an informed one.

The consultation of local authorities under s42 and contact with local authorities on the draft SoCC under s47 can occur in parallel, although they do not have to. In any event, the timing of the s42 consultation (with prescribed consultees, local authorities, landowners and others with interests in land ), consultation of local authorities on the draft SoCC and the s47 consultation itself should be carefully considered as this may have a bearing on the level of detail provided within the PEI.

Local authorities may advise on early s47 consultation or the applicant may wish to benefit from early s42 consultation, for example in order to take account of consultation responses in relation to likely key EIA issues (such as flood risk) in the formulation of the scheme. In either situation, it is for applicants to decide at what stage in refining their scheme they wish to commence and carry out statutory pre-application consultation and publicity (under s42, s47and s48) and at what point(s) they feel such consultation and publicity will be most effective and appropriate.

The applicant should bear in mind that if they consult local authorities on the draft SoCC at an early stage in the process they may not at that time have compiled detailed information in respect of the PEI. Furthermore, the local authorities comments on how to consult on the PEI may not be fully informed. Some applicants are adopting a two-stage (or multi-stage) approach to pre-application consultation which includes carrying out s47 consultation before and after the EIA scoping process. This iterative approach to s47 consultation can assist applicants in compiling a more detailed PEI, which can then be consulted on in accordance with the SoCC at a later and subsequent stage of consultation. It is likely that if the PEI is more detailed the consultation on environmental effects will at that stage be more effective.

A staged approach, with a clear explanation in the SoCC on how and when East Anglia Three and Four plan to consult on detailed PEI, and with the s47 consultation then carried out in accordance with the proposals set out in the SoCC, may assist in relation to the matters outlined and the points raised in your query.

Also, as a point of clarification, s46 notification is required on or before commencing s42 consultation and not s47 consultation. I would also advise that you consider the points raised previously on the use of the words 'statutory' and 'non-statutory'.