Today’s entry looks at the new advice notes published by the Planning Inspectorate for DCO projects, as well as the Welsh Government’s consultation on infrastructure projects.
Citizens Advice
The Planning Inspectorate have been busy bees, adding the following to the updated advice notes:
- Working with public bodies (plus appendices).
- Appendices (in addition to the above)
- Cumulative effects assessment.
- Transboundary impacts.
- Habitats Regulations Assessment.
- Water Framework Directive.
- EIA Notification and Consultation (plus Annex 1 and Annex 2).
- (Plus Annex 1)
- (Plus Annex 2)
- Commitments Register.
- Scoping Solar Development.
It will take time to digest the changes, but here are a few things that stood out.
The first of those, ‘working with public bodies’, doesn’t say anything too surprising though some might raise their eyebrows that the pre-application period is intended to include ‘consider[ing] the applicant’s draft Development Consent Order (DCO), including requirements’ which is not a legal requirement, or indeed the ordinary practice of most promoters or something required by the Government’s statutory pre-application guidance. That advice note still also refers to a ‘schedule of consents’, which is usually provided in the medium of a consents and agreements position statement.
The cumulative effects assessment advice note contains the familiar hierarchy of ‘most’ to ‘least’ certain projects which should be considered in a cumulative assessment in an EIA. Interestingly there is a new category in the ‘most certain’ projects list which not entirely clearly states that projects where ‘all refusals subject to appeal procedures not yet determined’ should also be included. Query whether this means an appealed refusal should be included. The lack of clarity here may raise some questions (though, not that that category of project was in the previous, and updated, advice note on HRA).
On the HRA advice note, it probably won’t changes things except at the margins but the screening assessment stage is said to ask whether there is ‘no possible effect on / no potential effect pathways to any European site’ (the previous advice note referred to a ‘conceivable’ effect). The section on the derogations case does not highlight the effect of the new ‘critical national priority’ tests in the energy National Policy Statements, but promoters and consultees should be aware of that given the significant colouring it has to the relevant tests.
The ‘commitments register’ advice note, perhaps one of the most significant changes in the pack as it is new, sets out that a register of commitments should be produced. This should be included as part of the scoping request (‘the first iteration is submitted with a scoping request setting out where applicants rely on commitments as the basis for scoping matters out or refining the scope of assessment’). There is even a template document to help promoters and interested parties out which is worth reviewing. It broadly looks like a environmental commitments actions and register, except that it includes additional requirements on ‘Compliance Date and Details.’
Finally, the ‘Technical Advice Page for Scoping Solar Development’ is also a newcomer in the list of advice notes. It includes a Solar Scoping Table which provides examples of supporting information that can assist the Planning Inspectorate when considering whether to agree to scope aspects out of the EIA for solar NSIPs. That is very helpful indeed. The other element that is particularly helpful is the steer that for glint & glare electro-magnetic fields, and lighting do not require their own ES chapters, but should form their own appendix which is cross-referred to where appropriate.
Only three of the old advice notes remain in force and will be replaced in a final batch later this year: 7 (EIA), 9 (Rochdale envelope) and 15 (DCO drafting). The government has said that the last tranche will contain advice on:
- environmental statements;
- the environmental impact assessment process;
- DCO drafting;
- achieving good design; and
- further technical advice for solar projects.
Cymru-Consultation
The Welsh Government has published a consultation on implementing the Infrastructure (Wales) Act 2024, the new piece of legislation that will bring ‘Infrastructure Consents’ into the Welsh major projects planning regime. We provided a presentation on the new regime, but in brief it introduces something that in large parts walks, talks and sounds like the DCO regime (and the end result is a ‘Infrastructure Consent Order’, or ICO).
The document is 121 pages, with 15 chapters.
Here’s a few useful things to note about what is proposed for the regime:
- there will be transitional provisions so that (for example) if an application for planning permission (either TCPA or TWA) has been made or notice of an application has been published under the Electricity Act before the IC regime comes into place, the previous regime would apply;
- for those projects wishing to be directed into the IC regime, guidance is given that a project that is either‘s likely to raise significant concerns due to its location or complexity’ or entails ‘new technology or novel circumstances’ will be capable of being directed into the IC regime (akin to a Section 35 direction in England);
- importantly, the proposal is that the legislation should list the project categories, and not the thresholds for such a direction. Guidance would then provide indicative thresholds for projects that are directed into the IC regime – this includes, in the consultation, a proposal to include ‘construction of a generating station, where the generating station is expected to have an installed capacity of between 10 MW and 50 MW’ as well as a hydrogen ‘facility is capable of generating 15 tonnes of H2 per day’;
- the consultation document proposes minimum requirements for consultation which include opening and maintain a website, public events, notifications to landowners and relevant local and statutory authorities (for a period of 42 days, longer than the 28 day period under the DCO regime);
- the application documents list looks roughly like a DCO application, except that for generating stations there is a proposal for a requirement to include ‘a statement of who will be responsible for designing and building the connection to the electricity grid’;
- the application validation stage (ie, the equivalent of the acceptance stage) will have a 42 day period where the development is EIA development (longer than the DCO equivalent) and 28 days for non-EIA development; and
- a fees schedule is included (the regime is cheaper than the DCO regime as a whole, and the pre-application services are billed at £73 per hour).
There is much more in the document – good thing you have until 13 December 2024 to consider it. We will be running an updated webinar on the regime, so please keep your eyes peeled for that!
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