Wrexham Energy Centre
Concerns regarding the adequacy of the consultation process currently under-way in respect of the proposal by Wrexham Power Limited for a 299MW power station on the Wrexham Industrial Estate, following a submission from Scottish Power on 8 May referringto the possibility of new 132kV overhead lines.
Cyngor a roddwyd
The application is currently at the ?pre-application? stage and the applicant has just carried out a period of statutory consultation under s42, s47 and s48 of the Planning Act 2008, as amended, which ran between the 14 July 2014 and the 24 August 2014.
From the information we have from the developer, Wrexham Power Limited, we understand that they are expecting to submit their application towards the end of 2014. Until the application is submitted, your first point of contact should be the developer. In this instance it is noted that you have responded to their recent statutory consultation.
As advised in our previous correspondence to you the developer is required to carry out extensive statutory consultation (under s42, 44, 47 and 48 of the Planning Act 2008) on the proposals before submitting their application to the Planning Inspectorate. This involves providing information about the proposal to various statutory and non-statutory bodies and the wider community, and to have regard under s49 to questions and suggestions made in order to influence and inform the application ultimately submitted.
Before formally consulting (under s47 of the Planning Act) people living in the vicinity of the project, the developer prepared a Statement of Community Consultation (SOCC), having first consulted relevant local authorities about what it should contain. The purpose of the SOCC is to detail the consultation the developer intends to undertake with the local community about their project. The developer is then required to carry out their consultation with the local community as set out in the SOCC.
In light of the concerns raised in your correspondence about the adequacy of consultation carried out, you may also wish to notify the local authority, in this instance Wrexham County Borough Council, as they will later, along with other local authorities in the area have the opportunity, once the application is submitted, and is in its ?Acceptance? period to report to the Planning Inspectorate on their view of the adequacy of the developer?s pre-application consultation, measuring what was delivered against the commitments made in the SOCC.
During this ?Acceptance? period, the Planning Inspectorate on behalf of the Secretary of State has a 28 day period to determine whether to accept the application to progress to Examination. The adequacy of consultation is one of the aspects we look as part of our considerations.
Local authorities play an important role within the planning process by representing local communities. If the application reaches the examination stage, local authorities will be invited to participate in the examination by submitting their representations and a report that explains potential positive and negative impacts of the proposed development.
If accepted, during the examination period, everyone will have an opportunity to express their views directly to the appointed Examining Authority by submitting a relevant representation. The submission of a relevant representation will give you the status of an Interested Party, which allows participation in the examination of the application and your representations will be considered by the appointed Examining Authority during the Examination period.
In your email you also refer to the proposal?s connection to the electricity network through Scottish Power Energy networks (SPEN) and that SPEN in their communication to the Planning Inspectorate refer to the possibility of new 132kV overhead lines.
It will be helpful if I first refer to the project description and then I will refer to DCLG Guidance on the pre-application process, published in January 2013 and in place when the applicant carried out its statutory consultation.
The project description included in Chapter 4 of the Preliminary Environmental Information the applicant used for its recent statutory consultation is for;
? The power station complex, including the CCGT power station and a facility for combined heat and power supply to the Wrexham Industrial Estate; and
? The gas connection
As you are aware the applicant states that the power station will also need to connect to the local electricity network which will be progressed under a separate consenting strategy and will not be part of this Development Consent Order (DCO) application.
As the electricity connection is not part of this project that the applicant has consulted on, in accordance with Regulation 6(1)(a)(i) of the APFP Regulations, the applicant is required to draft a Grid Connection Statement which accompanies the application once it is submitted. The Grid Connection Statement needs to state who will be responsible for designing and building the connection to the electricity grid.
I understand that the applicant is currently in discussion with SPEN and have produced a joint feasibility study to gather information on the current network capability. To date, the applicant states that it has been identified that the local electricity network could accommodate the connection of the power station through upgrade works including the re-placement of existing overhead lines, installation of new underground cables and the replacement of conductors.
You will have the opportunity to comment on the Grid Connection Statement during examination and the Examining Authority has the discretion to exercise the likelihood of a connection gaining consent. The Environmental Statement that will be produced by the applicant will have to consider in-combination effects based on the level of information available to the applicant at the time.
Changes to the application
If the applicant decides to change the application that they have consulted on so that it includes a new Overhead Line, which is outside of the exemptions of the Overhead Lines (Exempt Installations) Order 2010 they will need to apply for a DCO through the Planning Act NSIP process and change the application to include the electricity connection component. This can be by way of a separate DCO application, or can be a component of the existing DCO application, as a DCO can include two NSIPs.
If a key component of an applicant?s proposal was incorrect or varied significantly from the information that was originally consulted on under s42, 44, 47 and 48 of the PA2008 the process requires the Planning Inspectorate to ensure that the application meets the required standard and, crucially, that the local community has been consulted adequately. Inadequate consultation can adversely affect acceptance of an application and can even constitute grounds for challenge later in the process.
In essence, if a developer consults on one scheme, but then submits an application for something quite different in scope, scale, nature or impact, then the Planning Inspectorate will review very carefully whether the consultation has been adequate. The Planning Inspectorate could refuse to accept an application for examination if they consider there has not been adequate consultation, and could even ask the applicant to re-submit, which would involve a new process of consultation.
There are also significant protections should an applicant seek to significantly change a project once it has been accepted for examination. In addition to that, if an applicant does not consult appropriately to the scale of any change then it risks the following once an application is made:
? Rejection of the application upon submission under section 55 of the Planning Act 2008. Note the tests in s55 (4) of the Planning Act regarding consultation.
? If accepted for examination, issues being raised which were not identified at pre-application that lead to a decision to refuse consent under sections 104 and 105 of the Planning Act.
? If consent is granted, a legal challenge under s118 of the Planning Act.
Guidance on the pre-application process for major infrastructure projects is contained in DCLG Planning Act 2008 Guidance on the Pre-Application process 2013. This is Guidance that was in place when the developer carried out its statutory consultation. However please note that this guidance has just been updated on 29 August 2014.
A link to the January 2013 Guidance is here and I have referred to relevant paragraphs of the guidance below;
A link to the revised guidance published on 29 August 2014 is here;
Paragraph 55 of the DCLG Guidance (Jan 2013) is of relevance to your query as it advises that applicants are not expected to repeat consultation rounds set out in their Statement of Community Consultation unless the project proposals have changed very substantially. For example, where proposals change to such a large degree that what is being taken forward is fundamentally different from what was consulted on, further consultation may well be needed. This may be necessary if, for example, new information arises which renders all previous options unworkable or invalid for some reason. When considering the need for additional consultation, applicants should use the degree of change, the effect on the local community and the level of public interest as guiding factors.
Paragraph 56 of the DCLG Guidance (Jan 2013) states that where a proposed application changes to such a large degree that the proposals could be considered a new application, the legitimacy of the consultation already carried out could be questioned. In such cases it advises that applicants should undertake further re-consultation on the new proposals, and should supply consultees with sufficient information to enable them to fully understand the nature of the change and any likely significant impacts (but not necessarily the full suite of consultation documents), and allow at least 28 days for consultees to respond.
Paragraph 57 of the DCLG Guidance (Jan 2013) advises that if the application only changes to a small degree, or if the change only affects part of the development, then it is not necessary for an applicant to undertake a full re-consultation. Where a proposed application is amended in light of consultation responses then, unless those amendments materially change the application or materially changes its impacts, the amendments themselves should not trigger a need for further consultation. Instead, the applicant should ensure that all affected statutory consultees and local communities are informed of the changes.