Republished December 2020 (version 6)
Status of this Advice Note
This Advice Note has no statutory status and forms part of a suite of advice provided by the Planning Inspectorate (the Inspectorate).
This version of Advice Note twelve supersedes all previous versions. It will be kept under review and updated when necessary.
The National Infrastructure planning process is a legal process governed by the Planning Act 2008 (‘PA2008’) and related legislation. In this Advice Note, the Inspectorate has made every effort to use everyday language wherever possible but there are references to a number of terms used in the context of the PA2008 process. A Glossary of terms is available on the Inspectorate’s National Infrastructure Planning website.
Summary of this Advice Note
The Infrastructure Planning (Environmental Impact Assessment) Regulations 2017 (‘the EIA Regulations’) transpose the requirements of the EIA Directive (2011/92/EU) governing statutory notification and consultation in respect of transboundary effects of development on European Economic Area Member States (‘EEA States’). Regulation 32 of the EIA Regulations establishes the procedural duties necessary where the Secretary of State (SoS) is of the view that a Nationally Significant Infrastructure Project (NSIP) is likely to have significant effects on the environment in an EEA State; or where an EEA State is of the view that its environment is likely to be significantly affected by an NSIP. The duties under Regulation 32 apply until the decision on the Development Consent Order (DCO) is made.
The United Kingdom (UK) is a signatory to the Espoo and Aarhus conventions and therefore, has obligations to engage with other signatory States and their public where relevant.
Jump to section:
- The Legal Context
- The EIA Regulation 32 Transboundary Process
3.1 Transboundary Screening
3.2 Identification of EEA States to be notified
3.3 Notifying EEA States
3.4 Consultation with EEA States
- Regulation 32: The Applicant’s Participation
4.1 Information to be provided
4.2 Applicant considerations
4.3 Translating documents
- Regulation 32: EEA States Participation
5.1 Responding to a notification request
5.2 Responding to a consultation request
5.3 Timeframe for responses by EEA States
- Special Arrangements for Nuclear NSIPS
- Public Participation
7.1 Notifying the Public
7.2 Participating in the DCO process
- Development Consent Order Decisions
This Advice Note explains the legal context, and the NSIP transboundary process (including special arrangements) that will be followed by the Inspectorate on behalf of the SoS during the pre-application, examination and recommendations stages of a DCO application. The Advice Note also explains how Applicants, States and the public can participate more generally in the DCO process where transboundary impacts occur.
1.1 This Advice Note sets out the procedures for transboundary notification and consultation associated with NSIP applications for development consent under the Planning Act 2008 (as amended) (‘PA2008’). The procedures are largely determined through adherence with the EIA Regulations. However, the Secretary of State (SoS) also has wider duties in accordance with the Espoo and Aarhus conventions (see sections 2, 6 and 7 of this Advice Note). The procedures described in this Advice Note do not affect the individual right of persons to register for and participate in an examination nor do they affect the discretion of the Examining Authority in this regard.
1.2 If a Proposed Development has the potential to give rise to significant effects on the environment in EEA State(s), EIA Regulation 32 will apply. Regulation 32 sets out the obligations on the SoS to notify and consult EEA State(s) which need to be considered alongside the statutory timeframes as prescribed by the PA2008.
1.3 This Advice Note addresses the following in relation to transboundary impacts:
- The legal context;
- The NSIP transboundary process;
- EIA Regulation 32;
- The special arrangements in relation to nuclear NSIPs;
- Public participation;
- Regulation 32: The Applicant’s Participation;
- Regulation 32: EEA States Participation;
- Participating in the DCO process; and
- Development Consent Order Decisions.
2.1 The UK consists of England, Scotland, Wales and Northern Ireland and does not include the Crown Dependencies of the Isle of Man and the Bailiwicks of Jersey and Guernsey, nor are these Crown Dependencies EEA States.
2.2 The UK is a signatory to the United Nations Economic Commission for Europe (UNECE) Convention on Environmental Impact Assessment in a Transboundary Context. The Convention was adopted in 1991 in the Finnish city of Espoo and is therefore known as the ‘Espoo Convention’.
2.3 The UK is also a signatory to the Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (the ‘Aarhus Convention’) and its Protocol which provide people with the rights to easily access information, participate effectively in decision-making in environmental matters and to seek justice if their rights are violated.
2.5 The European Union (EU) Directive 2011/92/EU (as amended) (the EIA Directive) implements the Espoo and Aarhus Conventions in the EU and is transposed into UK law through the EIA Regulations and the European Union (Withdrawal) Act (2018 and 2020).
2.6 EIA Regulation 14 requires that an application for an order granting development consent for ‘EIA development’ must be accompanied by an environmental statement (ES). The ES must include the information stipulated by Regulation 14 including any additional information specified in Schedule 4 (where relevant). Schedule 4 requires that the description of likely significant effects should include those which are of a transboundary nature (more information on EIA development and transboundary effects in the ES is included in the Planning Inspectorate’s (the Inspectorate) Advice Note seven: EIA Process, Preliminary Environmental Information and Environmental Statements.
2.7 All NSIP decisions in relation to EIA Development are subject to the procedural requirements set out in Regulation 32 of the EIA Regulations. Regulation 32 places a statutory duty on the SoS to notify and consult EEA States where they are of the view that:
- The development is likely to have significant effects on the environment in an EEA State and one of the events in Regulation 6(2) occurs (Regulation 32(1)(a)), which is that the SoS:
- is notified under Regulation 8(1)(b) of the EIA Regulations that an ES is to be provided; or
- adopts a screening opinion under Regulation 8(1)(a) of the EIA Regulations to the effect that development is EIA development; or
- makes a direction that development is EIA development pursuant to Regulation 7 of the EIA Regulations; or
- a development otherwise comes to the attention of the SoS as being the subject of an application for EIA development and the SoS is of the view that the development is likely to have significant effects on the environment in an EEA State (Regulation 32(1)(b)); or
- the SoS is so requested by an EEA State likely to be significantly affected by such development (Regulation 32(1) (c)).
2.8 The EEA comprises all of the Member States of the European Union (EU) as well as Iceland, Liechtenstein and Norway. Switzerland and the UK are not EEA Member States.
2.9 In addition to the EIA Directive, Council Directive 92/43/EEC on the conservation of natural habitats and of wild fauna and flora (the Habitats Directive) was transposed into UK law through The Conservation of Habitats and Species Regulations 2017 (the Habitats Regulations) and The Conservation of Offshore Marine Habitats and Species Regulations 2017 (the Offshore Marine Conservation Regulations). The Offshore Marine Conservation Regulations apply beyond UK territorial waters (12 nautical miles). Following the UK’s departure from the European Union on 31 December 2020, the Habitats Regulations and Offshore Marine Conservation Regulations were amended by the Conservation of Habitats and Species (Amendment) (EU Exit) Regulations 2019.
2.10 The Habitats Regulations and Offshore Marine Conservation Regulations require, where applicable, competent authorities before granting consent for a plan or project, to carry out an appropriate assessment in circumstances where the plan or project is likely to have a significant effect on a European site or a European Marine site (either alone or in combination with other plans or projects).
2.11 The Department of Energy and Climate Change (DECC) (now the Department of Business, Energy and Industrial Strategy (BEIS)) has released guidelines which specify that the SoS, when considering whether to consent energy projects, will apply the principles of the Habitats Directive to any energy development where significant effects on the National Site Network or candidate sites in EEA States are likely. BEIS considers that this approach is most applicable to offshore wind farm developments.
2.12 The consideration of transboundary effects relevant to the Habitats Regulations and Offshore Marine Conservation Regulations are discussed further in the Inspectorate’s Advice Note ten: Habitats Regulations Assessment.
3.1 During pre-application and before a recommendation to the SoS is made, the functions required by EIA Regulation 32 are carried out by the Inspectorate on behalf of the SoS.
3.2 Where the Inspectorate is of the view that the NSIP is likely to have significant effects on the environment of an EEA State(s), they must:
- ‘As soon as possible’ send to the EEA State(s) a description of the development together with any available information on its possible significant effects on the environment in their State together with information on the nature of the decision which may be taken (Regulation 32(2)(a)); and
- Publish a notice in the London Gazette (and the Edinburgh Gazette if the development is in Scotland) setting out the information about the proposed development (Regulation 32(2)(b)).
3.3 Having received this notification, the EEA State(s) can, within a ‘reasonable time’, indicate whether it wishes to participate in the Regulation 32 procedure (Regulation 32(2)(c)). Where an EEA State(s) wishes to participate, the Inspectorate will:
- ‘As soon as possible’ send that State a copy of the application, details of the authority responsible for deciding the application, the ES prepared in accordance with Schedule 4 of the EIA Regulations and any relevant information on the Regulation 32 procedures;
- Consult with the EEA State(s) regarding the potential significant effects of the development on the environment in that State and the measures to reduce or eliminate such effects (Regulation 32(6)(a));
- Agree a reasonable time period for the duration of the consultation (Regulation 32(6)(b)); and
- Inform the EEA State(s), as consulted, of the decision (Regulation 32(7)).
3.4 Regulation 32 and the determination of a DCO under the PA2008 are distinct and separate. The duties under Regulation 32 are continuous throughout all stages of the DCO application, from pre-application through to the SoS’ decision on whether or not to grant development consent. This may result in multiple transboundary screenings, and potentially multiple rounds of consultation with EEA States, for a proposed NSIP, in light of new relevant information provided throughout the DCO process. The duties established under Regulation 32 are not subject to statutory timeframes and are not subject to the deadlines established during examination of an NSIP.
3.5 The practical application of these procedures in the context of the PA2008 regime is considered in further detail throughout this Advice Note.
3.1.1 The Inspectorate will become aware of an NSIP project that is EIA development as a result of the following events:
- determination that a project is EIA development following a request by an Applicant for a screening opinion (Regulation 8(1)(a)); or
- receipt of a notification that an Applicant is to provide an ES in respect of the development (Regulation 8(1)(b)); or
- a direction by the SoS that the development is EIA development (Regulation 7).
3.1.2 When one of these events occurs (confirming that the development is EIA development), it will be necessary for the Inspectorate to determine whether or not the development is likely to have significant effects on the environment in an EEA State.
3.1.3 Where a proposed NSIP is not considered to be EIA Development as defined by the EIA Regulations, the requirements of Regulation 32 will only apply if an EEA State likely to be significantly affected by such development so requests.
3.1.4 All NSIPs that are EIA development will be subject to a transboundary screening process determined and undertaken by the Inspectorate on behalf of the SoS. Where the SoS is satisfied that the likelihood of transboundary effects is extremely low, the transboundary screening decision will be included in a scoping opinion (if one is requested) or as a separate, short proforma where a scoping opinion is not requested. If the SoS is not satisfied that the likelihood of transboundary effects is extremely low, the transboundary screening decision will be provided in a separate long proforma. The position in respect of the likelihood of transboundary effects will remain under review pending any new or materially different information coming to light. However, the Inspectorate will not update the screening decision where it remains valid.
3.1.5 The transboundary screening process will identify if the Proposed Development is likely to have significant effects on the environment in an EEA State in accordance with Regulation 32.
3.1.6 The Inspectorate may also choose to screen a project for likely significant transboundary effects at any time particularly if new relevant information becomes available.
3.1.7 Annex 1 (ODT, 40kb) and Annex 2 (ODT, 37kb) to this Advice Note set out the long and short proformas respectively with the criteria and relevant considerations that will be taken into account by the Inspectorate in determining the potential for significant effects on the environment in EEA state(s).
3.2.1 The Inspectorate will identify the EEA States to be notified under Regulation 32 primarily on the basis of the type of NSIP, its location and the nature of the receiving environment (see Annex 1 (ODT, 40kb) to this Advice Note). The Inspectorate will exercise reasonable discretion to determine likely significant effects in an EEA State, based in part upon the information supplied by the Applicant. In exercising this discretion and identifying that an NSIP is ‘likely to have significant effects’ on the environment in any EEA States, this should be taken as meaning that, in the view of the Inspectorate, there is a possibility (adopting a precautionary approach) that the development could have an effect, and not that a development will definitely have an effect.
3.3.1 Where the Inspectorate identifies a likely significant effect on the environment in an EEA State(s), it will notify the relevant EEA State(s). The notification will provide relevant information regarding the Proposed Development and the PA2008 process and invite the EEA State(s) to participate in the procedure. The relevant information will be publicised in the London Gazette (and Edinburgh Gazette as appropriate) in accordance with Regulation 32(2).
3.3.2 The information which must be sent to relevant EEA State(s) as part of the notification includes:
- a description of the development together with available information as to the possible significant effects on other EEA State(s); and
- information on the nature of the decision which may be taken.
3.3.3 Although not a statutory requirement, the Inspectorate will also provide information about the PA2008 process. The Inspectorate will assume that the EEA State(s) does not wish to participate in the Regulation 32 transboundary process (Article 3.4 of the Espoo Convention) if no response is received from EEA State(s) within the stipulated time in the notification letter. The Inspectorate considers 6 weeks to be a reasonable time period for responding to the notification but would accept reasonable extensions to this period where necessary.
3.3.4 The Inspectorate will use the contacts on the UNECE website for making notifications to EEA State(s).
3.3.5 The Proposed Development will be re-screened for transboundary impacts following acceptance of the application and/or if relevant new information becomes available. If necessary, the Inspectorate will re-notify EEA State(s) that it has re-screened the proposed NSIP for transboundary effects. In these circumstances, relevant EEA State(s) will have another opportunity to request participation in the Regulation 32 procedure. The Inspectorate will also re-notify those relevant States who had previously expressed no wish to participate, in case their position changes in light of new relevant information, on which the re-screening(s) is based. If an EEA State responds to the notification and expresses a wish to be consulted then the Inspectorate will consult with the EEA State(s) irrespective of any later screening decision(s).
3.3.6 As previously noted, the requirements under Regulation 32 can also be triggered by a request from an EEA State who considers that their environment is likely to experience significant effects from the Proposed Development (Regulation 32(1)(c)). See Section 5 of this Advice Note for further details.
3.3.7 An EEA State may also indicate that although it does not wish to be involved in the examination but instead wishes to be kept informed about the NSIP. In this circumstance, the EEA State will be provided with an electronic link to the project webpage on the National Infrastructure Planning website, which will provide information about the progress of the proposed NSIP.
3.4.1 Consultation with EEA States cannot begin until the Inspectorate has the information required to meet this consultation duty, and this will only occur once the application for development consent has been accepted for examination. An EEA State(s) that confirms it wishes to participate in the Regulation 32 transboundary procedure, must be consulted to ensure that they have an opportunity (before development consent is granted) to seek the opinion of its public (further information in relation on public participation is provided in section 7 of this Advice Note) and relevant authorities about the DCO application and its transboundary impacts. The Inspectorate will agree the consultation period with relevant EEA State(s). As a guide, the Inspectorate considers 6 weeks to be a reasonable time period.
3.4.2 The EEA State(s) will be provided with the following information as part of the consultation (if not provided earlier):
- an electronic copy of the application including the ES; and
- details of the procedures to be followed under the PA2008.
3.4.3 The application documents, including the ES will be available on the National Infrastructure Planning website and links will be provided in the consultation correspondence to signpost the EEA State(s) to the relevant parts of the website.
3.4.4 Information will be provided by the Inspectorate to the relevant EEA State(s) in English unless a translation is requested and justified by the affected State (further information in relation on translating documents is provided in section 6.3 of this Advice Note).
4.1 Information to be provided
4.1.1 The Applicant has no formal role under the Regulation 32 process, as the duties prescribed by Regulation 32 in notifying and consulting with an EEA State(s) on potential transboundary impacts, lie with the Inspectorate, on behalf of the SoS as described above.
4.1.2 However, in fulfilling these duties, the Inspectorate uses the information provided by the Applicant to assist in determining the potential for likely significant effects on the environment in EEA States. To this end, the Applicant is requested to provide information to the Inspectorate to enable a view to be reached as to whether the development is likely to have significant transboundary effects on EEA States. Information about the potential for transboundary effects should be provided by the Applicant as part of:
- The scoping request, if a scoping opinion is requested by the Applicant from the Inspectorate under Regulation 8 of the EIA Regulations, and
- The suite of documents accompanying the application for development consent.
4.1.3 If such information is not provided voluntarily, or a clear and reasoned justification as to why it is not considered necessary, the Inspectorate may need to seek further information on which to determine whether or not there are likely to be significant effects on the environment in an EEA State, and will adopt a precautionary approach in doing so.
4.2.1 The Applicant may wish to consider whether to undertake their own consultation with governmental divisions and interest groups within relevant EEA State(s) and/or other relevant states (those that are parties to Espoo or Aarhus Conventions according to the UNECE website).
4.2.2 This could be informed by an Applicant’s own research into environmental issues and may also be informed by the transboundary screening decisions issued by the Inspectorate.
4.2.3 Annex 1 (ODT, 40kb) to this Advice Note sets out the criteria and relevant considerations that will be taken into account by the Inspectorate when undertaking transboundary screening. Where the Inspectorate is of the view that the proposed NSIP is likely to have a significant effect on the environment in an EEA State(s), the Applicant may wish to engage with certain appropriate bodies within those EEA state(s) and/or other relevant states. Any engagement/consultation may form part of the Applicant’s statutory or non-statutory consultation under the pre-application stage of the DCO process and should be evidenced in the consultation report submitted with the DCO application. A Consultation Report is required under s.37(3)c of the PA 2008.
4.2.4 The Applicant is advised to undertake such consultation to ensure that the potential issues and concerns are addressed, where possible, before the DCO application is submitted, and seek to consider issues relating to transboundary effects, which otherwise may become issues during the examination.
4.3.1 Applicants should be aware that for an efficient and timely examination, it will be in their interest to ensure that any affected EEA State(s) and/or other relevant state(s), including their public, understand the details of the scheme including appropriate safeguards and mitigation measures proposed, and that they have the opportunity to participate. This will require the transmission of information. Although English may be the most appropriate language for documents, being the most widely understood, especially where more than one State is affected, the need for translation will depend upon the language differences of the EEA State(s) and/or other relevant state(s).
4.3. 2 The Inspectorate does not wish to impose any unnecessary burden on Applicants by requesting the translation of application documents into one or more languages. However, in accordance with precedent and good practice, the Inspectorate will expect Applicants (where it is reasonable to do so) to organise and meet the costs of translating documents produced by the Applicant, if a reasonable request for translation is made to the Inspectorate by an affected EEA State(s) and/or other relevant state(s) including their public. The Inspectorate will similarly expect Applicants to meet the costs of any translations required to notify the public (see section 7.1 of this Advice Note).
5.1.1 EEA States are requested to respond to a notification request from the Inspectorate, where the Inspectorate is of the view that the proposed NSIP is likely to have a significant effect on the environment in their State. The response should inform the Inspectorate whether or not they wish to participate in the process under Regulation 32. The same applies in relation to Espoo / Aarhus states who have been informed about a proposed NSIP. Responses are requested within the timeframe stated in the notification letter and should be sent marked for the attention of the Environmental Services Team at the Inspectorate using the contact details provided in the notification letter.
5.1.2 If a notified EEA State confirms that they wish to participate in the Regulation 32 process, the SoS will acknowledge this response and if the DCO application is accepted, will consult the EEA State on the proposed NSIP. If a notified EEA State confirms that they do not wish to participate in the Regulation 32 process, the Inspectorate will acknowledge this response and will not contact the EEA State again unless new relevant information relating to likely significant effects on the environment in their State becomes available.
5.2.1 EEA States are requested to respond to a consultation request from the Inspectorate. If they confirm that they wish to participate in the Regulation 32 process they should provide comments on the following (Regulation 32(6)):
- The potential effects of the proposed development on the environment of their State; and
- The measures envisaged in order to reduce or eliminate such effects.
5.3.1 Regulation 32 requires that the EEA State should be given ‘reasonable time’ to provide the opinions of its public and of the authorities referred to in Article 6 (1) of the EIA Directive (Regulation 32(5)).
5.3.2 Unless the relevant EEA State(s) provides reasonable representations that a longer period should be allowed, the time period for responding to the notification and consultation requests will be 6 weeks. However, this is not a statutory deadline and EEA States may request a reasonable extension.
6.1 Special arrangements are applied to the transboundary impact process for nuclear electricity generating station NSIPs (nuclear NSIP) defined under section 15 of the PA2008 and Schedule 1 of the EIA Regulations. The special arrangements take into account the specific characteristics of a nuclear NSIP and the provisions of the Espoo and Aarhus Conventions.
6.2 Each nuclear NSIP will be screened using the long list proforma (Annex 1 (ODT, 40kb) to this Advice Note) in accordance with the process described in section 3.1 above. Where the Inspectorate is of the view that a proposed nuclear NSIP is likely to have a significant effect on the environment in an EEA State(s), the Inspectorate will notify and (if necessary) consult that EEA State(s) specifically in accordance with Regulation 32, following the process as outlined in Section 3 of this Advice Note.
6.3 In any event, the Inspectorate will, as a matter of course, inform all relevant states party to the UNECE Espoo and Aarhus conventions of a proposed nuclear NSIP (which will include non-EEA States). The relevant states will be provided with the same information as would be given to EEA State(s) being notified or consulted under EIA Regulation 32, and the same ability to participate in the process should they wish to do so (see section 7.2 of this Advice Note).
6.4 In addition to the above and as a matter of good practice, the Inspectorate will also inform the Crown Dependencies (the Isle of Man and the Bailiwicks of Jersey and Guernsey) that the proposed nuclear NSIP has been screened for significant transboundary effects.
7.1.1 The Espoo and Aarhus Conventions set out provisions for public participation in the EIA procedure. The Inspectorate will (where relevant) invite participation in the PA2008 process from the public in EEA State(s) and any other Convention states. Public participation will occur:
- where the proposed development is, in the view of the Inspectorate, likely to have a significant effect on the environment in other specific EEA State(s); and
- where the proposed development is a nuclear NSIP.
7.1.2 The Inspectorate will issue a press release to the media in the EEA State(s) and/or other relevant states. This will be published, alongside any relevant translations, on the gov.uk website and linked to the British Embassy websites in any relevant states. The press release will include information on the transboundary screening assessment including links to the Inspectorate’s National Infrastructure Planning Website, and details of how their public can express their views on the application for development consent and (if they so wish) how they may formally participate in the PA2008 examination process. Alongside these actions Applicants will be asked to publish a press notice in the print media of each EEA state(s) where a significant effect on their environment identified. In the case of a nuclear NSIP, the Applicant will also be asked to publish a press notice in all neighbouring states of the UK regardless of whether significant effects are identified17. On this basis members of the public are afforded the same ability as the UK public to participate in the process should they wish to do so (see section 7.2 of this Advice Note).
7.2.1 During the examination of an NSIP the Examining Authority (appointed by the Secretary of State for Levelling Up, Housing and Communities under Section 61 of the PA 2008) has a statutory duty to complete its examination within a 6 month period. The examination is a process governed by statute during which careful consideration is given to all the important and relevant matters. The latter include the representations of all ‘interested parties’, any evidence submitted and answers provided to questions set out in writing and explained at hearings. During the examination stage, all ‘interested parties’ will be invited to provide further written evidence, if they wish, about the issues they identified in their representations. An ‘interested party’ is defined under s.102 of the PA 2008.
7.2.2 An EEA State(s), other relevant state(s) and any person(s) or groups may participate and express their views in relation to the examination of the DCO application by registering as an ‘interested party’, or by being invited to the examination (at the discretion of the Examining Authority) as an ‘other person’ under Regulation 6(1) of The Infrastructure Planning (Examination Procedure) Rules 2010). Non-participation by an EEA State(s) in the Regulation 32 process does not preclude any state(s), person(s) or groups from participating and expressing their views in relation to the examination of the NSIP DCO application.
7.2.3 Where an EEA State(s) or other relevant state(s) has registered to become an ‘interested party’, the Examining Authority may direct questions to them with regard to consideration of transboundary effects during the examination, to inform their recommendation to the SoS regarding whether or not development consent should be granted.
7.2.4 The Inspectorate’s Advice Note 8 series provides further advice on the NSIP process, including on how to register and become an ‘interested party’:
- Advice Note 8.1: How the process works
- Advice Note 8.2: Responding to the developer’s pre-application consultation
- Advice Note 8.3: How to register and become an interested party in an application
- Advice Note 8.4: Influencing how an application will be examined – the Preliminary Meeting
- Advice Note 8.5: Participating in the examination.
7.2.5 As described above, the Examining Authority has the discretion under the PA2008 to specifically invite ‘other persons’ to be involved in the examination process, where those persons have not registered as ‘interested parties’. This may include inviting the EEA State(s) and other relevant state(s) to the preliminary meeting for the examination.
7.2.6 Where the appointed Examining Authority is not satisfied before the conclusion of the examination that measures have been provided to avoid, reduce and if possible offset any significant adverse transboundary effects of the NSIP, there may be no alternative at that stage but to recommend refusal of development consent. The SoS must not grant development consent, if to do so, would lead to the UK being in breach of its international obligations under s.104(4) of the PA 2008.
8.1 Following determination of the DCO application, the SoS will inform those EEA State(s) which have been consulted of the decision and forward a copy of the decision notice in accordance with EIA Regulation 32(7). The SoS also has a duty to inform all ‘interested parties’ (as defined under the PA2008) of the decision, which will also be made available on the Inspectorate’s National Infrastructure Planning Website.
8.2 In addition to this and in accordance with Regulation 31(2), a summary of how the results of consultation, particularly those received from EEA State(s) have been incorporated or addressed in respect of the application, will be made available for public inspection via the Inspectorate’s National Infrastructure Planning Website.