Since September 2012, prospective applicants of Nationally Significant Infrastructure Projects (NSIPs) located in England, or in both England and Wales, have been able to request and agree ‘Evidence Plans’ with the relevant statutory nature conservation bodies (SNCBs).
An Evidence Plan is a way to agree and record upfront the information the Applicant needs to supply to the Planning Inspectorate (the Inspectorate) when applying for a Development Consent Order (DCO) so that a Habitats Regulations Assessment (HRA) of the application can be efficiently carried out.
This gives greater confidence that information necessary to ensure compliance with the requirements of The Conservation of Habitats and Species Regulations 2017 (as amended) or The Conservation of Offshore Marine Habitats and Species Regulations 2017 (as amended) (collectively termed ‘the Habitats Regulations’) is provided.
At the Acceptance stage it helps applicants to meet the requirement to provide sufficient information (as explained in the Inspectorate’s Advice Note 10: Habitats Regulations Assessment relevant to NSIPs) in their application, so the Examining Authority can recommend to the Secretary of State:
- Whether or not to accept the application for examination; and
- whether an appropriate assessment is required.
An agreed Evidence Plan will reduce the risk of NSIPs being delayed by issues relating to the Habitats Regulations during the evolution of a proposed DCO application, by:
- Providing greater certainty to all parties on the amount and range of evidence an applicant should collect.
- Helping address and agree issues earlier on in pre-application so that robust, timely decisions can be taken.
- Focusing the evidence requirements so they are proportionate to the NSIP’s potential impacts and costs to applicants are minimised.
- Assisting the agreement of issues during pre-application; this will help reduce the complexity of issues considered during examination, which is governed by strict statutory deadlines.
Evidence plans do not replace or duplicate existing requirements. A plan should be designed to fit the DCO application process, including the formal pre-application consultation processes and Environmental Impact Assessment (EIA) scoping. It is also recommended that the Applicant considers how information collected in order to complete the Evidence Plan may prove helpful in preparing an Environmental Statement.
Overview of the Evidence Plan process
The option to request and agree an Evidence Plan is available to all applicants for proposed NSIPs that are in England, or England and Wales, and entering the Pre-application stage (ie where the Inspectorate has been informally notified of a project and it has been made available on the National Infrastructure Planning website). It is a voluntary process and an Evidence Plan is a non-legally binding agreement between the Applicant and the relevant SNCB or SNCBs.
Note: Natural England is the relevant SNCB on land and up to 12 nautical miles from the coast in England, and Natural Resources Wales is the equivalent SNCB for Wales. Beyond 12 nautical miles the Joint Nature Conservation Committee (JNCC) is the relevant SNCB (apart from for renewable energy projects, where JNCC has delegated its statutory authority to Natural England).
The Inspectorate is the Government agency responsible for dealing with procedural aspects of NSIP applications on behalf of the Secretary of State. The Inspectorate should, therefore, be given the opportunity to comment on the draft plan without becoming party to the agreement. Additionally, where there is disagreement between an applicant and the relevant SNCB or SNCBs, the Inspectorate may host tri-partite meetings to seek to resolve the issues.
Where other consents and/ or permits to the DCO application are required, other consenting bodies that may also be competent authorities (referred hereafter as ‘other consenting bodies’) should be given the opportunity by the Applicant to comment on a draft Evidence Plan. Specific working relationships with these bodies should be agreed on a case-by-case basis. Other consenting bodies can become party to the plan but there is no obligation on them for this to happen.
In addition, the relevant SNCB or SNCBs will engage with other agencies, such as the Environment Agency in England, on specific evidence requirements where they have the lead expertise. The Applicant, as a matter of best practice, should also identify any environmental non-governmental organisations (NGOs) that it would be worthwhile to engage.
There are four stages to the Evidence Plan process which are described more fully below. These are:
- The Applicant requests an Evidence Plan.
- The Applicant and relevant SNCB or SNCBs agree the initial structure and content of the Evidence Plan.
- The Applicant gathers and analyses the evidence and the relevant SNCB or SNCBs assess the evidence through an iterative process. The Applicant and SNCBs agree where specific issues are resolved.
- The Evidence Plan process is finalised and agreed by the Applicant and SNCB or SNCBs during the Pre-application stage.
It should be recognised that an Evidence Plan will not preclude additional evidence being asked for by the Examining Authority at the Examination stage, or the Secretary of State at the appropriate assessment stage. The aim of the Evidence Plan is to increase confidence in the information provided in the application and reduce the need for additional information being sought.
In participating in the Evidence Plan process, applicants are expected to:
- Engage actively and constructively with SNCBs, the Inspectorate and other consenting bodies throughout the process.
- Collect the evidence and analyse it using agreed methodologies, adhering to agreed timelines.
- Accept that evidence requirements may change throughout the process, due to changes in the proposed NSIP application and/ or as a result of evidence highlighting new areas of concern.
In participating in the Evidence Plan process, SNCBs are expected to:
- Seek pragmatic solutions (eg to uncertainties and/ or changing evidence).
- Take a proportionate approach, setting appropriate evidence levels, assessment methodologies and interpretation criteria, seeking evidence that is justified and consistent with the matters being considered.
- Only change evidence requirements following:
- The assessment of evidence provided by the Applicant identifying new areas of concern.
- Relevant evidence, information or research coming to light that would have an impact on what information is required.
- A change to the NSIP proposal that is likely to change the potential impacts and therefore the evidence requirements to address these.
- Engage pro-actively, giving clear guidance and advice, aiming to resolve issues in pre-application and adhering to agreed timelines specified in the Evidence Plan.
- Be clear about the work they will charge for and the rate, or rates, they will charge and communicate these before costs are incurred by a developer.
Implementing the Evidence Plan process
Stage 1: Requesting an Evidence Plan
Any applicant of a proposed NSIP in England, or England and Wales, can request an Evidence Plan. It will be particularly relevant to NSIPs where impacts may be complex, large amounts of evidence may be required or there are a number of uncertainties. A request for an Evidence Plan should be made at the start of the Pre-application stage (after notifying the Inspectorate on an informal basis) by contacting the relevant SNCB or SNCBs.
Note: Natural England can be contacted at [email protected], Natural Resources Wales can be contacted at https://naturalresources.wales/about-us/contact-us and the JNCC can be contacted at https://jncc.gov.uk/contact.
Once a request has been received and the SNCB or SNCBs have agreed to work on a plan, the SNCB or SNCBs will inform the Inspectorate and any other relevant consenting bodies. The SNCB or SNCBs, in conjunction with the Applicant, will agree a time period for agreement of the Evidence Plan. A guide time of three months is suggested; however, a longer timescale is acceptable. In Natural England all work undertaken as part of an Evidence Plan will fall under Natural England’s charged services.
Stage 2: Agreeing an Evidence Plan
The Evidence Plan is a non-legally binding agreement between the NSIP Applicant and the relevant SNCB or SNCBs. The Applicant prepares and maintains the plan on an ongoing basis until it is considered complete. The initial plan is agreed within three months, unless a longer timeframe has been agreed between the Applicant and relevant SNCBs.
Once the Evidence Plan has been agreed, it will be published on the relevant project page on the National Infrastructure Planning website.
The Applicant should give the Inspectorate and any other consenting bodies the opportunity to comment on the content of the draft Evidence Plan. In addition, it is good practice for the Applicant to discuss the draft Evidence Plan with relevant environmental NGOs so that it addresses issues they may raise at an early stage. This could avoid unexpected and sometimes unnecessary requests for further information later in the process.
The primary aim of the Evidence Plan is to enable an informed assessment to be undertaken of an NSIP’s potential impacts on a European site or European sites (ie Special Areas of Conservation, Special Protection Areas and/ or Ramsar sites).
The Evidence Plan, which will evolve as the project develops, should set out how that will be achieved by covering:
- The specific matters the evidence gathering aims to address (eg which European site or European sites and how the site’s conservation objectives may be affected) and how the evidence collected will be used to inform the various stages set out in the Inspectorate’s Advice Note 10. This should have particular regard to the advice as to the conservation objectives for the European site or European sites published by the SNCBs.
- How the Applicant will collect and analyse the evidence. This could include specifying survey methodologies, timetable of surveys, approaches to modelling data, dealing with uncertainty and precaution, and the format in which to share and present the evidence.
- Any data sharing and availability issues such as confidentiality, data licensing and sharing of raw data.
- How the evidence will be assessed by the relevant SNCB or SNCBs and the process for reviewing progress, including the timetable for SNCB feedback.
- The circumstances in which changes to evidence requirements are discussed and agreed, including recording matters that do not need to be addressed unless new evidence, or changes to the project, so indicate.
- Any other known projects to be taken into account and how this will be done eg for assessing in-combination impacts.
- The responsibilities of all parties to the agreement.
- The timetable for implementing and reviewing the plan.
The Evidence Plan should reflect the stage of development reached by the project. For projects early in the development process it may take the form of a ‘plan for a plan’ setting out, for instance, how evidence requirements will be identified and agreed.
The Evidence Plan should also reflect the assessment needs when it is agreed eg for some NSIPs it may be unclear whether or not a European site could be affected by the project. In this case the Evidence Plan should first focus on gathering the information needed to allow screening for likely significant effects (LSE) to be undertaken and then be revisited as this information is reviewed with the relevant SNCB or SNCBs.
Throughout this stage the Applicant or SNCB may inform the Inspectorate if there are difficulties in agreeing the plan within the agreed timescale. If agreement has not been reached, then the Inspectorate may assist to facilitate agreement. The Inspectorate will not take on an arbitration role as this could undermine the independence of the advice provided by the SNCB or SNCBs.
Further detail on the content of an Evidence Plan is provided at Appendix 1.
Stage 3: Gathering evidence, analysis and feedback
At this stage the Evidence Plan will be reviewed and updated as evidence is collected and analysed. Interim results should also be shared with others such as the Inspectorate, other consenting bodies and, if appropriate, environmental NGOs.
This approach ensures there is continual analysis, assessment and feedback of the evidence collected and is designed to avoid unexpected issues being raised late during the Pre-application stage or during the Examination stage.
To achieve this, reviews should be built into the Evidence Plan at regular intervals. This will help to ensure evidence requirements remain proportionate to the NSIP’s potential impacts. It can also help identify the need for mitigation measures at an early stage in the project’s development. Any changes to an Evidence Plan must be agreed by all parties to the plan. In addition, the Inspectorate and other consenting bodies should also be given the opportunity to comment on updated Evidence Plans.
Communication between the Applicant and the relevant SNCB or SNCBs should be planned and scheduled regularly throughout pre-application, in particular to coincide with new information becoming available eg when results emerge from a survey. This approach will help the Applicant and relevant SNCB or SNCBs to:
- Determine whether to continue or halt specific survey work and/ or analysis.
- Establish that there is sufficient information and that no further information is required to inform the DCO application.
- Agree to change the evidence requirements and collect additional evidence, including how this should be collected and analysed, updating the plan and timetable as necessary. It is envisaged that changes will be restricted to dealing with:
- Additional evidence (eg from the interim results of evidence collected) such as additional species and/ or habitats found to be present on the site.
- Evidence, information or research that has emerged outside the Evidence Plan (eg from environmental NGOs) which would affect the information required and would need to be taken into account in the decision making process (ie decisions must be based on best available science).
- A significant change or modification to the initial NSIP proposal that is likely to change the potential impacts of the NSIP and, therefore, the evidence requirements to address these.
- Alterations in the method of assessment and data analysis undertaken by the Applicant.
- Identify any potentially adverse effects and agree steps to assess the suitability of potential mitigation measures. This may help to agree mitigation proposals during the Pre-application stage. In addition, it may allow early consideration of a derogation permissible under the Habitats Regulations, for example, at regulations 64 and 68. See Defra’s guidance on Alternative solutions, imperative reasons of overriding public interest (IROPI) and compensatory measures for more information.
- Formally agree that specific issues have been resolved for inclusion in the Statement or Statements of Common Ground (eg impacts on x can be scoped out; mitigation measures mean that impacts on y are not considered significant).
If disagreements arise over changes to the requirements in the Evidence Plan the Inspectorate can be approached to seek to facilitate agreement between the parties. As in Stage 2, the Inspectorate will not have an arbitration role. As an Evidence Plan is updated and agreed, the Applicant will ensure the most up-to-date version is sent to the Inspectorate to be made available on the relevant project page on the National Infrastructure Planning website.
Stage 4: Finalising the Evidence Plan process
The Evidence Plan process should be considered finalised when all evidence agreed in the plan has been collected, analysed using agreed methodologies, reviewed and agreed by both the Applicant and SNCB or SNCBs during the Pre-application stage. The aim is that on completion of the Evidence Plan:
- Discussions should have started on mitigation proposals, if needed, and possibly have been concluded.
- Written agreement is in place through a Statement or Statements of Common Ground that sets out:
- The LSEs which have been identified and defined in sufficient detail to adequately inform whether an appropriate assessment is required. Where this is not the case, the uncertainties and/ or gaps that remain should be clearly set out along with the reasons they exist and any agreed approaches to dealing with the uncertainties and/ or gaps.
- Which issues are insignificant, which ones have been resolved (ie mitigation measures agreed) and which ones remain outstanding and why (eg where it has not been possible to collect the required evidence or disagreement over the impacts remains).
The completed Evidence Plan process could play an important role in preparing the application documents to be submitted to the Inspectorate. The outputs from the Evidence Plan may contribute to:
- The Applicant’s Environmental Statement and HRA report (if required).
- A Statement or Statements of Common Ground which confirm that potential impacts have been properly addressed, which issues have been resolved, and which issues are outstanding.
- Identifying and agreeing any mitigation measures and informing, where appropriate, any discussion of derogations under the Habitats Regulations.
Where relevant, the Evidence Plan may also help to inform:
- The Report on the Implications for European Sites (RIES) prepared by the Examining Authority during the examination of an accepted application.
- Any appropriate assessment undertaken by the Secretary of State as competent authority prior to deciding whether to grant development consent and to make a DCO.
The finalised Evidence Plan should be sent to the Inspectorate for publication on the relevant project page on the National Infrastructure Planning website. All Interested Parties should be made aware of its publication by the Applicant.
Roles and responsibilities
- Decides whether it needs an Evidence Plan.
- Discusses the need for the plan with the SNCB or SNCBs and the potential impacts on European sites in light of their conservation objectives.
- Drafts and maintains the plan on an ongoing basis until it is considered complete.
- Collects, analyses, reviews and shares evidence at regular intervals. Updates the relevant SNCB or SNCBs, the Inspectorate and other consenting bodies of modifications to the NSIP.
- Meets with the relevant SNCB or SNCBs and others such as other consenting bodies and environmental NGOs to discuss progress and, if necessary, agree any changes to evidence requirements.
- Works with the relevant SNCB or SNCBs to resolve as many issues as possible at the Pre-application stage and sets out the issues agreed, or not agreed, in the Statement or Statements of Common Ground, using the Evidence Plan as a mechanism to do this.
- Finalises the Evidence Plan and uses it to inform its DCO application and any HRA report.
- Emails the finalised Evidence Plan to the Inspectorate copying in all parties involved.
The Statutory Nature Conservation Body
- Engages with an Applicant at the start of the Pre-application stage to discuss the project, any charged services and potential likely impacts on a European site or European sites and their conservation objectives.
- Negotiates and agrees an Evidence Plan within an agreed time period (three months or longer) ensuring that evidence demands are proportionate to the potential impacts of the proposed NSIP.
- Assesses and reviews evidence provided by the Applicant, giving feedback on progress.
- Proposes changes to the evidence requirements which remain proportionate and are based on findings of the evidence assessed.
- Works with the Applicant to resolve as many issues as possible during pre-application, including through the Statement or Statements of Common Ground.
The Planning Inspectorate
- Where possible, review and comment on an Evidence Plan on a case-by-case basis.
- If necessary, and when requested will seek to facilitate agreement of an Evidence Plan.
Other consenting bodies (which may also be competent authorities)
- Review and comment on Evidence Plans throughout the Pre-application stage. They can become formal parties to the Evidence Plan though this is at the competent authorities’ discretion.
- Environmental NGOs may hold data and evidence that may be relevant to the assessment of an NSIP under the Habitats Regulations. It is, therefore, good practice for the Applicant to involve environmental NGOs at an early stage of pre-application, including by seeking their views on an Evidence Plan. Applicants are not obliged to consult environmental NGOs on the Evidence Plan and do so at their discretion.
Any enquiries regarding this document should be sent to Natural England at: [email protected]
Appendix 1: Content of Evidence Plans
The Evidence Plan should identify the relevant SNCB or SNCBs and any other consenting bodies, which may also be competent authorities, that will be involved during pre-application and working arrangements agreed. This should include:
- How the Applicant will provide evidence to the SNCB or SNCBs, including the format in which it will be provided. This should include any data sharing and availability issues such as confidentiality, data licensing and sharing of raw data.
- How the SNCB or SNCBs will assess and feedback views on the evidence to the Applicant. This should include agreeing the specific timelines for the SNCB or SNCBs to respond to the Applicant.
- The circumstances in which an Evidence Plan may change.
- Timescales and planned communication.
- Agreeing which elements of the plan form part of the statutory engagement from an SNCB or other body (eg Environment Agency) and which elements would fall under charging if applicable.
- Which SNCB will act as the lead in discussing and negotiating the Evidence Plan where the proposal falls within the responsibilities of two or more SNCBs.
For those NSIPs which are located partly in England and partly in Wales, or located entirely in England but which may impact negatively on European sites in Wales or Scotland, the working arrangements should also include the relevant devolved administration’s SNCB.
Any environmental NGOs should be identified by the Applicant so that they can engage with them during the Evidence Plan process and get their input at an early stage.
In agreeing the Evidence Plan, the Applicant should consider and agree with the relevant SNCB or SNCBs as to how it will fit within the formal pre-application NSIP consultation processes.
Scope of evidence required
The intention is to establish and agree the matters which need addressing and the areas the Applicant will need to provide evidence on to allow assessment by the relevant SNCB or SNCBs in pre-application.
Matters to consider could include:
- Which European protected sites the proposed NSIP may have a likely significant effect on;
- what are the features for which the site has been designated (including habitats, plant, animal or bird species);
- the SNCB’s advice as to the Conservation Objectives for those European Sites;
- which features could be impacted; and
- where is the potential risk of being unable to avoid adverse effect on integrity.
The Evidence Plan should also list any other plans or projects to be taken into account eg in assessing in-combination impacts. Note that:
- The Evidence Plan is a ‘living document’ and the scope of evidence can be changed.
- Changes may emerge from analysis of evidence and/ or changes in project design.
- Any new requirements should be confirmed formally through the process and all parties must agree to them.
- Changes can lessen as well as widen the scope of evidence required (eg additional species of bird found to be impacted or marine mammal not found in the area and not impacted).
Approach to uncertainties and likely significant effect
The Evidence Plan should agree the approach to key terms such as:
- What constitutes no likely significant effect that means that specific evidence does not need (or no longer needs) to be collected.
- Identify the criteria where it is not possible to ascertain no adverse effect on integrity (alone or in-combination).
- What may constitute an adverse effect that requires mitigation measures to be agreed.
- Other known projects to be taken into account eg in assessing cumulative/ in-combination impacts.
- Any likely uncertainties, including how they should be dealt with by the Applicant, taking into account the precautionary principle.
Evidence to be collected
The Evidence Plan should set out the evidence that needs to be collected (eg type of surveys, timetable of surveys, approaches to modelling and the format of providing the evidence to the relevant SNCB) to meet the agreed scope of evidence.
The list of evidence to be collected should be updated throughout the process and could be set out in the plan as a table with the following column headings:
- Scope and Aims
- Assessment methods
- Type of Survey
- Level of detail (eg sample numbers)
- Review points
‘Review points’ should be built into the Evidence Plan to allow the SNCB or SNCBs to feedback to the Applicant. This could include discussion of:
- Whether to continue with the survey (eg if no effects are found after a certain period of survey work has been completed).
- Whether to expand evidence collection/ scope as additional impacts are identified or conclusions are uncertain and further evidence could provide more certainty.
- Mitigation measures to reduce any adverse effects.
Methodology and standards for data analysis, outputs and consultations
This should include the agreed methods for assessment and analysis along with the models to be used to assist this and input parameters.
The details, and timing, of consultations which will feed into the review meetings and support the Applicant’s Habitats Regulations Assessment report should also be discussed and agreed.
Timetable for implementing and reviewing the plan
The overall timetable for the Evidence Plan will need to take into account the time needed to undertake the required evidence collection, the date the Applicant expects to submit its application to the Inspectorate and the formal pre-application NSIP consultation processes.
The timetable should allow sufficient time throughout pre-application to:
- Analyse the evidence robustly and identify potentially significant impacts.
- Collect additional evidence if required.
- Resolve as many outstanding issues as possible eg mitigation measures.
The schedule for the review meetings should be agreed. These should be increased, or decreased, depending on the results of the evidence collected and progress towards completion of the plan.