NuGens Moorside Project in West Cumbria
Can NuGen re-notify the Secreatray of State under ssection 46 of the Planning Act 2008?
Section 46 of the Planning Act 2008 states that developers of nationally significant infrastructure projects should notify the Secretary of State (SoS) about a proposed application. Developers have a duty to send the Secretary of State the same information as that sent to s42 consultees as the same time or before undertaking s42 consultation.
In terms of the evolution of the Moorside project, a significant amount of time has now passed from the original notification and you have informed us that there are new project investors and a reactor design has now been chosen. Also, some of the organisations on the original prescribed consultee list (APFP Regs Sch 1) have also changed or been abolished since the original s46 notification. In those circumstances a re-notification of the project would not be regarded as an unreasonable or incongruous procedural step.
If NuGen do intend to re notify the SoS I would advise you to consider carefully the point at which you wish to begin your formal consultation and therefore when you notify under s46. It would not be helpful in procedural terms if the SoS were subsequently to receive multiple s46 notifications. This could serve to confuse prescribed consultees and the communities affected.
For the avoidance of doubt, the section 42 consultation already undertaken could not be relied upon as formal consultation if you were to re notify the SoS under s46. It would be informal consultation.
Please see Advice Note 16 for further advice about notifying the SoS under s 46 of the Planning Act 2008.