Rampion Offshore Wind Farm
It emerged following submission of the application to the Planning Inspectorate that there had been a number of omissions in respect of the s42 consultation carried out by the applicant at the pre-application stage. The Planning Inspectorate gave E.ON s51 advice by teleconference on 20 December 2012 and again on 2 January 2013.
The Planning Inspectorate gave the following advice under s51 of the Planning Act 2008 as amended (PA2008).
? The acceptance decision under s55 of PA2008 is a decision of the Secretary of State. As such any s51 advice given at this stage is without prejudice to any future decision of the Secretary of State.
? The Inspectorate has carried out initial checks of the Consultation Report. The apparent omissions in respect of the applicant?s duties under s42 of the PA2008 appear to constitute a procedural flaw related to the applicant?s requirements under s55(3)(e) of the PA2008. This defect presents a risk that the application will not be able to satisfy all of the acceptance tests under s55 of the PA2008.
? The s55 acceptance decision must be based on the application as submitted and no additional information can be submitted by the applicant during the acceptance period.
? It is for the applicant to decide how to proceed. E.ON should seek its own legal advice about the risks involved in pursuing the options now available to it, including: 1. take no action and allow the Inspectorate to complete the acceptance process; or 2. withdraw the application and address the omissions with the aim of submitting a new application.
? The applicant should seek its own legal advice about the potential risks to the project
even in the event that the application was accepted for examination, including risks to the examination programme and the risk of High Court challenge to any future decision on the application by the Secretary of State under s118 of the PA2008.
? The Inspectorate gave advice about the process that could be followed should the applicant decide to withdraw the application:
o In this scenario the acceptance process would stop and the application documents would be returned to the applicant.
o The Inspectorate could provide E.ON with the names of organisations that it appears should have been consulted under s42 to assist the applicant in cross-checking with its own records and rectifying the deficiency.
o E.ON proposed that it may be possible to undertake targeted consultation for a minimum of 28 days with the missed parties using the original consultation materials with a covering letter of explanation. The Inspectorate advised that this seemed a pragmatic way forward and that E.ON would need to be aware of its duties under s49 of the PA2008 and be prepared to update the application documents in light of any consultation responses received.
o If the applicant chose to withdraw the application the Inspectorate could give further advice about any other apparent procedural omissions or matters for clarification within the application that could be rectified in a new application.