Able Marine Energy Park

The list below includes a record of advice we have provided for this project. For a list of all advice issued by the Planning Inspectorate, including non-project related advice, please go to the Register of advice page.

There is a statutory duty, under section 51 of the Planning Act 2008, to record the advice that is given in relation to an application or a potential application, including the name of the person who requested the advice, and to make this publicly available.

Preview
Enquiry received via meeting
response has attachments
A meeting took place between Able Humber Ports Limited and the Planning Inspectorate to discuss a potential change to the DCO
A note of the meeting is attached.

08 March 2018
Able Humber Ports Limited - anon.
Enquiry received via email
I am finding it very difficult to negotiate my way through both the site and the process.
The Planning Inspectorate stated a couple of weeks ago that the proposed wetland creation site was not part of this application and the panel viewd it as adifferent planning application. Why then am finding on the IPC site consistent references to it and also how is it possible for this proposed wetland
site to be considered in the Amep development. Is this anotherchange to the application or not.
I understand your frustrations with our website and can only apologise. As I have indicated previously, hard copies of the documents are deposited locally for people to view.

With regard to the applicants revised arrangements for temporary mitigation land I advise you as follows.

The proposed temporary mitigation land at Old Little Humber Farm has been removed from the application and is no longer a matter for consideration. The applicant has indicated that they have applied to East Riding of Yorkshire Council for permission to create a temporary mitigation site at Cherry Cobb. This is entirely separate from the DCO application being considered by the Examining Authority and they are not responsible for consenting that proposal. Despite this, it is a relevant and important matter in the consideration of the wider scheme and the information is available to the Examining Authority so as to allow them to understand the whole package of proposed compensation measures.

23 October 2012
Stephen Kirkwood
Enquiry received via email
Have the new Able UK proposals at Cherry Cobb Sands been screened for
EIA purposes? If so, by whom and what was the verdict (bearing in mind the
'part of a bigger scheme' clause in the Regs)?
I am not clear whether you are referring explicitly to the proposed compensation site at Cherry Cobb Sands or the applicants proposed temporary wet grassland site adjacent, now the subject of a separate planning application to the local authority. If the latter, you will appreciate that it is not appropriate for me to comment on this.

On the subject of the compensation site at Cherry Cobb Sands which is enclosed within the DCO application, you will also appreciate that I can not be drawn on this as it would be inappropriate during the course of the examination. The matter of whether the proposed works within the redline of the DCO application has been sufficiently assessed is a matter for the examination however as you will be aware the applicant is proposing to submit a report (Black and Veatch 3) on 12 October.

05 October 2012
David Hickling
Enquiry received via email
A letter has arrived at 1 Prince Albert Gardens today and been delivered to me. However, I am not the correct recipient.

Would you kindly advise as to whom this letter should go to and I will hand deliver as there are some tight time scales that need action.
I'm afraid we have no record of a relevant name for your organisation hence why previous correspondence has been addressed to the Chief Executive, under the assumption that the letter would be delegated to the correct person. We have written to you due to legislative requirements to consult yourselves on this matter, however your organisation has not been involved in previous consultations and therefore no further action need be taken unless you see fit.

14 August 2012
Care Plus (NHS) - Jay Sadler
Enquiry received via email
response has attachments
We write as the directors of Groveport Logistics Limited, the owners and operators of Groveport, being a large port complex on the River Trent. We consider ourselves to be a significant Humber port and, as such, we are extremely concerned that we have not been consulted whatsoever in respect of the above proposal.



Having heard very brief details in the local media and then discussed this matter with fellow port operators, it has become apparent in recent days that this proposal goes much further than a single use facility in respect of offshore wind technology. Having read some of the representations on the website, it is apparent that we have severe grounds for concern.



Having not been consulted, we have not had the opportunity to consider this in full detail, take appropriate professional advice and then make a detailed representation. However, we wish to register our interest and concern at the earliest opportunity and to be included in any future correspondence.



We intend to take professional advice and then submit a detailed representation, but let us make clear now that our main concern is that the proposed Development Consent Order and related documents appear to facilitate the development of a considerable general purpose port facility that could be disastrous to existing port operators in the Humber area.



Having read some of the representations filed online, it appears that the Environmental Statement assesses the proposed development as an exclusively wind energy facility, but the Development Consent Order does not apply this restriction. If this is the case then it would appear that the Wind Energy element of the proposal is being used to counteract environmental concerns that a proposed general purpose port development would undoubtedly encounter.

Please acknowledge receipt of this email and our inclusion in the attendance list for the Specific Issue Hearing on Thursday 12th July 2012.
For the purposes of this examination you are not defined as a statutory party who is able to apply to become an Interested Party following an invitation by the Examining Authority (see s.89(2A) of the Planning Act 2008 (PA2008)) nor do you have an interest in the land as defined by s.102(B) of PA2008. Finally, as you did not register a relevant representation during the registration period you are not an Interested Party by virtue of that process.

As a result of the above, any representation you submit to the examination will not be a Written Representation. Despite this it will be published on our website although it will include a note making it clear that it does not have the formal status of a Written Representation. I can confirm that it will be made available to the Panel and, should they consider it necessary, they may ask questions in relation to it.

With regard to the hearing scheduled for 12 July to discuss the draft Development Consent Order I can confirm that you have the right to attend the meeting and have noted your intention to attend. You should however note that this is subject to ensuring that all Interested Parties are accommodated first and that you do not have a formal right to speak at the hearing. Finally, I should advise you that you will need to ensure you monitor our website for details of the hearing and examination itself; please follow this link - [attachment 1]

29 June 2012
Groveport Logistics Ltd - Martin Rees
Enquiry received via email
Thank you for forwarding a copy of the Rule 8 letter to me. I would be grateful if you would clarify/amend question 72 in Appendix D1 as follows:

(a) The Rosper Road/Humber Road junction is not part of the strategic road network and therefore this question should be primarily for North Lincolnshire Council as the local highway authority.

(b) This refers to 'A160/A1173/Arcady Road', whereas I assume it should refer to 'A160/A1173/Manby Road'.

(c) The A1173/North Moss Lane/Kiln Lane junction is not part of the strategic road network and therefore this question should be primarily for North Lincolnshire Council as the local highway authority.
Having raised your query with the lead member of the Panel I can confirm that the specific questions within question 72 were raised in the context of your statement cited at the beginning of the question (i.e. your relevant representation). Should you feel that it is more appropriate for North Lincolnshire Council to respond, or for you to do so jointly where appropriate, then I can confirm that this would be acceptable.

With regard to the reference to Arcady Road you are correct, this is an unfortunate misprint and should read as Manby Road.

In the interests of openness within the examination process we will publish your query and this reply on our website.

I trust the above assists however should you have any further queries please do not hesitate to contact me.

22 June 2012
Highways Agency - Daniel Gaunt
Enquiry received via email
Thank you for forwarding a copy of the Rule 8 letter to me. I would be grateful if you would clarify/amend question 72 in Appendix D1 as follows:

(a) The Rosper Road/Humber Road junction is not part of the strategic road network and therefore this question should be primarily for North Lincolnshire Council as the local highway authority.

(b) This refers to 'A160/A1173/Arcady Road', whereas I assume it should refer to 'A160/A1173/Manby Road'.

(c) The A1173/North Moss Lane/Kiln Lane junction is not part of the strategic road network and therefore this question should be primarily for North Lincolnshire Council as the local highway authority.
Having raised your query with the lead member of the Panel I can confirm that the specific questions within question 72 were raised in the context of your statement cited at the beginning of the question (i.e. your relevant representation). Should you feel that it is more appropriate for North Lincolnshire Council to respond, or for you to do so jointly where appropriate, then I can confirm that this would be acceptable.

With regard to the reference to Arcady Road you are correct, this is an unfortunate misprint and should read as Manby Road.

In the interests of openness within the examination process we will publish your query and this reply on our website.

22 June 2012
Highways Agency - Daniel Gaunt
Enquiry received via email
response has attachments
An email was received with comments concerning the Able Marine Energy Park proposal
Thank you for your email.
You will need to register your views by completing a 'Relevant Representation' form which can be submitted online via the following link. [attachment 1]

Your representation needs to include a summary of what you agree and/or disagree with in the application. By completing the 'Registration and Relevant Representation form' and ensuring it is complete and received by the IPC before 23:59 02 April 2012 you will be registered as an 'interested party' for the Able Marine Energy Park application. More detailed representations can then be made during the examination stage in the form of a written representation and will provide you with an opportunity to request or to speak at a hearing.

You may alternatively wish to submit a paper copy of the ? Registration and Relevant Representation? form. If you would prefer to complete a hard copy Registration and Relevant Representation Form, please reply with your name and full address including post code and we will arrange for a hard copy form to be sent to you or ring the IPC helpline on 0303 444 5000.

Advice Note 8.3: Putting your case to the IPC may be of particular use which can be accessed by following the attachment.
For further information on how to get involved in the process, please visit the ?Legislation and advice? section of the IPC website. The IPC website can be viewed at the following address:
www.independent.gov.uk/infrastructure

Please contact us if you have any further queries

02 March 2012
Rod Ambler
Enquiry received via phone
I have submitted a representation for Able Marine Energy Park and wish to add information to my representation. Could you send me Advice notes concerning making a relevant representation, the Developers consultation and information about the process.
Further to our telephone conversation 28 February regarding registering as an Interested Party please find enclosed the following IPC Advice Notes.

Advice note 8.1: How the process works ? opportunities to be involved
Advice note 8.2: How to have your say on a major infrastructure proposal ? the developer?s consultation
Advice note 8.3: Putting your case to the IPC ? how to register and make a relevant representation
Advice note 8.4: How an application will be examined by the IPC ? The Preliminary Meeting
Advice note 8.5: Putting your case to the IPC ? The Examination Process
As discussed during our telephone conversation, the partially completed representation you submitted online does not provide all of the details we require to register you as an Interested Party. To enable you to register your views and become an Interested Party please ensure we either receive your summary or you submit a new fully completed representation online before the deadline set by the developer which is 02 April 11:59 pm.
If you wish, send your representation summary (which is question 3.1 of the relevant representation form) and mark for my attention at the address above or send by email to [email protected]
I hope this information is useful

01 March 2012
Simon Taylor
Enquiry received via email
response has attachments
I have received a letter from ABLE UK advising me that their application is able for the public to view in Hedon Customer Service Centre from 20th February - 2nd April 2012.

As I haven't been involved in an IPC application before, I wondered if you would be so kind as to advise me please?

I've looked at the pre-examination details on the website;
[attachment 1]

Is there anything that we as a Local Authority should know or be doing at the present time?
Thank you for your email concerning your role at this stage in the examination of Able's proposal for the Marine Energy Park.

Due to the location of the compensation site your Council is referred to as a B authority in the context of section 43 of the Planning Act 2008. As such, you have certain roles and responsibilities, including an automatic, statutory right to take part in the examination and you will also receive an invitation to submit a local impact report (as per s.60 of the Act). This report is a key opportunity for you to provide the examination with details of the likely impacts on your area and you will be invited to submit this by the Examining Authority at a later date. We would however recommend that you consider starting work on this at the earliest opportunity. Specific advice is available on our website - [attachment 2]

At this stage in the process (pre-examination) the applicant is responsible for advertising that the application was accepted for examination and that people are now able to register as an interested party by submitting a relevant representation. Whilst you automatically hold this status you may wish to consider submitting a relevant representation anyway as it will ensure that we have an overview of your position on the case; you will be able to submit a fuller written representation at a later date. You may wish to refer to the following advice for more information - [attachment 3] If you decide to submit a representation I would encourage you to do so via the project page on our website - [attachment 4] - by clicking "Register Online".

I hope that this helps however if you have further queries please do not hesitate to contact me.

24 February 2012
East Riding of Yorkshire Council - Shirley Ross
Enquiry received via email
response has attachments
An email was received with comments concerning the Able Marine Energy Park
You will need to register your views by completing a 'Relevant Representation' form which can be submitted online via the following link. [attachment 1]
Your representation needs to include a summary of what you agree and/or disagree with in the application. By completing the 'Registration and Relevant Representation form' and ensuring it is complete and received by the IPC before 23:59 02 April 2012 you will be registered as an 'interested party' for the Able Marine Energy Park application. More detailed representations can then be made during the examination stage in the form of a written representation and will provide you with an opportunity to request or to speak at a hearing.
You may alternatively wish to submit a paper copy of the ? Registration and Relevant Representation? form. If you would prefer to complete a hard copy Registration and Relevant Representation Form, please reply with your name and full address including post code and we will arrange for a hard copy form to be sent to you or ring the IPC helpline on 0303 444 5000.
Advice Note 8.3: Putting your case to the IPC may be of particular use (Attachment 1)
For further information on how to get involved in the process, please visit the ?Legislation and advice? section of the IPC website. The IPC website can be viewed at the following address:
www.independent.gov.uk/infrastructure
Please contact us if you have any further queries.

24 February 2012
Ken Jones
Enquiry received via phone
response has attachments
What are the timescales following acceptance
The IPC processes following an application?s acceptance are broken into the segments listed below. As discussed, Able Marine Energy Park was accepted for examination on 12 January 2012.

Pre-Examination Stage (approx 3 months): This stage has no fixed timetable as the timings are developer led, but it usually takes approximately 3 months from the time of the developer?s formal notification and publicity of an accepted application.

Examination Stage (6 months): The IPC has six months to carry out the examination beginning with the day after the examination?s start day

Decision Stage (3 months + 3 months): The IPC will make a recommendation to the Secretary of State within 3 months, who will make then make their decision within an additional 3 month period. The IPC will publish all decisions on our website.

Post decision (6 weeks) If the decision is to grant development consent, a 6 week period for legal challenge runs from the date of the publication of the order (or the statement of reasons if published later).

You can keep up to date with the scheme?s progress via its project page on the website (link provided below) or through its dedicated twitter feed, as listed on the website's register of applications.

[attachment 1]

13 January 2012
Wind Prospect - Daniel Stone
Enquiry received via email
response has attachments
Mr Codd requested clarification on any deadlines associated with the submission of Hull City Council's Local Impact Report (LIR).
Mr Codd was directed to IPC Advice Note One (attached) which sets out the IPC process in the context of local authority involvement, including the production and submission of LIRs.

It was explained that LIRs are required by the IPC early in the examination process, and are typically requested around six weeks from the date of the Preliminary Meeting; although the exact deadline is at the discretion of the Examining Authority.

22 December 2011
Hull City Council - Alex Codd
Enquiry received via email
Concerns were raised about pre-application consultation
Advised, as per CLG guidance on pre-application consultation, that correspondence would be retained on file and made available to the Commissioner appointed to consider an application.

06 December 2011
RSPB - Tim Melling
Enquiry received via email
Winckworth Sherwood wrote to the IPC identifying points of concern relating to the pre-application consultation carried out by Able UK Ltd.
We confirmed the following advice:

It would not be appropriate for the Commission to comment on these matters but I would advise you to consider sending a copy of your correspondence to the relevant local authority. They will have an opportunity during the acceptance period to submit representations on the adequacy of the applicant's consultation to the Commission: the Commission must have regard to such comments received

07 October 2011
Winckworth Sherwood - Alison Gorlov
Enquiry received via email
Osborne Clarke wrote to the IPC identifying points of concern relating to the pre-application consultation carried out by Able UK Ltd.
We confirmed the following advice:

It would not be appropriate for the Commission to comment on these matters but I would advise you to consider sending a copy of your correspondence to the relevant local authority. They will have an opportunity during the acceptance period to submit representations on the adequacy of the applicant's consultation to the Commission: the Commission must have regard to such comments received.

07 October 2011
Osborne Clarke - Brian Greenwood
Enquiry received via post
DLA Piper UK Ltd wrote to the IPC identifying points of concern relating to the pre-application consultation carried out by Able UK Ltd.
We confirmed the following advice:

It would not be appropriate for the Commission to comment on these matters but I would advise you to consider sending a copy of your correspondence to the relevant local authority. They will have an opportunity during the acceptance period to submit representations on the adequacy of the applicant's consultation to the Commission: the Commission must have regard to such comments received.

19 September 2011
DLA Piper UK Ltd - Benjamin Dove-Seymour
Enquiry received via email
response has attachments
Hull City Council sought to understand the likely timescale for the preparation and submission of a Local Impact Report should an application be accepted.
With regard to your query as to when we may ask you to submit a Local Impact Report (LIR) (in accordance with s60 of the Planning Act 2008) I can advise you as follows.
 
The IPC have a 28 day period in which to decide whether or not to accept an application. Should the application be accepted, we then enter a period referred to as pre-examination during which the developer is responsible for advertising that the application has been accepted and opening the period for people to register as an interested party and make a relevant representation. This stage is very much driven by the developer and therefore it is not possible to set strict timetables. However, it is expected that it will take approximately 2-3 months. A further task during this period is for the developer to supply a certification (under s58 of the Act) confirming that they have carried our their duties. Receipt of this by the IPC allows the Chair of the Commission to appoint an Examining Authority.
 
The Examining Authority will then undertake an initial assessment of the issues raised in relevant representations and set the date for a preliminary meeting. The 'examination' stage will start the day after the end of that meeting and the examination timetable will be set at, or as soon as possible after, the preliminary meeting. This timetable will include a deadline for submission of the LIR and DCLG guidance indicates that it would be expected that this will be set at about 6 weeks after the start of the examination.
 
As you are aware, we recommend starting work on the LIR as soon as possible and that delegations are in place to allow you to submit the LIR in accordance with the examination timetable. You may find it beneficial to look at our advice and DCLG guidance on this matter, specific publications which may assist are:
 
[attachment 1]
[attachment 2]
[attachment 3]

09 September 2011
Hull City Council - Alex Codd
Enquiry received via email
response has attachments
The developer provided the IPC with a draft Development Consent Order for comment.
See the attachment below for the advice given.

24 August 2011
Bircham Dyson Bell LLP - Angus Walker
Enquiry received via email
Mr Walker enquired about the potential for inclusion of requirements within the DCO in relation to agreeing finished ground levels of the compensatory land with the regulator and Local Authority.
In principle it is possible to include within the DCO a requirement which would see the finished ground levels within the compensation site agreed with the local authority prior to the commencement of works.

However, we would advise that in determining whether to adopt this approach you should be mindful of the following. We note that you have identified that the ES will assess the "worst credible significant impacts for the range of possible FGLs" and we would support this action. However, it is also important to ensure that sufficient information will be available to satisfy the HRA process and that this information will be required at the acceptance stage. Furthermore, clarity will be required that the site is, in the view of the regulator, capable of creating the required type and quantum habitat. We refer to IPC Advice Note 10 on this matter.

17 August 2011
Bircham Dyson Bell LLP - Angus Walker
Enquiry received via email
Mr Walker raised queries about plans in relation to Tree Preservation Orders and amendments to the DCO.
Trees subject to Tree Preservation Order (TPO)

It is arguable that power to fell/lop trees protected by TPOs has the effect of compulsory acquisition because the power allows the undertaker to interfere with third party private rights - note that model provision 47 (4) provides that compensation shall be payable for damage to any tree and that any dispute shall be determined under Part 1 of the Land Compensation Act 1961 and Schedule J of the model provisions for harbours requires trees subject to TPOs to be shown on the land plan which, in accordance with Regulation 5 (2) (i), is a plan identifying amongst other things land which it is proposed shall be subject to powers of compulsory acquisition and over which it is proposed to exercise any right to use land. Although there is logic in showing trees protected by TPOs on an ecology plan, it is arguable that the land interests affected should also be identified on the land plan and in the book of reference.

Amendments to approved details

Model requirement 37 clarifies that for the purposes of ensuring that development is carried out in accordance with details approved by the Commission such details include any amendments subsequently approved by the Commission. The point made in relation to proposed requirement 24 is that LPAs do not have power to change/amend a DCO including removing or altering existing requirements, contrast the Commission's powers under s153 and Schedule 6. You may consider that this does not necessarily need to be reflected in the wording of the requirement.

Footpath diversions

The proposed reorganisation of the public rights of way may result in the diversion of a footpath (ie which rejoins the right of way and does not alter the point of termination). However, irrespective of the heading to Schedule 3 the effect of article 17 is clearly to extinguish and simultanously create an alternative footpath (and the test in s136 is framed in relation to extinguishment) so it may be clearer to use this terminology.

08 August 2011
Angus Walker
Enquiry received via post
response has attachments
Representatives of a potential stakeholder raised queries concerning consultation.
See the attachment below for the advice given.

05 August 2011
DLA Piper UK - Howard Bassford
Enquiry received via email
Mr Wang requested application documents for the Able Marine Energy Park proposed application.
'Able Marine Energy Park' is expected to be submitted on the 31 August 2011. The project is currently at the Pre-Application stage of the process which, amongst other matters, involves the developer engaging in consultation. As the project has not yet been submitted for examination I would advise you to contact the developer directly for further information. The contact for Able UK is Richard Cram (email: [email protected] tel: 01642 806080).

You will be able to find any documentation such as meeting notes, advice given and other documentation relating to the project on the project page on the IPC's website. A scoping report was adopted by the IPC in October 2010 and this can be found under project documentation on the project page.

May I take this opportunity to remind you that the IPC cannot advise on the merits of applications for development consent orders (DCOs) or proposed applications, give legal advice nor interpret legislation as the latter is a matter for the courts.

03 August 2011
John Wang
Enquiry received via email
The IPC provided advice concerning the applicants Draft Habitats Regulations Assessment (HRA) Report.
Thank you for sending us your draft Habitats Regulations Assessment (HRA) report for comment. As we have explained, we are not able to comment on the outcome or conclusions of the assessment or the merits of the scheme and any mitigation proposed, but welcome the opportunity to raise issues relevant to our process and these are set out below.

Please note that the following advice is not intended to be prescriptive. It is for developers to review their work and satisfy themselves that they have complied with relevant legislation and had regard to relevant guidance. If it is considered necessary, you should obtain your own legal advice on which you can rely. You should also note that the decision whether or not to accept an application will be taken by a Commissioner who has had no involvement in the pre-application stage for this proposal. All advice the Commission provides at this stage does not prejudice or pre-judge the decision of the Commissioner regarding acceptance or non-acceptance of an application.

Draft Habitats Regulations Assessment Report
As we have explained, at the pre-application stage the IPC does not undertake a formal review of draft HRA Reports. Our initial comments do not prejudice the position of the IPC at further stages of the DCO process including determining whether ?sufficient information? as required under Regulation 5(2)(g) of the Infrastructure Planning (Applications: Prescribed Forms and Procedures) Regulations 2009 has been provided to the IPC when the application for development consent is submitted.
In determining the relevant elements/information needed to support an HRA report the IPC would refer you to the forms in the Appendices to Advice Note 10 (Habitat Regulations Assessment relevant to nationally significant infrastructure projects). The relevant forms should be completed and submitted by developers at point of application.

General Comments
The IPC has previously issued advice within the EIA Scoping Opinion regarding survey work and methodology. In particular the IPC notes the importance of ensuring that survey work is comprehensive, relevant and up to date.
The IPC has also previously expressed the importance of agreeing the approach to assessment with the relevant consultees.
The draft HRA report makes cross reference to information included in the environmental statement (ES). This approach is acceptable provided the cross references are clear to enable the information to be identified easily as well as to ensure that the reader is directed to the correct information.
Screening: Information on the international sites and their qualifying interest features
Reference has been made to the qualifying interests of the Humber Estuary SPA, SAC and Ramsar site (paragraph 4.1.2). The report does not set out the framework by which decisions have been made regarding the extent of the study area and the sites required for consideration. Therefore, it is unclear on what basis this site and no others have been selected. If the Humber Estuary alone was identified through agreement with the Statutory Nature Conservation Bodies (SNCB) then information supporting this should be provided and appended to the HRA Screening Report. There is no prescribed maximum distance from a proposed site boundary beyond which proposals can be dismissed as having no effect. It should be noted that if a proposal is capable of affecting a Natura site it should be screened for significant effects? irrespective of the distance from the Natura site. The report should set out the framework by which decisions have been made regarding the extent of the study area and the sites required for consideration.

Annexes B and C set out screening assessment conclusions in relation to habitats and non-bird fauna, and birds respectively. However, they do not present information in the same way. The last column of Annex B appears to include conclusions on both the judgement of likely significant effect and the effect on the integrity of the site, which follows appropriate assessment. The last column in Annex C only considers the significant effect test. It is suggested that the title of the annexes makes it clear what stages of the assessment they cover, the conclusions on each of the two tests, ie likely significant effect and the effect on integrity, are separately identified, and the information is presented in a consistent format in both annexes.

Baseline Information and Methodology
Consideration should be given to providing the citations for the site(s) concerned as this would be helpful to the examining authority. This should include maps of the site(s) in relation to the proposed project and the spatial extent of the qualifying features.
Details should be provided as to the methodologies used and the process and evidence base for the assessments.
It is reiterated that following the steps and completing the forms in the appendices to Advice Note 10 would assist developers in ensuring that the relevant information is provided.
You should carry out the necessary preparatory work and assemble the evidence to a level of detail that will enable the competent authority to meet its duties under the Habitats Regulations 2010 (as amended). Note, if there is no relevant national policy statement in relation to an application, the IPC itself will not be the competent authority but will be required to ensure that sufficient information is provided to enable the relevant Secretary of State to meet their duties as competent authority.
Habitats and Species

Within the section on European sites and likely significant effect (Chapter 4), the focus seems to be on species, birds in particular, over habitats. In addition, there are references to grey seals, river and sea lamprey and natterjack toads in Chapter 4, but little explanation is provided there or in the Annex B Screening Assessment for the conclusions of no likely significant effect on grey seals and toads. There should be a justification for this approach. In any event sufficient information should be provided for the competent authority to undertake the assessment.

Consultation

The IPC?s Advice Note 10 emphasises the importance of consultation with relevant SNCBs In particular developers are advised to use the pre-application consultation process to seek assurances from SNCBs that all potential impacts have been properly addressed in sufficient detail before the application is submitted.

The IPC notes that there is evidence of consultation being carried out and quotes from certain responses received are provided. The IPC advises that relevant responses are included in full within the report to allow complete understanding of the consultation response and to assist the examining authority to consider whether any matters need further examination.

The competent authority will also consult the relevant SNCBs for the purposes of the assessment.

In-combination assessment

The meaning of paragraph 4.4.17 is not clear. It seems to imply that if a proposed development alone will have a limited impact that there is no further requirement to consider whether there are likely to be any in-combination impacts. An impact may become significant when considered in-combination with impacts from other plans and projects and Regulation 61(1)(a) requires a competent authority to consider whether a project is likely to have a significant effect either alone or in combination with other projects.

The IPC also notes the wording at paragraph 4.4.17 of the draft report:

? ? where a likely significant effect has been identified on a qualifying interest habitats or species ?? these is no need for consideration of in-combination effects??.

The IPC considers that when carrying out the appropriate assessment the competent authority will want to take into account the in-combination effects before ascertaining whether the project will adversely affect the integrity of the European site(s) and will want to consider the compensation to be provided which corresponds to any negative effects identified. For example, the habitat loss (for which compensation must be provided) and adverse effects on species may be worsened because they are exacerbated by the effects of other development in combination with the effects of the NSIP. We cannot however comment on what or how extra compensation should be provided, apportioned and secured.

Consideration should be given to revising this section and to providing information within the HRA report which will enable the competent authority to consider these matters properly.

You may also wish to use EC guidance Managing Natura 2000 Sites: The provisions of Article 6 of the Habitats Directive (see section 4.4.3) for advice about which plans and projects would be within the scope of the combination provision in Article 6 (3) - this includes projects which are complete; approved but uncompleted; or not yet proposed.

Compliance with conditions or other restrictions

The draft document does not appear to consider explicitly whether compliance with conditions or other restrictions would enable it to be ascertained that the proposal would not adversely affect the integrity of the site, as required by the Habitats Regulations.

Imperative Reasons of Overriding Public Interest (IROPI)

The competent authority will require information to justify there is a compelling case for overriding public interest. Where the site does not host a priority species or habitat the reasons may be of a social or economic nature. In cases where there are priority natural habitats or species the IROPI justification must relate to either human health, public safety or beneficial consequences of primary importance to the environment, or any other imperative reasons of overriding public interest having sought a prior opinion of the European Commission.

The reasons as set out in the draft report are:

? decarbonise the means of energy production
? secure energy supplies from indigenous sources
? manufacture large scale offshore generators
? grow manufacturing in the UK; and
? regenerate the Humber sub-region.

The competent authority will need to satisfy itself that these reasons meet the requirements of the Directive to demonstrate IROPI in relation to priority natural habitats or species and relate to the proposed NSIP or any associated development. The HRA report should provide justification to support these reasons and if necessary you may wish to obtain your own legal advice in this regard.
Compensation Measures

The assessment should clarify any avoidance or mitigation measures which will be implemented to avoid or reduce the level of impact from the proposals. There is reference to Annex 4.2 of the ES regarding mitigation measures for construction impacts, and whilst Annexes B and C of the HRA report take account of mitigation, the details are not specified.

Full details of the compensatory habitat are not provided. The report states that further details are provided in Volume 2 of the ES. The developer should ensure that all the information necessary for the competent authority to undertake an appropriate assessment is submitted. For example, it would be of assistance to explain clearly the way in which other sites are being taken into account and to explain why these apparently unrelated compensatory areas are relevant.

Conclusion

Please note that the issues highlighted above and comments made do not constitute an exhaustive list. It is the developer?s duty to ensure that all documents submitted with the DCO application comply with the relevant legislation and required standards.

28 July 2011
Able UK - Jonathan Monk
Enquiry received via email
response has attachments
I am in pre-application consultation with Able regarding the diversion of a Public Footpath. This is my first encounter with a scheme that is to be submitted to the IPC and would like some advice.

As I understand it that when they submit the application to the IPC that will include their proposals for the diversion of the footpath as per Statutory Instrument 2009 No. 2264 section 5 (k).
How detailed does this proposal have to be and is there a list of statutory consultees (such as the Ramblers, and ourselves) that they have to have agreement with before they get to this stage?

In all the documents I have read so far I have been unable to see who actually will do the Order for the diversion of the Public Right of Way when the development has finally received consent.
Can it then be dealt with by us, as the Highway Authority, as normal under TCPA 1990 s257 or will it be done under another mechanism similar to a Side Roads Order?

At present I am also unsure of if or how the fact that this is on Crown Estates Land will affect any proposed diversion.
1) Footpath diversion - As the footpath diversion is part of the proposed project and the detail will be included within the Development Consent Order (DCO) the applicant is required to do a number of things. Firstly, the details themselves will be required to be consulted upon. Secondly, it will be necessary to include the details on the plan submitted under Regulation 5(2)(k) of the Applications: Prescribed Forms and Procedure Regulations. You may wish to discuss with the applicant how they propose to include the provisions for extinguishment in the DCO. With regard to the Ramblers Association, they are not a statutory consultee although Able UK may have chosen to consult them. Finally, you may be aware that your authority will have the opportunity to submit a Local Impact Report should the application be accepted by us for examination. This will provide you with the opportunity to provide comments on the proposed diversion. We have published guidance on this which can be viewed on our website - [attachment 1]

2) Order for diversion - The applicant will need to ensure that the DCO is structured so that it provides for the required diversion.

3) Crown Estates land - Section 135(2) sets out that where Crown land is involved it is necessary for the appropriate Crown authority to provide their consent for the inclusion in the DCO of provisions which relate to such land (or rights benefiting the Crown).

24 March 2011
East Riding of Yorkshire Council - Gordon Grimley
Enquiry received via phone
We understand that the Able UK Ltd is currently undertaking pre-application consultation on the Able Marine Energy Park (AMEP) at North Killingholme. This includes consultation on the preliminary environmental information and is due to finish on March 20th 2011. When can consultees and the general public comment on the Environmental Statement (ES) for this project? Is the applicant under any duty to consult on the ES prior to submitting their Development Consent Order (DCO) application to the IPC?
Applicants have a duty to comply with requirements set out in the Planning Act 2008, which includes consultation on the preliminary environmental information. However, they are not under any duty to consult on the ES specifically prior to submitting their DCO application to the IPC.

The IPC consults with a number of statutory bodies during the scoping stage for projects. The scoping stage is the process used to inform applicant?s what information they may wish to include in their ES. The RSPB is not a statutory consultee (under the Infrastructure Planning (Applications: Prescribed Forms and Procedure) Regulations 2009) therefore would not have been consulted during scoping. Although these regulations prescribe a list of consultees, the IPC strongly encourage applicants to consult with a wide range of bodies and the public, as they deem appropriate during the pre-application stage and in the preparation of the ES.

At present, Able UK Ltd has indicated to the IPC that they will be submitting the DCO application for the Marine Energy Park on 31st May 2011; however please note this is an indicative date and may be subject to change. Once the application is submitted, the IPC has 28 days to decide whether to accept the application. If the application is accepted, the application will move into the pre-examination stage during which anybody can register as an interested party if they make a relevant representation to the IPC. Once a person / organisation has registered as an interested party, they will be kept informed of progress of the application and opportunities to be involved. Once in the examination stage, individuals who have registered as interested party can submit written representations to the Examining Authority and may request an issue specific hearing at the discretion of the Examining Authority or can notify the Examining Authority that it wishes to be heard at an open floor hearing, in which case the Examining Authority must hold an open floor hearing.

15 March 2011
RSPB - Harriet Dennison
Enquiry received via meeting
response has attachments
Meeting with scheme promoter to provide a project update.
Please see the attached link for a note of the meeting - [attachment 1]

10 February 2011
Able UK - Richard Cram
Enquiry received via post
response has attachments
Please see link for copy of query - [attachment 1]
Please see link for copy of advice given - [attachment 2]

04 February 2011
Osborne Clarke - Brian Greenwood
Enquiry received via email
Mark,

We are preparing the Preliminary Environmental Information Report for consultation with the public in respect of the above project. We would not normally publicise information on Badgers since they are prone to persecution and the law has been developed to protect them. We normally provide information on this species to the planning authority only.

Please advise if you agree to information on badgers being kept confidential (ie. the location of their setts is not disclosed) and advise if you consider whether you consider information on any other protected species should be kept confidential in the same way.

A speedy response would be appreciated as we are looking to complete the reporting next week.

Can you please confirm receipt of this e-mail in the first instance.

Kind regards


RICHARD CRAM
Design Manager
Dear Mr Cram

I write with reference to your email of 7th January.

As you are aware, the IPC operates a policy of openness in relation to the documents it receives relating to proposed projects. Your email refers to information on badgers and states that you would not normally publicise information on them due to legislation protecting them. Having sought advice as to whether we can agree to information being excepted from disclosure we advise as follows.

The information may fall within the definition of ?environmental information? under the Environmental Information Regulations 2004 (EIR). If information is environmental information for the purposes of the EIR it is exempt information under section 39 of the Freedom of Information Act 2000 (FOIA) and the public authority (in this case the Commission) is obliged to deal with any requests for such information under the EIR rather than the FOIA.

Information Commissioner?s Office (ICO) Guidance on EIR (?What is Environmental Information?? Version 3, 16 March 2009) notes, for instance, that when considering whether information is ?environmental information? a site does not need to have been formally designated as requiring protection to qualify as a ?natural? site for the purposes of Regulation 2(1)(a) of the EIR.

Exceptions to the duty to disclose environmental information are set out in Regulation 12 of the EIR. Although Regulation 12(2) of the EIR states that a public authority shall apply a presumption in favour of disclosure, there are grounds on which a public authority may refuse to disclose environmental information if one of the specific exceptions apply and in all the circumstances of the case, the public interest in maintaining the exception outweighs the public interest in disclosing the information.

Under Regulation 12(5) of the EIR a public authority may refuse to disclose information to the extent that its disclosure would adversely affect (g) the protection of the environment to which the information relates. In the event of a request for such information, the Commission may assess whether disclosure of the information would adversely affect the protection of the environment to which the information relates and whether in all the circumstances of the case the public interest in maintaining the exception outweighs the public interest in disclosing the information.

In order that the Commission can easily identify such information, we would suggest that if these documents are submitted with your application for a development consent order then they should be clearly marked ?Potentially Excepted Information? and reference made on them to Regulation 12(5)(g) of the EIR.

I trust that the above clarifies the Commission?s position however please feel free to contact us should you required further guidance on this matter.

Yours sincerely


Mike Harris,
Case Officer

07 January 2011
Able UK - Richard Cram