Dogger Bank Creyke Beck
Section 51 Advice in relation to the notification under Regulation 17 of the Infrastructure Planning (Environmental Impact Assessment) Regulations 2009 (as amended) ('the EIA Regulations')
Thank you for your letter dated 11 November 2013 enclosing copies of the compliance certificates for sections 58 and 59 of the Planning Act 2008 and Regulation 13 of the Infrastructure Planning (Environmental Impact Assessment) Regulations 2009 (as amended) ('the EIA Regulations').
In the above letter you also provided a document which you called a compliance certificate in accordance with Regulation 17 of the EIA Regulations in relation to the Ornithological Addendum (relating to the cumulative and in-combination assessment dated September 2013) ('the Addendum') provided to PINS on 9 October 2013. However, procedurally this is incorrect as the EIA Regulations do not make provision for a certificate to be provided by an applicant unless a Regulation 17 determination has been made by the Examining Authority.
Regulation 17 of the EIA Regulations applies only where an application has been accepted for examination and the Examining Authority has determined that an applicant's environmental statement is inadequate and should contain further information. Currently this is not the case and it will be for the Examining Authority to consider whether the information you have provided means that the ES was inadequate (and therefore whether the Addendum should be subject to statutory consultation under EIA Regulation 17 and the examination suspended). The Examining Authority will therefore need to make a procedural decision under s89(3) of the Planning Act about how to examine the application in the light of the supplementary Addendum you submitted and this may be communicated through the Rule 6 letter which will invite Forewind and other interested parties to the preliminary meeting. In the meantime PINS will hold this Addendum on file. It will not be published on the project webpage on the PINS' website until a procedural decision has been taken by the Examining authority.
However, as Forewind has published a notice under Regulation 17, we are concerned that the notification has the potential to confuse interested parties and the wider general public. You should of course take your own legal advice, but one option although not a statutory requirement, may be to publish a correction notice. This notice could clarify that the Addendum had not been provided in response to a Regulation 17 notification made by the Examining Authority; it could be published in the same newspapers that the Regulation 17 notice was published. If you decide to take this approach a copy of this new notice should be sent to PINS for information and this would be passed to the Examining Authority. Alternatively, you may consider it appropriate to write to the consultation bodies and any other person who responded to the newspaper notice in order to clarify the position. In the meantime, PINS will remove your cover letter dated 11 November 2013 referring to the Regulation 17 certificate and the copy of the certificate from the project page on the website.
We also note that Forewind, in the "Regulation 17 notice", requested responses to be provided by 8 November 2013. We suggest that if any responses are received, Forewind may wish to provide copies of these responses to PINS so these could be submitted to the Examining Authority, along with the Addendum. Again, whilst we recommend that you take your own legal advice, we would suggest that you also provide the information listed below which will help the Examining Authority to take a procedural decision about whether to accept the Addendum, and if so how it should be examined:
clarify the status of the Addendum and whether you consider it to be other information which is defined as "any other substantive information relating to the environmental statement" (as defined in Regulation 2(1) of the EIA Regulations);
identify any consequential corrections/updates to other application documents, including the ES and HRA Report; and
confirm that as a result of obtaining this other information there are no consequential changes to the authorised development and ancillary matters for which you are applying in the draft DCO submitted with the application.
I would be grateful if you could let me know how Forewind intend to proceed.