Yorkshire and Humber CCS Cross Country Pipeline
The applicant requested advice regarding both Protective Species Licensing and Sites of Special Scientific Interest.
Protected Species Licensing
National Grid (NG) requested advice from the Planning Inspectorate (PINS) in respect of protected species and in particular land identified for use as a receptor site for the translocation of protected species (great crested newts). PINS advised NG that during examination the Examining Authority (ExA) would need to understand whether there is any impediment to the licence being granted. PINS also advised that the ExA would need to be satisfied that any land outside of the Development Consent Order (DCO) application boundary but required for the purposes of obtaining protected species licenses would need to be adequately and robustly secured. NG requested that PINS provide advice on this issue and also if possible include examples of how this has been handled on other proposed developments within the DCO regime.
In response to this request PINS advice is as follows:
PINS do not feel it is appropriate to highlight any other particular proposal to demonstrate how best to address the approach to protected species.
In addition to the protection given to protected species, the Overarching National Policy Statement (NPS) for Energy EN-1 states that PINS (previously IPC) should ensure that species and habitats that have been identified as being of principal importance for the conservation of biodiversity are protected from the adverse effects of development by using requirements or planning obligations. NG should be aware that requirements cannot be applied in relation to land outside of the DCO planning application boundary. The NPS also states that PINS (previously IPC) should refuse consent where harm to the habitats or species and their habitats would result, unless the benefits (including need) of the development outweigh that harm. The NPS is also clear in stating that the applicant should include appropriate mitigation measures as an integral part of the proposed development. Further to this Natural England advice in relation to applications for protected species states:
"Before an application for a licence can be submitted, any land subject to the proposed licensable activities, including any land used for mitigation or compensation as well as all receptor site(s), must be owned by the 'developer'. Alternatively, if the 'developer' does not own part or all of the land, they must be able to demonstrate that the current landowner‟s consent has been obtained for all licensable activities. In this case, as part of the application Natural England would need a complete explanation of the land ownership situation within the method statement and reasoned statement, as well as a separate document containing the signed approval of the current landowner confirming that the developer can carry out all the proposed works'." (European Protected Species: Mitigation Licensing - How to get a licence, Natural England December 2012) available online at link: attachment 1
Having regard to the points raised above , PINS advises that the most robust method available to NG in order to demonstrate during examination that there is no impediment to them securing a protected species license would be to include all the land required (including for the purpose of licensable activities) as an integral part of the proposed development (within the DCO) along with any necessary requirements . However, if for reasons unbeknown to PINS, NG do not intend to include this land as part of their DCO application they are advised of the need to consult their legal team and be prepared to demonstrate by what alternative means they can guarantee to the ExA the implementation of the works/activities required in relation to protected species are robustly secured. The ExA will wish to know the views of NE and details of any mitigation measures that have been agreed with NE.
PINS Advice Note 11 on Working with Public Bodies states:
Licensing of EPS under the Habitats Regulations
For NSIPs which may affect EPS and where a licence is required, Natural England?s regulation team will be able to provide early advice and opinion on the applicant?s protected species proposals in relation to all 3 licensing tests before development consent is granted. This is done so that the decision-maker under the 2008 Act can have confidence that Natural England, as the relevant licensing authority, has considered the appropriate issues relating to protected species. In order to do this, Natural England needs to conduct an assessment, based on a full draft mitigation licence application, in advance of the formal submission of the NSIP application to the Planning Inspectorate. The steps to be followed when submitting the appropriate information to Natural England, in respect of an NSIP project which has the potential to affect EPS, are set out in the following link.
Assistance with EPS licences in England or English waters may be obtained from the Consents Services Unit (CSU).
SSSI Consents within the DCO
National Grid (NG) requested advice from the Planning Inspectorate (PINS) in respect of consents relating to statutorily designated sites and more specifically Sites of Special Scientific Interest (SSSI). NG were particularly keen to know if SSSI consent can be included within the DCO.
In response to this request PINS advise is as follows:
Section 28G of the Wildlife and Countryside Act 1981 (as amended) places a responsibility on authorities to have a general duty "to take reasonable steps, consistent with the proper exercise of the authority?s functions, to further the conservation and enhancement of the flora, fauna or geological or physiographical features by reason of which the site is of special scientific interest". Section 28I of that Act also imposes procedural obligations on authorities which must be met before authorising operations likely to damage the special interest features of a SSSI. These are that the relevant Statutory Nature Conservation Body (SNCB) must be notified before a decision is made and 28 days must elapse before deciding whether to grant consent. The Section 28G authority must then take account of any advice received from the SNCB, including advice on attaching conditions to the consent. If it is decided to issue a permission against the advice of the SNCB, the SNCB must be notified and a further period of 21 days allowed before the operation can commence. This gives the SNCB time to consider further action such as legal action to challenge the validity of the permission. In the case of DCO application this duty will fall on the Secretary of State after the completion of the examination/recommendation stages.
A provision authorising an operation which may damage an SSSI (a S28E consent) can now be included in a DCO instead of having to make a separate application to NE. The ExA would seek the views of NE on such a provision.
If an NSIP is likely to affect a SSSI the decision making bar is set high. The ExA will weigh the relevant issues very carefully before reaching a recommendation to ensure that the general duty under the Wildlife and Countryside Act is observed and the advice of the SNCB will be important. A development consent should not normally be granted if the proposed development is likely to have an adverse effect on a SSSI (either individually or in combination with other developments). EN 1 states that an exception should only be made "where the benefits (including need) of the development ?clearly outweigh both the impacts that it is likely to have on the features of the site that make it of special scientific interest and any broader impact on the national network of SSSIs"(EN-1 5.3.11) . Therefore, National Grid should seek to agree with the SNCB at the pre-application stage the DCO requirements necessary to provide protection to SSSI features and resolve any issues in relation to potentially damaging operations. This agreement could then be documented within a Statement of Common Ground (SoCG).