This is entry number 186, first published on 12 November 2010, of a blog on the implementation of the Planning Act 2008. Click here for a link to the whole blog.

Today's entry analyses consultation requirements after the Infrastructure Planning Commission issues its 25th scoping opinion.

The Infrastructure Planning Commission (IPC) is the new body that will decide applications for nationally significant infrastructure projects until April 2012. It has been open in an advisory capacity since October last year, and applications for energy and transport projects have had to be made to it since March this year. Although only two applications have been made to it so far, and of those one was not accepted for examination, one area where the IPC has been busy is that of giving scoping opinions.

A scoping opinion relates to environmental impact assessment (EIA). A prospective promoter can ask the IPC what its assessment of environmental issues should cover, and the answer the IPC gives is a scoping opinion. This is not to be confused with a screening opinion, which is the IPC's opinion as to whether the project needs EIA at all.

There are 50 live and forthcoming projects listed on the IPC website, and the IPC has just reached the milestone of issuing its 25th scoping opinion. Thus half the projects have taken at least one formal step towards making an application. It has only given one screening opinion to date, where it decided that the project did not need EIA, ironically the application for which was the one it later rejected.

To mark this milestone I have done a little analysis on the consultations the IPC carried out for its scoping opinions. This is useful to promoters because they must consult the same organisations as part of their pre-application consultation. There is a long list of prescribed organisations that must be consulted, some in every case and some only when the application covers their area of concern.

Overconsultation and under-response?

The IPC sent over 3000 letters and emails to consultees - an average of around 125 per consultation. It received just over 400 meaningful responses back (i.e. ones that had more than 'no comment'). The large number of consultees is partly to do with the length of the list in Planning Act regulations, and partly due to the IPC's practice of erring on the side of caution in including optional consultees, particularly in the area of statutory utilities. Does a 13% rate of meaningful responses (and a 25% response rate for any sort of response) mean that the consultation net is cast too widely? Not necessarily, but it would make sense to review the operation of the consultation requirements of the Act every so often.

A few, often local authorities, asked for more time, but were not given it - there is a strict 42-day period within which the IPC must respond to a scoping opinion request, which it usually managed to achieve. Some respondents asked to be taken off the consultation database, but of course they can't be since 'the database' is a statutory instrument.

Sword of Damocles effect?

What I found interesting was the wide range of reactions from the consultees, especially given that many of them are under threat following the publication of the PUblic Bodies Bill (see my colleague Paul Thompson's new blog on that subject). Would the threat of joining the 'bonfire of the quangos' encourage them to respond or discourage them from doing so?

At one extreme, the Health and Safety Executive (which is listed in the Bill but not in the front line for the chop) responded to all 25 consultations, giving meaningful responses to 23 of them. Silver medal goes to the Coal Authority (listed similarly), which responded to 24 consultations. At the other extreme, Ofgem, the Rail Passengers Council (ditto) and the Commission for Sustainable Development (not in the Bill) did not even reply to any of the consultations.

The Commission for Rural Communities (which is in the front line for the chop) did not respond at all although was only consulted on English projects, but the Regional Development Agencies (also for the chop) responded on all but two occasions. The prize for the most patient consultee must be gas utility ES Pipelines, who politely responded to 23 of the consultations, saying 'no comment' each time. Many other utility companies have not responded at all, but may not have any equipment in the relevant areas.

Local authorities have been responding in increasing numbers, a total of 140 having made some sort of response so far. The IPC has dealt with offshore projects not having a 'host' local authority (a gap in the Planning Act) by nominating the nearest authority/ies on the shore. This does have the knock-on effect of having to consult a large number of neighbouring authorities, some quite far inland, however, (e.g. the London Borough of Redbridge about a windfarm off the coast of East Anglia), but it seems that there is little alternative.

This is one part of the new regime that has had the benefit of a fair amount of implementation. Even then, the large body of consultees is taking a while to get used to it.