Nationally Significant Infrastructure Projects: Advice on EIA Notification and Consultation
This advice summarises the notification and consultation of prescribed bodies on the scope of Environmental Statements for Nationally Significant Infrastructure Projects (NSIPs).
Applies to England and Wales
The government has published guidance about national infrastructure planning which applicants, members of the public and other parties should read. See the National Infrastructure Planning Guidance Portal. The guidance should be read alongside the Planning Act 2008 (the Planning Act).
This advice is non-statutory. However, the Planning Inspectorate’s advice about running the infrastructure planning regime and matters of process is drawn from good practice and applicants and others should follow our recommendations. It is intended to complement the legislation, regulations and guidance issued by government and is produced under section 51 of the Planning Act.
This advice should be read together with Planning Inspectorate’s Advice on the Environmental Impact Assessment Process and government guidance on the Planning Act process.
Advice context
This advice explains the approach taken by the Planning Inspectorate, on behalf of the Secretary of State, to notifying and consulting the prescribed consultation bodies on the scope of Environmental Statements for Nationally Significant Infrastructure Projects (NSIPs), as required by the Infrastructure Planning (Environmental Impact Assessment (EIA)) Regulations 2017 (the EIA Regulations).
Applicants must carry out their own investigations and take legal advice, as appropriate, to ensure they meet the obligations for their statutory pre-application consultation under the Planning Act 2008 and associated statutory instruments. However, applicants may find it helpful to understand the approach taken by the Planning Inspectorate set out in this advice.
This advice is supported by two annexes containing the detailed approach the Planning Inspectorate takes to notification and consultation. Applicants should refer to the relevant annex applicable to their project. See the section on ‘APFP Regulation amendments and identifying the correct consultation bodies APFP Regulations for your project’ below to identify the correct annex that should be used for a relevant proposed development.
Who should be consulted?
There are specific people and organisations that must be notified and consulted by the Planning Inspectorate about proposed EIA development either:
- in all cases
- depending on their relevance to the development (the ‘relevance test’)
- and/or by deciding whether certain circumstances apply (the ‘circumstances test’)
These people and organisations are known as the ‘prescribed consultation bodies’ and ‘Regulation 11(1)(c) bodies’. The prescribed consultation bodies are defined by legislation.
There are also bodies not defined in legislation that the Planning Inspectorate may consult on a discretionary basis, these are called ‘non-prescribed consultation bodies’. Further detail on these bodies is provided below.
Prescribed consultation bodies
These bodies are defined under Regulation 3(1) of the EIA Regulations as:
- those prescribed under section 42(1)(a) of the Planning Act 2008 and listed in column 1 of Schedule 1 of the Infrastructure Planning (Applications: Prescribed Forms and Procedure (APFP)) Regulations 2009 (“APFP Regulations”) where they meet the criteria in column 2
- authorities in section 43 of the Planning Act 2008 (hereafter referred to as section 43 local authorities)
- the Greater London Authority, where the development falls within or relates to land in Greater London
Regulation 11(1)(c) bodies
Regulation 11(1)(c) of the EIA Regulations defines these as “persons whom the Secretary of State considers to be or likely to be affected by or to have an interest in the proposed development who are unlikely to become aware of the proposed development by the measures taken in compliance with Part 5 of the Planning Act”.
The measures under Part 5 of the Planning Act include, for example, the requirement for applicants to engage in pre-application consultation with local communities, local authorities, statutory consultation bodies, and those who would be directly affected by the proposed development. Applicants need to follow the requirements under the EIA Regulations for notifying and consulting Regulation 11(1)(c) persons, as described for example in Regulations 13, 16, 19, 20, 22 and 24.
Non-prescribed consultation bodies
These bodies are not defined as consultation bodies under the EIA Regulations. The Planning Inspectorate employs judgement as to whether they should be consulted based on if they have relevant functions and responsibility similar to identified consultation bodes under the EIA Regulations.
A number of non-prescribed consultation bodies have been identified by the Planning Inspectorate and may be consulted where deemed appropriate. Further explanation of the situations where the Planning Inspectorate may consult these bodies is provided in and to this advice page.
Notification and consultation of the prescribed consultation bodies by the Planning Inspectorate
Applicants for proposed developments are required under Regulation 8 of the EIA Regulations to either notify the Planning Inspectorate in writing that they propose to provide an Environmental Statement in respect of the proposed development (a ‘Regulation 8 notification’) or request a screening opinion from the Planning Inspectorate.
This is required before applicants can commence their statutory pre-application consultation under section 42 of the Planning Act 2008. Information on making a Regulation 8 notification and the screening process is explained in the Planning Inspectorate’s Advice on the Environmental Impact Assessment Process. Information on pre-application consultation under section 42 is provided in Advice on Compiling the Consultation Report.
Once a valid Regulation 8 notification has been received, the Planning Inspectorate will notify the prescribed consultation bodies that the Applicant intends to provide an Environmental Statement for the proposed development.
The Planning Inspectorate is also required to notify the prescribed consultation bodies of the duty imposed on them under Regulation 11(3) of the EIA Regulations. This duty requires that that the prescribed consultation bodies must enter discussions with the applicant if requested and provide any information they hold that is relevant to the preparation of the Environmental Statement. This duty does not apply to Regulation 11(1)(c) bodies or non-prescribed consultation bodies.
The Planning Inspectorate, on behalf of the Secretary of State, must also consult the prescribed consultation bodies under Regulation 10 of the EIA Regulations before adopting a scoping opinion.
Typically, applicants provide their Regulation 8 notification at the same time as making a request for a scoping opinion, this ensures the necessary information required for the Regulation 8 notification is provided whilst avoiding duplication. The Planning Inspectorate will confirm within the scoping opinion the names of the bodies that have been consulted for the purposes of scoping.
The Planning Inspectorate will also issue applicants with the ‘Regulation 11 list’ alongside the scoping opinion, where both the Regulation 8 notification and scoping opinion request have been sought at the same time. The Regulation 11 list is also provided to applicants following a valid Regulation 8 request, where a scoping opinion has not been sought at the same time.
The Regulation 11 list is a list of all bodies the Planning Inspectorate has notified and/or consulted. Applicants can use this list to inform their pre-application consultation but should not rely on it. Information on the scoping and screening process is explained in the Planning Inspectorate’s Advice on the Environmental Impact Assessment Process.
Applicants may identify and consult fewer or different bodies as part of their section 42 consultation than the Planning Inspectorate notifies and consults under EIA regulations 10 and 11. Applicants should ensure there is an explanation given in their consultation report where this occurs.
The Infrastructure Planning (Applications: Prescribed Forms and Procedures) (APFP) Regulation amendments and identifying the correct consultation bodies for your project
As described above, the prescribed consultation bodies to be notified and consulted under the EIA Regulations include those bodies listed in Schedule 1 of the APFP Regulations. On 30 April 2024, the Infrastructure Planning (Miscellaneous Provisions) Regulations 2024 (‘the MP Regulations’) came into force and amended the APFP Regulations.
Regulation 4 of the MP Regulations also includes transitional provisions. These provisions confirm that the APFP Regulations as amended by the MP Regulations will apply to any proposed application for an order granting development consent where the applicant has not started to consult under section 42 of the Planning Act 2008 before 30 April 2024.
The MP Regulations have amended the tables included at Schedule 1 of the APFP Regulations and now provide one single table of prescribed consultation bodies for those projects located in England and Wales. Previously Schedule 1 of the APFP Regulations included separate tables to identify the prescribed consultation bodies for projects in England and the prescribed consultation bodies for projects in Wales.
The MP Regulations have also amended the ‘relevance test’ in respect of the consultation bodies. The relevance test under the APFP Regulations amended by the MP Regulations is now the same for projects in England and projects in Wales.
Whether or not the transitional arrangements apply to a proposed development therefore determines the prescribed consultation bodies the Planning Inspectorate will notify and consult.
For projects that had not started their section 42 consultation before 30 April 2024, the Planning Inspectorate will notify and consult as per the APFP Regulations as amended by the MP Regulations. This approach is detailed in to this advice page.
For any proposed application for an order granting development consent where the applicant had started to consult under section 42 of the Planning Act before 30 April 2024, the amended APFP Regulations do not apply. This scenario is detailed in to this advice page.