Preesall reconsideration process launched

Angus Walker picture-13This entry reports on the process for reconsidering a decision on a development consent order after it has been quashed in the High Court.

A year ago yesterday, on 9 April 2013, the Secretary of State for Energy and Climate Change refused the application for a nationally significant gas storage project at Preesall in Lancashire made by Halite Energy. This was the first and so far only refusal under the Planning Act regime and was despite the panel of three inspectors recommending that it be granted.

As they are entitled to do, the applicants sought a judicial review of the refusal in the High Court and this was heard by Mrs Justice Patterson on 10 and 11 December 2013. She issued her judgment on 17 January 2014 and decided that the decision should be quashed - see this blog entry.

I had thought that the Secretary of State was going to appeal the decision to the Court of Appeal, but he has decided not to take legal proceedings any further. What happens next? In fact the rules governing examinations of applications under the Planning Act 2008 do cater for this situation, and I quote:

Where a decision of the Secretary of State in respect of an application is quashed in proceedings before any court, the Secretary of State—
(a) shall send to all interested parties a written statement of the matters with respect to which further representations in writing are invited for the purposes of the Secretary of State’s further consideration of the application;
(b) shall give all interested parties the opportunity of making representations in writing to the Secretary of State in respect of those matters.

On Tuesday the Secretary of State duly sent such a written statement to all interested parties, which can be found here. There are five such matters:

  • further geological information demonstrating that the applicant's stated capacity for the caverns that are to store the gas can be achieved;
  • the extent to which the project is consistent with the relevant National Policy Statement (EN-4);
  • whether a requirement proposed by the panel should be imposed, whereby amongst other things the caverns would not be allowed to operate unless a minimum amount of storage is shown to be achievable;
  • whether the environmental information available should be updated; and
  • whether anything material has happened in the last year that should be drawn to the Secretary of State's attention.

Parties have a month to respond, i.e. until 9 May 2014. The Secretary of State says he will appoint a geological assessor to advise him on geological matters. There will be an opportunity to report on the representations made by others and any report produced by the assessor.

Fifty-eight other documents were published on the PINS webpage for the project on Tuesday, all being correspondence received by the Secretary of State since his decision was issued. Upon reading a small sample of these they seem to be mostly, if not entirely, in support of the project.

That lot will probably add a couple of months on the end of the 9 May deadline, whereupon the Secretary of State will issue a new decision. There is no statutory time limit in this situation, but presumably he is unlikely to take longer than the three months he originally took.

All in all that will entail about 18 additional months from the date of the original decision. That's faster than starting from scratch and submitting a new application having undergone further pre-application consultation, but not much. Then again the judicial reiew did not have the benefit of the planning fast track and now the Planning Court, which have both since been implemented.