Guidance

Nationally Significant Infrastructure Projects - Advice Note Fourteen: compiling the consultation report

Published 1 October 2014

Applies to England and Wales

Republished February 2021 (version 3)

This Advice Note is aimed at:

• Applicants, to assist them in writing their Consultation Report.
• Local authorities, who will provide comment on the adequacy of the consultation.
• Consultees, who may be interested to know how the Applicant’s pre-application consultation is reported.

1. 1. Introduction

1.1 An application for a Development Consent Order (DCO) must include a Consultation Report, which describes the consultation process carried out by the Applicant prior to submission of the application. It should demonstrate how the Applicant’s pre-application duties set down in the Planning Act 2008 (the PA2008) have been complied with. The Consultation Report should include information and evidence about:

• Who was consulted and how the consultation was carried out;
• how, and when, the project was publicised; and
• how the responses were taken into account.

1.2 The Consultation Report is used by the Planning Inspectorate to inform the decision as to whether pre-application procedures have been complied with adequately, such that an application is of a satisfactory standard to be accepted for examination. It may also be referred to during the Examination by the Examining Authority and by the Secretary of State when making a decision. Applicants should treat the Consultation Report as an important part of the evidence base that underpins an application.

2. 2. Purpose of a Consultation Report

2.1 The Consultation Report must explain how the Applicant has complied with the pre-application consultation requirements set down in the PA2008; in particular:

• The requirement to consult with prescribed consultees (section 42);
• the requirement to consult with the community (section 47);
• the requirement to publicise the proposed application (section 48); and
• the requirement to have regard to consultation responses (section 49).

2.2 The report should also explain non-statutory consultation that takes place outside the requirements of the PA2008 so that the Secretary of State is given an understanding of all the consultation activity relevant to a particular project.

2.3 Applicants should additionally use the Consultation Report to demonstrate compliance with section 50 of the PA2008 (the duty to have regard to any statutory guidance issued by the Secretary of State) by illustrating how relevant statutory guidance has been followed. Where an applicant has diverged from any guidance this should be robustly justified in the Consultation Report.

3. 3. Format and content of the Consultation Report

3.1 Given the diversity of the projects that may use the PA2008 process it is not appropriate for the Planning Inspectorate to issue prescriptive ‘one size fits all’ advice. However, based on experience the following advice sets down some guidelines about format and structure, which may be helpful.

3.1 Introductory text

3.2 Introductory text should provide an overview including:

• A summary of the consultation activities undertaken; and
• a table or timeline summarising both statutory and non-statutory consultation in chronological order.

3.3 This section should explain the relationship between any initial strategic options stage, any subsequent non-statutory consultation that may have taken place, and the statutory consultation carried out under the PA2008.

3.4 Many Nationally Significant Infrastructure Projects (NSIP) evolve over an extended period of time with previous proposals that may have been consulted on then abandoned; in which case, a brief description of any historic consultation activity, including any information available about the scale and nature of the response at that time, would be of interest. A detailed planning history of the site is not necessary in this report.

3.2 Multi-stage consultations

3.5 Where the pre-application consultation included more than one stage of statutory consultation then it is usually helpful to reflect this in the structure of the report. In this way, each stage of consultation can be presented and explained chronologically in a separate chapter or section of the report, including any non-statutory consultation that took place. This can also include separate summary schedules of consultation responses.

3.3 Duty to consult (s42)

3.6 The report should include a list of all persons and bodies that were consulted, and when they were consulted.

3.7 It is helpful if the list is arranged according to the strand of section 42 consultee set out below, alongside the dates they were consulted. Specific advice about the nature of the information to be provided in respect of each strand is also set out below.

Prescribed consultees (s42(1)(a), s42(1)(aa) and s42(1)(c)

3.8 The list of the prescribed organisations should follow the order they are presented in Schedule 1 of The Infrastructure Planning (Applications: Prescribed Forms and Procedure) Regulations 2009 (the APFP Regulations). Any variations between the Applicant’s list of prescribed consultees and the list of organisations set out in Schedule 1 of the APFP Regulations should be robustly justified.

3.9 Where relevant, the list of prescribed consultees should also include the Marine Management Organisation – s42(1)(aa) and the Greater London Authority – s42(1)(c).

Relevant local authorities – s42(1)(b)

3.10 A short description of how s43 of the PA2008 has been applied in order to identify the relevant local authorities should be included. This could be supported by a map showing the site and identifying the boundaries of the relevant local authorities.

Persons with an interest in land – s42(1)(d)

3.11 The Applicant must demonstrate that diligent enquiry was undertaken to identify persons under s44 of the PA2008 and to ensure that an up to date Book of Reference is submitted. In that context, it is useful to set out the methodology for identifying persons in Category 3 (those who may make a relevant claim).

3.12 The Consultation Report should explain how many persons with an interest in land were consulted, under which category and when. It is not necessary to list the names of all individuals identified in the Book of Reference.

3.13 If additional persons with an interest in land were added and consulted following changes to the project boundary during the Pre-application stage, it is useful to describe:

• How many additional persons with an interest in land were consulted;
• when they were consulted;
• how they were consulted; and
• what information they were consulted with.

3.4 Duty to consult the local community (s47)

3.14 The Secretary of State needs to be satisfied that the Applicant has complied with the Statement of Community Consultation (SoCC) preparation process. Evidence should be submitted as part of the Consultation Report which shows:

• Which local authorities were consulted about the content of the draft SoCC;
• what the local authorities’ comments were;
• confirmation that the local authorities were given 28 days to provide their comments; and
• a description about how the Applicant had regard to the local authorities’ comments.

3.15 Following the coming into force of The Infrastructure Planning (Publication and Notification of Applications etc.) (Amendment) Regulations 2020 (the 2020 Regulations) Applicants no longer need to place paper copies of the SoCC on deposit at locations in the vicinity of the Proposed Development. Instead, Applicants should make the SoCC available for inspection online. Evidence that this has been done should be provided in the Consultation Report, for example, a screen shot of the relevant webpage showing the published SoCC (including the full website address and relevant telephone number for enquiries as required by the 2020 Regulations) and confirmation that the public could access the webpage free of charge.

3.16 Copies of the published SoCC notice as it appeared in the local press should be provided along with confirmation of which local newspapers it was published in and when. If a scan of a notice is not clear, then it can be supplemented with a document containing the text of the notice. Where it was not possible to place the SoCC notice in a printed newspaper, then a screen shot of the notice as it was published in an online local newspaper publication should be provided (including the full website address and relevant telephone number for enquiries as required by the 2020 Regulations), ensuring the date of publication is visible.

3.17 Where more than one SoCC was prepared for a project, eg where a SoCC was subject to one or more updates, the updated SoCC or SoCCs should be included together with a narrative about why the preceding SoCC was reviewed and updated.

3.18 Where there are any inconsistencies between the SoCC and the consultation carried out this should be clearly explained and justified eg where additional consultation took place that was not included in the SoCC or SoCCs.

3.5 Duty to publicise (s48)

3.19 A scanned copy of the s48 notice as it appeared in the local and national newspapers and journals, clearly showing the publication’s name and date of publication, should be included in the report. If the scan is of poor quality this should be supplemented with a copy of the text. A description of where the notice was published, and confirmation of the time period given for responses should be included in the report.

3.20 Where it was not possible to place the notice in printed newspapers, then screen shots of the notice as it was published in online newspaper publications should be provided (including the full website address and relevant telephone number for enquiries as required by the 2020 Regulations), ensuring the date of publication is visible.

3.21 Applicants should provide confirmation that the s48 notice was sent to the Environmental Impact Assessment (EIA) consultation bodies at the same time as the notice was published. See Regulation 13 of the The Infrastructure Planning (Environmental Impact Assessment) Regulations 2017 (the EIA Regulations).

3.6 Non-statutory consultation and engagement

3.22 Applicants may have been engaged in non-statutory consultation eg early consultation with statutory bodies may have been undertaken when identifying options and in advance of statutory consultation under the provisions of the PA2008. Applicants may also have been engaged in non-statutory consultation that takes place after the statutory consultation following changes made to the project.

2.23 In circumstances where statutory consultees were informed of non-material changes to the project, this should also be reported. It would also be helpful to provide a brief rationale about why the changes were considered to be non-material and an explanation of how consultees were informed. Where only some consultees were selected to be informed about a change, please justify the approach taken.

3.24 Any consultation not carried out under the provisions of the PA2008 should be clearly indicated and identified separately. Applicants should describe the non-statutory consultation that took place to the same level of detail as the statutory consultation. While it is not necessary for an Applicant to demonstrate how it has had regard to the consultees’ comments made in response to non-statutory consultation, it is useful to understand how comments received influenced the project.

3.25 If targeted consultation takes place, please explain the nature and purpose of the consultation. For example, if it was geographically focused what consultees were included and the rationale for the geographic extent of the consultation. If a reduced number of prescribed consultees were consulted, please explain the rationale for the selection.

3.7 EIA Regulations consultation

3.26 Consultation undertaken as part of the EIA process is separate to that required under the PA2008 eg statutory consultation on a Scoping Report following a Scoping Request to the Secretary of State. Applicants may wish to draw attention to consultation responses received under the EIA process, but any reference to that consultation should be addressed separately from the statutory consultation carried out under the provisions of the PA2008.

3.8 Report appendices

3.27 Appendices should be used to provide evidence that demonstrates compliance with the requirements of the PA2008. Careful consideration should be given to the structure and logic of the appendices so that they can be clearly signposted in the main body of the report. A helpful approach is to have separate appendices for each element of statutory consultation and publicity. Where multiple stages of consultation took place then it may be helpful to have a separate appendix for each stage, subdivided into the different strands of consultation.

3.28 Evidence of non-statutory consultation should be assembled chronologically in a separate appendix.

3.29 Using a referencing system that corresponds to the chapter or section headings in the report is also helpful.

3.30 If a large volume of consultation responses were received and reported on, then it usually makes sense to include the summary response tables in an appendix or appendices. A chronological approach which demonstrates the journey through the consultation is usually easier for the reader to understand and navigate.

4. 4. Reporting statutory consultation responses

4.1 It is necessary to demonstrate compliance with section 49 of the PA2008 by providing evidence that consultation responses have been taken into account during the preparation of the application.

4.1 Issues-led approach

4.2 If the level of response was significant it may be appropriate to group responses under headline issues. Care must be taken to ensure that in doing this the responses are not presented in a misleading way or out of context from the original views of the consultee. An explanation of the process by which consultation responses were grouped and organised (coded) is helpful, including any safeguards and cross checking that took place to ensure that the responses were grouped appropriately.

4.2 Summary of responses

4.3 A summary of the individual responses received should be provided and categorised in an appropriate way.

4.4 The summary of responses, if done well, can save a significant amount of explanatory text.

4.5 The summary of the responses should identify comments that are relevant (directly or indirectly) to changes made to the project during the Pre-application stage. For example, changes to siting, route, design, form or scale of the scheme itself, or to mitigation or compensatory measures proposed.

4.6 It is also necessary to explain why responses have led to no change, including where responses have been received after deadlines set by the Applicant.

5. 5. Virtual consultation methods

5.1 If virtual consultation methods were planned, then this should be reflected in the SoCC. In the usual way, the relevant local authorities will have been consulted about this and their feedback reported in the Consultation Report.

5.2 Where virtual consultation methods were deployed as a reaction to external circumstances then it is important that the views of the relevant local authorities are captured in the Consultation Report. If no review and update of the SoCC took place under the provisions of the PA2008, then this should be justified in the Consultation Report with reference to the views of the relevant local authorities about the approach adopted.

5.3 In general, where virtual consultation methods are planned then the SoCC should explain any mitigation measures put in place for digitally disadvantaged members of the community eg the use of telephone surgeries.

6. 6. Request for Applicant to provide consultation responses

6.1 If there is uncertainty about whether the duty to have regard to consultation responses has been met, the Applicant may be asked to provide a copy of any, or all, of the statutory consultation responses that were received. Applicants would be wise to prepare for this possibility because of the tight timescale at the Acceptance stage. It is the Applicant’s responsibility to ensure that copies of consultation responses can be provided in a timely manner, bearing in mind any obligations the Applicant has under data protection legislation. The Acceptance stage cannot be suspended or extended pending the submission of the consultation responses.

7. 7. Data Protection and redaction guidelines

7.1 Applicants must ensure that the Consultation Report complies with data protection legislation eg personal data of individuals is treated appropriately. This may include redaction of personal data, sensitive/special category data and/or obtaining informed consent from the individuals concerned as appropriate.

7.2 As a general guideline, applicants should avoid including the following items in a Consultation Report or redact them in advance of submission:

• Private home addresses of individuals or information that could lead to the identification of the location of a private individual.
• Private email addresses and telephone numbers of individuals.
• Sensitive or special category data within the meaning of the Data Protection Act 2018 and UK General Data Protection Regulation.
• Written signatures.
• Photographs of the faces of individuals who have not given consent to have their image published, including images taken at consultation events.
• Information that could lead to the identification of a specific location of a protected species.