Pre-Apps

An Overview of Water Licence Pre-Applications 

The Environment Agency acknowledge they are part of the planning apparatus of the state by dint of the fact that they are obliged by statute to refer appeals to the Secretary of State via Her Majesty's Planning Inspectorate. Their authority is subsidiary to  H.M. Planning Inspectorate. The lodging of an appeal completely negates the authority of the Environment Agency to do anything related to an application whilst the higher authority makes its deliberations.

The determination of whether a planning application succeeds rests on the merits of the actual formal proposal. If the formal submission for consent is properly framed and all the requested technical details and planning authority required compliances (which can be very diverse and onerous and include the views of local residents) are in order and accepted by both the authority and the applicant - then there is no reason to refuse an application.  In Essence The Environment Agency have invented a set of Pre-Applications procedures which are not mandated by the relevant statute and are attempting to coerce applicants into those procedures in an extremely inconsistent way.

We believe it's useful to use an analogy here.

Most car drivers are familiar with the concept of a pre-MOT. This is what pre-apps are. If you have a creaky older car and it has some obvious defects, it's likely that others will be found and you can save yourself the expense of re-applying for a failed test by having a pre-MOT. Pre-MOTs are obviously not mandatory (and heaven forbid it should ever be different) It's the actual MOT test that counts.

The way that some projects have been shepherded into the hydro pre-application process as has been done by the Environment Agency has been highly disingenuous,  ill conceived and woefully organised on their part (See *Notes (1)&(2)). Potential operators it would seem - have not been, and are not being advised/warned by EA officials that "pre-apps" are at the potential operator's own risk and form absolutely no part of the statutory process. The EA's own legal department has spelt this out to EA water permitting officers in precise and quite calibrated language (FoI link). It must be re-iterated >> Pre-applications are not a statutory requirement - period. Some officials clearly do not understand or chose to ignore the statutory "non status" of pre-apps.

It would seem that some EA permitting officer's zeal for their contrived pre-app process drove them to try and force pre-apps on as many potential operators as possible - even to the point where they seem to be saying that "we could do it anyway - and get the law changed later" (FoI Link). We have evidence that the Environment Agency have even been changing their own procedures retroactively - talk about moving the goalposts! (Project X Link)

At Weavers's Mill,, as we understand it - the primary reason for involvement in pre-apps was the proposal to raise the weir 300mm due to the marginal performance of their proposed Kaplan turbine at the present, existing lower hydraulic head at the Avoncliff weir. The consequences of raising the river level are obviously complex and not trivial, Miles of river and riverside land users would be impacted - Network Rail already has problems with the riverside track subsiding at "soft spots" along the River Avon between Bradford on Avon and Bath. Raising the weir also - rather obviously, requires the collaboration of the owner of half the river and half of the  weir... umm... that would be North Mill.

The primary reason for employing a project agent for  "micro" hydro power schemes is that you are retaining somebody with an intimate knowledge of the technology, knowledge of the regulatory process, experience and track record in bringing projects like a micro hydro plant into operation. They are supposed to know their business. So, going back to the MOT analogy - if you are a motor engineer, and believe your car to be sound and safe, you will not have qualms about submitting to a MOT test and saving yourself the expense of a pre-MOT......

The North Mill application was not formally faulted on any points by the EA, indeed, it received it's pass - but the EA refused to hand over the certificate even after issuing a draft license (Which must have been the result of a successful, peer checked determination report! (This report in our case was deemed "lost" by permitting managers and "found" by an independent EA investigator 1 1/2 years later....)  and promising "a license in a few days....".

The EA has truly made a mess of the process. North Mill at no time ever was required to participate in pre-apps - which in fact, since we tried to play with a straight bat (and be guided by the EA) we likely would have entered pre-apps if it had been asked for (We do, in hindsight deeply rue our acquiescence to the EA's repeated delaying tactics!). North Mill communicated with the Environment Agency in the lead up to the formal lodging of the application and the Ea were aware that a license application would be lodged - the North Mill application did not "come out of the blue".

The EA are obviously deeply embarrassed that they might be seen to have "led a potential micro hydro operator up the garden path to failure" (That would be Weaver's Mill) - by involving them in the EA hydro pre-app process and have indulged in an epic amount of intrigue to defend their inept meddling and have perverted proper process to promote Weaver's Mill - likely motivated in part by fear of legal action from that direction and also driven by some officials obvious addiction to arbitrariness. They have frankly, shown a deep contempt for the statutes that govern and regulate their activities. Their deliberately giving of a license to Weaver's Mill whilst an appeal to The Secretary of State was in place on the "reserved water" of North Mill and their serial "inability" to comply properly and with Freedom of Information law in a reasonable time frame simply amplifies and demonstrates their contempt for the Statutes and laws which govern them. 

The EA's highly arbitrary, obstructive and wilful antics continue



*Note 1) Since the Avoncliff application the EA have formalised the HEP pre-application with a new form WR315 and changed the original
 WR173 License Application to the WR317. The Pre-application is given a NPS/WR number to hopefully help track when it comes to the formal
 application (WR317) but joined up thinking prevails, there is no section on the WR317 to fill in the pre-application reference. 
As far as we are aware the obsession with dysfunctional paper continues and no database for nationally tracking pre-apps vs applications is 
even operational as of March 2011. . 

*Note 2) The EA, as evidenced by queries and responses from their own help desk by permitting officers - had no method for tracking pre-apps - 
this reflects on the status of pre-apps in the process - they were not deemed important enough to track formally inside the EA. 
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