welsh government responses to examining authority… · the proposed tidal lagoon swansea bay...

The Proposed Tidal Lagoon Swansea Bay (Generating Station) Order 1

WELSH GOVERNMENT

RESPONSES TO EXAMINING AUTHORITY'S WRITTEN QUESTIONS

TLSB'S COMMENTS

No. Question to Question Answer to Examining Authority

1 PRINCIPLE OF DEVELOPMENT: ASSESSMENT APPROACH and POLICY BACKGROUND

1.1 Applicant, Welsh Government (WG), Natural Resources Wales (NRW) and Local Authorities (LAs)

Although National Policy Statements (NPSs)

EN-1 and EN-3 are referred to in the Planning Statement (application document 8.2); no NPS is designated in relation to tidal projects (as made clear in paragraph 1.4.5 of National Policy

Statement EN-1). However, the Panel considers that the policies in the Energy NPSs relating to the way in which Development Consent Orders (DCO) should be set out are potentially important and relevant to this examination. Interested parties are invited to comment upon this and to identify any further or particular policies in NPSs that they consider important and relevant to the examination (as described under Section 105(2) (c)) of the Planning Act 2008 (PA2008)).

We are aware that there is no NPS for wave and tidal projects. However, as advised in our relevant representation dated 11 April, it is our understanding that in the absence of a specific NPS the Planning Inspectorate will consider Energy Wales: A Low Carbon Transition, Planning Policy Wales, the UK Marine Policy Statement and all other relevant Welsh policies.

With regards to how the DCO should be set out, we would advise that careful consideration is required by the Planning Inspectorate on the provisions within the DCO to ensure the devolution settlement is adhered to.

1.3 Applicant, WG and LAs Given that there is no designated National Policy Statement in relation to the proposed development; given the breadth of information provided in the Planning Statement, which key established policies of government or of local government in Wales/the United Kingdom/internationally, is it considered that the need for the project is set out?

We consider this to be a matter for the Planning Inspectorate to consider. However, please refer to our response to question 1.1 in respect of our policies.


1.4 WG and LAs a) Do the WG and LAs accept that the need case for the project is made, as set out in the Planning Statement?

b) In particular, that in principle, the project conforms with Planning Policy Wales (PPW)?

We consider that it is a matter for the Planning Inspectorate to establish and satisfy itself that the case for the project is set out.

With regards to point b, it is not possible to accept this point. PPW contains a number of policy considerations which appear to have been omitted from the Planning Statement.

In particular, Chapter 5 (Conserving andImproving Natural Heritage and the Coast),Chapter 12 (Infrastructure and Services)Sections 12.8.17 and 12.8.21, which identifythose ancillary structures onshore, will requireplanning permission and the role of localplanning authorities, and Section 12.10.

TLSB's Comment(s):

TLSB has addressed the Project’s compliance with Chapter 5 in its Response to Written Question 1.4b (paragraphs 28 to 36).

Regarding Chapter 12, section 12.8.17, the Project is an offshore generating station in excess of 100MW and therefore qualifies as a NSIP under the PA 2008. TLSB considers that – in the particular circumstances of the case – all elements of the Project applied for under the PA 2008 are integral to the Project and no ancillary consents are included. Regarding Chapter 12, section 12.8.21, the same argument applies.


1.6 LAs, NRW and WG Table 9.2 of the Planning Statement and the document entitled ‘proposed Heads of Terms for a Development Consent Obligation (DCOb)’ indicate an Obligation is due to be agreed.

The Table of Mitigation sets out a number of mitigation measures to be secured by the DCOb. Which aspects of the DCO, if any, are considered by the LAs, NRW, WG to be essential to enable the scheme to be consented?

The Welsh Government would question whether all the items identified in the DCOb are necessary and relevant to the delivery of an "offshore generating station over 100MW" as is being applied for under Section 14(1)(a) and 15(3) of the PA 2008. That is, are they a necessary development to enable the operation and generation of electricity ("the project" - defined in para 3.1 of the DCOb Heads of Terms)?

We advise that careful consideration is needed of Section 115 of the PA2008 and to whether the definition of development which can be covered by a DCO is lawful.

In particular, we question whether the following items are relevant to "the project", not withstanding the amenity value; Shuttle Bus Stop and Bicycle Parking, bicycle racks, water shuttle, visitor information boards, viewing platform, public realm, laboratory facilities, boat and sailing centre, visitor and educational centre, public art and sculpture in the sea and around the lagoon wall.

TLSB's Comment(s):

Tidal lagoons are unique in being an energy generating station with intrinsic functionality as a water sports and recreational destination in respect of which the elements listed form part.

A number of the elements listed also function as mitigation against impacts of the scheme, as set out in the ES Chapter 23. See also comments on


WG’s Response to Written Question 1.11.

Whilst items above may not be "essential" in a strict sense, they form part of the Project and it would not be appropriate to exclude them from it.

Bus stops are commonly provided as part of installations to ensure accessibility and there is no reason why one should not form part of the Project;

Bicycle parking ensures healthy and sustainable commuting for workers and visitors - it would be inappropriate to exclude an element such as this since parking for cars and other vehicles is not questioned;

Water shuttle elements (pontoons) are included to ensure that the Project can be made accessible from Swansea;

Visitor information boards could form part of buildings and, as such cannot be criticized purely on the basis of being a free-standing item;

A viewing platform is provided to mitigate effects upon Crymlyn Burrows SSSI. As such, it is essential and appropriate mitigation;

Public realm is as much part of any well-designed project as it is for any other development. This could be foregone if


the public were not admitted to the Project, but this would forego a benefit that the Project can supply;

Laboratory facilities are required to support the long-term management and mitigation of the effects of the Project, as well as providing benefits;

A boating and sailing centre is provided to off-set the loss of the ability to navigate within the footprint of the Lagoon;

A visitor centre is provided in line with other innovative energy projects and is comprised in and integral to operational and management facilities also provided;

Art and sculpture in the sea is not provided as part of this application; and

Mounting for future art on the sea wall can be formed integrally with the sea wall itself - it would not be a separate, severable element.

1.8 NRW, LAs and WG Are the proposed mitigation measures and the way they are proposed to be secured by the draft DCO (as listed in the Table of Mitigation) considered to be sufficient?

This is a matter for the Planning Inspectorate to establish. However, we request that you take into account any comments from NRW on the proposed mitigation.

1.11 Applicant and all interested parties

The applicant includes in its proposed DCO, a range of works that might not normally be considered as principal development in an application for a

As previously advised, careful consideration by the Planning Inspectorate is needed on the draft DCO to ensure the devolution settlement is


generating station. However, the Panel recognises that PA2008 does not place a limitation on the scope of principal development, and that guidance on the subject is not prescriptive or binding.

The Panel invites legal submissions from the applicant to support its position that all the proposed development is properly described as principal development, and from any party who wishes to argue against that position.

respected.

We wish to note that none of the development comprised in the draft DCO can be considered to be ‘associated development’ for the purposes of Sections 115(2) and 115(3) of the 2008 Act. On the basis that such development does not involve the carrying out or construction of surface works, boreholes or pipes that are associated with underground gas storage facilities falling within Section 17(3) of that Act.

Therefore the question arises as to whether the development comprised in the DCO “is or forms part of” the NSIP for the purposes of Section 21 of the 2008 Act.

In order for the development to be considered to be forming part of NSIP, it is our view that there must be a sufficient link between the substance and purpose of such development and the “principal development” (i.e. the ‘core’ of the NSIP, that being the generating station itself).

It is also considered that such development must be necessary to enable the operation of the principal development or "project", which involves channelling a head of water through a turbine to generate electricity to distribute on to the national grid. A test that could be applied is whether it would be possible to construct and operate a generating station without the development in question.

If the element of development in question does


not satisfy the above, a further question arises as to whether such development requires devolved consent.

The preservation of the devolution settlement is extremely important. Paragraph 7.31 of the UK Government’s explanatory memorandum to the

Infrastructure Planning (Miscellaneous Prescribed Provisions) Regulations 2010 itself describes the intention that the 2008 Act, and the provision made under it, should preserve the devolution settlement, and discusses how this is to be achieved by ensuring that powers over devolved consents are not relinquished in the absence of the express consent of the appropriate devolved person or body.

Therefore, where development does not form part of the NSIP for the purposes of Section 21 of the 2008 Act, and such development would otherwise require a devolved consent in order to be lawfully carried out, consent for such development is to be sought from the appropriate devolved person or body, and not granted by the DCO.

On this basis of the above we would question the inclusion of the following elements under Schedule 1 of the draft DCO:

Work No. 1a (visitor centre, viewing areas, boating facilities, park and landscaping),


Work No. 2 (viewing areas, siting locations and mounting facilities for works of public art)

Work No. 5i & j (11kv or 33kv cable connection - these are under the 132kv threshold)

Work No. 6a/b (visitor orientation and boating facilities, visitor parking spaces and facilities, laboratories, boat storage)

Work No. 7 (highways and access)

Work No. 9a (Pontoon and piles on the east bank of the River Tawe)

Work No. 10 (in particular pedestrian and cycle routes and structures)

Work No. 11(a beach area, visitor/information point to serve Crymlyn Burrows SSSI, waterfront public realm, internal site roads and vehicle parking facilities, workshops and stores, bunds, embankments, swales, landscaping and boundary treatments and fencing.

We would refer you to paragraphs 7 to 9 of our letter dated 11th April 2014 regarding S115 of the PA2008 and the need to ensure that the devolution settlement is adhered to.

TLSB's Comment(s)


These items are addressed as follows:

In Work No. 1a, the visitor centre is part of the operation and management building and facilities for the Project. This is a common approach to delivery of power projects. Viewing areas are simply a treatment of the sea wall, not being appropriately excluded - they are not severable. The boating facilities are part of the western landfall and provide part of the mitigation for loss of opportunities to use Swansea Bay if not provided. Landscaping is part of the good design required of any NSIP;

In work No.2 the above comments also apply, but it is added that mounting facilities for public art are merely engineering treatments of the sea wall. They are not severable and the art itself is not proposed as part of the Project.

For Works No. 5i and 5j, the threshold for the inclusion of cable is not 132kV, when the cable is part of another project. Here, these cables afford an ability toprovide benefits to local power users (DCC and SUBC) and as such confer a collateral benefit of the Project.

In Work No. 6a/b the visitor orientation, parking and facilities are integral to the Project and not truly severable. If - as is proposed - the Project will be accessible


to the public, these must be supplied. Tthe laboratory facilities support mitigation for the Project and deliver benefits from its construction. The need for boating facilities is described above.

Work No 7 provides the access to the Project, without which it could not function;

Work No 9a provides linkages to the centre of Swansea, and as such are included to ensure that the Project and its integral public realm can be made accessible to the public;

Work No 10 comprises part of the mitigation and enhancement in terms of ecological provision for the Project. Pedestrian routes are necessary for accessibility of the public realm as described above and the inclusion of provision for cyclists is incidental;

Work No 11 provides for the proper design of the eastern landfall of the Project, a suitable waterfront for SUBC and mitigation in respect of visitor pressure on Crymlyn Burrows SSSI; and

The additional works elements are required: to ensure accessibility for proper and safe management in the case of site roads; to ensure proper engineering facilities for operation and


management in the case of workshops and stores; to allow proper landscaping in the case of bunds, embankments, swales and landscaping; and to provide physical and environmental security in the case of fencing.

1.17 WG relevant LAs and NRW Does the project (Tidal Lagoon Swansea Bay) help deliver against the following:-

a) Climate Change Strategy for Wales (Welsh Government, October 2010)

b) Low Carbon Revolution- Welsh Government Energy Policy Statement (2010)

c) Energy Wales: A Low Carbon Transition (2010)

d) Planning Policy Wales (Ed 5, 2012)

e) Marine Renewable Strategy Framework, Approach to Sustainable Development (March 2011)

f) Ministerial Policy Statement on Marine Energy in Wales (July 2009)

g) Interim Marine Aggregates Dredging Policy, Welsh Government (2004)

We consider that it is a matter for the Planning

Inspectorate to satisfy itself that the

project helps to deliver on all relevantpolicies.

However, we wish to note that EnergyWales: A Low Carbon Transition sets outthe Welsh Government's ambitions tocreate a low carbon economy for Wales.

It also sets our priorities for leading thetransition to a low carbon economy, andrecognises marine energy as a reliable sourceof renewable energy that could provide asignificant contribution towards a low carbonenergy mix of the future.

We are keen to maximise long-termeconomic benefits and job creation potential and we want to ensure our communitiesbenefit from energy infrastructure developments.

However, we recognise the need to carefullyplan and manage the relationship betweenenergy development and our naturalenvironment in line with our ambition of


'Sustaining a Living Wales'.

Furthermore, we advise that any decision madewould also need to be taken in line with the UKMarine Policy statement.

With regards to the Interim Marine Aggregates Dredging Policy, please note that any use ofmarine won aggregate in the project will befrom a licenced aggregate site. If that licencedsite is within South Wales, the licence wouldhave been granted in line with IMAD-P. Theproject is being taken forward in the context ofIMAD-P itself but does not 'deliver' the policy.

Finally, please note that the current version ofPPW is Edition 6 (February 2014) and EnergyWales: A Low Carbon Transition is dated 2012not 2010.

TLSB's Comment(s):

TLSB does not wish to comment on this point at this stage.

1.18 WG relevant LAs and NRW Do the parties consider that within the Welshcontext there are any other present or forthcomingfuture policies, strategies and initiatives that arerelevant to the examination and therefore that weshould consider during our examination of the Project?

Please refer to our response to question1.1 and our relevant representation dated11 April for the policy context.

TLSB's Comment(s):

TLSB does not wish to comment on this point at this stage.


1.19 WG relevant LAs and NRW In framing of the application for the project, theapplicant states that due notice has been givento the following TAN’s:

TAN 5 : Nature Conservation and Planning (2009)

TAN 8 : Renewable Energy (2005)

TAN 12 : Design (adopted 2009)

TAN 14 : Coastal Planning (1998)TAN 11: Noise (1997)TAN 15 : Development and Flood Risk (July 2004)TAN 21 : Waste (2001)

a) Are there any elements within the application that fail to conform with or contradict the above TANs?

b) Are there any other TANs that the applicant should have considered?

This is a matter for the Planning Inspectorate toconsider.

However, the applicant states that they haveprepared a Flood Consequence Assessment(FCA) in accordance with the requirements ofTAN15. It is not clear from the list of submitteddocuments as to where the FCA is provided /available. Notwithstanding this, certain paragraphs of the ES would appear to not be in conformity with TAN15. Paragraph 17.3.3.4 has misquoted TAN15, which actually states inparagraph A1:12 that there should be "noflooding elsewhere" not "flood risk".

Furthermore, paragraph 17.5.3.5 of the ES has considered the impact of the development onflood risk elsewhere around Swansea Bay.However, this identifies a 1 in 20 year returnperiod. Paragraph A1.2 of TAN15 states that inassessing the risk of flooding the consequences (i.e. the overall impacts) of the development onflood risk elsewhere within the catchment for arange of potential flooding scenarios up to thatflood having a probability of 0.1% [or 1 in 1000 chance of occurring in any year] should beconsidered as part of a flood consequenceassessment.

TLSB's Comment(s):

The updated FCA dated June 2014 explicitly addresses the requirements of TAN15 (section


2.10.10). This includes an assessment against A1.12, A1.14 and A1.15 of TAN15, which addresses all the points above from WG. The FCA demonstrates that the risk and consequences of flooding can be acceptably managed in line with TAN15.

1.22 WG and CCSC a) Does the project conform with the UDP and its key role in delivering Sustainability

b) Does the project aid the delivery of the Shoreline Management Plan (SMP2), Lavernock Point to St Anne’s Head?

It is not for the Welsh Government to comment on whether the project conforms with UDPs. We suggest the LAs might like to comment on this and question b.

5 COASTAL BIRDS AND MARINE MAMMALS

5.6 Interested Parties (IPs) with an interest in coastal birds, including, but not limited to NRW, LAs and RSPB

a) Has the ES considered all of the projects that should be identified in terms of cumulative impacts upon coastal birds? If there are any projects missing, please explain the link between this Project and the other projects.

b) Are the mitigation measures that are proposed for the cumulative impacts from this Project and the Swansea University Bay Campus (SUBC) (in the form of a warden employed during the operational phase and the creation of a beach which would be an alternative focus for visitors) appropriate and adequate?

This is a matter for the Planning Inspectorate to consider. However, NRW should be able to advise on these points to assist the Planning Inspectorate in carrying out their Environment Impact Assessment on the DCO application.

7 IMPACTS UPON FISH MIGRATION AND FISING AREAS

7.3 Interested parties Does the ES address the requirements for on-

going monitoring, review and mitigation of theeffects of the Project upon fish populations?

The Environmental Statement has captured all the relevant fisheries (commercial, mariculture and recreational) and relevant data on those


fisheries.

7.4 Applicant and Interested Parties including, but notrestricted to NRW and theWildlife Trust of South andWest Wales

The ES proposes to use acoustic fish deterrents as mitigation to lower the numbers of fish entrainedthrough the turbines, if this becomes a significantissue.

Is there evidence that identifies that acoustic fish deterrents have a significant effect upon other species such as seals and porpoise?

This is a matter for the Planning Inspectorate to consider. However, NRW should be able to advise on these points to assist the Planning Inspectorate in carrying out their Environment Impact Assessment on the DCO application.

7.5 Applicant andany interested parties who have an interest in this issue

a) Does the ES sufficiently recognise the importanceof the local fishing industry in the Swansea Bay areaas a local employer and a supplier of local producecaught sustainably which is supplied into the local markets?

b) Is there sufficient mitigation proposed to address the loss of this economic activity?

The Environmental Statement has considered the mitigation measures necessary for some of thefisheries, however, it would benefit fromexploring these further especially given thetimescales for aquaculture operations to develop.

TLSB's Comment(s):

The updated AEMP (submitted 5 August 2014) provides additional mitigation detail.

9 FLOODING

9.2 Applicant and Relevant Interested Parties including (but not limited to) DCWW and NRW

Have the potential impacts from extreme wet weather/high wind and high tide events (as were experienced in early 2014 in many coastal areas) been considered within the ES?

Questions 9.2 – 9.4, we consider these a matter for the Planning Inspectorate. However, NRW should be able to advise on these points to assist the Planning Inspectorate in carrying out their Environment Impact Assessment on the DCO application.

9.3 Applicant and Relevant Interested Parties including (but not limited to) DCWW

When high tides within the lagoon coincide with extreme wind and rainfall events, what is the likelihood of the lagoon over-topping in the vicinity of the ecological park area on the northern boundary


and NRW of the lagoon?

9.4 Applicant and Relevant Interested Parties including (but not limited to) DCWW and NRW

Would a high water level in the lagoon, under theseextreme weather conditions, cause surface storm water to back up and groundwater levels to increase in nearby areas, thus increasing the risk of flooding of basements in nearby properties?

10 SOCIO-ECONOMIC, HEALTH AND TERRESTRIAL TRAFFIC AND NOISE IMPACTS

10.5 Interested Parties including (but not limited to) the City and County of Swansea and Neath Port Talbot County Borough Council

a) In view of the large number of visitors expected at the water based sporting events, is there adequate car parking proposed (circa 300 spaces around the development)?

b) Is there capacity at the existing park and ride facility to accommodate the vast majority of visitors during these events?

Parking requirements are a matter for the LAs. However, the requirements must comply with the All Wales CSCS Parking Guidelines.

10.8 Interested Parties Table 15.18 of the Onshore Transport Assessment shows a well dispersed spread of car arrivals and departures over the day during major events.

a) Is this a robust and credible way of considering car movements associated with major events?

b) Would major sporting events not attract most visitors for the start of the event with the majority leaving after the event is completed, akin to a major sporting event such as a football or rugby match.

The Welsh Government would need sight of event management plans to be able to comment and advise on this question. We would also like reassurance that management plans would be in place.

TLSB's Comment(s):

TLSB does not consider that the Welsh Government is directly affected by event management, but is willing to consult it.

10.13 Interested Parties including (but not limited to the LAs)

a) Are the LAs and other IPs with an interest in noise and vibration issues satisfied that Chapter 19 of the ES (Noise and Vibration) suitably addresses the requirements of Welsh national, BS requirements

Question 10.13 is a matter for the LAs. However, we would agree that it is the events themselves that would be a concern especially to


within BS5228 and local policy on these matters?

b) Are the LAs and other IPs with an interest in noise and vibration issues satisfied that the baseline noise data gathered in 2013 adequately reflects the existing base-line conditions across the area of study and the locations chosen for the baseline noise monitoring reflect suitable nearby noise sensitive property locations?

c) Given the applicant’s aspiration to use the lagoon for national triathlon, sailing and swimming events which will attract up to 100,000 people per year, with each event attracting up to 8000 visitors, does the noise assessment adequately assess the impacts of these events upon the local community and nearby noise sensitive receptors including the SUBC?

any local residents.

10.17 Interested Parties including (but not limited to) NRW and The Applicant

a) Are NRW and other interested parties who have an interest in the marine ecosystem satisfied that the details supplied within ES Chapter 19 suitably address the impacts of noise and vibration arising from the development on marine animals including fish?

b) Is the conclusion in Paragraph 19.8.0.5 of ES Chapter 19 on noise and vibration that, “overall it can be concluded that the noise and vibration impacts related to all aspects of the development are likely to be negligible” founded on a sound and credible evidence base?

This is a matter for the Planning Inspectorate to consider. However, NRW can advise on these points to assist the Planning Inspectorate in carrying out their Environment Impact Assessment on the DCO application.

10.18 The Applicant and Interested parties including LAs

Paragraph 16.3.1.6 of the ES chapter on Air Quality states that the emissions from the batching plant can be reasonably considered to not be significant and

This is a technical matter for NRW and the LAs to consider and advise on.


therefore have not been considered in this assessment. This is because reliance is being placed upon the Part B permit requirements for the concrete batching process, if a DCO is granted.

a) Is this a robust and credible way of assessing emissions from the concrete batching plant within the construction sites, that is leaving it to the permitting process?

b) Were dust emissions from the loading/unloading of construction aggregates and from vehicle movements on the fabrication plant yard areas considered elsewhere in the report?

10.19 Applicant (both a and b) and Interested Parties (a)

a) Given the meteorological wind rose for Pembrey Sands (Figure 16.2), which shows that the wind direction is predominantly from the west and south west, has sufficient consideration been given to the potential impacts of wind-blown particulate matter from the construction areas and haul roads upon nearby receptors situated to the east and north east of the on-shore construction areas?

b) The ES chapter on Air Quality, paragraph 16.5.2.4 states that “with regard to particulate matter, increases of an imperceptible magnitude are modelled at all receptors. … Imperceptible and small impacts are negligible, which is not significant”. What sources of particulate matter were considered in order to arrive at these statements?

This is a technical matter for NRW and the LAs to consider and advise on.

11 SEASCAPE, LANDSCAPE AND VISUAL ASSESSMENT (SLVIA)


11.3 Interested parties Will the Project have an effect on the visual amenity of the Gower Area of Outstanding Natural Beauty (AONB) or do you agree with applicant that in the Regional Seascape Unit 2, Mumbles Head to Three Cliffs Bay, 13.5.2.17:-

“The Zone of Theoretical Visibility indicates that from the land based areas and areas immediately adjacent to the coastline, the topography of the area, including the headlands and cliffs screen views of the Project”?

We consider this to be a matter for the Planning Inspectorate to determine. However, we would request that any comments from NRW on this issue should be taken into account.

11.4 Interested parties Do you agree with the basis of the applicant’s statement outlined in para 13.5.3.7, that an industrial landscape’s contrast with a simple form of seascape / landscape creates a visual interest as opposed to a detracting feature?

As question 11.3 above.

13 COMPULSORY ACQUISITION OF LAND / RIGHTS OVER LAND

13.5 LAs and WG Do the LAs or WG object to or have comments upon any of the proposed powers to be acquired over streets in articles 9 to 12 (or upon the articles that would grant supplementary, tidal works and miscellaneous and general powers over land) through the proposed DCO?

As previously advised, careful consideration of all the provisions within the DCO is needed to ensure the devolution settlement is respected.

However, to note that the Welsh Ministers are content with the tidal works provisions, requiring approval of the Welsh Ministers in cases where there is no marine licence required.

13.7 DCWW, WG, NRW and LAs Does Welsh Water, the WG, the LAs or NRW object to any of the powers proposed to be acquired in relation to drains and watercourses in proposed article 13?

We have concerns about allowing the developer to use the existing drainage network. If the network is not able to cope with the additional use then it will overflow potentially putting the Welsh Government in breach of the Urban Waste


Water Directive.

We also wish to note that it is important to ensure that any drainage the developer introduces or uses will be and remain sustainable.

Dŵr Cymru and NRW can advise further on this.

13.20 LAs and WG With regard to the need for there to be a compelling case in the public interest for land to be compulsorily acquired (s 122(3) PA2008) the applicant states, in its Statement of Reasons (paragraph 5.9), that the proposal would be in the public interest because it would fulfil the objectives set out in the UK Government’s 2007 Energy White Paper and the Climate Change Act 2008.

Do the LAs and does the WG agree that the proposed development presents a compelling case in the public interest with reference to this policy and this act?

We consider that it is a matter for the Planning Inspectorate to determine whether there is a compelling case for the project.

To note, it is our understanding that Crown Land cannot be compulsory purchased.

13.21 LAs, Applicant and WG For the avoidance of doubt, what are all the factors that are regarded as constituting evidence of a compelling case in the public interest for the compulsory acquisition powers sought and where (if anywhere), giving specific paragraph references, are these set out in the Statement of Reasons?

This is a matter for the Planning Inspectorate to determine.

TLSB's Comment(s):

As set out in TLSB’s answer to ExA Written Question 13.21, the purpose of the Application is set out at section 5C of the Statement of Reasons; further, paragraph 7.7 in section 7B explains that the Project will contribute to the fulfilment of UK Government Policy. At section 7G the compelling case in favour of the Project is set out in brief. This case is elaborated in other documents and the Planning Statement (doc ref


8.2) in particular. The Planning Statement is incorporated by reference at paragraph 7.58 and 7.59 of the Statement of Reasons.

13.40 LAs and WG Does the WG or LAs object to any of the proposed powers to make the byelaws listed in proposed article 44(2) (a) to (f) or to any other parts of the proposed article?

In accordance with the devolution settlement it is suggested that the appropriate "confirming authority" should be Welsh Ministers rather than the Secretary of

State (SoS). The Explanatory Memorandum for the draft DCO expressly refers to Section 236 of the Local Government Act 1972 as providing the template for these provisions.

S236 (10) states "In this section the expression “the confirming authority” means the authority or person, if any, specified in the enactment (including any enactment in this Act) under which the byelaws are made, or in any enactment incorporated therein or applied thereby, as the authority or person by whom the byelaws are to be confirmed, or if no authority or person is so specified means the Secretary of State". Therefore it would appear possible to appoint another body other than the SoS.

TLSB's Comment(s):

TLSB is content for WG to be the confirming authority.

14 OTHER DCO MATTERS


14.8 WG and LAs Do the WG/LAs have comments they wish to make upon the proposed extension of the county boundary?

The Welsh Government needs to consider this further. However, we question whether the DCO can lawfully include this provision.

TLSB's Comment(s):

TLSB considers that the DCO can lawfully include this provision on the grounds that it is precedented in other statutory orders and not excluded by the PA 2008 or otherwise.

14.24 Applicant, WG and LAs As drafted, Schedule 6 would arguably fetter the quasi-judicial decision making processes of the Welsh Government. In addition the Schedule circumvents the process for planning appeals established under the TCPA1990 as usually inserted into Orders made under PA2008. Should the usual provisions for planning appeals as set out in the TCPA1990 be inserted into the draft DCO in place of draft Schedule 6.

The Welsh Government agrees that the appeals provisions in Schedule 6 fetter the decision making process, and propose that the 1990 Act provisions typically inserted into DCOs are preferable.

TLSB's Comment(s):

TLSB considers that the acceptability of the appeals provisions is a matter for the local authorities. Both local authorities have objected to the provisions in their LIRs, but both have agreed to consider the matter further should resources be made available to support their consideration of discharge applications on this basis.

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