Fferm Wynt Coedwig Clocaenog
Denbighshire County Council (DCC) wrote to request advice on the scope of the draft DCO for the proposed Clocaenog wind farm.
Cyngor a roddwyd
Associated development for NSIP DCO applications in Wales
PINS1 ? The definition in the Planning Act 2008 of "associated development" as it applies to development in Wales is very limited. It only applies where the development is associated with underground gas storage facilities. Development in Wales which is not an NSIP and which falls outside of the definition of associated development (s.115 (1) (2) (4) of the 2008 Act) would require planning permission from the local planning authority (LPA) in the usual way. PINS has previously responded to a request for advice from RWE on a similar point in which it repeated the above; but also explained that, it would be for an applicant to demonstrate that what is in a submitted DCO was an integral part of the proposal.
Whether a requirement in the draft DCO can require the implementation of off-site works such as those in a traffic management plan.
PINS2 ? Requirements can be included in a DCO if they are in connection with the development for which consent is granted (PA 2008 s.120). In Wales this will be the NSIP only unless it is associated development (see above). Requirements can cover matters within the site boundary (order limits) e.g. limiting construction times. Grampian style requirements can be included in the DCO to cover offsite works. The draft DCOs on the Brechfa Examination web pages in the hearings sections (link lower down) has examples of how such requirements can be drafted. There is also a similar example in the draft versions of Hinkley DCO which are also on the Hinkley examination website.
The Welsh Government submission to the Brechfa Examination has addressed this point. The Brechfa Examination and the latest version of the draft DCO at the close of that examination may provide the latest position on this matter.
Whether the draft DCO can require an entire habitat management plan is implemented or whether off-site measures also need to be subject to a S106.
PINS3 ? If the measures are dealt with by requirements which are in connection with the NSIP then they can be included within a DCO. There is also an issue about how the developer will gain access to the land to implement and secure the measures. The Examining Authority (ExA) will want to ensure that any mitigation measures are secured (whether temporarily or permanently depending on the nature of the measures). Grampian style requirements can ensure that any offsite measures (via a scheme) are approved by the LPA. The LPA will have an opportunity to input in to the wording of the requirement during the examination and the applicant should formally and where possible informally consult the LPA during the pre-application stage on such provisions. See Brechfa draft DCO on NI website page.
This matter was discussed at the Brechfa Examination. Again, this may be covered in the most recent version of the draft DCO for Brechfa.
What happens if a local authority and an applicant are unable to agree a proposed draft S106 deed? What provisions are there to ensure an ExA and the SoS can be satisfied that off-site mitigation measures can be addressed?
PINS4 ? A S106 signed by both parties is generally the best option where possible. Failing that the applicant may submit a unilateral undertaking with proposed mitigation measures. However, this could be less desirable from a LPA?s perspective.
Draft DCO provisions for decommissioning. Whether a bond can be used to secure decommissioning
PINS5 ? The Brechfa draft DCO has an example of a decommissioning requirement. In principle, there doesn't seem to be any reason why a bond could not be required if appropriate. This was discussed at the DCO hearing for the Brechfa application. Link to the Brechfa DCO hearing page: attachment 1
The DCO hearing was the last Issue Specific Hearing on 12 July 2012.
Whether the S106 can be used to secure a community compensation fund to compensate businesses that are disrupted during the construction period (e.g. local shops that experience a reduction in trade as a result of road closures / diversions during the construction phase)
PIN6 ? Neither articles or requirements in a DCO can require the payment of money. A S106 agreement can, but it would have to meet the legal tests in the CIL Regulations. A local authority would need to take its own legal advice on whether what it is proposing meets those tests. The payment of compensation is a matter that can be included within a DCO as an ancillary matter (PA 2008 s.120(3) and Schedule 5) but whether it would be appropriate to include such a provision to deal with such compensation would be a matter for a ExA and the relevant SoS in making a decision on an application. A similar matter was addressed at the Hinkley examination. The latest versions of the draft DCO for the Hinkley proposal may also provide some insight into this. The schedules and the annexes for the Hinkley S106 cover this matter. This is all currently available via links on the National Infrastructure Hinkley examination front page.
Enforcing an approved DCO
PINS7 ? The LPA is responsible for enforcement if the developer is in breach of any provisions in an approved DCO including the requirements (s.160 and s.161 of the 2008 Act).