Fferm Wynt Coedwig Clocaenog
a) When Mrs Burden ( the single inspector) has prepared her report to send to the Secretary of State will this report contain her recommendations to the Secretary of state as to what action should be taken on RWE's application or will it be merely statements of fact arising from her investigations ?
b) If the the report does contain recommendations will this take the form of either approval or rejection of the plan in total or can she recommend partial acceptance e.g variations in numbers , siting or size of the turbines ?
c) When the Secretary of State makes his final decision on the application will he have have the same options of total acceptance or rejection or partial acceptance of the application ?
Cyngor a roddwyd
Firstly I would like to draw your attention to wording set out in Item 7 of the Rule 8 letter issued by The Planning Inspectorate on 23 September 2013 which provided a response to your query at the Preliminary Meeting. This stated that:
Mr Tilby raised a query concerning changes to the scheme in terms of whether the Examining Authority (ExA) would have the power to recommend to the Secretary of State for Energy and Climate Change (DECC) that the Applicant should remove/reduce the number of turbines. In answer to that query, an ExA does not have the power to substitute an alternative proposal for the application proposal and recommend that alternative proposal to DECC even if the alternative, on the face of it, may appear to be more acceptable or give rise to fewer objections.
Therefore in direct response to your queries outlined in your email below the following is advised:
a) As set out in Section 83 (2) of the Planning Act 2008, the person appointed to examine and report on the application (in this instance Mrs Wendy Burden) will make a report to the Secretary of State on the application setting out (i) Mrs Burden's findings and conclusions in respect of the application, and (ii) Mrs Burden's recommendation as to the decision to be made on the application.
b) As advised in the Rule 8 letter, and as set out above, an Examining Authority does not have the power to substitute an alternative proposal for the application proposal and recommend that alternative proposal to the Secretary of State even if the alternative, on the face of it, may appear to be more acceptable or give rise to fewer objections. An Examining Authority has a duty to consider the application as made. An applicant may however propose a change to an application which has already been accepted for examination. If that were to happen, the ExA would need to decide whether or not the proposed change was a material one, resulting in a substantially different project than that which was proposed in the original application. If the ExA decided that it was material, the applicant would then have to decide whether to continue with the original application or withdraw the application and start again with a new one.
c) Section 114 of the Planning Act 2008 states that when the Secretary of State has decided an application for an order granting development consent, the SoS must either (a) make an order granting development consent, or (b) refuse development consent. With regard to any proposed changes,the position is the same as in answer b) above. DCLG Guidance on the Examination of Applications states that "When an applicant submits a proposed change to a proposal, The Secretary of State will need to decide on the materiality of the change and whether it is of such a degree that it constitutes a new project or whether it can still be considered under the existing application. If the Secretary of State decides that the change is such that it would result in a materially different project, the applicant will then have to decide whether to withdraw the existing application and restart the pre-application process or whether to continue with the application in its original form" (paragraph 106).
In both cases if any proposed changes were considered to be non-material ones, then the ExA or the SoS would need to consider whether those affected by the proposed change have had, or will have, an opportunity to be consulted.
Mitigation proposals may be put forward by the applicant or third parties as proposed changes. The decision maker must have regard, under s104 of the 2008 Act, to National Policy Statements and section 4.4 of EN - 1 and section 2.7 of EN - 4 deal, in particular, with mitigation issues.