Wrexham Energy Centre
E-mail received by the Planning Inspectorate from Mr Kevin Braithwaite below:
I have some misgivings about way ordinary residents opinions are considered by the PI.
The PI will be aware that they recently recommended access be granted to Wrexham Power onto private land under Section 53. The guidance for section 53 says access may be granted, not will be, that it should be used as a last resort. The reason cited for approval was despite a number of serious inconsistencies (that have separately been drawn to attention of MPs, AMs and the PI) that otherwise the project would be delayed.
There is now considerable doubt in the local communities that the PI will do anything other than expedite approval of this flawed project so that it is not delayed further. I am aware of the role of the local authority as a statutory consultee but sadly for this community the decision is out of our hands. Not only has local democracy been sacrificed but human rights and civil liberties also, all with claims of legitimacy under the 2008 Planning Act.
Cyngor a roddwyd
Response from the Planning Inspectorate:
I understand that content of your email relates to authorisation that was given to the applicant under Section 53 of the Planning Act 2008, in connection with an application that WPL propose to make for a gas turbine power station with associated power lines and gas pipeline.
Under Section 53 of the Act, the Secretary of State can authorise a person to enter onto third party land to carry out surveys and/or to facilitate compliance with the Environmental Impact Assessment Directive and/or the Habitats Directive. Before such an authorisation can be granted the Act requires that the Secretary of State has to be satisfied that the applicant is considering a ?distinct project of real substance genuinely requiring entry onto the land?.
In addition non-statutory guidance produced by the Department for Communities and Local Government advises that ?Applicants are expected to act reasonably, first seeking to obtain ?permission to access land directly before seeking authorisation under these provisions?. ?Specifically, applicants should only submit requests for?access to parcels of land, where they consider they have been unreasonably refused that?access? (The Infrastructure Planning (Fees) Regulations 2010: Guidance (June 2013).
The reasons for granting access are given in the authorisation for each land parcel under 'Reasons for the decision' and also in the associated Recommendation Reports which are available on the Planning Inspectorate's website at attachment 1. As there are a lot of documents on this website I have attached an example of the authorisation and Recommendation Reports. Although the delay to the project was mentioned in the 'Reasons for the decision, those reasons also set out the steps that Wrexham Power Ltd had taken to try to obtain access voluntarily, without success.
The representations made on behalf of landowners by their professional representatives were carefully considered before the decision was made. In the view of the Secretary of State the tests referred to above have been met. He is also satisfied that the detailed conditions attached to the authorisations will avoid any risk of detriment to landowners? property directly resulting from the surveys. As such, there appeared to be no reason to request further information or further delay the issue of the authorisations, particularly as this would risk substantially delaying an application for the proposed project.
WPL?s application for authorisation under Section 53 was made on 2 April 2013. The application refers to the Planning Inspectorate?s Advice Note 5 (April 2012) (?AN5?), which provides advice on the process followed by the Secretary of State in determining a Section 53 authorisation request. AN5 refers to Fees Guidance produced in February 2010 by DCLG, which includes the guidance that requests under section 53 should only be made ?as a last resort?. However, as recorded in the Recommendation Reports relating to each land parcel, the DCLG Fees Guidance was updated in June 2013, after the application had been submitted. It no longer makes reference to applications being made ?as a last resort?.
The published version of AN5 (April 2012) has not yet been updated to reflect changes to the DCLG Guidance. The Planning Inspectorate is in the process of revising it. The current DCLG Fees Guidance is available here:
The authorisation of access to land under Section 53 is purely for survey purposes and entirely separate from the future consideration of any subsequent application by WPL. If an application is submitted, the Act sets out rigorous requirements that any development consent must meet before it is even accepted for examination. If an application is accepted it will be examined by an Examining Authority who will recommend to the relevant Secretary of State whether or not it should be accepted, following a detailed and thorough examination. The Planning Inspectorate Advice Notes 8.1 to 8.4 may be of interest to you in explaining how the Planning Act 2008 process works and how local communities can engage with it. They can be found here: attachment 3
I hope this information is helpful.