The Sizewell C Project
Could you please tell me who supervises the project during the construction phase to ensure the project adheres to the scheme as approved by the Secretary of State, and any planning conditions. And how are Building Regulations administered?
A DCO will usually be drafted in the form of a Statutory Instrument (an Order) and as such it is in effect a piece of legislation in its own right. In general terms this means that failure to comply with the provisions of the Order is illegal. Any breach of the terms of the DCO could be reported directly to the Secretary of State who would then need to consider whether to take enforcement action and what that would entail. In the case of a Nuclear project, if the alleged illegality involved the main power station site then the matter would need to be referred to the Office for Nuclear Regulation (ONR) as a potential breach of the Nuclear Site Licence, which is separate to the DCO. In reality the ONR would be regularly monitoring the construction of the main nuclear site and so it would be very unlikely that they would be unaware of any deviation from the consented scheme.
A DCO typically contains protective provisions and requirements (akin to planning conditions). Some of these will relate to on-going monitoring, some will need to be discharged or signed off upon completion in a similar way to a planning permission being implemented. As to the authority responsible, it really depends on the nature of the provision or requirement. Usually a local authority would fulfil this role; however, there may be other instances where the Environment Agency or another statutory body will assume responsibility for monitoring compliance. It will be up to the developer to agree the detailed wording of the DCO and any associated monitoring / discharging responsibilities with the organisations concerned at the pre application stage and at the examination.
The Hinkley Point C DCO would be a useful comparator in this instance. In that case the local authorities negotiated the detailed wording of the majority of the requirements and also a charging schedule for undertaking these responsibilities, with the ability of the applicant to appeal to the Secretary of State if the discharging authority was acting unreasonably. See Schedules 2 and 14 of the DCO
In the case of HPC the monitoring regime associated with the construction of the Power Station and the associated development was included in documents which are referred to in the requirements. For example, the Code of Construction Practice or the Environmental Management Plan. These documents contain the detailed mechanisms and controls needed to mitigate the construction phase of the development, but which would be too detailed and lengthy to be contained in the DCO itself.
I hope this makes sense. I would recommend you have a go at reading the Hinkley Point C DCO. On first sight it?s a bit impenetrable to the untrained legal eye but in terms of its structure and how its powers are exercised you should be able to gain an understanding of how a Sizewell C DCO could be structured. In basic terms a DCO is typically structured in the following way; firstly, the DCO defines what the ?development? is (schedule of works); secondly it defines what powers are enshrined in the DCO (articles and provisions) and thirdly how the powers sought will be controlled / mitigated (usually a schedule of requirements).