Brechfa Forest Connection
Submissions to the Examinning Authority 16 - 18 November 2015, copying PINS into correspondence between BJP and the applicant.
Further to correspondence that you continue to copy the Planning Inspectorate into in relation to compulsory acquisition (CA) matters, I have taken the decision to issue formal advice to ensure that you are clear on the CA process under the Planning Act 2008 (PA 2008) and the role of the Examining Authority. This advice, along with any other advice given during the examination by the Planning Inspectorate, will be published inline with s51 of PA 2008 on the project webpage.
Drawing upon the letter that you sent to the Planning Inspectorate by email on 16 November 2015, which the Examining Authority has accepted as a submission into the examination and published, it was felt that some clarification may be of use.
Please note that some of the terminology used in your correspondence is not appropriate in relation to an application for an order granting development consent under the PA 2008. In this regard we have assumed that:
1. Your reference to the ?CPO process? is intended to be to the examination of the applicant?s request for compulsory acquisition to be authorised by inclusion of it in a Development Consent Order (as the PA2008 does not allow for a Compulsory Purchase Order to be made);
2. Your reference to ?the Inspector? is intended to refer to the Examining authority;
3. Your reference to the ?Acquiring Authority? is intended to refer to the applicant; and
4. Your reference to the ?Public Enquiry? is intended to refer to any Compulsory Acquisition Hearing(s) to be held as part of the Examining authority?s examination of the application for an order granting development consent.
Please be advised that:
(a) contrary to the second paragraph of your letter, all parties present at the Preliminary Meeting held on 6 October 2015 were invited to speak;
(b) under Rule 10 of the Infrastructure Planning (Examination Procedure) Rules 2010, the Examining authority may disregard any written representations, responses to questions or further information received after the date, or the expiry of the period, specified for their receipt;
(c) under section 94 of the PA2008, the Examining authority may refuse to allow representations to be made at a hearing if they are considered to relate to compensation for compulsory acquisition;
(d) under section 106 of the PA2008, in deciding an application for an order granting development consent, the Secretary of State may disregard representations if they are considered to relate to compensation for compulsory acquisition;
(e) it would not be appropriate for the Examining authority to advise you or your clients as to exactly when or under what precise circumstances or conditions you or your clients should enter into negotiations with the applicant or on the precise terms of any such ongoing negotiations. Those would be matters on which your clients ought to seek their own independent legal and other professional advice if required;
(f) the following guidance has been published: Planning Act 2008 - Guidance related to procedures for the compulsory acquisition of land (DCLG, September 2013); and Awards of costs: examinations of applications for development consent orders ? Guidance (DCLG, July 2013);
(g) the Examining authority is not in a position to confirm the qualifications or experience of individuals employed by the applicant. You should direct any such queries to the applicant if you require such information; and
(h) the Examining authority has not decided to postpone the Compulsory Acquisition Hearing(s) arranged to be held on 2 and 3 December 2015.
Furthermore, please be advised that copying in the Planning Inspectorate to correspondence does not automatically enter it into the examination nor does it ensure that information is before the Examining authority. If you wish representations to be brought to the attention to the Examining authority then we request that you clearly state this in correspondence. As such, the emails that the Planning Inspectorate were copied into over the past few days have not as yet been sent to the Examining authority as they include no clear indication in that regard. Should you wish the Examining authority to consider these emails as submissions into the examination then please do contact me. As discussed previously, there is an examination timetable which sets out when representations are to be made. This ensures that information for all parties in the examination are able to work to deadlines, knowing when documentation will be available for comment and when comments should be made. This ensures a fair and open process. Any representation received after a deadline will, if so requested by the party submitting it, be sent to the ExA for him to consider whether or not to have regard to it. The information above sets out matters that should and should not be before the Examining authority.
I hope that this advice clarifies matters and enables full and appropriate engagement in the examination process.