Tidal Lagoon Swansea Bay
Query regarding the content of s58 notification and comments on application documents
Thank you for your recent email received on 13 May 2014, I will aim to address your points set out in your email.
In relation to consultation, as we have previously stated, the duty is on the applicant to identity Category 3 parties. As part of the acceptance procedure, the Secretary of State then considers whether or not the applicant has complied with its duties under the Planning Act 2008 (PA 2008), to consult the people it has identified. The Secretary of State?s role is not to manage the applicant?s consultation process or check whether the applicant has identified the correct persons for the purposes of consultation under section 42(1)(d) of the PA 2008 including those persons the applicant thinks fall within Category 3.
The applicant?s consultation report and the local authorities? adequacy of consultation report will be taken into account in coming to this decision. It was considered in this case that the consultation was of a satisfactory standard. If any discrepancies in the consultation process come to light after acceptance, the remedy is provided by s102A of the PA 2008. Any person who feels that they fall within any of the s57 categories but were not identified by the applicant prior to acceptance, have an opportunity to request, under s102A of the PA 2008 to become an interested party and therefore participate fully in the examination. Also if the Examining Authority (ExA) thinks that a person might successfully make such a request, the ExA may inform that person about this. The ExA is not however under any obligation to make enquiries in order to discover who these persons might be (s102A(4)).
We note your comments on the ?laissez faire stance having practical implications?. The Secretary of State does not have a laissez faire stance but is concerned to ensure that any alleged defects which may come to light after acceptance are rectified by the use of procedures in the PA 2008 which have been specifically included for that purpose ie s102A. The ExA will wish to ensure that the examination is conducted fairly and that no prejudice is suffered by persons who wish to make representations whether they have previously been identified by the applicant or not.
In relation to your final comment, any successful prosecution under s58 of the PA 2008 would need to prove beyond reasonable doubt that the applicant?s certificate contained a statement which the applicant knew to be false or misleading in a material particular or the applicant recklessly issued such a certificate. Such a prosecution would need considerable evidence in order to support a successful outcome. We are not aware of any such evidence in this case which would support such a prosecution.
In relation to your points on the Environmental Statement and in particular the work that you commissioned on the Salmonoid impacts, we note your comments but advise, similarly to that above, that these points be made to the ExA during the examination via written and oral representations. This will enable the ExA to, if they see fit, to ask questions and examine the issue. Should you wish the ExA to consider your report, we suggest that this forms part of your written submission. It should be noted that this correspondence submitted during the pre-examination stage has not and will not be made available to the ExA.