Tidal Lagoon Swansea Bay
Query relating to the Certificates of Compliance and Book of Reference.
Thank you for your email of 17 April 2014 with regards to your concern in relation to the certificate of compliance submitted by the applicant Tidal Lagoon (Swansea Bay) plc (TLSB). I respond to your points in turn below.
Certificates of compliance with section 56 (your points 1 and 2)
The applicant TLSB has issued its certificates of compliance in relation to the application, under s56 and s59 of the PA 2008, and under Regulation 13 of the Infrastructure Planning (Environmental Impact Assessment) Regulations 2009. There is no requirement on the Secretary of State (SoS) to approve these certificates. It is for the applicant to be satisfied that these comply with the statutory requirements as any liability rests on the applicant if they have committed an offence under section 58 or Regulation 14 of the EIA Regulations.
In order for a criminal offence to have been committed under s58 a person must either have issued a certificate which contains a statement which the person knows to be false or misleading in a material particular or recklessly issues a certificate which is false or misleading in a material particular.
For this reason, if a s58 certificate is issued by reference to information set out in the Book of Reference and the information included in Part 2 is in effect disputed by another person that does not necessarily mean that the person who issued the certificate has committed a criminal offence.
The adequacy of pre-application consultation was a matter for the application acceptance decision. Following your EIR request and subsequent disclosure of information, Fish Legal were able to see the application documents on which they made a representation during the acceptance period. This submission was taken into account by the Secretary of State in making his acceptance decision.
The Book of Reference (your point 3)
As you have noted, Part 2 of the Book of Reference must include any person that falls under Category 3 (as defined in s57 of the PA 2008). A person is only within Category 3 if he/she is known to the applicant after making diligent inquiry.
Due to persons moving properties and changing their address or new persons being identified during the course of the application process, it is not unusual for applicants to have to update the Book of Reference and inform the ExA of any amendments made during the examination period.
The applicant will be able to make any necessary changes to the Book of Reference and submit any amended versions of the document during the examination. The Examining Authority will also be able to ask questions of the applicant and others on this matter.
Compensation (your points 4 and 5)
With regard to claims for compensation, this is a matter dealt with outside of the DCO application process under the Planning Act 2008. The issue of compensation will arise in the event that the development consent is granted and the applicant implements the development consent order. However, the adequacy of funding to meet any likely compensation future liabilities arising from the implementation of the DCO, and any mechanisms proposed by the applicant to secure the funding, are issues which will be considered by the Examining Authority as part of the examination.
It is a matter for the applicant to consider whether in their view a person would or might be entitled to compensation within the meaning of Category 3 in the event that the order sought were to be made and fully implemented. Unless and until the development is fully implemented it may not be possible to ascertain the identities of all those persons who will or might be entitled to such compensation. Any persons not included in Part 2 of the Book of Reference will still be able to make relevant compensation claims at that time. Whether or not a person is included in Part 2 of the BoR is not determinative of any rights to compensation they may have in due course.
Environmental Statement (your point 5)
We note your comments regarding the Environmental Statement and its contents. The likely significant effects of the project, how these are reported in the Environmental Statement and proposed to be mitigated in the draft DCO are matters for the examination. These matters can be considered in written representations and during any issue specific hearings.
Failure to notify of acceptance (your points 6 and 7)
We note your comment that a number of local angling clubs appear to have missed the deadline for registering an interest in this project by making a relevant representation. We have received two representations after the close of the relevant representations period. The Examining Authority has discretion to decide whether to accept these late representations in to the examination.
Should additional persons or groups feel they would or might be entitled to make a relevant claim and they therefore fall within s57, they may make a request to become an interested party and take full part in the examination. If this is the case, we would suggest they complete the form below:
Completing this form provides the information that is needed for the Examining Authority to decide whether parties can become an interested party in the examination. All such requests will be considered by the Examining Authority.