Wylfa Newydd Nuclear Power Station
Mr/Ms Chanay asked for clarification of some advice that the IPC had previously given. A copy of his/her email is attached.
Thank you for your email. I apologise if my earlier email was not clear.
The decision on whether or not any element of a proposal is or is not part of a nationally significant infrastructure project (NSIP), associated development or otherwise is not one on which the IPC can advice.
It is for developers to take their own legal advice upon which they can rely. The Commission is unable to give such legal advice or to comment on the merits of a proposed application (although this latter point will change with the Localism Act coming into force in April 2012). For further information on the IPC's policy on giving section 51 advice please visit our website at attachment 1
At acceptance stage the acceptance Commissioner will need to be satisfied that the test in s55 3 (c) of the Planning Act 2008 (PA 2008) is met i.e. that development consent is required for any of the development to which the application relates. Consent is required for development that is or forms part of an NSIP (s.31 PA 2008). If and when an application is accepted the Examining Authority (ExA) considers all the individual elements included in the draft DCO in detail throughout the pre-examination and examination stages before formulating their recommendation to the Secretary of State.
The ExA when considering whether any works are integral to the proposed NSIP or would constitute associated development must have regard to the DCLG Guidance on Associated Development. The Guidance states at paragraph 10 that development should not be treated as associated development if it is actually an integral part of the NSIP and that the decision maker must decide on a case by case basis as to whether elements should be treated as associated development. The ExA must look carefully at the facts available and the information provided by the applicant in the Explanatory Memorandum to be submitted with the application. It is for applicants to justify whether a particular element of a proposed NSIP can be considered to be integral to the NSIP and therefore what constitutes development for which consent is sought under PA 2008 and to express and explain their conclusion in the Explanatory Memorandum.
As the IPC cannot pre-empt or pre-judge the ExA?s decision, it is not possible to state at this stage whether the IPC would agree with the developer as to whether any interim radioactive waste storage facility is to be considered an integral element of the project. If the developer proposes that it is integral to the development he should set out a detailed explanation and specific justification in the Explanatory Memorandum as to why he considers that it can be properly regarded as being integral to the project. This should take into account the principles in the Guidance relating to associated development.
I note your comments about the scoping reports on other projects. A scoping report, which is submitted by the developer when requesting a scoping opinion from the IPC, sets out what the developer considers to be true. The IPC will not take a position on associated development in advance of an application, for the reasons given above.