North Killingholme Power Project

The list below includes a record of advice we have provided for this project. For a list of all advice issued by the Planning Inspectorate, including non-project related advice, please go to the Register of advice page.

There is a statutory duty, under section 51 of the Planning Act 2008, to record the advice that is given in relation to an application or a potential application, including the name of the person who requested the advice, and to make this publicly available.

Preview
Enquiry received via email
Please see Smart Wind?s additional submission published on the North Killingholme project page 11 March 2014.
Thank-you for your email dated 10 March 2014 - we note the points that you raise in your emails dated 10 March to the Examining Authority (?ExA?) and would like to provide clarity on those points.

Protective Provisions:
The role of the ExA is primarily to establish whether the protective provisions are agreed or not. The ExA is already aware, through Smart Wind providing its own draft protective provisions which differ from those provided by the applicant, that in this case, the protective provisions are not agreed between the parties involved. This is also stated in the applicant?s response to question CA3/01.

Ultimately, protective provisions must be agreed between the parties themselves. The ExA is not a party to such an agreement and it is for both the Applicant and any other relevant party to agree on protective provisions.

The existence of agreed protective provisions is one factor that the ExA and the s.127 Examiner will take into account as part of its examination, but any application for CA and for s.127 certificates, will still have to be considered in the report writing stage unless any application for these has been withdrawn by the applicant or any representation by a statutory undertaker has been withdrawn in respect of s.127. Neither of these has happened, as yet, in the case of SMart Wind.

End of the Examination Stage:
For clarity, the ExA will take into account all material that is received in response to deadlines or that has been accepted by the ExA as a result of a procedural decision during the examination. However, all material must be received before the close of the examination stage. For the avoidance of doubt, the ExA has exercised their discretion and accepted both your emails of 10 March into the examination.

The ExA will make its Report on the basis of the information which has been submitted and accepted by the end of the examination ? the ExA cannot take into consideration, any material which is received following the closure of the examination. Any information which is submitted and received during the Recommendation stage, will be forwarded to the Secretary of State for consideration alongside the Report. It will then be for the Secretary of State to decide whether or not to take this into account in making his decision and whether to do so would require any further consultation on such material submitted after the close of the examination.

The power to extend an examination rests with the relevant Secretary of State which he can exercise upon request. Unless the Secretary of State grants an extension during the examination period the ExA must close the examination by the deadline specified by s98(1) Planning Act 2008 (as amended) ? ie 6 months from the day after the Preliminary Meeting.

11 March 2014
Patricia Hawthorn
Enquiry received via email
C.GEN has received a copy of Anglian Water's letter of 18 February 2014 withdrawing its representations so far as they relate to s.127. As a result of that letter, PINS has written to C.GEN asking it to confirm in writing that it will be withdrawing the s.127 application in relation to Anglian Water.

S.127, as it applies to C.GEN's case, refers at sub-section (1)(b) to the situation where "a representation has been made about an application for an order granting development consent before the completion of the examination of the application, and the representation has not been withdrawn".

In light of the lack of clarity regarding this issue, C.GEN would like to know PINS' advice as, given Anglian Water has not withdrawn its entire relevant representation, C.GEN would not wish to withdraw its s.127 application if the correct interpretation of s.127 is such that an application is still required.
As you are aware, in its letter to the North Killingholme Power Plant Examining authority (?ExA?) dated 18 February 2014, AWS stated that:

?the negotiations between the Applicant and AWS have concluded and the terms of the Protective Provisions and Article 14 are now agreed. AWS wish their representations to remain on the record as useful background for the examining authority but its representations as far as the Section 127 application is concerned is withdrawn and the application is unopposed?.

We note in your email that C.Gen would appreciate clarification on whether, following a representation being made under s127 (1) (b) PA 2008, and thus, engaging the provisions of s127 PA 2008, whether, in order for a s127 application made to the Secretary of State by C.Gen to be withdrawn and the provisions of s127 ceasing to apply, the said representation made by a statutory undertaker (s127 (1) (b)) ? in this case, AWS - must be withdrawn either in its entirety or partially ? removing only those parts which make direct reference to s127.

As an interested party AWS is entitled to make representations about the DCO application and these representations will remain in the examination. However, AWS has made clear that it has withdrawn that part of its representation which is a representation for the purposes of s127 (1) (b). A certificate from the Secretary of State will therefore not be required in relation to AWS's land before the DCO is made and C.Gen can withdraw its s127 certificate application 20 November 2013 in relation to AWS if it so wishes.

Please ensure the Planning Inspectorate is CC?d into to any correspondence relating to any withdrawal of a s127 application.

25 February 2014
Emma Harding-Phillips
Enquiry received via email
Enquiry from Statutory Party regarding confusion over Rule 8 letter.
It was advised that the Rule 8 letter sets out the timetable for the examination of the above North Killingholme New Power Station application. Alongside this it was explained that the East Midlands Ambulance Service NHS Trust was identified as a statutory party for the application as prescribed in Schedule 1 of the The Infrastructure Planning (Applications: Prescribed Forms and Procedure) Regulations 2009. The Examining Authority when making decisions regarding the application must notify everyone as defined in s.88(3)(c)-(d) of the Planning Act 2008; therefore the letter was sent to East Midlands Ambulance Service NHS Trust as a statutory party for that project.

It was explained that following the Rule 8 letter, the East Midlands Ambulance Service NHS Trust would only be contacted in relation to procedural decisions or changes made to the examination timetable. However, it was noted that should they wish to fully participate in the examination of the application and therefore become an Interested Party 'IP' for the project, they could do so by writing to the Planning Inspectorate by 4 October 2013.

25 September 2013
Jackie Markham
Enquiry received via email
Enquiry from the North East Lincolnshire Council regarding its Interested Party status for North Killingholme Power Project.
It was explained that under s.43 of the Planning Act 2008 (as amended) North East Lincolnshire Council has been identified as an 'A' authority. This is an authority that shares a boundary with a local authority in which the proposed development is situated; in this instance North Lincolnshire Council.

The appointed Examining Authority must notify each person as defined in s.43 of the 2008 Act about procedural decisions made in relation to the above application. As a result of this it is required that North East Lincolnshire Council authority is contacted with regard to the above Nationally Significant Infrastructure Project.

It was noted that, in future, the local authority will only be contacted about changes to the examination timetable in relation to the above application. The authority was advised that should they wish to participate in the examination they will need to notify the Examining Authority by Friday 4 October 2013.

25 September 2013
Jackie Baxter
Enquiry received via email
On the 28 August 2013 the applicant submitted by email and hard copy a letter together with the following attachments:

1) Update submission;

2) Withdrawal of land from the Order limits submission, plot number annex to that submission and three accompanying plans; and

3) Photomontage.


The Planning Inspectorate returned the submission to the applicant accompanied by advice dated 29 August 2013.


The applicant subsequently requested that the decision to return the submission be reconsidered for the following reasons:

1) As explained, the documents submitted on the 28 August were submitted in order to assist the Examining Authority ("ExA") and other interested parties so that parties may be made aware of the matters raised in the covering letter. This is in the interests of good administration and allows all parties to make properly informed submissions.

2) The submission in respect of withdrawal of certain land from the Order limits constitutes a formal submission on a procedural matter on which a ruling by the ExA is required. It does not amount to evidence. The plans and annex of plot numbers which accompanying it are necessary to understand the submission being made and are an essential part of it that cannot be removed from the submission - they represent the substance of the request contained in the submission.

3) Our objective in providing the document was to enable submissions from other parties at the Preliminary Meeting from an informed point of view. Were the ExA to deal with this by inviting submissions from the interested parties in their written representations (i.e. only after the process had begun), it would be causing parties to expend resources unnecessarily when this can be dealt with at the Preliminary Meeting.

4) As already noted, the submission is a purely procedural submission and does not constitute evidence. However, if (contrary to our submission above) it is considered that the text of the document contains matters of evidence, we would be happy to review the submission and strip out any such matters or supporting statements.

5) In relation to the other documents submitted, the photomontage was not provided as evidence but to show that progress was being made, as requested by the ExA. Further, the update document was sent in advance of the Preliminary Meeting to make best use of time at the Preliminary Meeting, and was provided in relation to agenda item 5 of Annex B to the Rule 6 letter and in accordance with the Chairman of the ExA's direction that "work on such issues need not, and should not, wait until the Examination commences?"
Advice dated 29 August 2013:

Please note that we can not accept new evidence prior to the Preliminary Meeting, such as the land plans and photomontage you have attached.

The Rule 6 letter states that Appendix B sets out some specific issues on which the Examining Authority will request a progress report from the applicant and from other parties, where relevant, to be given at the Preliminary Meeting. The letter goes on to state that although work on such issues need not, and should not, wait until the Examination commences, the ExA will expect to be informed at the Preliminary Meeting of the progress that has been made.

Furthermore, Annex A of the Rule 6 states that if a party wishes to make any submissions on matters not set out in the agenda and which they think would enhance the discussion at the Preliminary Meeting, they should write to the Case Manager setting out the submissions that they wish to make by 5pm on 28 August 2013.

To clarify, this was a request for any additional agenda items, it was not a request for the submission of new evidence in support of those items, or any other items, prior to the Preliminary Meeting.

Therefore, as evidence can not be submitted at this stage of the process, we have returned your electronic and hard copy submissions.

However, we do note your intention to raise the withdrawal of certain land from the Order limits at the Preliminary Meeting. We also note the list you have provided of those who will attend the Preliminary Meeting.


Subsequent advice and clarification dated 3 September 2013:

As you are aware it is for the ExA to decide the procedure at the preliminary meeting and the matters to be discussed. As explained in the email of 29 August, the ExA requested a progress report and will no doubt find helpful the information which you have provided in your update document. It is agreed that your submission in respect of the withdrawal of land from the Order limits is a request for a procedural ruling in relation to an amendment to the application. This request has been drawn to the attention of the ExA who will want to ensure that it is properly considered and will decide how much time should be allocated at the preliminary meeting to hearing representations about timetabling a decision on the ruling request. However, the ExA does not intend to make a procedural decision about the proposed change itself in advance of or at the preliminary meeting and is not intending to take representations from attendees at the preliminary meeting about the substantive issues. In the interests of fairness and transparency and efficient management of the preliminary meeting the documents were therefore returned to you so that there is a level playing field and the ExA can, following the preliminary meeting, notify all interested parties at the same time about the ruling request, how the documents will be made available and when a decision on the ruling will be made.

In regards to the photomontage, the ExA's direction was that "work on such issues need not, and should not, wait until the Examination commences and [the ExA] will expect to be informed at the Preliminary Meeting of the progress that has been made". Therefore, the ExA requested a progress report at the Preliminary Meeting, rather than prior to it. Moreover, in the interests of fairness, transparency and the efficient management of the preliminary meeting, the photomontage was returned to you so that the ExA can, following the preliminary meeting, notify all interested parties at the same time about the appropriate deadlines for submission of such documents, and the period for interested parties to comment on them.

03 September 2013
DLA Piper - Emma Harling-Phillips
Enquiry received via email
response has attachments
Section 51 advice given following the decision to accept the application to proceed to examination on the 19 April 2013.
Please see attached.

07 May 2013
C.GEN Killingholme Ltd - Mr Bassford
Enquiry received via phone
The applicant enquired as to the appropriate procedure should the applicant wish to reduce the size of the red line boundary post acceptance.
The Planning Inspectorate advised that this would be a matter for the Examining Authority at Examination, and that the applicant should raise the matter at the Preliminary meeting.

In the mean time, the applicant was advised to comply with all its duties under the Planning Act 2008 on the basis of the red line boundary as submitted and accepted.

30 April 2013
Howard Bassford
Enquiry received via meeting
response has attachments
Project Update and Discussion on Draft Documents
Please see meeting notes attached.

08 March 2013
C. GEN
Enquiry received via email
The two following queries were asked regarding the prospective application for development consent for a generating station:

Is it acceptable to refer to the information requested in boxes 16 and 17 of the application form within the Environmental Statement (providing the relevant information is covered in the ES), rather than providing two standalone documents?

Is it acceptable that any plan showing ?relevant sites? may only show the part of the site that is affected by the project?
Thank you for your letter dated the 14 February 2013 enquiring on two points regarding your prospective application for development consent for a generating station.

Firstly, in regards to whether or not it is acceptable to refer to the information requested in boxes 16 and 17 of the application form within the Environmental Statement (providing the relevant information is covered in the ES), rather than providing two standalone documents.

As you are aware, such an approach would be a departure from the Department for Communities and Local Government?s Application Form Guidance, paragraph 35 and 38, which states that the ?information on other effects should be set out in a document that is separate from an Environmental Statement and referenced in Box 16/17? respectively. I acknowledge the examples you have used of other applications which have departed from guidance, nevertheless we strongly encourage adherence to all relevant guidance to reduce the possibility that the application cannot be accepted. The issue of whether or not a departure from guidance is acceptable would be a discretionary matter for the Inspector appointed to make the acceptance decision having had regard to the particularities of the application.

Secondly, in regards to whether it is acceptable that any plan showing ?relevant sites? may only show the part of the site that is affected by the project. We advise that when preparing your application documents you are satisfied that your submissions will meet the requirements of the Infrastructure Planning (Environmental Impact Assessment) Regulations 2009 and relevant guidance.

Notwithstanding the above, should you choose to depart from guidance when preparing your application documents, we would advise that you declare in writing and provide reasoning for such departures with your submitted application.

22 February 2013
Benjamin Dove-Seymour
Enquiry received via email
Contents and format of a Statement of Community Consultation (SoCC)
Guidance and advice that is relevant for the production of a SoCC includes IPC Guidance Note 1 on pre-application stages and CLG Guidance on Pre-application consultation, noting for example that a SoCC should provide sufficient detail on the project including the positive and negative impacts.

21 December 2011
Benjamin Dove-Seymour
Enquiry received via meeting
response has attachments
Meeting between IPC, C.Gen and North Lincolnshire Council
Note of the meeting between IPC, C.Gen and North Lincolnshire Council attached

30 November 2011
C.Gen - Ian Devine
Enquiry received via post
Can an application for a development consent order (DCO) seek powers of compulsory acquisition over land required for a gas connection to the existing national transmission system without seeking authorisation for the construction and operation of the gas connection itself?
You have asked whether a DCO may authorise compulsory acquisition of land required for a gas connection even though (because EIA will not have been completed at the time the application is submitted) the DCO will not seek to authorise construction and operation of the gas connection.

The Planning Act does not prevent provision being made for matters which will not in themselves need or be granted development consent and does not arguably exclude the compulsory acquisition of land in the circumstances you describe. We consider therefore that (subject to other tests as discussed below) the DCO may make provision for compulsory acquisition of the gas connector land if it can be demonstrated that the compulsory acquisition of that land is related or ancillary to the development for which consent is sought. However, full legal submissions should be submitted with the application to justify this approach applying the facts to the provisions in the Planning Act 2008 and identifying any relevant caselaw which interprets terms such as "relating" and "ancillary" in the context of compulsory acquisition.

The following points should be considered:
1. An order granting development consent may make provision relating to, or to matters ancillary to, the development for which consent is granted - s120 (3).

2. The provision that may be made under s120 (3) includes the compulsory acquisition of land - s120 (4) and para 1 of Schedule 5 - subject to the provisions of Chapter 1 of Part 7 including ss122 and 123.
s122 - in addition to demonstrating that there is a compelling case in the public interest (s122 (3)) the decision maker must be satisfied that one or more conditions in s122 (2) are met. The condition in s122 (2) (b), in other words that the gas connector land is required to facilitate or is incidental to the development to which the development consent relates, may be relevant. The statement of reasons would need to provide full justification for the purpose of compulsory acquisition, employing caselaw as relevant in relation to the interpretation of "facilitate" and "incidental".
s123 - compulsory acquisition can only relate to land if the decision-maker is satisfied that one of the conditions in subsections (2) to (4) of s123 is met. In the circumstances you describe it would appear that the condition in s123 (2) will be met if the request for compulsory acquisition of the gas connector land is included in the application for the DCO.

3. The decision maker must also have regard to CLG guidance about compulsory acquisition if it is proposed to make an order authorising compulsory acquisition (s124 (2)). In view of the fact that the gas connector will be subject to a separate consent process (the outcome of which will be unknown when the DCO application is submitted) paras 34 and 35 are particularly relevant. The applicant must be able to demonstrate that "...any potential risks or impediments to implementation of the scheme have been properly managed" and that "they have taken account of any other physical and legal matters pertaining to the application."

17 November 2011
DLA Piper UK LLP - Benjamin Dove-Seymour
Enquiry received via email
Query 1 - clarification on how the IPC would apply the requirement that all power plants sized greater than 300MWe must be carbon capture ready (CCR) from the outset and where a coal plant was being proposed, that 300MW of carbon capture and storage (CCS) equipment is installed from the outset

Query 2 - potential ability of a DCO to accommodate flexibility
a query was raised in the meeting minutes regarding Carbon Capture Ready and Carbon Capture and Storage requirements. You asked for .

Applicants will need to provide information to demonstrate that developments which are of a type covered by the Large Combustion Plant Directive are carboCan capture ready (complying with DECC guidance) before consent may be given. The document types which are likely to meet this purpose are identified in the draft NPS for Energy (EN-1) at section 4.7, including for example a written report and economic assessment. The IPC would encourage applicants to discuss CCR measures with DECC and the Environment Agency in the pre application stage and to consult them on the draft DCO requirements (and any Section 174 Agreement) which will be the means through which CCR will be secured and enforced.

Finally, following our meeting of 7th October, a written query was raised via your e-mail dated 22nd October 2010 relating to the potential ability of a DCO to accommodate the flexibility that you have identified may be appropriate for this proposal. In discussions with IPC colleagues, it is agreed that the Infrastructure Planning (Model Provisions) (England and Wales) Order 2009 anticipates that development may come forward in phases and a DCO might reasonably include a requirement which enables detailed design of an authorised development to be submitted for approval in stages. In principle therefore the requirement which you propose in your email of 22nd October 2010 appears reasonable as a means of allowing certain specific details of design, materials etc to be submitted and approved in two phases.

However, it is noted that the draft scoping report states that "Phase 1 and phase 2 have to be seen as separate decisions that can potentially be developed at the same moment." A phasing requirement cannot have the effect of side-stepping the statutory procedures required for the grant of development consent by enabling development consent to be granted for, in effect, two materially different and alternative schemes or enabling more than has been applied for (or assessed - see below) to be developed. Whether or not a CCGT is a materially different development to an IGCC (in other words whether there would be a material change of use from a CCGT to an IGCC constituting development) will depend of course on the facts. Development, in the Planning Act, has the same meaning as in the Town and Country Planning Act 1990 (see 32), subject to specific amendments which are not relevant here.

As you are aware, the decision maker under the Planning Act must also, amongst other things, comply with the requirements of the Infrastructure (Environmental Impact Assessment) Regulations 2009 (the EIA Regulations) and must therefore take into account the environmental information before granting development consent. The environmental statement must meet the requirements of the EIA Regulations and the description of the development in the ES must be sufficiently certain to comply with the requirements of paragraph 17 of Schedule 4 Part 1 of the EIA Regulations. The environmental impact assessment must also be able to assess the impacts arising from the range of options which would arise if the development were phased in the way that you propose.

In drafting the DCO to authorise the scheme, very careful consideration must therefore be given to the development description and to the requirements proposed to control what is contemplated in the grant of development consent. You will of course wish to take legal advice, upon which you can rely and in view of the above considerations you may wish, in due course, to submit legal submissions (making reference to relevant case law ) with the draft DCO to demonstrate that phasing the scheme in the way you propose is lawful.

19 November 2010
Richard Wearmouth
Enquiry received via meeting
response has attachments
Initial meeting with promoters to discuss project
[attachment 1]

06 October 2010
Richard Wearmouth