Representation by Magnox Limited (Magnox Limited)
- Date submitted
- 30 September 2020
- Submitted by
- Members of the public/businesses
Submission Withdrawn by letter dated 30 September 2021 [REP9-031] JOINT RELEVANT REPRESENTATION OF THE NUCLEAR DECOMMISSIONING AUTHORITY AND MAGNOX LIMITED 1. EXECUTIVE SUMMARY 1.1 The Nuclear Decommissioning Authority ("NDA") is a statutory corporation established by the Energy Act 2004. On 3 December 2004, the Secretary of State for Trade and Industry made Directions to the NDA in respect of the existing Sizewell A Nuclear Site (the "Sizewell A Directions"), the effect of which is to give the NDA statutory responsibility for the decommissioning and cleaning-up of the existing Sizewell A nuclear site (the "Sizewell A Nuclear Site") . 1.2 Decommissioning activities at the Sizewell A Nuclear Site are carried out on behalf of the NDA by the site tenant, Magnox Limited ("Magnox"), being a wholly owned subsidiary of the NDA, in accordance with detailed lease and contractual arrangements with the NDA. Magnox is also the holder of the nuclear site licence for the Sizewell A Nuclear Site, granted pursuant to the Nuclear Installations Act 1965. 1.3 The Sizewell A Nuclear Site is situated adjacent to the existing Sizewell B nuclear site (the "Sizewell B Nuclear Site"), which is currently owned and operated by EDF Energy Nuclear Generation Limited ("EDF NGL"). The Sizewell B Nuclear Site is currently generating electricity and is situated between the Sizewell A Nuclear Site and the location of the proposed Sizewell C Nuclear Generating Station. 1.4 The NDA is a Category 1 person, and Magnox is a Category 1, Category 2 and Category 3 person in respect of a number of plots of land identified in NNB Generation Company (SZC) Limited's (the "Applicant") Book of Reference, and in respect of which the Applicant is seeking the acquisition of all interests and rights and the extinguishment and discharge of all private rights. Both the NDA and Magnox are, therefore, "Affected Persons". 1.5 While the NDA and Magnox have registered individually as Interested Parties, it is their intention that they will act jointly where practicable, in order to assist the Examination. This relevant representation has been prepared on that basis. 1.6 The NDA and Magnox confirm the following: 1.6.1 Commercial discussions with the Applicant have commenced regarding plot MDS/05/07. In addition, prior to the application being submitted, the NDA and Magnox were made aware that the Applicant was interested in plot MDS/05/06, being a car park. However, having been informed that Magnox requires this land until at least 2026, discussions have not progressed. 1.6.2 Neither NDA nor Magnox has had discussions with the Applicant regarding other land plots where the Applicant is seeking compulsory acquisition and/or the extinguishment of the NDA and/or Magnox's interests. 1.6.3 The NDA and Magnox note Article 26(2)(a) of the draft Development Consent Order ("Draft DCO") which precludes the undertaker from acquiring compulsorily any interests in any of the land plots detailed in column (2) of Part 1 of Schedule 15 of the Draft DCO, namely MDS/04/09, MDS/04/10, MDS/05/02, MDS/05/03, MDS/05/04, MDS/05/06, MDS/05/07, MDS/05/08, MDS/05/09, MDS/05/13, MDS/06/01 and MDS/06/02. Whilst the NDA and Magnox welcome Article 26(2)(a), its meaning is open to interpretation and the Explanatory Memorandum offers no assistance in respect of this part of the Article. 1.6.4 The NDA and Magnox note that land plot MDS/02/28, in respect of which Magnox is a Category 1 person, is not detailed in column (2) of Part 1 of Schedule 15 to the Draft DCO. Whilst the interest held by the NDA and Magnox is in the process of being surrendered, this process has not been completed yet. Accordingly, we reserve our position in respect of this plot. 1.6.5 The NDA and Magnox similarly note Article 30 of the Draft DCO which, notwithstanding Article 26(2)(a), permits the undertaker to acquire compulsorily the existing rights, create and acquire new rights and impose such restrictive covenants as are described in the Book of Reference. This power applies to those plots referred to above in paragraph 1.6.3 as well as additional plots which the NDA and/or Magnox have an interest. As noted above, the NDA and Magnox have had no discussion with the Applicant about any rights that the Applicant may be seeking to acquire compulsorily. 1.6.6 In any event, the NDA and Magnox both emphasise their opposition to the acquisition of any land, or the extinguishment of any rights etc, in any land plots which are: (a) within the boundary of the nuclear site licence, held by Magnox, for the Sizewell A Nuclear Site. Regardless of Article 26, the NDA and Magnox are of the opinion that land plots MDS/05/06 and MDS/05/07 should be excluded from the Book of Reference altogether. Inclusion of these plots is wholly inconsistent with the purpose of the strict regulatory regime established by the nuclear site licence and the Nuclear Installations Act 1965, and that as such it would not be in the public interest. The NDA and Magnox also note in this context section 151(a) of the Planning Act 2008 which expressly prohibits a Development Consent Order from excluding or modifying the application of the Nuclear Installations Act 1965. The NDA and Magnox are also concerned over the implications of these powers for those plots that abut the nuclear site licence area, being plots MDS/05/02 and MDS/05/13 and would welcome urgent clarification and understanding from the Applicant over how the powers in the Draft DCO could affect both the nuclear site licence and those plots that abut the nuclear site licence; and (b) land which the NDA has responsibility for decommissioning and cleaning-up in accordance with the Energy Act 2004 and the Sizewell A Directions, being land plots MDS/05/06 and MDS/05/07. 1.7 On the basis of the above, the NDA and Magnox are not yet satisfied that the Sizewell C Nuclear Generating Station can be constructed and operated in accordance with the Applicant's application proposals in a manner which adequately ensures the safe, secure and environmentally-sound decommissioning of the Sizewell A Nuclear Site. 1.8 The NDA and Magnox are of the view that, although they are not statutory undertakers they do have statutory functions and regulatory responsibilities in respect of the Sizewell A Nuclear Site, and therefore Protective Provisions should be included in the Draft DCO in order to preserve and protect their respective abilities to effectively carry out their statutory functions and regulatory responsibilities. In particular, the Protective Provisions will need to ensure that access is maintained at all times for all emergency, operational and user purposes and be in accordance with all safety and emergency response requirements in order to satisfy the demands placed upon the NDA and Magnox by the nuclear site licence and wider regulatory regime. 2. NDA AND MAGNOX – CONTEXT 2.1 The NDA is a statutory corporation established by the Energy Act 2004 . The NDA is responsible for ensuring that the UK's legacy nuclear sites are decommissioned and cleaned-up safely, securely, cost-effectively and in a manner that protects people and the environment. 2.2 The NDA's principal function, as established by Designating Directions made by the Secretary of State pursuant to section 3 of the Energy Act 2004, is to secure the decommissioning and cleaning-up of those nuclear sites and installations for which it has designated responsibility. 2.3 On 3 December 2004, the Secretary of State for Trade and Industry made the Sizewell A Directions. The Sizewell A Directions (a copy of which can be found on [Redacted] give the NDA statutory responsibility for the decommissioning and cleaning-up of the Sizewell A Nuclear Site, the geographical extent of which is more particularly defined in Schedule 1 and Annex A to the Sizewell A Directions. 2.4 Decommissioning activities at the Sizewell A Nuclear Site are carried out on behalf of the NDA by the site tenant, Magnox, being a wholly owned subsidiary of the NDA, in accordance with detailed lease and contractual arrangements with the NDA. Magnox is also the holder of the nuclear site licence for the Sizewell A Nuclear Site, granted pursuant to the Nuclear Installations Act 1965. 3. NATURE OF NDA AND MAGNOX LAND AND INTERESTS AFFECTED 3.1 The NDA is a Category 1 person, and Magnox is a Category 1, Category 2 and Category 3 person in respect of a significant number of plots of land identified in the Applicant's Book of Reference. 3.2 Commercial discussions with the Applicant have commenced regarding plot MDS/05/07. In addition, prior to the application being submitted, the NDA and Magnox were made aware that the Applicant was interested in plot MDS/05/06, being a car park. However, having been informed that Magnox requires this land until at least 2026, discussions have not progressed. 3.3 Neither NDA nor Magnox has had discussions with the Applicant regarding other land plots where the Applicant is seeking compulsory acquisition and/or the extinguishment of the NDA and/or Magnox's interests. 3.4 The NDA and Magnox note that the Applicant is seeking the following powers over land in respect of which the NDA and Magnox is a Category 1 or Category 2 person: 3.4.1 Class 1 – acquisition of all freehold and leasehold interests; 3.4.2 Class 4 – override easements and other rights and extinguishment of all private rights. Class 1 3.5 The NDA and Magnox note Article 26(2)(a) of the Draft DCO which precludes the undertaker from acquiring compulsorily any interests in any of the land plots detailed in column (2) of Part 1 of Schedule 15 of the Draft DCO, namely MDS/04/09, MDS/04/10, MDS/05/02, MDS/05/03, MDS/05/04, MDS/05/06, MDS/05/07, MDS/05/08, MDS/05/09, MDS/05/13, MDS/06/01 and MDS/06/02. 3.6 Clarity is required as to why the Applicant may need to acquire the plots detailed in column (2) of Part 1 of Schedule 15 to the Draft DCO, given that Article 26(2) of the Draft DCO does not preclude acquisition of those plots by agreement and commercial discussions are only progressing regarding plot MDS/05/07. 3.7 The NDA and Magnox note that land plot MDS/02/28, in respect of which Magnox is a Category 1 person, is not detailed in column (2) of Part 1 of Schedule 15 to the Draft DCO. Whilst the interest held by the NDA and Magnox is in the process of being surrendered, this process has not been completed yet. Accordingly, we reserve our position in respect of this plot. 3.8 The NDA and Magnox are also of the view that the protection afforded to the Sizewell B Nuclear Site in Article 26(2)(b) of the Draft DCO should be extended also to the Sizewell A Nuclear Site (e.g. all operational land). We would also comment that Article 30 should be made subject to Article 26. 3.9 The NDA and Magnox are of the view, as noted in further detail in paragraph 4 below, that Protective Provisions are required in the Draft DCO in order to reflect and maintain principles of co-operation and co-existence. Class 4, and interaction with Nuclear Site Licence and Sizewell A Directions 3.10 The NDA and Magnox note Article 30 of the Draft DCO which, notwithstanding Article 26(2)(a), permits the undertaker to acquire compulsorily the existing rights, create and acquire new rights and impose such restrictive covenants as are described in the Book of Reference. This power applies to those plots referred to above in paragraph 3.4 (save if Article 26(2)(b) applies it would appear, but not clear) as well as additional plots which the NDA and/or Magnox have an interest. 3.11 The NDA and Magnox note, in particular that certain of the NDA and/or Magnox land plots over which the Applicant is seeking Class 4 powers are situated within: 3.11.1 the boundary of the nuclear site licence for the Sizewell A Nuclear Site, for which Magnox has regulatory responsibility as the nuclear site licensee; and 3.11.2 the designated boundary of the Sizewell A Nuclear Site (the principal nuclear site), for which the NDA has statutory responsibility for decommissioning and cleaning-up in accordance with the Energy Act 2004 and the Sizewell A Directions, being plots MDS/05/06 and MDS/05/07. 3.12 The NDA and Magnox do not agree with the Applicant's proposals to obtain Class 4 powers in respect of any land that is within the boundary of the nuclear site licence, held by Magnox, for the Sizewell A Nuclear Site. The NDA and Magnox are of the view that the compulsory acquisition of any rights etc in such land by the Applicant would be wholly inconsistent with the purpose of the strict regulatory regime established by the nuclear site licence and the Nuclear Installations Act 1965, and that as such it would not be in the public interest. The NDA and Magnox also note in this context section 151(a) of the Planning Act 2008 which expressly prohibits a Development Consent Order from excluding or modifying the application of the Nuclear Installations Act 1965. 3.13 The NDA and Magnox do not agree with the Applicant's proposals to obtain Class 4 powers in respect of any land for which the NDA has statutory responsibility for decommissioning and cleaning-up in accordance with the Energy Act 2004 and the Sizewell A Directions. 3.14 The NDA and Magnox therefore are of the view that land plots MDS/05/06 and MDS/05/07 should be excluded from the Book of Reference altogether. The NDA and Magnox are also concerned over the implications of these powers for those plots that abut the nuclear site licence area, being plots MDS/05/02 and MDS/05/13 and would welcome urgent clarification and understanding from the Applicant. As plots MDS/05/02 and MDS/05/13 abut the nuclear site licence area, a Co-operation Agreement is required (or in absence of such a satisfactory agreement provisions) to ensure that neither party impacts on the other parties' obligations under its licence. This is discussed further below. 3.15 Neither the NDA nor Magnox has seen any reporting or evidence that the Applicant has undertaken diligent enquiry as to why the relevant Class 4 powers are required, or indeed how the compulsory acquisition of Class 4 powers may affect more widely the ability of the NDA and Magnox to carry out their respective statutory functions and regulatory responsibilities. As such, the NDA and Magnox are now carrying out that diligence themselves based on the published application. 4. PROTECTIVE PROVISIONS AND SITE CO-OPERATION 4.1 The NDA and Magnox note that neither is a "statutory undertaker" (as defined in Part XI of the Town and Country Planning Act 1990) for the purposes of the Planning Act 2008. 4.2 The NDA and Magnox are, however, Category 1 and Category 2 persons in respect of a significant number of land plots identified in the Applicant's Book of Reference, including land plots where the NDA has statutory functions and Magnox has regulatory responsibilities. As such, the NDA and Magnox are firmly of the view that Protective Provisions should be included in the Draft DCO for the purposes of preserving and protecting their respective abilities to carry out their statutory functions and regulatory responsibilities and to reflect agreement reached on the exercise of compulsory acquisition powers. 4.3 The NDA and Magnox acknowledge the potential complexities associated with three licensed nuclear installations being situated in close proximity, and indeed the potential for operations on one site to compromise the ability of the other sites to ensure compliance with regulatory requirements – notably in areas relating to site access, transport, construction activities, and environmental. In this context, the NDA and Magnox strongly emphasise the need to ensure that a Nuclear Site Licensees' Co-operation Agreement(s) is entered into between the NDA, Magnox, the Applicant and EDF NGL in order to ensure that there is in place a contractual framework which seeks to avoid conflict between the Sizewell A Nuclear Site, the Sizewell B Nuclear Site and the proposed Sizewell C Nuclear Generating Station, and to ensure that the relevant legal obligations of all parties are not compromised. The proposed compulsory acquisition of any NDA / Magnox land interests or rights must not override the provisions of this Co-operation Agreement, and indeed any future acquisition (including voluntarily) of land or interests by the Applicant must be conditional upon compliance with it, and such principles should be reflected in the Protective Provisions. 4.4 At this stage, and on the basis of the Applicant's current proposals, the NDA and Magnox are not yet satisfied that the Sizewell C Nuclear Generating Station can be constructed and operated in accordance with the Applicant's application proposals in a manner which adequately ensures the safe, secure and environmentally sound decommissioning of the Sizewell A Nuclear Site. 4.5 The NDA and Magnox have jointly engaged legal representation in this regard. 5. STATEMENT OF COMMON GROUND 5.1 In light of the above, the NDA and Magnox will enter into discussions regarding the terms of a Statement of Common Ground with the Applicant. Relevant Representation of the Nuclear Decommissioning Authority and Magnox Limited Submitted to the Examining Authority on 30 September 2020 Please see attached