1. Section 51 advice
  2. Advice in detail

Meeting with Forewind

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Enquiry

Meeting with
Forewind
Date of meeting
31 July 2013
Enquiry type
Meeting

Working draft application documents provided by the applicant prior to submission of the application.

Advice given

Thank you to you and the team for meeting us on Monday in relation to the Dogger Bank projects. We promised to follow up with some written s51 advice for Dogger Bank Creyke Beck on the matters of Crown land, Book of Reference and statutory undertakers, which I now set out below.

Crown land

It is noted that there are no proposals to acquire any Crown interest compulsorily. However, notwithstanding article 43, as currently drafted article 24 would allow compulsory acquisition of interests in Crown land held by or on behalf of the Crown. This is not authorised by the Planning Act. Interests held by or on behalf of the Crown should therefore be excluded from compulsory acquisition. This can be effected by annotating the book of reference (in the relevant plot description) with the words "except interests held by or on behalf of the Crown".

Section 135 (1) does however allow Development Consent Orders (DCOs) to authorise the compulsory acquisition of land held other than by the Crown (for example a lease owned a third party over Crown Estate land) if the Crown authority consents to the acquisition. We are not sure whether it is proposed to compulsorily acquire an interest held by or other than by the Crown at the River Hull crossing (see s227 (3) - Crown land may be land in which there is an interest belonging to a government department or held in trust for Her Majesty for the purposes of a government department) or whether acquisition will be by agreement. If the consent of the appropriate Crown authority is required under s135 (1) (whether from the Crown Estate Commissioners or government department) you are strongly encouraged to procure relevant s135 (1) consents as soon as possible and at the very latest by the time the examination has concluded. When submitting your application you are also advised to provide information about the progress of discussions with the Crown authorities.

If a DCO contains provisions (not being compulsory acquisition provisions) "applying in relation to Crown land" Section 135 (2) prevents a DCO being made unless the appropriate Crown authority consents to the inclusion of the provisions. Notwithstanding article 43 protecting Crown rights, if provisions of the DCO (eg temporary use of Crown land) could be said to apply to Crown land it is recommended that in principle consent under s135 (2) to the draft DCO which you intend to submit with your application is sought from the relevant Crown authority before the application is submitted. At the least, the statement of reasons should provide information about the progress of discussions. If at decision stage there are any changes to the DCO provisions applying to Crown land, final s135 (2) consent can be sought at that stage.

In relation to each relevant plot within the Order land, it is recommended that the statement of reasons (or by cross reference to part 4 of the book of reference) is absolutely clear about the nature of interests in Crown land, how the interest is held and the appropriate Crown authority from which consent must be obtained (by reference to ss 135 and 227). If you do not consider that s135 (1) or (2) consent is required (because for example there is no compulsory acquisition of any interest held otherwise than by the Crown or because no provision applies in relation to Crown land) this should be explained in the statement of reasons, again with specific reference to ss135 and 227.

Book of Reference Part 3

It is considered that persons entitled to enjoy easements or other private rights which the applicant proposes to extinguish, suspend or interfere with identified in Part 3 should also be recorded in Part 1 as a person within categories 1 or 2.

Statutory undertakers

The Planning Act has been amended to remove the need for the Secretary of State to provide a certificate under s127 before (to paraphrase) authorising compulsory acquisition of statutory undertakers' land where a representation (made before the end of the examination) has not been withdrawn. The statement of reasons should nonetheless provide information to enable the Secretary of State to be satisfied that the tests in s127 (3) (and also the test of necessity in s138 (4)) can be met.

It is considered that applicants should not add any non-prescribed parts to a book of reference, for example schedules of statutory undertakers having or possibly having a right to keep equipment on, in or over the land within the Order limits. This is because diligent inquiry should enable applicants to know whether or not such undertakers have an interest or right in land for the purposes of s57 and if they are known the names and addresses should be contained in the relevant part of the book of reference. It would however be helpful (in the statement of reasons or where practicable) to identify which statutory undertakers (as defined in s127 (8) and 138 (4A)) have land or apparatus in the Order land and in relation to which the Secretary of State must be satisfied in relation to the tests in s127 (3) and 138 (4) as discussed above.