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Advice to Bond Pearce LLP

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Enquiry

From
Bond Pearce LLP
Date advice given
19 October 2010
Enquiry type
Email

From the DCLG Guidance on associated development it seems that on shore works cannot be integral to the NSIP and should, therefore, be omitted from any DCO if the works are located in Wales.

In the case of the underwater connection cables there is no mention of these under "off shore renewable energy installations" in Annex A to the Guidance and arguably, if it was intended that they should be treated as associated development they would have been specifically mentioned. The reference to grid-connections-electricity would not seem to include underwater connection cables as it appears to relate to generic utility connections from an on shore NSIP.

Furthermore, not all of the export cable would fall within Welsh waters and to describe that part of it in English waters as associated development consentable by the DCO and that part of it in Welsh waters as needed to be separately consented by means of a Marine Licence would appear to create unnecessary and artificial complications, particularly in then having to ask the IPC to consent only part of the cable by means of the DCO. I also find it difficult to believe that the IPC would be prepared to consent an off shore renewable energy project in isolation without including within the DCO the entire connection to shore.

Advice given

The approach you are proposing to advise your client to take does not seem to me to be an unreasonable one. As you may be aware we are not though able to give legal advice upon which applicants (and others) can rely, and a decision as to whether or not to accept a DCO application under s.55 of the 2008 Act would rest with the relevant Commissioner at that time.

The fact that "off shore renewable energy installations" are not specifically mentioned in Annex A to the Guidance does not necessarily mean that these are not capable of being treated as associated development. The examples given in the Guidance are not an exhaustive list of all categories of possible associated development.

Applicants may submit draft DCOs, including suggested draft requirements, to the Commission prior to making their formal submission and when so doing they may also provide legal submissions making reference to relevant case law to demonstrate that the draft provisions and requirements being proposed may be lawfully imposed.

This advice is without prejudice to any determination the Commission may make in accordance with s.55 of the 2008 Act.