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Advice to Shepherd and Wedderburn

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Enquiry

From
Shepherd and Wedderburn
Date advice given
19 December 2012
Enquiry type
Email

Further to the meeting between SmartWind and the Planning Inspectorate on 12 December 2012, some updated drafting in relation to transfer of the DCO and the effect on deemed Marine Licences was provided to the Inspectorate for comments.

Advice given

Thank you for sending your amended draft DCO and Marine Licences further to our discussions, I have now reviewed these and make the following comments.

At the meeting you explained that it is Smart Wind?s intention to draft the Marine Licences and DCO in such a way as to enable the Marine Licences to transfer to another party who has obtained the benefit of the DCO, without the need for a separate application to the MMO.  To achieve this you have amended the definition of undertakers in your Marine Licences to include persons to whom the benefit of the DCO is transferred. I have some concerns that this may not produce the desired result.

s.72(7) Marine and Costal Access Act 2009 states that a Marine Licence may be transferred on application to the MMO by the licencee.  s.72(8) provides that a licence may not be transferred accept in accordance with subsection 7. 

In principle, if the MMO agree and the provisions are sufficiently clear, it could be possible to modify the provisions of the Marine and Costal Access Act in the DCO in accordance with s.120 planning Act 2008. However, the amended DCO you provided does not appear to contain any provision purporting to disapply or modify these provisions.  Consequently any transfer of the Marine Licences must be made in accordance with s.72 of the Marine and Costal Access Act 2009 and cannot pass automatically with the transfer of the DCO.    In addition, the DCO transfer provisions in article 35 permit transfer of part of the benefit of the Order.  There is no power to transfer part of the benefit of a Marine Licence under the Marine and Costal Access Act, to do this the DCO would need to modify the provisions of the Marine and Costal Access Act to specifically permit this.

It may interest you to know that the possibility of surrendering a Marine Licence and re-granting it has been explored on another case. It has been concluded that this would not legally be possible.

I note that you have already contacted the MMO seeking their views on this matter and I suggest that you await their response before finalising any documentation.

Please note that the advice contained in this letter is given under s.51 Planning Act 2008. It will be published on our website in accordance with our openness policy and does not constitute legal advice upon which the applicants (or others) can rely.