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Advice to DWD LLP

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Enquiry

From
DWD LLP
Date advice given
19 March 2014
Enquiry type
Email

I agreed to set out the issues discussed during the call that it would be useful for PINS to consider and provide a response on. These are set out below:

  1. Generation licence ? SSE already holds a generation licence for Ferrybridge. Is it sufficient for the Applicant (MEL) for development consent to have a letter of intent from SSE that it will be able to operate FM2 under the existing generation licence?

  2. Ownership interest ? What is the minimum level of interest that the Applicant must have in the Application Site for DCO purposes? Would a letter of intent from SSE (the owner of the majority of the Application Site) be sufficient or would an option to enter into a lease (on condition of consent being granted) be required?

  3. Non DCO consents ? is it necessary to be able to produce a letter of ?no impediment? in relation to each non DCO consent required from the relevant consenting body at the examination stage?

Advice given

I?ll deal with each question in turn, but in a broad sense the less certainty you can provide an Examining Authority, the greater the likelihood that there would be questions on the relevant matter to understand the issue in full. As you are aware, once an application has been submitted, there is limited scope to make changes and the application is handled under statutory timescales. From experience this means turn-around times are very tight. The more issues that can be addressed prior to submission the more focused the examination can be.

1 Generation licence

It is the applicant?s responsibility to ensure it has a necessary generation licence. In the absence of a generation licence at the start of an examination, it may be an issue that an Examining Authority wishes to examine in depth. Where you can provide a letter of intent along with any supporting full explanation of the context and any supporting evidence such as from Ofgem, then the Examining Authority may find this sufficient, However if that?s not considered sufficient the ExA has the remit to ask further questions.

2 Ownership interest

It may be helpful to consider this from an Examining Authority?s point of view. In general, they would be looking to understand the level of certainty that the undertaker who would benefit from the order can give to meeting any obligations, in particular where compulsory powers trigger the need to provide compensation. In that respect, it would be a matter for the examination, however the greater the certainty available upon submission the less the risk of this being a detailed examination issue.

3 Non DCO consents

From an Examining Authority?s point of view, in general it would look to consider whether there are any impediments to a consent outside of the DCO being granted and may wish to ask questions of the relevant statutory / consenting bodies as well as the applicant. In absence of letters of no impediment, and / or if impediments are identified during / remain at the close of examination then it would be for the ExA to consider the balance of evidence during the reporting stage and make their recommendation to the secretary of state in the context of the application as a whole.

In the first instance, I?d advise continuing discussion the Consents Service Unit on the consents it covers, and identifying all non-DCO consents prior to submission. As part of this, do consider the way in which the non-DCO consents interact with the scheme design and DCO provisions / requirements, in discussion with the relevant consenting bodies. This should help identify where mitigation may be needed through deisgn and / or DCO requirements. As mentioned above, if impediments are identifed after the submission of the DCO application, and then require a material change to the application that would be a procedural issue that would be challeging to address.

Just to advise, we strongly encourage working with statutory bodies to identify potential issues as early as possible, and are happy to work jointly with parties at pre-application where this can potentially benefit the effective examination of a future application.