Representation by Brian Douglas Naylor (Brian Douglas Naylor)
- Date submitted
- 12 June 2024
- Submitted by
- Members of the public/businesses
Relevant Representation This comment is a relevant representation by the Interested Party in connection with the Project. Terms defined in this letter shall have the following meaning: Interested Party: Brian Douglas Naylor of [redacted] Project: Outer Dowsing Offshore Wind Project Property: (1) Land located at Surfleet Bank, Raston Leigh, Surfleet, South Holland, Lincolnshire PE11 4DP; and (2) Land located at Wash Road Hodgman’s Farm, Fosdyke CP, Fosdyke, Boston Lincolnshire PE20 2DD The Interested Party is required by the Project to: 1. Enter into an Option Agreement and Deed of Grant of Easement to lay cables on part of the Property; and 2. To enter into an Option Agreement to convey the freehold of the Property (part) to provide an access to the Project to obtain access to a new sub-station. The current position. a. Option Agreement for Cable Easement. The Interested Party and Project have agreed commercial heads of terms for an Option Agreement to lay cables. The Interested Party and the Project are in negotiations as to the model form of Option Agreement for the laying of cables for the benefit of the Project. At the time of this representation the Interested Party has not received a form of Option Agreement and Easement specific to the Interested Party. The legal terms for an Option Agreement remain to be agreed. Please refer to the list set out in paragraph (a) of “Representations of the Interested Party” for those terms which are being negotiated between the Interested Party and the Project. b. Option Agreement to Acquire the Freehold The Interested Party is agreeable to granting all necessary rights over the Property to provide the Project with access to the sub-station. The proposed terms for the easement to access the sub-station would be at market value. The Project has refused to accept the Interested Party’s offer to provide an easement for all purposes connected with the Project’s use of the sub-station at market value. The Project is insisting on the acquisition of the freehold. The Interested Party is not agreeable to selling the freehold as the freehold is required to gain access to other parts of the Property which are the subject of planning applications submitted by the Interested Party for development. The access is required by the Interested Party to ensure all necessary rights of access and services are capable of being for the benefit of those other developments. Representation of the Interested Party The Interested Party would like to make the following representations: a) The Interested Party is agreeable to proceeding with the Option Agreements for Cable Easements subject to the form of Option Agreement and Cable Easement being agreed. The legal wording remains with the respective solicitors for the Interested Party and the Project to be agreed. At the current time the following has not been agreed: i. Cable Depth The Project has ignored representations about how deep the cable should be. Concerns are with running silts, wet winter weather and rutting caused by the need to travel under all ground conditions due to need to deliver against supermarket contracts. With the cable only at 1.2 m’s, and ruts being up to 1m deep [as seen this winter just gone], there will be very little cover over the cable. ii. Limitation of Liability The Project are aware of the above concern and not withstanding have refused to enter a reasonable cap of liability in the event of damage to cables. The liability is currently unlimited. Any damage to the cable will result in a claim for value in excess of the typical farming operation. Food security is of national interest and should be balanced against this countries energy security which is also of national interest. The Project has refused to put in place adequate insurance to protect against possible damage to cables by Farming Operations. iii. Reinstatement of land Drainage Drainage impacts – the suggested depth of the cables may make it impossible to reinstate the drainage system due to both the cables and the land drainage being in the same depth profile – water doesn’t flow up hill, and so where this issue arises, it will be necessary to re-drain fields as reinstatement will not be possible. iv. Occupiers and Crop loss Occupiers other than landowners - specifically, the process of acknowledging their existence and rights the third party has to compensation and other protections – in the absence of reasonable binding agreements on all parties, the landowner will be commercially disadvantaged if the potential third parties do not wish to risk taking land that is impacted without adequate compensation protections. v. Encumbering Land The extent of the areas to be encumbered by the Option Agreement are to be approximately 560 metres in width. The Interested Party cannot agree to encumber land beyond that which is required for the implementation of the Project. The Option width is 60 metres for the laying of cable and undertaking works within the easement strip. The Interested Party has agreed this but cannot be expected to encumber land equal to 560 metres in width. b) The Interested Party is not agreeable to entering into an Option Agreement to dispose of their freehold interest in the Property to create an access for the Project to the sub-station. However, the Interested Party is agreeable to granting a legal easement to the Project over the Property to allow access to the sub-station on reasonable commercial terms. c) The Project has rejected the Interested Party’s offer to provide an all-purposes easement for the benefit of the Project without justification for acquisition of the freehold. Summary The agents and lawyers for the various interested parties involved with the Project have acted in good faith in trying to meet the deadlines set by the Project, to preserve the negotiated deals per the agreed Heads of Terms that exist in each case. By the Projects own delays in agreeing the legal documentation, the Project has created a situation where it will not be possible for documents to be signed in time, thus losing the incentives offered under the heads of terms. One interpretation of this situation is that it is deliberate, such that by a combination of the dates, the interested parties neither has a binding agreement and is therefore without the consequential financial settlement nor the opportunity to make representations clearing the way for unchallenged CPO application. Should the Project revert with a reasonable proposal that deals with the points made in this Representation, and this is legally contracted, the Interested Party will be agreeable to the withdrawal of the Representation. The parties have negotiated Heads of Terms (HoT’s) over an extended period, which are too detailed to include here. These HoT’s include agreements on multiple commercial, practical and legal issues which were deemed pertinent, and agreed, by both sides in the process. If the ability to rely on the terms contained within the HoT’s is removed consequent to the failure to complete legal documentation, we reserve the right to bring these points back into the representation process at a later date as relevant. This representation is made by Fraser Dawbarns LLP of 21 Tuesday Market Place, King's Lynn Norfolk PE30 1JW for and on behalf of and with the consent of the Interested Party.