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Advice to RWE Npower

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Enquiry

From
RWE Npower
Date advice given
3 February 2011
Enquiry type
Email

EUPS We reviewed the draft requirements found in Schedule 4 of the Model Provisions. Regarding Requirement 34 'European Protected Species', NE commented that following the Cheshire East ruling, this condition would not be a acceptable as it requires further survey work to be carried out post consent. Our NE contact (Eric Steer) will propose a new condition, but given the circumstances, I wondered if the IPC have prepared a revised condition?

Habitats Regs When I submitted (to the IPC) the application for a scoping opinion, I also submitted a letter stating that as no sites designated under the Habitats Regs were affected by the project, no report would be be provided to accompany the final application for consent. The scoping response states that a report will be required because the river Mease SAC falls within 10km of the route and also that the Humber Estuary (SAC & Ramsar) should be considered. I have discussed this with NE and they suggest that would provide a letter giving an opinion regarding scoping this out. Assuming that NE state that there are no likely significant effects on these sites, would it be best to submit this to the IPC immediately or wait until the draft ES stage?

Advice given

Re EUPS:

The draft requirements in the Model Provisions provide a starting point but it is the applicant's responsibility to draft requirements appropriate to the development in question in consultation with Natural England and the LPA. You will obviously want to take your own legal advice to ensure that the requirement is lawfully drafted (bearing in mind case law such as Cornwall and Woolley). What is important is that the presence or otherwise of EPS, and the extent to which they may be affected by the proposed development, is established by surveys before the application is submitted so that the Exam can take into account all relevant and important matters. Any necessary measures to protect the EPS should be secured by requirements.

The law in Woolley also means that even though you may intend to apply for an EPS licence separately the IPC must still consider the derogation tests set out in Article 16 of the Habitats Directive and would recommend that you provide this information with your application to enable the tests to be considered if the application is accepted. The IPC cannot issue a binding view as to whether an EPS licence is actually required (in other words whether any of the offences eg deliberate disturbance or deterioration/destruction of breeding sites/resting places might occur). You must discuss this with Natural England and take their advice. Natural England will take a view based on the requirements of the Habitats Directive and current caselaw such as Morge.

Re Habitats Regs: You could submit the letter but at this stage we could only comment on whether it would be enough to clarify that in NE's view there are no significant effects so that when you submit your application the Commissioner is able to consider whether or not you have (or need) to comply with requirements to submit information in accordance with Regulation 5(g) of the APFP (which requires submission of a report to identify any European sites affected by the proposed development and sufficient information to carry out appropriate assessment if required). We could not say whether we agreed with your conclusion. We are shortly to issue an advice note about the format which this "no significant effects report" is advised to adopt also having regard to Commission guidance and best practice. The "no significant effects report" could be appended to the report which is required by Regulation 5(g) and as a minimum must provide the details set out at para 30 of IPC Guidance Note 2. It would be helpful if the "no significant effects report" were also cross referenced at Box 16 of the application form so that it is clear that you have assessed the effects on habitats (although you have concluded no significant effects on the Humber Estuary SAC and Ramsar and River Mease SAC).