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Advice to RWE npower

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Enquiry

From
RWE npower
Date advice given
8 September 2010
Enquiry type
Email

RWE npower have identified approx 20 landowners who have to date refused to grant access for non-intrusive surveys, including environmental and ecological surveys. We are able to demonstrate that we have made reasonable attempts to contact the landowners by letter, e-mail, telephone and/or face to face meetings. The company now wish to apply to the IPC to authorise it to serve Notice under s53 Planning Act 2008. At the meeting David Price stated that legal advice taken within the IPC suggested that the statutory right to survey only included the precise definition of 'survey', meaning use of measuring equipment such as ranging rods etc and did not extend to wider definitions such as environmental, ecological etc. Clearly in order to obtain all the information required to submit a Development Consent Order access to land will be required to carry out all types of survey. There are also wider implications for all promoters of Major Infrastructure Projects if it is indeed the case that statutory powers are not available for all types of survey. Urgent clarification is therefore required on the types of surveys that can or cannot be carried out under s53 Planning Act 2008.

Advice given

The Commission may authorise entry to any land for the purpose of "surveying and taking levels". Although these terms are not defined in the Planning Act the Commission takes the view, having regard to the legislative intention of Section 53 as clarified by Hansard, that ?surveying? can also include surveys for the purposes of investigating and assessing environmental impacts.

You should be aware that the Commission can only authorise entry for the purpose of surveying in relation to a proposed application if: The Commission is satisfied that the applicant is considering a distinct project of real substance which genuinely requires entry onto the land The proposed application is likely to seek authority to compulsorily acquire the land or an interest in it or right over it, and The proposed applicant has complied with section 42 in relation to the proposed application.

When submitting a s53 request to the Commission you will need therefore to ensure that sufficient information is provided to enable the Commission to reach those conclusions. For example, you must confirm that the DCO application is likely to seek compulsory acquisition of the land to which entry is required for the environmental survey (or an interest in it) or identify the right which may be sought over that land. This could include a right to survey or investigate the land.

Please be advised that in any event you should always seek your own legal advice to inform your approach.