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Meeting with RWE Npower

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Enquiry

Meeting with
RWE Npower
Date of meeting
13 July 2011
Enquiry type
Meeting

RWE Npower enquired what the implications would be of a failure to reach agreement on acquiring statutory undertakers' (SU) land prior to submission of an application to the IPC.

Advice given

SUs' land is 'special land' if it has been acquired by the SUs "for the purposes of their undertaking (section 128(1)(b) (section 128(5) defines ?statutory undertakers? for the purposes of this section" CLG guidance related to procedures for compulsory acquisition (p.4) ('CLG guidance on CA')). The guidance further explains at paragraph 13: "where the promoter is seeking authorisation to acquire compulsorily special land, the decision-maker must also be satisfied that the conditions specified in sections 127?133 have been met.

S127(1) sets out the circumstances when the Secretary of State (SoS) will need to consider issuing a certificate. If s127(1) applies, s127(2)(b) PA2008 sets out that a provision for the compulsory acquisition of SUs' land can only be included in a DCO if the relevant SoS issues a certificate. The certificate must be issued before a decision on a DCO application can be made by the decision maker. S127(2) further states that the SoS must be satisfied of the matters set out in s127(3) before being able to issue a certificate. The matters set out in s127(3) are: "that the nature and situation of the land are such that (a) it can be purchased and not replaced without serious detriment to the carrying on of the undertaking, or (b) if purchased it can be replaced by other land belonging to, or available for acquisition by, the undertakers without serious detriment to the carrying on of the undertaking.?

CLG guidance on CA states (at paragraph 41) that where a developer is seeking to compulsorily acquire special land for which certification is required by the SoS early contact should be made with the relevant Government department to ensure this process is begun promptly. Paragraph 16 of Annex 1 of CLG guidance on CA further indicates: "It is the responsibility of the promoter to ensure a certificate required under section 127 (?) is obtained in good time to allow the decision-maker to make the order without any delay to the process. Applications for certificates should therefore be made as early as possible, ideally as soon as the promoter is clear that a certificate is desired and before an application is submitted to the IPC." Paragraphs 18ff of CLG guidance on CA provide further detail on how developers should apply for a certificate from the relevant SoS in cases where one is needed.

Subject to s129 (acquisition by statutory undertakers), s128(2) states that SUs' land is subject to special parliamentary procedure if s128(3) applies. S128(3) applies if a representation is made and not withdrawn by the SU about the application to the IPC before the completion of the examination of the application. If special parliamentary procedure applies, before an order can be made, it must be laid before a committee of both houses to determine whether or not compulsory acquisition powers will be granted. This will occur once the application has been considered by the IPC and the relevant SoS.

The IPC cannot comment on the timescales that this procedure may take as it is at the discretion of the SoS and relevant department. If special parliamentary procedure applies, the process may be prolonged.

If RWE npower fall within the definition of statutory undertaker in s129, then the order will not be subject to special parliamentary procedure.

As you know, the IPC cannot advise on the merits of applications for development consent orders (DCOs) or proposed such applications, give legal advice nor interpret legislation as the latter is a matter for the courts. I would therefore strongly advise you to obtain your own legal advice on this matter on which you can rely.