Meeting with RWEnpower
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- Meeting with
- RWEnpower
- Date of meeting
- 9 September 2011
- Enquiry type
- Meeting
Could the IPC provide advice on transferring the benefits of the order
Advice given
Regarding transferring the benefits of the order, article 6 of version 1.4 of the draft DCO (which you sent to us at the end of April 2011) would give RWE Npower the right to transfer all the powers granted in the DCO to anyone else, should it so choose - ie including the compulsory acquisition powers (since article 1 of the order defines 'undertaker' as RWE Npower including its successors and assigns) .
However, allowing for the transfer of compulsory acquisition powers in a DCO raises the question of how it can be demonstrated at examination that the person carrying out the compulsory acquisition will have sufficient funds to acquire the land, successfully implement the project and pay all due compensation (refer to CLG guidance Planning Act 2008: Guidance Related to Procedures for Compulsory Acquisition paragraphs 33f). The Examining Authority will need to be satisfied that any third party to whom benefits or liabilities, such as compulsory acquisition, are transferred would be in a position to meet any financial obligations arising from the exercise of the powers, including the payment of compensation. It may be possible to define only an element of the DCO which could be transferred to another party at a later stage. One other option may be to provide for the compulsory acquisition power and therefore the compensation liability to be retained by the undertaker even if the benefit and any liabilities of other provisions are transferred to a third party.
The Funding Statement to be submitted with the application should explain how any compensation liabilities are to be secured, regardless of whether they are to be met by the undertaker or a third party. You should therefore satisfy yourself and take your own legal advice on which you can rely to ensure that you either eliminate such uncertainties or fully justify the need and operability of any such provision in the Explanatory Memorandum.
We further highlighted at the meeting that you have omitted from the 'consent to transfer benefit of order' wording in the Infrastructure Planning (Model Provisions)(England and Wales) Order 2009 (Model Provisions) "with the consent of the [specify person or body]?". Please note that IPC Advice Note 13 Preparation of a draft order granting development consent and explanatory memorandum indicates: "The draft order must be accompanied by an explanatory memorandum (regulation 5(2)(c) APFP) explaining the purpose and effect of each provision in a draft order (explaining, for example, why it is considered necessary) and any departures from the model provisions. (?) the Explanatory Memorandum should identify relevant precedents for non-standard provisions.?
Model Provision 5 provides for the transfer, by the (named) undertaker to a third party of any or all of the benefit of the provisions of the DCO, with the consent of a specified person or body. This could be the relevant Secretary of State depending on the nature of the provision. If you decide not to include this requirement for consent in respect of all or any of the provisions, you will need to explain your reasoning and justify this in the Explanatory Memorandum.