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Advice to NNTAG

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Enquiry

From
NNTAG
Date advice given
22 October 2014
Enquiry type
Email

I am emailing about Deadline 9 and the request for comments on the applicant?s draft DCO please.

When the wording in Deadline 9 refers to the applicant?s draft DCO ? is this referring to a draft DCO which is ?owned? by the NCC or the ExA please? In other words, if this is what the ExA is proposing to recommend to the Secretary of State, are community groups to assume that the ExA is intending to support the NDR?

Parties are invited to comment on the applicant?s draft DCO, but at what level and in what detail please? We fundamentally disagree with the Draft DCO. Do we therefore rehearse our arguments once again on the basis that the ExA is intending to support the NDR?

On specifics, do we address for example, the clause on Complementary Measures and why we believe that it is inadequate?

Advice given

The ExA are indeed asking for comments on the applicant?s draft DCO. This was the edition submitted by the applicant on 9 October http://infrastructure.planningportal.gov.uk/document/2757992

I do not know what the ExA are proposing to recommend to the Secretary of State, but they do have a duty to present an implementable DCO with their report. This is without prejudice to their recommendation. Even if they recommend that the scheme is not consented, they must provide the best possible draft DCO so that the SoS could implement it if they chose to do so.

Interested parties are also invited to comment without prejudice. Even if you recommend that the scheme is not consented, you are asked to provide comment as to how the draft DCO could be improved if it were to be implemented. This is analogous to providing planning conditions to mitigate the impacts of a scheme which you oppose.

Constructive comments should be provided in considerable detail, but it is not worth rehearsing arguments which have already been made. On your specific example, arguing that the Complementary Measures clause is inadequate would not be helpful. If the clause were to be removed as a result of your comments, there would be no clause. However, if you were to suggest alternative wording which would better meet your objectives, this may be substituted for the original.

It is very common for statutory parties to engage in this manner; while a regulator such as Natural England may oppose a scheme because of its negative impacts, they are often willing to engage with solutions for how these impacts would be mitigated if the scheme were to be consented. Doing so is not considered to weaken the arguments against the negative impacts.

Providing such constructive engagement could be considered as an insurance against the worst possible scenario, which would be a scheme consented without mitigation of negative impacts. Arguing against a scheme on principal results in two possible outcomes ? refusal or consent of the scheme. Providing possible mitigation measures results in two different outcomes ? refusal or consent of a mitigated scheme.