Advice to Byron Davies

Enquiry

• From: Byron Davies
• Date advice given: 19 November 2014
• Enquiry type: Post

I have been approached by constituents who are expressing great concern regarding the above project.

It would appear that because of the existing devolution arrangements for planning, the Secretary of State for Energy and Climate change has no power to modify the DCO on Wales. Leaving all the associated development i.e. the Visitors Centre and Boating scheme etc etc to be dealt with by the Local Planning Authority under a separate planning application. This is not only costly, but less efficient, The residents want to ensure that, if granted, all the works outlined by Tidal Lagoon are completed as a whole.

It is appreciated that if a Local Planning Authority were to refuse an application for associated development it would have to have good planning reasons to do so and its decision would be challenged on appeal. Again, this is costly and bureaucratic.

I have written to the minister, Leighton Andrews AM asking that he sanction a modification to the DCO (As is the case in England) to this specific development and urging him to modify the legislation in the new Planning Bill to allow for modifications within Nationally Significant Infrastructure Projects, thereby alleviating this confusion.

I therefore seek your view on how this matter could be moved forward to ensure that the whole scheme be dealt with at the same time.

Advice given

Your letter of 17 November has been forwarded to me by the Planning Inspectorate Wales, as I am the case manager for the Tidal Lagoon Swansea Bay application. The application is for a Nationally Significant Infrastructure Project (NSIP) and its determination is governed by the Planning Act 2008 (PA2008) regime. As the examination of this application is still on-going, I cannot comment on the particular project, but I hope that the following assists.

The PA2008 procedure involves an examination of the application in which interested parties are entitled to participate. The application will include a draft Development Consent Order (DCO) and the applicant may submit further drafts during the examination in response to matters raised by the Examining authority (either a Panel of Examining Inspectors or a single Examining Inspector). At the end of the examination, the Examining authority (ExA) will make a report to the Secretary of State with a recommendation as to whether the DCO should be made; the report will include a draft DCO in the form that the ExA considers can lawfully be made and is otherwise suitable. After consideration of the report, the Secretary of State will decide whether the DCO should be made, and, if so, in what form.

The PA2008 enables development consent to be given both for the NSIP itself (in the case of the Swansea Bay Tidal Lagoon, for example, the NSIP is an electricity generating station) plus some other development ‘associated’ with it. In Wales, to respect the devolution settlement, the only associated development that the PA2008 allows to be consented in a DCO is in relation to underground gas storage facilities.

To enable associated development to be included in a development consent order for other types of NSIP in Wales would require a change to the PA2008.

Any development other than the NSIP itself would require a separate application for planning permission, made to the relevant local planning authority (LPA) under the Town and Country Planning Act 1990. A planning permission - or for that matter a DCO - merely authorises development. It cannot make the applicant carry it out. The permission could, however, control how the development is carried out, e.g. as to the sequence in which elements of it must take place. This will be a matter for the LPA in determining the application.

I hope that the above is helpful.