cfappdoc13 - statement of reasons - planning inspectorate · pdf file1.1 this statement of...
Post on 06-Mar-2018
218 Views
Preview:
TRANSCRIPT
Document Reference Number - CF/AppDoc13/Statement of Reasons
lon_lib1\8617159\2 1
The Planning Act 2008
The Infrastructure Planning (Applications: Prescribed Forms and
Procedure) Regulations 2009
Regulation 5(2)(h)
THE CLOCAENOG FOREST WIND FARM ORDER
STATEMENT OF REASONS
Document Reference Number - CF/AppDoc13/Statement of Reasons
lon_lib1\8617159\2 2
CONTENTS
1 INTRODUCTION......................................................................................... 3
2 PURPOSE OF THE APPLICATION................................................................... 4
3 RWE NPOWER RENEWABLES LIMITED .......................................................... 7
4 DESCRIPTION OF ORDER LAND ................................................................... 8
5 OWNERSHIP OF THE ORDER LAND..............................................................10
6 CONSULTATION........................................................................................16
7 PLANNING POLICY SUPPORT FOR THE PROJECT ...........................................16
8 PROJECT OUTPUTS ...................................................................................17
9 DELIVERY AND FUNDING...........................................................................17
10 COMPULSORY PURCHASE POWERS AND GUIDANCE......................................18
11 JUSTIFICATION FOR SEEKING POWERS OF COMPULSORY ACQUISITION.........20
13 NEGOTIATIONS ........................................................................................22
14 SPECIAL FEATURES AND SPECIAL CATEGORIES OF CONSIDERATIONS ...........26
15 RELATED ORDERS ....................................................................................27
16 ACQUISITION OF RIGHTS ETC ...................................................................27
17 VIEWS OF THE GOVERNMENT DEPARTMENTS ..............................................28
18 COMPENSATION .......................................................................................28
19 HUMAN RIGHTS CONSIDERATIONS.............................................................29
20 A COMPELLING CASE IN THE PUBLIC INTEREST – SECTION 122(3) OF
THE 2008 ACT..........................................................................................31
Document Reference Number - CF/AppDoc13/Statement of Reasons
lon_lib1\8617159\2 3
1. INTRODUCTION
1.1 This Statement of Reasons (“the Statement”) relates to an application (“the
Application”) (Document Reference CF/AppDoc02/App Form) by RWE
Npower Renewables Limited (“the Company”) to the Secretary of State, under
Section 37(2) of the Planning Act 2008 (as amended by the Localism Act 2011)
(“the 2008 Act”) to authorise the granting of development consent for the
proposed Clocaenog Forest Wind Farm Order (“the Order”) (Document
Reference CF/AppDoc07/DCO). The Order seeks to confer powers on the
Company to construct and operate up to 32 wind turbines with an installed
capacity of up to 96MW at Clocaenog Forest.
1.2 The Statement is prepared pursuant to Regulation 5(2)(h) of the Infrastructure
Planning (Applications: Prescribed Forms and Procedure) Regulations 2009 (“the
Application Regulations”) and the Planning Act 2008: Guidance Related to
Procedures for Compulsory Acquisition (“the Guidance”)1.
1.3 The Statement forms part of the suite of Application documents for the Order
which seeks development consent for a Nationally Significant Infrastructure
Project (“NSIP”), namely a wind farm with up to 32 turbines and an installed
capacity of up to 96MW. The Order would confer powers on the Company to
construct and operate the following key components:-
1.3.1 Installation of 32 turbines with a maximum blade tip height of 145
metres and external transformer units including the construction of
turbine foundations and crane hardstanding;
1.3.2 2 anemometry masts (maximum height of 100 metres);
1.3.3 Permanent access routes to the site and between turbines;
1.3.4 Underground cabling between turbines;
1.3.5 A substation compound, comprising the substation, a building with an
enclosed control room, welfare facilities and an external compound;
1.3.6 Four borrow pits; and
1.3.7 Two civil construction compounds.
1.4 The above development is referred to in the Statement as “the Project”.
1 The Department for Communities and Local Government have consulted on a revised form of Guidance which is yet to be
published. Therefore this Statement has been prepared pursuant to the existing Guidance published in February 2010.
Document Reference Number - CF/AppDoc13/Statement of Reasons
lon_lib1\8617159\2 4
1.5 The Order also seeks to confer upon the Company powers of compulsory
acquisition of land or rights over land required for the Project or to facilitate it, or
that is incidental to the Project within the meaning of Section 122 of the 2008
Act. In the Statement, the land which is the subject of the compulsory purchase
powers sought in the Order is referred to as the “Order Land”. The Order Land is
described in Section 4 of the Statement and is further shown on the Land Plans
(Document Reference CF/PLAN01/LAND/01-07) which accompany the
Application.
1.6 The Order seeks to apply, modify or exclude certain statutory provisions and so
under sections 117(4) and 120(5) of the 2008 Act the Order is required to be
made by statutory instrument. Accordingly, the Order is drafted in the form of a
Statutory Instrument.
1.7 The Application further comprises a Book of Reference (Document Reference
CF/AppDoc14/Book of Reference) which identifies those persons with an
interest in the land affected by the Order, and a Funding Statement (Document
Reference CF/AppDoc12/Statement of Funding) which explains how the
Project will be funded.
1.8 The Statement explains the Company’s rationale as to why it is necessary and
justifiable to include powers of compulsory purchase powers in the Order and
explains why the Company considers that there is a compelling case in the public
interest for making the Order with the inclusion of those compulsory purchase
powers so as to secure the land and property interests required to enable the
Project to proceed.
2. PURPOSE OF THE APPLICATION
2.1 The purpose of the Order is to grant development consent to authorise the
construction and operation of the Project being a 32 turbine wind farm at
Clocaenog Forest near Denbigh, North Wales as described in paragraph 1.3
above. A full technical explanation of the Project is contained in Chapter 3 of the
Environmental Statement (ES) (Document Reference CF/AppDoc04/ES)
which accompanies the Application.
2.2 Pursuant to sections 14(1)(a) and 15(2) of the 2008 Act, an onshore electricity
generating station in Wales having a capacity of more than 50 MW is a nationally
significant infrastructure project (“NSIP”).
2.3 As the Project is an onshore electricity generating station with a total electrical
output of between 64 to 96 MW it is an NSIP for the purposes of the 2008 Act
and so any application for development consent must be made to the Secretary
of State under section 37 of the 2008 Act. The Order is part of the application
made by the Company to the Secretary of State.
Document Reference Number - CF/AppDoc13/Statement of Reasons
lon_lib1\8617159\2 5
2.4 The Order also contains limited powers to acquire land and rights for the
construction and operation of the Project.
2.5 The Statement focuses upon the Company’s justification for the inclusion of
those powers of compulsory acquisition in the Order required to ensure the
delivery of the Project. The works to be authorised by the Order are shown on
the Works Plan (Document Reference CF/PLAN02/WORKS/01 to 07)
submitted with the Application and are detailed in Part 1 of Schedule 1 to the
Order which is summarised below:-
In the County of Denbighshire and in the County Borough of Conwy –
A wind energy electricity generating station with an installed capacity of between
64 and 96 MW comprising a nationally significant infrastructure project as
defined in sections 14 and 15 of the 2008 Act consisting of-
Work No.1 - up to 32 wind turbines each sited on concrete foundations
incorporating hardstanding for cranes, each turbine being fitted with rotating
blades and having a height to blade tip of up to 145 metres and including
external transformers located at the base of the turbine. The wind turbines
comprising Work No. 1 will be situated at the locations identified in Part 1 of
Schedule 1 to the Order.
Work No.2A – A series of electrical cables with a nominal voltage of 33 kilovolts
together with a cable for the transmission of electronic communications buried
beneath the surface of the ground along the general line of the tracks and roads
comprised in Work No.3 and connecting the wind turbines comprising Work No.1
and the onsite electricity substation comprising Work No. 5A arranged in the
circuit routes described in Part 1 of Schedule 1to the Order.
Work No.2B – A series of electrical cables with a nominal voltage of 33 kilovolts
together with a cable for the transmission of electronic communications buried
beneath the surface of the ground along the general line of the tracks and roads
comprised in Work No.3 and connecting the wind turbines comprising Work No.1
and the onsite electricity substation comprising Work No. 5B arranged in the
circuit routes described in Part 1 of Schedule 1 to the Order.
Work No. 3 - A series of new tracks, existing tracks subject to improvement
and widening and public roads subject to widening as described in Part 1 of
Schedule 1 to the Order. In constructing Work No.3 the Company may—
(a) provide temporary passing places for construction vehicles at any
location along the line of the work shown on the Works Plans within the
limits of deviation for Work No. 3; and
Document Reference Number - CF/AppDoc13/Statement of Reasons
lon_lib1\8617159\2 6
(b) construct culverts to carry any watercourse under Work No. 3 and
extend or replace any existing culvert to carry such a watercourse.
Work No.4A – A widening of part of the of the unnamed public road shown as
PR1 on the Works Plan to provide construction, maintenance and emergency site
access commencing at Ordnance Survey National Grid Reference Point 300744,
358783 and terminating at Ordnance Survey National Grid Reference Point
300624, 357351 (or alternatively Work No. 4B).
Work No.4B – A widening of part of the of the unnamed public road shown as
PR5 on the Works Plan to provide construction, maintenance and emergency site
access commencing at Ordnance Survey National Grid Reference Point 301747,
351092 and terminating at Ordnance Survey National Grid Reference Point
302455, 350165.
Work No.5A - An onsite electricity substation comprising an enclosed area of
hardstanding of 4080 square metres located at Ordnance Survey National Grid
Reference Point SJ0136958813 and including a control building to house switch
gear and control equipment (or alternatively Work No. 5B).
Work No.5B - An onsite electricity substation comprising an enclosed area of
hardstanding of 4080 square metres located at Ordnance Survey National Grid
Reference Point SJ0215150472 and including a control building to house switch
gear and control equipment.
Work No.6 - A meteorological mast for the purpose of monitoring and recording
wind speed and direction as well as air temperature, having a height of 100
metres and sited on an area of hardstanding of 900 square metres and located
at Ordnance Survey National Grid Reference Point SH9989356575. Work No.6
includes a cable for the transmission of electronic communications from wind
turbine No.9 comprised in Work No.1 along the line of existing track No. E10 and
new spur track No SMM1 comprised in Work No.3.
Work No.7 - A meteorological mast for the purpose of monitoring and recording
wind speed and direction as well as air temperature, having a height of 100
metres and sited on an area of hardstanding of 900 square metres and located
at Ordnance Survey National Grid Reference Point SJ0073551823. Work No.7
includes a cable for the transmission of electronic communications along the line
of existing track No.E33 from its junction with new spur track No. S28 and new
spur track No SMM2 comprised in Work No.3.
Work No.8 - A temporary civil construction compound comprising an enclosed
area of hardstanding of 2500 square metres located at Ordnance Survey
National Grid Reference Point SJ0095558354 and including a temporary office
and staff welfare building together with an area for the storage of materials for
use in the construction of the authorised development.
Document Reference Number - CF/AppDoc13/Statement of Reasons
lon_lib1\8617159\2 7
Work No.9 - A temporary civil construction compound comprising an enclosed
area of hardstanding of 2500 square metres located at Ordnance Survey
National Grid Reference Point SJ0178451133 and including a temporary office
and staff welfare building together with an area for the storage of materials for
use in the construction of the authorised development.
Work No.10 - A borrow pit for the extraction of stone to be used in the
construction of the authorised development, having an area of 39,200 square
metres and a depth of up to 18 metres located at Ordnance Survey National Grid
Reference Point SJ0189157562.
Work No.11 - A borrow pit for the extraction of stone to be used in the
construction of the authorised development, having an area of approximately
13,600 square metres and a depth of up to 16 metres located at Ordnance
Survey National Grid Reference Point SJ0246654106.
Work No.12 - A borrow pit for the extraction of stone to be used in the
construction of the authorised development, having an area of approximately
18,300 square metres and a depth of up to 20 metres located at Ordnance
Survey National Grid Reference Point SJ0185151493.
Work No.13 - A borrow pit for the extraction of stone to be used in the
construction of the authorised development, having an area of approximately
11,300 square metres and a depth of up to 19 metres located at Ordnance
Survey National Grid Reference Point SJ0078050630.
Work No.14A – A temporary electrical compound comprising an enclosed area
of hardstanding of 2500 square metres located adjacent to the onsite electricity
substation forming Work No.5A at Ordnance Survey National Grid Reference
Point SJ0131558784 (or alternatively Work No. 14B).
Work No.14B – A temporary electrical compound comprising an enclosed area
of hardstanding of 2500 square metres located adjacent to the onsite electricity
substation forming Work No.5B at Ordnance Survey National Grid Reference
Point SJ0219750429.
3. RWE NPOWER RENEWABLES LIMITED
3.1 The Company is one of Wales’ and the UK’s leading renewable energy
companies, dedicated to generating electricity using sustainable and
environmentally friendly resources. The Company has the resource and
expertise to develop, build and operate high quality commercial scale renewable
energy schemes throughout the UK. The Company is the UK subsidiary of RWE
Innogy which was recently established to pool the renewable energy expertise of
RWE Group Europe. The Company has a long established presence in Wales
through the following activities:-
Document Reference Number - CF/AppDoc13/Statement of Reasons
lon_lib1\8617159\2 8
3.1.1 Over 100 years in Wales, through RWE NRL’s hydroelectric power
station at Dolgarrog;
3.1.2 RWE NRL generates almost half of Wales’ current renewable energy;
3.1.3 A portfolio of 7 onshore and 2 offshore wind farms and 6 hydroelectric
power stations within Wales;
3.1.4 Some 90 employees, approximately 20% of the Company’s UK staff
are based in Wales at the Company’s regional offices from Baglan in
South Wales, Llanidloes in Mid Wales to Dolgarrog, St Asaph and Port
of Mostyn in North Wales; and
3.1.5 An application under the 2008 Act for the Brechfa Forest West Wind
Farm Order which was made by the Secretary of State on 12 March
2013.
4. DESCRIPTION OF ORDER LAND
4.1 The Project is located in Clocaenog Forest, approximately 13 km south of
Denbigh and approximately 10 km west of Ruthin, Denbighshire. The Order
Land is located within the administrative areas of both Denbighshire County
Council and Conwy County Borough Council.
4.2 Clocaenog Forest is located within one of seven areas, called Strategic Search
Areas, set aside for the development of large-scale wind farms. These areas
were specifically identified as suitable for such development within the Welsh
Government’s planning guidance Technical Advice Note 8 (TAN8): Renewable
Energy (2005).
4.3 Villages and hamlets close to Order Land (within 5 km of the Order Land) include
Pentre-Llyn-Cymmer, Cyffylliog, Clocaenog, Clawdd-newydd, Derwen, Melin-y-
Wig and Llanfihangel Glyn Myfyr.
4.4 The Order Land is located within the Clwyd Hills with Bangor located
approximately 60 km north west of the Order Land, Llandudno approximately 49
km to the north west, Mold approximately 25 km to the north east, Porthmadog
approximately 52 km to the west, Wrexham approximately 30 km to the east
and Welshpool located 55 km to the south. The centre of Snowdonia National
Park is approximately 50 km to the west of the Order Land. The Order Land is
situated approximately 25 km from the nearest point on the north Wales
coastline and approximately 52 km from the nearest point on the west Wales
coastline.
4.5 Clocaenog Forest spans approximately 4,231 ha. The Order Land covers an area
of approximately 1,581 ha within the Forest. The northern boundary of the
Document Reference Number - CF/AppDoc13/Statement of Reasons
lon_lib1\8617159\2 9
Order Land is located 1 km south of the B4501 and the Order Land extends a
further 7 km southwards. The eastern boundary of the Order Land is located
approximately 400 m west of the River Clwyd at its closest point, and the
western boundary is approximately 2.2 km east of Lyn Brenig reservoir. The
Order Land comprises an upland plateau with an altitude of between 380 m and
502 m. Craig Bron-Banog is the highest point within the Order Land at an
altitude of 502 m.
4.6 In the early 1900s much of the environment of the Order Land was altered to
one of managed heather moorland, whilst forestry planting in some areas began
as early as 1905. The majority of the Order Land is now predominately conifer
forest with some open areas of heather moorland. The Forestry Commission
Wales (“FCW”) manages all of the land within the Order Land on behalf of the
Welsh Government (“WG”) (with the exception of land within a number of
private properties which are located within the Order Land).
4.7 Clocaenog Forest is used for a number of recreational activities. There are a
number of promoted routes (including the Brenig Way and Hiraethog Trail), and
a fishing lake (the Clywedog Reservoir). In addition, there are a number of
designated picnic areas (all outside the Order Land) and a wildlife viewing hide
for bird watching during the black grouse lekking season at Foel Frech. Walkers
are able to use any forest track and roam freely within Clocaenog Forest due to
the Countryside and Rights of Way Act 2000. Cyclists are also permitted by FCW
to use the forest tracks and, historically, horse riders also have permission from
FCW to use the tracks within the forest. There are also three promoted Ride
North Wales cycle routes through the Order Land which use the forest tracks,
which are promoted by Ride North Wales.
4.8 The main groups and users of Clocaenog Forest include:-
4.8.1 Walkers, runners horse riders and cyclists and mountain bikers making
use of open access to Clocaenog Forest, the Public Rights of Way
network, Byways Open to All Traffic and other permissive forest tracks
and trails;
4.8.2 Anglers;
4.8.3 Carriage drivers (concordat in place with the British Driving Society in
Wales);
4.8.4 All-terrain drivers;
4.8.5 Bird watchers and ecological interests;
4.8.6 Hunters (with permission from FCW); and
Document Reference Number - CF/AppDoc13/Statement of Reasons
lon_lib1\8617159\2 10
4.8.7 Other specific users (outlined in section 2.14 of Annex 7.2 Access
Management Plan (“AMP”) of the ES (Document Reference
CF/AppDoc04/ES)).
4.9 Further details on the current use of the Order Land are contained in Chapter 7
of the ES (Land Use, Access and Forestry) and in Annex 7.2 of the AMP of the
ES.
4.10 For further information regarding the Order Land location, the existing land
characteristics, land use and the Order Land’s surroundings see Chapter 3 of the
ES.
5. OWNERSHIP OF THE ORDER LAND
5.1 The majority of the Order Land required for the project within Clocaenog Forest
is owned by the WG and managed by FCW on the WG’s behalf. An Option
Agreement for a lease over the Order Land owned by the WG which is required
for the Project has already been concluded with FCW and a redacted version of
that Option Agreement accompanies the Company’s application (Document
Reference CF/AppDoc16/Option).
5.2 Since the Company have an option for a lease from FCW for the Order Land
which is owned by the WG and required for the Project the Company does not
need to seek powers of compulsory acquisition over the Order Land owned by
the WG. However, the Company have identified certain third party rights over
that Order Land and which are required to be interfered with during the
construction of the Project. In addition, some of the Order Land required for the
Project is land forming public roads for which the relevant highway authority are
responsible.
5.3 The Order therefore confers the necessary limited powers on the Company to
interfere with those rights and to acquire the interests necessary in the public
roads which are required to construct the Project. Accordingly, the application is
accompanied by a Book of Reference and the Land Plans.
Land Plan
5.4 In accordance with the requirements set out in Regulation 5(2)(i) of the
Application Regulations the Land Plans identify:-
5.4.1 The Order Land required for or affected by the Project, which is shown
edged red;
5.4.2 The Order Land required for or affected by the Project but which is not
subject to compulsory acquisition is shown coloured light blue within
the area of land shown edged red. This land is numbered “1” on the
Document Reference Number - CF/AppDoc13/Statement of Reasons
lon_lib1\8617159\2 11
Land Plans and is the land owned by the WG and managed by FCW on
their behalf. As stated in paragraph 5.1 above the Company will be
granted a lease for this land. It should be noted that this land is also
indicated on the Land Plans as being Crown Land in accordance with
the requirements of Regulation 5(2)(n) of the Applications Regulations;
5.4.3 The Order Land which is subject of the exercise of powers to acquire
new rights to use land, which is shown:-
5.4.3.1 coloured dark green when located in the administrative
area of Denbighshire County Council; and
5.4.3.2 coloured light green when located in the administrative
area of Conwy County Borough Council;
5.4.4 The Order Land which is subject to the exercise of powers to extinguish
mineral rights, which is the land shown edged red; and
5.4.5 The Order Land which is subject to the exercise of powers to
extinguish, suspend or interfere with private rights of way, which is
shown coloured blue.
Book of Reference - Part 1
5.5 Part 1 of the Book of Reference identifies the owners and occupiers and anyone
with an interest in land over which powers of compulsory acquisition of rights to
use land are sought. As mentioned in paragraph 5.1 and 5.2 of the Statement,
the Company does not require and is not seeking power to compulsorily acquire
land owned by the WG for which the Company has the option of a lease.
However, as part of the Project, certain roads within Clocaenog Forest which are
public highways maintainable by the relevant local highway authority (either
Denbighshire County Council or Conwy County Borough Council) will be subject
to street works authorised by the Order. As well as the temporary interference
with those highways during the construction of the street works required for the
Project, the Company is also seeking the right to lay cables.
5.6 It is understood by the Company from other contexts that the inclusion of a
power to carry out works in a highway is analogous to conferring rights of
complusory acquisition. Accordingly, the Company have included the requisite
acquisition powers in the Order to permit the Company to acquire rights to use
highways included within the Order Land so to enable the Company to construct
the highway works authorised by the Order.
5.7 The following highway authorities have been identified in Part 1 of Book of
Reference as having an interest in the numbered land parcels which comprise
the Order Land:-
Document Reference Number - CF/AppDoc13/Statement of Reasons
lon_lib1\8617159\2 12
5.7.1 Denbighshire County Council as highway authority for the unclassified
roads included in land parcel no. 13; and
5.7.2 Conwy County Borough Council as highway authority for the
unclassified roads included in land parcel no 9, 10, 11 and 12.
Book of Reference - Parts 2a and 2b
5.8 Part 2 of the Book of Reference is in two parts.
5.9 Part 2a of the Book of Reference sets out the persons whom the Company
considers would or might have a claim for compensation in respect of injurious
affection under section 10 of the Compulsory Purchase Act 1964. The Company
considers that the interests identified in Part 2a will only be subject to temporary
suspension or interference as the Company does not anticipate requiring the
permanent extinguishment of such rights.
5.10 Part 2b of the Book of Reference sets out the properties whose owners the
Company considers may have a claim for compensation under Part 1 of the Land
Compensation Act 1973 in respect of the depreciation of the value of that
property which may be caused by the use of the Project.
5.11 The following parties have been identified in Part 2a of the Book of Reference as
having an interest in the numbered plots which comprise the Order Land:-
5.11.1 Richard Horton Williams – Sporting and access rights (parcel no.8);
5.11.2 Colin Almond - Sporting and access rights (parcel no.8);
5.11.3 Sydney George Badland - Sporting and access rights (parcel no. 8);
5.11.4 John Gwyn Thomas - Sporting and access rights (parcel no. 8);
5.11.5 Mr and Mrs Tilby - Private right of way (parcel no. 1,2 and 3);
5.11.6 Julia Caroline Hands - Private right of way (parcel no. 7);
5.11.7 Orange Holdings UK Ltd - Private right of way (parcel no. 6);
5.11.8 Airwaves - Private right of way (parcel no.6); and
5.11.9 William Charles Bamford - Private right of way (parcel no.5).
5.12 The following properties have been identified in Part 2b of the Book of
Reference:-
5.12.1 Pantdedwydd, Betws Gwerfil Goch;
Document Reference Number - CF/AppDoc13/Statement of Reasons
lon_lib1\8617159\2 13
5.12.2 Cruglas, Cyffylliog;
5.12.3 Lodge Isaf, Betws Gwerfil Goch;
5.12.4 Hafotty Hendre, Llanfihangel Glyn Myfyr;
5.12.5 Cefn Rofft, Llanfihangel Glyn Myfyr;
5.12.6 Tal-y-cefn Uchaf, Cyffylliog;
5.12.7 Lodge Uchaf, Betws Gwerfil Goch;
5.12.8 Ty-nant, Llanfihangel Glyn Myfyr;
5.12.9 Tan-y-bwlch, Betws Gwerfil Goch;
5.12.10 Bron-Bannog, Hiraethog;
5.12.11 Brynbach, Saron;
5.12.12 Pen-y-bryn - Betws Gwerfil Goch;
5.12.13 Tai’n y Waens, Llanfihangel Glyn Myfyr;
5.12.14 Diffwys, Cyffylliog;
5.12.15 Hafotty Newydd, Llanfihangel Glyn Myfyr;
5.12.16 Nilig, Cyffylliog;
5.12.17 Bryn-celyn, Betws Gwerfil Goch;
5.12.18 Cefnbannog, Betws Gwerfil Goch;
5.12.19 Trawsnant, Cyffylliog;
5.12.20 Seler, Cyffylliog;
5.12.21 Tai Ucha, Cyffylliog;
5.12.22 Isgaer-wen, Pentre Llyn Cymmer;
5.12.23 Nant Uchaf, Cyffylliog;
5.12.24 Crud y Gwynt, Cyffylliog;
5.12.25 Hafod Ty Ddu, Nantglyn;
5.12.26 Hafod Olygfa, Nantglyn;
Document Reference Number - CF/AppDoc13/Statement of Reasons
lon_lib1\8617159\2 14
5.12.27 Ty Uchaf Ffrithoedd, Pentre Llyn Cymmer; and
5.12.28 Hendre Ucha Ffrithoedd, Pentre Llyn Cymmer.
Book of Reference - Part 3
5.13 Part 3 of the Book of Reference identifies those persons entitled to enjoy
easements or other private rights over the Order Land which it is proposed shall
be extinguished, suspended or interfered with.
5.14 Although the Order Land is owned by the WG, the Company have identified a
number of third party interests which exist over certain areas of the Order Land
which are required to be temporarily suspend or interfere with during the
construction of the Project. These interests relate to private rights of way along
existing forestry tracks. The Company does not intend to permanently extinguish
such rights.
5.15 The Company have also identified that certain persons have fishing, sporting and
grazing rights which will be temporarily suspended or interfered with during the
construction of the Project. Again, the Company does not intended to
permanently extinguish these rights. These rights have been identified as
mostly existing at Clywedog Reservoir which is not required for the Project and is
shown on the Works Plans as land not required for the Project. However, such
rights may exist over other areas of the Order Land.
5.16 There may also exist possible mineral rights over parts of the Order Land which
may be required to be extinguished. The Order applies the mineral code (Parts 2
and 3 of Schedule 2 to the Acquisition of Land Act 1981) to the extinguishment
of those mineral rights by the Company under the Order.
5.17 The following parties have been identified in Part 3 of the Book of Reference as
having an interest in the numbered plots which comprise the Order Land:-
5.17.1 Richard Horton Williams - Private right of way, fishing rights, sporting
rights and rights to water cattle, sheep, horses and other stock at
reservoir (parcel no.8);
5.17.2 Colin Almond - Private right of way, fishing rights, sporting rights and
rights to water cattle, sheep, horses and other stock at reservoir
(parcel no.8);
5.17.3 Sydney George Badland - Private right of way, fishing rights, sporting
rights and rights to water cattle, sheep, horses and other stock at
reservoir (parcel no.8);
Document Reference Number - CF/AppDoc13/Statement of Reasons
lon_lib1\8617159\2 15
5.17.4 John Gwyn Thomas - Private right of way, fishing rights, sporting rights
and rights to water cattle, sheep, horses and other stock at reservoir
(parcel no.8);
5.17.5 Mr and Mrs Tilby - Private right of way (parcel no.1, 2 and 3);
5.17.6 Julia Caroline Hands - Private right of way (parcel no.7);
5.17.7 Orange Holdings UK Ltd - Private right of way (parcel no.6);
5.17.8 Airwaves - Private right of way (parcel no.6);
5.17.9 William Charles Bamford - Private right of way (parcel no.5); and
5.17.10 Manors of Ruthin, Llanfihangel and Bettws – Possible mineral rights
(over the land which is shown edged red on the Land Plans).
Book of Reference - Part 4
5.18 As stated in paragraphs 5.1 and 5.2 of this Statement, much of the land required
for the Project within Clocaenog Forest is owned by the WG and managed by
FCW on the WG’s behalf. The land therefore forms Crown Land for the purposes
of section 135 of the 2008 Act. In view of this, the WG have therefore been
included in Part 4 of the Book of Reference in relation to the land which is
numbered 1 on the Land Plans.
Special category land
5.19 Land which is owned by local authorities or statutory undertakers is subject to
special parliamentary procedure. Special category land is land which forms part
of a common, open space, National Trust Land or fuel or field garden allotment.
Replacement land is land to be given in exchange for common land, open space
or fuel or field garden allotment.
5.20 As detailed in this section of the Statement Part 1 of the Book of Reference has
identified the highways for which Denbighshire County Council or Conwy County
Borough Council are highway authority which are affected by the powers
conferred on the Company use those highways to carry out street works.
5.21 The Company are not seeking to permanently acquire any land the acquisition of
which is subject to special parliamentary procedure or land which is special
category land or which is replacement land. Therefore the Book of Reference
contains no entries in relation to such land.
Document Reference Number - CF/AppDoc13/Statement of Reasons
lon_lib1\8617159\2 16
6. CONSULTATION
6.1 Prior to the introduction of 2008 Act the Company began consultation on the
Project in Quarter 1 of 2008 through to Quarter 2 of 2011 in accordance with the
requirements of section 36 of the Electricity Act 1989.
6.2 Following the introduction of the 2008 Act the Company has undertaken its
consultation in full accordance with the consultation requirements set out by the
2008 Act for NSIP such as the Project. The Company undertook formal
consultation with the bodies prescribed by section 42 of the 2008 Act between
Quarter 3 2011 and Quarter 1 2013. In addition, the Company consulted the
local community in accordance with the requirements of section 47 of the 2008
Act between Quarter 3 2011 and Quarter 1 2013. The public have been kept
fully informed of the Project’s development through various methods including
the setting up of a Project website, the distribution of newsletters, the setting up
of a community liaison group and the holding of public exhibitions.
6.3 A full explanation of the consultation undertaken including details on the
Company’s commitment to consultation in the Welsh language is set out in the
Consultation Report which accompanies the Application (Document Reference
CF/AppDoc09/Consultation Report).
7. PLANNING POLICY SUPPORT FOR THE PROJECT
7.1 The policy framework for consideration in relation to the Project consists of:
7.1.1 The Overarching National Policy Statement for Energy (EN-1);
7.1.2 The National Policy Statement for Renewable Energy Infrastructure
(EN-3);
7.1.3 UK Renewable Energy Strategy (RES) 2009;
7.1.4 The Welsh Assembly Government Energy Policy Statement 2010;
7.1.5 Planning Policy Wales;
7.1.6 Technical Advice Note 8: Planning for Renewable Energy 2005;
7.1.7 The adopted development plan for Denbighshire County Council - The
Unitary Development Plan adopted in 2002;
7.1.8 The adopted development plan for the Conwy Borough Council - The
Colwyn Borough Local Plan adopted in 1999 together with the Clwyd
Structure Plan Second Alteration 1999;
Document Reference Number - CF/AppDoc13/Statement of Reasons
lon_lib1\8617159\2 17
7.1.9 The deposit draft Denbighshire County Council Local Development Plan
(2006 to 2021); and
7.1.10 The deposit draft Conwy Local Development Plan.
7.2 Full details of how the Project accords with this planning policy framework can be
found in the Planning Statement (Document Reference
CF/AppDoc17/Planning Statement). In summary the Planning Statement
states that it is clear that the proposals for the Project accord with the National
Planning Policy Statements EN-1 and EN-3 and the adopted development plans
and other relevant policy documents referred to above. Furthermore, the
Clocaenog Forest site is within an identified Strategic Search Area and thus has
already been identified as an appropriate site for wind farm development.
7.3 The Planning Statement concludes that the benefits of the proposals outweigh
any impacts as set out in the planning assessment (as included in the Planning
Statement) and that the Project will assist with the WG objective to deliver 2000
MW by 2017 from renewable energy sources so development consent for the
project should be granted.
8. PROJECT OUTPUTS
8.1 The Project, if consented would result in a total electrical output of between 64
to 96 MW. This will go towards satisfying the UK Government’s target set out in
the Renewable Energy Strategy 2009 of achieving 15% of all electricity
generation from renewable sources by 2020. This target is also confirmed by
the WG in Planning Policy Wales 2011. A full explanation as to how the outputs
from the Project will support both UK and Welsh national policy on renewable
energy is set out in the Planning Statement.
9. DELIVERY AND FUNDING
9.1 As detailed in section 3 of the Statement the Company is the UK subsidiary of
RWE Innogy which was recently established to pool the renewable energy
expertise of RWE Group Europe. The Company operates 22 wind farms across
the UK including two offshore and seven onshore wind farms in Wales.
9.2 The Company is committed to further developing its portfolio of wind farms in
Wales both through the development of the Project and other projects such as
the Brechfa Forest Wind Farm which was recently granted development consent
by the Secretary of State.
9.3 Details of the proposed funding for the implementation of the Project and the
acquisition of land is contained in the Funding Statement which accompanies the
Application.
Document Reference Number - CF/AppDoc13/Statement of Reasons
lon_lib1\8617159\2 18
9.4 The development programme is envisaged to involve the following key dates:-
9.4.1 March 2013 – Submission of Application;
9.4.2 July 2014 – Possible grant of consent by the Secretary of State;
9.4.3 July 2014 to July 2015 – Discharge of requirements, Procurement
process, felling operations and offsite works;
9.4.4 July 2015 – Commence construction of the Project – Anticipate a 24
month construction programme; and
9.4.5 July 2017 – Complete construction, commence commissioning of the
Project and operation of the Project.
10. COMPULSORY PURCHASE POWERS AND GUIDANCE
10.1 Section 120 of the 2008 Act prescribes those matters which may be provided for
in an order granting development consent (“DCO”). In particular, an order
granting development consent may impose requirements in connection with the
development for which consent is granted. Sections 120(3) and 120(4) state
that an order granting development consent may make provision relating to, or
to matters ancillary to, the development for which consent is granted.
10.2 Those matters are listed in Part 1 of Schedule 5 to the 2008 Act and they include
the acquisition of land and “the creation, suspension or extinguishment of, or
interference with, interests in or rights over land (including rights of navigation
over water), compulsorily or by agreement”.
10.3 Section 122 of the 2008 Act provides that a DCO which includes compulsory
powers of acquisition may only be granted if the conditions in sections 122(2)
and 122(3) of the 2008 Act are met. These conditions are:-
10.3.1 That the land is:-
10.3.1.1 required for the development to which the development
consent relates;
10.3.1.2 required to facilitate or is incidental to that development;
or
10.3.1.3 is replacement land which is to be given in exchange for
the order land under section 131 or 132; and
10.3.2 That there is a compelling case in the public interest for the land to be
acquired compulsorily.
Document Reference Number - CF/AppDoc13/Statement of Reasons
lon_lib1\8617159\2 19
10.4 Paragraphs 23 – 26 of the Guidance explain that before any compulsory
acquisition can be authorised, the decision-maker must be in no doubt as to the
particular purposes for which any land is to be compulsorily acquired.
10.5 The Guidance requires the promoter to demonstrate to the satisfaction of the
decision-maker that the land in question is needed for the development for
which consent is sought. The decision-maker should be satisfied, in this regard,
that the land to be acquired is no more than is reasonably required for the
purposes of the development.
10.6 The Guidance requires the decision-maker to be satisfied that the land to be
taken is no more than is reasonably necessary for that purpose and is
proportionate.
10.7 Paragraphs 27 – 28 of the Guidance require the decision-maker to be satisfied
that there is a compelling case in the public interest for the land to be acquired
compulsorily. For this condition to be met, the decision-maker will need to be
persuaded that there is compelling evidence that the public benefits that would
be derived from the compulsory acquisition will outweigh the private loss that
would be suffered by those whose land is to be acquired. Parliament has always
taken the view that land should only be taken compulsorily where there is clear
evidence that the public benefit will outweigh the private loss.
10.8 Paragraphs 20 to 22 of the Guidance provide a number of general considerations
that the promoter must demonstrate to the satisfaction of the decision maker:-
10.8.1 that all reasonable alternatives to compulsory acquisition (including
modifications to the scheme) have been explored;
10.8.2 that the proposed interference with the rights of those with an interest
in the land is for a legitimate purpose and is necessary and
proportionate;
10.8.3 that the promoter has a clear idea of how it intends to use the land
which it is proposing to acquire;
10.8.4 that there is a reasonable prospect of the requisite funds becoming
available;
10.8.5 that the compulsory purchase of land meets the two conditions in
section 122 and is therefore justified in the public interest at that time;
10.8.6 that the purposes for which an order authorises the compulsory
acquisition of land are legitimate and sufficiently justify interfering with
the human rights of those with an interest in the land affected.
Document Reference Number - CF/AppDoc13/Statement of Reasons
lon_lib1\8617159\2 20
11. JUSTIFICATION FOR SEEKING POWERS OF COMPULSORY ACQUISITION
11.1 The works to be authorised by the Order cannot be located elsewhere. There is
no alternative that would avoid the need for acquisition compulsorily. Without
certainty that the Order Land will be acquired, funding would not be available.
Furthermore, the Order Land is within an identified Strategic Search Area and
thus has already been identified as an appropriate site for wind farm
development.
11.2 There is a compelling public interest for the Order to be made. The purpose of
its compulsory acquisition powers are legitimate and sufficiently justify
interfering with the rights of those with interests in the land affected. Proposed
interference with the rights of those with an interest in the land is for a
legitimate purpose and proportionate.
11.3 Acquisition for the Order is a legitimate purpose. The extent of land take is
proportionate and full compensation will be payable under the Compensation
Code applicable to all compulsory purchases in England and Wales. Human
rights are therefore not infringed.
12. THE NEED FOR COMPULSORILY ACQUISITION – SECTION 122(2) 2008
ACT
12.1 All of the Order Land, shown on the Land Plans, is required either for the
purposes of the Project, or to facilitate the same, or for purposes incidental
thereto.
12.2 In order to deliver the Project, the Company is seeking a limited combination of
powers to acquire rights to use land, powers to extinguish mineral rights and
powers to extinguish, suspend or interfere with private rights.
12.3 The purposes for which the Order Land is subject to these limited powers of
acquisition are set out in Tables 1, 2 and 3 below. This is described according to
the works set out in Schedule 1 to the Order and the parcel numbers shown on
the Land Plans and in the Book of Reference. Tables 1, 2 and 3 should be read in
conjunction with and by reference to those documents.
TABLE 1 ACQUISITION OF RIGHTS TO USE LAND
Parcel Numbers Purpose for which rights to use
land may be acquired
9, 10, 11, 12 and 13
To facilitate the opening of streets to
construct works for the purposes of
Works 2A, 2B and 3.
TABLE 2 EXTINGUISHMENT OF MINERAL RIGHTS
Document Reference Number - CF/AppDoc13/Statement of Reasons
lon_lib1\8617159\2 21
Area on Land Plans Purpose for which mineral rights
may be extinguished
Order Land within the area shown edged red on
the Land Plans.
To construct and operate the
authorised project.
TABLE 3 EXTINGUISHMENT, SUSPENSION OR INTERFERENCE WITH PRIVATE
RIGHTS
Parcel numbers Purpose for which temporary
rights may be interfered with
1, 2, 3, 5, 6, 7 and 8 Construction access.
Table 1
12.4 Table 1 lists all the Order Land in which the Company may acquire a right to use
public highways to construct the street works identified in Table 1. This Order
Land is within the limits of deviation shown on the Works Plan. The limits of
deviation represent the maximum ‘envelope’ within which the Company would be
authorised to construct the numbered works described in Part 1 of Schedule 1 to
the Order. As stated in paragraph 5.6 of the Statement it is understood by the
Company from other contexts that the inclusion of powers to carry out street
works in a highway is analogous to conferring rights of complusory acquisition.
Accordingly, the Company have included the requisite acquisition powers in the
Order to permit the Company to acquire rights to use the Order Land referred to
in Table 1 to enable the Company to construct on that Order Land the street
works identified in Table 1.
Table 2
12.5 Table 2 lists the Order Land over which the Company may need to extinguish
mineral rights which may exist in that Order Land. It may be necessary for the
Company to extinguish any such mineral rights for the purpose of constructing
and operating the Project. As stated in paragraph 5.16 of the Statement the
Order applies the mineral code (Parts 2 and 3 of Schedule 2 to the Acquisition of
Land Act 1981) to the extinguishment of those mineral rights by the Company
under the Order.
Table 3
12.6 Table 3 lists the Order Land over which private rights exist which the Company
may need to temporarily suspend or interfere with for the purposes identified in
Table 3. Those interests relate to private rights of way, sporting rights and
grazing rights along existing forestry tracks. The purpose of this temporary
Document Reference Number - CF/AppDoc13/Statement of Reasons
lon_lib1\8617159\2 22
suspension or interference is to provide essential construction access routes to
the Project. As stated in paragraphs 5.14 and 5.15 of the Statement the
Company does not intend to permanently extinguish these rights.
12.7 The Order Land is required for the purposes of the Project. Without the Order
Land the proposed development of the Project cannot take place. The need to
ensure that the Project can be delivered requires the acquisition of a limited
number of rights in so much of the Order Land as is in third party ownership and
a means of overriding or temporarily interfering with existing rights and interest
in or over the Order Land.
12.8 There is no practicable alternative location for the Project. This means that the
limited acquisition of rights or temporary interference with third party rights and
interests cannot be avoided. The limits of the Order Land have been drawn as
tightly as possible at this stage so as to avoid unnecessary land take. If in the
event less land is required, the Company would not seek to acquire all of the
Order Land.
12.9 Without the powers to acquire rights, extinguish mineral rights or interfere with
rights being compulsory, the Order Land may not be assembled, uncertainty as
to construction will continue both to the detriment of affected landowners and
the Company. In addition the national need for the Project could not be met.
13. NEGOTIATIONS
13.1 As discussed in section 5 of this Statement the Company has agreed an Option
Agreement with FCW for a lease of the Order Land owned by the WG which is
required for the Project Since the Company will, as a result of this Option
Agreement, have a lease of Order Land owned by the WG the Company does not
need to seek compulsory acquisition powers over the Order Land owned by the
WG. A redacted version of the Option Agreement accompanies the Company’s
application.
13.2 As regards the parcels of land over which the Company are seeking rights to
acquire a right, extinguish mineral rights or temporarily interfere with rights the
Company have attempted to discuss with the relevant landowners the impact of
the Project and where possible reach agreement with those landowners to secure
the necessary rights in that land required rather than enforce the powers
conferred by the Order.
13.3 The details of the negotiations to date are as follows:-
13.3.1 Denbighshire County Council and Conwy County Borough
Council (“the Councils”) – The Councils are highway authority for
the highways identified in paragraph 5.7 of the Statement which are
affected by the powers conferred by the Order on the Company to
Document Reference Number - CF/AppDoc13/Statement of Reasons
lon_lib1\8617159\2 23
carry out street works. As detailed in the Consultation Report the
Company have been engaged in ongoing consultations with the
Councils on the Project as a whole in accordance with the consultation
requirements set out in section 42 of the 2008 Act. In addition, the
Company have also been in discussions with the Councils in their role
as highway authority to discuss the Company’s use of the powers
conferred by the Order to carry out street works on highways for which
the Councils are highway authority. The purpose of these discussions
has been to reach agreement to regulate the Company’s carrying out
of street works on public highways in order that the Company is not
required to exercise the street work powers conferred by the Order.
Discussions with the Councils are currently ongoing and the Company
hopes that agreements with the Councils will be reached in due course.
13.3.2 Richard Horton Williams – Richard Horton Williams owns the private
rights in parcel no. 8 identified in paragraph 5.15.1 of the Statement.
The Company first engaged with Richard Horton Williams in August
2011. Following an initial response the Company wrote to Richard
Horton Williams on 2 March 2012 explaining the impacts of the Project
on his private rights and to provide reassurance regarding the
Company’s use of the Order powers. No response was received to this
correspondence and so no agreement has been concluded. However,
the Company is committed to continuing to seek to engage with
Richard Horton Williams to minimise the effect of the operation of the
Order powers on Richard Horton Williams’ private rights.
13.3.3 Colin Almond - Colin Almond owns the private rights in parcel no. 8
identified in paragraph 5.15.2 of the Statement. The Company first
engaged with Colin Almond in August 2011. Following an initial
response the Company wrote to Colin Almond on 2 March 2012
explaining the impacts of the Project on his private rights and to
provide reassurance regarding the Company’s use of the Order powers.
No response was received to this correspondence and so no agreement
has been concluded. However, the Company is committed to
continuing to seek to engage with Colin Almond to minimise the effect
of the operation of the Order powers on Colin Almond’s private rights.
13.3.4 Sydney George Badland - Sydney George Badland owns the private
rights in parcel no. 8 identified in paragraph 5.15.3 of the Statement.
The Company first engaged with Sydney George Badland in August
2011. Following an initial response the Company wrote to Sydney
George Badland on 2 March 2012 explaining the impacts of the Project
on his private rights and to provide reassurance regarding the
Company’s use of the Order powers. No response was received to this
correspondence and so no agreement has been concluded. However,
Document Reference Number - CF/AppDoc13/Statement of Reasons
lon_lib1\8617159\2 24
the Company is committed to continuing to seek to engage with
Sydney George Badland to minimise the effect of the operation of the
Order powers on Sydney George Badland’s private rights.
13.3.5 John Gwyn Thomas - John Gwyn Thomas owns the private rights in p
parcel no. 8 identified in paragraph 5.15.4 of the Statement. The
Company first engaged with John Gwyn Thomas in August 2011.
Following an initial response the Company wrote to John Gwyn Thomas
on 2 March 2012 explaining the impacts of the Project on his private
rights and to provide reassurance regarding the Company’s use of the
Order powers. No response was received to this correspondence and
so no agreement has been concluded. However, the Company is
committed to continuing to seek to engage with John Gwyn Thomas to
minimise the effect of the operation of the Order powers on John Gwyn
Thomas’s private rights.
13.3.6 Mr and Mrs Tilby - Mr and Mrs Tilby own the private rights in parcel
no. 1, 2 and 3 identified in paragraph 5.15.5 of the Statement. The
Company first engaged with Mr and Mrs Tilby in August 2011.
Negotiations between the parties took place between August 2011 and
September 2012 regarding arrangements for minimising the effect of
the Project on Mr and Mrs Tilby’s private rights. The terms of a
undertaking formalising these arrangements were sent by the
Company to Mr and Mrs Tilby on 19 September 2012. The formal
undertaking is yet to be put in place however it is presumed that this
will be concluded without issue.
13.3.7 Julia Caroline Hand - Julia Caroline Hand owns the private rights in
parcel no. 7 identified in paragraph 5.15.6 of the Statement. The
Company first engaged with Julia Caroline Hand in April 2012.
Negotiations between the parties took place between April 2012 and
September 2012 regarding arrangements for minimising the effect of
the Project on Julia Caroline Hand’s private rights. The terms of a
undertaking formalising these arrangements were sent by the
Company to Julia Caroline Hand on 19 September 2012. The formal
undertaking is yet to be put in place however it is presumed that this
will be concluded without issue.
13.3.8 Orange Holdings UK Ltd - Orange Holdings UK Ltd own the private
rights in parcel no. 6 identified in paragraph 5.15.7 of the Statement.
The Company first engaged with Orange Holdings UK Ltd regarding its
private rights in December 2011. Negotiations between the parties
took place between December 2011 and September 2012 regarding
arrangements for minimising the effect of the Project on Orange
Holdings UK Ltd’s private rights. The terms of a undertaking
Document Reference Number - CF/AppDoc13/Statement of Reasons
lon_lib1\8617159\2 25
formalising these arrangements were sent by the Company to Orange
Holdings UK Ltd on 19 September 2012. The formal undertaking is yet
to be put in place however it is presumed that this will be concluded
without issue.
13.3.9 Airwaves - Airwaves own the private rights in parcel no. 6 identified
in paragraph 5.15.8 of the Statement. The Company first engaged
with Airwaves regarding its private rights in December 2011.
Negotiations between the parties took place between December 2011
and September 2012 regarding arrangements for minimising the effect
of the Project on Airwaves’ private rights. The terms of a undertaking
formalising these arrangements were sent by the Company to
Airwaves on 19 September 2012. The formal undertaking is yet to be
put in place however it is presumed that this will be concluded without
issue.
13.3.10 William Charles Bamford – As set out in paragraph 5.15.9 of the
Statement the Book of Reference has identified William Charles
Bamford as the owner of property which may benefit from private
rights in parcel no.5 which is affected by the Order. However,
following detailed land registry and other investigations the Company
have been unable to determine whether the property owned by William
Charles Bamford does indeed have the benefit of any private rights
affected by the Order. Accordingly, no agreement has been negotiated
or concluded.
13.3.11 Manors of Rutlin, Llanfihangel and Bettws – As set out in
paragraph 5.15.10 of the Statement the Book of Reference has
identified these Manors as possibly having the benefit of mineral rights
in the Order Land (i.e. the land edged red on the Order Plans).
However, following detailed land registry and other investigations the
Company have been unable to determine any persons who hold the
benefit of such mineral rights. Accordingly, no agreement has been
negotiated or concluded.
13.4 As can be seen from sections 5 above, the Order Land is owned by a number of
parties. In order to assemble the land required for the Project, the Company
has, alongside the Order process, made extensive efforts to acquire all interests
in the Order Land by private treaty or seek to reach agreement to minimise the
effect of the Order powers. Having pursued these negotiations, it is clear to the
Company that it will not be possible to acquire the limited interests needed by
agreement. Whilst the Company remains committed to continuing negotiations
with affected parties, the Company considers it necessary to include powers in
the Order so as to ensure that the Project can be delivered in line with the
programme identified above.
Document Reference Number - CF/AppDoc13/Statement of Reasons
lon_lib1\8617159\2 26
14. SPECIAL FEATURES AND SPECIAL CATEGORIES OF CONSIDERATIONS
Crown Land
14.1 As stated in paragraphs 5.1 and 5.2 of this Statement an Option Agreement for a
lease over the Order Land owned by the WG which is required for the Project has
already been concluded with FCW and a redacted version of that Agreement
accompanies the Company’s application. As stated in paragraph 5.2. Since the
Company will have a lease from FCW for the Order Land owned by the WG and
required for the project from FCW it does not need to seek powers of compulsory
acquisition over the Order Land owned by WAG and so this land is not listed in
Tables 1, 2 or 3 in section 12 of the Statement. This land is shown shaded light
blue and numbered ‘1’ on the Lands Plan.
14.2 As stated in paragraph 5.14 of the Statement the land subject of the Option
Agreement forms Crown Land for the purposes of section 135 of the 2008 Act.
14.3 Section 135 of the 2008 Act provides that an order granting development
consent may include provision authorising the compulsory acquisition of an
interest in Crown Land only if the appropriate Crown authority consents to the
acquisition. Section 135 further provides that an order granting development
consent may include any other provision applying in relation to Crown land, or
rights benefiting the Crown, only if the appropriate Crown authority consents to
the inclusion of the provision.
14.4 Accordingly, the consent of the Welsh Ministers (as the appropriate Crown
authority) is required to the inclusion of any provisions which relate to the WG
owned land in the Order regardless of whether the Company needs to acquire
the land compulsorily or not.
14.5 The Order includes specific provision providing a saving for Crown Land so that
the power to acquire or use any such land conferred under the Order cannot be
exercised by the Company without the consent of the Welsh Ministers. However
this does not prevent the Company from exercising any power to extinguish or
interfere with any rights by another person over the land.
14.6 As the Order contains provisions within the meaning of section 135(1) of the
2008 Act, the Company is seeking (through FCW) the consent of Welsh Ministers
to the inclusion of provisions in the Order applying in relation to the WG land.
Since the Option Agreement for a Lease over the land required for the Project
has already been concluded with FCW, there is no reason to suggest that
consent shall not be forthcoming from the Welsh Ministers in due course.
Land owned by a local authority
Document Reference Number - CF/AppDoc13/Statement of Reasons
lon_lib1\8617159\2 27
14.7 As explained in paragraph 5.7 of the Statement Denbighshire County Council and
Conwy County Borough Council (“the Councils”) are highway authority for the
highways which are affected by the powers conferred by the Order on the
Company to carry out street works. As detailed in paragraph 13.3.1 of this
Statement the Company are in discussions with the Councils in order to reach
agreement on the Company’s exercise of powers in the Order to carry out street
works in the public highway in order that the Company is not required to
exercise the street work powers conferred by the Order. Discussions with the
Councils are currently ongoing and the Company hopes that agreements with the
Councils will be reached in due course.
15. RELATED ORDERS
15.1 A number of consents, licences and permits will or may be required in addition to
the powers sought in the Order. These are as follows:-
15.1.1 authorisation to operate a generating station;
15.1.2 authorisation for Road Traffic Regulation Orders as required to stop up
streets pursuant to the powers conferred by the Order;
15.1.3 licences under the Conservation of Habitats and Species Regulations
Act 2010 in respect of the disturbance of any protected species which
may be found on the Order Land;
15.1.4 consents under section 61 of the Control of Pollution Act 1974 in
respect of construction noise; and
15.1.5 permits under the Environmental Permitting (England and Wales)
Regulations 2010 in respect of any waste operations, water
abstraction and water discharge activities.
15.2 The Company is in discussions with all the affected bodies. The Company does
not consider there is any proper basis for any such consent, licence or permit to
be refused, or that any need for these represents a material risk to the delivery
of the Project.
16. ACQUISITION OF RIGHTS ETC
16.1 In the event that the Order is made, the Company intends to implement the
limited powers of acquisition by way of General Vesting Declaration and/ or
Notice to Treat and Notice of Entry with the intention that any existing
easements, covenants, rights and other interests (whether vested in a statutory
undertaker or otherwise) in the Order Land which might prejudice the delivery of
the Project be overridden or extinguished.
Document Reference Number - CF/AppDoc13/Statement of Reasons
lon_lib1\8617159\2 28
16.2 However, as set out in section 13 of the Statement the Company is in
discussions with affected parties to reach agreements to minimise the
interference with such existing easements, covenants, rights and other interests.
Accordingly the Company does not consider that it will be necessary for any
existing easements, covenants, rights and other interests to be overridden or
extinguished in order to deliver the Project.
17. VIEWS OF THE GOVERNMENT DEPARTMENTS
17.1 As set out in the Statement the Company have been in negotiations with FCW to
conclude an Option Agreement for a lease of the Order Land owned by the WG.
17.2 As set out in the Statement the Order Land was specifically identified as suitable
for wind farm development in the WG’s planning guidance Technical Advice Note
8 (TAN8): Renewable Energy (2005).
17.3 As detailed in the Consultation Report consultation with Government
departments, including the WG and the Department of Energy and Climate
Change, has been undertaken throughout the development of the Project but the
Welsh Government and no other Government departments have provided any
specific comments on the location and scale of the Project.
17.4 As detailed in the Consultation Report the Company first met with the
Infrastructure Planning Commission on 26 January 2011 and has continued
dialogue to the present day with the successor body, the National Infrastructure
Directorate.
18. COMPENSATION
18.1 Compulsory acquisition powers serve the important function of ensuring that the
compensation paid to landowners and others affected represents an open market
value. This benefits both the Company as the acquiring authority and all those
to whom compensation may be payable. The rules governing acquisition require
that compensation for acquisition of land or an interest in land must represent
market value unaffected by the proposed development. As a result, the
Company will be required to pay an open market price for the any rights it
acquires over the Order Land, without taking advantage of any reduction caused
by the existence of the Project.
18.2 In the event of compensation not being agreed a judicial process applies.
Compensation disputes will be decided by the Upper Tribunal (Lands Chamber)
with a right of appeal to the Court of Appeal.
18.3 The compulsory purchase procedure accordingly provides all parties with
certainty of outcome (the land or rights will be acquired), certainty of liability to
Document Reference Number - CF/AppDoc13/Statement of Reasons
lon_lib1\8617159\2 29
compensation or price to be received (open market price) and fairness of
outcome (recourse to judicial process).
19. HUMAN RIGHTS CONSIDERATIONS
19.1 Section 6 of the Human Rights Act 1998 prohibits public authorities from acting
in a way which is incompatible with rights protected by the European Convention
on Human Rights (“ECHR”/“the Convention”).
19.2 The position is summarised in the Guidance (as referred to in section 10 of the
Statement), which states that a compulsory purchase order should only be made
where there is “a compelling case in the public interest”. The Guidance makes it
clear that an acquiring authority should be sure that the purposes for which it is
making a compulsory purchase order sufficiently justify interfering with the
human rights of those with an interest in the land affected. In making this
assessment, a promoter should have regard, in particular, to the provisions of
Article 1 of the First Protocol and Article 6 of the Convention and, in the case of a
dwelling, Article 8 of the Convention. These are summarised and considered
below.
19.3 Article 1 of the First Protocol states that:
“…Every natural or legal person is entitled to peaceful enjoyment of his
possessions” and “no one shall be deprived of his possessions except in the
public interest and subject to the conditions provided for by the law and by the
general principles of international law…”
19.4 Whilst occupiers and owners in the Order Land may be deprived of their property
if the Order is confirmed, this will be done in accordance with the law (i.e.
Section 122 of the 2008 Act). The Order is being pursued in the public interest
as required by Article 1 of the First Protocol. The public benefits associated with
the Project are set out earlier in the Statement. The Company considers that the
Order will strike a fair balance between the public interest in the delivery of the
Project and those private rights which will be affected by the Order and therefore
the interference with Convention rights is justified.
19.5 Article 6 of the Convention provides that:
“In determining his civil rights and obligations…everyone is entitled to a fair and
public hearing within a reasonable time by an independent and impartial tribunal
established by law”
19.6 The Project has been extensively publicised and consultation has taken place
with the community and key stakeholders in the area. All those affected by the
Order have been notified, have had the right to make representations and/or
objections to the Secretary of State and, if necessary, will have the opportunity
Document Reference Number - CF/AppDoc13/Statement of Reasons
lon_lib1\8617159\2 30
to be heard at a public hearing, subject to the usual procedure rules. The
statutory processes and associated right for those affected to pursue remedies in
the High Court where relevant, are compliant with Article 6.
19.7 Article 8 of the Convention states that:
“Everyone has the right to respect for his private and family life, his home and
his correspondence…interference is justified however, if it is in accordance with
the law and is necessary in a democratic society in the interests of national
security, public safety or the economic well being of the country, for its
prevention of disorder or crime, for the protection of health or morals, or for the
protection of the rights and freedom of others.”
19.8 The Company considers that such interferences as may occur with the making
and implementation of the Order are in accordance with the law, pursue a
legitimate aim, and are proportionate having regard to the public interest that
the project will bring which will benefit the economic well-being of the area and
further sustainable energy objectives. It is also proportionate having regard to
the alternative means of securing the development of the NSIP.
19.9 Those directly affected by the Order will also be entitled to compensation which
will be payable in accordance with the Compulsory Purchase Compensation Code
and assessed on the basis of the market value of the property interest acquired,
together with disturbance and statutory loss payment. The reasonable surveying
and legal fees incurred by those affected will also be paid by the Company. The
Compulsory Purchase Compensation Code has been held to be compliant with
Articles 8 and Article 1 of the First Protocol.
19.10 The European Court of Human Rights has recognised in the context of Article 1
of the First Protocol that “regard must be had to the fair balance that has to be
struck between the competing interests of the individual and the community as a
whole”. Both public and private interests are to be taken into account in the
exercise of the promoters powers and duties. Similarly, any interference with
Article 8 rights must be “necessary in a democratic society”.
19.11 In pursuing this Order, the Company has carefully considered the balance to be
struck between the effect of acquisition on individual rights and the wider public
interest in the development of the Order Land. Interference with convention
rights is considered by the Company to be justified here due to the need to
tackle climate change, maximise economic opportunities, secure energy supply
and new energy infrastructure. The Company will also assist the Government
with their objective of working towards the target of obtaining 15% of the UK’s
electricity supply from renewable sources by 2020.
19.12 The Company considers that the development of the Order Land for the Project
will have a significant positive impact on the delivery of the Government’s
Document Reference Number - CF/AppDoc13/Statement of Reasons
lon_lib1\8617159\2 31
energy agenda. Compulsory acquisition of third parties’ land and interests within
the Order Land is necessary to allow this comprehensive development to proceed
and for these benefits to be delivered.
19.13 As such, the Company considers that the interference with the human rights of
those parties with interests in the Order Land is justified in the public interest
and that the use of compulsory purchase powers is proportionate.
20. A COMPELLING CASE IN THE PUBLIC INTEREST – SECTION 122(3) OF
THE 2008 ACT
20.1 This Statement demonstrates that the Order Land is needed for the Project as
shown in the Application and/or is required to facilitate that Project or is
incidental to the Project.
20.2 The Company has a clear idea of how it intends to use the land which it is
proposing to acquire and the land to be taken is no more than is reasonably
necessary for that purpose.
20.3 The purposes for which compulsory acquisition powers are sought are legitimate
and sufficiently justify interfering with the human rights of those with an interest
in the land affected. The proposed interference with the rights of those with an
interest in the land is for a legitimate purpose and is necessary and
proportionate.
20.4 The Company submits that the statutory conditions set out in Section 122 of the
2008 Act for inclusion of compulsory purchase powers within the Order are
satisfied and considers that the tests at paragraphs 20 – 22 of the Guidance are
met. In particular:
20.4.1 planning and energy policy support is in place for the Project;
20.4.2 all reasonable alternatives to compulsory acquisition including
modifications to the Project have been explored;
20.4.3 there are no impediments to delivery of the Project and subject to the
making of the Order there is reasonable prospect of the Project coming
forward;
20.4.4 negotiations have been undertaken with individuals affected by the
Order and these negotiations are ongoing and will be progressed in
parallel to the Order (see section 13 of the Statement);
20.4.5 human rights considerations have been taken into account at every
stage in the Project’s evolution;
Document Reference Number - CF/AppDoc13/Statement of Reasons
lon_lib1\8617159\2 32
20.4.6 the Project outputs and benefits specified in the Statement will
outweigh the private loss that would be suffered by those whose land
and/or interests are to be compulsorily acquired;
20.4.7 confirmation of the compulsory purchase powers in the Order is
necessary to ensure that the Project can be delivered within a
reasonable timescale so as to make an important contribution towards
the achievement of the Government’s renewable energy targets;
20.4.8 without compulsory purchase powers the Order Land could not be
assembled and the Project could not proceed and the Company’s and
Government’s aims would not be achieved.
20.5 Accordingly, the Company is of the firm view that there is a compelling case (as
defined in section 122(3) of the 2008 Act) in the public interest to acquire the
Order Land.
20.6 The Company submits that the Order should be confirmed.
top related