UK: Notes On An Issue-Specific Hearing

Last Updated: 2 July 2012
Article by Angus Walker

Today's entry reports on an issue specific hearing into the drafting of a Development Consent Order and the requirements it contains.

Yesterday I travelled to Bridgwater in Somerset to attend the first issue-specific hearing on the drafting of the development consent order (DCO) for the Hinkley Point C (HPC) nuclear power station application.  Here is a report of most of the first day's proceedings.

The hearing took place at the Exchange and was presided over by one of the five-strong panel, Michael Hurley, although all five members were there, eventually.  Mr Hurley was a good-natured chair of the proceedings who ensured that everyone got their points across.  The room was a little snug for the number of people attending (I counted 111) but things eased off after the lunch break.  The acoustics were excellent, so good in fact that when a new speaker spoke, Mr Hurley couldn't tell where their voice was coming from.

The admin was very smooth; my only comment would be that 'invited interested parties' had been issued with a list of 110 questions that the panel intended to ask at the hearing, which although was also published on the Planning Inspectorate (PINS) website, had only been issued to a subset of the interested parties as a whole - the remainder's hearing invitation letter did not mention them.  Having said that, the publication of questions 12 days in advance really helped the meeting run efficiently and embodied the inquisitorial nature of the examination process.

The format of the hearing was to go through each question in turn, offer the party who had made the point that had given rise to the question a chance to add anything, and then allow promoters EdF Energy to respond, occasionally with some more toing and froing and contributions from others. Matters were left that parties would either draft something for the next comment deadline of 5 July or expand on the issue at the next hearing on 17 July.  EdF were ably represented by Hereward Phillpot of Counsel (appropriately another HPC), the only barrister to speak, I think (but not the only one present).  A typical exchange was: interested party 'the mitigation isn't good enough'; EdF 'yes it is'; inspector 'will the interested party draft their own alternative by 5 July'; interested party 'yes'; inspector 'next question'.

The questions almost entirely focused on requirements (equivalent to planning conditions) but also the fact that to speed things up, the promoters EdF Energy had applied to the local authority for planning permission for site preparation works (granted), and to the Marine Management Organisation (conspicuous by their absence) for a Harbour Empowerment Order (HEO) (not yet determined).  In case those two applications were not successful, the Development Consent Order included their subject-matter as well.

There were therefore issues about what would happen to the DCO if the HEO were granted on different terms towards the end of or after the examination into the DCO.  Indeed Mr Hurley candidly admitted that they had been hoping that the HEO decision would be made so that they wouldn't have to consider the matters it covered, but given the lack of black or white smoke from the MMO it seemed they would now have to do so.

Mr Hurley said that the panel was not interested in influencing or negotiating the planning obligations under section 106 of the Town and Country Planning Act 1990 (s106 agreements) but would wish to see final versions before a hearing in mid-August.  The inspectors didn't like the idea of requirements and s106 agreement terms referring to or depending on each other.

The promoters had inserted a lengthy provision in the DCO to deal with the discharge (i.e. signing off as to compliance) of requirements intended to keep things moving if the local authorities were taking too long, which, unsurprisingly, the local authorities didn't like.  The lack of model provisions on this issue is giving rise to various different formulations.

During their submission, the Environment Agency referred to themselves, Natural England, the MMO and the Countryside Council for Wales as 'the Defra family', which was a handy turn of phrase.

There was  disagreement (albeit never aired) on how to pronounce the village of Combwich - half of those present said Cummidge and the other half Coomitch.  I hope we will see a ruling on that.  I also learnt that another village, Stogursey, is stressed on the middle syllable.

The only moment of public disquiet (from the relatively small number of members of the public) was when EdF said that their assessments said that HGV traffic needed to be controlled from Cannington but not Combwich, and I don't think it was the pronunciation.

When I left, the panel had only asked around 30 of their 110 questions, so more hearing today was a certainty (a different venue - the rugby club - having to be booked due to unavailability of the Exchange, hope it is less of a scrum today), and it was possible that they might not finish even then, although these things have a tendency to speed up.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Angus Walker
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