CFAppDoc13 - Statement of Reasons - Planning Inspectorate · PDF file1.1 This Statement of Reasons ... 1.3 The Statement forms part of the suite of Application documents for the Order

Document Reference Number - CF/AppDoc13/Statement of Reasons

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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


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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


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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.


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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.


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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


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(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.


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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.


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.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:-


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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


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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


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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


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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:-


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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;


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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;


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5.12.27 Ty Uchaf Ffrithoedd, Pentre Llyn Cymmer; and

5.12.28 Hendre Ucha Ffrithoedd, Pentre Llyn Cymmer.


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);


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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).


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.


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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;


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.


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.


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.


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


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


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


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


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,


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


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


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.


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


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.


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


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


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


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;


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.

Documents

CFAppDoc13 - Statement of Reasons - Planning Inspectorate · PDF file1.1 This Statement of Reasons ... 1.3 The Statement forms part of the suite of Application documents for the Order