I have recently been shown a document entitled:
E.ON Climate & Renewables UK Rampion Offshore Wind Limited
NOTE ON STATUTORY BLIGHT CLAIMS LAND COMPENSATION ACT 1973 ("The Act")
which I believe was published in December 2013.
E.On claims under 1.4 that, "No right to compensation applies for neighbours disrupted by the construction of public works."
At a hearing of West Sussex County Council's Environmental & Community Services Select Committee held on 12th July 2013, our local representative spoke. The draft minutes state that, "More work is done to consider the need for adequate compensation to individuals." And, "In considering the definition of affected individuals, communities and businesses, this definition is not applied too narrowly." The draft minutes also state that, "The Council could raise the issue of compensation in the LIR (Local Impact Report), but this would be decided by the Secretary of State."
A document entitled Non Technical Summary of July 2012 states under a heading of "Ecology", 26.7.33 , "For residential receptors located as scattered farmsteads including ... Swallow Cottage... direct to slightly oblique, uninterrupted and filtered views of the temporary construction activities may be possible.... At worse, where views are uninterrupted, there will be a prominent change to the quality and character of the view. The magnitude of impact is therefore assessed as being large."
As you will be aware, our neighbours have already lost four prospective buyers who were not prepared to pay the full market price for their property. As we are now in our seventies and may wish to move before the completion of the construction of the on-shore substation, we do not wish to be put in a position of losing a considerable sum of money due to the blight caused by these on-going construction works.
We should be very grateful, therefore, if you would kindly give this matter your attention.
Thank you for your email in regards to compensation for local residents during construction of the on-shore substation for the Rampion offshore wind farm.
As this is in regard to matters of financial compensation relating to claimed impacts upon property value it does not fall for consideration to the DCO examination, as the scope of the DCO examination is limited to consideration of whether the proposed compulsory acquisition meets the tests set out in the Planning Act 2008. Guidance on this is contained in DCLG Planning Act 2008 Guidance related to procedures for the compulsory acquisition of land. The tests involve consideration of the requirement for the land for the development and whether there is a compelling case in the public interest for such land to be acquired.
For this reason, the Examining Authority (ExA) has exercised their discretion under s.87(3)(c) to disregard your representation . However, we can advise you that as these matters are governed by the relevant compulsory purchase legislation, it may be something for the The Upper Tribunal (Lands Chamber). We advise that you should take legal advice regarding your position and those advisors may then consider that you have a case to argue at the Upper Tribunal (Lands Chamber).
Please also note, the examination must close by midnight on Saturday 18 January 2014 and any submissions received after this time will not be forwarded to the ExA.
We hope this advice is of assistance to you however if you have any further queries, please do not hesitate to contact us.

K A Hirst

Hopefully, you will be willing to answer legitimate questions
arising - which I recognise may be published under s51.
Two arose from the PM (Preliminary Meeting).
a) Twineham Parish Council (foot of page 9 in PM report)
    raised the question of the status of individual members
    of groups or organisations registered as IPs. This was
    referred to "out-of-formal-PM" discussion!
    Can you state what decision was reached on this? How
    will the ExA recognise the bona fides of people wishing
    to submit material in the name of the group/organisation?
    Does the IP status of the group/organisation confer that
    status on any individual members or will they need to have
    registered as IPs individually in order to participate?
    I will need a fairly prompt answer on this so that I can
   advise groups in this area about who will need to register
   re Atlantic Array by 16th September.
b) A local authority raised the question of whether it was
    appropriate for them to enter into a SoCG PRIOR to the
    submission of their LIR. Again, this was referred to an
    "out-of-formal-PM" discussion!
   Can you state what decision was reached on this? Will a
   local authority need to meet an SoCG deadline earlier
   than their LIR deadline? If so, can they appeal to the ExA
   on the ground that this effectively requires the LIR to be
   ready at a date earlier than the one set out in the agenda?
   You will appreciate that there is likely to be a significant
   overlap between SoCG and LIR content - with the former,
   in effect, containing a joint critique of the latter. Thus logic
   would suggest that THIS SoCG should be finalised AFTER
   the applicant is aware of the LIR content and the reactions
   to it from the other IPs.
c) Finally, what are the criteria used by the ExA to decide that
    a matter shall not be determined within the PM - and what is
    the method for announcing any decisions made outside the
    formal meeting?
In response to your first question concerning the question raised by Katherine Hirst of Twineham Parish Council, any interested party (ie those that have submitted a relevant representation, statutory consultees, and any party that is subject to compulsory acquisition) may make their views known to the Examining Authority. The Inspectorate encourages groups of individuals with similar interests in a project to coordinate representations to an examination and to this end community or resident groups often register to become an interested party on behalf of a number of local people. In addition if a local resident does not register as an interested party they may choose to have their views represented by an organisation; whether that organisation is a local interest group, Parish Council or an organisation of any other nature. It should be noted that the fact that their views are represented by an organisation does not grant the individual interested party status.
If there is the possibility that the views of an individual may diverge from those of the group that is representing them during the examination process, the individual may wish to register to become an interested party. There is only one opportunity for individuals to become an interested party and no opportunity to retrospectively register as an interested party once the registration period has ended. If somebody who was not an interested party wished to make representations to an examination this would be at the discretion of the Examining Authority who may or may not grant the request.
In regard to your second question, it is the nature of SoCG that they are continuously evolving documents, and discussions between parties will often continue through the pre-application stage, and on through the acceptance, pre-examination and examination stages. It will also often be the case that this is an iterative process, with a document going through several versions. This is reflected in the examination process by the fact that there is a deadline on Thursday 5 December (Deadline X in the timetable) for the submission of “Final Statements of Common Ground”. Therefore if the SoCG needs to be amended as a result of the LIR or as a result of the comments of other parties, that new version can be submitted on this deadline.
In answer to your final question, there is no set criteria for determining which questions can be answered at the Preliminary Meeting, it is at the Examining Authority’s discretion. However as a general guideline, the purpose of the Preliminary Meeting is for the Examining Authority to probe the parties in order to assist the formation of their views on the agenda items such as the examination timetable and list of principal issues. Therefore any questions directed at the Examining Authority are likely to be answered after the meeting by way of written advice, or verbal discussion. Any advice about how to make a representation about an application will be published to our website under s51 of the Planning Act 2008. Any formal procedural decisions of the Examining Authority are announced by letter, distributed to all interested parties, and made available on our website and in local deposit locations.

Alan Rayner

Thank you for your time this afternoon. From our conversation I understand as we are not a Relevant Authority -as there are no works/site directly within our district - we are not required to produce a Local Impact Report, but rather we can submit Written Representations expressing where we support the proposal and where we have concerns.

The deadline for making a Written Representations is 12 noon the 15th August 2013. Could you please confirm that this is correct.

As we discussed can I also suggest a further location for a site visit whether accompanied or unaccompanied would be Seaford Head the western edge of the Heritage Coast .
Further to your conversation with Jessica, we have checked the legislation. To clarify, s60 of the Planning Act 2008 (as amended) specifies that relevant local authorities invited to submit a Local Impact Report are the authorities in s56A. This includes local authorities in which the application land is situated but also local authorities who border one of these 'host' authorities. As Lewes District Council borders a local authority within which the application land is situated, I can confirm that Lewes DC will also be invited to submit a Local Impact Report. I apologise for any confusion on this matter.

The Planning Inspectorate's Advice Note One provides further information about the preparation of Local Impact Reports. It is available here: [attachment 1]. It is for your authority to decide whether to produce a Local Impact Report but it is important to note that in coming to a decision, the Secretary of State must have regard to any Local Impact Reports that are submitted by the deadline. We support the production of joint Local Impact Reports between a number of authorities if this assists in making efficient use of resources.

Your authority can also submit separate written representation if it wishes to express a particular view on whether the application should be granted, and if you wish to do this the date for submission of this is expected to be 12 noon on 15 August 2013.

The formal deadlines for submission of Local Impact Reports and written representations will be set out in the 'Rule 8 ' letter which you will receive later this week.

Lewes District Council - Tim Bartlett

Query about the changes to registering a prescribed consultee as an Interested Party
The Infrastructure Planning (Interested Parties) Regulations 2010 specify various bodies within its Schedule as "statutory parties for the purposes of s88 (3A)[of the Planning Act 2008]". These parties are ones that the Examining Authority must invite to the Preliminary Meeting held following the Examining Authority's initial assessment of the principal issues (See s88(3)(c) of the Planning Act 2008).
The Localism Act 2011 made amendments to Section 102 of PA2008 with regard to Interested Party provisions. All interested parties, statutory parties and relevant local authorities will be invited by the Examining Authority to attend the Preliminary Meeting. Following the Preliminary Meeting any statutory parties that did not make a relevant representation will be asked whether they wish to become an interested party. Any statutory parties that did not make a relevant representation during the registration period must respond to this request in order to become an interested party.
For the avoidance of doubt, statutory parties who did not make a relevant representation in the prescribed form, and do not notify the Examining Authority of their wish to be involved in the examination after the Examining Authority's decision on how to examine the application will not be an interested party.
Although HSE did not make a relevant representation in the prescribed form at the relevant representation stage, you will still be invited to the Preliminary Meeting and asked to notify the Examining Authority once the examination has begun whether you wish to become an interested party. At the Preliminary Meeting, a deadline will be set for 'Written Representations', and, if you notify the Examining authority that HSE wishes to be an Interested Party, you will be able to make written and oral submissions to the examination. A letter providing the date, time and place of the Preliminary Meeting and the draft examination timetable will be issued within the next month .
If you have any further questions regarding the process for a Development Consent Order application, our enquiries line is available to help on 0303 444 5000 or you can send queries to RampionWindFarm@infrastructure.gsi.gov.uk .
Please note that this response constitutes advice under s51 of the Planning Act 2008 and will be published on our website.

Health and Safety Executive - Dave Adams

s51 advice to E.ON following issue of the acceptance decision
Please see the attached letter

E.ON Climate and Renewables - Eleri Owen

A meeting with the developer to discuss acceptance matters, the re-submission process and future timescales
Please see attachment

E.ON Climate and Renewables - Eleri Owen

Mr Bill Brock, on behalf of Leach Fishing, Brighton and Newhaven Fish Sales, stated his concerns about the consultation process regarding the Commercial Fishing Working Group.
Thank you for your email in relation to the consultation process for the Rampion Offshore Wind farm and I note your concerns about the consultation undertaken to date with the Commercial Fishing Working Group and commercial fishing industry.

At the pre-application stage developers have a statutory duty to consult the public and prescribed consultees about their proposals under the Planning Act 2008. The developer is responsible for conducting the pre-application consultation and they must have regard to any feedback they receive during this period when preparing their application. It would not be appropriate for the Planning Inspectorate as a national organisation to direct them on how best to consult with local communities or organisations.

If you consider that the pre-application consultation being undertaken was not adequate then you should first contact the developer to give them an opportunity to respond and if necessary remedy any concerns raised about the way in which the consultation was being conducted. We will keep your correspondence on file, however, we would encourage you to contact the developer again directly with your views as this scheme has currently returned to the pre-application stage.
You should also inform your local authority about your views on the developer’s pre-application consultation. The local authority where the development is situated and the neighbouring local authorities will have the chance to submit an Adequacy of Consultation Representation once an application has been submitted to the Planning Inspectorate.
Since the Planning Inspectorate will be the body examining any future application, we cannot comment on the merits of the proposal or any associated development. This ensures the impartiality of the Planning Inspectorate and protects the interests of all parties involved in the process.
If the Planning Inspectorate accepts the application for examination, there will then be an opportunity to register your views by completing a relevant representation form. Making a relevant representation on the prescribed form allows an individual or organisation to participate in the examination. Details about how and when to register will be publicised by the developer in local newspapers and via site notices. The Planning Inspectorate will also provide details about how to register and other project information on our website.

Leach Fishing - Bill Brock

It emerged following submission of the application to the Planning Inspectorate that there had been a number of omissions in respect of the s42 consultation carried out by the applicant at the pre-application stage. The Planning Inspectorate gave E.ON s51 advice by teleconference on 20 December 2012 and again on 2 January 2013.
The Planning Inspectorate gave the following advice under s51 of the Planning Act 2008 as amended (PA2008).
• The acceptance decision under s55 of PA2008 is a decision of the Secretary of State. As such any s51 advice given at this stage is without prejudice to any future decision of the Secretary of State.
• The Inspectorate has carried out initial checks of the Consultation Report. The apparent omissions in respect of the applicant’s duties under s42 of the PA2008 appear to constitute a procedural flaw related to the applicant’s requirements under s55(3)(e) of the PA2008. This defect presents a risk that the application will not be able to satisfy all of the acceptance tests under s55 of the PA2008.
• The s55 acceptance decision must be based on the application as submitted and no additional information can be submitted by the applicant during the acceptance period.
• It is for the applicant to decide how to proceed. E.ON should seek its own legal advice about the risks involved in pursuing the options now available to it, including: 1. take no action and allow the Inspectorate to complete the acceptance process; or 2. withdraw the application and address the omissions with the aim of submitting a new application.
• The applicant should seek its own legal advice about the potential risks to the project
even in the event that the application was accepted for examination, including risks to the examination programme and the risk of High Court challenge to any future decision on the application by the Secretary of State under s118 of the PA2008.
• The Inspectorate gave advice about the process that could be followed should the applicant decide to withdraw the application:
o In this scenario the acceptance process would stop and the application documents would be returned to the applicant.
o The Inspectorate could provide E.ON with the names of organisations that it appears should have been consulted under s42 to assist the applicant in cross-checking with its own records and rectifying the deficiency.
o E.ON proposed that it may be possible to undertake targeted consultation for a minimum of 28 days with the missed parties using the original consultation materials with a covering letter of explanation. The Inspectorate advised that this seemed a pragmatic way forward and that E.ON would need to be aware of its duties under s49 of the PA2008 and be prepared to update the application documents in light of any consultation responses received.
o If the applicant chose to withdraw the application the Inspectorate could give further advice about any other apparent procedural omissions or matters for clarification within the application that could be rectified in a new application.

E.On Climate and Renewables Ltd - Eleri Owen

It emerged following submission of the application to the Planning Inspectorate that there had been a number of omissions in respect of the s42 consultation carried out by the applicant at the pre-application stage. The Planning Inspectorate gave E.ON s51 advice by teleconference on 20 December 2012 and again on 2 January 2013.
The Planning Inspectorate gave the following advice under s51 of the Planning Act 2008 as amended (PA2008).
• The acceptance decision under s55 of PA2008 is a decision of the Secretary of State. As such any s51 advice given at this stage is without prejudice to any future decision of the Secretary of State.
• The Inspectorate has carried out initial checks of the Consultation Report. The apparent omissions in respect of the applicant’s duties under s42 of the PA2008 appear to constitute a procedural flaw related to the applicant’s requirements under s55(3)(e) of the PA2008. This defect presents a risk that the application will not be able to satisfy all of the acceptance tests under s55 of the PA2008.
• The s55 acceptance decision must be based on the application as submitted and no additional information can be submitted by the applicant during the acceptance period.
• It is for the applicant to decide how to proceed. E.ON should seek its own legal advice about the risks involved in pursuing the options now available to it, including: 1. take no action and allow the Inspectorate to complete the acceptance process; or 2. withdraw the application and address the omissions with the aim of submitting a new application.
• The applicant should seek its own legal advice about the potential risks to the project
even in the event that the application was accepted for examination, including risks to the examination programme and the risk of High Court challenge to any future decision on the application by the Secretary of State under s118 of the PA2008.
• The Inspectorate gave advice about the process that could be followed should the applicant decide to withdraw the application:
o In this scenario the acceptance process would stop and the application documents would be returned to the applicant.
o The Inspectorate could provide E.ON with the names of organisations that it appears should have been consulted under s42 to assist the applicant in cross-checking with its own records and rectifying the deficiency.
o E.ON proposed that it may be possible to undertake targeted consultation for a minimum of 28 days with the missed parties using the original consultation materials with a covering letter of explanation. The Inspectorate advised that this seemed a pragmatic way forward and that E.ON would need to be aware of its duties under s49 of the PA2008 and be prepared to update the application documents in light of any consultation responses received.
o If the applicant chose to withdraw the application the Inspectorate could give further advice about any other apparent procedural omissions or matters for clarification within the application that could be rectified in a new application.

E.On Climate and Renewables Ltd - Eleri Owen

A project update meeting with E.ON.
Please see the attached meeting note.

Eleri Owen

In regard to the proposed Rampion Offshore Windfarm application, currently at the 'pre-application' stage, West Sussex Council telephoned the Planning Inspectorate helpdesk for advice about submitting a Local Impact Report.
A summary of our advice by telephone is detailed below.
Thank you for your telephone enquiry. I understand you are already familiar with the Planning Inspectorate’s non-statutory Advice Note One: Local Impact Reports. As such, I refer you to the 2008 Planning Act process as summarised in Figure 1, also showing the statutory deadlines to which the Examining Authority must follow; and Figure 2, illustrating how Local Impact Reports (LIRs) fit into the statutory timetable.
As you may already know, the Examining Authority appointed to examine the proposal sets the procedure for examination and the deadline for the submission of LIRs. The Examining Authority will propose a date for the submission of LIRs during the ‘pre-examination’ stage, in the Rule 6 letter which also invites interested parties to the Preliminary Meeting. The timetable is then confirmed after the Preliminary Meeting and the beginning of examination in the Rule 8 letter, sent to interested parties. The deadline for LIRs is likely to be early during the ‘examination’ stage, and so local authorities are strongly urged to consider drafting their own evaluation of the local impacts of the proposal at ‘pre-application’. Local authorities should then begin to compile the LIR as soon as the application has been accepted formally by the Secretary of State. This approach will enable the LIR to be produced within the deadlines.
Local authorities should use the time during the pre-application consultation process to gather sufficient information from the applicant about the scheme to enable them to commence work on their evaluation. It is also important that local authorities take account of their own committee cycles and whether LIRs require approval by Members in order to meet any deadline set by the Examining Authority.

West Sussex Council - Susan Bragg

I'm writing about the proposed windfarm off our coast. The scoping reports, opinions and comments from Eon, the IPC and the local councils have failed to identify surfing as a recreational activity that could be affected by the proposal. The Councils will have to prepare local impact reports and Eon will have to do extra studies.
- hundreds of people surf in Worthing, Adur, Brighton and Hove. This includes local residents and visitors form the SE.
- this generates important local income, supports jobs.
- the potential effect of the windfarm on surfing has not been specifically identified in Eon's scoping report for its environmental statement (ES)
- Eon should carry out baseline assessments of surfing and estimate the effect of the windfarm on wind swell and groundswell on the coast to the north and north east of the windfarm and suggest any appropriate mitigation.
- I'd like to see inshore and offshore recreation considered in the local impacts reports.
Has the public consultation promised in early 2011 happened yet?
As the proposal is currently at the "pre-application" stage of our process, the onus is on the developer to consult with statutory consultees and the local community.
During the pre-application process, the developer will need to consult with the Local Authority on the Statement of Community Consultation (SoCC) which will set out how the local community will be consulted. The IPC doesn't take part in any of these discussions, nor is there provision for us to direct the developer to consult with a certain group or in a certain way. As such, you should make your views known to the developer and/or local authority.
The application is due to be submitted on 1 April 2012. Until the application is submitted to us, I recommend that you refer to the promoter's website [attachment 1] which has more information about the proposal and how to get in touch with the developer .
The IPC has produced the Advice Note 8 .1 which provides an overview of our process and the opportunities to get involved. Please see the link below:
[attachment 2]
For information about the project and advice given by the IPC in relation to it, please see the project page on the IPC website below:
[attachment 3]

Andrew Coleman

A meeting was held to provide a project update.
Please see the meeting note attached below.

EON - Eleri Owen

EON has referred me to your website for Scoping report uploads.The web address provided being [attachment 1]

However this does not give access to Scoping Reports / Opinions uploaded by Conservation bodies being consulted. I have a specific interest in marine fauna related to chalk formations and will need to keep an eye on uploads in the next 14months..

Can you provide me with a means of obtaining that access -perhaps a refined web address ? I would imagine that the 2010/10 in the address given by EON would change as the months go by.
I refer to your enquiry received via e-mail on 26th October, regarding the proposed Rampion Offshore Wind Farm in the English Channel off the Sussex coast, south of the city of Brighton and Hove. As you will be aware, a Scoping Report was received in September and the Commission's Scoping Opinion was recently issued (both of which are available on the Commission's website).

I note your interest in specific issues and relevant responses from the Statutory Consultees.
Before adopting a scoping opinion (and/or on receipt of a Regulation 6 notification), the IPC has a duty to consult the ‘consultation bodies'. The ‘consultation bodies’, as defined in EIA Regulations, are bodies prescribed under s42(a) of the Planning Act 2008 and bodies prescribed by the Infrastructure Planning (Applications: Prescribed Forms and Procedure) Regulations 2009. Consultation bodies have 28 days to respond with any comments, stating either the information that they consider should be included in the ES or that they do not have any comments. Any responses received after the deadline will not be considered within the scoping opinion but will be forwarded to the applicant for consideration at a later date.
Whilst it is unclear which bodies you refer to in your email, nevertheless the Opinion takes into account any representation made by those consultation bodies which responded within the 28 day period. Those responses are available within Annexe 2 of the published Scoping Opinion.

T. Chavasse

Pre-Application meeting to introduce project
[attachment 1]

E.ON Energy - Tim Proudler etc

1. If the IPC grant consent for the scheme, will the consent always include the necessary compulsory purchase powers to the applicant, or can the IPC insist that EON obtain the easements by agreement?
2. If the compulsory purchase rights are granted, are the usual procedures followed with regards to acquisition, payment of compensation etc in the same way as for example a road scheme, or would different legislation apply as to how compensation is assessed and paid?
3. Would the affected landowners be consultees in the application for consent and would their concerns over disturbance/lack of adequate compensation etc be valid grounds for the IPC refusing consent?
4. In deciding whether or not to grant consent, I assume the principal consideration for the IPC is whether or not the scheme can be justified in terms of public benefit, but please confirm this is correct
1. If the IPC grant consent for the scheme, will the consent always include the necessary compulsory purchase powers to the applicant, or can the IPC insist that EON obtain the easements by agreement?
A development consent order (DCO) may include provisions authorising the compulsory acquisition of land or an interest in or a right over land. An applicant must be able to make a case for the inclusion of compulsory acquisition powers in a DCO by showing how they have met the statutory conditions in s.122 of the Planning Act 2008 (the 2008 Act). These conditions include that the land is required for the development for which development consent is sought and there is a compelling case in the public interest for the land to be acquired compulsorily. Para. 29 of the CLG Guidance on Procedures for Compulsory Acquisition issued under s.124 of the 2008 Act (the CLG Guidance) advises that ‘Whatever the case for allowing a nationally significant infrastructure project to go ahead, any compulsory acquisition provisions must be fully justified in their own right against the conditions in section 122’.
Paragraph 39 of the CLG Guidance advises that applicants should seek to acquire land by negotiation wherever practicable. The applicant must show all reasonable alternatives to compulsory acquisition (including modifications to the scheme) have been explored and 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. The CLG Guidance also advises that applicants should, even where compulsory acquisition powers are being sought in the DCO, continue negotiating in parallel to acquire the land by agreement so that by the time examination of the application starts they are only dealing with the minimum number of objectors (para.39).
If the power to acquire land or rights over land compulsorily is being sought, the Examining authority (usually a Single Commissioner or a Panel of three or more Commissioners) and the decision-maker need to be satisfied that the applicant has considered rights under the European Convention on Human Rights, as incorporated into UK Law by the Human Rights Act 1998, and the reasons why interference with them is justified. Interferences are permissible so long as they are proportionate.
2.If the compulsory purchase rights are granted, are the usual procedures followed with regards to acquisition, payment of compensation etc in the same way as for example a road scheme, or would different legislation apply as to how compensation is assessed and paid?
If a DCO is granted including compulsory acquisition powers then, broadly, the same legislation applies in respect of procedural matters and how compensation is assessed and paid under the 2008 Act regime as for compulsory purchase under other regimes. Section 125 of the 2008 Act applies (with suitable modifications and omissions) the provisions of Part 1 of the Compulsory Purchase Act (CPA) 1965 to all development consent orders which authorise the compulsory acquisition of land. These provisions of the CPA 1965 govern the procedures to be followed once the compulsory acquisition of land has been authorised under the 2008 Act. s.126 of the 2008 Act provides inter alia that any legislative provision relating to compensation for the compulsory acquisition of land cannot be excluded by a DCO.
It should also be noted that under the 2008 Act compulsory acquisition powers are, unlike other regimes, vested in a non public body (i.e. the applicant) including liability for compensation payments. Any application for a development consent order authorising compulsory acquisition must be accompanied by a statement explaining how it will be funded, including any compensation payments. The ODPM circular 06/2004 Compulsory Purchase and the Crichel Down Rules contains further general guidance on matters related to compulsory acquisition, including serving a ‘notice to treat’, making a general vesting declaration, and compensation and other matters.
3.Would the affected landowners be consultees in the application for consent and would their concerns over disturbance/lack of adequate compensation etc be valid grounds for the IPC refusing consent?
The applicant has a duty to consult specified persons/bodies under s.42 of the 2008 Act including those categories of persons set out in s.44(1) and (2). These include any person(s) who the applicant knows, after making diligent inquiry, are an owner, lessee, tenant, or occupier of the land or has an interest in the land. These persons are likely to be affected by any compulsory acquisition of the land. Such persons could respond to consultation under s.42 by raising with the applicant their concerns or objections. Under s.49 the applicant is under a duty to take account of any relevant consultation responses.
The applicant must submit a consultation report with their application for development consent (s.37) which must, amongst other matters, set out what the applicant has done in relation to his s.42 consultation obligations, any relevant responses received and the account taken of these. The IPC must, amongst other matters, have regard to the consultation report when deciding whether or not to accept an application for development consent.
If an application is accepted, persons consulted under s.42 could make relevant and written representations to the Examining authority setting out their concerns or objections. Any person who the applicant knows, after making diligent inquiry, is interested in the land to which the proposed compulsory acquisition request relates (an ‘affected person’ – see s.59) may call for a compulsory acquisition hearing to be held.
The Examining Authority and the decision-maker would need to consider all the evidence submitted or made, whether written or oral, in relation to compulsory acquisition matters. It would be for the decision-maker to decide whether or not to grant development consent and if they decide to do so whether or not to include compulsory acquisition powers in any DCO. As noted in reply to question 1 above, the applicant must be able to make a case for the inclusion of such powers.
It should also be noted that under s.127 statutory undertakers who wish to object to the inclusion in a DCO of a provision authorising compulsory acquisition of land which they have acquired for the purposes of their undertaking, may make representations to the IPC. If, as a result of any such representations, the decision-maker is satisfied that the land in question is used for the purposes of the statutory undertaker’s undertaking, or that an interest in the land is held for those purposes, the Order to which it relates must not authorise the compulsory acquisition unless the Secretary of State gives a certificate in accordance with s.127 (2) or s.127 (5).
s.128 applies where an applicant is seeking in a DCO to authorise the compulsory acquisition of land owned by a local authority, or which has been acquired by a statutory undertaker (other than a local authority) for the purposes of its undertaking. In the event that such an authority or undertaker makes (and does not withdraw) a representation to the IPC concerning the compulsory acquisition, the Order would be subject to special Parliamentary procedure.
You should also note the provisions in the 2008 Act relating to National Trust land (s.130) and Commons and open spaces (sections 131 and 132).
4. In deciding whether or not to grant consent, I assume the principal consideration for the IPC is whether or not the scheme can be justified in terms of public benefit, but please confirm this is correct.
If there is a relevant designated National Policy Statement (NPS) the IPC would normally be the decision-maker, unless there was an intervention by the Secretary of State (sections 109-113). Otherwise, the decision-maker would be the Secretary of State under s.105 of the 2008 Act.
The legal basis for decisions made by a Panel or Council of the IPC is set out in s.104 of the 2008 Act. The NPSs are intended to be at the heart of the 2008 Act regime. The Panel or Council must decide an application in accordance with any relevant NPS unless one or more of s.104 (4)-(8) apply. s.104 (7) applies ‘if the Panel or Council is satisfied that the adverse impact of the proposed development would outweigh its benefits’.
Para. 30 of the CLG Guidance advises that ’….the extent to which the decision-maker is satisfied that there is a need in the public interest for a project to be carried out will be an important factor in determining the justification for any compulsory acquisition provisions which are shown to be required in order for that scheme to take place. If the decision-maker is satisfied that any proposed compulsory acquisition provisions are required for a purpose described in section 122(2), it will be necessary for the decision-maker to weigh up the public benefits that a scheme will bring against any private loss to those affected by compulsory purchase, in order to determine where the balance of public interest lies’. Para. 32 of the CLG Guidance makes it clear that there may be circumstances where the decision-maker could reasonably justify granting development consent for a project while at the same time refusing to include in an order the provisions authorising the compulsory acquisition of the land or modifying these to reduce the area of land so affected.
The balance of adverse impacts and benefits of an application scheme will therefore be a relevant matter for a Panel or Council in deciding whether or not to grant development consent. The weight to be given to relevant matters would be for the decision-maker in each case and each application would have to be considered on its merits.

Henry Adams - Robert Crawford Clarke