Hinkley Point C - Planning Inspectorate · 3. HINKLEY POINT C DEVELOPMENT SITE 3.1 Site Preparation Works Conditions 3.1.1 In response to discussions around the Site Preparation Works

EDFE_ADIF39

Hinkley Point C Proposed Nuclear Development

EDF Energy

Response to Issues Raised at Issue

Specific Hearing (June)

12 July 2012

Project Reference: EN010001

NOT PROTECTIVELY MARKED

2 Response to Issues Raised at First Issue Specific Hearing | July 2012


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CONTENTS 1. Introduction…………………………………………………………………………………..6

PART 1 2. Project Wide Matters………………………………………………………………………..9

2.1 Code of Construction Practice……………………………………………………………..9

2.2 Transport Management Plans……………………………………………………………...9

2.3 Community Safety Management Plan…………………………………………………….9

3. Hinkley Point C Development Site………………………………………………………..10

3.1 Site Preparation Works Conditions……………………………………………………….10

3.2 Bat Mitigation………………………………………………………………………………..11

3.3 Construction Lighting Strategy…………………………………………………………….12

4. Bridgwater A………………………………………………………………………………...13

4.1 Stopping-Up of Frederick Road…………………………………………………………...13

5. Bridgwater C…..…………………………………………………………………………….14

5.1 Replacement Rugby Pitch…………………………………………………………………14

6. Cannington Bypass….……………………………………………………………………..15

6.1 Design Life ………………………………………………………………………………….15

7. Combwich……………………………………………………………………………………16

7.1 Introduction………………………………………………………………………………….16

7.2 Assessment and Controls – Noise………………………………………………………..16

7.3 Assessment and Controls – Other Issues……………………………………………….22

7.4 Freight Laydown Facility…………………………………………………………………...24

7.5 Conclusion…………………………………………………………………………………..27

8. Williton……………………………………………………………………………………….28

8.1 Noise…………………………………………………………………………………………28

9. Other…………………………………………………………………………………………29

9.1 Clearway…………………………………………………………………………………….29

9.2 Highway Improvements……………………………………………………………………29

9.3 Bus Routes………………………………………………………………………………….29

9.4 HGV Routes…………………………………………………………………………………29

9.5 Mitigation and Monitoring Controls for the Marine Environment………………………29

9.6 Health and Safety Management Plan…………………………………………………….30

APPENDIX APPENDIX 1: HIGH LEVEL RESPONSE TO COMMENTS ON MANAGEMENT PLANS APPENDIX 2: TIDAL RESTRICTIONS APPLICABLE TO DELIVERIES AT COMBWICH APPENDIX 3: EXPLANATORY NOTE ON THE TIMING OF COMBWICH BARGE

UNLOADING APPENDIX 4: DETAILED RESPONSE TO COMMENTS BY SCC ON EDF ENERGY’S

PROPOSED HIGHWAY CAPACITY IMPROVEMENT SCHEMES, AND

Response to Issues Raised at the Issue Specific Hearing (June) | July 2012 3



PROPOSED ACCESS ARRANGEMENTS TO THE HPC SITE AND ASSOCIATED DEVELOPMENT SITES

APPENDIX 5: POSITION STATEMENT: HUNTWORTH IMPROVEMENTS

PART 2 1. Introduction……………………………………………………………………………………3

2. Responses to Questions 27, 27A, 27B, 75 and Related Issues…………………...…...4

3. Appropriateness of Compensation in Respect of the lifting of the Section 33 LG(MP) A Restriction on Bridgwater C………………………………………………….………….17

4. Interaction Between the Development Consent Order and Existing Planning Permissions …………………………………………………………...……………………21

5. Clarification in Relation to the Post-Operational Strategy………...……………………28

6. Clarification of the Endurance of the Clearway Under the DCO………………………36

7. Appropriateness of Imposing Restrictions Via Marine Licence Conditions Rather

Than Development Consent Order Requirements…...…………………………………37 .

4 Response to Issues Raised at the Issue Specific Hearing (June) | July 2012



1. INTRODUCTION

1.1 Introduction

1.1.1 This document addresses some of the specific matters discussed at the Issue Specific Hearing on 26 and 27 June 2012, as well as points raised by Interested Parties through other correspondence to the Planning Inspectorate. Much of what is included in this document responds directly to the Panel’s questions from the Hearing. It covers both general and legal issues and has been split into two sections to reflect the distinct nature of the responses.

1.1.2 Part 1 of this document covers the general issues that were raised at the Hearing and is structured on a site-by-site basis, as set out below:

Chapter 2: Project-Wide Matters;

Chapter 3: Hinkley Point C Development Site;

Chapter 4: Bridgwater A;

Chapter 5: Bridgwater C;

Chapter 6: Cannington Bypass;

Chapter 7: Combwich;

Chapter 8: Williton.

1.1.3 Chapter 9 relates to matters that were either discussed at the Hearing but are not related to a particular question, or are in response to other correspondence from Interested Parties. There are no matters to clarify in respect of the Cannington park and ride, Junction 23 or Junction 24 sites.

1.1.4 Part 2 of this document provides a written response to the legal issues that were discussed at the Issue Specific Hearing, as requested by the Panel. It includes:

Responses to questions 27, 27A, 27B, 75 and related issues;

EDF Energy's view on the appropriateness of compensation in respect of the lifting of Section 33 LG(MPA) restriction on the Bridgwater C site;

Information on the interaction between the DCO and existing planning permissions;

Clarification in relation to post-operational strategy;

Clarification of the endurance of the clearway under the DCO; and

EDF Energy’s view on the appropriateness of imposing restrictions via marine licence conditions rather than DCO requirements.

1.1.5 In addition to this Response to Issues Raised at the Issue Specific Hearing (June), EDF Energy has submitted two further documents: Updated Requirements




and an Updated Development Consent Order, which form part of this submission to the Planning Inspectorate.




PART 1

NON-LEGAL ISSUES RAISED AT THE FIRST ISSUE SPECIFIC HEARING AND IN

SUBSEQUENT REPRESENTATIONS BY INTERESTED PARTIES




2. PROJECT-WIDE MATTERS

2.1 Code of Construction Practice

2.1.1 In response to discussions around Requirements PW24 and 25 (Question 15), EDF Energy has progressed discussions with the Environment Agency on the detail of the Code of Construction Practice. A final draft version is appended to the Updated Requirements document, submitted to the Planning Inspectorate as part of this submission.

2.2 Transport Management Plans

2.2.1 In response to discussions around Requirement PW12 (Question 7), EDF Energy confirmed at the Hearing that it will submit the final draft versions of the Construction Workforce Travel Plan, the Construction Traffic Management Plan (CTMP) and the Traffic Incident Management Plan (TIMP) to the Planning Inspectorate on 7 August 2012. It is intended that they will be appended to the Section 106 Agreement.

2.2.2 EDF Energy has received comments from the local authorities on the management plans and the majority of these will be addresses in the final draft versions. Appendix 1 (attached) provides a summary of those areas where EDF Energy and the authorities still disagree.

2.2.3 The transitional arrangements between the construction and operational phases will be addressed in the final Construction Workforce Travel Plan.

2.3 Community Safety Management Plan

2.3.1 In response to discussions around the Worker Code of Conduct (Question 19), EDF Energy will submit the final draft version of the Community Safety Management Plan on 7 August 2012. It is intended that this will also be appended to the Section 106 Agreement.




3. HINKLEY POINT C DEVELOPMENT SITE

3.1 Site Preparation Works Conditions

3.1.1 In response to discussions around the Site Preparation Works planning permission (Question 26(a)), Table 3.1 summarises the current status of discharging the conditions imposed on the planning permission.

Table 3.1 Status of discharging Site Preparation Works conditions

Condition Reference Matter Status

All Phases of the Development (General Conditions)

G36 System for provision of information and handling complaints

Condition discharged on 22.02.2012

Preservation Scheme (Phase 0) Condition discharged on 17.02.2012

G37

Preservation Scheme (Phase 1) Condition discharged on 22.02.2012

Phase 1 Conditions

FP1 Ecological Mitigation and Monitoring Plan Condition discharged on 23.03.2012

FP2 Dust Management and Air Quality Monitoring Plan Condition discharged on 08.03.2012

FP3 Habitat Management Plan Condition discharged on 21.03.2012

FP4 Details of surface drainage system; schedule of implementation

Condition discharged on 14.03.2012

FP5 Air Quality Monitoring Condition discharged on 08.03.2012

FP6 Noise and Vibration Management Plan Condition discharged on 16.03.2012

FP8 Traffic Incident Management Plan Condition discharged on 06.03.2012

FP9 Scheme for Abnormal Indivisible Loads Condition discharged on 23.02.2012

FP10 HGV Emissions Scheme Condition discharged on 23.02.2012

FP11 Transport Clearway Condition discharged on 23.02.2012

FP12 Construction Traffic Management Plan Condition discharged on 06.03.2012

FP13 Travel Plan Condition discharged on 06.03.2012

Main Earthworks (Phase 2) Conditions

SP1 Surface and Foul Water Drainage Information to discharge the condition anticipated to be submitted in August 2012

SP2 Culvert/Infilling Holford Stream Information to discharge the condition anticipated to be submitted in August 2012

SP3 Flood Risk Management Information to discharge the condition anticipated to be submitted in July 2012

SP4 and SP16 Water and Sediment Management Information to discharge the condition anticipated to be submitted in August 2012

SP5 Temporary Access to Foreshore Information to discharge the condition anticipated to be submitted in August 2012






Condition Reference Matter Status

SP8 Flood warning notices Information to discharge the condition anticipated to be submitted in August 2012

SP9 Temporary Earthworks Retaining Wall Information to discharge the condition anticipated to be submitted in August 2012

SP10 Radiological Monitoring Built Development Area East Information to discharge the condition anticipated to be submitted in August 2012

SP11 Contamination Risk Assessment and Implementation Condition discharged on 20.06.2012

SP14 Control of Noise During Construction and Maintenance Information to discharge the condition anticipated to be submitted in August 2012

SP15 Monitoring of Palaeontological Remains Condition discharged on 25.05.2012

SP17 Construction Method Statement Information to discharge the condition anticipated to be submitted in August 2012

SP18 Construction Environmental Management Plan Information to discharge the condition anticipated to be submitted in September 2012

SP19 Materials Management Plan Information to discharge the condition anticipated to be submitted in September 2012

SP20 Site Waste Management Plan Information to discharge the condition anticipated to be submitted in September 2012

SP21 Soil Management Plan Information to discharge the condition anticipated to be submitted in September 2012

SP22 Monument Management Plan Information to discharge the condition anticipated to be submitted in July 2012

SP23 Landscaping and Planting Information to discharge the condition anticipated to be submitted in July 2012

SP24 Reports on CWDS Information to discharge the condition anticipated to be submitted in July 2012

SP26 Traffic Monitoring and Management System Information to discharge the condition was submitted on 04.04.2012

SP28 Car parking Information to discharge the condition anticipated to be submitted in August 2012

3.2 Bat Mitigation

3.2.1 In response to discussions around Requirement MS1A (Question 38), EDF Energy will write to West Somerset Council, Somerset County Council and Natural England to confirm the location of the 25 hectares of land to be made available for bat habitat and seek their written confirmation that the siting is acceptable. This written confirmation will be shared with the Planning Inspectorate prior to the close of the Examination.




3.2.2 The siting of this land cannot currently be put in the public domain given the commercial sensitivity of the land acquisition.

3.3 Construction Lighting Strategy

3.3.1 In response to discussions around Requirement MS4 (Question 48), the joint authorities raised a query regarding the lighting strategy for the HPC construction site. They stated that the strategy lacks luminance and illuminance measurements that would confirm the likely level of lighting impact during construction.

3.3.2 The Construction Lighting Strategy is appended to the Construction Method Statement (Appendix A3), which was submitted as part of EDF Energy’s application for Development Consent. The lighting strategy, in particular Section 3.4, divides the main developments site into 11 zones (Figure 11). Paragraphs A3.4.7-72 set out the nature of the lighting proposed for each zone depending on the tasks expected to be carried out in those areas. The technical appendix to the Strategy provides further detail for each zone, including specifications for maintained illuminance, minimum illuminance uniformity, glare rating limits and minimum colour rendering. Specifications are also provided for the different types of lights to be used and this is further supported by an horizontal light pollution impact assessment. Therefore no amendments are considered necessary to the Strategy.


4. BRIDGWATER A

4.1 Stopping-Up of Frederick Road

4.1.1 At the Issue Specific Hearing, EDF Energy undertook to confirm whether a stopping-up order was necessary in relation to Frederick Road in order to carry out the proposed Bridgwater A development, which would be authorised by the DCO.

4.1.2 EDF Energy can confirm that no stopping-up order is required, or will be sought by the Company, in relation to Frederick Road. However, physical works are proposed under the DCO which would turn part of the existing Frederick Road intersection with Bath Road into a raised grassed verge with a pedestrian link across it. These works will physically prevent vehicular traffic from turning into Bath Road from Frederick Road, or driving from Frederick Road directly across Bath Road into the new access, which would be created into the Bridgwater A site. However, this does not constitute a stopping-up of highway land.

4.1.3 EDF Energy understands that some highway authorities might consider it appropriate to promote a traffic regulation order to legally prevent vehicular traffic from using the raised grassed verge. However, EDF Energy would not consider this necessary since it will be physically impractical for vehicles to drive across this area in any event.




5. BRIDGWATER C

5.1 Replacement Rugby Pitch

5.1.1 In response to discussions held around the replacement pitch (Question 84), EDF Energy can confirm that there is an obligation on Bridgwater and Albion Rugby Football Club (the Club) to secure a rugby pitch prior to completion of the land deal between the parties. EDF Energy is working with the Club to identify a suitable site for a replacement pitch. A suitable site has been identified and the Club is in an advanced stage of negotiation for the land. The laying out of a pitch will require planning permission.

5.1.2 The Bridgwater C Agreement to Lease (ATL) includes a provision that Conditions are achieved by the Club prior to EDF Energy taking the lease. The Conditions can be waived by EDF Energy. One of the Conditions states: “securing by the BARFC of planning permission for an alternative rugby pitch and the transfer of the freehold land required for that purpose”. The ATL includes that if this and other conditions are not discharged by 30 September 2012, then EDF Energy may terminate the Agreement to Lease.

5.1.3 An upfront deposit is payable by EDF Energy and is to be paid in instalments linked to the completion of the Conditions. One instalment of the deposit is due upon the completion of the transfer to the Club of land required for an alternative rugby pitch (to include the granting of the planning permission for that use). The Club is required to secure the necessary consents and permits to deliver the pitch and would own and control the replacement pitch.

5.1.4 Further information on the discussions held regarding the statutory restriction imposed on Bridgwater C site is detailed in Part 2, Section 3 of this document.




6. CANNINGTON BYPASS

6.1 Design Life

6.1.1 Some discussion was had in relation to the design life of the Cannington bypass. For clarity, EDF Energy can confirm that the bypass has been designed in accordance with the Highway Agency’s Design Manual for Roads and Bridges (DMRB), which identifies the design life of various elements of a highway structure. Therefore, the highway structure (including the ecological underpass, retaining wall and Mill Stream Culvert) has been designed to a life of 120 years; this has been confirmed to Somerset County Council via the technical approval process, which commenced in January 2012.

6.1.2 However, some elements will have a shorter design life, in accordance with the DMRB, including:

the carriageway which will require some structural maintenance after 40 years, to extend the life of the carriageway;

the reinforced earthwork slopes that have a design life of 60 years; and

carriageway surfacing which has a typical life of approximately 8-10 years, before it requires replacement or maintenance.




7. COMBWICH

7.1 Introduction

7.1.1 This chapter advises the potential disturbance impacts to the residents of Combwich associated with the proposed development at Combwich Wharf and the freight laydown facility, along with the mitigation measures proposed by EDF Energy in the application of Development Consent.

7.1.2 This chapter addresses questions 15, 92 and 94 to 98 of the Examining Authority’s letter of 14 June 2012, as well as issues raised in the Hearing, including the Panel’s request for a note explaining the tidal restrictions applicable to deliveries to Combwich.

7.1.3 Issues raised in Otterhampton Parish Council’s (OPC) submissions of 4 July 2012 on the Local Impact Report Errata, the Planning Inspectorate’s further written questions dated 14 June 2012 and on the Draft Requirements are also addressed.

7.1.4 Following the Hearing, EDF Energy has proposed a number of changes to the draft requirements to strengthen the mitigation measures, the detail of which is set out below. Where EDF Energy has not made a change compared to the original DCO submission, the reasons for this are explained.

7.2 Assessment and Controls - Noise

a) Noise Impacts

7.2.1 The primary disturbance impact on residents would be noise. The Environmental Statement Volume 7, Chapter 9, Section 9.6 explains that, during the construction phase, the highest noise levels at residential dwellings are predicted to occur during the Wharf refurbishment and extension works, in particular during the demolition of the existing finger jetty and piling activities. The Environmental Statement has taken a conservative approach by assessing the impact on residential dwellings nearest to the Wharf (the properties on Riverside), assuming that demolition and construction plant is working at the closest distance to these properties. A short-term moderate adverse impact is predicted due to demolition and piling activities.

7.2.2 Table 9.6 of that assessment sets out the predicted worst-case construction noise levels at the nearest noise sensitive receptor locations. In addition, a noise threshold of 65dB LAeq for construction activities at Combwich is proposed in Table 5.2 of the Code of Construction Practice (CoCP). [Please note this table has been amended to correct the typographical error by the deletion of 60dB and 45dB, as noted at the Hearing]. This table sets out the maximum thresholds based on WHO and UK guidance.

7.2.3 The Environmental Statement concludes that the construction noise thresholds would be met at residential properties, with the exception of the properties at Riverside. Here, there is potential for the thresholds to be exceeded during piling activities and demolition of the existing facility in the early months of construction, when these activities are scheduled to take place.




7.2.4 These specific activities would be expected to occur over a four and a half month period (from the start of demolition to the end of piling) but would not be continuous over that period.

7.2.5 For all other activities associated with both the Wharf and the freight laydown facility construction, the noise impacts are predicted to be no worse than of minor adverse significance.

7.2.6 Minor adverse construction vibration impacts are also predicted due to piling at the Wharf and freight laydown facility site.

7.2.7 For the operational phase, the greatest noise disturbance would be associated with vessel arrivals, departures and unloading. Major adverse noise impacts are predicted for night-time vessel movements and for Abnormal Indivisible Loads (AIL) and other goods unloading on the nearest residential properties on Riverside. For Estuary Park, minor adverse impacts are predicted for night-time vessel movements, major adverse impacts for AIL unloading and moderate adverse impacts for unloading of other goods and transfer to the freight laydown facility, as well as freight management activities on the freight laydown facility.

7.2.8 Table 9.7 of that assessment details the predicted operational noise levels for the nearest noise sensitive receptors.

7.2.9 At the Hearing, it was stated that the whole of Combwich would not be significantly adversely affected by noise and this is correct. Construction and operational (berthing at night) activities may be audible across the whole of Combwich (the latter if residents have windows open) because of the very low background noise levels, but (other than as set out in the Environmental Statement) these do not amount to a significant effect in Environmental Impact Assessment terms.

7.2.10 For the post-operational phase, including deconstruction of the freight laydown facility, no greater than minor adverse impacts are predicted.

b) Noise Mitigation

7.2.11 The key noise mitigation comprises a restriction on working hours; a Transport Noise Insulation Scheme (TNIS), secured by Schedule 12, Annex 16, of the Section 106 Agreement; and a requirement (C22) on piling.

7.2.12 EDF Energy is proposing additional restrictions on working hours, over and above those set out in the original DCO application. These are set out below. Where EDF Energy is not proposing a change to mitigation, the reasons for this are also explained.

7.2.13 Noise thresholds are set out in the CoCP and proposals for noise monitoring are set out below.

Working Hours – Proposals in the Original DCO Application

7.2.14 In the original DCO application, restrictions on working hours were proposed (see Requirement PW23). The proposed hours of work were as follows:

Construction phase and post-operation phase:




07:00-19:00 Monday to Friday;

07:00-13:00 Saturdays; and

No working on Sundays and Bank/Public Holidays.

Operational phase:

Vessel deliveries at any time, subject to tidal restrictions;

Unloading from 07:30 - 18:30 seven days per week; and

For other activities on the freight laydown facility, 07:00 - 20:00 Monday to Friday and 08:00 - 18:00 Saturday, Sunday, Bank and Public Holidays.

New Working Hours Proposals

7.2.15 Following the Hearing, EDF Energy is proposing revised working hours as follows:

no use of high tides predicted to occur (as per the tide tables) between 22:00 and 06:00, unless otherwise agreed; and

a delay in construction start time in the morning at Combwich Wharf, where the noisiest activities are predicted to take place, from 07:00 to 08:00.

7.2.16 The restriction on the use of high tides between 22:00 and 06:00 will result in the loss of approximately 20% of the useable tides, however, EDF Energy considers that this could be accommodated and notes the benefits to residents this should bring.

7.2.17 The tidal restrictions applicable to Combwich and the calculation setting out the impact of this restriction on vessel movements is set out in Appendix 2.

7.2.18 EDF Energy does not propose any further restrictions on the use of high tides. It notes that the proposal in Question 94 comprising a restrictions on vessel movements after 18:00 on weekdays; after 13:00 on Saturdays; and totally on Sundays and Bank Holidays would prevent usage of around 64% of the high tides of 4.5m or more, which could otherwise be used for deliveries to Combwich.

7.2.19 It would also mean that every delivery vessel would have to remain at the Wharf for at least 24 hours and deliveries involving arrival on the morning tide, unloading during the day and then departure on the following evening tide would not be possible.

7.2.20 Such restrictions, when taken in conjunction with unpredictable weather restrictions, would require a significantly more conservative delivery schedule and greater AIL storage space on the freight laydown facility.

7.2.21 In addition, if combined with the proposed restriction in Question 98 (which proposes restricting EDF Energy to using only 50% of high tides to safeguard opportunities for recreational use), this would prevent usage of 82% of high tides of at least 4.5m.

7.2.22 EDF Energy therefore considers that the restrictions proposed by the joint authorities are disproportionate in their impact. EDF Energy also notes that leisure users have




significantly greater flexibility and opportunity than EDF Energy to use the facilities at Combwich.

7.2.23 EDF Energy does not propose removing the 30 minute start up and shut down periods for Combwich Wharf or the freight laydown facility. In addition, EDF Energy does not propose changing the construction start time for the freight laydown facility. This is because the noise impacts associated with the construction are less than for Combwich Wharf and are assessed as no worse than minor adverse. In addition, EDF Energy now proposes to delay the start of construction for the freight laydown facility until the construction of the Cannington bypass is complete, in order to address concerns regarding the number of HGV movements through Cannington. This means that a reduction in construction hours would not be tenable if the facility is to be delivered when needed.

7.2.24 EDF Energy also does not propose changing the unloading hours for AILs or other bulky construction goods. This is because starting the unloading process at Combwich Wharf as early as possible maximises the probability of completing the unloading during the working day and achieving vessel departure on the evening tide. Any delay to the time when unloading is permitted to start would increase the risk that unloading would spread over two working days, with barge departure almost certainly being delayed by at least 24 hours. A more detailed explanation of this issue is provided in Appendix 3.

Transport Noise Insulation Scheme

7.2.25 EDF Energy has introduced a Transport Noise Insulation Scheme (TNIS) for those properties/residents in Combwich (and elsewhere) most affected by noise. This commitment is set out in the draft Section106 Agreement (Schedule 12, Annex 16).

7.2.26 Eligibility for this scheme is based on robust and detailed noise modelling carried out by EDF Energy’s acoustic consultants, as well as established international guidance on the levels at which noise disturbance for residents could occur.

7.2.27 Eligible properties within the scheme area must be predicted to be exposed to an hourly noise level of not lower than 55db (A) LAeq, 1 hour at the external façade during the night-time (23:00 to 07:00).

7.2.28 The newly proposed restriction on use of high tides between 22:00 and 06:00 will now ensure that residents are not disturbed for the majority of the night-time period. The TNIS will help mitigate impacts for the remainder of the night-time period (06:00 to 07:00) and will also provide attenuation against daytime noise.

7.2.29 A total of 43 properties in Combwich are eligible for the TNIS and 36 (84%) have already submitted applications.

7.2.30 EDF Energy does not consider that the TNIS should be extended beyond this as eligibility is based on rigorous criteria. The scheme already goes significantly beyond statutory requirements that would require EDF Energy to provide mitigation for levels of 65dB rather than 55dB.

7.2.31 Under the TNIS, EDF Energy will provide free secondary glazing to fit existing windows; or free double glazed PVC-U replacement windows; or free acoustic




ventilation; or a combination of these options. It is important to note that the provision of acoustic ventilation in addition to glazing means that windows do not need to be opened for typical ventilation purposes.

7.2.32 In Question 95, the Planning Inspectorate asked what degree of noise attenuation would be provided by the TNIS. It is not possible to conclusively determine the noise levels that would occur within the internal rooms of a property with the Transport Noise Insulation Scheme in place. Internal noise levels would be dependent on the nature of the property façade and external wall construction, the type of internal flooring and soft furnishings etc and these characteristics would be different for individual properties at Combwich. In addition, the level of noise attenuation depends on the frequency spectrum of the noise generated. As a guide, however, standard thermal double-glazing would give approximately 26dB attenuation to lower frequency noise, e.g. traffic noise.

7.2.33 In terms of construction noise during the day, the predicted level with windows closed would be 48dB (i.e. 74dB (worst-case level during demolition works) minus 26dB attenuation). This is high, given design standards (BS8233:1999) for ‘reasonable resting conditions’ in living rooms (40dB LAeq,T), though attenuation may be slightly higher due to the broader spectrum of noise generated. However, these levels would be for short-term works and, for the majority of the construction phase, internal levels will normally be below 40dB (65dB limit minus 26dB attenuation = 39dB inside).

7.2.34 In terms of operational noise, EDF Energy predicted a level of 56dB at the nearest property at night during vessel arrivals and departures, which would equate to 30dB inside the bedroom (not taking into account other noise pathways; the fact that only part of the facade is glazed and that the room will have some sound absorption capacity (soft furnishings)). This level, with windows closed, is therefore at or below the WHO criterion to avoid sleep disturbance.

7.2.35 As the TNIS is a voluntary scheme and, as the exact degree of noise attenuation cannot be quantified for the reasons given above, EDF Energy has not reduced the residual impacts assessed in the Environmental Statement to reflect the potential benefits from the TNIS. Therefore, the identification of moderate and major adverse impacts for certain specific construction and operational activities, respectively, is based on a worst-case conservative assessment.

Piling Techniques

7.2.36 Contractors will be expected to use the most environmentally sensitive techniques practicable and this will be subject to Requirement C22, which states that no piling or any other foundation designs using penetrative methods shall be used unless and until details have, in consultation with the Environment Agency and Marine Management Organisation, been submitted to and approved by Sedgemoor District Council.

7.2.37 In addition, it is anticipated that the marine license would preclude any piling during hours of darkness, as this would potentially impact on fish migration, so this would reduce the hours within which piling may take place during the winter months.




Noise Monitoring and the Code of Construction Practice

7.2.38 The Code of Construction Practice (CoCP) is an overarching document which sets out the management measures that EDF Energy will require its contractors to adopt and implement during construction, to maintain satisfactory levels of environmental protection and limit disturbance as far as reasonably practicable. The CoCP was submitted to the Examining Authority on 31 May 2012 and, as per Requirement PW24, all construction works will be required to be carried out in accordance with the CoCP.

7.2.39 EDF Energy will require contractors to produce individual Construction and Environmental Management Plans (CEMPs) for each site and will consult with relevant stakeholders, such as the Environment Agency and Natural England, on these. However, EDF Energy does not propose submitting these to the local planning authorities for approval, as the CoCP is considered sufficient.

7.2.40 Table 5.2 of the CoCP (dated 31 May 2012) provides noise thresholds and states that EDF Energy would work within these, subject to the proviso that there may be specific construction activities where noise levels may exceed this limit for short periods. In this instance, higher noise levels may be permitted up to 75dBa LAeq, 1hour for specific works of short duration where Best Practicable Means (BPM) have been demonstrated to the local planning authority and noise sensitive receptors/premises have been informed at least 48 hours in advance.

7.2.41 In order to provide comfort that EDF Energy is not exceeding the maximum noise levels and that the local planning authority is being informed in advance when proposed thresholds would be exceeded, EDF Energy proposes noise monitoring during the construction phase. An appropriate location will be agreed with the local planning authority, but it would most likely comprise a location representative of the residential properties at Riverside.

7.2.42 The CoCP also contains a procedure for responding to any noise complaints should these arise. In response, EDF Energy would investigate and identify the source of the noise and take measures to minimise the relevant noise source wherever it is reasonable and practicable to do so.

Noise Monitoring during the Operational Phase 7.2.43 Volume 7, Chapter 9 (section 9.6) of the Environmental Statement details sources of

operational noise and Table 9.7 provides worst-case predicted noise levels.

7.2.44 EDF Energy now proposes a restriction on use of predicted high tides (as per the tide tables) between 22:00 and 06:00. This will, for the most part, resolve the issue of night-time noise.

7.2.45 A protocol for informing residents of planned vessel arrival and departure times would be implemented. Project-Wide Requirement PW29 (Residential Amenity: Information Dissemination and Complaints Handling) obliges EDF Energy to prepare and submit for approval a system for the provision of information to local residents and complaints procedures that relate to the construction of the authorised project.

7.2.46 Tide tables are published significantly in advance, so dates of potential early morning vessel deliveries (e.g. tides between 06:01 and 07:00) would be known well in




advance. It should be noted, however, that timings for vessel arrivals and departures would be subject to short-term change, particularly due to prevailing weather conditions. Therefore, a requirement to provide 48 hours notice of changes to planned times, as offered for the construction period, would not be practicable.

7.2.47 A procedure for responding to any noise complaints would also be implemented during the operational phase, also under Requirement PW29. The response procedure could, if considered appropriate, include short-term noise monitoring.

Other Noise Mitigation Measures Considered and Discounted 7.2.48 Additional mitigation measures at Combwich were considered and ruled out by EDF

Energy. These included a noise attenuation barrier (wall) running through the Pill and out into the Estuary. However, this was not considered feasible due to the additional impacts that its construction (it would most likely require piled foundations to withstand tidal pressures) and operation (visual impacts, obstruction of the Pill) would create.

7.2.49 Restrictions to vessel types were also considered, e.g. constraining the freight contractor to use only certain types of vessels (the quietest) or requiring them to improve sound performance of vessels (mitigation at source). However, it was considered that it would not be practicable to do this. EDF Energy’s contractors will only be contracting vessels and tugs for a small part of that vessel’s working year and vessel owners are unlikely to be willing to implement measures required by one client only. In addition, it is known that there is already a paucity of suitable tugs in the Bristol Channel; it may, therefore, cause problems of vessel availability if EDF Energy imposes requirements over and above other clients.

7.2.50 The possibility of a ship-to-shore power solution, to decrease the need for a vessel’s generators to run overnight, has been considered. As different vessels have different specifications, it would not be practical to require or enforce this; however, where vessels have the necessary connections, EDF Energy would endeavor to ensure that this power supply is used. In addition, as a single noise source, this would not be enough to cause sleep disturbance. Not withstanding this, as set out in Appendix 3, EDF Energy’s proposed working hours for unloading have been set to maximise the probability of completing unloading during the working day and departing on the evening tide, therefore not having to spend the following night at Combwich.

7.3 Assessment and Controls – Other Issues

7.3.1 Although noise, particularly night-time noise, is an important issue for many Combwich residents, concerns have also been raised on other issues such as air quality, visual and leisure impacts. Concerns have also been raised about how the freight laydown facility would be used and the impact of the freight laydown construction traffic on the village of Cannington. The way in which EDF Energy is addressing these issues is set out below.

Air Quality Impacts 7.3.2 The Environmental Statement identifies that the worst air quality impacts derive from

potential dust generating construction and deconstruction activities on human receptors closest to the site (Estuary Park, Riverside and Putnell Farm). Volume 7, Chapter 10 of the Environmental Statement predicts a moderate adverse (fugitive dust and PM10) impact, in the absence of mitigation, at 71 Estuary Park and 24




Riverside, and a negligible impact at Putnell Farm. With mitigation in place, the residual impacts at 71 Estuary Park and 24 Riverside are predicted to be of minor adverse significance. No other air quality impacts are assessed as worse than negligible.

7.3.3 EDF Energy is committed to implementing the measures proposed in the Air Quality Management Plans (AQMPs) through the CoCP (see Requirement PW24). This will ensure that construction air quality impacts are minimised. On the basis of the assessment of air quality impacts as presented in the Environmental Statement, and the proposed implementation of air quality control measures, monitoring is not considered necessary.

7.3.4 Air quality impacts associated with emissions from marine vessels during the operational phase have been subject to detailed assessment through predictive modeling. This has demonstrated that the air quality impact associated with such emissions would be negligible. The outcome of the assessment is such that specific monitoring of vessel emissions is not required. Nevertheless, best practice guidance measures, including minimising idling times of all vessel engines, will be implemented.

b) Visual Impacts

7.3.5 For visual impacts, a number of requirements (see below) are proposed which it is hoped will allay the concerns of residents. These typically require EDF Energy to submit detailed proposals to the local planning authority for approval. In all cases, the requirements state that such approved details must be implemented.

7.3.6 Requirements C4 (Landscape works), C6 (Fencing design) and C7 (Light design, management and mitigation) address the key concerns raised about visual impacts. In particular, the concerns regarding what the freight laydown facility would look like, especially at night.

7.3.7 Requirement C4 requires EDF Energy to submit a written landscape scheme to the local planning authority for approval and this will include details of soft landscape details; hard surfacing materials; vehicular and pedestrian access, parking and circulation areas; and street furniture, security cabins, bus shelters, refuse or other storage units.

7.3.8 Requirement C6 deals with fencing and states that, except for fencing for the construction compound, no security fences, walls or other means of enclosure shall be erected until details of their layout, scale and appearance have been submitted to and approved by the local planning authority.

7.3.9 Requirement C7 deals with lighting and states that installation of external lighting shall not commence until details of external lighting, including a written scheme for the management and mitigation of artificial light emissions, has been submitted to and approved by the local planning authority.

7.3.10 In terms of lighting at night, EDF Energy would expect the freight laydown facility to need lighting during some operational hours in winter (see Working Hours above). However, outside of the operational hours, the only lighting requirements would be for security.




7.3.11 In order to minimise visual impacts, EDF Energy’s security team would use infrared lighting to monitor the site. Therefore only minimal safety lighting for their offices would be required, e.g. a light in the cabin and just outside their cabin so they can see the steps.

c) Leisure Use

7.3.12 The issue of leisure use of Combwich Pill and the River Parrett during the construction and operation of Combwich Wharf has been dealt with extensively in EDF Energy’s previous responses, including to the Panel’s first written questions (24 April 2012), and its comments on the Local Impact Reports and responses from other Interested Parties (both 31 May 2012). This information is not repeated here.

7.3.13 As noted in EDF Energy’s Response to the Local Impact Reports (31 May 2012), EDF Energy has commissioned docking simulations which will show how barges would dock at, and depart from, Combwich Wharf. These will show what time period is required and what scope there is for leisure craft to use the Pill and slipway during these manoeuvres.

7.3.14 HR Wallingford will be undertaking docking/undocking simulations on 17 and 18 July 2012 using one of its ship simulators (which are well proven real time, full mission navigation simulators). EDF Energy will be able to provide further clarity on the likely timescales and impacts on other boat users following these. These simulations are planned to involve the Bridgwater Harbourmaster (or appointed representative) and other experienced personnel in order to ensure maximum fidelity.

7.3.15 EDF Energy is optimistic that the planned simulations will demonstrate that there would be opportunity available for leisure craft to share safely the same tides as EDF Energy’s deliveries.

7.3.16 As set out in the “New Working Hours Proposals” section above, EDF Energy is not proposing any requirements in response to Question 98 (which proposed restricting EDF Energy to using only 50% of high tides to safeguard opportunities for recreational use). Appendix 2 contains further information on this point.

7.4 Freight Laydown Facility

7.4.1 The issue of why the freight laydown facility is required, how it is likely to be used and its sizing has also been dealt with extensively in EDF Energy’s previous responses, including, most recently, to the Panel’s second round of written questions. This information is not reproduced here.

7.4.2 Some additional specific concerns and points of clarification were raised at the Hearing, as well as in the “OPC submission on HPC Local Impact Report July 2012” and “OPC’s comments to the Planning Inspectorate on further written questions to the applicant issued 14th June, regarding HPC”, which are addressed below.

b) Traffic

7.4.3 OPC has raised questions on vehicle movements and payload of vehicles associated with construction and deconstruction at Combwich, suggesting that EDF Energy has underestimated vehicle numbers.




7.4.4 In the third paragraph of “OPC’s comments to the Planning Inspectorate on further written questions to the applicant issued 14th June, regarding HPC”, OPC suggests that EDF Energy has indicated that the accuracy of the HGV movements required to transport the materials for the laydown area has been looked at again.

7.4.5 These statements are misleading. The numbers provided in the application for Development Consent (Table 7.1 of the Freight Management Strategy) are correct and are the numbers that have been used in the traffic modelling. These have not changed and are as follows. The payload of vehicles will depend on material transported but the average payload would be 18 tonnes.

Number of Vehicles

Number of Vehicles Including 20% Contingency

Construction and deconstruction of the freight management facility

37,565 45,078

Construction of Combwich Wharf 6,880 8,256

Totals 44,445 53,334

7.4.6 Outside the Examination process, OPC has queried a deconstruction traffic number in the Environmental Statement, Volume 7, Section 5.5.3. This refers to approximately 22,500 vehicle movements being required for deconstruction of the freight laydown facility and is an error; it should just state ‘vehicles’.

7.4.7 In the last paragraph of “OPC’s submission on HPC Local Impact Report – Errata July 2012”, OPC states:

“It is important for residents and PINS bearing in mind EDFE’s justification for Combwich is taking vehicles off the highway, that there could be not just EDFE’s 53,000 movements but actually well over 100,000 just to build and remove the Combwich facilities”.

7.4.8 EDF Energy has made clear throughout the DCO Environmental Statement that the number of vehicles and vehicle movements are two different things – vehicle movements would be double the number of vehicles as vehicles will travel to and from site. At no point has EDF Energy suggested that there would only be 53,334 vehicle movements associated with Combwich.

7.4.9 Otterhampton Parish Council’s assertion that “EDFE have miscalculated and underestimated the number of road movements required to develop at Combwich by 100%” (OPC’s submission on HPC Local Impact Report) is, therefore, incorrect.

7.4.10 In addition, in response to OPC’s previous questions on this issue, EDF Energy set out the position with regards to materials quantities and associated vehicle movements in its Response to Other Interested Parties (31 May 2012).

7.4.11 In this previous response, EDF Energy also explained why the suggestion that more HGVs would be put on the road to construct a storage area for bulky container goods than would ever be saved by using Combwich Wharf for water-borne freight is incorrect.




7.4.12 Otterhampton Parish Council’s has queried EDF Energy’s calculation on this issue in the “Calculations substantiating proposed laydown areas” section of its response entitled “OPC’s comments to the Planning Inspectorate on further written questions to the applicant issued 14th June, regarding HPC”. To clarify, the information provided in EDF Energy’s Response to Other Interested Parties, paragraphs 5.8.36 to 5.8.41 is correct. The noise bund would be required even if the freight laydown facility were used for AIL storage only and the size of the flood bund was adjusted to take account of the smaller footprint in the calculation of materials required to build an AIL storage area only.

c) Car Parking Spaces

7.4.13 Questions have been raised regarding the proposed 50 car parking spaces on the freight laydown facility. As set out in the Environmental Statement, Volume 7, Chapter 4, 10-20, onshore staff would be associated with each vessel delivery. In addition, an equivalent of eight full-time staff would be working at the freight laydown facility. Approximately three of these would be security staff so additional spaces would be needed for shift handovers. The remainder of spaces would be for visitors.

7.4.14 Spaces are provided for these workers and visitors because the special working hours associated with vessel arrivals and departures may not be compatible with the proposed park and ride bus services. EDF Energy’s main objective in the provision of spaces has been to avoid a situation where parking could ever overspill into Combwich village, hence the conservative number of spaces. These do not, in any way, indicate that EDF Energy intends to use the freight laydown facility in any way other that set out previously in the application.

7.4.15 Concerns have been raised that the presence of these 50 spaces might indicate that EDF Energy intends to use the freight laydown facility as a contractor compound for the HPC development site or to store goods imported via the temporary jetty. This is not the case; EDF Energy has proposed an additional requirement to this effect.

d) Traffic through Cannington

7.4.16 Some interested parties have raised concerns about traffic through Cannington, in particular ahead of construction of the Cannington bypass, and the contribution of the Combwich freight laydown facility construction traffic to that impact.

7.4.17 In response to this, EDF Energy’s revised indicative phasing schedule now proposes delaying the construction of the Combwich freight laydown facility until after the Cannington bypass is constructed.

e) Sequential Test

7.4.18 EDF Energy is satisfied that the requirements of the Sequential Test have been met. The Flood Risk Assessment correctly describes the freight laydown facility as primarily for water delivered goods; this is, therefore, the basis on which the Sequential Test has been carried out.

7.4.19 As set out in EDF Energy’s Response to the Examining Authority’s first written questions, the freight laydown facility would only be used for road-borne goods were space available. Maintaining the ability to use the freight laydown facility in this way enables EDF Energy to retain flexibility in its freight management strategy. This is a






secondary, not a primary use, and therefore has not been taken into account in the Sequential Test.

7.5 Conclusion

7.5.1 Following on from the Hearing, EDF Energy has proposed a number of additional requirements to address concerns raised by local residents in respect of the Combwich proposals. These comprise:

a delay in construction start time for Combwich Wharf from 07:00 to 08:00;

no use of high tides predicted to occur (as per the tide tables) between 22:00 and 06:00;

noise monitoring during the construction phase;

a delay in the start of construction of the freight laydown facility until after completion of the Cannington bypass; and

a restriction on the use of the freight laydown facility to preclude use as a contractor compound or to store goods imported via the HPC jetty.

7.5.2 EDF Energy hopes that the requirements, as proposed in the updated Schedule 11 of the draft DCO (see Update Requirements document within this submission) will address local concerns as far as is practicable for the development.


8. WILLITON

8.1 Noise

8.1.1 EDF Energy confirms that it will extend the Transport Noise Insulation Scheme (TNIS) to cover Smithyard Cottage, to the west of the Williton park and ride site.

8.1.2 It has been requested that the operational hours of the park and ride facility are restricted to 05:00-01:30; and that an extension of the soil mound is created to provide additional acoustic bunding.

8.1.3 The Environmental Statement Addendum (submitted in March 2012) identified a change in 2016 from minor-to-moderate impacts (dependant on the hour) to minor-to-major impacts in the early mornings during the operation of the park and ride facility. This change is due to the change in the number and rerouting of buses south. It should be noted that, of all the assessed routes in Williton, only the B3190 south of the site is predicted to experience an impact significance of greater than minor. Along this route, therefore, only Smithyard Cottage would be affected. Previously in the Environmental Statement, other routes with a greater number of residential properties were predicted to be affected.

8.1.4 The predicted impact significance based on the predicted change (in parentheses) in road traffic noise from the B3190 is as follows:

05:00-06:00 (+10.7dB) - Major;

06:00-07:00 (+5.8dB) - Moderate;

23:00-00:00 (+5.4dB) - Minor; and

00:00-01:00 (+11.3dB) – Major.

8.1.5 There would be no significant impacts outside of these hours. It is, therefore, not considered necessary to restrict operating hours, which are otherwise dictated by the shift patterns.

8.1.6 With regard to the provision of acoustic bunding or screening, mitigation cannot be provided on-site as the impacts are traffic-related (i.e. on the highway). The relative positions of Smithyard Cottage and the vehicle movements (of which the majority will not pass directly outside the Cottage, but rather use the B3190 to the south of the site) makes the possibilities for screening impractical. The site entrance is approximately 45m west of Smithyard Cottage and any barrier along the eastern road side would not be efficient in attenuating noise propagation to the first floor window.

8.1.7 It is, therefore, considered appropriate to extend the Transport Noise Insulation Scheme to Smithyard Cottage.




9. OTHER

9.1 Clearway

9.1.1 Concerns were raised by Somerset County Council regarding the designation of a ‘Clearway’ along the C182. Please refer to Part 2, Section 6 of this response for further clarification on this point.

9.2 Highway Improvements

9.2.1 EDF Energy notes the comments of Somerset County Council in respect of the proposed highway works, submitted to the Planning Inspectorate on 5 July 2012. Please see Appendix 4 for further information.

9.2.2 A separate note has also been provided in respect of EDF Energy’s proposed highway improvements to the Huntworth Roundabout junction (please see Appendix 5).

9.3 Bus Routes

9.3.1 EDF Energy confirms that the only buses that would route via Stogursey are those picking up or dropping off workers who reside in Stogursey, only if such demand exists. These buses would be no larger than 15 seaters to ensure successful navigation of the roads.

9.3.2 All other buses travelling direct to the HPC construction site from the park and rides, including Williton, would not travel through Stogursey. This will be clarified in the Travel Plan to be submitted to the Planning Inspectorate on 7 August 2012.

9.4 HGV Routes

9.4.1 It is not anticipated that any significant materials deliveries to the HPC development site would take place from the west. If there was the occasional delivery then it would be required to register with the Delivery Management System, as described in the Construction Traffic Management Plan. Therefore, the registration number of the vehicle would be known. Such deliveries, were they to occur, would be required by EDF Energy to use the A39 between Minehead and Cannington. There would be an Automatic Number Plate Recognition (ANPR) camera location in Cannington (and on the bypass once open). It would, therefore, be recorded if the vehicle had used the correct route. If it was not recorded on the Cannington camera then it would be deduced that the vehicle had not followed the correct route.

9.4.2 It is not considered necessary for an additional requirement or cameras to protect the amenities of local communities to the west of Cannington.

9.5 Mitigation and Monitoring Controls for the Marine Environment

9.5.1 At the Hearing, and in submissions by the Environment Agency, Natural England and the Countryside Council for Wales on 5 July 2012, concern was raised that it is not possible to identify the full suite of mitigation and monitoring measures required to






ensure there would be no adverse impacts on the integrity of the designated sites, acknowledging that some mitigation would be implemented via the requirements imposed on the DCO, and others via conditions imposed on the marine licences or environmental permits.

9.5.2 In response to this concern, EDF Energy is seeking to provide a Route Map which sets out EDF Energy’s position on mitigation and monitoring controls for the marine environment.

9.6 Ministry of Defence

9.6.1 EDF Energy and the Ministry of Defence (MoD) have agreed a mitigation scheme to deploy an additional target buoy approximately 1000m west of the current location. This will ensure that the MoD’s target is retained in the area, whilst making sure that the HPC power station would not be exposed to potential hazards. The MoD has confirmed in writing to the Planning Inspectorate that:

“there is now no need for a condition in the DCO requiring the applicant to devise a health and safety management plan to protect personnel and equipment from gunnery activities.”


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APPENDIX 1

HIGH LEVEL RESPONSE TO COMMENTS ON MANAGEMENT PLANS




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Hinkley Point C

High Level Response to Comments on Management Plans

110011/N261_Rev 1

10 July 2012

Introduction

1. Comments were received from Sedgemoor District Council, West Somerset Council and

Somerset County Council (hereafter referred to as ‘the joint authorities’) on 5 July 2012 with

regard to EDF Energy’s revised draft Construction Traffic Management Plan (CTMP) and

Construction Workforce Travel Plan (referred to as the DCO Travel Plan), both dated 31 May

2012; and the draft Traffic Incident Management Plan (TIMP), submitted by EDF Energy in

response to the Local Impact Report (LIR). In addition, comments on the management plans

were made by the joint authorities in their proposed changes to and commentary on the

draft Requirements (Schedule 11 of the draft DCO).

2. The joint authorities’ comments have been reviewed by EDF Energy and a final drafts of the

management plans are to be appended to the final draft Section 106 Agreement, which will

address the majority of the joint authorities’ comments.

3. This note provides a high level summary of the key areas where EDF Energy and the joint

authorities still disagree on.

General

4. The joint authorities seek the management plans to be approved by Somerset County

Council as highway authority. However, EDF Energy will append a final draft management

plans to the Section 106 Agreement, which take account of the joint authorities’ comments

where appropriate.

5. The DCO management plans propose to establish a Transport Review Group (TRG), which

will review the performance of these management plans and advise on potential revisions.

The Site Preparation management plans use the term Transport Steering Group (TSG) for this

review body. The term has been changed to reflect the joint working partnership proposed

for the monitoring and review of the DCO management plans between EDF Energy and the

joint authorities.

Page: 2

Construction Traffic Management Plan

Hourly Caps

6. The joint authorities seek hourly traffic caps in order to further manage construction traffic.

EDF Energy does not consider this to be reasonable for the reasons set out in the Response

to Requirements document.

Traffic Managed by CTMP

7. The joint authorities require the CTMP to manage all HGVs, LGVs, buses and cars associated

with the HPC Project. The final draft CTMP provides management measures for the following

freight vehicles:

HGVs to the HPC development site and Combwich Wharf;

HGVs to the associated development sites; and

LGVs.

8. The management measures set out within the final draft CTMP for each of the above

elements of freight traffic are commensurate with the level and duration of traffic impact

during the construction phase.

9. HPC buses and cars are to be managed by the DCO Travel Plan and not the CTMP, as the

CTMP is the plan for the management of freight movements and the DCO Travel Plan

manages people movements.

Holding Spaces

10. The joint authorities assert that EDF Energy requires more holding spaces at the freight

management facilities. EDF Energy considers the proposed holding spaces set out in the DCO

application to be appropriate and sufficient.

11. EDF Energy proposes to construct two freight management facilities, at Junction 23 and

Junction 24 of the M5, which would accommodate a total of 140 HGV parking spaces (85

spaces at Junction 23 and 55 spaces at Junction 24).

12. The DCO application confirmed that approximately 417,000 HGVs would be required to build

the HPC Project (Table 7.1 within the Freight Management Strategy, contained at Appendix

3.7 to the Transport Assessment). This is the equivalent of 175 HGVs per day.

13. The HGV daily profile, presented at Figure 8.4 of the Freight Management Strategy, indicates

that the worst three hour period would be between 10:00‐13:00 when approximately 48% of

the daily HGV movements are expected to occur. Assuming that all these HGVs would go via

the freight management facilities the holding capacity would be as follows:

5 hours on an average day;

3 hours 30 minutes on an average day in the worst quarter of the construction phase;

and

2 hours 20 minutes on the peak day in the worst quarter of the construction phase.

Page: 3

14. This demonstrates that there is sufficient provision of holding spaces at the freight

management facilities.

15. It is considered both unreasonable and unnecessary to base the HGV holding provision at the

freight management facilities on the requirement to cater for an incident occurring at the

peak time, on the peak day at the peak of construction activity associated with the HPC

Project. The project will last some nine years and the level of HGVs is only expected to peak

at 375 HGVs per day on certain occasions during the worst quarter of the peak construction

period.

16. Instead, EDF Energy has taken a more practical approach and provided sufficient holding

provision to cater for the likely movements associated with the construction programme.

The 3 hour holding capacity is indicative but is anticipated to deal with most incidents and

disruptions during the construction phase. Through the TIMP, EDF Energy would look to

notify contractors in the event of an emergency/incident to prevent vehicles departing from

their origins as well as holding vehicles back at the freight management facilities.

17. Furthermore, in the unlikely event of an incident occurring which coincided with the peak

time on the peak day at the peak point of construction, EDF Energy could temporarily make

available circulation space and lay‐bys within each facility to accommodate additional

vehicles in an emergency situation.

Traffic Monitoring and Management Plan

Additional ANPR Cameras

18. The joint authorities seek additional Automatic Number Plate Recognition (ANPR) cameras to

be located at each of the accommodation campuses and park and ride facilities, as well as

the currently proposed ANPR cameras at the freight management facilities and at agreed

locations on the public highway network.

19. EDF Energy does not consider it necessary to provide additional ANPR cameras as the

purpose of the TMMS is to monitor compliance with the HGV restrictions set out in the

CTMP. As set out above, people movements are to be monitored via the DCO Travel Plan and

a separate monitoring strategy is set out in the DCO Travel Plan, which involves the use of a

smartcard type system to monitor compliance with the mode share targets.

20. ANPR cameras at the accommodation campuses and park and ride facilities would not

enable the mode share targets to be monitored. For example, the cameras would not be

able to ascertain the number of workers on the accommodation campus or park and ride

buses, which are required to determine the mode share, but the proposed smartcard type

system would.

Monitoring Process

21. The joint authorities request that any breaches of the proposed vehicle restrictions are

recorded daily and informally reported on a weekly basis, which should be fed into a formal

monthly report and the quarterly TRG meetings.

Page: 4

22. The final draft CTMP proposes to notify the TRG of any breaches of the HGV restrictions on a

daily basis and provide a formal monitoring report every quarter in advance of the TRG

meeting. In addition, EDF Energy has set out a regular internal review process within the

CTMP which will involve daily, weekly, monthly and quarterly meetings at various levels to

review compliance with the CTMP.

Incident Detection

23. The joint authorities request that the TMMS system should be designed to ensure it can

detect traffic incidents. This is an example where the joint authorities are requesting a

measure that would go beyond the mitigation of impacts directly related to the HPC Project

and is therefore not appropriate.

Traffic Incident Management Plan

Traffic Managed by TIMP

24. The joint authorities require the TIMP to control all HPC development traffic in the event of a

traffic incident.

25. As part of the DCO application, EDF Energy prepared a Transport Assessment which set out

the traffic impact of the HPC Project in terms of impact on journey times, queuing and delay

and road safety. Appropriate measures and contributions are proposed by EDF Energy to

mitigate the impacts in line with relevant planning guidance. A TIMP is not a requirement of

a planning application, and as such EDF Energy has gone beyond what is necessary to work

with Somerset County Council and the emergency services to prepare the DCO TIMP. The

final draft TIMP proposes to manage HPC HGVs and buses, but it is not proposed to extend

the TIMP to manage LGV and car traffic in the event of an incident for the following principal

reasons:

As far as we are aware it is unprecedented for a major construction project to hold cars

and LGVs in the event of a traffic incident.

Industrial relations issues may arise as a result of holding cars and LGVs off the highway

network.

The diversion routes proposed for general and HPC traffic are considered to be a more

appropriate management measure for HPC cars and LGVs.

Vehicle Recall

26. The joint authorities seek EDF Energy to recall HPC HGVs and buses that have already

entered the Incident Management Area (IMA) and request that the vehicles return to where

they had been dispatched from.

27. EDF Energy does not consider this to be appropriate for the following principle reasons:

Safety issues with HPC HGVs and buses attempting to u‐turn or return to where they

were dispatched from via inappropriate roads.

Page: 5

There would be a point within the IMA at which the vehicles would cause less impact by

continuing on their journey than returning to their dispatch point. Such a system would

be too complex to implement.

Communication between EDF Energy and the HGVs drivers would be via the suppliers

and would not be direct. Therefore it would be difficult within a relatively small IMA to

provide prompt information to the drivers.

Construction Workforce Travel Plan

Site Specific Travel Plans

28. The joint authorities request that EDF Energy prepares site specific Travel Plans for the

associated developments, namely the accommodation campuses, the park and ride and

freight management facilities, the public information centre and the induction centre.

29. It is not proposed to provide any site specific Travel Plans beyond the information provided

in the DCO Travel Plan as the vast majority of elements of the site specific Travel Plans would

be the same and the only unique elements would be the measures and targets. Therefore,

the DCO Travel Plan provides the common elements within a single document and separates

out the measures and targets for each of the facilities.

Travel Behaviour Campaign

30. EDF Energy proposes £3.5m in the draft Section 106 Agreement for the implementation of

the DCO Travel Plan during the construction phase of the HPC Project.

31. Somerset County Council seeks a further £2.7m for a Travel Behaviour Campaign for

Bridgwater. EDF Energy considers that a behavioural campaign for the local community

would go beyond the mitigation of impacts directly related to the HPC Project and is

therefore not appropriate.





APPENDIX 2

TIDAL RESTRICTIONS APPLICABLE TO DELIVERIES AT COMBWICH








APPENDIX 2

TIDAL RESTRICTIONS APPLICABLE TO DELIVERIES AT COMBWICH

Overview

1. Sea deliveries to Combwich will generally be undertaken by barge, towed by tugs. Such deliveries require an acceptable combination of weather and tidal heights in order to be undertaken safely. Although tidal heights can be predicted well in advance with reasonable certainty, weather restrictions, particularly excessive wave heights and fog, can only be predicted in the near term. Thus, although deliveries can be scheduled well in advance, changes to weather conditions can result in unexpected and potentially significant delays. EDF Energy is therefore seeking the maximum reasonable flexibility for the arrival and departure of vessels at Combwich.

Tidal Restrictions

2. The proposed wharf refurbishment would establish a ‘Not Always Afloat But Safely Aground’ (NAABSA) berth at a height of +2.3m AOD. This height was determined taking into account the need for the wharf height to be no lower than the local flood defence height and the need for the barge load platform to be level with the wharf when the barge is aground.

3. The berth design was established on the basis of using readily available North Sea Standard (NSS) barges of 90m x 30m dimensions and a nominal draft of 1.5m. With no ballast adjustment, a payload of 1,000Te would increase the draft by about 0.3m. The largest single load under consideration is a steam generator with a net weight of 585Te which, without ballast adjustment, would increase the draft by about 0.18m. It is anticipated that ballasting would be used to mitigate the changes in draft.

4. With the NAABSA berth height of 2.3m, an under-keel clearance of 0.5m, and a barge draft of 1.5m, the minimum tidal height for berthing is 4.3m. However, the minimum tidal height for entry into the River Parrett is 4.5m, so the berth would be available for all tides when entry to the river is permissible.

5. Although tides greater than 4.3m would theoretically increase the time window when docking and departure could take place, the size of the proposed barge in relation to the width of the river means that such manoeuvres could only safely be undertaken at slack water, when there is little or no tidal current to contend with.

Usable Tides

6. There are currently no tidal prediction tables readily available for Combwich. However, tide tables are available for Bridgwater, Burnham and Hinkley Point. EDF Energy has established a tide gauge at Combwich and, apart from periods when the gauge was out of action due to battery failure and an apparent lightning strike, this has been providing tidal information since the beginning of 2011. With the information from the tide gauge for calibration, it is expected that EDF Energy will be able to procure tide tables for Combwich from one of the established providers. In the meantime, inspection of the tide tables shows that the timings of high tides at




Bridgwater, Burnham and Hinkley Point are virtually coincident. It is also generally accepted that tidal heights at Combwich are about 1.5m higher than those at Bridgwater. As a result, Bridgwater tide tables can be used as a reasonable substitute for Combwich and the minimum tide criterion would equate to 3.0m at Bridgwater.

7. Inspection of tide gauge records for Combwich for 2011, and tide tables for Bridgwater for 2015, reveal a reasonably consistent number and pattern of tides of at least 4.5m at Combwich, with such tides being concentrated within the periods of 06:00-10:00 and 18:00-22:00 (GMT). Being a natural phenomenon, governed by a number of influences with differing periodicity, the tides vary month by month and year on year, but the clustering of tides of at least 4.5m is effectively constant.

Leisure Use

8. Although EDF Energy is docking and departure manoeuvres need to take place at high tide slack water, EDF Energy recognises that this is also the ideal time for leisure craft to depart/arrive and for the launch/retrieval of smaller craft, due to the absence of tidal currents.

9. However, as leisure users will often only wish to sail for a few hours in a day and high tides occur every 12 hours or so, departure and arrival times could not therefore both coincide with high water. Hence it is expected that some leisure craft can and will depart and/or return satisfactorily at other states of the tide.

10. Leisure users are not restricted to the same degree as EDF Energy’s deliveries by tidal height, so there will be tides which are usable by leisure craft, but not by EDF Energy.

11. EDF Energy accepts that whilst barges and tugs are actively manoeuvring at Combwich, it would be unsafe for leisure craft to manoeuvre in close proximity. EDF Energy has therefore commissioned HR Wallingford to undertake docking/undocking simulations using one of their ship simulators which are well proven real-time, full mission navigation simulators. This should provide clarity on the likely timescales and impacts on other boat users. These simulations will be undertaken in July 2012 and are planned to involve the Bridgwater Harbourmaster and other experienced personnel in order to ensure maximum fidelity.

12. EDF Energy is optimistic that the planned simulations will demonstrate that there would be opportunity available for leisure craft to share safely the same tides as EDF Energy deliveries. Notwithstanding this, the limited time period required for docking or departure would leave a considerable proportion of the relevant tides available for leisure users.

What would be the implications of a restriction on vessel movements to and from Combwich Wharf between (say) 22:00 and 06:00?

13. An analysis of the Combwich tide gauge records and Bridgwater tide tables shows the following:

Up to around 70% of all high tides are at least 4.5m.




Based on the timing of the usable tides (i.e. at least 4.5m), about 64% would be precluded by the hours restriction proposed in Question 94.

On the same basis, the effect of the restriction proposed in Question 95 would be to preclude about 20% of usable tides.

Due to the concentrations of usable tides in the periods 06:00-10:00 and 18:00-22:00, a small increase in the restricted period proposed in Question 95 would have a disproportionate impact. For example, an increase from eight to nine hours would increase the number of tides excluded from about 20% to about 27%.

Similarly, shifting the restricted period by an hour, without increasing its duration, would increase the number of tides excluded from 20% to 22%.

The combination of restrictions proposed by the Local Authorities in Question 94 and Question 98 would preclude about 82% of otherwise usable tides.

14. It should be noted that the information presented by the Local Authorities in paragraph 2.3.14 of their ‘Response to Representations’ dated 31 May 2012 implicitly accepts that the restriction proposed in Question 98 is untenable. The calculations are based on allowing EDF Energy 75% of available tides (rather than 50%, as in Question 98 restriction) and indicate that, even then, sufficient Abnormal Indivisible Load deliveries would only just be possible over a four year period. Notwithstanding this, EDF Energy considers that the Local Authorities’ assessment is too simplistic and does not take sufficient account of all the relevant factors.








APPENDIX 3

EXPLANATORY NOTE ON THE TIMING OF COMBWICH BARGE UNLOADING








APPENDIX 3

EXPLANATORY NOTE ON THE TIMING OF COMBWICH BARGE UNLOADING

Introduction

1. In its application for Development Consent, EDF Energy proposed that the timing of vessel arrivals and departures should be unconstrained. However, EDF Energy has now proposed a requirement that EDF Energy would not utilise high tides that occur between 22:00 and 06:00 for vessel arrivals or departures.

2. This note discusses the issues surrounding barge unloading and explains why EDF Energy is not proposing any change to unloading times.

Tidal Restrictions

3. Barge arrivals and departures are limited to tides of at least 4.5m. Such tides can occur at most times of day, but occur predominantly in the periods 06:00-10:00 and 18:00-22:00.

Unloading Restrictions

4. EDF Energy has proposed that unloading is restricted to the hours of 07:30-18:30. For Abnormal Indivisible Load deliveries which utilise Roll-on Roll-off vehicles, the barge also has to be aground on the berth bed so that the load bed is level with the wharf before off loading can commence. For a barge with the nominal draft of 1.5m and the berth bed elevation of +2.3m AOD the tide would need to reduce to 3.8m for the barge to be aground. With ballast adjustment, the barge could be made to ground at tides slightly higher than 3.8m. The start of the unloading period is dependent on the state of the tide and barge ballast rather than when the barge docks at Combwich. Thus, even if the barge had docked the previous evening, unloading of AILs could still only commence once the barge has grounded after the high tide.

5. Inspection of tide records from the Combwich tide gauge show that for a tide of 4.5m, the tide reduces below 3.8m, and the barge would therefore be aground, in about an hour. For higher tides, the time to ground increases but at the highest tide recorded by the tide gauge in 2011 (7.77m) it is just over two hours. Thus for a high tide of 4.5m at 06:00 and no additional ballasting, the barge would be ready for unloading at around 07:00. If the 06:00 high tide were 7.77m, the barge would be ready shortly after 08:00. Ballasting of the barge to increase its draft would reduce the time to grounding such that even with a particularly high tide at 06:00, unloading could start close to the 07:30 start of the unloading period.

6. Whether the barge had docked the previous evening or that morning, unloading of AILs could still only commence up to 1-1.5 hours after the morning high tide. The early tides (around 06:00) are of greatest value as they provide the maximum period when the barge is aground during the allowable unloading period, maximising the




probability of completing the unloading during the working day and departing on the evening tide, and not having to spend the following night at Combwich.

7. For tides towards the end of the morning, i.e. 10:00, the unloading of AILs would have to complete 1-1.5 hours before high tide, i.e. not later than 08:30 - 09:00, if the barge were to be able to depart on the morning tide. The 07:30 unloading start time gives a maximum of 1-1.5 hours unloading time (less any contingency). This would likely only be usable for loads which were prevented from unloading the previous day and are immediately ready to unload. In other cases, unloading would sensibly have to be deferred to start at 11:00 - 11:30 when the barge has grounded again after the high tide, although some preparatory work could be undertaken whilst the barge is afloat.

8. For barges not carrying AILs, unloading would not be tidally restricted, as the barge deck does not need to be level with the wharf for lift-off unloading with a crane. However, arrival and departure would still only be possible at high tides of at least 4.5m and the desirability of maximising the allowable unloading period is relevant.

Conclusions

9. Any delay to the time when unloading is permitted to start, would increase the risk that unloading would spread over two working days, with barge departure almost certainly being delayed by at least 24 hours.






APPENDIX 4

DETAILED RESPONSE TO COMMENTS BY SCC ON EDF ENERGY’S PROPOSED HIGHWAY CAPACITY IMPROVEMENT

SCHEMES, AND PROPOSED ACCESS ARRANGEMENTS TO THE HPC SITE AND ASSOCIATED DEVELOPMENT SITES





HPC DCO Examination

Detailed response to Comments by SCC on EDF Energy’s proposed Highway Capacity Improvement

Schemes, and Proposed access arrangements to the HPC sites and Associated Development Sites

Summary response

1. The document received from the Councils on 5 July 2012 is not, in fact, a response to

material submitted on 31 May; rather, it provides a partial comment on some of the

highway design details that have been with Somerset County Council (SCC) for some time –

in some cases, several months. In relation to the Cannington Bypass, the Council’s response

is the first time these concerns have been raised with EDF Energy, despite having this

information since January 2012. The Councils did not raise any concerns about the detailed

design of the bypass in either their Local Impact Report (LIR) or Relevant Representations

and the detailed audit report referred to in the response is still not available. Nevertheless,

it is helpful to have feedback, even though the majority of the feedback is not accepted.

2. EDF Energy submitted a comprehensive package of design drawings for both the highway

improvement schemes and all site accesses with its application for Development Consent.

3. Subsequently, EDF Energy has submitted detailed engineering drawings to SCC for their

consideration for all site accesses, with the exception of Combwich, Bridgwater A and the

HPC emergency access, in March 2012. Detailed engineering drawings were only submitted

for SCC’s consideration for those highway improvement schemes which were required to

satisfy conditions on the Site Preparation consent, as it was understood that SCC wanted to

consider these first, because of resourcing concerns and because they did not agree with

EDF Energy’s traffic flows for the DCO application. Detailed engineering drawings were also

submitted to SCC for the Cannington bypass in January 2012, to inform technical discussions.

4. EDF Energy sets out its response to SCC in the table below. These indicate that no changes

are required to satisfy the comments received on the safety and technical audits, with the

exception of a very minor change to the drainage details for the Junction 23 site access, to

ensure all gully connections do not exceed 15m. The majority of SCC’s areas of outstanding

concern appear to relate to misinterpretation of drawings, which are capable of being

addressed without changes to the schemes. There are minor inaccuracies in one DCO

drawing and four detailed engineering drawings, which are being corrected and will be

resubmitted by the 7 August 2012.

5. EDF Energy believes that the proposed highway improvements and site access junctions are

satisfactory from a highway capacity, technical and safety perspective and would be suitable

for adoption by SCC in due course.

6. EDF Energy considers that the highway design details submitted as part of the application for

Development Consent are acceptable and should be approved as part of the DCO. The DCO

as drafted would give EDF Energy the powers to enter onto the relevant land to construct

the highway works. Article 12A of the DCO provides that any new or altered streets are

automatically adopted 12 months after they have been “completed to the reasonable

satisfaction of the highway authority”. Further approval from SCC is therefore only

necessary if EDF Energy wants the completed works to become part of the adopted highway,

or if EDF Energy chooses to proceed by means of a Section 278 agreement. EDF Energy is

confident that this will not be an issue, given the high standards to which the works will be

carried out. Detailed engineering drawings for all highway improvements and site accesses

have been or will be submitted to SCC by 7 August 2012 and it is hoped that the engagement

committed by SCC may enable those details to be agreed. If it would be helpful to the

Examination, that information can also be submitted to the Planning Inspectorate to inform

its consideration of the acceptability of the Highway Works for which development consent

is sought under the DCO. In the meantime, this document responds to the concerns raised

by the Councils in their document of the 5 July.

Highway Improvement

SCC Comment EDF Energy Response

Plans too small scale to evaluate detailed design

The plans submitted with the DCO were of sufficient scale to determine the design of the highway improvements for planning purposes. EDF Energy has since been liaising with SCC on the detailed design of the highway improvements where possible. Detailed designs (scale 1:500) have been submitted to SCC for approval for all site accesses (with the exception of Bridgwater A, Combwich and the HPC Emergency Access, which are currently being finalised). Detailed designs (scale 1:500) have also been submitted for the Cannington bypass and all Site Preparation highway improvement schemes (scale 1:250). Detailed designs have been prepared for all other highway improvements but have not yet been submitted to SCC, as it was our understanding that they were not in a position to consider them due to a lack of resources whilst the Site Preparation schemes were being considered and because they did not agree to the DCO traffic flows. A detailed response to the matters raised in relation to each of the highway improvement schemes is provided below.

General

Details of proposed Proposed cycle and walking improvements are

cycling and walking mitigation schemes

detailed on the DCO application plans. EDF Energy has also proposed a Section 106 contribution towards the implementation of other cycle and pedestrian improvements in Bridgwater. The indicative drawings provided at Appendix 13.1 of the Transport Assessment are not part of the DCO proposals and are just an indication of where the proposed contribution could be spent.

Highway proposals in DCO have not been evaluated using the latest agreed transport model

All highway improvements at junctions have been evaluated using the latest agreed model. The individual junction models were sent to SCC in April/May 2012.

EDF Energy have provided no modelling data for site access junctions

All of the site access junctions were included within the Paramics model that was submitted with the application and updated since. SCC has requested that the accesses are also assessed on an individual basis using the appropriate software such as LinSig, PICADY and ARCADY. This is not considered necessary, but EDF Energy now has provided this information to SCC for all accesses, with the exception of Cannington park and ride which will be submitted by 13 July 2012.

Drainage designs do not comply with safety audit requirements

SCC’s detailed concerns on drainage are not clear. Drainage proposals are shown on the engineering drawings (Ref. HPC_GEN124‐AS000‐DRW‐050001) submitted to SCC on 09.03.12. It is proposed to use the existing drainage ditch on the C182. There is a slight increase in impermeable area to the existing highway, but the existing ditch is considered sufficient to address this, without new drainage infrastructure. The drainage proposals are considered acceptable.

No turning facilities in advance of the security gate and as such bus only exit may not be enforceable

Any cars exiting the site would be able to turn around the proposed island and exit via the roundabout. They would not need to leave via the bus only exit.

HPC Main Site Campus

Junction with C182 should have adequate visibility splays. Alignment of junction should allow for two‐way

Adequate visibility splays are provided within the site boundary. Two‐way movements onto the C182 are accommodated in the proposed design. Vehicles can

movements on C182 turn left and right out of the site, whilst maintaining two‐way movements on the C182.

Requirement for an appropriate signage schedule

Signage for the access to the HPC accommodation campus off the Southern Roundabout are shown on Ref.HPC_GEN‐124‐RIRFC‐DRW‐000074 and HPC_GEN‐124‐RIRFC‐DRW‐000080, submitted to SCC.

Trip generation required for sports facilities and level of parking directly related to this

The HPC accommodation campus includes public access to the two proposed 5‐a‐side sports pitches, to include 16 parking spaces. Given the character of the surrounding area, within a predominantly rural context, there will be a relatively low level of public use. Therefore 16 spaces provided are considered appropriate. The trips associated with the limited public use of the sports facilities will be off‐peak and are considered to be negligible for the purposes of the Transport Assessment.

No details within the submission for the works proposed on the existing highway to construct the roundabout

Drawings HPC_GEN‐124‐RIRFC‐DRW‐000065 to 80 inclusive, submitted to SCC, show how the works would tie in with the C182. The C182 will remain in place for AILs.

Unclear what area to west of roundabout will serve.

This area will be used as the main site construction freight entrance.

Designs fail on drainage matters

Drainage proposals are shown.

Drawing HPC_GEN124‐AC‐000‐DRW‐050001.

The drainage scheme would use existing filter drains, as there would be a minor increase in the permeable area. The drainage proposals are considered acceptable.

Existing rugby club is within the red line implying that changes are proposed to the car park

No changes are proposed to the existing car park. This is clear from the DCO application drawings.

BRI C Campus

Concern that stacking available between the adopted highway and security gate

The area between the security gate and the adopted highway is sufficient to accommodate 4 cars. Security barriers would not be down during peak arrival hours. During this time, security guards would check passes and wave through workers with valid passes and escort those without valid passes on to the site and out again.

On this basis, there would be no stacking onto the adopted highway.

The works to the gyratory appear minimal with respect to accommodating bus stop and associated facilities.

Swept path analysis has been undertaken on the gyratory design and it is sufficient to accommodate the proposed works and allow vehicles to pass a stationary bus waiting at the bus stop.

No visibility splays have been indicated

Visibility splays are shown on Drawing ref. HPC_GEN124‐AC‐000‐DRW‐001001.

No details of vertical alignment have been provided

The DCO drawings (Ref HPC_GEN124‐AC‐000‐DRW‐001101) provide spot levels at the edge of the carriageway. It is not considered appropriate to provide a long section for a route that is only circa 6m in length.

No detailed drainage proposals shown

Drainage proposals shown on DCO drawing ref. HPC_GEN124‐AC‐000‐005001 and on detailed design drawing ref. HPC_GEN124‐AC‐000‐DRW‐050001.

Crossing facilities not acceptable. Tactile paving does not adhere to standard.

The crossing re‐produces the existing situation, but would be realigned. The tactile paving adheres to DETR guidance on the use of tactile paving surfaces.

Bus stop kerb detail does not accord with standard SCC detail.

The bus stop kerb detail could be revised to accord with SCC’s standard detail. Amended detailed engineering drawings will be submitted to SCC.

Use of accesses has not been defined.

The use of the three accesses is confirmed in the Bridgwater A Design and Access Statement. There is one principal access (opposite Frederick Road) and two secondary accesses. The secondary access to the north of the principal access would provide access to the sports facilities for the public, as well as being an emergency access. The third access would be via the existing entrance to the Bridgwater Sports and Social Club and would not be used during the operational phase and would be secured by a gate.

Confirm southern access is for emergencies only

The southern access would not be in daily use and would not be used during the operation of the Bridgwater Accommodation Campus.

BRI A Campus

Northern access should be modelled, including trip generation for the sports facility.

The accesses, including the northern access, have been included within the Paramics model submitted with the DCO. The Paramics model submitted with the DCO includes vehicle trips associated with the sports facility

(Transport Assessment, Chapter 8, paragraphs 8.2.92 to 8.2.95). SCC has requested detailed PICADY or LinSig models, as appropriate, for each of the junctions. These were issued by to SCC on the 5 July 2012, with the exception of the Trevor Road junction which will be issued by 20 July 2012.

The level of vehicle parking for the sports facility should relate to the number of vehicle trips generated.

30 spaces are proposed based on a usage of 50 to 60 people. This is considered a reasonable level of provision given the accessibility of the site.

Local distributor roads should have a minimum junction spacing of 100m when on the same side of the carriageway. The proposed spacing is 80m.

The proposed spacing is 115m, when taken from the centre line of each access which is the appropriate place to take the measurements from.

The impact of the Frederick Road closure on the junction of Trevor Road has not been considered in the DCO submission. Further investigation should be undertaken.

The impact of the Frederick Road closure to vehicles has been considered and included within the Paramics model. This has shown no problems in the operation of the Trevor Road junction due to the closure. This could be supplemented by a PICADY analysis of the impact on re‐assigned traffic using Frederick Road if required by SCC.

The main site access requires a LinSig model.

The main access has been modelled in the Paramics model submitted with the DCO. The LinSig model for this junction was submitted to SCC in July 2012.

Concerns about lack of stacking space between the A39 and security gate.

The area between the security gate and traffic island is sufficient to accommodate circa 13 cars. Security barriers would not be down during peak arrival hours. During this time, security guards would check passes and wave through workers with valid passes.

DCO application is lacking a plan of loops that will be required to activate signal controlled junction.

Loops will be shown on the engineering drawings which have been prepared and can be submitted to SCC. The detailed designs have not been issued to SCC as EDF Energy was awaiting confirmation that SCC were happy with the outputs of the LinSig model, before issuing detailed drawings. SCC is to confirm whether

they agree the LinSig model for the junction.

Track plots are also required

Tracking has been carried out, but not submitted to SCC. These demonstrate that vehicles can manoeuvre into and out of junction without obstruction.

No turning facilities between the highway and security gate, but a drop‐off/pick‐up layby is provided.

Sufficient turning space. This is demonstrated on the track plots to be submitted. If necessary those without valid passes would be escorted on to the site and out again.

ASLs will be provided on 2 of the 3 approaches

Advanced Stop Lines are only provided where there are right‐turning cyclists present.

Toucan crossing indicated for provision in Chapter 13 of the TA, but not shown on the drawings

A toucan crossing is not proposed. This is an error in Table 13.20 of the Transport Assessment. The scheme provides on road cycle facilities for cyclists travelling from either direction along Bath Road. A toucan crossing would only be provided to cater for cyclists accessing the site from Frederick Road. The amount of cycle trips that can be expected between the Bridgwater A accommodation campus and Frederick Road would be very low. Pedestrian facilities are provided in this location and therefore, for the very few cyclists who would be accessing the site from this direction, they could dismount and use the pedestrian crossing facilities.

SCC would expect on‐slip to be provided for cycles from the unclassified highway

This would only make sense if a toucan crossing with an off‐carriageway cycleway were proposed, which does not form part of the DCO proposals, for the reasons given above.

The DCO submission lacks detail.

The application was of sufficient detail to determine the design of the highway scheme for planning purposes. The detailed designs have not been issued to SCC as EDF Energy was awaiting confirmation that SCC were happy with the outputs of the LinSig model, before issuing detailed drawings. Detailed design drawings have been prepared and will be submitted to SCC by 7 August 2012.

It may not be possible to accommodate the necessary infrastructure works within the red line

The site boundary is sufficient to accommodate all infrastructure works proposed. The DCO does not include minor kerb realignment

boundary. works related to the closure of Frederick Road,

requested by SCC. SCC was concerned that vehicles

might seek to drive across the existing kerbs. This

could either be prevented by the works proposed to

the kerb (outside of the red line), or by additional

signage. Both could be dealt with outside of the DCO,

via S278 agreements.

Works comprising a raised grassed verge with a pedestrian link across it are included within the DCO, to physically prevent vehicular traffic from turning into Bath Road from Frederick Road, or driving from Frederick Road across Bath Road into the new access to be created into the Bridgwater A site.

Plans fail on drainage matters

SCC does not state how the proposals fail. Drainage proposals are shown on DCO drawing ref. HPC_GEN124‐J3‐000‐DRW‐005002. The proposal is to connect to existing highway drainage. Run‐off is attenuated in ditches and would be discharged into the existing gully. The proposal results in no additional discharge.

Plans fail on safety grounds associated with change in speed limit off roundabout.

A change in speed limit is proposed from 50mph to 30mph. This is quite normal at roundabouts and other examples exist in Somerset, e.g. the change in speed limit from 60mph to 30mph at the Cannington Main Road roundabout.

The induction centre should be signed properly.

On‐site signage is shown on submitted drawing ref. HPC_GEN124‐J3‐000‐DRW‐012002. Specific wording for the induction centre signage is to be determined, although EDF Energy would ensure that the internal site is operated safely and signed appropriately. Any required off‐site signage would be agreed, as appropriate, with SCC.

The ‘escape’ west of the roundabout should be in front of the gates, to allow vehicles who are on site in error to exit the site.

The ‘escape’ route is for emergency evacuation of the site in case breaches in floor defences preventing use of the exit road. Vehicles entering the site in error can drive through the gates and turn before they get to the security barrier. The gates referred to by SCC are lockable barriers that would only be closed during Christmas and exceptional circumstances, such as protest situations.

J23 Park and Ride and Freight Logistics Centre

There does not appear to be sufficient space for

There is sufficient space for HGVs to U‐turn in front of the barriers. During very busy periods where this

HGV traffic to turn and exit through the barriers.

may not be possible, HGVs entering the site in error would be escorted on to the site and out again.

Explore whether modelling demonstrates a need to reallocate lane space at existing A38 roundabout.

The model submitted with the DCO does not show any requirements to alter the A38 roundabout other than to facilitate access to the site. The highway mitigation proposals related to North East Bridgwater were included within the EDF Energy model for completeness, however the model demonstrates that the works are not necessary in connection with EDF Energy’s proposals.

There is little consideration for pedestrian and cycle facilities in the scheme.

The scheme includes a combined footpath/cycleway which is shown on the DCO drawings ref. HPC_GEN124‐J3‐000‐DRW‐001001, 012002 and 012003. This links the roundabout with the internal site. If SCC considered that further improvements were required to the existing pedestrian and cycle facilities along Bristol Road, this could potentially be funded by EDF Energy’s proposed Section 106 contribution towards walking and cycling improvements. All works proposed can be accommodated within the site boundary.

Existing footway/cycleway on the A39 should be continued into the site Layout of footpath/cycleway does not follow desire line

The proposed DCO drawings show the footway/cycleway continuing into the site. At the site entrance it is 3.5m, narrowing to 2.5m when it is within the site. This is a sufficient width for a shared footway/cycleway. The footway/cycleway follows the line of the internal access road, which is considered appropriate.

No justification for why new access from Dunball Wharf is left‐in, left‐out only

This was provided following a request from SCC early on in the consultation process that they did not want right‐turning vehicles in to or out of the access road from the Wharf as it may impact traffic to/from the park and ride and the roundabout.

Entry width of roundabout is indicated at 6.6m which may be tight

Swept path analysis has been undertaken which shows that vehicles can access/egress without obstruction. Tracked plots will be submitted to SCC.

No proposed vertical alignment has been provided.

Spot levels have been provided. EDF Energy will provide vertical alignment drawings to SCC.

Combined The submitted drawings (ref. HPC_GEN124‐J3‐000‐

footpath/cycleways have not been indicated across the Dunball Wharf access or freight access.

DRW‐007001) show dropped kerbs, tactile paving and signage at crossing points.

What is the proposed additional arm off of the internal roundabout?

This is to serve permitted development at a site adjacent to the facility. There is some discussion over whether the permission previously granted on this site has been implemented; however the principle of development on the site has in any case been established and the DCO access proposals have been designed so as not to prejudice this coming forward.

Gully connections should not exceed 15m in length.

Relatively minor changes need to be made to the detailed drainage layout to ensure that gully connections do not exceed 15m in length. Amended plans will be submitted to SCC.

An FRA should be provided.

A Flood Risk Assessment for the proposed J23 park and ride site was submitted with the DCO application.

Signs have been shown but the system is not comprehensive

A signage scheme was submitted with the DCO proposals (ref. HPC_GEN124‐J3‐000‐DRW‐012002 and subsequently enhanced on detailed design drawing HPC_GEN124‐J3‐000‐DRW‐120002.) These are for internal signs and it is EDF Energy’s responsibility for ensuring safe movement within the site. Any required off‐site signage would be agreed, as appropriate, with SCC.

Comments on detailed specification appendices which were submitted to SCC with detailed design drawings

These comments relate to the detail of technical specifications submitted to SCC and would be addressed and included in the next revision of the specification to be issued to SCC. They do not raise material concerns and do not alter the highway designs submitted for approval as part of the application.

Street furniture and highway features must be maintained unless agreed otherwise in writing with Highway Authority

Detailed site clearance drawing submitted to SCC shows street furniture to be removed. This is accepted and a clause will be added to the technical specification that makes it clear that Highway Authority approval is required before removing street furniture not already identified for removal on approved drawings.

Detailed engineering drawing 010401 missing

This drawing will be submitted to SCC.

from submitted bundle

Gully locations should be upstream of all crossing points

Detailed design drawings to be reviewed and amended if required and submitted to SCC.

No details provided of petrol interceptor

Performance requirements are included in Appendix 25/6 of specification. Detailed engineering drawing showing typical detail will be submitted to SCC.

Existing carriageway to be broken up beneath sub‐base

A note will be added to detailed drawings. Amended detailed engineering drawings to be submitted to SCC.

Bus stop kerb detail does not accord with standard SCC detail

The bus stop kerb details can be revised to accord with SCC’s standard detail. Amended engineering drawings to be submitted to SCC.

Street lighting has not been considered in detail

Street lighting has been considered in detail DCO drawing (ref. HPC_GEN124‐J3‐000‐ 013002) and in lighting design report submitted as part of technical submission. Interaction of existing lighting at Dunball Roundabout circulatory carriageway however is not shown and details will be submitted to SCC.

Plans do not show how the space previously used by induction centre will be used upon relocation to J23 park and ride.

This space will not be used during the operation of the Junction 24 facility after the facility has moved to Junction 23. This is confirmed in the Junction 24 Design and Access Statement submitted with the DCO.

Main access is confusing in its layout

This is an existing layout and no changes are proposed, however, signage and road markings are proposed to make this clearer to EDF Energy vehicles. This is shown on DCO drawing ref. HPC_GEN124‐J3‐000‐DRW‐012001 and 012003.

Vehicle track plots are required to demonstrate HGVs can make 180 degree turn

This is an existing site with existing HGV access and no changes are proposed. However swept path analysis can be provided.

Adequate visibility splays will need to be shown for secondary access road.

This is an existing access and visibility is as existing. The level of traffic using this access (a small level of parking for the induction centre) is significantly below what was previously associated with the site.

J24 Park and Ride/Freight Logistics Centre

Does not appear to be sufficient stacking between highway and control point.

The control point is located further into the site. The existing gates are shown closer to the highway, although these would only be closed in exceptional circumstances, such as protest situations.

Apparent conflict with commencement of left slip lane an existing field access. Clarification why access is being retained. Is not a location where an access would be required in the future.

The existing field access is proposed to be retained to allow access to the site once it is no longer required by EDF Energy and is returned to agricultural use. The submitted DCO drawings (ref. HPC_GEN‐124‐PC‐000‐DRW‐000101) make it clear that the access would only be used to allow access to the highway works construction site and thereafter maintained for emergency access only. Once the site is returned to agricultural use, the access would be again available for use in connection with the agricultural operation, to serve as a crossing point with the field opposite, which also has a field access gate in this location. The site would be gated and closed during the operation of the park and ride.

The plans indicate that TROs will be required to enforce signage shown, although these may not be necessary if the alignment offers no alternative.

The alignment does not offer an alternative and as such EDF Energy agree that TROs would not be necessary.

The drop‐off area is set away from the bus stop. This may lead to a conflict with the access road.

People accessing the site would use the proposed footpath to move from the drop‐off area to the bus stops.

There is a crossing provision for cyclists immediately opposite the access, however this may not be appropriate without other measures being put in place. Applicant to confirm cycle route proposals to connect with this crossing.

A refuge is proposed to the south of the A39 to enable people who have cycled to the site to safely dismount and cross the A39 into the site. No formal cycleway or facilities are proposed, the facility is simply there to enable cyclists to access the site without making a right turn across the carriageway. EDF Energy considered providing a combined footpath/cycleway, although there was insufficient space to provide this along the A39 without significantly impacting on areas of verge which support slow worms. On balance, and given the relatively low levels of people likely to be accessing the site by cycle, it was determined that the cycleway would not be provided due to the ecological impact. This is explained in the Environmental Statement Volume 6, Chapter 6.

Cannington Park and Ride

Clarification required as This is a crossing point for cyclists – refer to response

to the reason for short section of footpath opposite site entrance

above.

Apparent conflict between commencement of the left slip lane and existing field access to the west of the park and ride entrance

The existing field access would be closed during operation of the park and ride and would only be used in emergencies.

Existing ditch will require realignment

The ditch is proposed to be culverted. This is shown in the drainage drawing submitted with the DCO (Ref. HPC_GEN‐124‐PC‐000‐DRW‐005001). The ditch is to be culverted using a 375mm diameter pipe and therefore an Approval in Principal as applied to highway structures is not required.

Proposals appear to indicate a footway from the site entrance eastwards, although the extent is not clear

The full extent of the footway is clear from the general arrangement plan and proposed surface finishes plan submitted with the DCO (Refs. HPC_GEN‐124‐PC‐000‐DRW‐001001 and 007002).

At entrance, cycleway/footway narrows to 2m without clearance strip. No proposals for cycleway.

The proposed 2m combined footway/cycleway is adjacent to the non‐adopted access road proposed, which is considered an appropriate width for a combined footway/cycleway off the public highway.

Section AA shows a verge on both sides, whereas the plan shows a footway on the right hand side

Detailed engineering drawing ref. HPC‐GEN124‐PC‐000‐DRW‐013001 has incorrectly labelled the footway as a verge. This drawing will be resubmitted to SCC.

Concerned about limited verge wider at the back of footpath

Verge width is 0.5m wide. This is considered sufficiently wide to satisfy safety concerns.

Signage detail required On‐site signage is shown on drawing ref. HPC‐GEN124‐PC‐000‐DRW‐012001. Specific wording for all signage is to be determined, although EDF Energy would ensure that the internal site is operated safely. Any required off‐site signage would be agreed, as appropriate, with SCC.

Lighting details to be agreed

Details of street lighting drawing ref. HPC‐GEN124‐PC‐000‐DRW‐013001 and 013002 and subsequent technical details.

Sufficient information has been provided to enable the lighting details to be considered and approved.

Appendix 7/1 includes an option for concrete – this is not acceptable on the highway

Such a solution is generally considered acceptable, where the new carriageway works are less than 1m in width and where there is a particular need to avoidisruption on the existing carriageway. Providing tarmac would require cutting into the existing road and is not considered necessary or desirable due to the disruption this would cause. Using concrete avoids this and is acceptable to satisfy the safety audit.

d

A detailed audit report is available from SCC which provides substantial detailed comments on the inadequacy of the proposed design in terms of drainage and strategy.

EDF Energy has requested this report from SCC, but SCC has advised the report is not finalised and cannot be provided at this time. It is difficult to comment on the concerns without the detail, however, in terms of drainage, SCC has raised comments directly with EDFE and a response was provided in August 2011. It was EDF Energy’s understanding that the comments provided had responded to SCC’s concerns and there were no outstanding drainage matters to be addressed. The drainage and crossfall proposed are considered adequate and meet the HA’s standards.

The vertical alignment does not conform to standard.

The vertical alignment proposed conforms with the HA’s standards (ref. TD 9/93).

Cannington Bypass

Non‐motorised user audits are required to ensure inclusive mobility is designed in the scheme.

This has not yet been prepared, but will be done and submitted to SCC by 7 August 2012.

Huntworth Roundabout

DCO Proposals fail to take into account committed development proposals

The scheme provides sufficient mitigation for the impacts of the HPC Project. Bridgwater Gateway trips were not included within the modelling as the scheme was not permitted at the time that the model was submitted. We have provided the Bridgwater Gateway developers with the movements associated with the HPC Project at this roundabout, so that they can take these into account when designing any mitigation associated with their scheme.

Southern C182 Contradictory The 3‐arm arrangement is proposed to be in place

roundabout information is shown on DCO drawings. One arrangement shows 3 arm and one shows 4 arm.

post‐operation of the HPC accommodation campus, after it has been removed. The 4‐arm arrangement is during operation of the HPC accommodation campus. This is clear from the drawing titles of the submitted DCO drawings.

Vehicle search area layby

The DCO plans raise key safety issues as the turning head is too small should the gates be kept shut

Swept path analysis has been undertaken which shows that HGVs can turn without obstruction. EDF Energy will provide tracked plots to SCC.

Unclear why 7.9m carriageway width on the site access

This is to enable large HGVs to manoeuvre into the site without obstruction. This is required as it is to be used to access the freight area.

No vertical alignment provided

Longitudinal sections were provided as part of the drawings submitted to SCC for technical approval, submitted in March 2012.

No drainage proposals shown

Drainage proposals were provided as part of the drawings submitted to SCC for technical approval, submitted on March 2012.

What extent of adoption proposed?

The limit of adoption is shown on the detailed site layout engineering drawings (Ref. HPC_GEN‐124‐RIRFC‐DRW‐000065).

Footpath does not appear to be continuous between campus access and roundabout

The footpath is continuous through the campus site and is located to the western side of the roundabout.

What is the benefit of a footway when there is no provision on the C182.

The proposed footway would connect to the existing PRoW network adjacent to the C182.

HPC site

Concern over visibility for pedestrian’s emerging from access

Adequate space for visibility splays for pedestrians have been provided within the site boundary.

Bristol Road/The Drove

Further design amendments required to provide for pedestrians and cyclists

EDF Energy submitted amended plans in March 2012 to address concerns previously raised by SCC. It is considered that the proposals, as submitted, are acceptable and that further changes are not required.

Wylds Road/The Drove

Further design amendments required to provide for pedestrians and cyclists

EDF Energy submitted amended plans in March 2012 to address concerns previously raised by SCC. It is considered that the proposals, as submitted, are acceptable and that further changes are not required.

Taunton Further design EDF Energy submitted amended plans in March 2012

Road/Broadway amendments required to provide for pedestrians and cyclists

after lengthy discussions with SCC to address previous concerns. It is considered that the proposals, as submitted, are acceptable and that further changes are not required.

Street lighting details will need to be considered further

Detail of street lighting has been submitted as part of the DCO (ref. HPC_GEN015‐PW‐000‐DRW‐013001) and subsequent technical details. Sufficient information has been provided to enable the lighting details to be considered and approved.

No advance direction signs shown for the facility.

Any required off‐site signage would be agreed, as appropriate, with SCC.

Williton park and ride

The proposed limit of the highway is not defined

The proposed development is on the site of an existing storage depot and lorry park. The limit of the highway is not changing and would remain as existing.


APPENDIX 5

POSITION STATEMENT: HUNTWORTH IMPROVEMENTS







11011/N252 11 July 2012

Position Statement: Huntworth Improvements

Introduction

1. EDF Energy proposes to implement highway improvements to the Huntworth Roundabout

junction, adjacent to the Junction 24 associated development site, at Junction 24 of the M5.

2. EDF Energy’s proposals at Huntworth Roundabout include the following (see drawing HPC‐

improved pedestrian facilities at the service station access arm (access in to the

of the Huntworth Lane approach from the M5, to provide three

A38 North

3. The Implementation Plan submitted on 9 July 2012, as part of EDF Energy’s response to

r 3

4. The construction works for the proposed Junction 24 facility, are programmed to commence

5. The Junction 24 facility would be phased and prior to the site becoming fully operational an

6. The consented land use at the Somerfield site comprised some 22,000 m GFA of B1 Office

7. The HPC workforce during 2013 when the interim facility is operational is modest and there

NNBPEA‐AD‐000‐REP‐000039):

EDF Energy site);

localised widening

lanes at the give way (through amendments to white lining); and

the provision of three lanes for traffic exiting the roundabout onto

(through amendments to white lining).

Question 1.1, confirms that these proposed works are scheduled to commence in Quarte

2013 (4 months after DCO consent is granted) and last for approximately 1.5 months. They

would therefore be completed by the end of 2013.

in Quarter 2 2013 and are anticipated to be completed in seven months , i.e. to be open at

the beginning of 2014. Therefore, EDF Energy’s proposed improvements at Huntworth

would be in place prior to the Junction 24 facility becoming fully operational.

interim park and ride facility would be provided to cater for the ‘early years’ workforce (as

indicated in the response to Question 1.3 submitted on 9 July 2012).

2

and B8 Warehouse/ Storage and Distribution use and as such would have generated a

significant level of trips on the highway network. This would be expected from any such

regional distribution centre. Data obtained from a planning application submitted by

Somerfield indicates that the former site generated approximately 950 car movements and

650 HGV movements per day.

is no requirement for a freight management facility. Therefore, the traffic generated by the

interim use would be far lower than the traffic generation associated with the former

Page: 2

ies.

8. roundabout a resolution to grant has been given for a scheme

known as Bridgwater Gateway, comprising B class uses, hotel, pub/restaurant and petrol

9. significant improvements to Huntworth roundabout (Appendix

9 of the Bridgwater Gateway Transport Assessment). The main feature of the works is

10. and the associated

improvements to Huntworth, Somerset County Council would have taken account of the

11. Gateway developer’s transport

consultant the traffic flows from the agreed paramics model (model 05) on 5 April 2012. It is

12. re likely to be

completed in around six months, i.e. in Quarter 2 2013, well before any increase in demand

13. s that the

Bridgwater Gateway scheme proceeds as envisaged in which case no further works are

Somerfield distribution centre, during the peak periods and across the day. Therefore no

highway improvement works are required during the interim use of the Junction 24 facilit

To the north of Huntworth

filling station.

Part of the scheme comprises

signalisation of three arms of the roundabout. The developers have advised that they

propose to start construction of the improvement in autumn 2012; and the detailed design is

with Somerset County Council for approval.

It is assumed that in considering the Bridgwater Gateway scheme

traffic generation of the HPC Project.

To assist in analysis, EDF Energy sent to the Bridgwater

therefore assumed that the detailed design incorporates those flows and can cater for the

HPC development traffic as well as the Bridgwater Gateway traffic.

If the major Huntworth roundabout improvements proceed as envisaged they a

from full use of the Junction 24 facilities. As stated above, no improvements are required to

cater for the interim use of the Junction 24 facilities.

Based on the above there are two potential scenarios. Scenario 1 assume

required and EDF Energy’s scheme would not be implemented. However, if there are

significant delays to implementation of the major improvements such that they would not be

completed until well into 2014 then EDF Energy’s scheme could be implemented as an

interim measure.


Part 2

LEGAL SUBMISSION IN RELATION TO ISSUES ARISING FORM THE ISSUE

SPECIFIC HEARING OF 26/27 JUNE 2012







10/38427577_2 1

NNB GENERATION COMPANY LIMITED

THE PROPOSED HINKLEY POINT C (NUCLEAR GENERATING STATION) ORDER

APPLICATION REFERENCE: EN010001

LEGAL SUBMISSION IN RELATION TO ISSUES ARISING FROM THE

ISSUE SPECIFIC HEARING OF 26/27 JUNE

12 July 2012

Herbert Smith LLP

10/38427577_2 2

CONTENTS

1. INTRODUCTION .......................................................................................................... 3

2. RESPONSES TO QUESTIONS 27, 27A, 27B, 75 AND RELATED ISSUES .......................................................................................................................... 4

3. APPROPRIATENESS OF COMPENSATION IN RESPECT OF THE LIFTING OF THE SECTION 33 LG(MP)A RESTRICTION ON BRIDGWATER C........................................................................................................ 17

4. INTERACTION BETWEEN THE DEVELOPMENT CONSENT ORDER AND EXISTING PLANNING PERMISSIONS ......................................................... 21

5. CLARIFICATION IN RELATION TO THE POST-OPERATIONAL STRATEGY ................................................................................................................. 28

6. CLARIFICATION OF THE ENDURANCE OF THE CLEARWAY UNDER THE DCO ...................................................................................................... 36

7. APPROPRIATENESS OF IMPOSING RESTRICTIONS VIA MARINE LICENCE CONDITIONS RATHER THAN DEVELOPMENT CONSENT ORDER REQUIREMENTS ..................................................................... 37

10/38427577_2 3

1. INTRODUCTION

1.1 This submission provides a written response to the legal issues that were discussed at the first Issue Specific Hearing on 26 and 27 June 2012, as requested by the Panel. It includes:

1.1.1 EDF Energy's responses to questions 27, 27a, 27b, 75 in the Examining Authority's letter dated 14 June 2012 and related issues (Section 2);

1.1.2 EDF Energy's view on the appropriateness of compensation in respect of the lifting of the section 33 LGMPA restriction on Bridgwater C (Section 3);

1.1.3 information on the interaction between the development consent order (DCO) and existing planning permissions (Section 4);

1.1.4 clarification in relation to the post-operational strategy (Section 5); and

1.1.5 clarification of the endurance of the clearway under the DCO (Section 6).

1.2 In addition, this submission provides EDF Energy's response to an issue raised in the Marine Management Organisation's (MMO) representation dated 5 July 2012 in respect of the appropriateness of imposing restrictions via marine licence conditions rather than DCO requirements (Section 7).

1.3 A separate submission dealing with the drafting of the DCO has also been submitted by EDF Energy at the same time as this submission.

10/38427577_2 4

2. RESPONSES TO QUESTIONS 27, 27A, 27B, 75 AND RELATED ISSUES

1. INTRODUCTION

1.1 This section of the legal submission addresses Questions 27, 27a, 27b and 75 covered at the Issue Specific Hearing, together with related legal questions that were raised during the Examination.

1.2 This section also responds, where relevant, to the written submissions contained in the further document submitted by the Councils on 5 July 2012 entitled The Councils objection to the abrogation of the site preparation works reinstatement requirements and obligations.

2. QUESTION 27

Article 2A deals with the effect of the DCO on the site preparation planning permission. Article 2A(1) provides that, on service of a notice by the applicant, all the conditions of the site preparation permission shall cease to have effect. That permission is subject to an s106 agreement, which requires the applicant to make financial contributions, to be triggered by the "Phases" of the authorised development. Clause 1 of the agreement defines these "Phases" by reference to Condition G4 of the planning permission.

If Condition G4 ceases to have effect, how is the s106 agreement to be interpreted? Will its financial provisions continue to be effective?

2.1 Clause 9.2 of the site preparation works section 106 agreement provides that if the DCO is granted for development that includes the site preparation works, then the provisions of the section 106 agreement will continue to apply as if such development authorised by the DCO were the development authorised by the site preparation works planning permission.

2.2 In other words, there is a "read across" from the DCO: the section 106 agreement is to be interpreted as if the DCO works were in fact authorised by the site preparation works planning permission. This operates as a deeming provision and therefore is not affected by the site preparation works permission ceasing to have effect.

2.3 On that basis, all references to Condition G4 will remain effective. No further drafting is necessary to ensure that financial provisions in the section 106 agreement will continue to be effective following a notice served pursuant to Article 2A(1) of the DCO.

2.4 Furthermore, the definition of "Phase" in the section 106 agreement refers to a phase of the Development "as determined pursuant to Condition G4". The Phases have already been determined pursuant to that condition; the fact that Condition G4 ceases to have effect does not prevent the simple identification of works by reference to that phasing as determined.

2.5 EDF Energy therefore does not consider it necessary that Condition G4 should be "kept alive" following the service of a transitional notice.

2.6 Two amendments are nevertheless proposed to be made to the DCO section 106 agreement following further discussions at the Issue Specific Hearing on this issue:

2.6.1 the definition of "Phase" will incorporate the table appearing in Condition G4 in full, rather than cross-referring to the Site Preparation Works Permission; and

10/38427577_2 5

2.6.2 a new clause 2.2 and a new clause 2.3 will be added to the agreement as follows:

2.2 The parties agree that by virtue of clause 9.2 of the Site Preparation Works Section 106 Agreement, for the purposes of interpreting the obligations contained in the Site Preparation Works Section 106 Agreement following the grant of the Development Consent Order, the provisions of the Site Preparation Works Section 106 Agreement shall apply as if the Site Preparation Works authorised by the Development Consent Order were authorised by the Site Preparation Works Permission.

2.3 The parties further agree that the effect of clause 9.2 of the Site Preparation Works Section 106 Agreement includes that the obligations in the Site Preparation Works Section 106 Agreement shall apply to the carrying out of the Site Preparation Works whether pursuant to the Development Consent Order or pursuant to the Site Preparation Works Permission.

2.7 This drafting has been agreed with Pinsent Masons on behalf of the Councils.

3. QUESTION 27A

Article 2A(6) of the draft DCO provides for the abrogation of Schedule 17 of the s106 agreement. It has been put to us that the use of the DCO in this way would be ultra vires (see Question 75 below). However, Article 6A(2) of the applicant's proposed revisions to the draft DCO seeks to overcome this by disapplying s106A and s106B of the 1990 Act.

How is proposed Article 6A(2) to be justified?

3.1 As in the oral answer provided at the Issue Specific Hearing, EDF Energy will answer this question in two parts: the legal justification for Article 6A(2); and the substantive justification.

Legal justification

3.2 Section 106A(1) of the Town and Country Planning Act 1990 (TCPA) provides that a planning obligation may not be modified or discharged except by agreement between the appropriate authority and the person or persons against whom the obligation is enforceable, or in accordance with section 106A and section 106B.

3.3 EDF Energy accepts that this effectively provides a prima facie statutory prohibition against the variation of section 106 agreements in circumstances where the proposed variation is not agreed by the parties to the agreement and the section 106A procedure is not available because less than five years has expired since the agreement was entered into.

3.4 Nevertheless, section 120(5)(a) of the Planning Act 2008 provides that a DCO may modify or exclude certain statutory provisions. EDF Energy is therefore seeking to utilise that power to disapply sections 106A and 106B to the extent that they would otherwise prohibit the abrogation of Schedule 17 to the site preparation works section 106 agreement. The same power is also sought to be utilised to permit the modification of the North East Bridgwater section 106 agreement (see sub-section 6 below).

10/38427577_2 6

3.5 Section 120(5) provides that: "an order granting development consent may (a) apply, modify or exclude a statutory provision which relates to any matter for which provision may be made in the order".

3.6 Section 120(3) states that: "an order granting development consent may make provision relating to, or to matters ancillary to, the development for which consent is granted."

3.7 It follows that, provided:

3.7.1 the proposed modification of the site preparation works section 106 agreement is a matter "for which provision may be made in the order" because it is a provision "relating to or ancillary to the development for which consent is granted"; and

3.7.2 the statutory provisions set out in sections 106A and 106B "relate to" that matter,

then Article 6A(2) will be in compliance with the Planning Act 2008.

3.8 Sections 106A and 106B clearly "relate to" the modification of a section 106 agreement, so proviso 2 above is easily satisfied.

3.9 In relation to proviso 1, the purpose of EDF Energy's proposal to abrogate Schedule 17 is to remove the security arrangements for the reinstatement of the site preparation works in circumstances where the underlying reinstatement obligations set out in conditions R1, R2, R3, R4, R5 and R6 of the site preparation works permission have been disapplied. This will occur upon the transition date, when the site preparation works will cease to be carried out under that planning permission and will instead be carried out under the development consent order: see Article 2A.

3.10 The site preparation works form part of the development for which consent is to be granted by the Order. Whether those works need to be reinstated, and whether security should be provided for that reinstatement, therefore relates to, or alternatively is ancillary to, the development for which consent is granted.

3.11 Accordingly, the proposed modification of the section 106 agreement to disapply security arrangements for the reinstatement obligations is a matter for which provision may be made in the order and proviso 1 above is also satisfied.

3.12 Section 120(4) of the 2008 Act states that: "the provision that may be made under subsection (3) includes in particular provision for or relating to any of the matters listed in Part 1 of Schedule 5." The modification of section 106 agreements is not specifically listed in Part 1 of Schedule 5. However, it is clear from the use of the phrase "includes in particular" in section 120(4), that Schedule 5 is not an exhaustive list of matters for which provision may be made in a DCO. Section 120(4) should not, therefore, be interpreted as constraining the scope of the power set out in section 120(3) to make provision relating to, or to matters ancillary to, the development for which consent is granted.

3.13 In any case, paragraph 3 of Part 1 of Schedule 5 lists "the abrogation or modification of agreements relating to land" as one of the matters "in particular" for which provision may be made under section 120(3). A section 106 agreement is an agreement relating to land, as is evident from section 106 itself, which provides that a planning obligation may only be entered into by a person interested in land and will bind his interest in that land. Planning obligations may, inter alia, restrict the development or use of land, require specified operations or activities to be carried out in, on, under or over the land, or require the land to be used in any specified way.

10/38427577_2 7

3.14 EDF Energy does not agree with Innovia's submission that because planning obligations may be entered into unilaterally, this means they cannot be categorised as "an agreement relating to land". A planning obligation entered into by a landowner unilaterally will still contain an agreement by the landowner, which is binding on his land, to restrict that land, to carry out operations on the land and/or to use the land in a specified way. The landowner's agreement to such matters is enforceable by the local planning authority pursuant to section 106(3) and indeed the local planning authority will be a party to the planning obligation in order to take the benefit of the landowner's agreement.

3.15 In any event, the argument is irrelevant in this case because: (1) both the site preparation works section 106 agreement and the North East Bridgwater section 106 agreement were, in fact, entered into by agreement and were not unilateral obligations; and (2) the power under section 120(3) is not limited to the specific matters set out in Part 1 of Schedule 5 for the reasons set out above.

3.16 EDF Energy was asked during the Issue Specific Hearing whether the Planning Act 2008 gave power to modify or abrogate a section 106 agreement retrospectively, since this would affect the existing rights of the parties to that agreement.

3.17 It is apparent from paragraph 3 of Part 1 of Schedule 5 to the 2008 Act that provision may be made in an Order under section 120(3), inter alia, for the abrogation or modification of agreements relating to land. This can only relate to existing agreements and therefore, by definition, section 120 must authorise abrogations or modifications with retrospective effect. The provision would otherwise not make sense or be capable of being given legal effect.

3.18 The issue of Parliamentary intention was also raised during the Issue Specific Hearing and in the Councils' subsequent written submissions. Caselaw has established that referring to Parliamentary material as an aid to statutory construction should only be permitted where: (a) the relevant legislation is ambiguous or obscure, or leads to an absurdity; (b) the material relied upon consists of one or more statements by a Minister or other promoter of the Bill together if necessary with such other Parliamentary material as is necessary to understand such statements and their effect; and (c) the statements relied upon are clear (see Pepper v Hart [1993] AC 593 per Lord Browne-Wilkinson at 640).

3.19 Section 120(5) of the Act is neither ambiguous nor obscure, nor does it lead to an absurdity. It is perfectly clear, for the reasons set out above, that a statutory provision relating to any matter for which provision may be made in the Order may be modified or excluded. There is accordingly no need to refer to Parliamentary material to construe the legislation.

3.20 EDF Energy nevertheless notes from the extracts from Hansard contained in the Councils' written submissions that the overwhelming concern debated in Parliament was the exercise of this power by the Infrastructure Planning Commission (IPC) as an unelected body. That is not relevant here because the power will be exercised by the Secretary of State and will be contained in a statutory instrument. The Government's position was that section 120(5) was not liable to the "Henry VIII implications" feared by the Councils. Indeed, the Councils can take comfort from the statement made by Lord Adonis on behalf of the Government at the House of Lords Report Stage that an application to use this power "should be considered in a public examination with all interested parties and members of the public having the right to make representations" to the Secretary of State. That is exactly what is happening now. Far from being an "abuse" of section 120(5) as suggested

10/38427577_2 8

in the Councils' written submissions, the proposed exercise of the power is both lawful and necessary to enable the project to proceed as expeditiously as possible.

3.21 Finally, it should be noted that if a section 106 agreement could not be modified in this way, it would allow collusion between a landowner and local planning authority opposed to a nationally significant infrastructure project (NSIP) to enter into such an agreement in order to prevent the project from proceeding, without the promoter being able to do anything to overcome this during the DCO process. Whilst we would emphasise that the issue of collusion does not arise in this case, if the principle contended for by the Councils were to be accepted by the Secretary of State it would set a dangerous precedent, since it would hand objectors in other cases a device by which they could irrevocably block an NSIP from being delivered.

Substantive justification

3.22 Schedule 17 provides security for the reinstatement obligations imposed by conditions R1, R2, R3, R4, R5 and R6 of the site preparation works planning permission.

3.23 The site preparation works will, however, be governed by the Order following the service of a transitional notice pursuant to Article 2A(1). The Order does not contain any reinstatement obligations in relation to the site preparation works.

3.24 It would be illogical, therefore, for the security arrangements set out in Schedule 17 to the section 106 agreement to continue when the obligations which they are intended to secure no longer exist.

3.25 Accordingly, EDF Energy considers that the abrogation of Schedule 17 to the section 106 agreement is justified.

3.26 EDF Energy has explained its reasons for seeking to disapply the site preparation works reinstatement obligations in the Planning Statement submitted with the application for development consent and in subsequent representations. Briefly, maintaining the site preparation works reinstatement obligations would be inappropriate following the grant of the Order for the following reasons:

3.26.1 The site preparation works were applied for in advance of the Order on the basis that they would be removed and the affected land restored to its previous condition if no Order was granted in due course. The site preparation works were justified on the basis that they formed part of the larger new nuclear project and were not an independent scheme in their own right.

3.26.2 The reinstatement obligations therefore only exist because EDF Energy chose to bring forward the site preparation works as an advance planning application, on risk, in order to be able to deliver the project earlier than would otherwise be possible.

3.26.3 It follows that those obligations should be removed once the Order is granted and the site preparation works cease to be an independent scheme but instead form part of the larger project.

3.27 EDF Energy does not believe it to be necessary or appropriate for the project simply to "inherit" the reinstatement and security obligations from the site preparation works permission and section 106 agreement, because they were negotiated in the unique context of the standalone site preparation works consent. Agreeing to such obligations was part of

10/38427577_2 9

the price that had to be paid by EDF Energy to secure the site preparation works consent, but this was only ever agreed by EDF Energy on the explicit basis that the issue would be re-examined during the DCO process (see paragraphs 5.12–5.14 below in this regard).

3.28 It would, of course, be open to the Secretary of State to impose new reinstatement obligations in relation to the project as a whole in the Order. The next section of this note sets out EDF Energy's reasons why such new reinstatement obligations are unnecessary and inappropriate.

4. QUESTION 27B

Among other things Schedule 17 of the s106 agreement requires the applicant to provide a bond for £63 million as security against the site being left unrestored if works are undertaken and the project abandoned. Planning conditions requiring the reinstatement of the site would also be rescinded. Fairfield Estate and LAs want Article 2A deleted; or, alternatively, seek the replication of the relevant conditions and obligations from the site preparation planning permission.

What provision, if any, would be made for the reinstatement of the HPC site if development began and was then abandoned?

4.1 There are five key reasons why no provision should be made in the Order or the DCO section 106 agreement for reinstatement of the Hinkley Point C (HPC) site if development begins but is subsequently abandoned. All of these reasons were referred to at the Issue Specific Hearing.

4.2 First, such provision is not necessary to make the proposed project acceptable in planning terms. Paragraph 4.1.7 of the National Policy Statement (EN-1) provides that the Secretary of State should only impose requirements in relation to a development consent that are necessary, relevant to planning, relevant to the development to be consented, enforceable, precise, and reasonable in all other respects. Paragraph 4.1.8 of EN-1 further provides that development consent obligations must be relevant to planning, necessary to make the development acceptable in planning terms, directly related to the proposed development, fairly and reasonably related in scale and kind to the proposed development, and reasonable in all other respects. The imposition of reinstatement obligations would not satisfy those tests.

4.3 In particular, specific powers already exist under the Planning Act 2008 to deal with NSIPs that are not completed. Paragraph 3(5) of Schedule 6 provides that the Secretary of State may revoke an Order on the application of a local planning authority in relation to land within its area where the development has been begun but has been abandoned and the amenity of other land in the local planning authority's area or an adjoining area is adversely affected by the condition of the land.

4.4 As part of the exercise of this power, the Secretary of State may require the removal or alteration of buildings or works and impose new requirements. Therefore, in the unlikely event that the project is abandoned before it is completed, the Secretary of State could – if it is appropriate in the circumstances at that time – make provision for any necessary removal of unfinished buildings and for restoration works to be carried out. The existence of this statutory power means that it is not necessary or appropriate for the Order to provide for compulsory restoration or reinstatement at a time when the future circumstances causing the project to be interrupted or abandoned cannot be foreseen.

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4.5 At the Issue Specific Hearing, and in their subsequent written submissions, the Councils referred to the inability to serve a completion notice under the Planning Act 2008. Plainly, however, paragraph 3(5) of Schedule 6 serves the same underlying purpose as the completion notice procedure in section 94 of the TCPA.

4.6 Parliament thus directly considered the scenario of a project being abandoned before its completion and gave an express statutory power to the Secretary of State to address that scenario. Provision should not be duplicated by additional controls in the Order itself.

4.7 Secondly, the Funding Statement submitted with EDF Energy's application for development consent provides sufficient protection against the remote prospect of a half completed nuclear power station. EDF Energy will not implement the DCO without the approval of its shareholders, who will have considered the financial viability of the project under a range of scenarios. They will not commit to the construction budgets for the project unless they are confident that they will be able to finance the project as a whole. The sunk upfront investment costs of new nuclear development are so large, and the financial implications of stopping once works have begun are so serious, that the promoter will not commence the project works without having the confidence that they can be completed without interruption.

4.8 There is no expectation in the National Policy Statements (or other guidance) that projects must consider or provide measures to insure against the extreme possibility of incomplete development. This requirement has never been imposed in relation to any other major infrastructure project. It would be wholly exceptional and would set an adverse precedent for major infrastructure projects in this country. To adopt this novel approach would act as a significant brake on, and disincentive to, the promotion of NSIPs generally and new nuclear power stations in particular. This would not only be contrary to the clear objectives set by the National Policy Statements, it would serve completely to undermine those objectives.

4.9 The Councils referred at the Issue Specific Hearing to the various "challenges" of new nuclear development, suggesting that this increased the risk of abandonment. These are repeated in the Councils' subsequent written submissions. Most of these generic factors were considered during the preparation of the National Policy Statements and no requirement for reinstatement obligations was included in the approved final versions. In the absence of any specific risk in relation to this project, which the Councils have not been able to identify, it is not necessary to make provision for reinstatement or security in the Order. Nor is it appropriate for the existing reinstatement and security to continue or to be "gradually reduced" as proposed in the Councils' written submissions.

4.10 Thirdly, concerns about the Government’s current policy framework for the provision of new nuclear development, and the consequences of any future changes to policy, fall outside the scope of the matters that may be considered in this Examination. Section 106(1)(b) of the Planning Act 2008 specifically provides that representations that "relate to the merits of policy set out in a national policy statement" may be disregarded in the determination of an application. None of the exceptions to making the decision in accordance with the NPS at subsections (4) to (8) of section 104 apply to potential future changes in policy, or the potential consequences of any such changes.

4.11 In any event, were there to be a future change in policy, it would be for the Government at that time to decide how that change in policy should apply to inchoate developments and to deal with any reinstatement requirements accordingly. It is not the role of the Examining

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Authority to seek to anticipate and duplicate such a process, but rather to examine the application on the basis of the policies currently set out in the NPSs.

4.12 Fourthly, it has always been EDF Energy's intention to discharge the reinstatement and security obligations as part of the DCO process. The Councils were fully aware of this and it was discussed at length during the negotiation of the site preparation works section 106 agreement. The Councils approved and entered into the section 106 agreement on that basis, as did EDF Energy.

4.13 This intention to be discharged from the reinstatement obligations when the DCO is granted is evident from the terms of the site preparation works section 106 agreement itself. There can be no suggestion that the Councils were not aware of EDF Energy's intention to include drafting in the DCO to disapply the reinstatement and security obligations. Paragraph 5.5 of Schedule 17 states as follows:

"It is acknowledged that NNB GenCo may apply to vary, remove, abrogate, modify or supersede the reinstatement obligations referred to in paragraph 5.1 or the obligations in this Schedule 17 by a Development Consent Order or related Development Consent Obligations PROVIDED THAT this shall not prevent the Councils from making representations in relation to any such application made by NNB GenCo."

4.14 Considerable time was spent agreeing this clause and the precise form of wording used is therefore important. It is a permissive provision in which the Councils expressly permit EDF Energy to apply to remove the reinstatement and security obligations. Whilst the Councils reserve their own right to make representations against any such application, the Councils cannot contend that EDF Energy may not apply to do so or that such an application would be invalid for any reason.

4.15 Fifthly, the imposition of reinstatement obligations would be inappropriate as well as unnecessary. In particular, it may not be in the public interest at the relevant time for the works already carried out to be reinstated. Depending on the circumstances leading to the works being interrupted, it may be more appropriate, for example, for another promoter to be appointed to complete the project rather than the works being removed completely. This will be the case particularly where works are well advanced. One of the manifest absurdities of the current drafting in the site preparation works permission and section 106 agreement is that the site would have to be fully reinstated even if the works were 99% complete at the time.

4.16 This point was accepted by the Councils when they insisted that West Somerset Council's own reinstatement obligations in the site preparation works section 106 agreement had to be qualified by reference to whether such works would be "clearly and manifestly incompatible with the proper planning of the area at the relevant time" (see paragraph 3.1 of Schedule 17 to the site preparation works section 106 agreement).

4.17 Allowing the site preparation works reinstatement obligations to continue under the development consent regime would therefore be wholly inappropriate.

4.18 In their paper submitted on 5 July 2012 entitled "The Councils' objection to the abrogation of the site preparation works reinstatement requirements and obligations" reference is made to the CLG Guidance for Local Authorities on the Planning Act 2008 (at page 39). Despite the inappropriate "spin" that the Councils seek to place on the guidance, far from

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supporting the Councils arguments, the guidance in fact endorses EDF Energy's position in full:

4.18.1 The guidance states that it is unlikely that a NSIP granted development consent will be abandoned half-way through construction.

4.18.2 In the event that a scheme promoter cannot complete a project, the guidance states that it is expected that a remedial plan would be discussed with the relevant local planning authority. It is clear from the guidance that such discussion only occurs in the event that the scheme cannot be completed, i.e. at the relevant time and not before development consent has even been granted.

4.18.3 An example is given of completing only part of a project in a way that would still deliver worthwhile benefits. This reinforces EDF Energy's view that a judgement can only be made on whether or not to reinstate the site at the relevant time depending on the circumstances. It would be impossible to make such a judgement in advance.

4.18.4 The guidance states that there might need to be an application to the IPC (now the Secretary of State) to modify the original DCO. This confirms EDF Energy's position that applying for a change to the DCO under paragraph 3 of Schedule 6 to the Planning Act 2008 provides the appropriate mechanism to deal with an incomplete project.

4.18.5 Applying for a separate planning permission from the local planning authority instead of a modification of the DCO is only relevant where the project falls below the threshold for a NSIP, which clearly HPC does not.

4.18.6 If agreement is not reached with the local planning authority at the relevant time, then the guidance confirms that the authority could make an application to the IPC (now the Secretary of State) to revoke the DCO entirely and to require the removal of works.

4.18.7 There is no reference in the guidance to the need for funding or other security for reinstatement to be provided by the applicant.

4.19 If the Councils were right and site reinstatement needed to be dealt with at this stage, one would expect there to be a clear reference to this in the guidance. In fact, there is no policy support for the Councils' position whatsoever.

5. QUESTION 75

Article 33B would modify the North East Bridgwater s106 agreement. It has been put to us that the use of the DCO in this way would be ultra vires. However, Article 6A(2) of the revised draft DCO seeks to overcome this by disapplying s106A and s106B of the 1990 Act.

Does Innovia wish to make further legal submissions on this point?

How does the applicant justify Article 6A(2)?

5.1 Please refer to paragraphs 4.2 to 4.21 above for EDF Energy's legal justification for using the DCO to modify the North East Bridgwater section 106 agreement.

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5.2 The proposed modification of the North East Bridgwater section 106 agreement is a matter "for which provision may be made in the order" because it is a provision "relating to or ancillary to the development for which consent is granted" and sections 106A and 106B "relate to" that matter. Accordingly, Article 6A(2) falls within the scope of section 120 of the Planning Act 2008.

5.3 Specifically, the purpose of EDF Energy's proposal to modify the North East Bridgwater section 106 agreement is to allow the existing playing fields on the site to be removed before either the South Playing Fields or the North Playing Fields referred to in that agreement have been provided. The existing playing fields need to be removed in order for the Bridgwater A accommodation campus to be constructed on the site and EDF Energy wishes to commence construction of the campus as soon as possible, which is likely to be in advance of the new playing fields being delivered by the existing landowners.

5.4 The accommodation campus at Bridgwater A forms part of the development for which consent is to be granted by the Order. Whether the works to construct the accommodation campus can proceed in advance of the North and South Playing Fields being provided therefore relates to, or alternatively is ancillary to, the development for which consent is granted.

5.5 Accordingly, the proposed modification of the North East Bridgwater section 106 agreement is a matter for which provision may be made in the Order.

5.6 As explained at the Issue Specific Hearing, EDF Energy is also seeking to amend clause 4.3 of the North East Bridgwater section 106 agreement. The proposed amendment is set out in Article 33B(2) of the updated Order (a mark-up showing the proposed changes to the DCO is submitted as Appendix 1 of the 'Legal submission in relation to DCO drafting', which was submitted at the same time as this submission). The purpose of this amendment is the same as for the amendment of clause 4.4: to allow the existing playing fields to be removed before the North or South Playing Fields have been laid out and completed.

5.7 The planning obligation not to remove the existing playing fields before the North or South Playing Fields are laid out was negotiated in the context of the North East Bridgwater development, which EDF Energy is not implementing pursuant to the Order. It would be inappropriate for these obligations to be "inherited" and in doing so, for the delivery of the new nuclear project to be impeded.

5.8 EDF Energy's response to the Examining Authority's Question 1.7, submitted on 9 July 2012, explains EDF Energy's proposals for the replacement of the existing playing fields and other Bridgwater Sports and Social Club facilities that currently occupy Bridgwater A. EDF Energy will be including new obligations addressing these matters in the revised draft of the section 106 agreement to be submitted to the Examining Authority on 7 August 2012.

5.9 Of course, it would be open to the Secretary of State to impose alternative requirements in relation to the provision of replacement playing fields should he consider this necessary and relevant. EDF Energy considers that this is unnecessary however, because the proposed development consent obligations will not only secure appropriate mitigation for the loss of the Bridgwater Sports and Social Club facilities that currently occupy Bridgwater A, but when taken with the £500,000 contribution towards leisure provision in Bridgwater committed under the Site Preparation Works section 106 agreement, will also provide a net gain of sports provision and a positive legacy for the town overall.

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5.10 Finally, EDF Energy is aware that Innovia has withdrawn its objections to the DCO application. Their Objection had maintained that the proposed modifications of the North East Bridgwater section 106 agreement would be ultra vires or should otherwise not be permitted.

6. FURTHER LEGAL ISSUES ARISING

Compensation

6.1 EDF Energy was asked during the Issue Specific Hearing whether compensation is payable in respect of any modification or abrogation of a section 106 agreement.

6.2 The Planning Act 2008 does not provide for any compensation to be paid either for the modification or exclusion of statutory provisions pursuant to section 120(5)(a), or for the abrogation or modification of an agreement relating to land as provided for in paragraph 3 of Part 1 of Schedule 5.

6.3 EDF Energy is not seeking to acquire any right or interest in land in respect of Schedule 17 to the site preparation works section 106 agreement or clauses 4.3 and 4.4 of the North East Bridgwater section 106 agreement. If any such acquisitions were proposed, then the relevant right or interest would need to be included in the book of reference accompanying the Order and specific compulsory purchase powers would be required. Compensation would be payable for any such private rights or interests that are compulsorily acquired.

6.4 In contrast, the provisions to be modified and/or abrogated by Articles 2A(6) and 33B of the Order are planning obligations secured in the public interest. Such obligations do not create private rights in land. Accordingly, where it is in the public interest for those obligations to be modified or abrogated, no compensation is properly payable because no private rights in land are being acquired or interfered with.

6.5 This is consistent with the operation of section 106A of the TCPA, which governs the modification or discharge of planning obligations and which also does not provide for compensation to be payable.

6.6 There is no general right in law to compensation and Parliament did not provide for a specific statutory right in these circumstances. It therefore is not necessary, and would set an inappropriate precedent, for the Order to make provision for such compensation.

6.7 Furthermore, as we have already referred to in paragraphs 5.12–5.14 above, the Councils were fully aware of EDF Energy's intention to abrogate Schedule 17 of the Site Preparation Works section 106 agreement when it was entered into, and expressly agreed that EDF Energy may apply for such an abrogation. Compensation would be inappropriate in circumstances where the Councils consented, in advance, to the application for abrogation.

6.8 In relation to the North East Bridgwater section 106 agreement, neither Innovia nor Hallam have submitted representations to the Secretary of State objecting to the proposed modifications. In any case, they would not suffer any loss or damage as a result of the modifications; there is nothing to be compensated.

Potential lacuna

6.9 The Councils referred to a potential lacuna in Article 2A of the Order during the Issue Specific Hearing. They expressed a concern that, following the grant of the DCO, EDF

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Energy would be entitled to serve a transitional notice under Article 2A before carrying out any works under the Order with the sole intention of seeking to avoid their reinstatement obligations under the site preparation works permission and section 106 agreement.

6.10 That is certainly not EDF Energy's intention and it is not the purpose of Article 2A either. Nevertheless, to address the Council's specific concern, EDF Energy proposes to amend Article 2A(6) as follows:

"The reinstatement obligations set out in conditions R1, R2, R3, R4, R5 and R6 of the site preparation permission and all obligations on the part of the undertaker contained in Schedule 17 to the site preparation permission s106 agreement shall be abrogated on the later of the transitional date and the date on which Work No. 1A is commenced under this Order."

6.11 The effect of this revised drafting is that any transitional notice served by EDF Energy would only take effect once the main site works authorised by the Order are commenced, thus dealing with the Council's specific concern identified at the issue specific hearing and repeated in their subsequent written submissions. The amendment set out above is preferred to the Councils' proposed drafting, which is not accepted by EDF Energy as being necessary or appropriate.

6.12 The existing requirement to reinstate the site in the event that the generating station works do not proceed will continue to be binding on EDF Energy until the works authorised by the DCO are commenced. As the Councils refer to in their paper, this principle is common ground between EDF Energy and the Councils.

6.13 The Councils also express a concern about EDF Energy carrying out "relatively minor works" to keep the DCO alive. In practice, however, EDF Energy will not commence works under the DCO until FIDD and this concern is therefore unfounded.

Funding for works carried out pursuant to Schedule 6

6.14 EDF Energy was asked during the Issue Specific Hearing what funding would be available for the carrying out of any reinstatement works ordered by the Secretary of State pursuant to an order made under paragraph 3 of Schedule 6 to the Planning Act 2008. In the unlikely event of reinstatement works being required, EDF Energy would fund such works from shareholder capital.

6.15 The Planning Act 2008 does not include a requirement for any advance funding mechanism to be put in place before the power under paragraph 3 of Schedule 6 is exercisable, in the same way that no advance funding mechanism is required under the TCPA for works required to be carried out pursuant to a completion notice. No funding mechanism is required in respect of the removal of unauthorised development under sections 169 or 170 of the Planning Act 2008 either.

6.16 Had Parliament considered such a funding requirement to be a necessary condition precedent for the exercise of such powers, then it would have provided for it in the Planning Act 2008. On the contrary, Parliament provided for compensation to be payable to the landowner in the event of any order being made under Schedule 6 instead.

6.17 There is no policy basis for advance funding requirements to be found in any of the National Policy Statements either.

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6.18 The amount of funding required to remove a nuclear power station that is at an advanced stage of construction would be very substantial. The provision of security for such funding would have a major impact on, and would risk undermining, the viability of the project as a whole.

6.19 EDF Energy is of the opinion that the provision of an advance funding mechanism or security (such as the Fairfield Estate's requirement NR3 proposes in their written comments submitted on 5 July 2012) is not capable of being the subject of a requirement under the 2008 Act, because it would require financial payments by the applicant. Such payments may only be secured by a development consent obligation.

6.20 For the reasons set out in sub-section 5 above, EDF Energy does not consider any reinstatement obligations to be necessary or appropriate, and therefore no funding or security for reinstatement will be offered in EDF Energy's section 106 agreement.

6.21 An order made by the Secretary of State pursuant to paragraph 3 of Schedule 6 to change the DCO so as to require incomplete works to be removed and the land to be reinstated would carry criminal liability under section 161 of the 2008 Act if any such requirement were breached.

6.22 The local planning authority would in those circumstances be entitled to serve a notice of unauthorised development under section 169(4) of the 2008 Act requiring, for example, EDF Energy to take steps to reinstate the site. The Fairfield Estate is therefore wrong to say, at paragraph 1.64.1 of their written comments submitted on 5 July 2012, that "there are no powers which could be used by the Secretary of State or the local planning authority which could compel the undertaker to restore the site". Furthermore, under section 170(1), if any of the steps specified in the notice are not taken, then the local planning authority may enter the land itself to take those steps and recover any expenses reasonably incurred in doing so from the landowner. The Fairfield Estate is therefore also wrong to say that the cost of reinstatement would fall to the public purse.

6.23 Thus, a mechanism is already provided in the 2008 Act for the local planning authority to enforce the carrying out of reinstatement works following a change to the DCO, and for the recovery of the costs of carrying out those reinstatement works if necessary.

6.24 Paragraph 4(4) of Schedule 6 also enables the Secretary of State to make such further regulations which provide for, among other things, the effect of a decision to exercise the power to change or revoke an Order under paragraph 3. There is therefore no need for additional or duplicate provision to be made by the Secretary of State in the Order.

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3. APPROPRIATENESS OF COMPENSATION IN RESPECT OF THE LIFTING OF THE SECTION 33 LGMPA RESTRICTION ON BRIDGWATER C

1.1 The Panel queried whether EDF Energy considers it appropriate for the restriction on use of the land at the Bridgwater Rugby Club to be lifted without compensation being paid to the Council. In addressing this issue, we also refer to the local authorities’ letter to the Panel dated 19th June 2012 (“Response Letter”) in which the authorities commented on this issue in response to EDF Energy’s answer to the Panel’s Question 10 (submitted on 31st May 2012).

Nature of the Restriction

1.2 The restriction in question is as a covenant in an agreement between (1) Sedgemoor District Council (2) ECB Developments Limited and (3) Safeway Stores Plc dated 5 August 1993. In this agreement Safeway covenanted with the Council that the land "shall not be used otherwise than for recreational purposes and/or a rugby football club with ancillary uses and for no other purposes whatsoever". The covenant was imposed pursuant to s.33 of the Local Government (Miscellaneous Provisions) Act 1982 ("LGMPA").

1.3 The local authorities maintain in their Response Letter that the restriction in question is a “restrictive covenant,” in addition to being a statutory restriction under s33 LGMPA. They state that the Council retains adjoining land which is “capable of benefitting from the restrictive covenant.” They claim that the restriction was “imposed by the Council in its capacity as transferor and owner of adjoining retained land.”

1.4 EDF Energy requests clarification as to whether the title to the Council’s adjoining land shows that land as benefitting from any restrictive covenant burdening the Bridgwater C land. This is not our present understanding. In legal terms, the restriction appears to be purely a statutory restriction imposed pursuant to s33 LGMPA.

Nature of s33 LGMPA

1.5 Section 33 of the LGMPA may apply where an agreement:

"(a)is executed for the purpose of securing the carrying out of works on land in the council’s area in which the other person has an interest, or

(b)is executed for the purpose of regulating the use of or is otherwise connected with land in or outside the council’s area in which the other person has an interest,

and which is neither executed for the purpose of facilitating nor connected with the development of the land in question."

1.6 Section 33(2) LGMPA provides that any covenant imposed pursuant to it:

"shall be enforceable (without any limit of time) against any person deriving title from the original covenantor in respect of his interest in any of the land defined as mentioned in paragraph (b) above and any person deriving title under him in respect of any lesser interest in that land as if that person had also been an

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original covenanting party in respect of the interest for the time being held by him."

Subsection (3) provides in relation to enforcement

(3)Without prejudice to any other method of enforcement of a covenant falling within subsection (2) above, if there is a breach of the covenant in relation to any of the land to which the covenant relates, then, subject to subsection (4) below, the principal council who are a party to the instrument in which the covenant is contained may— .

(a)enter on the land concerned and carry out the works or do anything which the covenant requires to be carried out or done or remedy anything which has been done and which the covenant required not to be done; and .

(b)recover from any person against whom the covenant is enforceable (whether by virtue of subsection (2) above or otherwise) any expenses incurred by the council in exercise of their powers under this subsection.

1.7 In this sense s33 LGMPA is similar in nature to section 106 TCPA, which provides that agreements made under it will run with the land. Under s33(1), the section only applies in limited circumstances, namely where works are to be carried out or the use of the land is to be restricted. In contrast to a restrictive covenant, it is not necessary for the local authority to hold land that benefits from the covenant for it to be enforceable against successors in title.

1.8 Section 33(3) provides specific enforcement powers to allow the local authority to take action and recover expenses in the event of a breach. However, there is no provision in s33LGMPA which authorises an authority who has imposed a restriction to charge for removing it. The intention of s33LGMPA is to enable local authorities to control land use where necessary for public benefit, rather than to allow local authorities to create a right for themselves to receive monetary compensation in future for lifting restrictions which they have imposed. If this were lawful then it would be possible for authorities to impose such restrictions on any number of parcels of land and benefit financially from removing those restrictions in future.

Unlawfulness of charging for exercise of statutory functions and duties

1.9 In their Response Letter, the Councils have requested authority for EDF Energy’s assertion that the Council is not entitled to charge for the exercise of its statutory duty of imposing or lifting covenants under s33LGMPA. We are surprised that the Council requires such clarification.

1.10 It is a fundamental and long-established principle of public law that a public body cannot charge for carrying out its statutory duties or functions without express Parliamentary authority. This has been held in, among others, the cases of Attorney General v Wilts United Dairies Ltd (1921) and McCarthy & Stone (Developments) Ltd v Richmond Borough Council (1992). It was held in the Wilts United Dairies case that to hold otherwise would, in effect, allow a tax to be collected without Parliamentary authority. Since s33LGMPA does not expressly authorise local authorities to charge for lifting such restrictions, to require such payment is not lawful.

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Should the abrogation of the clause imposing the s33 LGMPA restriction give rise to compensation?

1.11 The Planning Act 2008 does not provide for the payment of compensation where an agreement is abrogated or modified by a DCO. In the case of the rugby pitch at the Bridgwater C site, the restriction was imposed to safeguard the use of the land for recreation, in the interests of meeting local and national planning policy objectives. In other words, the purpose of the restriction is to achieve a public interest objective, rather than to protect a private interest. In those circumstances, it is appropriate to consider the adequacy and proportionality of the measures proposed to mitigate the loss of the relevant facilities, rather than the payment of any financial compensation to the Council. There is no legal or policy basis for any such compensation to be made.

1.12 An agreement for lease between EDF Energy and the Rugby Club makes provision for the necessary mitigation (a replacement training pitch) to be provided. Under the terms of the agreement, there is an obligation on the Rugby Club to re-provide an alternative rugby pitch prior to completion of the land deal between the parties. EDF Energy is working with the Rugby Club to identify a suitable site for a replacement pitch. The agreement includes a provision that conditions are satisfied by the Rugby Club prior to NNB taking the lease. An upfront deposit is payable by EDF Energy, and is to be paid in instalments linked to satisfaction of the conditions. One instalment of the deposit is payable upon the completion of the transfer to the Rugby Club of the land required for an alternative pitch. This agreement is an appropriate means of providing the mitigation because the pitch was owned and controlled by the Rugby Club and it is the Rugby Club who would own and control the new pitch. This arrangement should provide sufficient comfort that the appropriate mitigation is being arranged without expenditure being necessary on behalf of the local authority. The Rugby Club is the body that will lose the use of the pitch and therefore has the most interest in replacing it, while EDF Energy is providing the means to do so. EDF Energy will enter into a development consent obligation in the section 106 agreement to use reasonable endeavours to assist the Rugby Club to secure planning permission for an alternative pitch and the transfer of the land required for that purpose.

Temporary or permanent lifting of the restriction

1.13 We note that in their Response Letter the Councils state that they would be content to agree a “temporary relaxation” of the restriction in exchange for £50,000. The Council claims that the permanent lifting of the restriction is “neither necessary or in the public interest”. They state that this would enable the restriction to “revive at the end of the 10 year period” and that they could then give consideration to “any proposals for a further relaxation or lifting of the restrictive covenant depending on the proposed use and end user.”

1.14 Given that the Council supports EDF Energy’s post-operational proposal to transfer the campus to Bridgwater College, we are surprised that the Council wishes to lift the restriction only temporarily, with a view to then potentially seeking further consideration for permanent lifting in future allowing use by the College. Again, this does not seem a proper use of the Councils powers under s33LGMPA.

Position in terms of compensation if the restriction were a restrictive covenant

1.15 It is also worth noting that if the restriction were a restrictive covenant (in the genuine sense of an interest in land which benefits the Councils’ adjacent land) it would not be a matter for the Secretary of State to provide specifically for compensation for breach of this restriction as part of the DCO. By virtue of s152 and s158 Planning Act, breach of a

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restrictive covenant may give rise to compensation payable pursuant to s10 Compulsory Purchase Act 1965. Case law and the McCarthy Rules have established that the beneficiary of the restrictive covenant must be able to demonstrate that their adjacent land has depreciated in value due to the breach. Any compensation payable will be valued at the amount of the depreciation of that adjacent land. In practice, such compensation is often limited, as breaches of restrictive covenants often do not have a significant depreciating effect on the land which they benefit. We are aware that issues of compensation pursuant to s158 Planning Act are not matters for the Panel. However, the Councils Response Letter implies that they consider they should be compensated for the discounted price for which they transferred the land in view of the restriction which they imposed at that time. Even if the restriction were a restrictive covenant, this would not be the basis of valuing the compensation due to the Council. In any event, without knowing the detail of the rest of the transaction, it is not possible to ascertain what effect (if any) the imposition of the restriction in itself had on the price for which the land was transferred out of the Council’s ownership.

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4. INTERACTION BETWEEN THE DEVELOPMENT CONSENT ORDER AND EXISTING PLANNING PERMISSIONS

1. INTRODUCTION

1.1 This section of the legal submission identifies those planning permissions which EDF Energy is aware may be affected by the DCO. These permissions have been revealed through reviewing the planning histories of the sites, consultation responses and representations to the Examination. The Planning Statement summarises the relevant planning history for each site. EDF Energy did not carry out a specific audit of the conditions of neighbouring planning permissions to determine whether they conflict with the DCO. EDF Energy took the view that the local authority and neighbouring landowners (who were extensively consulted) were better placed to bring such conflicts to EDF Energy's attention where there would be a material impact. Where landowners and the local planning authority raised concerns, EDF Energy has in some cases made changes to the original proposals. In other cases, EDF Energy has not considered this necessary.

1.2 EDF Energy considers that in each case where the implementation of the DCO renders it impossible for pre-existing planning conditions to be complied with by adjacent land owners, there would be no public interest in enforcement action being taken by the local authority against the land owner. Therefore, while EDF Energy has sought to identify those issues it is aware of in this section, it does not consider that it is necessary to add any specific provisions to the DCO expressly to abrogate conditions which conflict with the DCO. To EDF Energy's knowledge, the DCO will only necessitate non-compliance with the Cannington park Quarry planning permissions (sub-section 2 below) and the Matalan permission (sub-section 3 below).

1.3 Other matters relating to the relationship between the DCO and other planning permission are discussed in sub-sections 4, 5 and 6.

2. CANNINGTON BYPASS: QUARRY PLANNING PERMISSIONS

2.1 The development site boundary for the Cannington bypass physically overlaps with the application site for an existing minerals planning permission which relates to Cannington Park Quarry. Cannington Park Quarry lies to the north-west of the development site boundary for the Cannington bypass, between Chad's Hill and the proposed bypass.

2.2 The Cannington bypass development site boundary physically overlaps with the site boundary for planning permission 1/13/78/007, dated 30 June 1978, for "Retention of landscaping of existing quarry extension and excavation of stone to secure a safe and satisfactory rock face at Cannington Park Quarry, Cannington" (the 1978 permission). The conditions attached to the 1978 permission were revised by the Secretary of State in December 2008 pursuant to an appeal, made under section 96 of and Schedule 13 to the Environment Act 1995, against Somerset County Council's determination, dated 14 December 2005, of conditions to apply to that planning permission and another permission relating to the quarry, 1/13/83/022, dated 9 March 1984. The conditions that now apply to the 1978 permission are the conditions attached at Annex B to the Secretary of State's decision letter, dated 9 December 2008.

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2.3 The plan contained in the Schedule to Section 4 shows the area of overlap between the 1978 permission (shown in blue) and the development site boundary for the Cannington bypass (shown in green). There is a small area at the western end of the ecological underpass where there will be permanent bypass development that is located within the application site for the 1978 permission. Condition 30 of the 1978 permission requires that "existing trees, bushes and hedgerows within the Cannington Park Quarry site shall be retained and not be felled, removed or otherwise damaged outside the areas approved for mineral working without the prior written approval of the mineral planning authority". The small area of bypass development that is within the area overlap may involve the removal of existing vegetation. However, any such removal would be required to be carried out in accordance with the DCO, the terms of which would apply to the relevant area. The remainder of the area of overlap between the two sites is land that will not form part of the permanent bypass development and on which the existing scrub vegetation will be retained.

2.4 Additionally, the Cannington bypass development site boundary is adjacent to the site boundary for an Interim Development Order (IDO) permission, dated 21 July 1947 (shown in red), in respect of Cannington Park and Castle Hill Quarries (the IDO permission). However the attached plan indicates that the two application sites do not overlap.

3. A38 BRISTOL ROAD/ WYLDS ROAD – MATALAN

3.1 Matalan has raised the concern that the highway improvement seems to require the reduction of the landscaped area at the front of the site which was one of the conditions under the original planning consent.

3.2 The land is required for the breaking out of the existing kerbs and installation of new curbs and edging, resurfacing and construction of the new carriageway and associated road markings. The area affected by the EDF Energy proposals which is occupied by Matalan is made up of a grass verge and hedge planting including several trees which act as a boundary feature to the Matalan carpark to the north of the road.

3.3 Although the highway improvements may infringe on some of the landscaped area, it would clearly not be in the public interest for the local planning authority to enforce against Matalan when the loss would not be significant in planning terms.

4. COMBWICH WHARF

4.1 Planning permission was granted on 28 July 1989 for the construction of the road from Combwich Wharf to join the C182 south of Bolham Bridge at Cannington (Application No. 1 13/89/12). This permission was subject to six conditions. Condition 4 restricts the use of the private road to (i) agricultural use; (ii) use by the Central Electricity Generating Board (or its successors in title) for activities carried out pursuant to its existing powers; use by Wessex Water Authority; and use by anyone granted a licence by the Central Electricity Generating Board to store, moor or launch any pleasure boat from the Wharf. Condition 6 restricts the hours of use from 8.00 to 19.30 unless the local planning authority gives prior written permission. A copy of this permission is included in the Schedule to Section 4.

4.2 EDF Energy is seeking consent under the DCO to use this road for the purpose of constructing and operating the power station (Work No. 8A (k)). This change of use will be a new consent for the use of this road and EDF Energy is asking the Panel to consider the application for use and proposed restrictions in the context of the current application

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rather than the conditions attached to the original planning permission (which would no longer apply to DCO use).

5. JUNCTION 23

5.1 As noted in the Planning Statement (at Appendix 9, paragraph 9.4.1) a planning permission was identified for "erection of feed mill, two warehouses, provision of weighbridge, vehicle hard standing and means of access". The permission expired in March 2010, however, following Stage 1 consultation, EDF Energy amended the layout of the proposed development to omit the triangle of land so as not to prejudice the land being used as 'gateway development' in the future, as supported by Sedgemoor District Council.

6. JUNCTION 24 – ROYAL SUN ALLIANCE

6.1 As noted in EDF Energy's submission of 31 May 2012 (Proposed mitigation and revised DCO), the freeholder of the Junction 24 site (Royal Sun Alliance) has commented directly to EDF Energy to explain that it is concerned that the existing established use of B8 will be lost following the grant of the DCO and the development and use of the site by the undertaker for a Park and Ride and that when the site is returned at the end of the construction period it will have no lawful use.

6.2 As explained in the submission, EDF Energy has therefore suggested that a provision (revised Article 6(A)(1) in the 31 May 2012 draft) be included in the DCO to apply section 57(2) of the TCPA to temporary consent granted under the DCO to ensure that existing uses are not lost. This would also apply to the exiting use at Williton.

7. NORTH EAST BRIDGWATER

7.1 The North East Bridgwater planning permission has been discussed in Section 2 above.

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SCHEDULE TO SECTION 4

Plan showing overlap between 1978 permission and the development site boundary for the Cannington Bypass

Combwich Wharf access road planning permission

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5. CLARIFICATION IN RELATION TO THE POST-OPERATIONAL STRATEGY

_______________________________________________________________________________

1. INTRODUCTION

1.1 This section of the legal submission considers a query raised by the Examining Authority at the first Issue Specific Hearing on 26 and 27 June 2012 in respect of the HPC DCO application. The query concerned the authorisation of the retention of the associated development after EDF Energy's use of that development has ceased.

2. EDF ENERGY'S APPROACH

2.1 The draft DCO authorises the use of the power station and all associated development. It includes a requirement that limits this use of the associated development sites to the period needed to construct the power station (Requirement PW27). EDF Energy recognises that the DCO cannot consent continuing uses that are not associated with the NSIP. EDF Energy does not believe, however, that the DCO must or should necessarily oblige complete dismantling and restoration of the temporary associated development sites.

2.2 In preparing the DCO application, EDF Energy recognised that it may not always be sensible to default to complete reinstatement of sites to their existing position pre-DCO works. For instance, most sites will benefit from landscaping works under the DCO and several will benefit from drainage or other infrastructure works. Others will be provided with buildings which the planning authority may wish to be retained and some sites – particularly Bridgwater A – will be decontaminated. Removing these features (or putting back the contamination) may not be sustainable or desirable. Accordingly, a mechanism was developed which would allow sustainable futures to be agreed closer to the time when the sites become available again.

2.3 The Post-Operational Strategy submitted with the DCO application (Appendix A4 of the HPC Planning Statement) sets out parameters for the post-operational states in which EDF Energy intends to leave the temporary associated development sites when EDF Energy’s own use has ceased. The strategy covers all of the off-site associated development sites except Combwich Wharf, the bypass and the off-site highway improvements, which will remain in place permanently. For each site the Post-Operational Strategy provides certainty about those elements which it can confidently be predicted should be retained and those which should be removed. However, it also identifies a range of “optional” features which it may be appropriate to retain or remove. The fate of these is to be determined through the submission of a Post-Operational Scheme (see, for example, draft requirement BRIA 16). The Schedule to Section 5 sets out the infrastructure that EDF Energy is intending to be retained or removed in respect of each of the sites.

2.4 Requirements in the draft DCO require EDF Energy to submit to the relevant planning authority for approval Post-Operational Schemes in accordance with the Post-Operational Strategy and then to carry out any works required under the approved Post-Operational Schemes within a defined period of time from completion of the 'HPC construction works' (i.e. six months for Junction 24 and Williton, 24 months for Bridgwater A and then 12 months for Bridgwater C, Combwich Freight Laydown and Junction 23 facilities). The approval of these Post-Operational Schemes would provide EDF Energy with the authority it needs to carry out any physical works necessary to put the sites into the required post-

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operational state. These are works of removal and reinstatement, rather than construction. No further consent under the TCPA would be required to do this.

2.5 For the reasons set out in sub-section 3 below, EDF Energy believes that the Secretary of State has the vires to authorise (via discharge of requirements) the physical works necessary to put the sites into post-operational states.

2.6 This should be distinguished from the use of these sites after EDF Energy's own use has ceased. EDF Energy acknowledges that the Secretary of State does not have the vires to authorise a future use of the land through the discharge of a DCO requirement. There could be no justification for authorisation of future use being associated with (or necessary to mitigate the effects of) the short-term use of the sites. Consequently, it would be necessary for EDF Energy, or a third party, to make a planning application to the relevant authority for the use of any facilities which the Post-Operational Scheme has allowed to be retained on the land. This is directly acknowledged in the Post-Operational Strategy at paragraphs A4.1.10 and A4.2.10.

3. DEFAULT RESTORATION

3.1 At the Issue Specific Hearing, the Examining Authority queried whether or not it would be more appropriate to include a requirement in the DCO stating that all of the associated development sites (except Combwich Wharf, the bypass and the off-site highway improvements) will be restored by default, unless planning permission for retention is obtained within a specified period of time after cessation of use.

3.2 In EDF Energy's view, there is no legal reason under the Planning Act 2008 why a DCO must require all associated development to be dismantled after its authorised use is over. The fact that the Secretary of State has not required something to be dismantled does not mean that it has authorised something other than "associated development" in the first place. It is not right to think of this in terms of the Secretary of State "authorising retention". Legally, all the Secretary of State is doing (or able to do) is to authorise "development" (i.e. construction and use) of "associated development". It is therefore within the Secretary of State's power to grant DCO consent for the construction and time-limited use of the associated development infrastructure.

3.3 The issue of what state the site is left in after the authorised use has finished is a matter for the Secretary of State as decision-maker to make a judgment on as to what further works (if any) it is appropriate to require EDF Energy to carry out in order to mitigate the effect of its short-term use. The Secretary of State has been given the power by Government to impose requirements that can require a wide range of actions to mitigate the impact of consented development. As with other temporary permissions, in most cases mitigating the effect of the short-term use will require the taking away of all or most of the infrastructure EDF Energy has constructed. However, it is likely to make sense in many cases to leave certain elements of the development in place, for example ecological mitigation, drainage channels or site accesses. On the same basis, in some cases it may make sense to leave the facilities in place exactly as built, with a view to them being re-used (assuming planning permission can be obtained for that use). An example of this is the Bridgwater C campus, which is proposed to be retained for future use by Bridgwater College.

3.4 It is within the Secretary of State's vires to approve works under Post-Operational Schemes which require the taking away of greater or lesser elements of the built development - from

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all of it to none of it. The Secretary of State need not require the dismantling of all associated development as the ‘default’ position.

3.5 A requirement requiring restoration by default would require EDF Energy either to:

3.5.1 apply for planning permission for a wider redevelopment scheme encompassing the elements to be retained; or

3.5.2 apply for retrospective planning permission under section 73A TCPA to consent the retention of certain elements on the associated development infrastructure after it is no longer needed by EDF Energy.

3.6 To require a developer to obtain planning permission for a wider redevelopment scheme seems illogical and unnecessary. This could leave EDF Energy in the position of having to apply for permissions for development schemes it never intends to build or use. In many cases, it may be more appropriate for EDF Energy to transfer sites to new developers who will seek their own permissions for the schemes they wish to develop. As mentioned above, there is no legal reason why a DCO must require associated development to be dismantled after its authorised use is over.

3.7 Equally, it is very unlikely that Parliament intended section 73A TCPA to be used for this purpose. Section 73A allows retrospective planning permission to be granted for development that has already been carried out where the development was carried out: (a) without planning permission; (b) in accordance with planning permission granted for a limited period; or (c) without complying with a condition of the planning permission. The associated development works would have been constructed lawfully in accordance with the DCO consent. Yet, EDF Energy would need to apply for retrospective permission pursuant to section 73A(a), on the basis that the works were carried out without "planning permission" (defined as permission under the TCPA). It would be difficult for the local planning authority to assess these applications and justify the development against their development plans because in its own right an application, for example, to consent hard-standing at Bridgwater A would not ordinarily be approved. The sensible approach would be for the Secretary of State to consider the retention of this development in the context of the NSIP as part of the DCO application.

3.8 In EDF Energy's view, a default position of restoration would not be enforceable, as there would be no approved drawings showing what the end state condition should be at the end of the defined period. In contrast, a DCO requirement to bring forward a scheme that is in accordance with the options in the Post-Operational Strategy would ensure that defined parameters are set and that the works are undertaken to a satisfactory standard within those parameters that the local planning authority could control and enforce.

4. CONCLUSION

4.1 There is no legal reason under the Planning Act 2008 why a DCO must require all associated development to be dismantled after its authorised use is over. It is within the Secretary of State’s power to grant consent for the construction and time-limited use of the associated development infrastructure. It follows that it is within his power (and is appropriate) to ensure that any physical works necessary to mitigate the short-term use of sites are addressed through post-operational schemes approved and enforced under the DCO. A DCO requirement requiring restoration by default unless separate planning permission for the retention is obtained would not be appropriate, would be unenforceable

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for the reasons set out above, and would afford far less control over the works to the relevant authority.

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SCHEDULE TO SECTION 5

Post-operational infrastructure1

Bridgwater A

To be Retained To be Removed Optional

• Site access (adopted extent)

• Drainage rhyne • Perimeter landscaping and

trees

• Signage • Platform, including hardstanding for vehicle parking

• Accommodation buildings • Sports pitches and for

changing facilities • Landscaping within the

site • Amenity building • Internal roads • Fencing • Lighting • CCTV • Utilities

Bridgwater C


• Platform • Accommodation buildings • Sports pitch • Hardstanding for vehicle

parking • Internal roads • Site access • Landscaping • Screen planting (trees

along college way) • Utilities

Highway works

• Signage • Fencing • Lighting • CCTV • Bus shelters on the

gyratory

Cannington Park and Ride


• Some landscaping/screen planting

• Widening of and provision of a footway

• Platform • Hardstanding for vehicle

parking • Bus shelter

• The part of the flood relief channel constructed at site access

1 This information replicates that in Tables A4.2 to A4.8 in the Post-Operational Strategy submitted with the

DCO application

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along the A39 • Welfare building • Security building • Internal roads • Site access • Earth bund (visual

mitigation and spoil storage)

• Fencing • Lighting • CCTV • Utilities • Some landscaping/screen

planting • Surface water drainage

infrastructure • Balancing pond • Signage • Ecological habitat (would

be relocated to A39 in post operational phase)

Combwich Freight Laydown Facility


• Piling (below a depth of 1m)

• Otter culverts (on Combwich Wharf access road)

• Platform (including culverts)

• Freight laydown area • Welfare building • Security building • Administration building • Hardstanding for vehicle

parking • Internal roads • Smoking shelter, bin store

and other external structures

• Earth bund (for acoustic and visual mitigation and spoil storage)

• Flood defence and retaining wall

• Attenuation ponds • Fencing • Lighting • CCTV • Utilities • Signage

• Landscaping • Surface water drainage

infrastructure

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Junction 23


• Works to flood defences • Landscaping and screen

planting along perimeter of site

• Ecological mitigation area, detention pond and drainage ditch from Dunball Drove

• Soil to be re-used on site (Soil volume appropriate to the requirements of the restoration would be deployed as necessary)

• Screening bund on south of site

• Northern most park and ride hardstanding

• Consolidation facility building

• Worker induction centre building

• Site (external)

• Hardstanding for vehicle parking (park and ride)

• Bus terminus • Bus shelter • Amenity/welfare building

(park and ride) • Security building (park

and ride) • Hardstanding for vehicle

parking (freight) • Freight checking area • Administration/amenity

and security building (freight)

• Hardstanding for vehicle parking (consolidation)

• Hardstanding for vehicle parking (induction)

• Site access improvements • Internal roads • Surface water drainage

infrastructure • Fencing • Lighting • Signage (internal) • CCTV • Utilities

Junction 24


• Existing buildings on site • Existing areas of vehicular

parking • Modifications to existing

access • Utilities and drainage • Perimeter fencing • Landscaping

• Park and ride facility infrastructure

• Freight management facility infrastructure

• Signage • Bus terminus • Bus shelters and cycle

stores • Security buildings • Freight checking area • Internal fencing • Lighting • CCTV • Decommission of services

where required

• None

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Williton


• Platform • Hardstanding for vehicle

Parking • Site access improvements • Landscaping • Screen planting • Surface water drainage

infrastructure including underground attenuation tank and swales

• Bus shelter • Kerbs • Gate/barriers • Water treatment works • Internal roads • Utilities (to be capped off

at B3190 verge) • Welfare and security

building • Fencing • Lighting • Signage • CCTV

• None

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6. CLARIFICATION OF THE ENDURANCE OF THE CLEARWAY UNDER THE DCO

_______________________________________________________________________________

1.1 At the Issue Specific Hearing, the Examining Authority queried whether or not the provision of a clearway along the C182 between the HPC development site and north of Claylands Comer as part of the site preparation works would endure during the DCO works.

1.2 Condition FP11 of the site preparation planning permission (application ref. 3/32/10/037) provided that Phase 1 of the works should not begin until a scheme had been submitted to and approved by the local planning authority for the implementation and monitoring of a clearway. This condition required EDF Energy to monitor this stretch of road during Phases 1 and 2 of the works and to provide the results to the local planning authority and local highways authority every three months during the carrying out of those phases of the development. Should this monitoring demonstrate that a clearway is necessary, EDF Energy is then required to apply for a Clearway Order and implement the approved Clearway Order in accordance with the Traffic Signs Regulations and Directions.

1.3 Pursuant to Article 2A.(l) of the draft DCO, EDF Energy may give the local planning authority notice that it intends from the date of the notice to carry out the works authorised by the site preparation planning permission pursuant to the DCO. The consequence of the notice is that the requirement to adhere to the planning conditions falls away, to be replaced by a requirement to adhere to the requirements in the DCO instead.

1.4 In accordance with Condition FP11, EDF Energy has been carrying out the required monitoring and to date there has been no evidence of any impacts occurring that would demonstrate that a Clearway Order is necessary. Notwithstanding the results of monitoring to date, EDF Energy questions (as it did in negotiating the Site Preparation Works planning conditions) whether a Clearway Order, which is generally used in urban areas to prevent road congestion resulting from vehicles parked in bus lanes, is an appropriate measure for controlling parking on a road in a rural area. EDF Energy recognises the need to ensure that HPC-related vehicles do not park in laybys or on the C182. This will be reinforced with contractors through the Delivery Management System and tool box talks. However, EDF Energy does not have a remit to restrict other road users from parking in laybys or obstructing the highway. This is a matter for Somerset County Council, as the Highways Authority, and the police. Should there be a need to control parking on the C182 the County Council will be able to implement a Clearway Order or other control mechanisms as appropriate. EDF Energy cannot apply for or implement an approved Clearway Order. The DCO section 106 agreement includes a £3.5 million contingency fund which can be used to finance the provision of measures which the Transport Review Group considers necessary to mitigate identified impacts on the local road networks. The types of measures this contingency fund could be applied towards includes funding the implementation of Clearway Orders or other control mechanisms by the County Council. EDF Energy therefore does not consider that Condition FP11 should be replicated as a DCO requirement.

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7. APPROPRIATENESS OF IMPOSING RESTRICTIONS VIA MARINE LICENCE CONDITIONS RATHER THAN DEVELOPMENT CONSENT ORDER REQUIREMENTS

1. INTRODUCTION

1.1 The MMO has stated that all conditions that could be marine licence conditions should be conditions rather than requirements imposed on the DCO. EDF Energy accepts the principle that all measures relating to marine licensable activities would be appropriately controlled by marine licence conditions. This was the suggested approach in the mitigation route map and the MMO in its representations has confirmed that it considers that these are appropriate measures to form marine licence conditions. Therefore, the MMO's concern is in relation to four measures which relate, in whole or part, to the operation of the project. These are proposed requirements PW28, C1A, CW1 and CW5. PW28 and C1A relate to monitoring, CW1 to the design of the cooling water system and CW5 to the operation of the cooling water system. EDF Energy considers that these measures relating to the operation of the power station could and should be controlled under the DCO because it is not necessary for the marine licences to continue in force long after the activities that they control have ceased when there is a more appropriate regime available.

2. BACKGROUND

2.1 As the Examining Authority is aware, EDF Energy submitted the applications for the relevant marine licences (excluding the disposal of dredging which is to be submitted to the Welsh Assembly) to the MMO following a screening opinion dated 25 May 2012 that the MMO was satisfied that an assessment of any effects on the environment of the project in question is to be carried out by the Planning Inspectorate/Secretary of State in respect of the development consent application. The document accompanying those applications can be provided to the Examining Authority upon request. That document identifies where the relevant material is found in the existing environmental statement and report to inform the habitats regulation assessment along with some additional details of construction methodology and the waste framework directive and the water framework directive assessments.

2.2 Under regulation 10(4) of the Marine Works EIA Regulations 2007 this means that:

Where the appropriate authority determines in accordance with paragraph (1)(b) that an environmental impact assessment is not required in relation to a regulated activity—

(a) the regulator—

(i) must not grant regulatory approval unless it has determined that to do so would be compatible with the other consenting authority's measures to comply with the EIA Directive; and

(ii) for the purpose of so determining must consider whether it is appropriate to seek the views of the other consenting authority; and

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(b) any decision to grant a regulatory approval must take into account any comments of the other consenting authority relating to the regulated activity.

2.3 Therefore, the Secretary of State should consider the substance of the package of mitigation measures in respect of the marine environment as a whole and ultimately it will be for the Secretary of State to decide which consent any particular measure is attached to. The MMO has not expanded on why it considers that it is appropriate that these measures should be conditions, other than that they could be. Therefore, EDF Energy has set out below what the implications would be of each approach. However, in EDF Energy's opinion, either approach would be lawful and it is for the Secretary of State to determine which regime is more appropriate.

3. POWER TO INCLUDE THE RELEVANT MEASURES AS MARINE LICENCE CONDITIONS

3.1 The marine licensable activities comprise the construction of the structures in question (the cooling water tunnels, the sea wall, Combwich Wharf and the Jetty). In particular, the cooling water tunnels will be an integral part of the operation of the power station.

3.2 The MMO has the power to impose conditions relating to the marine licensable activities or precautions to be taken after the carrying out of the authorised activities in connection with or in consequence of those activities under section 71 of the Marine and Coastal Access Act 2009 (the Marine Act). Therefore, it would have the power to include measures equivalent to PW28, C1A, CW1 and CW5 as conditions on marine licences since the coastal monitoring and measures relating to the operation of the cooling water tunnels would be necessary as a consequence of the construction of these structures.

3.3 However, the use and operation of these structures is to be authorised by the DCO, and this Order must remain in force for the duration of the operation of the power station, while it is not strictly necessary for the marine licences to endure once the licensable activities have been completed. For this reason, EDF Energy considered it more appropriate that all of the measures relating to the operation of the project be included in the DCO as requirements. However, if the MMO and the Secretary of State are content that the marine licences should endure for the sixty year lifespan of the project, these measures could lawfully be secured as marine licence conditions and the enforcement powers in either case would be similar (as explained below). It would also be possible for the DCO to cross refer to the marine licence condition to ensure that if the marine licence did cease to have effect for any reason, the measure could then be enforced under the DCO.

4. POWER FOR MMO TO ACT AS DISCHARGING AUTHORITY UNDER DCO

4.1 EDF Energy considers that the MMO has the power to act as the discharging authority under the DCO. Paragraph 4 of Natural England's representation of 5 July states that Natural England also considers that this is the case.

4.2 EDF Energy's reasoning is that under section 1 of the Marine Act, the MMO is to have the functions conferred on it by or under the Marine Act or any other enactment. Under section 120(2)(b) of the Planning Act 2008 a DCO may include requirements to obtain the approval of the Secretary of State or any other person. The DCO would be made by the Secretary of State under the Planning Act. Therefore, including the MMO as the discharging authority in the DCO would confer a function on it to act as the discharging authority.

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4.3 In addition, this activity would be within its powers since section 2(2) provides that in pursuit of its general objective, the MMO may take any action which it considers necessary for the purpose of furthering any social, economic or environmental purposes. Section 31(1) provides that the MMO may do anything which appears to it to be incidental or conducive to the carrying out of its functions or the achievement of its general objective. Therefore, carrying out the function of discharging authority under a DCO for the purpose of contributing to the achievement of sustainable development would be within its powers.

5. MONITORING REQUIREMENTS - ENFORCEMENT

5.1 One difference between the marine licence and DCO regimes would be the applicable enforcement provisions. However, the main differences only apply in respect of marine licensable activities and the requirements in question will largely be relevant once the marine licensable activities have ceased. The key exception is the monitoring under PW28 and C1A which would be in place during the construction phase.

5.2 The Marine Act does provide for a more nuanced and flexible enforcement regime in relation to licensable activities allowing the service of compliance and remediation notices:

Compliance notice

5.3 This is available when it appears to the MMO that a person holding a marine licence has carried on or is carrying on a licensable activity under that licence and in carrying on that activity has failed, or is failing, to comply with a condition of the licence. The notice must require the person to take steps to ensure that the condition is complied with. It is a criminal offence to fail to comply with this notice.

Remediation notice

5.4 This is available when it appears to the MMO that:

5.4.1 a person carrying on an activity in its area has carried on or is carrying on a licensable activity;

5.4.2 the carrying on of the activity has involved, or involves, the commission of an offence under section 85 (carrying on an activity without a licence or breach of a licence); and

5.4.3 that the carrying on of the activity has caused, or is causing or is likely to cause harm to the environment, human health or interference with legitimate uses of the sea.

5.5 The notice must require the person to take such remedial or compensatory steps as the authority considers appropriate or to pay a sum representing the cost of these steps to be taken by the MMO. It is a criminal offence to fail to comply with this notice.

5.6 However, once the activities have ceased, the ability to serve compliance and remediation notices effectively falls away because there is no activity to attach to. Similarly, the power to suspend or revoke the licence would have no effect because there is no need for a licence for the structures to remain in place. If the conditions persisted, breach would be a criminal offence but the same is true of breach of a DCO requirement and the MMO could pursue a prosecution equally under that regime.

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Application to proposed requirements relating to monitoring: PW28; C1A and CW5

5.7 During the construction phases EDF Energy would be carrying out licensable activities, namely use of a construction zone for the sea wall on the foreshore, construction of the jetty, construction of the cooling water system and at Combwich, refurbishment and extension of the Wharf. Therefore, if PW28 and C1A were replicated as marine licence conditions, and EDF Energy failed to comply with any monitoring requirements or put in place any contingency required, the MMO could serve a compliance or remediation notice.

5.8 A compliance notice would simply specify steps to ensure the condition is complied with and it would then be a criminal offence to fail to take these steps. However, it would be a criminal offence under the Planning Act 2008 to fail to comply with the terms of the plan as breach of condition so this does not significantly increase the enforcement powers of the MMO. However, service of a remediation notice would allow the MMO to carry out the contingency measures itself (if the breach was causing harm or interference) and recover the costs from EDF Energy. Therefore, the MMO may consider it reasonable for PW28 and C1A conditions to be replicated in the marine licences.

5.9 However, during the operational phases there would be no licensable activities being carried on. Therefore even if these conditions were drafted to apply to the operational phase, the requirements for issuing a notice under section 90 or 91 or carrying out works under section 106 would not be met because any breach of the marine licence during this time could not be linked to the carrying on of an activity because the activities would have ceased. Criminal prosecution would still be available under section 85(1)(b) of the Marine Act for breach of the condition but if it were a requirement breach would be an offence under section 161 of the Planning Act 2008.

5.10 In respect of CW5, there would be no additional enforcement available under the Marine Act regime because CW5 relates only to the operational phase and does not include marine licensable activities. It should also be noted that the cooling water system will need to be designed and operated in accordance with a water discharge activity environmental permit to be issued by the Environment Agency.

6. VARIATION

6.1 One difference would be the MMO's ability2 to amend the condition in the circumstances set out in section 72(3) namely if it appears to the authority that the licence ought to be varied, suspended or revoked—

(a) because of a change in circumstances relating to the environment or human health;

(b) because of increased scientific knowledge relating to either of those matters;

(c) in the interests of safety of navigation;

(d) for any other reason that appears to the authority to be relevant.

2 This power of the "licensing authority" is delegated to the MMO under Article 3(3)(a) and Article 4 of the

Marine Licensing (Delegation of Functions) Order 2011/627

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6.2 This is in contrast to the Planning Act 2008 regime where changes may only be made by the Secretary of State. Other than in specific circumstances, these changes can only be made on the application of the applicant, person with the benefit of the order or person with an interest in the land. Changes can be made on the application of the local authority in the specific circumstances where all of the following apply: (a) the DCO grants development consent for development on land all or part of which is in the local planning authority's area; (b) the development has begun but has been abandoned; and (c) the amenity of other land in the local planning authority's area or an adjoining area is adversely affected by the condition of the land.

6.3 The Secretary of State may also make amendments without an application being made if the Secretary of State is satisfied that: (a) if the development were carried out in accordance with the DCO, there would be a contravention of Community law or any of the Convention rights, or (b) there are other exceptional circumstances that make it appropriate to exercise the power. This means that if there were exceptional circumstances of concern to the MMO due to changed circumstances, it could alert the Secretary of State who could exercise the power to vary the requirement.

6.4 If the marine licences persisted after the cessation of the marine licensable activities, the MMO would be able to amend or add conditions relating to the operation of the cooling water system or other marine structures without reference to the Secretary of State. This is a particular concern in relation to the operation of the cooling water system as controlled by proposed requirement CW5 since the operation of the Cooling Water system is an integral part of the NSIP rather than a standalone marine structure and will be in operation long after the relevant licensable activities have ceased. EDF Energy therefore does not consider it appropriate that the marine licence should continue in force for the duration of the operation of the power station, allowing changes to be made to the restrictions affecting an integral part of the power station when the Planning Act specifically restricts the circumstances in which such variations can be made.

6.5 It is recognised that that the need for marine licences was retained by the Planning Act 2008 partly to ensure that existing specialist enforcement regimes apply3 but the expiry of the marine licence itself would not affect the MMO's ability to enforce in respect of marine licensable activities being carried on without a licence or to issue a stop notice or emergency safety notice. However, in respect of CW5, PW28 and C1A, the monitoring scheme to be approved by the MMO and the participation of the regulators in the marine technical review group should provide sufficient flexibility to address changes in environmental conditions or scientific advancement without giving the MMO the power to impose new or substantially revised conditions on the operation of the NSIP without the involvement of the Secretary of State.

7. APPROVAL OF DETAILS – CW1

7.1 The MMO has been identified as the discharging authority in relation to the design details of the cooling water system. Although part of this system will be constructed under a marine licence, part of the fish return and recovery system will be land based and an exemption applies to the drilling of the horizontal tunnels4 . Therefore, it is logical that the detailed design is secured by the DCO which has jurisdiction over both onshore and offshore works rather than a marine licence because part of the works are outside the UK

3 DCLG- Planning Act 2008 –Guidance for local authorities – Annex B (page 32) 4 Marine Licensing (Exempted Activities) Order 2011/409- Article 35

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Marine Licensing Area. However, the MMO has been identified as the most appropriate discharging authority because of its expertise and the fact that the approved design will affect the MMO's area.

8. CONCLUSION

8.1 EDF Energy does not consider it appropriate or necessary for the marine licences to continue in force following the cessation of the licensable activities since the DCO must continue in force for the life of the power station and is the more appropriate regime for controlling the operation of the power station. However, it would be lawful for these measures to be secured by marine licence if the Secretary of State and the MMO considered this more appropriate. Since the MMO has deferred the EIA consent decision to the Secretary of State, all of the measures should be considered as part of the examination of the DCO in any event.

Documents

Hinkley Point C - Planning Inspectorate · 3. HINKLEY POINT C DEVELOPMENT SITE 3.1 Site Preparation Works Conditions 3.1.1 In response to discussions around the Site Preparation Works