The Hinkley Point C (Nuclear Generating Station) Order 2013

Article 46

SCHEDULE 14 Procedure for discharge of requirements

Applications made under requirement

1.—(1) Where an application has been made to a discharging authority for any agreement or approval required by a requirement included in this Order the discharging authority shall give notice to the undertaker of its decision on the application before the end of the decision period.

(2) For the purposes of sub-paragraph (1), the decision period is—

(a) in the case of a major detailed requirement—

(i) where no further information is requested under paragraph 2, 8 weeks from the day immediately following that on which the application is received by the authority;

(ii) where further information is requested under paragraph 2, 8 weeks from the day immediately following that on which further information has been supplied by the undertaker under paragraph 2; or

(iii) such longer period as may be agreed by the undertaker and the discharging authority in writing before the end of the period in sub-paragraph (i) or (ii); and

(b) in the case of a minor detailed requirement—

(i) where no further information is requested under paragraph 2, 5 weeks from the day immediately following that on which the application is received by the authority;

(ii) where further information is requested under paragraph 2, 5 weeks from the day immediately following that on which further information has been supplied by the undertaker under paragraph 2; or

(iii) such longer period as may be agreed by the undertaker and the discharging authority in writing before the end of the period in sub-paragraph (i) or (ii).

Further information

2.—(1) In relation to any application to which this Schedule applies, the discharging authority shall have the right to request such further information from the undertaker as is necessary to enable it to consider the application.

(2) If the discharging authority considers such further information to be necessary and the requirement does not specify that consultation with a requirement consultee is required, the discharging authority shall, within 7 business days of receipt of the application, notify the undertaker in writing specifying the further information required.

(3) If the requirement specifies that consultation with a requirement consultee is required, the discharging authority shall issue the consultation to the requirement consultee within 1 business day of receipt of the application, and shall notify the undertaker in writing specifying any further information requested by the requirement consultee within 1 business day of receipt of such a request and in any event within 21 days of receipt of the application.

(4) If the discharging authority does not give notification as specified in sub-paragraph (2) or (3), it shall be deemed to have sufficient information to consider the application and shall not thereafter be entitled to request further information without the prior agreement of the undertaker.

Fees

3.—(1) Where an application is made to the discharging authority for agreement or approval in respect of a requirement, a fee shall be paid to that authority as follows—

(a) where the application relates to a major detailed requirement, fees shall be calculated in accordance with the following table—

Category 1	The erection of buildings—
	(i)	where no floor space is to be created by the development, £170;
	(ii)	where the area of gross floor space to be created by the development does not exceed 40 metres, £170;
	(iii)	where the area of the gross floor space to be created by the development exceeds 40 square metres, but does not exceed 75 square metres, £335;
	(iv)	where the area of the gross floor space to be created by the development exceeds 75 square metres, but does not exceed 3750 square metres, £335 for each 75 square metres of that area;
	(v)	where the area of gross floor space to be created by the development exceeds 3750 square metres, £16,565; and an additional £100 for each 75 square metres.
Category 2	The carrying out of any operations not coming within Category 1, £170 for each 0.1 hectare of the site area, up to a maximum of £1,690.

(b) where an application is made for discharge of a major detailed requirement (“current application”) in respect of which an application has been made previously, the fee payable in respect of the current application shall be £335; and

(c) where the application relates to a minor detailed requirement, £85 for each application.

(2) For the purpose of the calculation of fees pursuant to paragraph 3(1)(a)—

(a) the area shall be taken as consisting of the area of land to which the application relates;

(b) where the application relates to development within Category 1, the area of gross floor space created by the development shall be ascertained by external measurement of the floor space, whether or not it is bounded (wholly or partly) by external walls of a building;

(c) where the application relates to development within Category 1 and the gross floor space to be created by the development exceeds 75 square metres and is not an exact multiple of 75 square metres, the area remaining after division of the total number of square metres of gross floorspace by the figure of 75 shall be treated as being 75 metres; and

(d) where the application relates to development within Category 2 and the site area exceeds 0.1 hectares and is not an exact multiple of 0.1 hectares, the area remaining after division of the total number of hectares by the figure of 0.1 hectares shall be treated as being 0.1 hectares.

(3) Any fee paid under this Schedule shall be refunded to the undertaker within 8 weeks of—

(a) the application being rejected as invalidly made; or

(b) the discharging authority failing to determine the application within the decision period as determined under paragraph 1,

unless within that period the undertaker agrees, in writing, that the fee shall be retained by the discharging authority and credited in respect of a future application.

Appeals

4.—(1) The undertaker may appeal in the event that—

(a) the discharging authority refuses an application for any agreement or approval required by a requirement included in this Order or grants it subject to conditions;

(b) the discharging authority does not give notice of its decision to the undertaker within the decision period as determined under paragraph 1;

(c) on receipt of a request for further information pursuant to paragraph 2 the undertaker considers that either the whole or part of the specified information requested by the discharging authority is not necessary for consideration of the application; or

(d) on receipt of any further information requested, the discharging authority notifies the undertaker that the information provided is inadequate and requests additional information which the undertaker considers is not necessary for consideration of the application.

(2) The appeal process shall be as follows—

(a) the undertaker shall submit the appeal documentation to the Secretary of State a copy of the application submitted to the discharging authority and any supporting documentation which the undertaker may wish to provide (“the appeal documentation”);

(b) the undertaker shall on the same day provide copies of the appeal documentation to the discharging authority and the requirement consultee (if applicable);

(c) as soon as is practicable after receiving the appeal documentation, the Secretary of State shall appoint a person to determine the appeal (“the appointed person”) and shall notify the appeal parties of the identity of the appointed person and the address to which all correspondence for that person’s attention should be sent;

(d) the discharging authority and the requirement consultee (if applicable) shall submit written representations to the appointed person in respect of the appeal within 10 business days of the date on which the appeal parties are notified of the appointment of a person under paragraph (c) and shall ensure that copies of their written representations are sent to each other and to the undertaker on the day on which they are submitted to the appointed person;

(e) the appeal parties shall make any counter-submissions to the appointed person within 10 business days of receipt of written representations pursuant to paragraph (d); and

(f) the appointed person shall make a decision and notify it to the appeal parties, with reasons, as soon as reasonably practicable.

(3) If the appointed person considers that further information is necessary to enable the appointed person to consider the appeal he shall as soon as practicable notify the appeal parties in writing specifying the further information required, the appeal party from whom the information is sought, and the date by which the information is to be submitted.

(4) Any further information required pursuant to sub-paragraph (3) shall be provided by the party from whom the information is sought to the appointed person and to other appeal parties by the date specified by the appointed person. Any written representations concerning matters contained in the further information shall be submitted to the appointed person, and made available to all appeal parties within 10 business days of that date.

(5) On an appeal under this paragraph, the appointed person may—

(a) allow or dismiss the appeal; or

(b) reverse or vary any part of the decision of the discharging authority (whether the appeal relates to that part of it or not),

and may deal with the application as if it had been made to the appointed person in the first instance.

(6) The appointed person may proceed to a decision on an appeal taking into account only such written representations as have been sent within the time limits prescribed, or set by the appointed person, under this paragraph.

(7) The appointed person may proceed to a decision even though no written representations have been made within those time limits, if it appears to the appointed person that there is sufficient material to enable a decision to be made on the merits of the case.

(8) The decision of the appointed person on an appeal shall be final and binding on the parties, and a court may entertain proceedings for questioning the decision only if the proceedings are brought by a claim for judicial review.

(9) If an approval is given by the appointed person pursuant to this Schedule, it shall be deemed to be an approval for the purpose of Schedule 2 as if it had been given by the discharging authority. The discharging authority may confirm any determination given by the appointed person in identical form in writing but a failure to give such confirmation (or a failure to give it in identical form) shall not be taken to affect or invalidate the effect of the appointed person’s determination.

(10) Save where a direction is given pursuant to sub-paragraph (11) requiring the costs of the appointed person to be paid by the discharging authority, the reasonable costs of the appointed person shall be met by the undertaker.

(11) On application by the discharging authority or the undertaker, the appointed person may give directions as to the costs of the appeal parties and as to the parties by whom the costs of the appeal are to be paid. In considering whether to make any such direction and the terms on which it shall be made, the appointed person shall have regard to Communities and Local Government Circular 03/2009 or any circular or guidance which may from time to time replace it.

Interpretation of Schedule 14

5.  In this paragraph—

“the appeal parties” means the discharging authority, the requirement consultee and the undertaker;

“business day” means a day other than Saturday or Sunday which is not Christmas Day, Good Friday or a bank holiday under section 1 of the Banking and Financial Dealings Act 1971;

“major detailed requirements” means requirements: PW3, PW4, PW7, P10, MS16, MS17, MS18, MS19, MS20, MS21, MS22, MS25, MS26, MS28, MS30, CW1, CW2, OS3, BRIA5, BRIC5, CP6, C8, J23-4, J24-3, and WP3;

“minor detailed requirements” means requirements, other than major detailed requirements, which require any agreement or approval of a discharging authority or permit the discharging authority to agree or approve matters otherwise than provided for in the requirement; and

“requirement consultee” means any body named in a requirement which is the subject of an appeal as a body to be consulted by the discharging authority in discharging that requirement.