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Today's entry reports on the latest stage of special
parliamentary procedure being undergone by the Development Consent
Order (DCO) for the proposed Rookery South energy from waste
project in Bedfordshire being promoted by Covanta Energy.
On 13 October 2011, the Infrastructure Planning Commission (IPC)
approved the application for a DCO for the Rookery South project.
Because it involved the compulsory acquisition of local authority
and/or statutory undertaker land, at least one such landowner had
objected to the application, and Covanta were not themselves a
local authority or statutory undertaker, the DCO had to undergo
'special parliamentary procedure' (SPP) before it was able
to be implemented. This is a requirement under the Planning Act
2008, which has been narrowed in scope but not removed by the
Localism Act 2011.
The DCO was open to objections, or petitions, and 39 were made
against it. DECC and Covanta Energy each responded to each petition
saying it should not continue. A hearing was held on 8 March in
front of a committee of two chairmen (Lord Brabazon, Chairman of
Committees in the House of Lords and Lindsay Hoyle MP, Chairman of
Ways and Means in the Commons) for them to hear oral arguments as
to whether the petitions should be accepted or not.
Decision
This morning, the two chairmen decided that five of the 39
petitions made against the DCO should go forward to be considered
by a committee of MPs and peers. They also criticised the legal
framework within which they had to consider the petitions. Full
details can be found in their report.
The petitions that were accepted were two each from the two
'host' local authorities, Bedford Borough Council and
Central Bedfordshire Council (one that the DCO should not be made
at all, and one that it should only be made with amendments) and
one from three waste companies jointly. The 34 that did not get
accepted were all from parish councils.
The next stage is that either House has 21 days (not counting
prorogation, which starts today and ends on the day of the
Queen's Speech next Wednesday) to resolve to annul the DCO
after which, if this does not happen, the DCO will be referred to a
joint committee of MPs and peers to consider the merits of the five
remaining petitions.
The two chairmen did not think that the amendments suggested by
the councils relating to waste types should be considered by the
committee, nor that getting past this stage reopened all their
arguments (the 'key to the door' issue), but said that the
committee could reach its own decision on the latter point.
Criticisms
The two chairmen made two criticisms of the legal position.
First, they said that the Planning Act 2008 and the act that sets
out SPP, the Statutory Orders (Special Procedure) Act 1945,
were incompatible, because the former implies that Parliament
should only concern itself with the compulsory acquisition issue,
but the latter requires the whole order to stand or fall, and
Parliamentary standing orders have been written on this
assumption.
Secondly, they said that the EU directive on electricity generation required
there to be an appeal mechanism for the refusal of permission for a
generating station such as this (see article 7(4) on page L
211/67), and there isn't one from Parliament. The 1945 Act
should therefore be amended to make it compatible with the
directive, and the House authorities should be involved in these
changes.
The two chairmen request that no further DCOs are referred to
them until these issues have been sorted out. Given the name of a pub in
Westminster that I have been known to frequent I was tempted to
use the headline 'Last orders at the Two Chairmen?' but
perhaps that was too much of an in joke.
In fact, as noted by the two chairmen, the government is already
planning to introduce legislation to amend the application of SPP
to projects that require DCOs, as announced in the Budget in March,
although this may have been to remove further DCO projects from the
scope of SPP rather than resolve incompatibilities with the 1945
Act. The Energy Bill that was expected to be the vehicle for this
amendment may however be delayed, as the proposed 'electricity
market reform' that it will implement gets clearance from the
European Commission that it does not breach state aid rules - see
this written
answer.
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