Admin Law and Compulsory Purchase - Case Study Example

 STUDY ON ADMIN LAW AND COMPULSORY PURCHASE Table of Contents Introduction………………………………………………………….3 The international legal drivers behind the development…………….3 How the development will be regulated between central and local government………………………………………..7 How the compulsory purchase mechanism is likely to work for this project……………………………………………...11 Conclusion…………………………………………………………..14 Sources……………………………………………………………...16 STUDY ON ADMIN LAW AND COMPULSORY PURCHASE Introduction The Department of Energy and Climate Change have contacted EDG Energy to construct a nuclear power station on the banks of the Six Estuary. The site is currently farmland, in mixed ownership. Development will involve building substantial structure on the shoreline, establishing a cooling pool in the adjacent waters, building a roadway from the nearby highway A39, and creating wayleaves for powerlines, and easements for drainage and other utilities. There is likely to be strong local opposition to this development because of distrust for nuclear power generally and because part of the site is located next to a European special protected area under the Birds and Habitats Directives. The issue is aggravated due to mixed ownership of the farmland where the project is proposed to be developed. Besides the special protected area under the Birds and Habitat Directives, it is testing time to get all the owners to agree on the development. I work for the EDG Energy and I have to comment on three aspects of development and these are: The international legal drivers behind the development of which the largest driver is the Kyoto protocol, how the development will be regulated between central and local government, and how the compulsory purchase mechanism is likely to work for this project. The international legal drivers behind the development (excluding European law) The Kyoto Protocol to the United Nations Framework Convention on Climate Change (UNFCCC) adopted on 11th December 1997 is the biggest single international driver behind the development. This treaty contains legally binding quantitative commitments for industrialized countries, in force from 16 February 2005. The European Union is signatory to the Kyoto Protocol. As such, the construction of the nuclear power station on the banks of the Six Estuary must satisfy the provisions of Kyoto Protocol. The Kyoto Protocol is a legally binding agreement making it mandatory for industrialized nations to reduce their collective emissions of greenhouse gases by 5.2% compared to the year 1990. The goal is to lower overall emissions from six greenhouse gases namely, carbon dioxide, methane, nitrous oxide, sulfur hexafluoride, hydrofluorocarbons (HFCs) and perfluorocarbons (PFCs). The national target for the reduction in the European Union is 8%. Nuclear energy does not require coal or any other element that emits greenhouse gas. However, nuclear energy produces nuclear waste and it is the disposal of this nuclear waste that requires to be handled with abundant care as it can be hazardous to the environment. The issue of handling nuclear waste is exacerbated as a foolproof method has not yet been found. The damaging effects of the Chernobyl nuclear disaster during the 1990s are fresh in people’s minds everywhere. Such disasters push back any prospect of nuclear venture right at the proposal stage. In order for favorable decision, it is necessary for the European Union to provide adequately satisfactory record on complying with the Kyoto Protocol directives. The data provided by the European Union on current nuclear facilities usage in Europe does not make satisfactory reading (UNFCCC chief sees Kyoto Protocol countries on their way to reach emissions target). The use of nuclear energy on long time basis does not appear to be the best idea if there is no satisfactory consensus on the safe disposal of the nuclear wastage. Thus, Europe’s compliance to Kyoto Protocol is fraught with controversies. There are allegations of Europe running out of time to cough up climate cash and European Union delaying stimulus for global climate deal (Press Statements). On the other hand, there are positive noises about the abilities of member countries to be able to meet the target of 5.2% emissions reduction. Simultaneously, the same sources agree that efforts must be intensified in order to reach projected targets (UNFCCC chief sees Kyoto Protocol countries on their way to reach emissions target). Among the nations, the European Union members, the United States, Japan and Russia are countries showing maximum emissions of greenhouse gas. The United State has not ratified the Kyoto Protocol as yet. The European nations have made some progress in the reduction, although the intensity of their efforts has to take place to reach anywhere closer to the intended target. In this state of affairs, it is not possible to convincingly make presentations for the nuclear power station. The Kyoto Protocol will not stop the nuclear power company from happening. However, they are bound to ask what we propose to do with the nuclear waste? Then there is also the question of transparency. It is difficult to satisfactorily address the issue of nuclear energy on a long term basis. Considering the indeterminate issue of nuclear waste management, it is better to make a case for nuclear energy in a time bound manner. This way, there is the possibility of getting clearance for the project for certain decades to take care of the energy requirement for the foreseeable future. Even after getting the clearance of the Kyoto Protocol, the lead time for planning and construction of power plants is quite huge to get the nuclear facilities established and get the plant functioning with all the necessary securities in place. One of the primary determinants for the future of nuclear energy in Europe is the age distribution of current nuclear power plants. Only a small share of total capacity has reached the age of 40 years and the large majority of installed reactors have been operated for at least 10 years. Whereas basically all reactors have been designed for operating for 30-40 years and there is the tendency today to extend the reactor lifetime to 50-60 years. The growth in energy consumption is among the broad drivers for establishment of nuclear power in Europe. The population in Europe is expected to decrease. However, the consumption of energy is expected to increase with the growth of European economy. This growth is large enough to warrant the nod for nuclear energy as well in spite of the concerns with regard to management of nuclear waste. The social and economic context in which the prospect of nuclear energy in Europe describes the environmental concerns that nuclear power could contribute to alleviate. The issues of climate change and air pollution, resource availability and energy security, costs and economic competitiveness, and public opinion and acceptance appear to make nuclear energy more attractive and relevant. On the other hand, characteristics constituting concerns for nuclear energy such as radioactive waste, nuclear proliferation and reactor accidents are assessed in terms of the potential risks they involve. The main advantage of nuclear energy is that it does not emit any greenhouse gas. Even when the whole nuclear fuel chain is considered including the mining of uranium and construction of power plants, nuclear energy emits only a few percentage of greenhouse gas, when compared to fossil fuel (Bob van der Zwaan). How the development will be regulated between central and local government? Thanks to the internet, there will be hardly any time wasted on communications between the central and local governments over the development of the nuclear energy project at the Six Estuary. The delay will occur more because of the nature of the project and the ambivalence in the management of nuclear waste, and last but by no means the least, the purchase of land from the current owners. Firstly, the central government will be preoccupied with formulating the policies and orders for land acquisition. Under the Planning Act 2008, an order granting development consent including authorizing the compulsory acquisition of land is made on the condition that the land is required for the development. The present landowners are given replacement land in exchange for the land acquired. The order further specifies that all the present landowners must consent to the acquisition of the land by the government, and the acquisition has been made using the prescribed procedure. In case there are some unwilling landowners who do not wish their land to be acquired, then the government can use the provisions for compulsory acquisition. The local government has to follow the orders of the central government on the issue of land acquisition. However, the local government also has to face the diverse landowners around the Six Estuary. Be that as it may, the structure and function of local government in the United Kingdom is rather confusing. Between 1995 and 1998, there were changes made in the local government structure and functions. Until 1995, there were two models for providing services for the public. In England, outside larger towns, services were rendered by two-tier councils. One tier was made up of the county councils, each of which served population of around 500,000 to 1,500,000. The other tier comprised the district councils. There were between four and fourteen of them within each county council area, covering populations of about 100,000. Their work was divided between them in various ways. County councils were responsible for services such as education, social services, transport, strategic planning, police, fire, consumer protection, refuse disposal, and libraries. The district councils were responsible for local planning, housing, local highways, building regulation, environmental health and refuse collection. The councils had joint responsibility for areas such as culture and recreation. However, in the 1990s, the central government decided that the two-tier system was both inefficient and confusing. The county councils were too remote from the people. Central government felt they had to go and their functions transferred to the district councils with some of the smaller districts being merged. Parish and town councils in England cover smaller areas than districts with populatin of up to 30,000. They have limited responsibilities for local services and they do not exist in large towns or cities. There is no difference in powers between parish and town councils. Councillors represent geographical wards called electoral divisions in country councils and serve four years before re-election. A ward may be represented by one, two or three councilors. Local authorities raise their income through council tax, levied on people based on the estimated value of their property. This was 25% of total local revenue in 1999. The rest is made up of central government grants of money to local authorities. This forms about 48 percent of local government revenue. The ‘non-domestic rate’ is a charge to businesses which is set by central government. This raises about 25 percent of local government revenue and the remainder is made up by charges for services and from reserves. Now, since the Local Government Act 2000, a system has been evolved where decisions are taken by one of a few ‘cabinet’ or ‘executive councillors’ with the committee playing advisory or scrutiny role. There is provision for councils to have a mayor directly elected by the people. This office carries with it responsibility for most decisions in association with a small cabinet of councilors (Brian Moore). Since, there is not any information about the population size of Six Estuary it is not possible to estimate the type of local government in place in Six Estuary. However, the central government will play a major role in the nuclear energy project. The role of the local government will be vital in clearing the land for the project. The local government will also be responsible to take care of the environmental issues and manage nuclear waste. The provisions of Kyoto Protocol will make it obligatory for the central and local governments to manage nuclear waste together. In 1997, the environmental agencies jointly published guidance on regulating the disposal of low and intermediate level radioactive waste to specialized facilities on land. This guidance was updated in 2005 because of developments in UK policy and revised international advice and recommendations. There must be clear understanding of the principles and requirements that a developer or operator of a radioactive waste disposal facility needs to meet before authorization for radioactive disposal can be granted. Properly managed disposal of radioactive waste is consistent with the aim of creating better place and better quality of life for people and wildlife. This guidance is aimed at developers, in this case the central government of UK, of new radioactive waste disposal facilities and at operators of existing facilities. It will inform the developer’s approach to the process of investigating and characterizing a potential site and also the design and construction of a facility at this site. The developer will need to take account of the principles and requirements that need to be met in developing an environmental safety case for radioactive waste disposal facility. The environmental standards in the guidance take account of international and national advice on standards for the long term protection of people and environment. The standards are high enough to ensure environmental safety of radioactive waste disposal both during the operation of the facility and in the long term after its closure. The European Directives such as the Basic Safety Standards Directive and international treaties such as the Oslo and Paris Convention (OSPAR) and the Joint Convention on the Safety of Spent Fuel Management and on the Safety of Radioactive Waste Management have been considered while drawing up the standards. Also, the Health Protection Agency (HPA) has produced revised advice on the radiological protection objectives for solid radioactive waste disposal. HPA has a statutory function to provide radiological protection advice in the UK. The HPA is not a regulator. The HPA explains the relationship between their regulatory guidance and HPA’s advice in annexes to their guidance (FAQ: Near-Surface Disposal Facilities on Land for Solid Radioactive Wastes; Guidance on Requirements for Authorization). How the compulsory purchase mechanism is likely to work for this project Accessing land for the purpose of a nuclear energy project involves navigating through a labyrinth of legislation. Planning, environmental and agricultural law can be torturous. Then there are compulsory purchase orders to process and enquiries to manage, which can be spun out for years by activists debating the merits of government policy or the habits of local wildlife. However, recent and proposed changes to planning and environmental legislation are set to have a big effect on the delivery of infrastructure schemes. The Planning Act 2008 received royal assent in November 2008 and sets out major reform to the system for approving schemes of national importance, aiming to dramatically speed up the process. This legislation will play a huge role in securing land from the current owners. The environmental legislation is constantly evolving and one of the most recent changes, the Town and Country Planning Regulations 2008, affects multi-stage decision processes and permits environmental assessment impact screening at a much earlier stage. The need is greater than ever to stay on top of changes, and likely changes, to the laws affecting access to land, and to consider the impact of these changes on infrastructure projects and utilities. Broadly speaking, the Act will create a new and compulsory consent regime for developments that form part of a nationally significant infrastructure project (NSIP). The Act contains a list of the types of projects to which the new law will apply. Only very large projects fall under the Act’s remit and the government expects only ten projects a year to qualify as an NSIP. A series of National Policy Statements (NPSs) will be drafted for the project at Six Estuary, including one that will cover the strategic road and rail network and rail freight interchanges. A new and independent body called the Infrastructure Planning Commission (IPC) will process and decide applications for an NSIP. The IPCs development consents will grant planning permission and can also authorize compulsory purchase orders. The Act applies mainly to England and Wales, and the secretary of state can amend or remove a project from the nationally significant list. The effects of the Act will take time to be felt and it will take months to draft and obtain parliamentary approval for the NPSs, which are crucial to the new regime. But the implications of the Act for the utilities should be to speed up and simplify the planning process for this project and make the whole process cheaper. The consent issued by the IPC will replace more than eight different planning and consent regimes. The Act, however, applies only to projects deemed to be of national significance. Smaller schemes will continue to fall under existing consent regimes. But the existing regime is also subject to change, even if it is not of the same magnitude as the Planning Act represents for big projects. The Planning and Compulsory Purchase Act 2004 is the most recent piece of legislation to have affected compulsory purchase orders and the law introduced major change in the use of compulsory purchase orders, though not the system of compensation. Among other things, the Act clarifies that compulsory purchase orders should be made only where there is a compelling case in the public interest which makes the interference with human rights justifiable. The case law stemming from this Act is constantly evolving and it is worth taking notice of the issues creating potential challenges to companies seeking access to land. One such problem revolves around the definition of entry to land. If an acquiring authority is not clear as to when they entered the land, they run the risk of claims being made against them. The date of entry is that of physically taking possession following the service of a Notice to Treat followed by a Notice to Enter or, alternatively, the date on which a General Vesting Declaration takes effect, which amounts to taking possession. It can also be the date on which compensation monies are lodged at court, if no entry has been taken but Notice to Treat has been served. License to enter (by agreement) is best sorted before Notice to Treat. It is also best sorted after Notice to Treat, if you do not want to “take” possession, for example if works carried out by a contractor are not actually a scheme requirement then be sure this does not become entry to land by mistake. Locating the owners of the land you require is another area requiring special care. Case law to date has always suggested that prudent law referencing is enough to try to locate an owner and that the extent of this has never been too great a burden on the acquiring authority. However, an acquiring authority must ensure that “unknowns” are constantly reviewed to try to establish an occupier. This is because by the time an acquiring authority has finished a compulsory purchase order they have a very good knowledge of the location and the characters of the dispossessed owners and, usually, a good history of local landowners in the vicinity. It may be the case that over the period of compulsory purchase order acquisitions, the acquiring authority can extrapolate who the rightful owner is. This is why it would be prudent not to immediately launch into unknown owners procedures. Gaining access to land is always a challenging process. But by keeping ahead of legislative change, utility companies will give themselves the best possible chance of navigating major schemes effectively through the planning process and save valuable time (Bruce Fowler and Sarah Youren). Conclusion There is no doubt that nuclear energy as an alternative energy source cannot be easily implemented nor can it be foreclosed due to its inherent problem of handling radioactive waste. In the case of the Six Estuary, the problem is compounded because of hostile landowners and presence of a bird habitat in the vicinity. The challenge for the project lies in the way the issues of land purchase and Kyoto Protocol are handled. For the outcome of this venture to be a success, it is necessary to go into all the aspects of these issues and deal with them with the relevant legislations and persuasions. Sources: Bob van der Zwaan, Prospects for Nuclear Energy in Europe, http://www.pugwash.org/reports/pac/56/1-3-van_der_Zwaan.pdf Brian Moore, Changes to UK local government aim to streamline decision making, http://www.citymayors.com/government/uk_locgov.html Bruce Fowler and Sarah Youren, Accessing land for essential works can be a torturous process, http://www.utilityweek.co.uk/features/uk/accessing-land-for-essential-w.php Climate Change Act 2008, http://www.opsi.gov.uk/acts/acts2008/pdf/ukpga_20080027_en.pdf Convention on Nuclear Safety, Activities of the European Union, http://europa.eu/scadplus/leg/en/lvb/l27053.htm FAQ: Near-Surface Disposal Facilities on Land for Solid Radioactive Wastes; Guidance on Requirements for Authorization, Scottish Environment Protection Agency, http://www.sepa.org.uk/radioactive_substances/radioactive_waste/near-surface_disposal/faq.aspx Kyoto Protocol on climate change, http://europa.eu/scadplus/leg/en/lvb/l28060.htm Press Statements, http://www.climnet.org/index.htm Ratification of the Kyoto Protocol, http://www.climnet.org/EUenergy/ratification.htm UNFCCC chief sees Kyoto Protocol countries on their way to reach emissions target, Press Release (corrected version 15 February 2006), http://www.climnet.org/EUenergy/20060215_anniversary_kp_entry_into_force.pdf Read More