From: CLARK SarahTo: HPCConnection; Giles ScottCc: BROWN Nicholas; Suri, NikkiSubject: EN020001 - HPCC - Applicant"s Response to DECC letter of 11 November 2015Date: 25 November 2015 14:58:28Attachments: HPCC - National Grid s Letter of Response to DECC - (25 November 2015).PDF

Statement of Common Ground - Wessex Water Services Limited and National Grid plc.PDFStatement of Common Ground - Wales and West Water Utilities Limited and National Grid plc.PDF

Importance: High

Dear Sirs Please find attached the applicant’s response to Giles Scott’s recent letter of 11 November 2015 inrespect of the proposed National Grid (Hinkley Point C Connection Project) Development ConsentOrder, together with the two enclosures referred to therein. We would be grateful if you could kindlyacknowledge safe receipt. Should you have any questions, please do not hesitate to contact us. Kind regards. Sarah

Sarah Clark Legal Director, Government and InfrastructureT +44 (0)20 7783 3433M+44 (0)7921 697926W www.bdb-law.co.uk For and on behalf of Bircham Dyson Bell LLP50 Broadway London SW1H 0BL

Legal 500 UK Awards 2015 ‘Public Sector Firm of the Year’

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Giles Scott Head of Infrastructure Consents and Coal Liabilities Department of Energy & Climate Change 3 Whitehall Place London SW1A 2AW

Your Ref

EN020001 Our Ref

ENB/LRT/004600.Y062201 Date

25 November 2015

By email only: giles.scott@decc.gsi.gov.uk HPCConnection@infrastructure.gsi.gov.uk

Dear Sir Planning Act 2008 (as amended) and The Infrastructure Planning (Examination Procedure) Rules 2010 (as amended) Application by National Grid Electricity Transmission plc ("The Applicant") for an Order granting Development Consent for the Hinkley Point C ("HPC") Connection REQUEST FOR COMMENTS FROM THE APPLICANT, CLH PIPELINE SYSTEM LTD (“CLH”), BRISTOL CITY COUNCIL, NORTH SOMERSET COUNCIL, SEDGEMOOR DISTRICT COUNCIL, SOMERSET COUNTY COUNCIL, SOUTH GLOUCESTERSHIRE COUNCIL AND WEST SOMERSET COUNCIL (“THE JOINT COUNCILS”), NATURAL ENGLAND, HIGHWAYS ENGLAND, CROWN ESTATE, NETWORK RAIL INFRASTRUCTURE LIMITED, WESSEX WATER SERVICES LTD, BRISTOL WATER PLC, THE ENVIRONMENT AGENCY, FIRST CORPORATE SHIPPING LIMITED, RWE GENERATION UK PLC, WALES AND WEST UTILITIES LTD AND WESTERN POWER DISTRIBUTION (SOUTH WALES) - EN020001 We refer to your letter dated 11 November 2015 and write to provide the Applicant’s response to the questions you have posed. For ease of reference, we have identified each question posed by means of italicised text, with the Applicant’s response provided immediately thereafter.

Protective Provisions

1 Please could the Applicant and CLH prove an update in respect of the discussion relating

to the protective provisions that would be needed to safeguard CLH’s assets and provide

a copy of any protective provisions that have been agreed that both parties would be

seeking to include in the Development Consent Order, should the Secretary of State

decide to grant development consent?

The Applicant and CLH Pipelines have agreed the terms of a legal agreement and protective provisions. The protective provisions form part of the legal agreement and it is not therefore necessary or intended that these should be included within the proposed Development Consent

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Order (DCO). The next step is for the legal agreement to be executed on behalf of both parties and the Applicant will update the Secretary of State as soon as this legal agreement has been completed. In the meantime, the Applicant confirms that no outstanding issues remain between the parties and it is expected that CLH Pipelines will also confirm to the Secretary of State that this is the position.

England Coast Path

2 Please could the Applicant and the Joint Councils provide confirmation that they are

content with the additional provision [stated above] being included in the Development

Consent Order, should the Secretary of State decide to make an order granting

development consent?

It is the Applicant’s view that the DCO Requirement suggested relating to footpath WL23/61 and WL23/71 is not necessary because of the temporary nature of the works proposed and the limited nature of the interference proposed to the use of these footpaths.

As set out in the Public Rights of Way Management Plan (Volume 5.26.6C) submitted during the Examination, whilst the Applicant has sought powers to temporarily stop up footpaths in the vicinity of the proposed development, most of these proposed closures would be for a short duration only and most will be kept open for the vast majority of the time via effective management (see para 3.3 in Volume 5.26.6C).

In the case of the two specific footpaths highlighted within the proposed DCO Requirement the Applicant only requires two short term closures – two days in the case of WL23/61 and two weeks in the case of WL23/71.

These temporary closures are only required to enable the stringing of proposed new overhead lines crossing the footpaths to take place. The closures will be effectively managed by construction staff who will be present at each location where construction works will affect use of the footpath. When these works are taking place, footpath users may be unable to use the relevant part of the footpath for a short period of time until the construction works overhead have been concluded. The works are likely to last a couple of hours at most although will typically be far shorter in duration. Members of the public will be advised by construction staff when overhead construction works have concluded and it is safe to re-commence use of the footpath.

The Joint Councils have suggested a long term diversion of both footpaths along a route which lies outside the Order Limits. Such a diversion, the Applicant submits, is both disproportionate and unnecessary, having regard to the very limited duration of the proposed temporary closures.

The Applicant has not sought powers within the proposed DCO to facilitate a footpath diversion along the lines proposed by the Joint Councils. It is not therefore possible for the Applicant to divert these footpaths in the manner being suggested or to comply with the proposed DCO Requirement.

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For the above reasons, the Applicant is concerned that the proposed DCO Requirement fails to satisfy all of the tests for planning obligations as set out in paragraph 4.18 of the Overarching National Policy Statement for Energy (EN-1) which states:

“These must be relevant to planning, necessary to make the proposed 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”

Similarly, the Applicant is concerned that the proposed Requirement fails to satisfy all six of the required tests for planning conditions set out in Paragraph 206 of the National Planning Policy Framework, namely that the condition is necessary, relevant to planning and to the development to be permitted, enforceable, precise and reasonable in all other respects.

Bat Special Areas of Conservation (SACs)

3 Please could the Applicant, Natural England and the Joint Councils provide confirmation

that they are content with both the additional provision [stated above] being included in

the Development Consent Order and the amendments to Requirements 5(1), 6(2),

10(2)(c), 14(1), and 14(2) in Schedule 3 of the Development Consent Order as set out at

Annex A being made, should the Secretary of State decide to grant development consent.

The Applicant’s response in respect of the proposed additional DCO Requirement is provided below, whilst the Applicant’s response in respect of the proposed amendments to DCO

Requirements 5(1), 6(2), 10(2)(c), 14(1) and 14(2) are provided at Annex 1 to this letter.

Proposed Additional DCO Requirement

The Applicant does not consider that it is necessary or appropriate for the additional DCO Requirement proposed to be included in the DCO, should the Secretary of State be minded to make it.

During the early part of the Examination the Applicant reached agreement in principle with the Joint Councils regarding the need for, and approach to, a Service Level Agreement (SLA) for the discharge of DCO Requirements. For further information, please see the Applicant’s

response to the Joint Councils' Local Impact Report (Ref 1.5, Volume 8.6.1) and (Volume 8.3.12, SoCG Issue 9.19). The Applicant’s position with regards monitoring was also addressed within the Applicant’s Comments on the Supplementary s.106 Agreement Proposed by the Joint

Councils (Volume 8.37), submitted to the Examination at Deadline 7. This document referred in turn to the Applicant’s Response to the Examining Authority’s Second Round Written

Questions (Volume 8.18.1) and more particularly the response provided by the Applicant to second round written question 2.9.23.

The Applicant does not consider that there is a need for additional payments to be made to the Joint Councils in respect of the monitoring of the implementation of mitigation. The Applicant’s

view remains that, as a responsible developer, it has established and robust monitoring and compliance systems and has committed to self-imposed monitoring regarding mitigation. It does

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not agree therefore, that additional payments to fund a monitoring service for this activity, on top of that agreed in the SLA relating to the discharge of DCO Requirements, is either required or justified.

The Applicant’s comments above regarding the requirements for requirements / planning conditions set out in paragraph 4.18 of the Overarching National Policy Statement for Energy (EN-1) and Paragraph 206 of the National Planning Policy Framework also apply to this proposed DCO Requirement.

In addition, the suggested text for the additional DCO Requirement refers to:

“ the installation and maintenance of relevant plantings at Sandford sub-station, South

of Mendip Hills CSE Compound, River Axe Cable Bridge Option and Tower Brook

Bridge of at least eight years (emphasis added) from the date of installation”.

The Applicant does not agree with this suggested wording.

Firstly, the Applicant has made clear throughout the Examination that a five year maintenance period is appropriate to enable the establishment of the new planting. Please see, for example, the Applicant’s response to first round written questions 9.12, 9.14 and 9.15 (Volume 8.1.2); the Applicant’s response to second round written question 2.9.24 (Volume 8.18.1) and also page 23 of the Applicant’s Summary of Case put Forward at the ISH on Landscape and Visual

– including Arboricultural matters (Volume 8.13.3.1) The one exception to this five year maintenance period is in respect of bat flyways (see Annex 1 below for further information in this regard).

Secondly, the landscaping of these structures is already covered by DCO Requirement 9 (Provision of embedded landscape mitigation) and DCO Requirement 11 (Implementation of

landscaping and replacement planting).

As these matters are already addressed through separate and distinct DCO Requirements, the Applicant is concerned that the addition of a further DCO Requirement along the lines proposed would create confusion.

Compulsory Acquisition

4 The Secretary of State requests confirmation from Highways England and the Crown

Estate that land listed previously in the Book of Reference as held by the Highways

Agency has now been transferred to Highways England and is therefore no longer Crown

Land. If this is the case, please could the Applicant and Highways England provide an

update to the Secretary of State on progress on the negotiations for the acquisition of

rights from Highways England and a copy of any protective provisions that have been

agreed?

The Applicant received confirmation from Highways England and the Land Registry that land previously listed in the Book of Reference as being within the ownership of the Secretary of State (care of the Highways Agency) and which is registered at the Land Registry is now owned

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by Highways England Company Limited. Where land was listed in the ownership of the Secretary of State (care of the Highways Agency) but was unregistered, discussions are taking place between the Applicant and Highways England to confirm Highways England’s ownership,

however it is not envisaged that any of this land will remain listed as within the Secretary of State’s ownership.

In respect of negotiations with Highways England, the Applicant has been disappointed with the lack of progress that Highways England has made on the negotiations for the acquisition of rights from Highways England. A full set of amendments on the proposed documents was only received by National Grid on 24 November 2015 despite drafts being issue to Highways England in September 2014. Nonetheless, National Grid remains hopeful that agreement can be reached with Highways England and continues to work towards concluding the necessary agreements as soon as possible.

In respect of the protective provisions, no comments were received on Part 3 of Schedule 15 to the draft DCO (Volume 2.1) during the course of the Examination and the Applicant has not received any comments from Highways England on these provisions since. The Applicant therefore understands the protective provisions at Part 3 of Schedule 15 to the draft DCO to be agreed.

5 Please could the Applicant and the Crown Estate provide an update to the Secretary of

State on how these negotiations on the “Deed of Easement” and the compulsory

acquisitions sought are progressing?

The Applicant continues to negotiate with the Crown Estate regarding the terms of an agreement to cover the grant of the rights it requires. The Applicant considers that there are only a few issues outstanding and the parties are working to conclude an agreement as soon as possible.

In relation to the plots identified within your letter dated 11 November 2015 in this context:

G-A142, G-A143, G-B142 and G-B143 are the plots that are the subject of negotiations between the parties as set out above; and

D289 and D298.2 are plots in respect of which the Crown Estate enjoys interests in mines and minerals only and as such, the Applicant is not seeking to acquire any interests in these plots from the Crown Estate. This applies equally to plots D292, D299.2, D301.2 and D305.2.

Although not mentioned in the letter, by way of reminder, the plots at D799, D835 and D837 are to be classified as ‘not used’ in so far as The Crown Estate has an interest in those plots as set out in the Applicant’s Position Statement in respect of Crown Land (Volume 8.34.10).

6 Please could the Applicant, Wessex Water Services Ltd, Network Rail Infrastructure

Limited, Bristol Water plc, The Environment Agency, First Corporate Shipping Limited,

RWE Generation UK plc, Wales and West Utilities Ltd and Western Power Distribution

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(South Wales) provide an update on their objections and details of any outstanding

issues that remain?

The applicant’s update in respect of each of the undertakers identified above is provided below.

Wessex Water

The Applicant and Wessex Water had agreed terms for a legal agreement to address Wessex Water’s concerns regarding the proposed development. However, shortly before completing the agreement, Wessex Water raised concerns regarding a proposed underground cable in Avonmouth. Wessex Water requested that the Applicant reduce the extent of the area of land proposed to be taken in this area to provide Wessex Water with greater certainty regarding the route of the cable.

The Applicant has responded to Wessex Water to explain that it cannot, at this time, reduce the amount of land specified for the cable route beyond that shown on the DCO plans. This is because the Applicant needs to ensure that a cable solution in this area can be achieved and if the land take is reduced it may not be sufficient to enable the design of the cable. Once a contractor has been appointed and carries out the detailed design in this area, the Applicant would expect the land required to be significantly reduced. The Applicant will only exercise powers over land actually required for the development.

This position has been set out in a Statement of Common Ground between the parties. Both parties have recently signed this Statement of Common Ground and a copy is now enclosed.

In addition to the legal agreement referred to above, the Applicant is negotiating with Wessex Water to facilitate the voluntary acquisition of rights over land owned by Wessex Water. The Applicant will continue to work with Wessex Water with a view to concluding a voluntary agreement for the acquisition of rights as soon as possible subject to the comments set out above relating to the extent of land required.

Network Rail Infrastructure Limited

Since the close of the Examination, representatives of Network Rail Infrastructure Limited (Network Rail) and the Applicant have met to discuss the outstanding issues between them and associated correspondence has been exchanged. However, the issues outstanding (as set out in the Applicant’s Position Statement in respect of Network Rail Infrastructure Limited (Volume 8.34.1) submitted to the Examination on Deadline 7) largely remain.

In particular, it has not proven possible for the Applicant to reach voluntary agreement with Network Rail regarding the grant of the easement it is seeking over railway land due to the terms which Network Rail is seeking to impose, which the Applicant considers to be unreasonable and unduly onerous. In particular, disagreement remains over the consideration payable for the grant of the easement, who should meet the costs of any future need to divert the Applicant’s

infrastructure to accommodate any future development Network Rail might decide to bring forward and the provisions for the termination of the easement that Network Rail is seeking to impose.

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In view of this lack of progress in seeking to secure an easement from Network Rail through voluntary negotiations, the Applicant’s position remains that it is not appropriate to include within the proposed DCO, should the Secretary of State be minded to make it, a protective provision requiring the Applicant to secure Network Rail’s consent before exercising powers to acquire

rights over railway land, such as that proposed within paragraph (4) of Network Rail’s preferred

form of protective provisions for railways (this issue was addressed within section 2 of the Position Statement).

An obligation to secure Network Rail’s consent, having regard to the commercial terms Network Rail has to date sought to impose, could frustrate the Applicant’s ability to deliver the proposed

development in an economic and efficient manner, in accordance with its statutory duties under the Electricity Act 1989. In contrast, were the Applicant able to exercise powers of acquisition to secure an easement over railway land, any dispute as regards the consideration payable could be referred to the Upper Tribunal for fair determination in accordance with the Compensation Code.

The long term security of the entire transmission line would also be in doubt were National Grid forced to accede to the termination provisions presently being sought by Network Rail. These termination provisions are at odds with those which have been agreed by other landowners along the line of the proposed route.

Furthermore, the Applicant remains of the view that the ‘consent provision’ being sought by Network Rail is not necessary to secure the safe and efficient operation of the railway for the reasons stated in paragraphs 2.9 to 2.11 of its earlier Position Statement (Volume 8.34.1). Network Rail has not, to date, provided the Applicant with a response to the matters raised there.

Given the parties’ respective positions to date, the Applicant does not currently anticipate that it will be possible for the parties to reach voluntary agreement for the grant of an easement and would greatly welcome the Secretary of State’s determination in respect of the appropriateness

of a ‘consent’ provision in these circumstances.

The parties have been able to make progress with regards to resolution of one of the outstanding issues identified in the Position Statement, namely whether the indemnity to be offered by the Applicant to Network Rail can be documented between them (addressed within section 4 of the Position Statement). The Applicant is currently in positive discussions with Network Rail as regards this matter and is hopeful that a joint position may be reached shortly.

Bristol Water

The parties entered into a legal agreement on 19th August 2015 which addressed Bristol Water’s

concerns. There are no outstanding issues between the parties and it is expected that Bristol Water will confirm this position to the Secretary of State.

The Environment Agency

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The Applicant and the Environment Agency reached agreement on all outstanding matters before the end of the Examination. The Applicant understands that all matters previously raised by the Environment Agency are now resolved provided the Secretary of State includes within the DCO, should she be minded to make it, the agreed DCO Requirements and protective provisions which the Applicant included in the final version of the draft DCO (Volume 2.1E) submitted to the Examination. The Applicant understands that the Environment Agency will be writing to the Secretary to confirm this to be the position.

First Corporate Shipping Limited

The Applicant confirms that the legal agreement referred to within its Update in respect of

Negotiations with The Bristol Port Company (Volume 8.52), submitted at the close of Examination, was completed between the parties on 17 August 2015.

The Applicant understands that First Corporate Shipping Limited maintains its submissions, as made to the Examination, regarding overhead line clearances at Avonmouth, the choice of route option and the use of lattice and not T pylons across its land. However, in view of the legal agreement being concluded, there are no outstanding issues between the parties and it is expected that First Corporate Shipping Limited will confirm this position to the Secretary of State.

RWE Generation UK plc

The Applicant’s position remains as set out in its document entitled Response to Deadline 7

Submissions made by RWE Generation UK plc (Volume 8.51), submitted at the close of the Examination, namely that the proposed protective provisions at Part 8 of Schedule 15 to the Draft DCO (Volume 2.1E) provide adequate protection for RWE Generation UK plc (RWE) and its coal conveyor at Bristol Port.

Nonetheless, and as also set out by the Applicant in its Deadline 8 submissions, the Applicant is willing to discuss and agree with RWE further detailed arrangements to govern the interface between the coal conveyor and the proposed development. Since the close of the Examination, the Applicant has offered to enter into a legal agreement with RWE and a draft document has been provided to them for comments.

The parties continue to discuss the terms of that agreement although there remains a number of issues which are yet to be agreed. On 16 November 2015 RWE provided detailed comments on the draft agreement, the effect of which was to seek the inclusion of provisions analogous with those contained within RWE’s preferred form of protective provisions for inclusion within

the DCO as submitted to the Examination at Deadline 7. The Applicant’s Response to Deadline

7 Submissions made by RWE Generation UK plc (Volume 8.51) responded in full to explain why it did not consider those provisions to be appropriate or necessary. The Applicant has separately explained this to RWE directly.

One area of disagreement between the parties relates to the height of the pylons proposed to be constructed within Bristol Port and within land in respect of which RWE enjoys an interest. RWE has requested that the Applicant provides certainty as regards the height of the pylons in this location. The Applicant has explained to RWE that the Secretary of State, should she be

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minded to make the DCO, will determine whether the height of the pylons within Bristol Port should be increased from the height shown on the design drawings when the application was originally made. As such, it is not possible to confirm the precise height at which the pylons will be constructed in this location until such time as a decision has been issued by the Secretary of State.

Nonetheless the Applicant has offered, subject to engineering feasibility, to construct the pylons at the maximum height permitted by the limits of deviation specified in the DCO once applied to the design drawings as approved by the Secretary of State.

Disagreement also remains regarding the consideration payable to RWE in respect of the Applicant’s proposals. RWE appears to be seeking payment of an additional sum in consideration of it entering into the proposed agreement. The Applicant does not consider payment of such consideration to be necessary or appropriate given that it will in any event be required to compensate RWE in accordance with the compensation code, as applied by the DCO, in respect of the exercise by it of any powers of compulsory acquisition or temporary possession in relation to RWE’s interests in land.

Notwithstanding these disagreements, the Applicant remains willing to enter into agreement with RWE and proposes to continue discussions with a view to reaching an agreed position in so far as may be possible.

Wales and West Utilities Limited

The Applicant and Wales and West Utilities Ltd have agreed the terms of a Statement of Common Ground which confirms that there are no outstanding issues between the parties.

The Applicant now encloses a signed copy of the Statement of Common Ground.

Western Power Distribution (South Wales)

The Applicant believes the intention was to refer to Western Power Distribution (South West) (WPD). The Applicant and WPD entered into a framework agreement on 16 March 2015 to govern a number of matters relating to the proposed development.

In addition, negotiations between the parties are ongoing in relation to the acquisition of the rights that the Applicant requires over WPD land. Both parties are working towards concluding this agreement as soon as possible. Otherwise, the Applicant is not aware of any outstanding issues between the parties and it is expected that WPD will confirm this position to the Secretary of State.

Should you have any further questions or require any additional information, please do not hesitate to let us know.

Yours faithfully

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Bircham Dyson Bell LLP T +44 (0)20 7783 3410 F +44 (0)20 7233 1351 E nicholasbrown@bdb-law.co.uk

Enclosures: (1) Statement of Common Ground between Wessex Water Services Limited and National Grid plc;

and (2) Statement of Common Ground between Wales and West Utilities Limited and National Grid plc.

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Annex A – Proposed Changes to Schedule 3 of the Development Consent Order Proposed new text shown underlined DCO Requirement 5(1) All construction works for the authorised development and mitigation works to minimise the impacts of construction must be carried out in accordance with the CEMP, unless otherwise agreed with the relevant planning authority and the relevant highway authority as may be appropriate to the relevant plan, scheme or strategy concerned. DCO Requirement 6(2) The construction works for each stage of the authorised development and mitigation works to minimise the impact of construction must be carried out in accordance with the approved plans and scheme referred to in sub-paragraph (1), unless otherwise agreed with the relevant planning authority. The Applicant does not consider that the above proposed amendments to the drafting of DCO Requirements 5(1) or 6(2) are necessary as such mitigation works are already reflected in the drafting. This is because the term “Authorised development” is defined in the draft DCO as follows:

“the development and associated development described in Schedule 1 (Authorised development)…”

In turn, paragraph (d) of the associated development described in Schedule 1 includes:

“landscaping and other works to mitigate any adverse effects of the construction, maintenance or operation of the authorised development’.

Mitigation works to minimise the impact of construction are therefore already expressly included within the definition of ‘Authorised Development’. As such, these works are already included within and secured by DCO Requirement 5(1) (Construction Environmental Management Plan) and DCO Requirement 6(2) (Approval and Implementation of Construction Mitigation Plans). The suggested amendment is therefore not considered by the Applicant to be necessary. DCO Requirement 10(2)(c) Details of the five year maintenance regime; for areas other than bat flyways and details of eight year maintenance regime for the bat flyways. The Applicant does not consider that the proposed amendment to the drafting is appropriate or necessary because these measures are already addressed and secured through distinct and separate DCO Requirements. DCO Requirement 10 (Replacement planting) makes provision for replacement planting schemes which are to be maintained for a five year period. Bat mitigation measures, which includes the creation of temporary bay flyways and foraging areas are secured through DCO Requirement 14 (Bat Mitigation Measures). During the hedgerow establishment period bat flyways will be maintained. The planted hedgerows will be fenced on either side with stock-proof fencing and a windbreak mesh will be fitted to one side of this

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fencing. The fence will provide a physical structure for the bats to follow and the wind break provides shelter from wind and to some degree rain. The maintenance period for these temporary bat flyways is confirmed in the ES CEMP Appendix 2 - Biodiversity Mitigation Strategy (BMS) (Volume 5.26.3C) submitted to the Examination at Deadline 7. The BMS provides for temporary bat flyways to be maintained for eight years (see paragraph 2.2.35 of the BMS). It should be noted that, as all affected hedgerows within the Area of Outstanding Natural Beauty (AONB) are covered by the provisions for the reinstatement of bat flyways the Applicant has committed to maintaining these replanted AONB hedgerows for eight years. As these matters are already the subject of separate and distinct DCO Requirements it is the Applicant’s view that the amendments proposed are unnecessary and in addition may cause confusion. DCO Requirement 14(1) Bat mitigation measures, including measures for the creation of temporary and permanent bat flyways and foraging areas in the event that hedgerows or grasslands are removed in connection with any stage of the authorised development, must be provided in accordance with the details identified in the Biodiversity Mitigation Strategy, unless otherwise agreed with Natural England after consultation with the relevant planning authority. DCO Requirement 14(2) The measures referred to in sub-paragraph (1) must be maintained during the period or periods identified in the Biodiversity Mitigation Strategy and managed for eight years

As explained above the BMS provides that the Applicant will create temporary bat flyways only. These are temporary structures designed to provide a physical structure for the bats to follow until the planted hedgerow becomes established. It is, therefore, incorrect to refer to “and permanent bat flyways” in DCO Requirement 14(1) and (2). The Applicant’s eight year maintenance obligation in this regard is secured through amendments to the BMS and the corresponding DCO Requirement at the request of Natural England. The approach to construction phase bat foraging habitats, temporary bat flyways and reinstated hedgerow along bat flyways was developed by the Applicant in consultation, and ultimately agreement with Natural England. Natural England has confirmed that it is content with these proposals (see item 8.23 of Volume 8.3.1B – Statement of Common Ground). The Joint Councils also confirmed that they were satisfied with the manner in which the Applicant had addressed its concerns regarding the BMS - please see item 14.1 of the Applicant’s written summary of case put forward orally at Issue Specific Hearing on Development Consent Order on 17June 2015 (Volume 8.13.14). The BMS makes clear (paragraph 2.2.35, Volume 5.26.3) that reinstated hedgerows, at locations where bat flyways will be used as mitigation during the construction period, will be maintained for at least eight years. The BMS also makes clear (see paragraph 2.2.28) that this proposal is secured by DCO Requirement 14 (Bat mitigation measures) and that this is a default position which can be amended subject to an updated assessment and only with the approval of Natural England. Furthermore, the temporary bat flyways only need to be in place from the date of removal of the original hedge (to allow construction) until the planting and establishment of the replacement hedgerow. The Applicant worked with Natural England to make this period as short as possible by phasing the works and so a reference to a fixed eight year period within the DCO Requirement is not helpful and contrary to the position agreed with Natural England.

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Further, the inclusion of bat foraging habitats under this eight year maintenance period is not appropriate or necessary. The bat foraging habitats are construction phase mitigation habitats which will be maintained for the duration of the construction period only (see Appendix D of the BMS Volume 5.26.3). There is no need to maintain these habitats post construction phase of the 400kV underground cables. For the reasons raised above, the Applicant considers that the original drafting of DCO Requirements 14(1) and (2) is to be preferred to the amendments proposed above. The original drafting accurately reflects the agreed position with Natural England and provides flexibility to amend the length of the maintenance period if necessary. The consent of Natural England is required and as such provides an appropriate safeguard to prevent shorter time periods being inappropriately employed by the Applicant.