Since last September there have been decisions on 18 Development Consent Orders (DCO), with three refusals (the offshore wind farm Navitus Bay, the onshore wind farm Mynydd y Gwynt and the White Rose carbon capture and storage project) and grants of consent secured for the remainder. These successful projects are primarily in the energy sector, including a number of power stations and offshore wind farms, bringing the total of granted DCOs to 60 since 2011.

In terms of ongoing DCOs, there are a further two projects with the relevant Secretary of State for decision, one at recommendation stage and five in various stages of examination.

In December 2015, the long-awaited guidance on changes to granted DCOs was published by the Department for Communities and Local Government (DCLG) which sets out, amongst other matters, the tests that will indicate whether a proposed change to a DCO is more likely to be material.

We have also seen the introduction of permanent housing into the Planning Act 2008 (the 2008 Act) via the Housing and Planning Act 2016, albeit with a geographical or functional link to the principal infrastructure project. Onshore wind has been removed from the remit of the 2008 Act. The 2016 Act also has some implications for compulsory acquisition, in terms of the time period for serving notices and also on material detriment claims. These provisions are on the statute book but not yet enacted.

Further changes are proposed, via the Wales Bill, to the operation of the 2008 Act with regard to certain infrastructure in Wales.

Pre-examination

  • Silvertown Tunnel – on 31 May 2016, an application for a new road tunnel that will pass under the River Thames between Silvertown and north Greenwich was accepted by the Planning Inspectorate (PINS). Registration of interested parties closed on 31 August 2016.
  • M20 Junction 10A – on 11 August 2016, an application for a new junction and associated improvement to the south of Ashford was accepted by PINS. Registration of interested parties closes on 3 October 2016.

Examination

  • Glyn Rhonwy Pumped Storage – the preliminary hearing for this application for works to convert two disused slate quarries into a pumped storage battery was held on 8 March 2016.
  • Keuper Gas Storage Project – the preliminary hearing for this application for an underground gas storage facility was held on 16 March 2016.
  • Richborough Connection Project – the preliminary hearing for this application for an electricity transmission connection between Richborough and Canterbury in Kent to connect the proposed new UK to Belgium interconnector was held on 8 June 2016.
  • East Anglia THREE Offshore Wind Farm – the preliminary hearing for this application for an offshore wind farm off the coast of East Anglia was held on 28 June 2016.
  • Wrexham Energy Centre – the preliminary hearing for this application for a combined cycle gas turbine power station was held on 19 July 2016.

Recommendation

North London Heat and Power Project – the examination of this application for works to develop a new energy recovery facility at the Edmonton EcoPark ended on 24 August 2016. The Examining Authority has until 24 November 2016 to makes its recommendation to the Secretary of State.

  • Brechfa Forest Connection – the examination of this application for works to install an overhead line to connect the consented Brechfa Forest West Wind Farm to an existing overhead line near Llandyfaelog ended on 6 April 2016. The Secretary of State has until 6 October 2016 to make its decision
  • Yorkshire and Humber CCS Cross Country Pipeline – the examination of this application for works to construct a 75km onshore pipeline ended on 19 May 2015. Following an extension to the decision timeframe, the Secretary of State had until 31 August 2016 to make its decision.

Applications consented by the Secretary of State

  • Triton Knoll Electrical System – on 6 September 2016
  • M4 Junctions 3-12 Smart Motorway – on 2 September 2016
  • River Humber Gas Pipeline Replacement Project – on 25 August 2016
  • Hornsea Offshore Wind Farm (Zone 4) – on 16 August 2016
  • North Wales Wind Farms Connection – on 28 July 2016
  • York Potash Harbour – on 20 July 2016
  • Meaford Energy Centre – on 19 July 2016
  • A14 Cambridge to Huntingdon Improvement Scheme – on 11 May 2016
  • Thorpe Marsh Gas Pipeline – on 3 March 2016
  • Palm Paper 3 CCGT Power station – on 11 February 2016
  • A19/A1058 Coast Road Junction Improvement – on 28 January 2016
  • Hinkley Point C Connection – on 19 January 2016
  • East Midlands Gateway Rail Freight Interchange – on 12 January 2016
  • Internal Power Generation Enhancement for Port Talbot Steelworks – on 8 December 2015
  • Ferrybridge Multifuel 2 (FM2) Power Station – on 28 October 2015.


Applications refused by the Secretary of State

  • Navitus Bay Wind Park – on 11 September 2015
  • Mynydd y Gwynt Wind Farm – on 20 November 2015
  • White Rose Carbon Capture and Storage Project – on 13 April 2016.

Infrastructure Planning (Onshore Wind Generating Stations) Order 2016 – this Order made on 4 March 2016 brought into force amendments to exclude onshore wind farms of over 50MW in size from the 2008 Act regime, with the intention of returning decision making powers in relation to onshore wind to local authorities.

Housing and Planning Act 2016 – this received Royal Assent on 12 May 2016 and amends the 2008 Act to allow "related housing development" to be included in a DCO. Related housing development is defined as being on the same site or next to the infrastructure project (geographical proximity) or otherwise associated with it (functional need). The Secretary of State must have regard to any guidance when deciding applications which include related housing development.

Although draft guidance was issued in October 2015 as part of a briefing note when the Bill was published, it has not yet been published in final form. However, key points in the draft guidance are as follows:

  • No limits are proposed on the types of infrastructure that could include housing, although some will be more suitable than others
  • The maximum amount of housing that may be consented is proposed will be 500 dwellings
  • There may be restrictions on the amount of housing in locations where specific policies in the National Planning Policy Framework (NPPF) indicate that development should be restricted (e.g. land designated as Green Belt, designated heritage assets or flood risk areas)
  • Where housing is being provided on the basis of geographic proximity, developers will need to demonstrate that it is on the same site as, or is next to or close to any part of that infrastructure. In this context, “close to” should be considered to be up to 1 mile away from any part of the infrastructure for which consent is being sought
  • The housing element of any application is likely to need examination as a discrete entity, to ensure that any housing proposed is acceptable in planning terms. Reference will be made to policies set out in the NPPF and matters set out in supporting planning guidance.

Wales Bill – this Bill had its first reading on 7 June 2016 and contains proposals to amend the 2008 Act in relation to certain types of infrastructure projects in Wales. A detailed note on the provisions can be found here and they are briefly summarised here:

  • Welsh harbour projects are removed from the 2008 Act regime except at a "reserved trust port"
  • The threshold for generating stations in Wales (including Welsh territorial waters) to fall within the 2008 Act is raised to 350M
  • Overhead lines in Wales that would fall under the 2008 Act but are associated with sub-350MW electricity generation projects are removed from the 2008 Act
  • Associated development can be included within the applications for any remaining Welsh generating station or electric line projects.

Until such time as the draft Wales Bill provisions come into force, development consent for energy generating stations above 50MW in Wales will continue to be determined by the Secretary of State under the provisions of the 2008 Act, with the exception of onshore wind which has been removed from the 2008 Act regime.

The Planning (Wales) Act 2015 – although not related to the 2008 Act regime, it is worth noting that this Act, which came into force on 1 March 2016, establishes a new process for the consenting of "developments of national significance" in Wales. It includes projects that are outside the 2008 Act, such as energy projects with a generating capacity of between 10MW and 50MW, airports, railway infrastructure, dams and reservoirs, and other types of development requiring planning permission that are considered to be of national significance.

Many of the provisions, including an obligation to undertake pre-application consultation, applying for connected consents at the same time and procedures for submission, consideration and determination of an application, reflect the framework established by the 2008 Act.

Planning Act 2008: guidance on changes to Development Consent Orders (December 2015) – the Infrastructure Planning (Changes to, and Revocation of, Development Consent Orders) (Amendment) Regulations 2015 (2015 Regulations) came into force on 14 July 2015 and amended the procedures to be followed where a change to a granted DCO is proposed.

The guidance accompanying the 2015 Regulations covers the two types of change that may be made to a DCO (non-material or material) and identifies characteristics which could be used to indicate that a change to a DCO is more likely to be material – i.e. if the change requires one or more of the following:

  • An update to the Environmental Statement (ES) (from that at the time the original DCO was made) to take account of likely significant effects on the environment
  • A Habitats Regulations Assessment, or the need for a new or additional licence in respect of European Protected Species
  • Compulsory acquisition of any land that was not authorised by the existing DCO.

The guidance notes that the impact on business and residents will also be a consideration in determining whether a change is material. This could include impacts such as visual amenity from changes to the size or height of buildings; impacts on the natural or historic environment; and impacts arising from additional traffic.

Advice Note 17 (Cumulative effects assessment) – a new Advice Note published in December 2015, it provides the following:

  • Description of the legal context and obligations placed on applicants with respect to cumulative effects under national planning policy and the EIA Regulations
  • Overview of the cumulative effects assessment process that applicants may wish to adopt for DCOs
  • Advice regarding a staged approach and the use of consistent template formats for documenting the cumulative effects assessment within an applicant’s ES.