Today's entry reports on some developing practice under the Planning Act regime that will be of interest to those involved in live and forthcoming projects (I hope).
The Planning Act 2008 contains a provision whereby a DCO cannot be granted that contains compulsory purchase powers over statutory undertakers' land if the undertaker has objected, unless the Secretary of State issues a certificate to the effect that the land can be taken without 'serious detriment' to the carrying on of the undertaking.
Considering that the main application for the DCO allows for compulsory acquisition hearings where such issues can be aired, as well as a written representation procedure, there is ample opportunity for this issue to be aired already. Now that the IPC has been abolished, it will even be the same person authorising the DCO and issuing the certificate, which is surely a pointless duplication.
Furthermore, this is separate to the possibility of Special Parliamentary Procedure (SPP) having to be undergone to consider the compulsory acquisition of the same land (see more on this in the previous blog entry), so the same issues might have to be gone through a third time - a pointless triplication! At least the government has pledged to legislate to reduce SPP - perhaps it will remove the certification process while it is at it.
There is some good news on the certification process already, however. In the case of the application for the Galloper offshore windfarm, Ed Davey, Secretary of State for Energy and Climate Change, has delegated consideration of a certificate applciation back to the lead examining inspector considering the main application - see the last page of this letter. There will still have to be something of a parallel process, but this means that the issues should only be considered once. I hope this practice is extended to all other certification applications.
In a previous blog entry, I noted that the IPC had asked some foreign countries if they wanted to be involved in the examination of an application for an offshore windfarm. In that case (Galloper again) the five countries asked either didn't reply or declined.
In the case of the Triton Knoll wind farm, however, the Belgian government has said it would like to participate in the examination of the application. An interesting development and a challenge for the examining authority. I hope they don't waffle on too much.
Relaxation in application standards
The Localism Act 2011 amended the Planning Act in several ways, one of which was to relax the standard of applications from strict adherence to the Act to 'satisfactory'. How has this translated into practice?
There is little practice to draw on so far, but three situations have arisen:
- PINS has noticed missing or incorrect application documents;
- the promoter has proposed corrections; and
- the promoter has confessed to an error that cannot be corrected.
I will spare the blushes of the projects involved, but can't resist saying that we weren't acting on any of them. In the first case, the practice so far is to be to accept applications even if they do not strictly comply (see the 'section 55 checklist' produced in each case), but then to ask for corrections or missing documents in the letter inviting people to the preliminary meeting . In the second case, the examining authority has decided whether to allow the corrections (positively so far). In the third case (late publication of a notice), the examining authority has again made a decision as to whether the application can continue (positively again).
After the preliminary meeting, the inspector or panel issues a list of questions for the project promoter and others to answer. There has been quite a variety in the number of questions being asked - here are the totals so far, in chronological order:
- Rookery South energy from waste: 18
- North Doncaster rail chord: 29
- Ipswich rail chord: 45
- Kentish Flats offshore windfarm: 124
- Brechfa Forest onshore windfarm: 60
- Hinkley Point C nuclear power station: 17
- Heysham to M6 highway: 48
- Preesall gas storage: 87
I have tried to find a mathematical correlation with some other factor. The nearest I can come up with is that the number of questions is roughly in inverse proportion to the number of representations received. Hinkley Point had the most representations and the fewest questions, Kentish Flats had the fewest representations and the most questions. So the Planning Inspectorate is taking the role of inquisitor seriously, it seems.