In July 2014, as part of its Red tape Challenge initiative to reduce the regulatory burden on businesses, the Government published a consultation document entitled “Technical Consultation on Planning”. The consultation contains proposals on the following subjects:

  • Neighbourhood planning 
  • Reducing planning regulations to support housing, high streets and growth
  • Improving the use of planning conditions
  • Planning application process improvements
  • Environmental Impact Assessment Thresholds
  • Improving the nationally significant infrastructure planning regime

The closing date for comments on the proposals in the document is 26 September 2014. This is our second note on the consultation. It covers proposed changes to the nationally significant infrastructure (NSIP) system established under the Planning Act 2008. Our note covering proposals to reduce planning regulations to support housing, high streets and growth can be found here.

Greater Flexibility in making Amendments to Development Consent Orders (DCOs)

In December 2013 the Government carried out a review of the NSIP system. One of the most common responses to the consultation was the desire of those involved in the system to make the process of amending existing DCOs more flexible. The current consultation contains proposals aimed at achieving just that.

The current legislation contains separate provision for making material and non-material amendments to DCOs. One of the issues has been that there are no definitions as to what constitutes a non-material or a material amendment. Indeed the consultation acknowledges that, given the wide range of types of project covered by the NSIP system and the almost limitless range of amendments that could potentially be proposed to a DCO, it is impossible to produce comprehensive definitions.

Instead the consultation suggests listing characteristics which, if they apply to a proposed amendment, would be taken as indicating that the amendment is more likely to be non-material. The consultation invites suggestions for what characteristics might go on this list. As a start point it suggests that amendments would tend to be taken as non-material if they did not involve: 

  • an update to the Environmental Statement (from that at the time the original Development Consent order was made) to take account of likely significant effects on the environment;
  • a need for a Habitats Regulations Assessment, or the need for a new or additional licence in respect of European Protected Species; or
  • compulsory acquisition of any land that was not authorised through the existing Development Consent Order.

The consultation also proposes some procedural changes when applying for amendments.

Non-Material Amendments

At present, the main stages in the process are:

  • an application is made to the Secretary of State with a fee payable with the application;
  • the Secretary of State then publicises the application through a notice in a local newspaper in the area where the infrastructure project is situated, as well as in any other publication that the Secretary of State considers necessary. Anyone is then able to make representations on the application during a period set out in the notice (a minimum of 28 days);
  • the Secretary of State must also consult persons listed in the 2011 Regulations by sending them a copy of the notice that is published;
  • after the end of the period for making representations, and having considered any representations received, the Secretary of State can make a decision on the application.

The consultation proposes to make the applicant responsible for the consultation steps in the second and third bullet points (above). This would enable the relevant notices to be prepared alongside the application and allow the 28 day period to start running more or less from the date of the application, thus avoiding delays while the Secretary of State drafts the notices and arranges for publication.

Material Amendments

As things stand, the procedure for applying for a material amendment is very much the same as that for applying for a new order. The consultation proposes a number of changes aimed at streamlining the process:

  1. Publicity: There is currently a requirement to consult everyone who was consulted on the original order. The consultation states that in many cases this will not be necessary, citing the example of a linear project (such as a new motorway or rail route) where a change is proposed to a short stretch of the project. In that case it would clearly be an onerous requirement for everyone who was previously consulted to be re-consulted. Instead the consultation proposes to amend the consultation requirement such that only those who “could be directly affected by the change proposed if consent for the change was given” need be consulted. In addition, the requirement to prepare a statement of community consultation, setting out how it is proposed to consult people living in the vicinity of the project, is proposed to be removed in relation to an application for an amendment. The current requirement to publish a notice in a local newspaper is also proposed for removal. 
  2. Public Examination: The consultation suggests that the current automatic requirement to hold a public examination (akin to a public inquiry) in relation to a material amendment application might not be appropriate in every case. There may, for example, be only a very limited number of representations received about a change. Or there may be situations where the representations received may be considered not to be directly relevant to the change being proposed because they only relate to the principle of the consent. It is therefore proposed that the Secretary of State be given the power to dispense with a public examination if he considers that one is not necessary.
  3. Statutory Time Limits: Applications for material amendments are subject to the same timescales as applications for DCOs themselves – eight months from acceptance of the application to determination. Logically, consideration of an amendment should not take as long as consideration of the whole project. The consultation therefore proposes to halve the time limit for consideration of material amendments to four months – two months for the examining authority to produce a report and two months for the Secretary of State to consider it.

Extending the Scope of DCOs

DCOs were intended to be a “one stop shop” enabling all the consents required for a project to be dealt with in a single consent document. Although a DCO can, in addition to granting planning permission, grant compulsory purchase powers and a range of other consents (eg stopping up or diversion of highways), the regime is not fully comprehensive. In order to go some way to addressing this, it is proposed that the following additional consents will be able to be included in a DCO:

  • European Protected Species: Licence under regulation 53 of the Conservation of Habitats and Species Regulations 2010 – issued to allow for necessary movement or disturbance of a protected species.
  • Flood Defence: Consent under section 109 of the Water Resources Act 1991 – for works that affect flood risk of main rivers.
  • Flood Defence: Consent under section 23 of the Land Drainage Act 1991 (prohibitions of obstructions in watercourses) – consent for works that affect the flow of ordinary watercourses.
  • Flood Defence: Consent under byelaws (paragraphs 5, 6 or 6A of Schedule 25 of the Water Resources Act 1991) – for works affecting sea defences/land drainage on main rivers, washlands and floodplains.
  • Discharge for works purposes: Consent under section 164 of the Water Resources Act 1991 – an operational consent required only in some cases.
  • Discharge for works purposes: Consent under section 166 of the Water Industry Act 1991 – concerns discharge from water company works and assets.
  • Trade effluent consents: Notice of determination of a reference by a sewerage undertaker (water company) under Chapter 3, Part 4 of Water Industry Act 1991 – concerns effluent discharge.
  • Water Abstraction: Licence under section 24 of the Water Resources Act 1991 (restrictions on abstraction) – issued to ensure maintenance and preservation of water resources.
  • Water Impoundment: Licence under section 25 of the Water Resources Act 1991 (restrictions on impounding) – to allow the construction of dams, weirs and engineering works during construction of a project.
  • Water Abstraction: Consent under section 32 of the Water Resources Act 1991 – to allow testing for the presence and quality of ground water before applying for a water abstraction licence.

Comment

We welcome these proposals. It is not unusual for projects to evolve as they progress through the consenting and development process and the greater flexibility and streamlined processing for amendment applications can only be good. The addition of ten new consents that can be rolled up in a DCO brings the system significantly closer to being the “one stop shop” originally envisaged.