Following the wider technical consultation on planning over the summer, the Government has issued its response on the parts relating to  Nationally Significant Infrastructure Projects.

The proposals set out in the consultation will largely come forward unaltered.

Subject to the Infrastructure Bill being enacted, the changes should be introduced in the current  Parliamentary term. This will be welcomed as a number of uncertainties of the current system will  be clarified, enabling projects which need to change, to come forward more quickly.

Set out in more detail in this briefing is the Government's response to the submissions it received and the changes that will be taken forward.

Changes to Development Consent Orders

Test of Material/ Non-material change

Development Consent Orders (DCOs) are made for Nationally Significant Infrastructure Projects that use the fast-track planning regime under the Planning Act 2008. The  process for changing a DCO is potentially cumbersome and costly. The process also differs dependent  on whether the change is considered to be 'material' or 'non-material', which will not always be  clear cut.

The consultation identified three characteristics which could be used to indicate that a change to  a DCO was more likely to be material – if the change requires:

  • an update to the Environmental Statement (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; or
  • compulsory acquisition of any land that was not authorised by the existing DCO.

The Government has confirmed that these tests provide a useful indicator of whether a proposed change is more likely to be material.

Future Guidance

The tests will be covered in future guidance. In relation to updates to the Environmental Statement, the Government will take into account comments made in the consultation  regarding the need to refer to new significant environmental effects.

Other tests which were proposed including impacts on businesses or residents, highways or design changes will not be taken forward.

No option to seek informal view

There will not be an option to seek an early formal opinion on the materiality of change as it will be non-binding and preparatory work should include discussions with PINS.

Making a non-material change

For non-material changes to a DCO, applicants will have to seek the Secretary of State's permission to make the change and then comply with the publicity and  consultation requirements. The Government response confirms the intention to bring forward all of  the consultation proposals:

Applicant to carry out publicity and consultation on proposed change

  • Requiring the applicant to publicise and consult on their application rather than the Secretary of State.
  • Clarifying the publication and consultation requirements.
  • Specifying the scale of maps to ensure that an appropriate scale is used for offshore  developments – mirroring the same process which applies for new applications.

Applicant to pay costs of publicising application

  • Removing the requirement to pay the Secretary of State's costs for publicising the application (as he will no longer be doing so).
  • Requiring the applicant to supply a copy of the notice used in respect of publicity and consultation requirements to the Secretary of State.

Applicant to submit compliance statement

  • Requiring the applicant to supply a statement setting out how they have met the requirements for publicising and consulting on their application.

The changes require amendments to the Planning Act 2008 which the Government has indicated will be made via the Infrastructure Bill.

Making a material change

Currently the process to give effect to a material change is cumbersome and matches that for a new application. The Government response confirms that a number of changes will be coming forward:

Only parties potentially directly affected to be consulted

  • Consultation limited to parties who could be directly affected by the proposed change, rather than everyone who was consulted on the original DCO application will be  required. The other consultation requirements will remain unchanged.

No SoCC required

  • Removing the requirement to prepare a statement of community consultation (SoCC), but with the requirement to publish a notice of the proposed application remaining. The scope of the publication requirements is yet to be determined.

Option to dispense with examination

  • Whilst an examination will be likely in the vast majority of cases, the option to not have one will be introduced. In those cases there will be an opportunity for those  who submitted relevant representations to make further representations.

Shorter timetable

  • An examination timetable reduced to 4 months, a recommendation produced within two months, and further two month Secretary of State decision period. There is of  course a power for the examination to be extended; this will only be used sparingly.

Power to refuse to determine

  • A power for the Secretary of State to refuse to determine an application which in his opinion should be subject to a full application.

Future Guidance on procedures

The Government will work with PINS to produce guidance covering:

  • Assessment of whether changes are material or not.
  • Practical details on submitting non-material and material change applications.
  • The pre-application stage for material changes and consultation requirements, including the  role of statutory consultees.
  • Examples of the circumstances when the Secretary of State may decide not to hold an examination  into a material change.
  • The circumstances where the Secretary of State may decide to use the power to decline to  determine an application for a material change.

The Government response notes that the Guidance will not be able to cover every eventuality and  will be non-exhaustive. It will be updated as best practice develops.

Timing for the changes?

Before the May 2015 Election?

We have an election looming. At a recent National Infrastructure Planning Association meeting the official from the Department for Communities and Local Government indicated  that the changes, subject to the Infrastructure Bill being enacted this side of the election, could  be introduced into this Parliament. Publication of Guidance would then be dovetailed with that timetable.