On 21 July 2015, the Planning Inspectorate issued a new Advice Note 16. The purpose of the Advice Note is to provide information to applicants about how to request a material change to an application after it has been accepted and before the close of the examination.
The Advice Note intends to build upon the DCLG guidance which sets out the factors an Examining Authority (ExA) will need to consider when deciding whether or not to accept a material change. This includes whether:
- the application (as changed) is still of a sufficient standard for examination;
- sufficient consultation on the changed application can be undertaken within the examination timescales; and
- any other procedural requirements can still be met.
The Advice Note does not consider changes to Development Consent Orders (DCO) that have already been granted despite Government promises that this would be in place by 15 July 2015.
Making material changes
It is recognised that although applications should be fully prepared in advance of submission with technical issues resolved as far as possible. However there are occasions when material changes may need to be made. This can be as a result of ongoing negotiations with stakeholders, changes to government policy or technical developments. Any proposed change must be fully justified however, with reasons given for why the change was not dealt with before submission.
What is a material change?
There is no definition of "material" in the Planning Act 2008 or associated Regulations. Applicants are informed they will need to decide for themselves whether a proposed change is material and therefore whether to request the ExA to consider accepting a material change to the application. However, even if an Applicant has not made such a request, it will be the responsibility of the ExA to decide whether any new information submitted into the examination constitutes a material change.
Key steps in requesting a material change
The Advice Note sets out five steps to make a material change, as follows:
- The Applicant informs the ExA in writing that a request for a material change is to be made;
- The ExA advises the Applicant on procedural implications and any further consultation requirements;
- The Applicant carries out non-statutory consultation on the proposed change, giving a minimum of 28 days for responses (note that statutory consultation may also be required if further compulsory acquisition is sought);
- The Applicant requests the ExA to examine the changed application (a "material change request");
- The ExA makes a procedural decision whether to examine the changed application and how it should be done.
Information required with a material change request
The Advice Note sets out a detailed list of information that should be included with a material change request, in particular:
- a description of the change;
- updates to any application documents;
- provision of new environmental information if necessary along with confirmation that the relevant consultation bodies have been consulted;
- confirmation that where additional land is required the appropriate regulations have been complied with; and
- a statement outlining how the non-statutory consultation has been carried out.
Role of the ExA
The ExA must ensure that the rights of anyone who could be affected by a proposed change are protected. It must consider, based on planning judgement, whether the change is so material that the Applicant is seeking consent for a different project which has not been subject to the pre-application statutory procedures. If so, it would no longer be capable of being examined within the statutory timetable without breaching principles of fairness and reasonableness.
If the proposed changes are not accepted, then the Applicant will need to decide whether to proceed on the basis of the submitted application, to withdraw the application or to submit a lesser change.
The Advice Note highlights the implications of making a material change request at different stages of the process, i.e:
- Pre-examination – this stage is not driven by statutory timetables and therefore time can be allowed before the examination commences for consultation. It is preferable that the change is communicated to the ExA in advance of the Rule 6 letter inviting participants to the Preliminary Meeting is issued, to minimise impacts on the timetable.
- Examination – any request to make a material change must be made as soon as possible, given the statutory timescales for completing the examination. The steps listed above will need to be followed but a material change request made in the final few weeks of the examination is unlikely to be accepted by the ExA.
It is not uncommon for changes to be proposed to projects during examination, perhaps leading to a smaller scheme or alternative mitigation being proposed. An example is Navitus Bay Wind Park (advised by Bond Dickinson), which proposed a smaller scheme during the examination that contained fewer turbines and was located further from the shore. The application for a material variation was accepted by the ExA for further examination within the statutory timescales during the examination period.
The Advice Note provides a useful structure as to the steps to be taken when proposing material changes to a scheme, which was previously dealt with by ExAs as they saw fit. The five steps outlined above should serve to provide a clear procedure which will assist applicants and interested parties alike, It should also minimise debates during examination around the proper course of action to be taken.
Difficulties will no doubt continue to arise in defining "materiality" and whether a material change request has been made by the Applicant or not. Likewise debates are still expected over whether in accepting a material change the ExA would not be acting in accordance with the principles of fairness and reasonableness – particularly where objectors are seeking to have the proposal rejected. The Applicant can assist the ExA by consulting widely on the proposed change; informal consultation will be vital in showing that interested parties have had an opportunity to comment on the proposals and will reduce the risk that the change may not be accepted.