Today’s entry reports on the Infrastructure Planning Commission's decision on a changed application.

The Infrastructure Planning Commission (IPC) is currently examining two applications, both for energy from waste projects and both promoted by Covanta Energy.  The second of these, for a facility near Merthyr Tydfil in Wales, has run into a spot of bother.

At the preliminary meeting last month, which is the first meeting held by the panel of IPC commissioners examining the application, the promoter announced that it was proposing to make changes to the project.  In order to reduce the amount of lorry movements from the site carrying away spoil from excavations, it was proposed not to excavate so much.  The knock-on effect of this was that the ground level on which the main building would sit would be 3 metres higher, in which case the building would be 3 metres higher up.

The panel announced that it would receive representations by 7 July on whether Covanta would have to start again with its changed application, or could carry on, and would make a decision yesterday.  The decision was published on the IPC website after 7 p.m. yesterday, and it was as follows: Covanta must decide to continue with its original proposals or start again with the changed proposals.

The decision letter can be found here.

Summary of the reasoning

The gist of the decision was that first, the changes are considered to be substantial.  If they hadn't been substantial, then there may not have been a problem.  Covanta's lawyers had argued at the preliminary meeting that they were not material changes, but the IPC has decided otherwise, albeit using 'substantial' rather than 'material', on cultural heritage, landscape, visual and design grounds.

Secondly, the IPC has used the principle outlined in a 1982 court case Bernard Wheatcroft Ltd v. Secretary of State for the Environment (the Wheatcroft principle) to decide what to do about a changed application.  This states that an application can be changed if all those who might be affected by the change are given an opportunity to make representations about the change (or rather it states that it  can't be changed if they aren't given the opportunity).  The IPC notes that this echoes the government's statements about changes to development consent orders after they have been made when going out to consultation on post-approval change procedures.

The IPC concludes that it would not be possible to consult all affected people on the changed application within the regime as it stands.  It bases this on three things:

  • there is no procedure laid down for dealing with modified applications except when more land is to be subject to compulsory purchase,
  • secondly, even if the IPC amended the examination procedure, the changes would still bypass the pre-application consultation stage and
  • thirdly, once the original representations are made this makes a closed group of 'interested parties' that cannot be extended.

The last point is indirectly supported by clause 121(9) of the Localism Bill where missed landowners can ask to become interested parties later.

Thus people who didn't respond to the original application but are affected by the changes are outside the reach of the examination procedure.  Ironically the large number of objectors might have made it difficult to find any, but the panel cites the Design Council for Wales as one who did not make representations originally but did so about the changes.

Implications

This ruling is likely to have several implications.  First, of course, Covanta must now decide whether to carry on with their original application or start again with their higher up one.  There is no deadline set out for them to do this, but there is a meeting about the application on 29 July where presumably their intentions will be revealed.  They cannot judicially review the IPC unless they withdraw their application.

[UPDATE: Covanta has decided to revert to its original application and carry on with that]

Secondly, it will make promoters of upcoming projects yet more nervous that if they don't get their application 'right first time', they will have to restart - it is all or nothing.  There are often unforeseen issues that only come up later in the process that no amount of pre-application consultation will uncover.  Promoters must also be able to react to representations received about their project once they make an application, otherwise there would be no point in making representations.

Thirdly, there will be increased calls for changes to the strictness of the regime via the Localism Bill. Here's one: I call for changes to the strictness of the regime via the Localism Bill. The government has already tabled a welcome amendment that will relax the criteria for accepting an application, but this issue is a different one.

It relates to the provision in the Planning Act (section 114) about approving a development consent order that is different from the one applied for.  Since the Lords are making such slow progress (clause 100 reached yesterday, two more days of debate of 19 and 20 July set down), there is still just time to table amendments for committee stage.  I commend amendments 166J and 166K which allow development consent orders to be made with modifications, but the issue at hand is about changes to the procedure for examining applications.

Fourthly, this may prompt the government to issue regulations under section 114 to cover the procedure for modifications to applications other than the addition of land subject to compulsory purchase.

That concludes an interesting week in the world of infrastructure planning and authorisation.