UK: IPC Rejects Changes To Brig Y Cwm Application

Last Updated: 20 July 2011
Article by Angus Walker

This is entry number 262, published on 15 July 2011, of a blog on the Planning Act 2008 infrastructure planning and authorisation regime. Click here for a link to the whole blog. If you would like to be notified when the blog is updated, with links sent by email, click here.

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.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Angus Walker
 
In association with
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.