This is entry number 305, published on 14 December 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 government moves on allowing post-submission changes to applications.
One of the issues that makes potential applicants to the Infrastructure Planning Commission (IPC) more nervous than any other is the idea that applications have to be 'right first time'. In other words, all that can happen once an application is made is that it is either granted exactly in that form or refused, and there is no scope for making changes that would reduce adverse impacts, save money etc. This not only makes applications more risky, but it disadvantages other parties too, since it makes the idea of supporting a project in principle but objecting to some detail pointless.
The situation appeared to worsen this summer when Covanta Energy applied to change its application for an energy from waste facility at Brig y Cwm near Merthyr Tydfil. In order to avoid transport impacts of carrying spoil away from the site, they proposed keeping the spoil at the site, which would have made ground levels, and hence the apparent building and chimney height, three metres higher. After a period of deliberation, the IPC decided that Covanta could not change its application - it either had to start again or continue with the original proposal. Covanta decided to do the latter for a while, but eventually withdrew the application for other reasons.
The refusal and the reasons for it was covered in this blog entry. The three main reasons for the refusal (on the assumption that the change was material) were:
- there is no procedure for handling material changes;
- the change bypassed the onerous pre-application consultation process; and
- 'interested parties' are fixed once the original representation period finishes and cannot be extended.
It is also relevant that there is an ability in the Planning Act for the government to regulate the making of changes, but so far it has chosen only to exercise this for adding land subject to compulsory purchase. Now the scene is set for the latest development.
Neill letter
In a not-very-well-publicised move as yet unreported elsewhere, planning minister Bob Neill MP has written to Sir Mike Pitt, Chair of the IPC, on the subject of changing applications after they have been made. The letter can be found here.
The letter starts by supporting the IPC decision not to allow changes to the Brig y Cwm application but goes on to say that material changes are sometimes needed through no fault of the promoter: 'for example where the regulatory environment changes, or information comes to light which could allow the impacts of the project to be reduced'.
Bob Neill declines to make further regulations under the Act to govern changes, saying that 'the impact of any proposed amendments could vary considerably', and that the IPC is in a better position to decide how to handle them on a case by case basis. He no doubt means that a single one-size-fits-all procedure would be unlikely to fit all the unpredictable and varied things that can happen during consideration of an application.
He then goes on to suggest what a change procedure might look like, should the IPC think it appropriate to come up with one (hint, hint). Thus in answer to the first reason for Brig y Cwm refusal, the IPC can come up with its own procedure. On the second, it could introduce a consultation stage as it sees fit, suspending the timetable if necessary.
On the interested parties point, the letter suggests the IPC could treat additional people like interested parties even if they technically weren't. The Localism Act will introduce a limited ability to allow new interested parties to be added (or the Localism Bill, as the letter dated two weeks after its enactment says, suggesting it has had a fairly long gestation).
Analysis
I think that this is a very welcome move in an area on which I have been expressing concern for a while. We're not there yet, though, because it remains to be seen whether the IPC does as is suggested of it. I also think that leaving it to a case by case basis to decide what to do, although understandable, does not sufficiently remove the uncertainty. Asking 'will we be able to make material changes to our application?' and being told 'wait and see' hardly puts the matter at rest.
There should be more clarity in advance of making an application of the circumstances in which, and the procedure that will be adopted when, material changes are able to be proposed to an application. It is rather like the 'seamless transition' to the non-IPC world in April being decided on a case-by-case basis (an earlier bugbear), which has now been supplemented by various statements about how this will be handled. Indeed, the concept of National Policy Statements, an advance declaration of need and impacts to be mitigated that is settled and not debated during consideration of applications, the cornerstone of the Planning Act, represents the same principle. Clarity in advance, not uncertainty in mid-stream, I say!
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