UK: 319: Make Changes To Planning Act 2008 (DCO) Applications Easier

Last Updated: 14 February 2012
Article by Angus Walker

Callls for guidance on when applications can be changed after they have been made.

This is the second in a series of entries with suggestions for how the Planning Act regime could be improved, as it approaches its second anniversary on 1 March.  The first entry can be found here.  The subject of this entry is making changes to applications after they have been made.

The history of this issue can be traced back to the Heathrow Terminal 5 application.  It was the length of that process (nearly seven years) that was one of the main drivers for the new consenting regime introduced by the Planning Act 2008.  One of the features of the Heathrow project was the multitude of applications - 38 applications under eight different consenting regimes.  I analysed these in an early pair of blog entries to find out if the new regime would have boiled these down to a single application (not quite) here and here.

What may be less well known is that at the time of the pre-inquiry meeting for the project (corresponding to the start of examination under the Planning Act), only four of those 38 applications had been made.  For whatever reasons, the whole project was not fully developed by that time, and this was a feature that the Planning Act regime sought to change.

As is often the way, the pendulum has probably swung too far in the opposite direction.  From allowing a rather inchoate application to be made that evolved as the consenting process progressed, we now have the situation that an application can hardly be changed at all once it has been made.  The prospect of improving an application after that point has been sacrificed on the altar of fixed timescales.

This has had practical implications.  Back in June 2011, at the preliminary meeting for the proposed Brig y Cwm energy from waste project, changes were proposed to it.  These had some benefits (fewer lorry movements) and some additional impacts (primarily visual).  After considering whether it could allow the application to continue with the changes, the Infrastructure Planning Commission (IPC) decided that it could not.  See a full report of the announcement here. The promoter Covanta Energy had either to continue with the original proposal or start again with the new one.  It decided to do the former, but a couple of months later withdrew the application altogether.  This may or may not have been influenced by the inability to change the application.

In November, planning minister Bob Neill MP wrote to the IPC to support its decision on Brig y Cwm, but also to suggest that it developed a procedure for allowing changes to be made to applications - see here.  It is busy handling the changeover to the National Infrastructure Directorate (see this response to my query) but developing such a procedure should be one of its main priorities once it starts in its new guise.  If promoters do not believe that their applications can be changed at all once they have gone in, then they will spend time endlessly refining them before daring to put them in, leading to needless delay.  Once they are in, the applications will have a greater risk of rejection than should be the case.

For example, surely it should be acceptable to amend an application to reduce its impacts, such as taking less land or reducing the height of something.  If there are no significant additional impacts, then who would disagree that the application could be changed in this way?  At the moment, however, there is no guidance that this would be allowed.  The necessary changes in guidance to reflect the abolition of the IPC are an opportunity to remedy this.

Guidance on alternatives would be helpful as well.  If a promoter is neutral about two choices but objectors are divided over them, then surely it is better that the consenting body decides which to go for rather than the promoter.  If an application cannot be changed, then the promoter has to opt for one at the time of making the application, when it could later transpire that the other was more acceptable - this may not be flushed out by pre-application consultation.  Should the whole application be turned down as a result?

While no-one wants to return to the T5 situation of partial applications being made, on the other hand the idea that an application cannot be changed is equally off-putting and ignores the reality of unexpected developments, the possibility of improvements and the effectiveness of representations.  I make the last point because if an application cannot be changed and therefore is either pass or fail, the only effective representations are those that are in complete support or complete opposition to an application - those suggesting changes that are more than minor are redundant.

To summarise, some suggested actions:

  • publication of guidance on when an application can be changed without interrupting the examination process (e.g. to remove land);
  • publication of guidance on the promotion of alternatives; and
  • urgent development of a process for changes where there are additional impacts.

Again this is an issue that members of the National Infrastructure Planning Association (NIPA) are keenly aware of and are pressing the government to address.

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.

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Angus Walker
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