UK: First Amendment To A Development Consent Order

Last Updated: 11 September 2013
Article by Angus Walker

Today's entry reports on the first time that a Development Consent Order has been amended.

The consent that emerges from an application under the Planning Act 2008 is known as a 'Development Consent Order' or DCO, although it is not normally called that in the Act itself. Oddly, it is only called a DCO in Schedule 6, which suggests a different person may have drafted that Schedule.

And it is Schedules 4 and 6 that are of interest to us today, because they deal with changes to DCOs. There are essentially three levels of change: corrections, non-material changes and material changes. A couple of weeks ago an order was made correcting a previously granted DCO, more on that later.

Corrections

The government can correct a DCO if

  • the DCO contains an error but the reasons for the decision do not contain the error
  • the government has been asked to correct the error within six weeks of the DCO being published or spots it itself and tells the project promoter
  • the government has told the local authority/ies where the project is about the proposed correction (although they don't seem to get a chance to respond)

Non-material changes

The government can make non-material changes to a DCO and there is a process of notification of and consultation on the proposed changes. Corrections are free but non-material changes cost the precise sum of £6,891 plus advertisement costs. As an example of a non-material change, the Act lists changes to requirements and imposition of new requirements. If you ask me, though, why would you want to make a non-material change? If there was any point in making the change, then surely it is material. There is an existing process for making non-material amendments to planning permissions that will be of some help in interpreting this, but as Bristol City Council's website states: Anything but the most insignificant change would need to be submitted as a new planning application.

Incidentally, the non-material change process has a provision in it that could usefully be applied to DCOs in general: The applicant need not consult a person or authority specified above, if the [government] is satisfied that this is not necessary [and must publish reasons for doing so on its website]. I have previously said that the provisions to change DCOs, which were added later, looked as though they contained some drafting that the government probably wished it had applied to the main process in the first place and this is an example of that. Something for the 2014 review, perhaps.

Material changes

For material changes, there is a greatly extended process that is virtually the same as applying for a new DCO. The only saving is that some of the original application documents can be reused. That seems an incredibly high burden to place on promoters when for example there is a minor change that has only become apparent later that might be of general benefit, and also given that non-material changes are likely to be very limited. I have been urging that this is looked at before a project actually falls foul of it, and I am glad to say that the Department for Communities and Local Government (DCLG) are being receptive in the context of the 2014 review.

The correction order

The Galloper offshore wind farm order was made on 24 May, and on 20 August the Galloper Wind Farm (Correction) order 2013 was made. The order makes no fewer than five corrections to the DCO. Two of the corrections are to do with references to a more recent version of a document having been published during the examination and two are to do with an approval and notification to apply to development in the water rather than generally.

If I were a lesser black-backed gull I might not be very happy with the fifth correction, since the number of predicted mortalities from the project allowed for that species used to be 18 per year and is now 101. It took me a while to get my head round that correction but it follows the decision letter since the project mitigation must reduce the mortalities by 15.2%, i.e. *by* 18, not *to* 18. The gulls needn't worry either, since the project promoters must carry out improvements to their habitat to offset the other 101 as well.

Analysis

The main lesson I would take from this is that once your order is published, you have just six weeks to spot any errors in it and make them known to the relevant government department, who must also notify local authorities within that time, so the approval party hangover will barely have worn off before starting work on checking the DCO. And the government is not infallible, either.

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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