Today's entry considers the ability to make changes to projects after applications have been made.
There are three sorts of changes that might be possible after an application for a major infrastructure project has been made:
- changes before or during the examination supported by the applicant
- changes during the examination not supported by the applicant, and
- changes after the decision.
I'll have a look at where I think we are on each of these.
Changes during the examination supported by the applicant
The issue of an applicant changing a project after it has been applied for has been an ongoing one and has cropped up in many, if not most, current applications. The bar below which changes are acceptable and above which they aren't has still yet to be defined clearly though. Paragraph 106 of the guidance on examinations is rather unhelpful on this point as it seems to set two different thresholds in consecutive sentences:
'the Secretary of State will need to decide on the materiality of the change and whether it is of such a degree that it constitutes a new project or whether it can still be considered under the existing application. If the Secretary of State decides that the change is such that it would result in a materially different project ...'
In my view 'constitut[ing] a new project' is a rather higher bar than 'a materially different project', something that was picked up at the Thames Tideway Tunnel preliminary meeting when the panel referred to both tests. If I build a new storey on my house it's a materially different house, but it is not a new house. In that mix is also the 28 November 2011 'Bob Neill letter' from the then planning minister to the then chair of the Infrastructure Planning Commission, which seems to suggest a higher rather than lower bar.
Changes during the examination not supported by the applicant
Last week, the Thames Tideway Tunnel examination involved hearings into alternative sites, and the issue of whether changes not supported by the promoter can be considered in an examination loomed large. To an outsider this question may sound about as relevant to real life as the question that had the Catholic church a-dither in 1327 in the novel the Name of the Rose: 'Did Jesus own his own clothes?', but it is actually an important issue for that and future projects.
If changes cannot be recommended, then representations on an application would have to be limited to:
- supporting the project,
- calling for minor mitigation or protection within the existing scope of the application,
- seeking support from the applicant for greater changes, or
- objecting to the whole project - there is no middle ground.
Objectors may not want to object to an entire project, but may have no choice (although they may have to accept the principle of it, depending on the National Policy Statement, if there is one, which is not the same as accepting that particular incarnation of the principle). It puts applicants in a tricky position too. Do they oppose changes and hope that their original application finds favour or do they decide they will have a better chance of success if they support the changes? It would reduce the tension for them to promote their own preference but know that the project will still get approved as a whole even if it didn't survive entirely unscathed.
Now an applicant doesn't have to apply for the best possible project or we'd never get anything approved, it just has to apply for one that is good enough. Having said that, the phrase 'good enough' is not that straightforward to define. The ultimate tests in the Planning Act for granting consent are whether (a) a project is in line with any relevant NPSs and (b) the benefits outweigh the adverse impacts. The existence of alternatives may have a bearing on both of those tests and hence the adequacy of the application, i.e. whether it is good enough.
Changes after the decision
At the moment, any material change to a project after it has originally been given consent must go through a process not much different in scale or length as the original application. That may be fair enough for a change that constitutes a new project, but not for a small, yet material change. No project has yet used this process, but it is still early days - only 13 consents have been issued so far. Even some of their promoters might have wanted to change them but thought better of it.
With a somewhat uncharacteristic degree of foresight, however, the Department for Communities and Local Government are including post-decision changes within the scope of the 2014 review of the Planning Act, and it is likely that the process will end up being more graduated according to the scale of the changes - good news!
The degree of change that might be allowed for all three of these types is therefore far from settled, but will surely become more so as practice develops.
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.
