Today's entry reports on the ability to include alternatives in an application for a Development Consent Order.
As one of its final acts before it was abolished on 31 March, the Infrastructure Planning Commission (IPC) confirmed in advice given to National Grid that it would accept applications that contained alternatives in certain circumstances. The letter from National Grid to the IPC and the reply can be found on the advice log here.
It is not unusual for an infrastructure project to have alternative ways of being designed. The promoter of the project may be neutral as to which of the alternatives to adopt, or it may prefer one but still accept another if there is a consensus that it is better. Objectors may be divided on the issue, and so it is not always clear to the promoter which is 'better'. The worst outcome for a promoter would be for it to select one alternative only in its application, only to find that the decision-maker would have preferred the other one and refuses the application as a result.
Linear schemes - highways, railways, pipelines, electric lines - are most likely to be susceptible to alternative approaches, such as going overhead or underground at certain points, or round obstacles one way or another. Single-site schemes may also give rise to alternatives, though, either in themselves or because of their effects on, say, footpaths, which could be diverted in a number of ways.
In the IPC letter, five criteria are laid down whereby alternatives would be acceptable, as follows:
- still an NSIP: the project must still come under the Planning Act regime whichever alternative is chosen, i.e. one alternative would not be able to bring it below the thresholds in the Act (or, I suppose, the promoter could ask the government to declare that the project must use the regime whichever alternative is chosen)
- true alternatives: the application must clearly set out the alternatives (in particular that they are alternatives and both would not, and probably legally could not, be built)
- same project: the alternatives could not be so different that they are really two different projects
- all assessed: all alternatives must have been assessed in the application documentation, environmentally assessed in particular. Whatever scheme is chosen must come within the overall envelope of assessment (the so-called 'Rochdale envelope', after the court case that first established the concept); and
- all consulted upon: pre-application consultation must have been carried out on the alternatives.
I think that the first four are uncontroversial. On the last one, however, I can imagine circumstances where an alternative is suggested by a consultee and it is sufficiently minor that it could be included in the application without reconsulting, but where to draw the consultation line is a topic for another day. Incidentally, I think the IPC may have been thinking of phone hacking when it refers to an 'overheard line' in the letter at one point.
This is a very welcome development, and should be a relief to any promoters worrying about choosing one alternative in a prospective application. Just call me Oliver Twist, but there are two related areas that could also be addressed: a protocol for handling changes to applications after they have been made; and guidance on the circumstances in which and the extent to which the Planning Inspectorate would make changes to a project following the examination stage (e.g. removing land from compulsory purchase powers).
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