The Infrastructure Planning Commission (IPC) has published a letter on its website announcing that it has rejected changes to a scheme that was before the IPC for consideration - the Brig-y-Cwm energy from waste generating facility. Please click here to view this letter.

Post-submission of the application, Covanta sought to refine its design by reducing the quantity of spoil removal required (in response to consultees' concerns raised post-submission on the sustainability of significant spoil removal). This was to be achieved by reducing the excavation undertaken and raising the base foundation for the development, apparently by up to 3m on some parts of the site.

The IPC refused to accept the consequential amendments to the application because:

  • it feared that the effect of the changes would be granting development consent for a development substantially different to that proposed in the original application, which it believed would be unlawful having regard to a judicial decision in the case of Wheatcroft that precludes development that is in substance not that which was applied for; and
  • it considered the changes to be substantial because the grant of development consent for the changed scheme might deprive parties entitled to be consulted of the opportunity to express their views and become interested parties (according to Wheatcroft, this criterion is the main one for decision-makers to consider in concluding whether or not there is a substantive change to a proposal).

There are several lessons to be learned from this:

1. The IPC concluded from legal background, policy and guidance that material changes are likely to be significant and so are also likely to have an impact on third parties including those who haven't previously commented on proposals. 

The IPC agreed that the examination itself gave an opportunity for those who were affected by the changes to comment, but highlighted that those who hadn't previously submitted relevant representations couldn't be interested parties with the consequent right to submit written representations and appear at the hearing. 

The IPC also added that the pre-application consultation procedures were not replicated at the examination stage and, in particular, didn't give those newly-affected parties an opportunity to influence the design of the scheme. 

The IPC concluded that accepting the proposed changes would circumvent the statutory pre-application consultation requirements.

2. Proposals can be significantly altered even if only a small number of changes are made to the original proposals (in this case, environmental impacts and changes to engineering operations) but many others are not (e.g. no changes to limits of deviation or overall site layout). 

3. In particular, the IPC concluded:

(a) that the changes to the engineering operations were significant because they were "development" in themselves (alterations to the physical levels); and

(b) that the changes would have effects on amongst other things visual, landscape and heritage matters. 

4. Covanta proposed changes to address concerns raised post-application about the sustainability of spoil removal associated with its previous proposals. The IPC agreed with the Design Commission for Wales's (DCW) negative reaction to the proposed post application changes.

DCW had said at pre-application stage that it wanted the development to be lowered.  This flags up the need to seek to cover off options at pre-application stage to bring those interested in the proposals out of the woodwork and ensure that the conflicting interests of consultees can be considered and hopefully reconciled. The IPC's decision also highlights the difficulties that promoters may be placed in when reacting to concerns raised by consultees at a late stage in the process.     

Overall this decision points to the inflexible nature of the new consenting regime in that all but the most minor changes are liable to rejection on what might be very few, but significant, grounds. The upshot of this is that in undertaking consultation it is very important to consult as widely as possible on development options before an application is made and not seek to retro fit design changes after an application has been submitted.

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