Technical consultation on planning drawing to a close

Today's entry reports on the 'technical consultation on planning', focusing on infrastructure planning.

At the end of July, the Government launched a wide-ranging consultation on planning, divided into six sections. The consultation document can be found here, and the consultation closes on Friday 26 September.

The earlier part of the consultation involves relaxing changes of use in various cases, and introducing deemed approval of discharge of planning conditions, but the final part is concerned with the Planning Act 2008 regime.

The proposals are in two general areas: making changes to development consent orders (DCOs) after they have been approved, and bringing more consents into the regime, moving further towards creating a 'one stop shop'.

There are 11 questions. I'll go through each one with my thoughts.

Question 6.1: Do you agree that the three characteristics set out in paragraph 6.10 [needing further environmental impact assessment, appropriate assessment or compulsory acquisition of land,] are suitable for assessing whether a change to a Development Consent Order is more likely to be non-material? Are there any others that should be considered?

I don't really like the phrase 'non-material', as it suggests something so minor that it doesn't matter, but of course there would be no reason to make the change if it didn't matter. It is almost by definition material to the developer. Perhaps 'minor' change might be better.

The 'further EIA' threshold is a fairly low one, lower than 'not resulting in materially different effects as those assessed in the environmental statement', for example. Most physical changes, if not already allowed by flexibility in the DCO, will therefore be higher than this threshold and so few will be able to take advantage of the simplest 'non-material change' procedure. To raise the threshold a bit, the slightly more relaxed wording could be used, common in restricting 'tailpiece' provisions in DCOs already.

Question 6.2: Do you agree with:
(i) making publicising and consulting on a non-material change the responsibility of the applicant, rather than the Secretary of State?
(ii) the additional amendments (see above) [relaxing scale of offshore maps and not paying fees for publicity] to regulations proposed for handling non-material changes?

Yes. The first is cost-neutral and speeds things up; the second is being done equivalently to main applications already.

Question 6.3: Do you agree with the proposals:
(i) to change the consultation requirements for a proposed application for a material change to a Development Consent Order?
(ii) to remove the requirement on an applicant to prepare a statement of community consultation for an application for a material change?
(iii) to remove the current requirement to publish a notice publicising a proposed application where an application for a material change is to be made?

Now we're moving on to material changes. These proposals remove various consultation duties on applicants. Instead of consulting the world as at present, only those who 'could be directly affected by the change' need to be consulted. That is a welcome simplification on the whole, but perhaps goes slightly too far in my view. There should still be a way of finding out about the proposed changes even if you aren't, in the applicant's view, someone who could be directly affected by them. This need only be publication on the PINS website or the London Gazette, where it can be found by those looking for it, but not having any general information about changes seems to fall short of reasonable to me.

Question 6.4: Do you agree with the proposal that there should be a new regulation allowing the Secretary of State to dispense with the need to hold an examination into an application for a material change?

Yes. Simpler and more flexible.

Question 6.5: Do you agree with the proposal to reduce the statutory time periods set out in the 2011 Regulations to four months for the examination of an application for a material change, two months for the examining authority to produce a report and their recommendation and two months for the Secretary of State to reach a decision?

Yes, why not? Although some material changes that fall short of being new applications might be pretty substantial, the main proposals will already have been examined and all the documentation produced during it, and a report of it by the inspector(s), will be available.

Question 6.6: Are there any other issues that should be covered if guidance is produced on the procedures for making non-material and material changes to Development Consent Orders?

One thing. There is likely to be reasonable clarity on the threshold between non-material and material changes if the proposals around question 6.1 are adopted, but what seems to be missing at present (and indeed potentially contradictory in current guidance) is clarity around the threshold between a material change to a project, which would benefit from a simplified process, and changes that are so substantial as to constitute a new project, which would have to go through the whole procedure again.

Current guidance on changes post-application (rather than post-consent) states: "... 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, that introduces two different tests in two sentences - "such a degree as constitutes a new project" sounds like a higher threshold than "a materially different project". This guidance ought to be clarified and equivalent guidance for changes post-consent should be introduced too.

The last five questions are all presented in a row and relate to further extension of the 'one stop shop'. If you remember, the last time this was looked at, twelve consents were singled out as still being separate but, with the help of the newly-established Consents Services Unit, would be coordinated as far as possible. Now, ten consents are proposed to be able to be included in a DCO and thus decided by the government and also subject to the same time limits that a DCO is.

Does your mind work like mine and immediately think "what are the two that aren't being folded in?". It doesn't quite work like that as the two lists don't set out the consents in the same way. Around six of the list of twelve are still separate. All the consents proposed to be folded in are restricted to the construction, rather than operation, of the project in question.

Question 6.7: Do you agree with the proposal that applicants should be able to include the ten consents (listed below) within a Development Consent Order without the prior approval of the relevant consenting body?
Question 6.8: Do you agree with the ways in which we propose to approach these reforms?
Question 6.9: Are there any other ideas that we should consider in enacting the proposed changes?
Question 6.10: Do you have any views on the proposal for some of the consents to deal only with the construction stage of projects, and for some to also cover the operational stage of projects?
Question 6.11: Are there any other comments you wish to make in response to this section of the consultation?

I would have thought that the principles of what is to be achieved are (a) subjecting external consents to the same process and timescales as the main consent if developers wish so that construction is not held up, while (b) keeping the bodies that would previously have given consent on board and able to give their expert advice.

The proposals certainly deal with (a), but perhaps more attention should be given to (b). 'Deemed marine licences' are a form of consent that has been available, and availed of, for a while in DCOs, and seems to work well, with the Marine Management Organisation, the body that would have given consent being fully involved. The conditions that would have attached to a marine licence are included, in statutory instrument drafting format, as a schedule to the DCO. If the same process is adopted for these new consents, then it ought to work for them too - the consent and conditions being clearly identifiable in the DCO. The only question is whether the consenting bodies are sufficiently resourced to respond on someone else's timescales rather than their own, but that is a bigger issue.

Those are my thoughts on part 6 of the 'technical consultation', which I may well submit as a response. Most effort is likely to be expended on the other parts of the consultation, but this is a genuine chance to shape the evolution of the infrastructure consenting regime.