Hereward Phillpott QC and Isabella Tafur consider the procedure for making changes to Development Consent Orders after they have been made and some of the issues to be aware of.
To date, promoters have been reluctant to engage in the process for making changes to their Development Consent Orders ('DCOs') - particularly material changes - because of the time, expense and uncertainty involved. However, the Government has made certain reforms with the intention of addressing those difficulties, and with many more projects having been approved, local government lawyers are increasingly likely to find themselves dealing with applications for amendments to DCOs following the examination and approval process.
Applications for DCOs are often made, and determined, at a stage where the proposed development is at a fairly early stage in the process towards finalisation of a detailed design. As the design is developed in the period post consent, issues may emerge that were not foreseen at the DCO stage. In some cases (e.g. new nuclear power stations) there are separate regulatory regimes dealing with safety requirements for the proposed piece of infrastructure. The process of obtaining approval pursuant to those regimes, which continues after the DCO has been granted, can also often generate the need for additional or different development to what was envisaged when the DCO was drafted. This could, for example, take the form of additional safety features, or the enlargement or relocation of elements of the approved development.
In addition, those seeking to predict how the development will be implemented during the construction phase will often be attempting that exercise ahead of the appointment of the main contractor(s). Once they are brought on board, and bring their expertise and experience to bear, it can often be the case that different approaches to implementation are suggested, perhaps saving time and money, and/or further reducing adverse environmental impacts.
Whilst those involved in the promotion of projects will do what they can to try and build some flexibility into the terms of the DCO to cater for such eventualities, there are limits to what can be achieved.
- The use of 'Limits of Deviation' (LoD) can be effective to deal with relatively small-scale adjustments to the size and location of elements of the project, but examining authorities will tend to subject these to close scrutiny to ensure they are justified in scope and extent. That is particularly the case where compulsory acquisition is involved, or where the environmental effects are particularly sensitive to such changes.
- The use of the 'Rochdale Envelope' approach to defining the project and assessing its effects is an accepted approach, endorsed by PINS Advice Note 9 'Using the Rochdale Envelope'. However, as that Advice Note cautions, this element of flexibility is not to be abused. If an unnecessary degree of flexibility, and hence uncertainty as to the likely significant environmental effects, has been incorporated into the description of the development, then the examining authority can require more detail, or recommend that consent be refused. Developers are therefore encouraged to finalise as much of the project as possible prior to submission, and any flexibility incorporated must not permit such a wide range of materially different options such that each option in itself might constitute a different project, nor allow a scheme to be implemented which is materially different from that assessed in the EIA.
- Some promoters have sought to introduce additional flexibility through the use of 'tailpiece provisions' at the end of relevant requirements. These require the development to be implemented in accordance within certain specified plans or limits 'unless otherwise approved in writing by the local planning authority'. The use of such provisions is now discouraged by PINS Advice Note 15: Drafting DCOs, reflecting something of a 'backlash' against the use of these provisions in a number of early DCOs.
- There is also simply a limit to what can reasonably be foreseen. However careful and thorough a client and its team may have been in seeking to predict what flexibility should be provided for and where, subsequent events and discoveries can often confound such efforts. Large and complex infrastructure projects, planned to be implemented over a number of years, are inherently vulnerable to unforeseen changes of circumstance.
For those reasons, a process is included within the Planning Act 2008 (PA 2008) to enable changes to be made to DCOs after they have been made. In some ways, it is a rather unsatisfactory process from the point of view of a promoter because of the time that it takes to obtain approval for a proposed change, and because of the uncertainties involved in the process. Those difficulties underlie the inventiveness that has been displayed in the attempts by promoters to build in as much flexibility as possible to their DCOs, so as to minimise the likelihood that they will need to apply for a change.
The relevant legislation
The PA 2008
Section 153 and Schedule 6 to the PA 2008 make provision for changes to, and revocation of, DCOs. Schedule 6 provides for two categories of change. 'Non-material changes' (paragraph 2) are distinguished from other changes to, and revocation of DCOs (paragraph 3). This second category of changes are therefore widely known as 'material' changes - and are referred to as such in the Government's guidance (see below) - although that term is not used in the PA 2008 itself.
The distinction between the two categories is of considerable importance, because of the very different procedures that apply in each case. However, there is no definition of what constitutes a 'non-material' change in the legislation. Paragraph 2(2) provides that in deciding whether a change is material, the Secretary of State must have regard to the effect of the change, together with any previous changes made under this paragraph, on the development consent order as originally made. Some further assistance in understanding how that judgment will be made has now been provided in Guidance (see below).
Applications to change a DCO may only be made by certain limited categories of person:
- the applicant or a successor in title of the applicant;
- a person with an interest in the land; or
- any other person for whose benefit the DCO has effect (para. 2(4); para. 3(4)).
A local planning authority (“LPA”) can also make such an application provided the Secretary of State is satisfied that the DCO authorised development wholly or partly in the area of that LPA, the development has been begun but been abandoned and the amenity of other land in the LPA’s area or an adjoining area is adversely affected by the condition of the land (para.3(6)).
In certain circumstances, the Secretary of State can change or revoke a DCO in the absence of an application from any party (para.3(3)).
Where the person applying for the change has an interest in some but not all of the land to which the DCO relates, the application may be made only in respect of that land (para. 2(7); para. 4(3)).
Material changes to a DCO can only be made within four years of the date on which the development was substantially complete (paragraph 5 of Schedule 6 to the 2008 Act), albeit the revocation of DCOs and changes to requirements on a DCO can take place at any time.
Where the DCO was made as a statutory instrument, the power to make a change must also be exercised by statutory instrument (para. 2(9); para. 4(7)).
If the Secretary of State considers that a proposed material change is of such significance that it ought properly to be the subject of an application for a fresh DCO, he can refuse to make the change sought (paragraph 3(5A)).
The detailed provisions governing applications for changes to DCOs are to be found in the Infrastructure Planning (Changes to, and Revocation of, Development Consent Orders) Regulations 2011 ("the 2011 Regulations").
The 2011 Regulations were amended in a number of respects following the coming into force of the Infrastructure Act 2015, and the Government published non-statutory guidance on their application in December 2015 (DCLG, Planning Act 2008: Guidance on Changes to Development Consent Orders ("the Guidance").
Part 1 of the 2011 Regulations governs the procedure for making a non-material change. The main steps in this procedure are helpfully summarised at paragraphs 21 to 38 of the Guidance.
The Part 1 Procedure
The Part 1 procedure is relatively straightforward, and there is a limited degree of prescription as to the form and content of the application itself. The fee for making an application for a non-material amendment is currently £6,891 (Relation 5 of the 2011 Regulations). Regulation 4 sets out what must be contained in the application, but beyond a requirement to contain matters such as the identification of the applicant, agent, the DCO to which the application relates and the details of the change being applied for, it is left for the applicant to judge what else should be submitted in the way of "documents and plans considered necessary to support the application". Those wishing to see a useful example of how such an application can be presented could look at the application submitted on behalf of EDF in order to change the Hinkley Point C DCO.
The requirements for publicity and consultation are set out in Regulations 6 and 7 respectively.
The application must be publicised by notice for at least two weeks, and the notice must contain the matters set out in Regulation 6(2). In addition, the Guidance provides as follows:
- The notice should be published for the first time when the application is made to the Secretary of State.
- PINS should be made aware of the intention to make and publicise the application well in advance of doing so.
- If the change is technical in nature, applicants should consider providing a non-technical summary of any documents to be made available for inspection.
- Applicants should also consider providing a statement setting out why they consider the changes proposed in their application are non-material.
The duty to consult in Regulation 7 applies to three categories of person:
- those for whose benefit the DCO has effect;
- those notified of the application for the DCO in accordance with section 56; and
- any other person who may be directly affected by the proposed changes.
This third category may well encompass only a small number of people, given that the change is not material. There is also provision to obtain the written consent of the Secretary of State not to consult a person or authority in the first or second categories (Regulation 7(3)). Nevertheless, the Guidance offers a helpful reminder to applicants to consider carefully whether there might be others who should be consulted, such as people or businesses who have moved to the area since the DCO was granted.
The notice publicising the proposed application must set a deadline of at least 28 days for people to respond, with responses being sent to PINS for onward transmission to the Secretary of State.
LPAs asked to respond to an application should focus their response on the change that is being proposed (including, where appropriate, the impact of the change on the project as a whole). Responses should not go into wider matters such as the underlying principle of the project or other matters not directly related to the proposed change itself.
A consultation and publicity statement has to be prepared by the applicant, and sent to the Secretary of State (Regulation 7A).
Once that statement has been received, the Secretary of State will determine the application (Regulation 8). There is no statutory timetable for making the decision, and although the Guidance says that a decision should normally be expected within 6 weeks of the closing date for responses to publicity and consultation, some applications have taken much longer. EDF's application to make non-material changes to the Hinkley Point C DCO was finally determined nearly nine months after the application was made.
The Part 2 Procedure
The procedure for making and determining applications for material changes is set by Part 2 of the 2011 Regulations. It is very similar to the procedure for making an application for a DCO, and therefore only a high-level summary is provided here. A helpful commentary can be found in paragraphs 39 to 68 of the Guidance.
Notwithstanding the reforms made following the coming into force of the Infrastructure Act 2015 it remains an unattractive option. At the time of writing the procedure remains unused.
The pre-application process is set out in Regulations 10 to 15. Whilst there is no longer a requirement to prepare a statement of community consultation setting out how the applicant proposes to consult people about the proposed application, and no general duty of community consultation, the duties are still extensive and time-consuming.
The process for making the application is set out in Regulations 16-21. Unless the application is made by the local planning authority, a fee of £4,500 is payable on the making of the application, with further fees payable at pre-examination and examination stages (Regulation 18 and Schedule 2 to the 2011 Regulations). It should be noted that, unlike an application for a non-material change, an application for a material change must include a statement as to whether the application is for development subject to EIA (Regulation 16(2)(k)). An application for a material change is to be treated as a 'subsequent application' for the purposes of certain provision in the EIA Regulations 2009 (Regulation 17(1)). The effect of this is to bring into play the important safeguards contained in the EIA Regulations, such as the prohibition on granting consent without consideration of environmental information. There is no equivalent provision for non-material changes. In practice, this is likely to mean that LPAs will have a role to play in discussing (and hopefully agreeing) the scope of the additional assessment and any further mitigation measures and requirements/obligations made necessary as a result of the change.
Again, representations made in response to notification of an application should focus on the change itself.
Prior to the 2015 amendments, all applications for material changes had to go through the 6 month examination process. There is now a discretion on the part of the Secretary of State whether an examination is required. If the need for an examination is dispensed with, a written representations process is followed (with the option of a subsequent decision to hold an examination in the light of any representations received) (Regulation 21A). The Guidance makes clear that the Government does not expect that the power to decide an application without an examination will be used frequently, and in particular not where compulsory acquisition of land is involved, or where substantial issues are raised in representations from local authorities. Hence the role of LPAs in this element of the decision-making process is likely to be important. Furthermore, if the Secretary of State decides that an examination is not necessary, he must notify the applicant and all those who made relevant representations and publish the reasons for the decision, allowing a period of at least 28 days for representations to be made (regulations 21A and 21B of the 2011 Regulations).
Regulations 22 to 53 set out the procedure where an examination is held. Save for a limited number of exceptions, the procedure is essentially the same as that which applies to examinations into applications for DCOs. For this reason the Guidance explains that the DCLG Guidance on the examination process will be of relevance, as appropriate, to examinations into applications for material changes.
The main differences between the two types of examination are as follows:
- the examination must be completed within 4 months of the preliminary meeting (rather than 6);
- the examining authority must make its report to the Secretary of State within 2 months of that date (rather than 3); and
- the Secretary of State must make a decision by the end of the 2 month period (rather than 3) beginning with the deadline for receiving the Examining Authority's report.
- If the Secretary of State has determined the application without examination by an Examining body, then it must be determined within two months of issuing the notification under regulation 21A that such examination was not necessary.
Where a material change is made to a DCO, the DCO will continue in force and the change will take effect from the date on which the Secretary of State gives notice of his decision or, if the change to the DCO is required to be made by a statutory instrument, the date specified in the order making the change. If a DCO is revoked, the revocation takes effect on the date specified in the order making the revocation or, where there is no date specified, the date on which the order making the revocation is made (regulation 53 of the 2011 Regulations).
Material or non-material?
The only direct assistance to be gleaned from the legislation is in Schedule 6 to the PA 2008, paragraph 2(2) of which provides as follows:
"In deciding whether a change is material, the Secretary of State must have regard to the effect of the change, together with any previous changes made under this paragraph, on the development consent order as originally made"
That suggests an approach which judges the effect of the change relative to the particular development consent order in question, and therefore might mean that a change that is considered material in one case would not be in another. For particularly large schemes, that could mean that relatively large changes might be considered non-material in context - even if they would be material changes to more modest schemes. The changes made to the Hinkley Point C DCO are a good example of this, as they involved a number of new, relocated and expanded buildings, but were judged to be non-material in part because they made little if any difference when seen in the context of the much larger structures authorised by the DCO.
The Government has now provided some assistance to those seeking to decide if particular changes would be material or not. The Guidance does not purport to be exhaustive:
"Given the range of infrastructure projects that are consented through the 2008 Act, and the variety of changes that could possibly be proposed for a single project, this guidance cannot, and does not attempt to, prescribe whether any particular types of change would be material or non-material. Such decisions will inevitably depend on the circumstances of the specific case" (paragraph 10).
In addition to advising applicants to discuss with PINS whether a proposed change is likely to be judged to be material before they commence any of the procedural steps in the 2011 Regulations, the Guidance identifies certain characteristics that indicate a change is more likely to be treated as material.
- The need for an updated Environmental Statement to take account of new, or materially different, likely significant effects on the environment.
- The need for a Habitats Regulation Assessment, or an additional licence in respect of European Protected Species.
- Authorisation of the compulsory acquisition of land or an interest in or rights over land.
- The potential impact of the proposed changes on local people or businesses.
The last of these indicators may, in practice, have a similar effect to applying the Wheatcroft test as an indicator of materiality.
Examples to date
To date, non-material changes have been made in respect of four DCOs. As discussed above, a change that is non-material in one case may not necessarily be so in another, but it nevertheless remains instructive to consider the types of changes that have been deemed non-material by the Secretary of State to date.
In respect of the Heysham link road, the non-material change authorised in March 2015 permitted the realignment of the slip road at junction 34 of the M6 by a maximum of 11.7 metres form the alignment authorised by the original DCO. The change would not require the exercise of any new compulsory acquisition powers and would avoid the need to divert a National Grid high pressure gas pipeline.
In July 2015 a non-material change was made to the Galloper wind farm DCO authorising an increase in the permitted monopole diameter from a maximum of 7.0 metres to a maximum of 7.5 metres.
A non-material change to the Hinkley Point C DCO was authorised in September 2015 to allow changes to a number of service buildings. The change authorised nine new or relocated structures for the safe operation of plant and the movement of 15 structures from their consented locations. No changes were proposed to the tallest buildings or to the overall site footprint.
In respect of East Anglia ONE, the Secretary of State made a non-material change to the DCO in March 2016, allowing the applicant the option to construct either a 750MW wind farm with a High Voltage Alternating Current (“HVAC”) transmission system or the 1200MW wind farm with a High Voltage Direct Current transmission system for which development consent had been granted. The change to the HVAC system would generate a need for an increase in the height of the electrical equipment at the onshore sub-station.
A decision on materiality is a potential target for objectors wishing to consider judicial review as a means of resisting development proposals.
However, as the courts have held in relation to the analogous provisions in section 96A of the Town and Country Planning Act 1990, the question of whether a proposed change is material is a matter of fact and degree for the decision-maker (Singh v. SSCLG  EWHC 1621 (Admin)). This makes it a particularly difficult decision to challenge, absent some obvious error.
Where a DCO is revoked or subject to a material change, any person who has incurred expenditure in carrying out work which is rendered abortive can claim compensation from the Secretary of State, as can any person who has otherwise sustained any loss or damage which is directly attributable to the change or revocation (paragraph 6 of Schedule 6 to the 2008 Act). However, no compensation is payable in respect of any works done before the DCO was made or in respect of any other loss or damage arising out of anything done or omitted to be done before the DCO was made (other than loss or damage consisting of the depreciation of the value of an interest in land).
Any claim for compensation must be made in accordance with regulation 61 of the 2011 Regulations within twelve months of the notification of the Secretary of State’s decision to make the change or revoke the DCO under regulations 50 or 57. Any dispute as to the compensation payable will be referred to the Upper Tribunal for determination.