Development Consent Orders and procedure for discharge of planning conditions to follow technical consultation

9th January 2015

Background
As part of continuing attempts to ensure greater efficiency and streamlined processes, the Department for Communities and Local Government (DCLG) launched its technical consultation on proposed planning reforms on 31 July 2014 (the Consultation). Under the auspices of the Government’s ‘Red Tape Challenge’, the Consultation highlighted plans to:

• improve the use of planning conditions.
  introduce new environmental impact assessment (EIA) thresholds.
  modify the planning application consultation process.
  extend certain permitted development rights.
  refine the determination process for nationally significant infrastructure projects (NSIPs).
  alter the neighbourhood planning regime.

Following an eight-week ‘window’ for responses, which expired on Friday 26 September, DCLG has now considered the feedback received and confirmed the action to be taken in relation to planning conditions and Development Consent Orders (DCOs).

Planning Conditions
While acknowledging that planning conditions are important in shaping developments, the tendency for some local planning authorities (LPAs) to impose numerous conditions at the decision-making stage and then delay discharging these has been noted. A key Consultation proposal was the suggestion that, going forward, LPAs would have to share draft conditions with applicants for major developments prior to decision-making. It was also suggested that written justification would have to be given for any pre-conditions – that is, those requiring action before commencement of on-site development work. No further progress has seemingly been made regarding these proposals.

However, DCLG has confirmed the practical procedures and exemptions it will carry forward as secondary legislation (linked with the Infrastructure Bill) for ‘deemed discharge’ of conditions where a LPA has not made a timely decision following a discharge request. Over 70 per cent of the 478 respondents agreed with the Government’s proposed approach vis-a-vis exemptions. An exemption will therefore apply for conditions:

• attached to development subject to an EIA.
• relating to development likely to have a significant effect on a qualifying European site.
• designed to manage flood risk.
• requiring entry into a section 106 Agreement or a section 278 Agreement.
• requiring the approval of details via a reserved matters application.

Additional exemptions will also apply where the matter relates to the protection of public health and safety or areas of high sensitivity. So conditions will be exempt relating to:

• investigation and remediation of contaminated land.
• highway safety.
• Sites of Special Scientific Interest.
• investigation of archaeological potential.

All the above will only be able to be discharged following a formal LPA decision. Deemed discharge will not automatically be available, but will be activated by an applicant serving notice on the relevant LPA. Once six weeks have elapsed, the relevant applicant must then submit a notice informing the LPA of the situation and its intention to use the deemed discharge procedure. The condition in question will be deemed discharged if nothing further is heard within the following two weeks. Eight weeks is therefore the ‘long-stop’ for the full procedure.

The Consultation Report emphasises that there is no intention at this stage to extend the deemed discharge option to other consents (for example, advertisement consent). It is also not intended to act as a hindrance for local authorities, interfere with their ability to properly consider discharge, refuse approval where deemed necessary, or enforce compliance with a substantive condition when needed. LPAs will be able to agree longer timescales for discharge on an individual basis if necessary. This discretion is particularly likely to be invoked in situations where the LPA requires third party, external advice on a planning condition.

It is hoped the new approach will reduce delays in discharging planning conditions and the difficulties this can cause, both for developers and communities with legitimate expectations of a development completing. The Consultation Report states it “will make a significant contribution to unblocking much needed development, including new homes, that the country badly needs”. However, the new process in itself is not without several stages which create the potential for procedural delays and heightened administrative burdens. An LPA’s flexibility to instigate discussions and agree extensions with the applicant also reduces the extent to which there will be any improved certainty regarding the time-frame in which decisions can be expected.

Development Consent Orders
Section 6 of the Consultation proposed improvements to the planning regime for NSIPs, particularly ways to ensure a more proportionate approach for making alterations to DCOs. A total of 189 responses were received relating to the NSIP changes.

Following analysis of the feedback, DCLG now intends the following:

• Guidance will be introduced on whether a post-consent change to a DCO should be considered as a material or non-material amendment. A change will be more likely to be material where (amongst other factors arising on a case-by-case basis):

– there are to be significant effects on the environment, necessitating an updated Environmental Statement.
– a Habitats Regulations Assessment or new / additional European Protected Species licence is needed.
– compulsory acquisition of any land is required that is not already authorised.

• Developers are expected to undertake preparatory work from an early stage before an application for a change is submitted, including discussions with the Planning Inspectorate.
• Changes will be made to the Infrastructure Planning Regulations 2011 (the 2011 Regulations) relating to the process for making a non-material change to a DCO, so that:

– the applicant (not the Secretary of State, SoS) will be responsible for publicising and consulting upon a proposed non-material change.

– a more appropriate scale will be required when submitting maps for offshore development applications.
– the applicant will no longer be required to cover the SoS’s costs in publicising the application.
– the applicant will have to submit a copy of its publicity notice and statement explaining how it has fulfilled the publicity / consultation requirements to the SoS.

• Changes will be made to the 2011 Regulations to ensure a smoother, faster and easier process for making a material change to a DCO. Amongst the alterations to be introduced:

– the applicant will be required to consult only parties who could be “directly affected” by a proposed change rather than every person originally consulted.
– a Statement of Community Consultation will no longer be required.
– an examination into proposed changes will not have to be held if the SoS deems this unnecessary.
– reduced timeframes will be applied, with guidance emphasising these as the maximum time within which decisions should be made.

The Consultation’s proposals for changes to DCOs therefore largely come forward unaltered. Subject to the Infrastructure Bill’s successful passage through Parliament, the alterations should be introduced during the current parliamentary term. It is hoped these will enable NSIPs requiring later alteration to be progressed with greater speed. However, the Consultation Report notes that the newly-produced guidance will not be exhaustive or be able to cover every eventuality. It therefore remains to be seen whether this will suitably clarify a number of the uncertainties of the current system.

For more information on the possible impact of the changes and the timetable for these taking effect, contact the Planning and Environment team at Walker Morris.