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Advice to Bond Pearce

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Enquiry

From
Bond Pearce
Date advice given
11 April 2011
Enquiry type
Email

Comments on a draft Development Consent Order submitted for comment in connection with the proposed North Blyth Biomass plant.

Advice given

  1. There would appear to be no reason in law why a DCO should not include requirements formulated in the way you propose [i.e. with the local planning authority as having the duty to discharge requirements] so long as they comply with Section 120 of the Planning Act 2008 (corresponding to conditions which could have been imposed on the grant of any permission etc). Section 38 requires the IPC to have regard to any model provisions but does not make it mandatory for a provision to be drafted in the prescribed form. The Planning Act does not prescribe the way in which requirements should be discharged. It will however be for the examining authority (ExA) if the application is accepted to consider whether the draft DCO should be made in the form submitted, taking into account any representations made by interested parties such as the local planning authority. The local planning authority will need to be satisfied that it has power to make decisions in relation to discharge of requirements.

  2. It is arguable that introducing an appeal procedure by way of Article 36 (5) has the effect of applying the provisions of Section 78 of the Town and Country Planning Act 1990. A DCO may do this in accordance with Section 120 of the Planning Act. You may wish to give some further thought to whether model provision 6 should be used.

  3. Article 31appears appropriate. "In accordance with section 149A of the 2008 Act" is probably unnecessary wording.

  4. Whether or not a deviation corridor of 50 metres is acceptable is really a question of impacts, mitigation and merits which it will be for the ExA to take a view on if the application is accepted. To assist the ExA to consider any impacts generated by this uncertainty it would help if the Explanatory Memorandum, consultation report or any statements of common ground (if submitted) described the effect of this limit of deviation (with cross reference to the impacts assessed in the ES), identified which requirements would control/mitigate those impacts and made reference to the views of interested parties such as Natural England and MMO on the limits proposed. You may also find helpful our advice note on the Rochdale Envelope http://infrastructure.independent.gov.uk/wp-content/uploads/2011/02/Advice-note-9.-Rochdale-envelope-web.pdf

  5. It will be helpful to discuss the works identified in Schedule 1 in more detail at the meeting, for example it is arguable that "resiting" the transit shed is in fact development (whether integral or authorised) which should be part of the authorised development.

  6. See paragraph 8 of CLG application form guidance. It is not intended that applicants should be required to duplicate information. It is important however that any environmental information should be found within the environmental statement and not dispersed within other application documents.