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Enquiry

From
DLA Piper UK LLP
Date advice given
17 November 2011
Enquiry type
Post

Can an application for a development consent order (DCO) seek powers of compulsory acquisition over land required for a gas connection to the existing national transmission system without seeking authorisation for the construction and operation of the gas connection itself?

Advice given

You have asked whether a DCO may authorise compulsory acquisition of land required for a gas connection even though (because EIA will not have been completed at the time the application is submitted) the DCO will not seek to authorise construction and operation of the gas connection.

The Planning Act does not prevent provision being made for matters which will not in themselves need or be granted development consent and does not arguably exclude the compulsory acquisition of land in the circumstances you describe. We consider therefore that (subject to other tests as discussed below) the DCO may make provision for compulsory acquisition of the gas connector land if it can be demonstrated that the compulsory acquisition of that land is related or ancillary to the development for which consent is sought. However, full legal submissions should be submitted with the application to justify this approach applying the facts to the provisions in the Planning Act 2008 and identifying any relevant caselaw which interprets terms such as "relating" and "ancillary" in the context of compulsory acquisition.

The following points should be considered:

  1. An order granting development consent may make provision relating to, or to matters ancillary to, the development for which consent is granted - s120 (3).

  2. The provision that may be made under s120 (3) includes the compulsory acquisition of land - s120 (4) and para 1 of Schedule 5 - subject to the provisions of Chapter 1 of Part 7 including ss122 and 123. s122 - in addition to demonstrating that there is a compelling case in the public interest (s122 (3)) the decision maker must be satisfied that one or more conditions in s122 (2) are met. The condition in s122 (2) (b), in other words that the gas connector land is required to facilitate or is incidental to the development to which the development consent relates, may be relevant. The statement of reasons would need to provide full justification for the purpose of compulsory acquisition, employing caselaw as relevant in relation to the interpretation of "facilitate" and "incidental". s123 - compulsory acquisition can only relate to land if the decision-maker is satisfied that one of the conditions in subsections (2) to (4) of s123 is met. In the circumstances you describe it would appear that the condition in s123 (2) will be met if the request for compulsory acquisition of the gas connector land is included in the application for the DCO.

  3. The decision maker must also have regard to CLG guidance about compulsory acquisition if it is proposed to make an order authorising compulsory acquisition (s124 (2)). In view of the fact that the gas connector will be subject to a separate consent process (the outcome of which will be unknown when the DCO application is submitted) paras 34 and 35 are particularly relevant. The applicant must be able to demonstrate that "...any potential risks or impediments to implementation of the scheme have been properly managed" and that "they have taken account of any other physical and legal matters pertaining to the application."