Advice to Parsons Brinckerhoff

Enquiry

• From: Parsons Brinckerhoff
• Date advice given: 1 August 2012
• Enquiry type: Email

Parsons Brinckerhoff enquired as to whether it is possible to change an applicant part way through the DCO application process.

The Planning Inspectorate's response was by email.

Advice given

Thank you for your telephone and subsequent email enquiry to the Planning Inspectorate on 31 July 2012.

The Planning Act 2008 (as amended by the Localism Act 2011), secondary legislation and statutory guidance only specifies duties the ‘applicant’ or ‘promoter’ is required to execute for the application and application process to be legally compliant. Reference laid down in the 2008 Act (as amended) is to the ‘applicant’ or ‘promoter’: the identity of the promoter is not specified and there is currently no precedent for a change of ‘applicant’ during the Development Consent Order process. In principle and broadly conjectured, a new ‘applicant’ could possibly continue the application process that was followed by a predecessor if all statutory requirements are met.

There would be factors a new ‘applicant’ would need to consider and any promoter is strongly advised to seek independent legal advice on which they can rely in regard to their own circumstances before proceeding. For example, a new applicant during pre-application would need to check compliance with all provisions for acceptance of an application as set-out in section 55 of the Planning Act 2008 (as amended). This may include how statutory consultation, publication of consultation material and any material changes to the proposed development was accounted for and consulted upon. A full account of the pre-application consultation would need to be set out in the Consultation Report and evidenced where necessary.

A change of applicant post-submission would present further challenges, such as the validity of the funding statement, impacts on any compulsory acquisition sought and references within the draft Development Consent Order (such as licensing) that may have been tailored to the requirements and powers of a former applicant.

Any proposed changes would need to be raised at the earliest possible opportunity, post submission. The Examining authority would need to consider whether the principles arising from the Wheatcroft case had been addressed. In this regard, it is not possible for the Planning Inspectorate to suggest steps a new applicant may follow to meet all legal tests under any such scenarios.

We would advise that it is in a developer’s or prospective developer’s own interests to inform The Planning Inspectorate at their earliest convenience of any changes that may affect any of our registered projects.