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Advice to The Crown Estate Commissioners

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Enquiry

From
The Crown Estate Commissioners
Date advice given
3 August 2011
Enquiry type
Email

Query relating to how a DCO might require an applicant to have a routeing measure put in place.

Advice given

  1. A DCO may impose requirements corresponding to conditions which could have been imposed on the grant of any [planning] permission (s120(2)). Although there is no caselaw in relation to s120 (2) a reasonable starting point is that requirements imposed on a DCO should comply with case law and Government advice on the use of planning conditions (currently Circular 11/95: The Use of Conditions in Planning Permissions)

  2. Model provisions have been prescribed by The Infrastructure Planning (Model Provisions) (England and Wales) Order 2009 (the Order). Model provisions in respect of requirements are set out in Schedule 4 of the Order.

  3. It is not mandatory for applicants to use model provisions and applicants may draft their own provisions and requirements in DCOs (relying on their own legal advice) providing an explanation in the explanatory memorandum for any divergences from the model provisions. The IPC would also recommend that applicants explain the purpose and effect of any novel provisions (including requirements) and why they may lawfully be imposed, for example (in relation to requirements) by reference to Circular 11/95: "It is unreasonable to impose a condition worded in a positive form which developers would be unable to comply with themselves, or which they could comply with only with the consent or authorisation of a third party (for example, a condition which requires an aerodrome owner to impose a particular pattern of aircraft flight routeings, where air traffic services for the particular aerodrome are the responsibility of the Civil Aviation Authority or the National Air Traffic Service). …...it may be possible to achieve a similar result by a condition worded in a negative form, prohibiting development until a specified action has been taken."

4 When making a decision regard will be had to the relevant NPS. In relation to off shore windfarms, EN-3 states that "There may, however, be some situations where reorganisation of traffic activity might be both possible and desirable when considered against the benefits of the wind farm proposal. Such circumstances should be discussed with the MCA and the commercial shipping sector and it should be recognised that alterations might require national endorsement and international agreement and that the negotiations involved may take considerable time and do not have a guaranteed outcome." Applicants should therefore consider submitting with the application assurances (by reference to pre application consultation with MCA and others) about the likelihood of a successful outcome as this is information that the Examining authority will find relevant.