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Advice to Clifford Chance

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Enquiry

From
Clifford Chance
Date advice given
12 February 2015
Enquiry type
Phone

Under the Infrastructure Planning (Model Provisions) (England and Wales) Order 2009 there is a provision at paragraph 5 of schedule 1 that relates to consent to transfer the benefit of the development consent order. Where this provision has been incorporated into a development consent order and the consent of, for example the Secretary of State, is required, could you explain the process for obtaining such consent and the likely timeframes involved?”

Advice given

The Benefit to an Order Article in a DCO and how this works.

Section 156(1) of the Planning Act 2008 sets out the general position - if an order granting development consent is made in respect of any land the order has effect for the benefit of the land and all persons for the time being interested in the land. Where Articles 4 and 5 of the Model Provisions are used, or a variant thereof, this overrides s. 156 (1) (see s. 156 (2) "Subsection (1) is subject to…any contrary provision made in the order.")

A DCO will usually therefore contain articles dealing with the benefit and transfer of the benefit of the order. It may follow article 4 of Schedule 1 to the DCO Model Provisions and thus grant only the applicant the benefit of the Order (who would be identified as the beneficiary of the Order) or it can include an Article which transfers the benefit of the Order but usually only with the consent of the Secretary of State.

Advice on process was given in reply to a query about Willington C Gas Pipeline on 26.10.2011. The following principles can be extrapolated from this:

  • Post-decision granting of consent to transfer of benefit of an order is a matter for the DCO decision maker, i.e. the SoS
  • There is no formal procedure for obtaining the consent of the SoS to the transfer of the benefit of the order or any of its provisions once an order has been granted.
  • Developers with the benefit of a DCO that provides for a transfer will need to write a letter to the relevant department requesting consent. The department will then consider this as appropriate and write back accordingly.
  • Applicants who do not themselves intend to develop a project, or who anticipate selling their interest on, should make this clear during the examination process (or ideally earlier).
  • One of the ancillary matters listed in schedule 5 PA 2008 refers to the transfer of property, rights, liabilities or functions. Applicants should therefore give some indication in their application on what are their ultimate plans.