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Advice to Parsons Brinckerhoff

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Enquiry

From
Parsons Brinckerhoff
Date advice given
7 August 2012
Enquiry type
Email

Parsons Brinckerhoff enquired if Development Consent Orders under the Planning Act 2008 are the same as all Highways Line Orders, asking for clarification on the interaction between the 1980 Highways Act and the 2008 Planning Act and how this affects any intermediate issues. For example, whether it is possible to now gain planning permission through a Development Consent Order and apply for Side Road Orders and Compulsory Acquisition separately.

The Planning Inspectorate's response was by email.

Advice given

Dear Ms Hallam,

Thank you for your email enquiry received on 2 August 2012.

With regards potential highways schemes, I would refer you to the relevant definitions of a Nationally Significant Infrastructure Project (NSIP) under sections 14 and 22 of the Planning Act 2008 (as amended by the Localism Act 2011) (PA 2008). If development is (or forms part of) an NSIP then the promoter would be required to seek development consent under the PA 2008 (see section 31 PA 2008). The effect of the statutory provisions is that unless an application was made before 1 March 2010, any highways project which is an NSIP under PA 2008 must follow the statutory pre-application requirements set out in Chapter 2 of Part 5 of PA 2008 and submit an application for development consent to the Secretary of State.

In this regard, it is not possible to pursue an application for an NSIP through other regimes such as the Highways Act 1980. Proposed developments that do not fall within the thresholds laid down in Part 3 of the PA 2008 will continue to be dealt with under other regimes, for example under the Town and Country Planning Act 1990. Since such matters fall outside of the scope of the PA 2008 regime we are unable to give section 51 advice on these.

It is for applicants to determine which consents and powers they may need to apply for as part of, or out with, their application for a Development Consent Order (DCO) made under section 37 of the PA 2008. The draft DCO should include all the provisions the applicant considers are necessary to give them the powers they need for a project to be implemented and operated. These might include any ancillary matters, for example, the authority to compulsorily acquire land, or to stop-up or divert highways (see s.120(3)-(4), and Schedule 5 of the PA 2008). The draft DCO may also contain other provisions which the applicant considers are necessary for the purposes of the project, for example, by applying or amending existing legislation, or protecting the interests of persons potentially affected by the proposed development.

The draft DCO should include a description of the proposed development, set the parameters of the scheme, including any limits of deviation, and may include any associated development (under s.115(2)). With regards the duration of development consents, the general position is that there is no statutory limit on how long consent might be granted for although it is open to applicants to seek a time limited consent if they so wish. The draft DCO may also provide for the proposed development to be carried out on a phased basis. If the proposal is Environmental Impact Assessment development, the draft DCO and the Environmental Statement (ES) submitted with the application need to be mutually consistent.

Applicants should also consider whether the draft DCO would need to include provisions seeking the power to compulsorily acquire certain special categories of land, such as local authority, statutory undertaker, National Trust or common land, where additional procedures apply (see sections 127-132 PA 2008). The applicant would then, for example, have to obtain a certificate from the Secretary of State or the Order would, in certain circumstances, be subject to a special parliamentary procedure.

With regards your query regarding whether, and if so how, powers for the compulsorily acquisition of land might be sought separately from a development consent application I would refer you, in the first instance, to paragraph 3 of the DCLG guidance on compulsory acquisition which states that the PA 2008:

'… also provides that an order granting development consent can authorise the compulsory acquisition of land. This marks a significant change from the Town and Country Planning system, in which compulsory acquisition of land is applied for separately from consent for development to take place – under the [PA 2008] authorisation for compulsory acquisition should be applied for, and decided as part of a development consent order. This guidance, which is issued under section 124 of the Act, outlines the relevant provisions and how they are expected to work.'

Paragraph 6 of the DCLG guidance goes onto advise that "Under the Planning Act, compulsory acquisition will be authorised as part of a development consent order….".

The intention of the PA 2008 regime is therefore that any compulsorily acquisition powers that are required for or are incidental to an NSIP should be included in the development consent application, and hence in the draft DCO.

If compulsory acquisition powers were to be sought separately from a development consent application, the applicant would need to carefully consider (amongst other matters) how the pre-application obligations to consult persons about the proposed application had been met, in particular the duties to consult persons with interests in the land (see sections 42 and 44 PA 2008), and how they would prepare their consultation report describing the account taken of relevant responses to consultation.

It is the responsibility of applicants to ensure that the draft DCO applied for would provide them with all the necessary powers to implement and operate their scheme. Applicants are therefore advised to engage their own legal advisors with the necessary expertise and experience to draft their DCO and advise on other application documents.

For further information, I include links to the statutory guidance on compulsory acquisition and associated development:

http://www.communities.gov.uk/publications/planningandbuilding/guidanceassocdevelopment

http://www.communities.gov.uk/publications/planningandbuilding/guidancecompulsoryacquisition

Lastly, I recommend that you also consider the legislation and guidance published on the planning portal, as well as the (non-statutory) advice notes prepared by the Planning Inspectorate:

http://infrastructure.planningportal.gov.uk/legislation-and-advice/legislation/

http://infrastructure.planningportal.gov.uk/legislation-and-advice/advice-notes/

I trust that answers your queries, but if you have any questions on the above or require further advice on this matter please do not hesitate to contact me.