Advice to Parsons Brinckerhoff

Enquiry

• From: Parsons Brinckerhoff
• Date advice given: 8 August 2012
• Enquiry type: Email

Following the Planning Inspectorate's s.51 advice, Parsons Brinckerhoff emailed a further enquiry in regard to applying for a potential NSIP application for a highways scheme under the Planning Act 2008 (as amended by the Localism Act 2011), but seeking consent for side road orders and compulsory acquisition under other consenting regimes.

The Planning Inspectorate's response was by email.

Advice given

Thank you for your email of 7 August 2012 at 3:36 PM. Further to our earlier advice on the Development Consent Order (DCO) process under the Planning Act 2008 (as amended by the Localism Act 2011) (PA 2008), we would advise as follows.

With regard to your client's proposed Nationally Significant Infrastructure Project (NSIP) highways scheme, we note from your subsequent enquiry a preference of the promoter to seek side road orders and compulsory acquisition through other 'consenting regimes' after applying for the 'planning aspects', and dealing with the Environmental Impact Assessment (EIA) for the proposal, in an application for development consent. You suggest that this option would not unduly delay the consenting process by having to enter into negotiations on issues associated with compulsory acquisition such as land values during the pre-application stage. You add that 'there is a good case for [the planning] works to be completed asap and planning consent through a DCO would provide some confidence that the scheme will be delivered which will allow for the relevant authorities to obtain funding.'

With regards non-compulsory acquisition matters, we would note that your client will need to be satisfied that 'side roads' would not themselves fall within one of the thresholds in s.22 PA 2008 and so have to be included in an application for development consent. Such works might also be included in an application as associated development under s.115(2). Even if such development was not included in an application for development consent it would still need to have been assessed as a cumulative impact in the EIA for the proposed NSIP.

In order for compulsory acquisition powers to be included in a DCO the Secretary of State needs to be satisfied that the conditions in s.122 of PA 2008 are met. The settling of land values and the quantum of any compensation that might be payable would, however, be matters to be agreed or otherwise determined after a DCO was granted. With regards those matters, the inclusion of proposed compulsory acquisition powers in an application for development consent should not in our view delay submission of that application. Nonetheless, the funding statement submitted with the application would, for example, need to set out how land acquisition and compensation costs were proposed to be funded, by whom, and how funding arrangements were proposed to be secured.

Any applicant including proposed compulsory acquisition powers in their draft DCO would also need to submit a Statement of Reasons with the application, setting out their justification for including compulsory acquisition powers, and a Book of Reference (BoR) with the relevant required information, as set out in Regulation 7 of The Infrastructure Planning (Applications: Prescribed Forms and Procedure) Regulations 2009 (the APFP Regulations). The information in the BoR would be derived (inter alia) from the diligent inquiry carried out by the applicant in order to identify the relevant persons with an interest in the land etc. (s.44), to be consulted under s.42(d) PA 2008. We note that you acknowledge in your email, that this duty would have to be carried out by your client even if compulsory acquisition was to be pursued via another route. The land plan, which must be submitted with an application under Regulation 5(2)(i) of the APFP Regulations, would also need to show the plots of land identified in Part 1 of the BoR.

If an applicant was to attempt to complete it's pre-application consultation and publicity obligations within the 18 month period you mention, the applicant would need to be satisfied that they could collate the required information within that timescale so that it could be provided with the application, including sufficient information to be able to provide an adequate funding statement.

I hope this information provides you with suitable clarification.