Advice to Marrons

Enquiry

• From: Marrons
• Date advice given: 14 October 2010
• Enquiry type: Email

If

(i) you obtain a planning permission for a development and there is a condition attached which, say, requires that Area A should only be used for open space purposes,

(ii) you then implement the permission.

(iii) You then want to build on the open space.

(iv) You can then apply for a planning permission to build on the open space and that permission if granted allows you to build notwithstanding the fact that there is still a planning condition in existence which says you can't build. In other words the later permission trumps the earlier condition.

What we are asking is whether a later planning permission would trump an earlier DCO "requirement" in the same way?

Advice given

The drafting of the DCO provisions and any suggested draft requirements is, of course, a matter for an applicant. In drafting the suggested requirements an applicant may wish, amongst other matters, to consider how these will affect the future operation of the development should a DCO be granted.

As I mentioned previously, there is scope for the IPC/Secretary of State to make non-material changes to granted DCO provisions and requirements under Schedule 6 of the 2008 Act.

Enforcement of any non-compliance with DCO provisions and requirements will though be a matter for the relevant LPA rather than the IPC. Under s.161 of the 2008 Act an LPA could enforce in relation to any development carried out in breach of the DCO or other failure to comply with the terms of a DCO. This may include, for example, breach of a requirement which required that Area A should only be used for open space purposes.

Similarly, any 'stand alone' planning applications, not meeting the relevant NSIP thresholds, that may subsequently be submitted and granted in relation to land to which an implemented/ built-out DCO development relates will also be matters for the relevant LPA. The relevant LPA would look at any such future planning application(s) on their particular merits.

In view of their significant role, you may also wish to raise these queries with the relevant LPA(s).

In any event, we would suggest that you give careful consideration to these matters in drafting the DCO provisions and any suggested draft requirements.