Advice to Mark Pearson

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Enquiry

From
Mark Pearson
Date advice given
4 April 2011
Enquiry type
Phone

Caller asked whether there was any scope for the IPC to extend an extant planning permission in connection with terrestiral works to a port.

Advice given

Whilst the IPC has a power under s51 of the Act to give advice about the general process for applying for an order granting development consent, or making representations about an application (or proposed application) for such an order, we are unable to provide a legal opinion as to whether development consent is required and we strongly recommend that you seek legal advice upon which you can rely. In the meantime however, I hope that the following is helpful:

  1. You indicate that you do not intend to start building the Northern Gateway Container Terminal before October 2010 and that at this point the planning permission may no longer be extant for the land-side works. The IPC does not have power under the Act to vary conditions on an extant planning permission.

  2. Whether or not development consent would be required for the land-side works (if you do not intend to implement the planning permission before it expires) depends on whether the development falls within the thresholds in Section 24 and is therefore an Nationally Significant Infrastructure Project (NSIP). You have indicated that the land-side facilities are not expected to be capable of handling more than 500,000 TEU but this is something that you will obviously wish to take legal advice on having regard to the detailed provisions in Section 24.

  3. It is an offence to carry out development for which development consent is required (Section 160) and it is for the local planning authority (LPA) to enforce this using the powers under the Act. The LPA has indicated an unwillingness to determine an application under the Town and Country Planning Act 1990 to vary the planning permission for the land-side works. However, you may also wish to go back to them and seek their views about any potential breach of Section 160 in the event that the land-side works were constructed without development consent.

  4. Depending on the facts, if your advisers reach the view that the land-side works do not in themselves constitute an NSIP the IPC does not have power to consent the land-side works in isolation unless consent for the works was sought as associated development in conjunction with an NSIP application. Even if the harbour works constitute an NSIP in their own right they have in any event already been consented through the Harbour Revision Order (HRO) and you have indicated that you will be able to implement the HRO before it expires.

  5. You will be aware that if both the HRO and planning permission lapse before implementation you will of course need to consider whether the scheme as a whole constitutes an NSIP requiring development consent.