Advice to Tracy Merritt

Enquiry

• From: Tracy Merritt
• Date advice given: 2 December 2011
• Enquiry type: Phone

Would a new application for a Development Consent Order be required for amendments to a consent made under the Electricity Act? Does a Development Consent Order benefit only the applicant or is it tied to the land in the same way as a standard planning permission?

Advice given

In regard to your first query, please note that whilst the Infrastructure Planning Commission (IPC) has the power under Section 51 of the Planning Act 2008 (PA 2008) to give advice about the general process of applying for an order granting development consent, we are unable to provide a legal opinion as to whether development consent is required.

You may therefore wish to obtain your own legal advice on which you can rely as to whether a development falls within the definition of a nationally significant infrastructure project (NSIP), as laid out below, and as such requires development consent under the PA 2008.

For a scheme to require a Development Consent Order (DCO) it must be considered a Nationally Significant Infrastructure Project (NSIP). The first test is whether the development concerned falls within the NSIP definitions in Part 3 of the Planning Act 2008: Sections 14-30 (PA 2008).

Section 14(1)(a) of the PA 2008 gives one of the definitions of a Nationally Significant Infrastructure Project as the "construction or extension of a generating station". Section 15 of the PA 2008 expands this definition and states that onshore generating stations must be within England or Wales and have a capacity of more 50 megawatts to be considered NSIPs. Section 15 encompasses the extension of a generating station if it is expected to be more than 50MW when extended

If the proposed development falls within sections 14-30 then s.31 of the Planning Act 2008 applies, i.e. development which is or forms part of an NSIP requires development consent. It is an offence to carry out development for which development consent is required (Section 160) without development consent. It is for the local planning authority (LPA) to enforce this using the powers under PA 2008.

With regards to your second query, s.156(1) of PA 2008 provides that a DCO has effect for the benefit of the land and all persons interested in the land. In this respect a DCO is similar to a planning permission (the corresponding provision is section 75(1) of the Town and Country Planning Act 1990).

This is the normal position unless there is any contrary provision included in the draft DCO (s.156 (2) of the PA 2008 allows for this). Such a contrary provision would be where the undertaker is named and the benefit of the DCO restricted to that particular undertaker. The undertaker may then wish to include a provision which enables it to transfer all or any of the benefits in the DCO if it chooses, subject to first obtaining the consent of the relevant Secretary of State.

I trust this response is helpful. If you have any further questions, please feel free to call enquiries line on 0303 444 5000.