Advice to Karen Maddock-Jones
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- From
- Karen Maddock-Jones
- Date advice given
- 18 January 2012
- Enquiry type
Please can you clarify who will be responsible for discharging water related requirements attached to a DCO? For example in the case of the Severn Estuary will it be the relevant local authority, the MMO or the EA?
Advice given
The Planning Act does not prescribe the way in which requirements should be discharged. The DCO will therefore need to identify the appropriate body whose approval is required. Section 38 requires the IPC to have regard to any model provisions but does not make it mandatory for a provision to be drafted in the prescribed form.
It will however be for the examining authority (ExA) if the application is accepted to consider whether the draft DCO should be made in the form submitted, taking into account any representations made by interested parties such as the local planning authority and the relevant statutory consultees. The local planning authority and other relevant bodies will need to be satisfied that they have the power to make decisions in relation to discharge of requirements.
The IPC’s functions generally cease once a DCO has come into force. The duty to monitor and enforce requirements would then lie with the appropriate enforcing body.
Notwithstanding which body(s) is to discharge requirements, our advice is that applicants should be engaging with relevant local authorities, and other statutory consultees at the pre-application stage, as part of their s.42 consultation, in order, amongst other matters, to identify what requirements those consultees consider may be necessary and if possible agree the wording of these (including the relevant undertaker responsible for discharging an article) before an application for development consent is submitted.
Generally discharges of requirements are dealt with by the relevant local authority or statutory undertaker rather than the IPC. You may wish to look at draft DCOs in respect of accepted applications for development consent on the IPC website.
We suggest that you have a look at the Rookery South DCO before Parliament that makes reference to water discharge under article 15 (page 10).