Advice to Roy Davies

Enquiry

• From: Roy Davies
• Date advice given: 29 February 2016
• Enquiry type: Email

Mr Davies wrote to request advice on the following matter:

When a company/organisation submits an application to request a decision from the Secretary of State under a DCO for a proposed qualifying project (land and buildings etc), at what point does the activity prescribed in the DCO application take precedence over any other planning application that the relevant local authority have pending in respect of the same land and buildings?

Advice given

We advised that it is difficult to give definitive advice in general terms, since much depends upon the circumstances of each case.

In general, there is nothing to prevent two incompatible consents being in place for the same land; it is not necessary to own or control land in order to apply for planning permission for it. Therefore, a planning permission would not necessarily prevent the DCO from being made and a DCO would not necessarily prevent planning permission being granted. Which (if either) of the two consents were actually implemented would be a decision for whomever controlled the land.

However, the situation is slightly more complex when one of the two incompatible consents is a DCO because of the powers that can be included in them; including the power of compulsory acquisition of land, which would effectively give the DCO applicant control of the land from the point at which the order was made.

The Secretary of State would have to be persuaded of a compelling case in the public interest to grant such powers, and competing proposals for the same land are capable of being relevant to that consideration. In principle, the local authority could also ask the Secretary of State to give compulsory acquisition powers of land to them, in support of a scheme that has planning permission rather than the DCO; in which case the Secretary of State would weigh the two applications.