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08 February 2019

818: Notes from a conference

I attended the annual ‘NSIPs Forum’ this week, which is always a good way to pick up Planning Act-related news.

The Planning Inspectorate are moving towards a default position of electronic-only applications, although some documents will still be asked for in hard copy at points during the examination. It’s not exactly clear whether the next application can do this, but anyone about to put one in might inquire. No legislation change is required because the application regulations say:

‘If requested by the Secretary of State, three paper copies of the application form and other supporting documents and plans.’

So the Secretary of State simply doesn’t need to request paper copies. I noted that this should go hand in hand with electronic access only needing to be required at deposit locations.

The issue of relying on precedents from previously-made orders came up, and the Examining Authority’s Report on the Testo’s project was cited. Presumably the key paragraph is 4.7.14 – Drawing this guidance together, the expectation is that an Applicant should:

  • identify in the EM where there is a precedent made Order as a source of drafting for a provision in a DCO (DCLG Guidance paragraph 100, AN13 and AN15);
  • particularly consider precedent made Orders published by the same Department to identify drafting preferences (AN15);
  • explain how it is that the inclusion of particular precedent wording is appropriate and relevant in all the circumstances of the application in hand (AN13 and AN15); and
  • if a change is then proposed to precedent wording that is otherwise proposed to be included, the reasons for divergences from it in the application in hand should also be made clear in the EM (AN15).

I think it’s going too far to require detailed justification of both why you are following precedent and why you aren’t, it’s a waste of effort to have to justify identical provisions as previous DCOs dealing with the same type of infrastructure. The assumption should be that provisions that are in all existing highway DCOs, say, would be expected in subsequent ones.

There are three live applications for strategic rail freight interchanges, two in the East Midlands and one in the West Midlands. It will be interesting to see how the government decides these. Do you take up need if you get in first? Or are their cases that they address separate need?

My colleague Tom Henderson presented on case-making, the ‘golden thread’ running through a project from conception to implementation. Considering the criteria for making a decision on an application from the start (some of which aren’t very well known) will ensure that it remains focused on the prize.

Claire Hennessy of WSP usefully reminded us in an Only Connect themed presentation that Brechfa, Progress Power and North Wales Windfarms are examples of projects with alternatives raised during an examination, and Hinkley Connection and York Potash are examples of applications with alternatives in them from the start (to which I would add the A63). She said that the age-old argument shouldn’t be flexibility versus detail, if you want more flexibility you have to provide more detail.

Unfortunately work commitments meant I could only attend a quarter of the conference. In other news, Horizon Nuclear Power has confirmed that it is continuing with the Wylfa Newydd DCO examination in a letter published yesterday.

Meanwhile, National Grid is promoting a DCO for the associated power line, the North Wales Connection, the application for which was made on 7 September 2018. It has asked that the preliminary meeting be postponed until after 1 June due to the uncertainty around the power station application. 1 June is around the middle of the three-month recommendation period for Wylfa. The Inspectorate has invited comments on this proposal in a letter.

The relevant representations for the Stonehenge tunnel project have been published and at 2370 that puts them into fourth highest position. By quite a coincidence, two of the rail freight applications mentioned above have had the same number of representations – 1324.

Something I forgot to mark is that six months have passed since the publication of the National Infrastructure Commission’s National Infrastructure Assessment on 10 July 2018. As it says:

‘The government has committed to lay the Assessment before Parliament, and to respond to the Assessment within six months (with a final deadline of a year).’

We’re nearly at seven months and not a peep so far. My latest information is that the response will be published ‘in due course’, one of the more faraway phrasings used by the civil service. Dear government, you’ll get a roasting in this blog if you don’t publish the response by 10 July 2019, you have been warned. That’ll show ’em.

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