626: on flexibility
Today’s entry considers flexibility in the context of nationally significant infrastructure projects.
The issue that probably concerns project promoters about to enter the Planning Act 2008 regime the most is flexibility. Will the consent they receive at the end (or is it the end?) allow them to build a financially viable project, given what might develop once the application has gone in or after it has been consented?
They may not have detailed designers on board yet. For a commercial project, they may not have prospective customers on board yet. The prospective customers they do have may have very different configurations in mind. A design may be decided, but may need to change over time and the promoters wouldn’t want to keep having to get further consents to vary the project.
Recent attempts to allow later sign-off of details have been met with a one-two that forces the developer into a straitjacket. First, design drawings are demanded during the examination if not provided with the application, and the development consent order (DCO) is asked to secure that the design will be in accordance with the drawings. Then, any attempt to make variation from the design drawings easier is met with ‘there is a regime in place for making changes to development consent orders and you should not seek to interfere with it’ in the decision.
In my view that is going too far. A flexible consent that allows different possibilities is (a) perfectly acceptable and (b) does not mean that the project is changing when one of the possibilities is chosen.
The concept of flexibility in the location of a linear project has been long-established via so-called ‘limits of deviation’. Consent for building the project along a wider corridor than it will actually take up is commonly granted, given the uncertainty that still exists in terms of ground conditions and so on that could result in minor deviations to the route. Note also that compulsory purchase powers are routinely granted for the whole width of that route even though it is known that they will not all be exercised.
The concept of flexibility in the design of a project has long been accepted when the project is authorised by means of a hybrid bill. Detailed design is then signed off later. Recent hybrid bills have differentiated between well-behaved and badly-behaved local authorities (officially, ‘qualifying’ and ‘non-qualifying’ authorities). Those who undertake to handle subsequent approvals in a timely fashion and subject to other conditions get a wider range of things to approve than those who don’t. Even the non-qualifying authorities get to approve location (within project limits), design and external appearance. If this is good enough for a hybrid bill it should be good enough for a DCO.
In both cases, the original consent doesn’t change, it is merely crystallising into a particular implementation of the possibilities that it allows. The Environmental Statement shouldn’t need to change either, as it should encompass the worst case effects of anything that the consent could allow to be built, the so-called ‘Rochdale envelope’ concept. If a road could be built within a corridor, then the noise assessment should assume it is at the nearest edge to the properties on one side for the purposes of assessing the effect on them, and also at the nearest edge to the properties on the other side for their assessment.
Clearly the more flexibility that is introduced, the worse the worst-case scenario will appear and the worse it will be than any particular scenario that is implemented. The same goes for compulsory purchase – more land will be subjected to powers than will actually be acquired. There is therefore a natural disincentive to making the flexibility too great, as more people will appear to be affected, tipping the ‘adverse impacts’ pan of the scales.
At the moment, though, even though they aren’t required application documents, design drawings are expected and the consent is expected to be linked to them. For the regime to be more effective in bringing infrastructure forward we need to remove those expectations. Have an indicative design by all means, but don’t then tie the consent to it and insist on going through the development consent order (DCO) change process to vary it.
This is not a purely pro-developer point. Local authorities will have more say on projects if they are able to sign off detailed design, and local people will be able to participate at that stage. If this process is acceptable for hybrid bills, it should be acceptable for DCOs too.
I can see that those who live in the vicinity of a project are going to want to know what it looks like. With the above process, they will, in time. At the time of the main consent they are still likely to have – or should insist on – ‘design parameters’ to consider and comment on. It is still possible to control the limits of what might be designed without fixing on a particular design.
A degree of consensus on how much flexibility is acceptable and how it can be achieved would be a good step forward.
28 April 2015