3–D evelopment Consent Orders –managing accessAnthony McNameeThe Planning Act 2008 specialist authorisation regime for NationallySignificant Infrastructure Projects (NSIPs) such as roads, railwaysand power stations can also be used for purely commercial projects.The London Resort (an entertainment resort) and IAMP TWO (amanufacturing park) proposals are pioneers and if successful they willencourage others. The legislation affords a prospective applicant for aDevelopment Consent Order (DCO) wide powers of entry which are notalways welcome to affected landowners; perhaps the more so, if projectdrivers stray from public good to private profit. Can they be resisted?Authorisation requestsUnlike an applicant for planning permission, users of the NSIP regime can benefit fromstatutory powers allowing surveys before a DCO application is even submitted. Any personmay apply to enter on another’s land, without that owner’s consent, to carry out surveys inconnection with a proposed DCO application (a Request).A party intending to apply for a DCO to construct an NSIP (a Prospective Applicant) willneed to carry out surveys to gather information to comply with the Environmental ImpactAssessment Directive and the Habitats Directive. Access to land will be needed, both tothe proposed development site and to neighbouring land or land in the vicinity – bats orbadgers do not recognise Land Registry title boundaries.A Request, if successful, can include power to take and process samples of water, air, soil,rock, flora and more. Other regimes continue so there may be need for environmentalpermits or licences, or even planning permission in some cases, for Request works.The making of a Request should be a last resort. The Planning Inspectorate (the Inspectorate)takes a dim view of Prospective Applicants who do not first try to negotiate for access.ProcessWhilst there is no requirement to consult with landowners the Inspectorate expectsProspective Applicants to inform landowners and notify them that they may providecomments, and the Inspectorate will consider if there have been genuine attempts toreach a negotiated solution on access.Authorisation may only be given to a Prospective Applicant where they are considering:• a distinct project of real substance, and• this project genuinely requires entry on to the land.Human rights must also be considered in the Request process, in particular the right to peacefulenjoyment of property. Any interference must be proportionate and in the public interest.While there is no prescribed timeframe for the Inspectorate to make a recommendation,or for the Secretary of State to determine a Request, in practice this can take in theregion of 12 weeks depending on the Request’s complexity.The authorisation process does give the landowner scope to create resistance by makingrepresentations to the Inspectorate on the two key tests. Also, the 12 week length of theprocess can cause a developer problematic delays in light of the strict seasonal limitson some wildlife surveys (eg bats and newts). This means a landowner has cards toplay. Landowners can negotiate with the developer (on a without prejudice basis) to tryand agree access licences that offer ‘a path of least resistance’ and which are on termsbeneficial to the landowner, including provision for payment for that access.10Rural Estates NewsletterSpring 2021
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