Rural Estates Newsletter Spring 2021 - Flipbook - Page 10
3–D
evelopment Consent Orders –
managing access
Anthony McNamee
The Planning Act 2008 specialist authorisation regime for Nationally
Significant Infrastructure Projects (NSIPs) such as roads, railways
and power stations can also be used for purely commercial projects.
The London Resort (an entertainment resort) and IAMP TWO (a
manufacturing park) proposals are pioneers and if successful they will
encourage others. The legislation affords a prospective applicant for a
Development Consent Order (DCO) wide powers of entry which are not
always welcome to affected landowners; perhaps the more so, if project
drivers stray from public good to private profit. Can they be resisted?
Authorisation requests
Unlike an applicant for planning permission, users of the NSIP regime can benefit from
statutory powers allowing surveys before a DCO application is even submitted. Any person
may apply to enter on another’s land, without that owner’s consent, to carry out surveys in
connection with a proposed DCO application (a Request).
A party intending to apply for a DCO to construct an NSIP (a Prospective Applicant) will
need to carry out surveys to gather information to comply with the Environmental Impact
Assessment Directive and the Habitats Directive. Access to land will be needed, both to
the proposed development site and to neighbouring land or land in the vicinity – bats or
badgers 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 environmental
permits 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.
Process
Whilst there is no requirement to consult with landowners the Inspectorate expects
Prospective Applicants to inform landowners and notify them that they may provide
comments, and the Inspectorate will consider if there have been genuine attempts to
reach 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 peaceful
enjoyment 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 the
region of 12 weeks depending on the Request’s complexity.
The authorisation process does give the landowner scope to create resistance by making
representations to the Inspectorate on the two key tests. Also, the 12 week length of the
process can cause a developer problematic delays in light of the strict seasonal limits
on some wildlife surveys (eg bats and newts). This means a landowner has cards to
play. Landowners can negotiate with the developer (on a without prejudice basis) to try
and agree access licences that offer ‘a path of least resistance’ and which are on terms
beneficial to the landowner, including provision for payment for that access.
10
Rural Estates Newsletter
Spring 2021
