Rookery South Energy from Waste Generating Station

Enquiry received via phone

Rookery South Energy from Waste Generating Station

04 November 2011
Susan Marsh

Enquiry

Conversation to confirm the key sections of the Planning Act and the Infrastructure Planning (Environmental Impact Assessment) Regulations 2009 (EIA Regulations) which govern the procedure following a decision to grant development consent.

Advice given

S116 (3) - the statement of reasons (for deciding to grant development consent) must be published in such manner as the IPC thinks appropriate (see London Gazette dated 27 October 2011)
EIA Regulation 23 (2) (d) - if it is EIA development the public must be informed of the decision to grant development consent (see London Gazette dated 27 October 2011)
S117 (5) - a DCO which is a statutory instrument (the Rookery DCO is in the form of a statutory instrument) must be deposited as soon as practicable in the office of the Clerk of Parliaments. The IPC will be depositing the DCO as made. Deposit in this way does not constitute a special parliamentary procedure which is a separate procedure governed by the Statutory Orders (Special Procedure ) Act 1945.
S128 (2) - a DCO is subject to a special paliamentary procedure if a representation which has been made by the local authority (whose property may be compulsorily acquired by authority of the DCO) has not been withdrawn before completion of the examination of the application. The Rookery DCO authorises compulsory acquisition of local authority land and the requirements of s128 (2) must be met. Special parliamentary procedure will not commence before the DCO is deposited in accordance with s117 (5).
S118 - the "relevant day" (for determining the period which relates to proceedings) includes calculation from the day on which the DCO is published. There is no definition in the Planning Act of "publish" in this regard. It is arguable that a DCO (to which, for example, s128 (2) applies - see above) cannot be published unless it has been subject to special parliamentary procedure.
We are unable to give you legal advice about any steps which you think may be appropriate to take but hopefully the outline above of the procedure under the Planning Act will enable you to discuss matters further with your legal colleagues.