Whether or not a rights of way diversion order can be included in a development consent order (DCO) for NSIP in Wales

The Infrastructure Planning (Miscellaneous Prescribed Provisions) Regulations 2010 (attachment 1) (in conjunction with S.150 of the 2008 Planning Act) lists consents and authorisations which may only be covered by an order granting development consent (rather than being dealt with by the normal decision making body) if that body agrees. Part 2 of the Miscellaneous Prescribed Provisions Regs is specific to Wales and lists at number 27 "an order under section 257 of the Town and Country Planning Act 1990 (footpaths, bridleways or restricted byways affected by development; orders by other authorities)". The intention in drafting the list for Wales was to ensure that no devolved consent should be included in a draft DCO without the agreement of the relevant consenting body in Wales, as is set out in the Explanatory Memorandum to Infrastructure Planning Regulations SI 102-106 (attachment 2). At paragraph 7.28 the latter states: "this provision should only be used with the agreement of the relevant consenting body who will be able to advise as to what protections and conditions should be included in the order. Ministers made firm commitments during the passage of the Bill through Parliament that this power would only be used if contained in the promoter's draft order, and was therefore subject to the pre-application requirements set out in Chapter 2 of Part 5 of the Act". Paragraph 7.30 of the Explanatory Memorandum further states "these Regulations are not intended to imply that it would be appropriate in any particular case for the requirement for a certain consent to be removed, nor are they intended to imply that a consenting body will ever agree to the removal of a requirement."
The IPC is fully committed to an open and co-ordinated working relationship in Wales and has recently agreed a Memorandum of Understanding (MoU: attachment 3) between the IPC and the Welsh Assembly Government (WAG). This also states at paragraph 26 that:
"The IPC will seek to ensure that prospective applicants and other parties are aware from the outset of the particular ways in which the infrastructure planning system applies in Wales. (?) Early engagement will be vital between Welsh decision-making bodies, scheme promoters and other consultees about s150 consents that may be proposed for inclusion in the development consent order, rather than being under the control of the normal decision-maker. Early engagement by the applicant with the relevant Welsh decision-making body will also ensure that the body is fully informed of case circumstances before deciding whether to allow the s150 consent to be included in an order."
In summary it is for the promoter to decide as to what they would want to include in their DCO and to seek their own legal advice on this. Where they would like to include S.150 consents (as for instance a RoW diversion order) they need to seek the agreement of the normal decision making body (i.e the local authority in the case of a RoW diversion) before they can do so. It is for the normal decision making body to decide whether or not to allow the requested S150 consent to be integrated into the DCO or to retain it for their own determination.