At an IPC outreach meeting in Brechfa Church Hall last aututmn, I undertstood the officer to say that highways decisions can be heard seprarately from the rest of an application to the IPC. The RWE/ IPC environment proposals are now out for consultation and we need to know how the decisions about highways alterations would or will be made.

Whether or not alterations to highways need to be included in a development consent order for a nationally significant infrastructure project (NSIP) in Wales depends on whether the proposed works are integral to the NSIP or not. Development Consent under the 2008 Planning Act ('the Act') is required for development that is or forms part of an NSIP (s.31 of the Act).
At acceptance and during examination the Commissioner(s) need to consider whether any works are integral to the proposed NSIP or would constitute associated development and in doing so must have regard to the DCLG Guidance on Associated Development. The Guidance states at paragraph 10 that development should not be treated as associated development if it is actually an integral part of the NSIP and that the decision maker must decide on a case by case basis as to whether elements should be treated as associated development. The Commissioner(s) must look carefully at the facts available and the information provided by the applicant in the Explanatory Memorandum to be submitted with the application. It is for applicants to justify whether a particular element of a proposed NSIP can be considered to be integral to the NSIP and therefore what constitutes development for which consent is sought under the Act and to express and explain their conclusion in the Explanatory Memorandum.
In Wales only development associated with underground gas storage facilities that meet all the criteria in s.17(3) of the 2008 Planning Act (?the Act?) can be incorporated in a DCO as associated development (s.115 (2) and (4)).
Another consideration is whether highways works can be included in a development consent order (DCO) as a 'delegated authorisation': The Infrastructure Planning (Miscellaneous Prescribed Provisions) Regulations 2010 (in conjunction with S.150 of the Act) lists consents and authorisations which may only be included in a DCO if the normal decision making body agrees. 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 1).
Numbers 25 and 26 of part 2, schedule 1 of the Miscellaneous Prescribed Provisions Regulations relate to:
?25. An order for the regulation of traffic under section 1, 9, 14, 15, or 22BB of the Road Traffic Regulation Act 1984 (?);
26. An order under section 247 of the Town and Country Planning Act 1990 (order authorising stopping up or diversion of highway)?.
In principle this therefore provides the opportunity for promoters to request certain highway related alterations to be included within the DCO. However, as highlighted in the Explanatory Memorandum to Infrastructure Planning Regulations SI 102-106 at paragraph 7.28: "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 agreed a Memorandum of Understanding (MoU) with the Welsh Assembly Government (WAG). The MoU 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 other words, where a s.150 consent could be included in the DCO because it is listed in part 2 of schedule 1 of the Miscellaneous Prescribed Provisions Regulations, it is for the promoter to decide whether they would prefer to include this consent in their DCO and to seek their own legal advice on this. Where they would like to include a s.150 consent they need to seek the agreement of the normal decision making body (e.g. the Welsh Ministers, or the National Parks Authority, or the local authority depending on the consent sought) before they can do so. It is for the normal decision making body to decide whether or not to allow the requested s.150 consent to be integrated into the DCO or to retain it for their own determination. See also IPC Guidance Note 2, paragraph 22 which highlights: "(...) The Explanatory Memorandum supplied to the IPC by the promoter should identify the authorisation, the reasons why the promoter is following this route and should state how close the promoter is to achieving consent of the authority concerned. Where a promoter is seeking separate authorisations or licences these should be separately listed in the application submitted to the IPC (see CLG Application form guidance)."
In summary, unless proposed highways alterations are either integral to the proposed NSIP or fall under a consent listed in part 2 of schedule 1 of the Miscellaneous Prescribed Provisions Regulations and the normal consenting body agrees, they cannot be included in a development consent order (DCO) in Wales .
If other consent(s) for operations in connection with a proposed NSIP application are required, applicants need to indicate this on the application form (box 24) which asks applicants to list other consents / licences required under other legislation. Paragraph 47 of the CLG Application form guidance states about this: "Where the proposed development will also require other consents, licences, permits, etc, to enable it to be constructed and / or operational, and for which the Commission is not the authorising body, then the applicant must list and briefly describe these in Box 24. Reference should be given to any that have already been applied for, and a copy enclosed of any that the applicant may already be in the possession of. Such other consents could be required for controlling pollution, for example."