Guidance

Nationally Significant Infrastructure Projects - Advice Note Sixteen: requests to change applications after they have been accepted for examination

Published 1 July 2015

Applies to England and Wales

Republished March 2023 (version 3)

The purpose of this Advice Note is to provide information to applicants about how to request a change to an application after it has been accepted, and before the close of the Examination. It also provides advice to Interested Parties and others about how to engage in the process when a change to an application is proposed.

Paragraphs 109 to 115 of the government guidance on the examination of applications for development consent (The Planning Act 2008: Guidance for the examination of applications for development consent, March 2015) (the Examination Guidance) sets out the approach that an Examining Authority (ExA) should take when handling an applicant’s request to change an application after it has been accepted for examination.

Some types of changes to applications may be accommodated within Planning Act 2008 (PA2008) procedures, however paragraph 110 of the Examination Guidance makes clear that a proposed change may be so substantial that it constitutes a materially different project. In such circumstances the ExA will be unable to accept the proposed change because it would alter the application to such a degree that it could not be examined without breaching principles of fairness and reasonableness.

This Advice Note is intended to build on the Examination Guidance and establish a structured approach to provide greater certainty for applicants when making a request to change an application, as well as explaining the implications of doing so. It is relevant to the Pre-examination and Examination stages since these are the only times when a request to make a change to an application can be considered by the appointed ExA.

Applicants wishing to make a change to a Development Consent Order (DCO) which has already been made by the Secretary of State should refer to the following regulations and guidance:

• The Infrastructure Planning (Changes to, and Revocation of, Development Consent Orders) Regulations 2011
• The Infrastructure Planning (Changes to, and Revocation of, Development Consent Orders) (Amendment) Regulations 2015
• Planning Act 2008: Guidance on changes to Development Consent Orders, December 2015

1. Introduction

1.1 Nothing in this Advice Note should detract from the importance of submitting applications that have been thoroughly prepared. The purpose of the statutory Pre-application stage is to frontload project development and to require applicants to comprehensively prepare their applications. Technical issues should be identified and resolved as far as possible during the Pre-application stage so that they will not act as an impediment to the examination of the application within the statutory timescales. The government has published guidance on the Pre-application process (Planning Act 2008: Guidance on the pre-application process, March 2015) for applicants and other users of the process.

1.2 However, the government recognises that there may occasionally be circumstances when applicants may need to make a change to an application after it has been accepted for examination. Sometimes a change may result from the publication of new/ emerging government policy or from on-going negotiations between the Applicant and other Interested Parties.

1.3 The justification for making a change after an application has been accepted for examination must be robust and there should be good reasons as to why the matters driving the change were not identified and dealt with proactively at the Pre-application stage. Before an applicant requests a change to its application it should carefully consider how, if it is accepted by the ExA, it will impact upon the other Interested Parties and the Examination Timetable.

1.4 Only the Applicant can make a request to change its application. If Interested Parties seek changes to be made to an application after it has been accepted, they can speak directly to the Applicant or include their suggestions in representations made to the ExA.

2. When can a change request be accepted?

2.1 Only the appointed ExA can decide whether a change requested by an applicant can be accepted and examined. Upon receipt of a request to make a change to an application, the ExA must initially consider whether the development now being proposed is in substance the same as the development which was originally applied for. If the ExA considers that the effect of the change would be so substantial as to constitute a materially different project the Applicant will need to decide whether to withdraw the application and submit a fresh application accommodating the desired changes, submit a lesser change request or proceed with the examination on the basis of the development originally applied for.

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The combined impact of a series of incremental changes may also collectively result in a materially different project, requiring a fresh application.

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2.2 If the ExA considers that the effect of the change would not be so substantial as to constitute a materially different project, provided that the ExA considers there is sufficient time remaining, the change may be accommodated as part of the PA2008 examination process. Whether or not sufficient time remains will depend upon the complexity of the issues arising in consideration of criteria including, for example, the extent to which the change would generate a new or different likely significant environmental effect(s) and/ or the extent to which a change request involves an extension to the Order land, particularly where this would require additional Compulsory Acquisition powers eg for new plots of land and/ or interests.

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For change requests which would engage the provisions in The Infrastructure Planning (Compulsory Acquisition) Regulations 2010 (the CA Regulations) there must be as a minimum enough time left in the statutory timescales to accommodate the examination procedures established within those Regulations, or the Applicant must have obtained consent from all persons with an interest in the additional land that the land can be included in the application for CA in the DCO.

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2.3 In the interests of fairness, it will normally be necessary for applicants to consult on a proposed change to an application. The ExA will advise the Applicant about the need, scale and nature of consultation that may need to be undertaken in response to the Applicant’s Change Notification (see paragraph 3.2 of this Advice Note).

2.4 It is important to clarify that submission by the Applicant of new or revised information in the Pre-examination or Examination stages (for example new versions of the draft DCO as Articles are reviewed, drafting improved and Requirements or Protective Provisions developed in order to mitigate impacts) does not necessarily constitute a request to change an application. For example, following a decision to accept an application for examination, applicants are often issued with advice by the Planning Inspectorate which may identify errors, omissions and qualitative issues relating to the submitted application documentation. In response applicants may submit errata, amended application documents, plans or environmental information. During the course of the Examination the ExA may also request further information or written comments from an applicant or any Interested Party (in accordance with Rule 17 of The Infrastructure Planning (Examination Procedure) Rules 2010); new information may also be provided in response to an ExA’s written questions. Changes to the application documents may not necessarily result in changes to the Proposed Development.

2.5 The ExA is ultimately responsible for deciding whether any new information submitted into the Examination by an applicant constitutes a change to the application. In the event that an applicant submits new information that may constitute a change to an application, but does not provide a Change Notification (see para 3.2 of this Advice Note), the ExA may still ask for the information set out in Figure 2 of this Advice Note before deciding whether and how to examine the new information.

3. Key steps in requesting a change to an application

3.1 Before making a request to change an application, applicants will need to establish their own view (taking their own legal advice) whether a proposed change is likely to be able to be accommodated within the PA2008 process. If the Applicant thinks that the request to change its application may be accommodatable, it will need to prepare a notification to the ExA.

3.2 The ExA should be notified as early as practicable that a request to change an application is to be made (see Step 1 of Figure 1). This step is referred to as the Change Notification. Providing notification of the intent to make a change request involves a submission to the ExA which describes the change, gives the likely timescales for consultation and establishes the likely date upon which the formal submission will be made to the ExA requesting to make the change to the application. The Change Notification should include the information set out in Figure 2a of this Advice Note. The Change Notification and any related documentation provided will be published on the National Infrastructure Planning website.

3.3 The formal submission of the request to make a change to an application is referred to as the Change Application. The Change Application should include the information set out in Figure 2b of this Advice Note. Before making any Change Application (see Step 4 of Figure 1) the Applicant should have carefully considered the need to consult on the proposed change, taking account of any procedural advice provided by the ExA in response to the Change Notification (see Step 2 of Figure 1) and the provisions of the CA Regulations. The ExA will provide advice about who it considers should be consulted, but as a starting point the Inspectorate recommends that applicants should consult all those persons prescribed in the PA2008 under section 42 (a) to (d) who would be affected by the proposed change (giving a minimum of 28 days from the receipt of the information for responses). If a targeted approach to the identification of those affected by the request to change the application is adopted then detailed justification should be provided why it is deemed unnecessary to consult all of the prescribed persons (for example, in the case of Statutory Undertakers, by confirming that the proposed change would not affect their functions). If applicable, applicants should identify any newly prescribed persons ie those who have been consulted in relation to the requested change but were not consulted in regards to the original application.

3.4 Consultation about the proposed change may be done voluntarily by an applicant in advance of seeking procedural advice from the ExA in order to potentially save time. If an applicant wishes to consult in advance of Step 3 in Figure 1 but is unsure about how to proceed then it may make a submission seeking the views of the ExA as to the scale and nature of the consultation exercise.

3.5 The ExA may request that further consultation is undertaken if it considers that the steps taken by an applicant have not been adequate to safeguard the interests of and/ or inform those potentially impacted by the requested change.

Figure 1: Summary of how to make a request to make a change to an accepted application

Step 1 Applicant decides to request a change to an application which has already been accepted for examination and informs the ExA in writing (the Change Notification), including the relevant information set out in Figure 2.

Step 2 ExA provides advice to the Applicant about the procedural implications of the proposed change and about the need, scale and nature of consultation that the Applicant may need to undertake.

Step 3To the appropriate extent, the Applicant carries out consultation about the proposed change. This step may be initiated earlier in order to potentially save time and inform the Applicant’s approach.

Step 4 Applicant makes formal request to the ExA to change the application (the Change Application) by providing the relevant information set out in Figure 2.

Step 5 ExA makes a Procedural Decision on whether or not to accept and examine the changed application, and confirms how it will be examined.

Step 6 Where the ExA has decided that the changed application can be examined, the examination proceeds in consideration of the changed application. Where the ExA has decided that the changed application cannot be examined, the Applicant will need to decide how to proceed (see paragraph 2.1 of this Advice Note).

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A change request made in the final few weeks of the examination is unlikely to be accepted by the ExA, and its report and recommendation will be made on the basis of the application as it stands at the time of Examination close.

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4. Information required with a change request

4.1 To assist the ExA in making the Procedural Decision referred to in Step 5 of Figure 1, and also to provide clarity for participants in the process, applicants should provide the information set out in Figure 2 relating to the Change Notification and the Change Application.

Figure 2a: Information to include in a Change Notification

1. A clear description of the proposed change, including any new/ altered works and any new/ altered ancillary matters.
2. A statement setting out the rationale and pressing need for making the change with reference to the Examination Guidance, any relevant National Policy Statement(s) as appropriate and any other important and relevant matters. This statement should include a robust justification for making the change after the application has been accepted for examination.
3. A statement establishing whether the change involves changes to the Order lands and the Applicant’s view about whether the CA Regulations would be engaged by the proposed change. Where there would be insufficient time to accommodate the examination provisions in the CA Regulations, the Applicant must be able to provide confirmation of the consent of all those persons with an interest in the additional land to the inclusion of a provision authorising its CA in the DCO.
4. A statement establishing whether the change is expected to result in any new or different likely significant environmental effects, a summary description of those effects and any mitigation proposed.
5. Information to establish how, in the Applicant’s view, consideration of the change request can be accommodated within the remaining statutory timescales.
6. The timescale for consultation about the proposed change, and the Applicant’s view on the scope of that consultation, including justification.
7. The expected submission date for the Change Application.

Figure 2b: What to include in the Change Application

1. A confirmed/ updated description of the proposed change (see 2a, above).
2. A confirmed/ updated statement setting out the rationale and pressing need for making the change (see 2a, above).
3. A full schedule of all application documents and plans listing consequential revisions to each document and plan or a ‘no change’ annotation. The schedule should include an update of any consents/ licences required and whether (given the proposed change to the application) there will be any impediment to securing the consents/ licences before the Examination is concluded.
4. Clean and track changed versions of the draft DCO showing each proposed change, and a revised draft Explanatory Memorandum. If drafting changes have been made to the draft DCO during the course of the Examination, applicants should check with the ExA which version of the draft DCO and draft Explanatory Memorandum should be used for this purpose.
5. If the proposed change involves changes to the Order land, confirmation that the CA Regulations are not engaged including if appropriate a copy of the consent obtained from all persons with an interest in the additional land. If the CA Regulations are engaged applicants must provide the information prescribed by Regulation 5 of the CA Regulations (namely a supplement to the submitted Book of Reference, a Land Plan identifying the additional land, a Statement of Reasons as to why the additional land is required and a statement indicating how it is proposed to fund acquisition of the additional land (a Funding Statement)) and should clarify how it is considered that the procedural requirements of the CA Regulations can be met within the remaining statutory timescales. Clean and track changed versions of these documents should be provided.
6. If the proposed change results in any new or different likely significant environmental effects, provision of other environmental information and confirmation that:
   1. the effects have been adequately assessed and that the environmental information has been subject to publicity. Whilst not statutorily required, the publicity should reflect the requirements of The Infrastructure Planning (Environmental Impact Assessment) Regulations 2017 (the EIA Regulations) and applicants should also submit copies of any representations received in response to this publicity with the change request.
   2. any consultation bodies who might have an interest in the proposed changes have been consulted (reflecting the requirements of the EIA Regulations). Applicants should submit copies of any responses received from consultation bodies with the Change Application. Applicants should identify those consultation bodies who were consulted on the proposed changes but not on the original application.
7. Where consultation has been carried out (either voluntarily, at the direction of the ExA or pursuant to the requirements of the CA Regulations) a Consultation Report must be provided. The Consultation Report must confirm who has been consulted in relation to the proposed change, explain why they have been consulted, and include the Applicant’s consideration of the content of the consultation responses received. Copies of any consultation responses received by an applicant should also be included in the Consultation Report as an annex.

5. The role of the Examining Authority

5.1 The ExA is appointed following a decision to accept an application. As such, it will normally be in place early in the Pre-examination stage. This may therefore facilitate early consideration of how a change request is dealt with.

5.2 The ExA must ensure that the rights of Interested Parties and anyone else that could be affected by a proposed change are protected. The principles of fairness and reasonableness will guide the ExA in their consideration of a change request.

5.3 Procedural requirements as they relate to the CA Regulations (where the change involves additional land as defined in Regulation 2 of the CA Regulations) and the EIA Regulations (where a change requires submission of environmental information as defined in Regulation 3 of the EIA Regulations) will also be significant factors in deciding how a change will be dealt with.

5.4 Where an applicant makes a request for a change, and where appropriate has consulted on that change, the ExA will need to consider whether (and if so how) to examine the changed application. Initially the ExA must satisfy itself that the change is not so substantial that the Applicant is effectively seeking consent for a materially different project and therefore one which has not been subject to the Pre-application statutory procedures. If this were the case, the changed application would not be capable of being examined within the statutory timetable without breaching principles of fairness and reasonableness. Whether the proposed changed application still constitutes the same project or not is an ExA decision based on planning judgment. The ExA will not normally need to consult Interested Parties about this issue as responses to the consultation undertaken by the Applicant will have been provided as part of the Consultation Report accompanying the Change Application.

5.5 If the ExA decides not to accept the changes put forward by the Applicant, then the Applicant will need to decide whether to proceed on the basis of the submitted application, to withdraw the application or to submit a lesser change request. If an applicant decides to promote a lesser change, then consideration should be given to the time available to request and examine the lesser change. The later in the process that an application is withdrawn, the greater the risk that an Interested Party may successfully recover their costs. The government has published guidance about the award of costs (Awards of costs: examinations of applications for development consent orders, July 2013).

6. The role of Interested Parties

6.1 Interested Parties will always be provided with opportunities to engage in the change process. Relevant Interested Parties (and Statutory Bodies/ Consultees) will normally be consulted by the Applicant prior to the Change Application being made to the ExA. The Inspectorate encourages relevant Interested Parties (and Statutory Bodies/ Consultees) to be responsive to any consultation undertaken by the Applicant in order that agreements and/ or conflicts can be presented to the examination as early as possible.

6.2 If a change is accepted by an ExA, the ExA will always invite Interested Parties to comment on the changed application. This opportunity will be accommodated within a revised Examination Timetable. Submissions will normally take the form of written representations, as described in Rule 10 of The Infrastructure Planning (Examination Procedure) Rules 2010, including responses to any specific questions posed by the ExA about the changed application. See Advice Note 8.4 for more information about making written representations. An Issue Specific Hearing may also be held dealing with the changed application. See Advice Note 8.5 for more information about hearings.

6.3 For changes which engage the CA Regulations because additional land or rights over land are required to realise the change, relevant Interested Parties (including Affected Persons) will be invited to engage in the examination procedures set out in the CA Regulations. These procedures include a fresh Relevant Representations stage dealing with the proposed provision to include additional land and/ or rights, and the opportunity for relevant Interested Parties to request to speak at an Open Floor Hearing and/ or Compulsory Acquisition Hearing. The Applicant must provide notification of these procedures and publicise them in the manner prescribed in the CA Regulations.

6.4 Ultimately it is for the ExA, having considered the changed application and the representations made about it, to report to the relevant Secretary of State with a recommendation about whether development consent and any Compulsory Acquisition powers requested by the Applicant should be granted.

7. Timing implications

7.1 The following section highlights the implications of making a change request at different stages of the process after an application has been accepted for examination. It also sets out the various procedural opportunities and powers that an ExA can use to help facilitate consideration of a change request.

7.2 A request to make a change to an accepted application will be considered within the existing fee structure as set out in The Infrastructure Planning (Fees) Regulations 2010 (the Fees Regulations). However, applicants should be aware that one of the implications of introducing a change request to an application is that additional time may be needed (within the statutory maximum six months Examination stage) to examine the application, which may have the effect of increasing the examination fee based on the applicable daily rate under Regulations 8 and 9 of the Fees Regulations.

The Pre-examination stage

7.3 If a change is required, applicants should provide the Change Notification as soon as possible after the application has been accepted and follow the steps in Figure 1 of this Advice Note. Consultation (as per Step 3 in Figure 1) can take place early in the Pre-examination stage, before the examination commences. Proposing a change at this point can reduce the impact on the statutory timescale during the Examination stage. However, applicants should ensure that any delay to the start of the Examination is kept to a minimum in accordance with paragraph 45 of the Examination Guidance.

7.4 If an applicant wishes to provide a Change Notification in advance of the Preliminary Meeting, as much information as possible (see Figure 2 of this Advice Note) should be provided with the notification and not withheld until the Change Application is made.

Change Notification before the invitation to the Preliminary Meeting is issued (Rule 6 letter (The Infrastructure Planning (Examination Procedure) Rules 2010, Rule 6))

7.5 Ideally a Change Notification should be provided by the Applicant before the Rule 6 letter has been issued to the Interested Parties. This would allow the ExA to include information about the change request in the Rule 6 letter and to direct Interested Parties to information provided by the Applicant about the change request. It would also allow the ExA to take account of the request in the draft Examination Timetable and include time for discussion about the examination of the proposed change in the draft Preliminary Meeting agenda. This would enable all Interested Parties to be fully informed before the Preliminary Meeting and to facilitate a focussed discussion about how a changed application might be examined.

7.6 Applicants should check with the Planning Inspectorate’s Case Manager about when the Rule 6 letter is likely to be issued to Interested Parties. An emerging Change Notification may influence the timing of the publication and notification of the Rule 6 letter to Interested Parties.

7.7 If an applicant provides a Change Notification before the Rule 6 letter is issued this may also have a bearing on the timing of the Preliminary Meeting. For example, a period of time may be required in advance of the Preliminary Meeting to allow an applicant to seek advice from the ExA as per Step 2 in Figure 1 of this Advice Note and then consult on the proposed change as per Step 3 in Figure 1. This may delay the start of the Examination stage but would mean that Interested Parties and others would have an opportunity to consider the implications of the change before the start of the Examination and minimise the impact on the rest of the process.

Change Notification after the invitation to the Preliminary Meeting is issued (Rule 6 letter)

7.8 If an applicant decides that a change to the application is required after the Rule 6 letter has been issued the ExA should nonetheless be informed with a Change Notification as per Step 1 in Figure 1 of this Advice Note as soon as possible in advance of the Preliminary Meeting. Applicants should not propose a change at the Preliminary Meeting without first providing a written Change Notification to the ExA.

7.9 Although Interested Parties may not have had advance warning of the proposed change in the Rule 6 letter, the ExA can adjust the Preliminary Meeting agenda to provide an opportunity to ask the Applicant and other attendees questions about the proposed change and how it should be examined, with reference to the draft Examination Timetable issued with the Rule 6 letter.

7.10 If the ExA considers that an applicant has provided insufficient information in its Change Notification or, in the event that a Change Application has already been made, has not carried out sufficient consultation and publicity, the ExA may be able to build time into the Examination Timetable for an applicant to repeat Steps 3 and 4 of Figure 1 of this Advice Note before making a Procedural Decision (Step 5 of Figure 1). Alternatively, if the ExA decides that all Interested Parties should be given more time to consider the proposed change prior to the start of the Examination the ExA may send a Procedural Decision to Interested Parties advising them of a new Preliminary Meeting date.

7.11 If the ExA considers that the changed application can be examined, it will issue its Procedural Decision in the Rule 8 letter as soon as practicable after the Preliminary Meeting, including an Examination Timetable which will ensure that there is sufficient time for examination of the changed application within the statutory timescales. If the ExA decides not to accept the change requested by the Applicant this will also be communicated in the Procedural Decision contained in the Rule 8 letter.

The Examination stage

7.12 The Examination must not last longer than six months and as such any request to make a change must be made as soon as possible and at a time which will allow the ExA to examine all important and relevant matters raised by the changed application. The ExA must notify Interested Parties of any Procedural Decision to accept or refuse a Change Application as soon as practicable after the decision has been made.

7.13 If the CA Regulations have been engaged the ExA will need to consider whether it is possible to meet the requirements set out in these Regulations within the remainder of the Examination stage.

7.14 During the Examination, a Change Notification must be submitted in writing to the ExA as per the steps identified in Figure 1 of this Advice Note. In submitting a Change Notification, applicants should consider the extent of consequential amendments required to the submitted application and the time available to produce the requisite documentation to accompany the Change Application; also, the time available for Interested Parties to be able to digest, understand and comment on the proposed change before the end of the Examination, in addition to any other remaining issues.

7.15 Before submitting a Change Notification, the Applicant may also wish to inform the ExA at a hearing about the emerging change request. However, applicants should not rely on the ExA being in a position to be able to make a Procedural Decision at a hearing. If the proposed change has a bearing on the hearing agenda then the ExA may exercise its discretion to adjourn the hearing and/ or amend the Examination Timetable by making a Procedural Decision.

7.16 Once the Examination has closed the ExA cannot accept any further representations or submissions from Interested Parties, including any request by an applicant to make a change to an application.