Planning Act 2008: Guidance on the acceptance stage of an application
Provides guidance on the acceptance stage for Nationally Significant Infrastructure Projects (NSIPs).
Applies to England and, in limited circumstances, to Wales and Scotland
1. The purpose of this guidance
1.1 This guidance covers the statutory requirements relating to the acceptance stage for an application for an order granting development consent (DCO application). The guidance then covers a range of matters which are considered as part of the acceptance process.
1.2 This guidance should be read in conjunction with the Introduction to National Infrastructure Planning Guidance, which includes information about audience, legal status and territorial extent of the full guidance suite.
2. Statutory requirements
2.1 Under section 37(2) of the Planning Act 2008 (“the Planning Act”), a DCO application must be made to the Secretary of State. Part 2: Application contents of the guidance on preparing an application sets out the requirements of what every application must contain, and those elements which are contingent on the nature of the proposed DCO application. In practice, the DCO application is submitted to the Planning Inspectorate (acting on behalf of the Secretary of State) who decides whether or not it should be accepted for examination.
2.2 Under section 55 of the Planning Act, for a DCO application to be accepted it must be concluded by the Secretary of State that:
- it is an application for an Order granting development consent
- development consent is required for any of the development to which the application relates
- the applicant has complied with section 46 of the Planning Act (duty to notify the Secretary of State and others of the proposed application)
- the application (including accompaniments) is of a standard that the Planning Inspectorate (on behalf of the Secretary of State) considers satisfactory
2.3 In reaching a decision on whether the application is of a satisfactory standard to be accepted, the Planning Inspectorate must take into account:
- whether the applicant has complied with the duty to notify (section 46 of the Planning Act)
- the extent to which the application complies with section 37(3) of the Planning Act (form and contents of application)
- the extent to which any applicable guidance under section 37(4) of the Planning Act has been followed in relation to the application
- the extent to which the application complies with any standards set under section 37(5) of the Planning Act (standards for documents etc accompanying application)
- the extent to which the applicant has had regard to any guidance issued by the Secretary of State under section 50(1) of the Planning Act in respect of satisfying section 48 of the Planning Act (this is covered in Part 1: Pre-application steps of the guidance on preparing an application)
- the extent to which the applicant has had regard to any advice given under section 51 of the Planning Act in connection with the application
2.4 The degree to which the applicant has chosen to carry out pre-application engagement and consultation, and the applicant’s approach to this, is not a statutory consideration in determining whether an application should be accepted in accordance with section 55 of the Planning Act. The adequacy of any engagement or consultation is also not a consideration in the assessment of a DCO application.
2.5 Where the Planning Inspectorate decides to accept an application, the applicant must be notified of this decision under section 55(6) of the Planning Act. In turn, the applicant must notify relevant parties as is explained in section 4 of this guidance below.
2.6 In circumstances where the Planning Inspectorate decides not to accept an application, the applicant must be notified of this decision. Under section 55(7) of the Planning Act, the reasons for the Planning Inspectorate’s decision not to accept an application must be provided to the applicant and published. Generally, this will be on the relevant project page of the ‘Find a National Infrastructure Project’ website operated by the Planning Inspectorate.
2.7 In line with the Planning Inspectorate’s current operational practice, applicants may also be informed during the acceptance period (typically around 21 days from receipt of the application) if the Planning Inspectorate has identified potential issues that could lead to an application not being accepted. This provides an opportunity for applicants to consider withdrawal and resubmission, where appropriate, rather than receiving a decision that the application has not been accepted. The Planning Inspectorate may also contact the applicant during the 28-day acceptance period to seek clarifying information about the application documentation.
2.8 In summary, the various outcomes of the acceptance process are set out in the following table:
| Decision | Outcome |
|---|---|
| (1) The Planning Inspectorate concludes that the application satisfies section 55(3) of the Planning Act and does not require any corrections, changes or additions. | The application is accepted without request for any changes. |
| (2) The Planning Inspectorate concludes that the application satisfies section 55(3) of the Planning Act, but certain corrections, changes or additions would add clarity to the application or facilitate examination. | The application is accepted, and the Planning Inspectorate provides the applicant with section 51 advice and/or a procedural decision made by the Examining Authority, if appointed, setting out the information which it considers should be corrected, changed or supplemented to facilitate examination. This advice and/or procedural decision will set out the date or milestone by which these changes should be made, being either: (1) Prior to the publication of the notice of acceptance (2) Prior to the start of examination, or (3) In rare circumstances, where earlier submission is not possible, during examination. |
| (3) The Planning Inspectorate considers that the application does not satisfy section 55(3) of the Planning Act. | The application will not be accepted for examination. The Planning Inspectorate will provide the applicant with a statement of reasons for that decision (and publish the reasons) and will provide section 51 advice on the changes that are likely required for any future application to better satisfy the requirements of section 55(3) of the Planning Act. |
| (4) The Planning Inspectorate informs an applicant during the acceptance period of potential issues that could lead to an application not being accepted. | The applicant has an opportunity to consider withdrawal and resubmission, where appropriate. |
3. Making the acceptance decision
The acceptance of applications checklist
3.1 To help its decision-making on whether or not to accept applications for examination, the Planning Inspectorate has developed an ‘Acceptance of Applications Checklist’ based on section 55 of the Planning Act, the Infrastructure Planning (Environmental Impact Assessment) Regulations 2017 (the “EIA Regulations”) and the Infrastructure Planning (Applications: Prescribed Forms and Procedure) Regulations (the “APFP Regulations”).
3.2 This checklist is published by the Planning Inspectorate. Most applicants find it helpful in preparing their applications, and include their version of it as part of the application submission. Whilst applicants are strongly recommended to complete the checklist, it is not a statutory requirement to submit the checklist.
Environmental Impact Assessment and Habitats Regulations
3.3 If the proposal is Environmental Impact Assessment (EIA) development, it must be accompanied by an Environmental Statement (ES). When considering whether to accept an application, the Planning Inspectorate will consider the information before it, including the ES, in terms of both the proposal and the requirements of the EIA Regulations, in particular Regulation 14 and Schedule 4 to the EIA Regulations.
3.4 Similarly, where the applicant has identified that a proposed development is likely to have a significant effect on a site designated in accordance with the Conservation of Habitats and Species Regulation 2017 (as amended) and/or their offshore equivalent, the Conservation of Offshore Marine Habitats and Species Regulation 2017, collectively referred to as “the Habitats Regulations”, the applicant must provide a report as required by Regulation 5(2)(g) of the APFP Regulations. This report must be sufficient to allow the competent authority (the relevant decision-making Secretary of State for the DCO application) to make an appropriate assessment of the implications for the site if required.
3.5 Where an appropriate assessment is required, the information necessary for the competent authority to make that assessment must be provided. If the report or appropriate assessment information is incomplete the Planning Inspectorate may decide not to accept the application for examination. The Planning Inspectorate may, however, accept an application where it is satisfied that the applicant has submitted adequate justification explaining why an appropriate assessment is not required, or where the applicant has provided adequate information to support conclusions of no adverse effects on the integrity of the protected site. The relevant statutory nature conservation body (SNCB) must be consulted on any appropriate assessment under Regulation 63 of the Conservation of Habitats and Species Regulations 2017. Where there is disagreement between the SNCB and the applicant about matters relating to the scope, content or conclusions of information provided by an applicant to satisfy the Habitat Regulations, it will generally be more appropriate to test this at examination, rather than for the Planning Inspectorate not to accept the application. Applicants should be aware, however, that entering examination with such disagreements outstanding may increase the risk of refusal or delay to determination.
3.6 To support an efficient examination, applicants are encouraged to consider providing a ‘without prejudice’ derogations case when submitting their application where there is a realistic prospect that the derogation tests will need to be relied on. In considering whether to provide a ‘without prejudice’ derogations case, applicants should have regard to SNCB advice and the relevant National Policy Statement (NPS), which may require a derogations case to be included when submitting an application.
3.7 An application may still be accepted in situations where a limited amount of further targeted or confirmatory environmental information relating to the EIA or Habitats Regulations is anticipated, provided that sufficient information has been submitted to identify and assess the likely significant environmental effects of the proposals – this could be based on desk-top studies, professional judgement and reasonable worst case assumptions. An example of further targeted or confirmatory information could be an additional, and more recent, seasonal ecological survey to supplement existing relevant information or to address a concern of the SNCB. However, this approach is not generally encouraged, and the absence of such information should not compromise the statutory requirements that apply to each process. Applicants should fully consider the risks of their approach as this may lead to delays if the Secretary of State subsequently requests further assessment or information. If, after a DCO application is accepted, it seems additional material is needed to further understand the effects of the project, it will be requested by the Examining Authority or raised by SNCBs in their representations.
Section 51 advice
3.8 Under section 55(4)(e) of the Planning Act the Planning Inspectorate, on behalf of the Secretary of State, must take into account the extent to which the applicant has had regard to any advice given under section 51 of the Planning Act in connection with the application (or proposed application) (section 51 advice).
3.9 There is no prescribed manner for applicants to show they have had regard to section 51 advice issued in connection with an application, and it is therefore at the applicant’s discretion to decide how to do so. Where an applicant chooses to diverge from any section 51 advice provided, they should give reasoning to demonstrate they have had regard to the section 51 advice and to otherwise enable the Planning Inspectorate to take this into account when deciding whether or not the application is of a satisfactory standard.
Satisfactory standard
3.10 Determining whether an application is of a satisfactory standard to be accepted, in accordance with section 55(3)(f) of the Planning Act is a judgement which the Planning Inspectorate makes on behalf of the Secretary of State (further advice is also provided by the Planning Inspectorate on the presentation of application submissions). This judgement requires balancing the urgent need for Nationally Significant Infrastructure Projects to go forward to examination without delay, with the need to ensure that the application submission is complete and coherent, robust, and sufficiently clear to be examined. It is difficult to set out universal standards for the range of submission information, but applicants are advised to comply with the following pursuant to section 37(3), (4) and (5) of the Planning Act:
- the application must be clear as to what is being applied for and must be accurately represented on the submitted plans. Applicants are recommended to ensure that there are no discrepancies between the numbered works in Schedule 1 to a DCO and those on the works plans
- applicants are advised to carry out a full review of the draft DCO, Explanatory Memorandum, works and land plans, and, where applicable, the Statement of Reasons, Book of Reference, ES and information relating to Habitats Regulations to ensure that there is no ambiguity or discrepancies in the description of the proposed development throughout the application documents submitted for acceptance
- submitted plans must accurately reflect the proposed development and clearly indicate the proposed scale, massing and design of the proposals. Given that many applications present a proposal within a ‘Rochdale Envelope’ approach reflecting the worst-case scenario, the ultimate physical implementation of a proposed development may not be fully worked up at the time of submission. Nonetheless applicants are expected to be able to convey to the Planning Inspectorate, Examining Authority and all the participants in an examination the maximum parameters of the proposed development in accordance with the requirements of the Rochdale Envelope and the likely nature, scale and appearance
- the expectation is that a Planning Statement or similar document will be submitted which explains the proposed development, the policy context for the application and the range of issues which arise, pursuant to Regulation 5(2)(q) of the APFP Regulations. This is detailed further in Part 2: Application contents of the guidance on preparing an application
3.11 An application of a satisfactory standard is one which meets statutory requirements and is generally:
- internally consistent, ensuring information is coherent across the application (including consistent and correct titling, referencing, and cross-referencing), and technically coherent
- complete (including all required information and documents), robust, credible, and accurately reflects the proposed development at submission
- sufficient in scale and content to the proposed development
- concise, clearly written, and well-structured in terms of navigability through the range of application information
Publication of application documents
3.12 As detailed in guidance in relation to section 48 of the Planning Act (see Part 1: Pre-application steps of the guidance on preparing an application), in order to help everyone become familiar with the detail of what is being proposed in an application at the earliest opportunity, applicants are required to publicise a proposed DCO application. It is recommended that this is as early as possible (best practice being not less than 6 months before submission, where possible). As well as meeting section 48 of the Planning Act, this will enable local authorities to begin work on their Local Impact Reports, supporting earlier submission, as encouraged in Part 1: Pre-application steps.
3.13 In addition, provided the applicant agrees, the Planning Inspectorate will aim to make applications available on the relevant project page of the ‘Find a National Infrastructure Project’ website as soon as possible after submission and before an acceptance decision. From the point a webpage becomes available at pre-application, the website allows anyone to sign up to receive project specific updates through email notifications when new items are added to the project page. Prior to the relevant representations stage during pre-examination there will be no opportunity to make comments to the Planning Inspectorate on the application.
3.14 Applicants are also encouraged to publish application documents on their own project webpage either before or at the same time as submission of the application to the Planning Inspectorate. These earlier informal publication arrangements allow more time for those who wish to become familiar with the detail of what is being proposed ahead of the opening of the relevant representation period.
3.15 It is only the information that the Planning Inspectorate receives in the submitted DCO application that is relied on in considering whether an application should be accepted and will be the subject of the subsequent examination. Applicants are therefore strongly encouraged to ensure that any information published on their webpage that is part of the application is also formally submitted to the Planning Inspectorate.
The role of Examining Inspectors at acceptance
3.16 The perspective of an Inspector can be valuable in assisting the Planning Inspectorate case team at the acceptance stage, given that the purpose of the assessment is to determine whether the application is considered to be of a satisfactory standard to accepted for examination. Wherever possible, it is desirable that an Inspector assigned to contribute to the acceptance process should continue to advise or inform, or in some circumstances form part of the Examining Authority for that DCO examination. That way the continuity between matters identified at the acceptance stage, and the framing of issues as part of the Examining Authority’s Initial Assessment of Principal Issues (IAPI) for consideration during the examination can be best enabled.
4. After the acceptance decision
4.1 The purpose of accepting an application is so that it can go forward to examination, while recognising that there may be disagreements between applicants and other parties that remain on matters of substance. Minor inconsistencies or matters which can be corrected, updated or supplemented in the pre-examination period without prejudicing the examination should not be reasons for an application to not be accepted.
4.2 If an application is accepted for examination by the Planning Inspectorate it is the responsibility of the applicant, in accordance with section 56 of the Planning Act, to notify relevant parties (as set out in Schedule 1 to the APFP Regulations) of this. The applicant must also publicise the accepted application more generally in accordance with section 56(7) of the Planning Act, Regulation 9 of the APFP Regulations and Regulation 16 of the EIA Regulations. Finally, the applicant must certify to the Planning Inspectorate that it has complied with these requirements pursuant to section 58 of the Planning Act before examination of the application can commence.
4.3 In the above notice and publicity, applicants must provide details of how to make representations about the accepted application and to set a deadline for their receipt by the Planning Inspectorate. This opens the period for the submission of relevant representations, which must be no less than 28 days (or 30 days in the case of EIA development), after the required publicity and notices are received and should not normally exceed 6 weeks.
4.4 Such a representation is termed a ‘relevant representation’ under section 102 of the Planning Act, and is a mechanism by which a person becomes an interested party for the purposes of the examination. The pre-examination guidance sets out further information on the content and submission of relevant representations.