Guidance

Nationally Significant Infrastructure Projects: Changes to an application after it has been accepted for examination

This advice provides information about how an applicant can request a change to a Nationally Significant Infrastructure Project (NSIP) application after it has been accepted for examination, and before the close of the examination.

From:
Planning Inspectorate
Published
8 August 2024

Applies to England and Wales

The government has published guidance about national infrastructure planning which applicants, members of the public and other parties should read. See the National Infrastructure Planning Guidance Portal. The guidance should be read alongside the Planning Act 2008 (the Planning Act).

This advice is non-statutory. However, the Planning Inspectorate’s advice about running the infrastructure planning regime and matters of process is drawn from good practice and applicants and others should follow our recommendations. It is intended to complement the legislation, regulations and guidance issued by government and is produced under section 51 of the Planning Act.

Further information about the NSIP process, the people and organisations involved in the process and the stages of the process can be found in:

The applicant is responsible for submitting an application that has been well prepared following engagement and consultation with all relevant parties. The purpose of the pre-application stage is to front load project development. Technical issues should be identified and resolved as far as possible during the pre-application stage so that the examination of the application will be as straight forward as possible.

The applicant should refer to the government’s guidance on the Pre-application stage and the Planning Inspectorate’s Pre-application Prospectus for further information about preparing a NSIP application. However, in certain circumstances an applicant may decide they need to make a change to an application after it has been accepted for examination, for example, in response to the publication of new or emerging government policy or following on-going negotiations between the applicant and other interested parties. Changes to an application after it has been accepted should not be routine practice.

See paragraph 018 of the government’s guidance on the Examination stage for information about changes to an application during examination.

Applicants should be aware that a request to make a change to an application using the Fast Track procedure may require the application to revert to conventional Planning Act timescales. In these circumstances the applicant should discuss the potential effect of a request to change an application with the Planning Inspectorate promptly. See paragraphs 003 and 010 of the government’s guidance on the Fast-track process for more information.

Who can make a request to change an application?

Only the applicant can make a request to change their application. Interested parties who wish to see a change to an application after it has been accepted should speak to the applicant directly or include their suggested change in a representation made to the Examining Authority.

If the applicant wishes to make a change to a Development Consent Order (DCO) which has already been made by the Secretary of State, they should contact the relevant government departments and refer to:

When should a change request be made?

The applicant should notify the Examining Authority of any proposed change requests at the earliest opportunity (see Step 1 in this advice). Under the principles of fairness and reasonableness all interested parties must have an opportunity to submit representations about a changed application before the close of the examination. Where necessary the applicant should be aware of the time required to carry out the requirements of The Infrastructure Planning (Compulsory Acquisition) Regulations 2010) (the CA Regulations). See Additional compulsory acquisition powers.

The applicant will need to consider that when the change application is submitted (see Step 4 in this advice) any supporting documents and plans will need to meet the required standard to be accepted.

When can a change request be accepted?

Only the Examining Authority can decide whether a proposed change to an application can be accepted and examined.

What will the Examining Authority consider?

The Examining Authority will initially consider whether, following the proposed changes, the project will be substantially the same as the project which was initially applied for. The Examining Authority will also consider if the combined impact of a series of incremental changes may collectively result in a materially different project. This is a decision that will be made by the Examining Authority based on planning judgement.

The Examining Authority will not normally need to consult interested parties about this issue. This is because the Examining Authority can consider comments about the proposed change sent to the applicant by interested parties and others when they decide if the project is materially different. See Step 3 and Step 4 of the change request process in this advice.

If the Examining Authority considers that the effect of the proposed 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 proposed changes
  • submit a lesser change request
  • proceed with the examination based on the project originally applied for

The applicant should consider that the later in the process an application is withdrawn, the greater the risk that an interested party may successfully recover their costs. For further information see the government’s Awards of costs: examinations of applications for development consent orders – guidance (July 2013).

The Examining Authority will consider the impact of the proposed change on interested parties and anyone else that could be affected. The Examining Authority will consider the opportunities available for interested parties, and anyone else affected, to comment on the changed application and then respond to the comments of others.

The Examining Authority will consider if there is sufficient time remaining in the examination process to examine the changed application. Whether sufficient time remains will depend on the complexity of the issues arising from the proposed change. For example:

  • the extent to which the change would generate new or different likely significant environmental effects
  • the extent to which the change would require additional compulsory acquisition powers

The Examining Authority will consider any other matters they consider important and relevant.

Additional compulsory acquisition powers

Additional compulsory acquisition powers may be needed where the proposed change involves additional land that is not included in the Book of Reference. Additional land includes the compulsory acquisition of land that was previously included in the Book of Reference for temporary possession only.

If the applicant is requesting a change which would require additional compulsory acquisition powers, they must seek to obtain consent for the inclusion of these additional powers from all persons with an interest in the additional land (see The Infrastructure Planning (Compulsory Acquisition) Regulations 2010) (the CA Regulations). If the applicant is not able to obtain this consent before they request the change to the application, then this would engage regulations 5 to 19 of the CA Regulations. The Examining Authority will consider if there is sufficient time remaining in the examination process to accommodate the procedures set out in regulations 5 to 19. The procedures involve statutory timescales that must be complied with, the applicant is therefore advised to seek consent where possible.

New or revised information

Changes to application information may not necessarily result in changes to the proposed project. For example:

  • the submission of new versions of the draft DCO as articles are reviewed, drafting is improved, or requirements are developed
  • the submission of amended application documents, plans or environmental information following advice from the Planning Inspectorate about errors or omissions relating to the application documents
  • further information or written comments from the applicant in response to the Examining Authority’s request under Rule 17 of The Infrastructure Planning (Examination Procedure) Rules 2010
  • new information in response to the Examining Authority’s written questions

The Examining Authority will decide whether any new information from the applicant during the examination stage results in a change to the application. Where new information may constitute a change to the application, but the applicant has not provided a change notification (see Step 1 of the change process), the Examining Authority may ask for the information to be included with a change notification before deciding whether and how to examine the new information.

Process for requesting a change to an application

Before making a request to change an application, the applicant will need to establish their own view, taking their own legal advice, about whether a proposed change could be examined within the statutory timescales. They should consider the extent of all amendments that will be required to the submitted application and the time available to produce the required information. The applicant should also consider how the change will impact interested parties and anyone else who may be affected. This includes the time available for interested parties to absorb, understand and comment on the proposed change before the end of the examination stage, in addition to any other remaining issues.

Step 1 – The change notification

The applicant decides to request a change to an application which has already been accepted for examination (during the pre-examination or examination stage) and informs the Examining Authority in writing. This is known as the ‘change notification’.

Information to include in a change notification

  • A clear description of the proposed change, including any new works, altered works and ancillary matters
  • A statement setting out the reasons and need for making the change to the application with reference to the government’s guidance on the Examination stage, any relevant National Policy Statements, and any other important and relevant matters. This statement should include a robust justification for making the change, including why the matters driving the proposed change were not identified and dealt with at the pre-application stage
  • A statement establishing whether the proposed change involves changes to the Order land. If the proposed change involves a request to include additional compulsory acquisition powers the applicant should confirm if they have the relevant consent from all persons with an interest in the additional land. The applicant must include evidence of the consent. If negotiations are ongoing the applicant should confirm the status of these. If the applicant considers they may not be able to obtain this consent they should include a detailed description of how the procedures in regulations 5 to 19 of the CA Regulations can be accommodated within the examination timetable
  • A statement establishing whether the proposed change to the application is expected to result in any new or different likely significant environmental effects. This should include a summary description of those effects and any mitigation proposed
  • Information to establish how the applicant considers the change to the application can be accommodated within the remaining statutory timescales
  • The timescale for the applicant’s consultation about the proposed change, and the applicant’s view on the scope of that consultation, including justification. If the applicant has already undertaken consultation on the proposed change they should provide:
    • details of how the consultation was carried out and who was consulted, including an explanation of why they consider the level of consultation is appropriate
    • a summary of the responses received and how the applicant has had regard to them
    • all the consultation responses received
  • The expected submission date for the ‘change application’.

The change notification and all the supporting documents will be published on the project information page of the Find a National Infrastructure Project website.

Step 2 – Advice from the Examining Authority

After considering the change notification the Examining Authority will provide advice to the applicant about the procedural implications of the proposed change. This includes the need, scale, and nature of consultation that the applicant should undertake before formally submitting the change application. The Examining Authority will advise if any consultation the applicant has already carried out is adequate.

Step 3 – The applicant consults about the proposed change

The applicant should carry out appropriate consultation about the proposed change. This step may be carried out earlier, before the change notification, to potentially save time and inform the applicant’s approach to the change application. However, the Examining Authority may consider that further consultation is required (Step 2).

The applicant should consult all those persons prescribed under section 42(1)(a) to (d) of the Planning Act 2008 who would be affected by the proposed change, giving a minimum of 28 days from receipt of the information about the proposed change for responses.

If a targeted approach to the identification of those affected by the proposed change is adopted then detailed justification should be provided about why the applicant considers it is not necessary to consult all the prescribed persons. For example, the proposed change would not affect the functions of statutory undertakers.

If applicable, the applicant should identify any newly prescribed persons that have been consulted in relation to the proposed change but were not consulted in relation to the original application.

Step 4 – The change application

The applicant makes a formal request to the Examining Authority to change the application by providing the relevant information.

Information to include in the change application

  • A confirmed description of the proposed change. Where this has changed from that provided with the change notification this should be clearly explained.
  • A confirmed statement setting out the reasons and need for making the change. The applicant should provide any further information that was not included in the change notification.
  • A full schedule of all application documents and plans listing the revisions to each document and plan which would occur because of the change or, as necessary, marked as ‘no change’.
  • A statement identifying any impact the proposed change would have on securing any consents or licences for the project. The applicant should confirm if there would be any delay in securing these before the close of the examination.
  • Clean and track changed versions of the draft DCO showing the proposed changes. Also, clean and track changed versions of the draft explanatory memorandum. If updated versions of these have been submitted into the examination during the pre-examination or examination stage the applicant should check with the Examining Authority which versions should be used for this purpose.
  • If the proposed change includes a request to include additional compulsory acquisition powers, confirmation that the applicant has consent from all persons with an interest in the additional land that the additional powers can be included in the application. Evidence of the consent must be provided. If the applicant has not obtained consent, they must provide the information prescribed by regulation 5 of the CA Regulations:
    • a supplement to the Book of Reference
    • a land plan identifying the additional land, or the land affected by the proposed provision of additional compulsory acquisition (clean and track changed version from the latest version of the land plans submitted to the examination)
    • a statement of reasons as to why the additional land is required
    • a statement indicating how it is proposed to fund acquisition of the additional land (a funding statement)

The applicant should provide a supplemental land rights tracker giving details of the status of negotiations about the additional land. The applicant should also include a detailed description of how they consider the procedures in regulations 6 to 19 of the CA Regulations can be accommodated within the examination timetable.

  • If the proposed change results in any new or different likely significant environmental effects, provision of other environmental information as necessary and confirmation that:
    • the effects of the proposed change have been adequately assessed and that the environmental information has been subject to publicity. Whilst this is not a statutory requirement, the publicity should reflect the requirements of The Infrastructure Planning (Environmental Impact Assessment) Regulations 2017 (the EIA Regulations 2017)
    • any consultation bodies who might have an interest in the proposed change have been consulted (reflecting the requirements of the EIA Regulations 2017). The applicant should identify those consultation bodies who were consulted on the proposed changes but were not consulted on the original application
  • Where consultation has been carried out (either voluntarily, at the direction of the Examining Authority, or in accordance with the requirements of the CA Regulations or EIA Regulations 2017) a consultation report must be provided. The consultation report should:
    • confirm who has been consulted in relation to the proposed change and explain how and why they have been consulted
    • include details of how the applicant has considered the content of the consultation responses received
    • include copies of all consultation responses received, including any responses to publicity about the proposed change. These should be included as an annex to the consultation report

The change application and all the supporting documents will be published on the project information page of the Find a National Infrastructure Project website.

Step 5 – The Examining Authority decides whether to accept or reject the change application

The Examining Authority will consider the applicant’s change application, the consultation responses and any other representations made and decide whether to accept and examine the changed application or reject the proposed change.

The Examining Authority must notify interested parties of any decision to accept or reject a change application. If the change application is accepted the Examining Authority will confirm how it will be examined. Their procedural decision will be published on the project information page of the Find a National Infrastructure Project website. Where the Examining Authority has decided to reject the change application the applicant will need to decide how to proceed.

Step 6 – The changed application

Where the Examining Authority has decided to accept the change application, the examination will proceed by considering the ‘changed application’. The changed application is the original application as it has been changed by the accepted change application.

Timing implications of submitting a change request

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, the applicant should be aware that one of the implications of introducing a change request is that additional time may be needed to examine the application. This 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 following advice highlights the implications of making a change request at different stages of the process after an application has been accepted for examination.

Pre-examination stage

When the applicant decides they need to make a change to an application they should provide the change notification as soon as possible after the application has been accepted (Step 1). Consultation about a proposed change 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 of the examination once it has commenced. However, the applicant should be aware that any delay to the start of the examination should be kept to a minimum. This is to ensure that the pre-application consultation and environmental information is still current during the examination stage.

Change notification submitted before the Examining Authority has issued their invitation to the preliminary meeting (the Rule 6 notice)

Ideally the applicant should provide the change notification before the Examining Authority has issued their Rule 6 notice (see The Infrastructure Planning (Examination Procedure) Rules 2010). The Examining Authority can then include information about the change request in the Rule 6 notice and direct interested parties to the information provided by the applicant in their change notification. This also allows the Examining Authority to take account of the change request in the draft examination timetable and include time for discussion about the examination of the proposed change in the agenda for the preliminary meeting. This would enable all interested parties to be fully informed before the preliminary meeting so that a focussed discussion about how a changed application might be examined can take place.

The applicant should ask the Planning Inspectorate’s case manager when the Rule 6 notice is likely to be issued. An emerging change notification may influence the timing of the preliminary meeting and when the Rule 6 notice is issued. For example, time may be required in advance of the preliminary meeting to allow the applicant to seek advice from the Examining Authority (see Step 2), and then consult on the proposed change as per Step 3 of the process. 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 proposed change before the start of the examination.

Change notification submitted after the invitation to the preliminary meeting (Rule 6 notice) is issued and before the preliminary meeting

If the applicant decides that a change to the application is required after the Rule 6 notice has been issued, but before the preliminary meeting takes place, they should provide the Examining Authority with a change notification (Step 1) as soon as possible in advance of the preliminary meeting. The applicant should not propose a change to the application at the preliminary meeting without first providing a change notification to the Examining Authority.

The Examining Authority can adjust the agenda of the preliminary meeting to provide an opportunity for the applicant to answer questions about the proposed change. They can also provide an opportunity for interested parties and anyone else who may be affected by the proposed change to discuss how it should be examined and the impacts on the draft examination timetable.

If the Examining Authority consider that an applicant has not provided enough information or has not carried out sufficient consultation and publicity about the proposed change they could build time into the examination timetable for an applicant to repeat Step 3 and Step 4 of the change request process. Alternatively, if the Examining Authority decide that people should be given more time to consider the proposed change before the start of the examination, they may postpone the preliminary meeting and reschedule it for a later date. However, any delay to the preliminary meeting and the start of the examination would be kept to a minimum.

If the Examining Authority considers that the changed application can be examined, they will issue their decision in the Rule 8 notice as soon as practicable after the preliminary meeting. The Rule 8 notice will include the examination timetable and this will include sufficient time for the examination of the changed application within the statutory timescales. If the Examining Authority decides not to accept the proposed change this decision will also be included in the Rule 8 notice.

Examination stage

During the examination stage, a change notification must be submitted in writing to the Examining Authority following the steps in the change request process identified in this advice. The applicant may also wish to inform the Examining Authority at a hearing about an emerging proposed change request. However, the applicant should not rely on the Examining Authority being able to make a decision about a proposed change at a hearing. If the proposed change has a bearing on the hearing agenda then the Examining Authority may adjourn the hearing. The Examining Authority may also amend the examination timetable.

A change request made in the final few weeks of the examination stage is unlikely to be accepted by the Examining Authority. Their recommendation to the Secretary of State will be made based on the application as it stands at the close of the examination.

Once the examination has closed the Examining Authority cannot accept any further representations or submissions from interested parties, including any request by an applicant to make a change to an application.

Updates to this page

Published 8 August 2024

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