Ch-Ch-Changes - Can They Be Made To Infrastructure Projects Post Application?

Today's entry considers the ability to make changes to projects after applications have been made.

There are three sorts of changes that might be possible after an application for a major infrastructure project has been made:

changes before or during the examination supported by the applicant changes during the examination not supported by the applicant, and changes after the decision. I'll have a look at where I think we are on each of these.

Changes during the examination supported by the applicant

The issue of an applicant changing a project after it has been applied for has been an ongoing one and has cropped up in many, if not most, current applications. The bar below which changes are acceptable and above which they aren't has still yet to be defined clearly though. Paragraph 106 of the guidance on examinations is rather unhelpful on this point as it seems to set two different thresholds in consecutive sentences:

'the Secretary of State will need to decide on the materiality of the change and whether it is of such a degree that it constitutes a new project or whether it can still be considered under the existing application. If the Secretary of State decides that the change is such that it would result in a materially different project ...'

In my view 'constitut[ing] a new project' is a rather higher bar than 'a materially different project', something that was picked up at the Thames Tideway Tunnel preliminary meeting when the panel referred to both tests. If I build a new storey on my house it's a materially different house, but it is not a new house. In that mix is also the 28 November 2011 'Bob Neill letter' from the then planning minister to the then chair of the Infrastructure Planning Commission, which seems to suggest a higher rather than lower bar.

Changes during the examination not supported by the applicant

Last week, the Thames Tideway Tunnel examination involved hearings into alternative sites, and the issue of whether changes not supported by the promoter can be considered in an examination loomed large. To an outsider this question may sound about as relevant to real life as the question that had the Catholic church a-dither in 1327 in the novel the Name of the Rose: 'Did Jesus own his own clothes?', but it is actually an important issue for that and future projects.

If changes cannot be recommended, then representations on an application would have to be limited to:

supporting the project, calling for minor mitigation...