Commentary on Sections Nationally significant infrastructure projects Section 28: Changes to, and revocation of, development consent orders
135.Section 28 amends the provisions set out in Schedule 6 to the 2008 Act relating to changes to, and revocation of, orders granting consent in respect of nationally significant infrastructure projects (“development consent orders”) by the Secretary of State.
136.The existing paragraph 2 of Schedule 6 provides for an application to be made seeking a “non-material” change to a development consent order. Paragraph 2(8) of Schedule 6 provides, in respect of an application for such a change, that the Secretary of State must comply with prescribed consultation and publicity requirements.
137.Subsection (2)(a) amends paragraph 2(8) to provide that the duty to comply with consultation and publicity requirements may be placed upon the person who has made the application for a non-material change to a development consent order.
138.Subsection (2)(b) clarifies that the power to make regulations under paragraph 2(8) of Schedule 6 includes power to allow the Secretary of State, or the person making the application, to exercise a discretion. The intention is to clarify that the power allows regulations to include, for instance, provision allowing the Secretary of State to disapply prescribed consultation requirements where this is considered appropriate.
139.Paragraph 3 of Schedule 6 makes provision in respect of “material” changes to development consent orders, including in circumstances where an application for such a change is made. Subsection (3) confirms that the Secretary of State may refuse to exercise the power to make a material change in response to an application if it is considered that the development that would be authorised as a result of the change should properly be subject to an application under section 37 (applications for orders granting development consent) of the 2008 Act. This provision is to ensure that the Secretary of State can refuse to change an existing order where it is considered that an application for a change should be treated as a new application for development consent.
140.Paragraph 4(4) of Schedule 6 provides power for the Secretary of State to make regulations about the procedure to be followed where an application for a material change to a development consent order is made. Subsection (4) clarifies that this power includes power to allow a person to exercise a discretion. The rationale for this change is the same as that in respect of the amendment to paragraph 2(8) of Schedule 6.