Using the Rochdale Envelope

Advice note nine: Rochdale Envelope

Introduction
This advice note addresses the use of the Rochdale Envelope approach under the
Planning Act 2008 (the 2008 Act). A number of developers, particularly those for proposed
offshore wind farms, have sought guidance from the Infrastructure Planning Commission
(IPC) on the degree of flexibility that would be considered appropriate with regards to an
application for a nationally significant infrastructure project (NSIP) under the 2008 Act
regime.
Developers have suggested that the approach known as the Rochdale Envelope may be
useful in considering applications for a Development Consent Order (DCO) under the 2008
Act, especially where there are good reasons why the details of the whole project are not
available when the application is submitted. Such an approach has been used under other
consenting regimes (the Town and Country Planning Act1990 and the Electricity Act 1989)
where an application has been made at a time when the details of a project have not been
resolved.

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This approach is identified in the revised draft

Overarching National Policy Statement for
Energy (NPS) (EN-1) and the revised draft
NPS for Renewable Energy Infrastructure
(EN-3)1.
There are a number of key areas when
preparing an application for a DCO under the
Act where the level of detail and amount of
flexibility are particularly relevant. These are:
during consultation and publicity at the preapplication stage;
when preparing the environmental impact
assessment; and
in the description of the project within the
application documents.
This note provides advice as to the main
issues to be considered and suggests a
suitable way forward, in the context of the
2008 Act regime. First of all the Rochdale
Envelope is explained briefly before
considering the concept of the need for
flexibility in terms of the three key areas set
out above.
There are other areas that are relevant to
the matters dealt with in this advice note,
but which are not considered here. The IPC
will be publishing advice notes in future on
the Habitats Regulations process2 and on
transboundary matters3 under the 2008Act
regime.

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The Rochdale Envelope

The Rochdale Envelope arises from two
cases: R. v Rochdale MBC ex parte Milne
(No. 1) and R. v Rochdale MBC ex parte Tew
[1999] and R. v Rochdale MBC ex parte Milne
(No. 2) [2000]. These cases dealt with outline
planning applications for a proposed business
park in Rochdale. They address:
applications for outline planning permission
under the Town and Country Planning Act
1990; and
consideration of an environmental
impact assessment in the context of
an outline planning consent to enable
compliance with the Council Directive
85/337/EEC as transposed by the Town
and Country Planning (Environmental
Impact Assessment) (England and Wales)
Regulations 1988.
To understand the implications arising from the
comprehensive consideration of the issues by
the Judge4 in Milne (No. 2), it is helpful to note
the key propositions. These are set out below5:
the outline application should acknowledge
the need for details of a project to evolve
over a number of years, within clearly
defined parameters;
the environmental assessment takes
account of the need for such evolution,
within those parameters, and reflects the
likely significant effects of such a flexible
project in the environmental statement;

See section 4.2 of revised draft NPS EN-1 and paragraph 2.6.43 of revised draft NPS EN-3.
See the Conservation of Habitats and Species Regulations 2010/490.
See Regulation 24 of the Infrastructure Planning (Environmental Impact Assessment) Regulations 2009.
Sullivan J. (as he then was).
Extract from paragraph 3B-949.410.3.1 of the Encyclopaedia of Planning Law and Practice.

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 the permission (whether in the nature

of the application or achieved through
masterplan conditions) must create
clearly defined parameters within which
the framework of development must
take place. It is for the local planning
authority in granting outline planning
permission to impose conditions to
ensure that the process of evolution
keeps within the parameters applied for
and assessed;
the more detailed the proposal, the easier
it will be to ensure compliance with the
Regulations;
taken with those defined parameters
of the project, the level of detail of the
proposals must be such as to enable
a proper assessment of the likely
environmental effects, and necessary
mitigation - if necessary considering a
range of possibilities:
The assessment may conclude that a
particular effect may fall within a fairly
wide range. In assessing the likely
effects, it is entirely consistent with the
objectives of the Directive to adopt a
cautious worst case approach. Such an
approach will then feed through into the
mitigation measures envisaged. It is
important that these should be adequate
to deal with the worst case, in order to
optimise the effects of the development
on the environment (para.122 of the
Judgment);

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the level of information required is:

sufficient information to enable the
main, or the likely significant effects
on the environment to be assessed.,
and the mitigation measures to be
described. (para.104 of the Judgment);
the flexibility referred to is not to be
abused:
This does not give developers an excuse
to provide inadequate descriptions of
their projects. It will be for the authority
responsible for issuing the development
consent to decide whether it is satisfied,
given the nature of the project in
question, that it has full knowledge
of its likely significant effects on the
environment. If it considers that an
unnecessary degree of flexibility, and
hence uncertainty as to the likely
significant environmental effects, has
been incorporated into the description
of the development, then it can require
more detail, or refuse consent (para.95
of the Judgment);
it is for the planning authority to
determine what degree of flexibility
can be permitted in the particular case
having regard to the specific facts of an
application. It will clearly be prudent for
developers and authorities to ensure they
have assessed the range of possible
effects implicit in the flexibility provided by
the permission. In some cases, this may
well prove difficult.

Consultation undertaken by the

developer during pre-application
The process introduced by the 2008 Act,
places a duty upon developers to engage
meaningfully with affected communities,
local authorities and other statutory
consultees over their proposals at preapplication stage. The developer must
produce and publicise a Statement of
Community Consultation. In preparing this,
they must consult with and have regard to
the views of any relevant local authority on
the content of the statement.
The 2008 Act regime therefore seeks to
ensure there are opportunities for the
public, local authorities, consultees and
other interested parties to get involved and
have their say during the pre-application
stage. Clearly for consultation to be
effective there will need to be a genuine
possibility to influence the proposal and
therefore a project should not be so fixed as
to be unable to respond to comments from
consultees. The importance of consultation
during the pre-application phase cannot be
overemphasised, given the front loaded
processes under the 2008 Act. Such
consultation needs to be appropriate (in
terms of content, timing and clarity) and
reported fully in the consultation report such
that the response of the developer to the
comments made in terms of the evolution of
the proposals can be clearly understood.

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There is opportunity within the statutory

pre-application procedure for developers
to determine the most appropriate
consultation programme for their needs
and to time the consultation to appropriate
stages in the project evolution. However,
the consultation must be undertaken on
issues that are easy to identify and on
a project that is as detailed as possible.
The bodies consulted need to be able to
understand the proposals. Therefore the
project and details need to be described as
clearly and simply as possible. Obviously
fewer options and variations within a
project description would make it easier to
understand, especially by those less familiar
with the 2008 Act regime. Developers may
also find it helpful to use, for example,
figures, cross sections, photomontages
or wireframe images to illustrate their
proposals. Obviously a balance needs to
be made between providing well developed
details which may only be possible later in
the programme of project development and
offer less opportunity for change; versus
less precise details early in the project
development which can be more responsive
to consultation6.
A developer needs to be able to
demonstrate, among other things, that the
statutory consultation requirements under
the Act (sections 42 and 47) have been
complied with. It is possible to comply with
less than full information on the application,

More information on the Pre-application Stage is set out in the IPCs Guidance Note1 and in CLG Guidance on pre-application
consultation.

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but unless there is a clear iterative

consultation process followed and further
documentation provided to consultees
during the process, the developer could
risk being unable to demonstrate that the
proposals have been considered in the
light of consultation responses received.
Care will be needed by the developer to
ensure that the project description is clear
so that the developer can demonstrate
that the statutory requirements regarding
consultation have been met.
Environmental Impact Assessment (EIA)
The first formal contact with the IPC
regarding the proposed content of a
DCO is often associated with a request
for a scoping opinion as part of the
preparation for the EIA work7. EIA is an
iterative process and it would be unlikely
that all the details would be resolved
at this stage. As a consequence, at the
time of the scoping request, it may be
necessary to leave certain matters open.
For example, details of the project may
not have been finalised and, indeed, may
not be finalised for some time. The IPC
considers that there is an opportunity as
part of the consultation process and within
the Environmental Statement (ES) to set
out the design evolution, including key
changes undertaken as the project design

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progresses towards submission of an

application.
All proposals for projects that are subject to
Council Directive 85/337/EEC as amended
by Council Directive 97/11/EC8 must be
accompanied by an ES describing the
aspects of the environment likely to be
significantly affected by the project. It is
likely that most applications for development
consent under the 2008 Act will require an
EIA. The EIA should assess the proposals
as described in the application documents.
Sufficient detail should be known about a
project to prepare an ES in accordance with
Schedule 4 of the Infrastructure Planning
(Environmental Impact Assessment)
Regulations 2009 (SI 2263 2009) (the EIA
Regulations). The ES should support the
DCO application and therefore should be
clear as to the scheme being assessed9.
When considering a proposal the IPC must
be satisfied that the likely significant effects,
including any significant residual effects
taking account of any proposed mitigation
measures or any adverse effects of those
measures, have been adequately assessed.
The IPC understands that in the early
stages of preparing a DCO application it
may not be possible for a developer to have
resolved all the details of a project. The

Regulation 8 of the Infrastructure Planning (Environmental Impact Assessment) Regulations 2009.

As transposed in relation to the 2008 Act regime by the Infrastructure Planning (Environmental Impact Assessment) Regulations 2009.
See revised draft NPS EN-1 paragraph 4.2.4.

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IPC accepts that the details of a project may

change as it progresses through the preapplication stages. For example, in relation
to offshore wind farms detailed information
on a project that may not be available at the
time of making the request for a scoping
opinion could include:
type and number of turbines;
foundation type (this may depend upon
the height and type of turbine and the
seabed conditions);
location of the export cable route (whether this is buried or on the seabed);
location of the landfall point;
the definitive location of any onshore
substation;
location of the grid connection point;
construction methods and timing; and
re-powering.
In the course of preparing the ES, a
developer should seek to identify those
aspects that are likely to give rise to
significant adverse impacts, such that the
maximum potential adverse impacts of a
project have been properly assessed and
can be taken into account as part of the
decision making process. The revised draft
Overarching NPS for Energy (EN-1) and the
revised draft NPS for Renewable Energy

Infrastructure (EN-3) both identify the need

to address the maximum potential adverse
impacts10 to ensure that the likely impacts of
a project as it may be constructed have been
properly assessed.
Matters that could affect the maximum
adverse impact are:
topic (or aspect) specific impacts;
inter-relationships between topics11 (or
aspects); and
cumulative impacts12.
The ES should not be a series of separate
unrelated topic reports. The inter-relationship
between aspects of the proposed
development should be assessed and
careful consideration should be given by the
developer to explain how inter-relationships
have been assessed in order to address the
environmental impacts of the proposal as a
whole. It need not necessarily follow that the
maximum adverse impact in terms of any one
topic impact would automatically result in the
maximum potential impact when a number
of topic impacts are considered collectively.
In addition, individual impacts may not be
significant but could become significant when
their inter-relationship is assessed. It will
be for the developer to demonstrate that the
likely significant impacts of the project have
been properly assessed.

10 See revised draft NPS EN-1 paragraph 4.2.8 and revised draft NPS EN-3 paragraph 2.6.43.
11 Inter-relationships consider impacts of the proposals on the same receptor. These occur where a number of separate impacts,
eg. noise and air quality, affect a single receptor such as fauna.
12 Cumulative impacts consider other proposed development within the context of the site and any other reasonably foreseeable
proposals in the vicinity.

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The EIA should support the application

for the DCO by being clear and assessing
the potential likely significant impacts of
the project as described in the application
documents. This will necessitate the
assessment of variations of the proposals
where certain details remain unresolved.
The EIA should assess the likely worst case
in terms of the potential variations within a
project but the detailed design of the project
and the variations should not vary beyond
these limits so that the proposals as built
would not have been assessed, thereby
rendering the ES inadequate.
It will also be the developers responsibility
to present the assessment of possible
variations of the project, where certain
parameters are not yet fixed, in a manner
that aids decision making. The assessment
should not be presented in an over-complex
manner so that it is difficult to understand.
Therefore, a developer may find it helpful
in terms of presenting the assessment
outcome to have limited the potential range
of options within the proposed development.
This should make managing the
presentation of the options easier and make
it clearer to understand that the project as
finally built does not go beyond the limits
set out in the ES and so render the ES
inadequate. Where elements have yet to be
finalised, these should be clearly identified in
the ES with reasons provided to explain why
these cannot be finalised at this stage.

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The potential cumulative impacts with

other major developments will also need to
be carefully identified such that the likely
significant impacts can be shown to have
been identified and assessed against the
baseline position (which would include
built and operational development). In
assessing cumulative impacts, other
major development should be identified
through consultation with the local planning
authorities and other relevant authorities on
the basis of those that are:
under construction;
permitted application(s), but not yet
implemented;
submitted application(s) not yet
determined;
projects on the IPCs Programme of
Projects;
identified in the relevant Development
Plan (and emerging Development
Plans - with appropriate weight being
given as they move closer to adoption)
recognising that much information on any
relevant proposals will be limited; and
identified in other plans and programmes
(as appropriate) which set the framework
for future development consents/
approvals, where such development is
reasonably likely to come forward.

In preparing such information, it should not

be forgotten that the purpose of an EIA is
to inform the decision making process. The
EIA should be clear and practical so that
it assists, and not confuses, the decision
making process.
At the time of application, any proposed
scheme parameters should not be so wide
ranging as to represent effectively different
schemes. The scheme parameters will need
to be clearly defined in the draft DCO and
therefore in the accompanying ES. It is a
matter for the developer, in preparing an ES,
to consider whether it is possible to robustly
assess a range of impacts resulting from a
large number of undecided parameters. The
description of the development in the ES
must not be so wide that it is insufficiently
certain to comply with requirements of
paragraph 17 of Schedule 4 Part 1 of the EIA
Regulations.
Any ES submitted with a DCO application
should demonstrate that the likely significant
environmental impacts have been assessed.
Any limitations in the assessment should be
identified and explained. The environmental
information submitted should be sufficient for
the relevant decision maker to determine the
application.

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During the examination of an application, if

it comes to light that the ES should contain
further information, consideration of the
application would be suspended pending
receipt of further information (Regulation
17 of the EIA Regulations). Clearly this has
time and cost implications and could result
in uncertainty which all parties would wish
to avoid, but could occur for example where
the potential significant impacts from any
variations associated with a wide range
of flexible options within an application
had not been fully assessed. In the event
that the proposals changed, and the likely
significant impacts are different as a result
of any change, then further environmental
information may be needed to supplement
the original ES.
Application Documents
Content of the Development Consent Order
The purpose of the 2008 Act was to
introduce a streamlined system that speeded
up the consenting process for nationally
significant infrastructure projects. As
such, the consideration of an application
is undertaken in a relatively short period
but following substantial pre-application
consultation. The IPC cannot accept an
application unless, among other things,
the quality of the developers statutory and
public consultation has been adequate.

Revised draft NPS EN-3 states (paragraph

2.6.43) that the IPC should accept that wind
farm operators are unlikely to know precisely
which turbines will be procured for the site
until sometime after the consent has been
granted. This is not to say that the use of
the Rochdale Envelope should be used as
an excuse not to provide sufficient details.
Developers should make every effort to
finalise as much of the project as possible
prior to submission of their DCO application.
Indeed, as explained earlier in this note, it will
be in all parties interests for the developer
to provide as much information as possible
to inform the pre-application consultation
process; to form a clear basis for the EIA
(providing as many details as possible should
facilitate a clearer ES and avoid the possibility
of a delay in the examination process13 or a
successful legal challenge on the adequacy of
the EIA); and to enable development consent
(if granted) to be for a distinct project.
One practical way forward would be for
the DCO application to set out specified
maximum and minimum. For example, for
offshore wind farms, these could be in
terms of:
maximum number of turbines;
minimum number of turbines;
maximum nacelle (hub) height;
minimum nacelle (hub) height;

maximum blade tip height;

minimum blade tip height;
minimum clearance above mean sea
level;
minimum separation distances between
turbines.
Developers should be in a position to be
able to identify the most likely variations
of options and so provide a more focused
description. However, any flexibility should
not permit such a wide range of materially
different options such that each option in itself
might constitute a different project for which
development consent should be sought and
an ES provided, nor allow a scheme to be
implemented which is materially different from
that assessed in the EIA.
The IPC can confirm that developers may
submit draft DCOs in advance of submitting
an application, including properly drafted
requirements, to the IPC and when so doing
it may assist the discussion to provide legal
submissions making reference to relevant
case law to demonstrate that the draft
provisions and requirements being proposed
may be lawfully made and imposed.
If approved, any flexibility of the project will
also need to be reflected in appropriate
development consent provisions and
requirements, and any conditions on a
deemed marine licence.

13 Regulation 17 of the Infrastructure Planning (Environmental Impact Assessment) Regulations 2009.

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Changes to a DCO
Changes to a DCO must be made under the
2008 Act in the prescribed manner. There
will be Regulations setting out the detailed
procedures for making changes to a DCO.

The key areas where the level of detail

needs to be addressed are during preapplication consultation; in the EIA; and
within the description of the project in the
application documents.

It should be noted however, that any

changes would need to comply with the
obligations on EIAs. Under case law14 the
EIA would need to consider the development
as modified and not just the modification.

Pre-application consultation forms an

important element of the 2008 Act regime.
Developers must be able to demonstrate,
among other things, that they have complied
with their duties under sections 42 and
47 of the 2008 Act. Under the 2008 Act it
is important to consult comprehensively
on the project and to report fully on that
consultation. The process should be clear
and thorough.

Conclusions
The Rochdale Envelope is an
acknowledged way of dealing with an
application comprising EIA development
where details of a project have not been
resolved at the time when the application is
submitted.
The approach set out in this advice note
seeks to provide an acceptable solution,
under the 2008 Act regime, to address areas
of uncertainty as proposals progress towards
making the application. The approach used
needs to be clear and robust.

The challenge for the EIA will be to ensure

that all the realistic and likely worst case
variations of the project have been properly
considered and clearly set out in the ES and
such that the likely significant impacts have
been adequately assessed.
It may be possible to draft a DCO in such a
way as to allow some flexibility in the project.
The project should be described in such a
way that a robust EIA can be undertaken.

14 See R v. Bromley LBC Ex p. Barker (Court of Appeal [2002], ECJ [2006]).

Further information
The Infrastructure Planning Commission, Temple Quay House, Temple Quay, Bristol BS1 6PN
Email: [email protected]
Telephone: 0303 444 5000
Web: www.independent.gov.uk/infrastructure
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