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Home / News and Insights / Blogs / Planning Act 2008 / 1042: DCO examination changes come into effect accompanied by guidance

This week’s entry summarises recent changes to the DCO regime.

On 30 April, the following changes to the examination procedure were made and will affect any application made from that date (so they will not really kick in for a few months):

  • relevant representations (the initial objections from third parties made after an application is accepted) are no longer to be an outline of proposed submissions but, where practicable, full particulars, to get more information earlier;
  • written representations can be invited, and hearings can be arranged by the inspectors within fewer than 21 days;
  • hearings can be notified on a website instead of in a local paper (this should save costs as local papers charge £££ for this); and
  • notifications to third parties can be made by email without needing the permission of the third party any more – so that should save on printing and postage costs, although that will mean finding out the relevant email addresses.

There are two more changes affecting applications that start statutory consultation from 30 April, as follows:

  • if an inspector gives advice at the pre-application stage, he / she can now be appointed to examine the application, there used to be a bar on that; and
  • an updated list of statutory consultees has been substituted for pre-application consultation and notification of an accepted application.

That latter change could be a bit awkward if you were on the verge of launching statutory consultation, but at least the statutory instrument in question has been around since 6 March.

To back up the above changes, six new guidance notes have been published, two completely new ones and the others in substitution for two existing ones dating back to 2015:

These advice notes look pretty clear to me in Planning Policy Guidance style and reflect that DLUHC officials have been working on them diligently for a long time. The pandemic had one silver lining, which was that the government has been much more willing to listen to practitioners in the Planning Act 2008 regime, and we are now nearing the endpoint of a lot of hard work behind the scenes.

I will concentrate on the two new notes, although I have some comments on the re-consultation part of the pre-application one too. The four updated ones replace the existing guidance on the pre-application process and on examination of applications, which have been withdrawn.

The fast track one depends on the Pre-Application Prospectus that has yet to be issued, but pre-application charging isn’t coming in until October anyway. The criteria for what makes something likely to be eligible for the fast track of an estimated 12 month application to decision duration rather than the current average of 17 months are set out:

  •  quality standard met (ie principal areas of disagreement clear, promised pre-application steps carried out, and S51 advice had regard to);
  • clarity about issues and a prospect that they can be resolved during a four month examination;
  • that objections to compulsory acquisition are likely to be resolved in those four months;
  • no change requests likely; and
  • that there is a relevant NPS and it is up to date.

Those seem fair enough but the third one shouldn’t allow a single landowner to prevent an application being fast-tracked and the last one is outside applicants’ control and puts the onus on the government to keep the NPSs up to date.

A provisional decision on fast-track is taken as part of acceptance, and this is confirmed once relevant representations have been made. Even then, the Examining Authority can ask later that the examination revert to six months if things aren’t getting resolved as had been hoped.

The DCO drafting one, although new, is pretty similar to the PINS advice note 15, but in less dense style and as planning practice guidance it has a higher status.

There are sections on the old chestnuts about the definition of ‘commencement’ and ‘maintenance’, but also:

  • description of the development,
  • parameters and limits of deviation,
  • application, modification, or exclusion of statutory provisions,
  • inclusion of other consent requirements in a DCO,
  • compulsory acquisition and temporary possession,
  • protective provisions,
  • Deemed Marine Licences,
  • appeals,
  • hedgerows and trees,
  • certification of plans and documents, and
  • requirements.

Take a look if you want to see recommended approaches. There are useful nuggets throughout, including a helpful confirmation that tailpiece provisions can allow ‘approving details that would lead to environmentally better outcomes where appropriate’; that ‘where the principle of the provision is well established, the detailed drafting should follow the relevant Government Department’s preferred drafting’ (a useful confirmation for those who have argued that precedent is a relevant consideration).

In an example of how alive to issues facing developers the team behind the guidance is, the pre-application guidance is worth looking through. There are much clearer and more useful tests about when to re-consult. For example:

‘Only where the project taken as a whole changes very significantly, and to such a large degree that what is being taken forward is fundamentally different from what was previously consulted on, should re-consultation on the proposed application as a whole be considered.’

This should mean that a full re-consultation is not necessary unless ‘what is being taken forward is fundamentally different from what was previously consulted on’. Where there are changes less than that, the guidance sets out targeted consultation can be used, and in those circumstances, ‘targeted consultation will not require the production of PEI’. There are also clearer tests on materiality – unlike the previous guidance, it is not just the extent of impacts (eg, a single new environmental effect) but ‘the number of materially worse environmental effects as compared to what has been the subject of previous consultations.’

Unlike the previous guidance, there is therefore less scope to argue about the extent of re-consultation needed. Some of the loudest, but not necessarily most numerous, voices in the DCO regime have suggested that full consultations are required even where a scheme has not fundamentally changed. The updates make clear that is not the case. This is to be welcomed: such arguments have the potential to delay and protract UK infrastructure delivery, and its hoped that this guidance will cause a cultural shift away from those who have sought to use consultation as a way of preventing schemes coming forward.

It has been a busy few weeks for DCO applications, with eight having been made in the last six weeks, so there is no let-up in the pace of the regime while these changes are implemented.

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