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31 August 2018

806: DCO corrections and amendments continue to rise

Today’s entry examines changes to development consent orders.

Development consent orders (DCOs) can be changed in four ways:

  • a correction order, which allows very minor changes (albeit more than just typographical corrections) to DCOs, and an application must be made within six weeks of the DCO being granted;
  • a non-material amendment order, which allows more substantial, but still minor, changes to DCOs;
  • a material amendment order, which allows substantial changes that fall short of the changed project being a different one; and
  • a new DCO, where the changes are so substantial that the project is essentially different.

The statistics on changes to the 70 DCOs that have been made so far are interesting (well, to me anyway):

  • 32 DCOs have had correction orders;
  • 17 DCOs have had one or more non-material amendment orders;
  • 0 DCOs have had material amendment orders; and
  • 0 DCOs have been replaced with new DCOs.

To me this is a telling indication of two things: the lack of flexibility of DCOs and the difficulty in changing them to any great degree.

Correction orders

The number of correction orders is increasing – of the last 10 DCOs to have been made, eight of them have been corrected (and the two that haven’t been are the most recent two, so they might yet be corrected). The only correction order I have been involved in related to changes that the government made to the DCO during the decision stage that we were unaware of. If the government had issued the DCO it was minded to make in advance for comment, these corrections could have been caught before the decision was made rather than after. I suspect a few other corrections fall into that category. The reluctance of the government to give any advance notice to applicants that the DCO is likely to be made seems to be behind this, although such notice is given in the case of Transport and Works Act orders.

Looking at other correction orders, another category seems to be ‘things that everyone thought had been changed during the examination but somehow did not get recorded in the recommendation or decision’. That would be cured by a careful check of all the changes that had been agreed upon at the end of the examination and a record made of them in writing, which often, but not always, happens.

A third category is typographical errors. These can be reduced but are unlikely ever to be eliminated altogether.

Non-material amendment orders

I’ve always thought ‘non-material’ was a bit of a misnomer – if it is not material what is the point in making it? It must have some effect, but anyway.

Once six weeks have passed correction orders are no longer available. The boundary between non-material and material amendments is stated in guidance to be that no new landowners are affected, no significant new or greater environmental effects are likely to be caused, and no additional effects on Natura 2000 sites are possible.

Except for the last category that seems too strict to me. For example, adding a tiny bit of land that belongs to a new landowner doesn’t look like the whole panoply of a mini-DCO application would be necessary. The guidance is not hard and fast, however, and such small changes may be still considered non-material.

Why are non-material changes necessary? Although it is too much to ask to anticipate all changes that may become necessary, I think that in some cases DCOs have been drafted too precisely, either in the first place or in response to pressure from objectors or inspectors. An interesting piece of research would be to examine the DCOs that have changed and when the drafting that required changing first arose, and whether the change was the sort that could have been anticipated.

Generally, while it is not possible to put a change mechanism in a DCO (because the government will remove it on the grounds that a statutory process for changing DCOs already exists), it is possible to have a mechanism to approve details that are not yet fixed, as long as the approval is within the existing scope of the DCO. I don’t think that line of drafting has been fully tested yet.

Material amendment orders

No applications have yet been made for material amendments. Why? I think the process is too daunting, as although elements of it could be avoided, that is not guaranteed, and in full it is like 2/3 of a full DCO application. Thus, only substantial amendments are likely to be considered worth going through that process, and developers are probably opting to stick with what they’ve got rather than make minor, yet material, changes. I can’t say I have hard evidence of that, though.

The material amendment application does have fixed timescales in the same way that a DCO application does, unlike a non-material amendment application, which is one benefit of that process. Non-material changes are definitely falling behind DCOs themselves in government in-trays because they don’t have fixed timescales for decisions, and there have been calls for them to have such timescales (for correction orders too). The average time for a correction order (249 days) is actually longer than for a non-material amendment order (147 days). Should timescales be introduced? Introducing them is likely to shorten very long periods, but lengthen shorter ones, as work expands to fill the time available, so a bit of a two-edged sword.

New DCOs

Similarly, no applications have been made for DCOs that appear to be substitutions for existing DCOs, likely to be for the same reason.

So the multiplicity of small changes and dearth of large ones is in my view the area of this regime that needs the most attention.

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