906: First DCO material change application made

Today’s entry reports on the first application to make a material change to a Development Consent Order.

It seems extraordinary that in nearly 10 years since the first Development Consent Order (DCO) was granted in October 2011 there has not been a single application to make a material change to one of the 100 now in existence – until now.

I would say there are five ways to make amendments to a project that has been given consent by a DCO:

• the drafting of the DCO allows changes with environmental effects to be made within its terms,
• a correction order is made to the DCO, which can only be applied for in the first six weeks,
• a non-material change is made to the DCO,
• a material change is made to the DCO, and
• a new DCO is granted that supersedes the old one.

On the first item I have yet to see a DCO that includes in its drafting a process that allows the approval of changes to it that have environmental impacts, they all timidly restrict changes to those that don’t. The 2017 Environmental Impact Assessment regulations clearly contemplate ‘subsequent applications’ that involve environmental assessment and are pursuant to the discharge of pre-commencement requirements, but no-one has tried to incorporate such a thing. It would save a lot of bother if this became routine drafting and we would be glad to give it a go.

Anyway, there have been plenty of correction orders – 49, pretty much half of the total – and non-material changes – 38, by my calculations.

As an aside on the non-material changes, some points of note:

• they have only been made to 23 DCOs, ie there have been multiple non-material amendments for some DCOs;
• the Thames Tideway Tunnel and the Dogger A&B Offshore windfarm have the record with four each;
• the last two for the latter were made ten days apart, and the applications were made seven months earlier, ie they were both being considered at the same time; and
• the Rampion offshore windfarm DCO was amended in 2021 (to change a footpath diversion), even though the windfarm has been operational since 2018.

No material change has yet been made, and no new Development Consent (Amendment) Order. has been granted that replaces an earlier one, so the totals for the five categories above are 0, 49, 38, 0 and 0. By the way, is it non-material and material ‘amendment’ or ‘change’? Although the resulting order is called the Blah DCO (Amendment) Order, I (and the Planning Inspectorate) are tending towards calling them changes rather than amendments, or NMCs (and MCs) rather than NMAs.

Why no material changes? I don’t think it’s that DCOs are right first time, far from it given the number of corrections and non-material changes (and changes to deemed marine licences). I think it is that the material change process is considered sufficiently onerous that developers would rather live with the imperfect one they have already than embark on changing it.

On 25 June 2021 the first application for a material change was made, to change the quay design of the Able Marine Energy Park (and also to change a footpath diversion). As a reminder, material changes are like mini-DCO applications, but with a four (rather than six) month examination, two (rather than three) month recommendation period and two (rather than three) month decision period, although the examination can be dispensed with altogether. This actually makes them more predictable in terms of timings than non-material changes, which have no statutory timescales – indeed, one was made for the same project in May, two and a half years since the application was made.

The threshold between a material change and a non-material change (and a non-material change and a correction, for that matter) is not that clear-cut, but generally, if you have new environmental or habitats effects or new land involved you are probably the former rather than the latter.

I am pleased we are acting on the material change, I love a first, and it is something of a journey of discovery for all involved. Obviously if you are considering changing your DCO it would be most efficient for you to use lawyers with experience of the material change process rather than the ones who worked on the DCO that needs changing…

Finally, a reminder that you can help shape the future of the Planning Act 2008 regime (e.g. calling for timescales for non-material changes, to take a random example) by filling in the NIPA survey covering all aspects of the regime. You don’t have to be a NIPA member to participate, a link to the survey can be found here.