921: News roundup and more reforms for the DCO process

This is my first post on the world-famous Planning Act 2008 blog, that I am now alternating with Angus Walker, and to mark the occasion I thought I’d do a ‘bumper’ post so you can see what’s in store and decide now, or forever hold your peace, on whether you’d like to continue being readers.

This post covers changes to the remit of the National Infrastructure Commission, the Committee on Climate Change’s reaction to the Net Zero Strategy, and five reform proposals for the DCO process.

Remit of the National Infrastructure Commission

The budget confirms (or, more generously, announces) £5.7 billion for London style transport in Greater Manchester, Liverpool, West Yorkshire, £21 billion for roads and £46 billion for railways and £30 billion for green industries as part of the government’s Net Zero Strategy.

One thing that got lost in everyone working out exactly how much they would save on trips to the pub was a letter from Rishi Sunak altering the remit of the National Infrastructure Commission. The existing objectives of the NIC are to: (i) support sustainable economic growth across all regions of the UK, (ii) improve competitiveness, and (iii) improve quality of life.

Mr Sunak’s alters the remit of the NIC, stating:

Note too that Mr Sunak’s letter also changes the fiscal remit: he instructs the NIC must demonstrate that its recommendations for economic infrastructure are consistent with gross public investment in economic infrastructure of between 1.1% and 1.3% of GDP in each year between 2025 and 2055 (up from 1.0 and 1.2, respectively).

Un-ccc-ertainties

The Climate Change Committee (CCC) has commented on the government’s Net Zero Strategy. The CCC is positive about the strategy until you get to ‘The Strategy is not the end of the road’ in the press release which is then followed by six bullet points of ‘gaps’ and ‘uncertainties’, including:

From the Net Zero Strategy’s four key principles, however, it doesn’t look as though the government want to do anything about demand – ‘we will work with the grain of consumer choice: no-one will be required to rip out their existing boiler or scrap their current car’.

Another recommendation is to introduce a ‘net zero test’ for government decisions, which the previous blog entry advocated.

Streamlining consents

Angus previously suggested a list of 10 proposals to reform the DCO process.

Here some more granular suggestions from me:

1. The Transport and Works Act 1992  does not contain a restriction on disapplying parts of the Commons Act 2006, and the Hybrid Bills like HS2 often disapply parts of the Commons Act 2006 as well. For example, article four (12) of the Northern Line Extension TWAO disapplies the Commons Act 2006, and article five of the Transport for Greater Manchester (Light Rapid Transit System) (Trafford Park Extension) Order 2016 stops future registrations of common land.                                                                      Section 139 of the Planning Act 2008 creates an anomaly whereby a promoter taking temporary possession of common land under a DCO may need to obtain a consent under section 38 of the Commons Act (unless sections 131/132 apply). Why is a DCO any different? Wouldn’t the ability for the Secretary of State to decide on disapplication of section 38 be in keeping with the spirit of the ‘one stop shop’ philosophy?
2. The Secretary of State has delayed decisions on the M25 Junction 10, the M54 Link Road, the MetroWest Portishead, and the Aquind Interconnector all in the last couple of weeks. This is seemingly part of a trend: for DCO decisions 2012-2016 (61 projects): the average decision length was approximately three months and nine days. For decisions 2017-now (45 projects), the average decision length is approximately five months and 15 days (and rising). How can this be dealt with?                                          One answer is to ensure the NPS are up to date to avoid questions of their age slowing down decision making. Another solution might be to create a requirement that, two months following the provision of a recommendation report, the Secretary of State must consider whether any queries which can be asked at that point so that promoters and interested parties can comment on a matter before the three month period expires and gives rise for the need for an extension.
3. In the context of hybrid and private bills, undertakings can be given to Parliament by promoters. These are often less costly than legal agreements, and can provide a degree of comfort. Could the DCO regime make greater use of these? True enough there are no specific procedures to deal with a breach as there are in Parliament but some public body promoters could nonetheless utilise them – see this ‘Letter of Comfort’ from the A19 Testo’s scheme which we argued should be deemed acceptable.
4. Reducing non-material amendment orders – I note that the Thames Tideway Tunnel obtained its fourth non-material amendment DCO in 2020 partially because there was an error/inconsistency in the works authorised, and parameter plans (see here). By contrast, consider this provision from the Crossrail Act 2008:

   If the deposited plans or the book of reference to those plans are inaccurate in their description of any land, or in their statement or description of the ownership or occupation of any land, the Secretary of State, after giving not less than 10 days’ notice to the owners and occupiers of the land in question, may apply to two justices having jurisdiction in the place where the land in situated for the correction of the plans or book of reference.

   Would an equivalent provision in a DCO reduce the need for non-material amendments because there was mere error in the submitted plan?

5. Reducing correction Orders – would it be possible for the draft Orders to be shared with promoters on without prejudice basis so that simple errors could be caught before an Order is made? This happens in the TWAO context and it is not clear why this could not happen in the DCO world either.