You should read this if you work on Nationally Significant Infrastructure Projects (NSIP) / Development Consent Orders (DCO) under the Planning Act 2008 and want the latest updates.
Recently there have been a few interesting, if small, changes in the NSIP / DCO world – this update seeks to summarise the latest.
1. The Government’s latest consultation response on streamlining DCOs
This Government response has just come out (see here). It follows the technical consultation last summer/autumn (and is part of a wider package of planning papers which we do not seek to address here).
The political message remains clear – the Government states that it wishes to support investment in infrastructure in order to support the economy generally – and this very much lines up with the recent Organisation for Economic Co-operation and Development report which, amongst other matters, recorded the UK’s historic underspending in UK infra and the need for private investment (here).
So what has the Government done? Well it has issued a new set of Regulations for England which mean that some (generally environmental) consents which could only be included in a DCO if the usual consenting body agreed, can now instead be put in a DCO whether or not the usual consenting body approves. (There is a slight nuance about the temporal scope of such consents but that’s one for another day!)
There are also other consents which the Government states will be ‘streamlined’ after the Election.
2. The Infrastructure Act 2015
This has tweaked a few bits of the Planning Act 2008:
- Firstly, the Examining Authority / Panel can be appointed straight after acceptance, rather than later down the line;
- An Examining Authority / Panel may now comprise any number of inspectors, from 1 to 5; and
- Finally, there are provisions which try to make it easier to make amendments to a DCO. These include, where the application is for a non-material amendment, moving the burden in terms of consultation and publicity onto the applicant; and where the change is either a non-material or a material amendment, allowing the Secretary of State, in making any regulations, to provide for a discretion (such that, for example, the decision maker may disapply prescribed consultation requirements if considered appropriate).
3. Changes to DCOs once made
Until recently no DCOs have been substantively amended (save for correction applications addressing errors in DCOs).
There are two categories of amendment – non material and material. There haven’t been any of the latter but there are two of the former now in the mix, as below:
Recently the Heysham to M6 DCO has been amended (as a non-material amendment), such that a slip road can be moved by about 12m – which on face value and in context seems fairly non-material change.
Secondly, the promoters of the power station at Hinkley Point C have also now applied for a non-material amendment relating to design changes to buildings, because, according to the application, the changes are outside of the flexibility they had put in their original DCO requirement (which allowed changes as long as they stayed within their site wide parameter plan). This application is now under consideration.
So as more DCOs get made, and in the usual way changes become necessary, it will be interesting to see how the Planning Act regime copes as more promoters come forward looking for changes, and it will be particularly interesting when we get to the point of any ‘material’ changes.
4. Advice to local authorities
The Planning Inspectorate has issued a new advice note 2, providing a helicopter view for local planning authority officers of the whole process, including guidance on being proportionate and the need to engage with the process fully.
This is useful for those who may not have engaged with DCO applications before, but also picks up on some quite detailed points of note (including in respect of Wales).
5. Advice on Environmental Impact Assessment and Preliminary Environmental Information
The Planning Inspectorate has also issued a new advice note 7, dealing not only with EIA and PEIR, but with screening and scoping. This replaces the previous notes in this area.
So, no big shifts in the DCO / NSIP delivery regime, as it continues to bed-down, but the tweaks around the edges are sanding down the rough edges of the system, making it a much smoother place than when we all started out under it those 7 or so years ago!