Today’s entry comments on deadlines for Development Consent Order (DCO) examinations.

Each application for a DCO is subject to up to a six month examination, within which there are a series of deadlines to receive written information and a series of hearings at which oral evidence is given. I say up to six months, but of the last 40 examinations, 34 took the full six months.

The series of deadlines is fairly common to examination timetables, and one of the most significant ones takes place about a month after the start of the examination and invites:

  • answers to the Examining Authority’s first list of questions, of which there may several hundred;
  • comments on the initial ‘relevant’ representations, again which often run into hundreds and occasionally thousands;
  • statements of common ground;
  • local impact reports; and
  • fuller ‘written’ representations from third parties

Having just passed this deadline on one project, while it’s fresh in my mind I thought it might be worth discussing whether any changes should be made to this standard practice.

The context is that relevant representations are published a few months earlier; required statements of common ground (SoCGs) can often be predicted and are listed in the ‘Rule 6’ letter published about a month before the start of the examination, and are sometimes added to just after the start of the examination in the ‘Rule 8’ letter. Furthermore, comments on relevant representations are invited for the same day that many of the same parties are submitting more detailed written representations, on which comments are invited a few weeks later.

Although SoCGs can be worked on in advance, getting engagement from the other party without an Examining Authority deadline looming can be difficult, since the third party has none of the urgency that the applicant does. If it is a public body it probably also has resource issues and if it is a private body it has little incentive to spend time and money on something that is of little advantage to it. Even when the deadline is looming, engagement can be challenging. But that would still be the same if the deadline was moved, so it doesn’t matter too much when that deadline is. My only comment would be that there is a lot of overlap between local impact reports and SoCGs with local authorities, and producing them at the same time is probably not the best use of their time; SoCGs with local authorities at least could be a bit later.

There is a lot of duplication between commenting on relevant representations and answering the Examining Authority’s questions, and subsequently commenting on written representations. On the other hand, there is value in getting the applicant’s position to the Examining Authority early in the examination. It is a bit of a chicken and egg situation as to what should come first. However it does seem like a waste of time for one party to be rebutting something another party is saying while the other party is working up more on what they said at the same time without seeing the rebuttal first.

Here is a suggestion. I have a bee in my bonnet about hearings or deadlines occurring before the start of the examination, which is the day after the Preliminary Meeting, because they are then not during the examination. It would be possible, however, to have a deadline for comments on relevant representations as soon as the next day. There is plenty of time for the applicant to prepare these and it could help reduce the Examining Authority’s questions and the scale of the written representations (as long as there is time to consider them and other parties read them!).

That deadline might also be useful for updated application documents in response to the Planning Inspectorate’s advice when the application is accepted (both in its section 51 letter and section 55 checklist), plus anything that the applicant has spotted or developed since the application was made.

Any views on this? Examining Authorities might consider trying different arrangements rather than sticking to the usual timetable to see if anything else works better, and I have heard that there are moves to do this.