As the Development Consent Order (DCO) regime beds in, a number of projects are now being constructed and some of them are already operational. Last month for example saw a significant step in the operation of the first turbines at Kentish Flats offshore windfarm extension. The process of moving from securing consent to implementation phase was explored in a recent seminar that we hosted. The processes involved are evolving but there is already a sufficient body of experience which has led to best practice emerging for developers, local authorities and other stakeholders to follow.
The intensity of work involved prior to securing a DCO in the pre-application and examination phase does not relent when it comes to seeking to implement the DCO. Robust project management is essential to understand the interaction between various workstreams, and both the internal and external interfaces are critical. Throughout the DCO process, promoters should be maintaining the dialogue with stakeholders but the form of that dialogue will often change. Steve Bellew from Gobe Consultants who has led on the project management of a number of DCOs explained the critical role that needs to be played. As promoters transfer of the responsibility for the project from development to implementation teams, the internal communication and knowledge transfer is critical. Externally there is always a need to revisit Statements of Common Ground and agreements with undertakers to thoroughly understand what was agreed during the examination phase (often late at night or at the 11th hour) and what must be delivered.
More often than not projects evolve. Liaising with the local authority is critical with the discharge of requirements and sign off on plans such as traffic management which were embryonic at application stage. Equally, promoters' requirements may change and their strategic direction may alter. A thorough understanding of the governance within promoters and timetables for securing the necessary approvals to proceed to the Financial Investment Decision can have many advantages to avoid any unnecessary delay in development.
The role of the local authority cannot be underestimated. Their engagement is crucial even though they are not the decision maker. Those local authorities that have embraced the process, including Somerset and Suffolk County Councils, have demonstrated the value that they can bring to the process. Somerset County Council has had a significant role in the development of Hinkley C where road schemes have been implemented in addition to the usual planned infrastructure works across their network. Having been originally tasked with the response to the Nuclear National Policy Statement, Alyn Jones Strategic Manager, Major Programmes has spent that time since then leading the Council's liaison with EDF. He is currently managing the successful implementation of complex works by EDF always seeking to mitigate impacts on residents. He is also dealing with the National Grid upgrade project, another DCO application. He emphasised how council highway engineers have moved away from the traditional approach to contractor engagement as the Council seeks to facilitate further highways improvements.
One group of stakeholders who should never be forgotten about are the landowners. A possession strategy needs to be developed and thereafter implemented. Where agreements have not been successful compulsory powers may need to be exercised either on a temporary and/or permanent basis. This cannot be done in isolation and communication with landowners to understand their requirements may help to minimise compensation claims. For example, where agricultural land is involved, understanding crop rotation and harvesting cycles could assist in the programming of works to minimise impacts. A thorough land referencing exercise will need refreshing prior to implementation. This mean that in addition to following the statutory process to ensure everyone is notified, promoters will be able to engage with all affected parties. Where possession is taken a number of practical steps need to be followed. Jonathan Stott from Hamer Associates set out with Richard Guyatt, Partner from Bond Dickinson, some useful measures which should be adopted. What may seem obvious to many can often be overlooked such as ensuring the extent of the land to be acquired is understood by all parties and a record of its condition at possession is taken. A record of the actual possession date is also important as that triggers the entitlement to claim compensation and also the 6 year period when compensation claims can be made.
Where what is proposed to be built may no longer be capable of being built within the confines of the DCO then either a non-material or material amendment application may be required. Mark Wilson, Infrastructure Lead at the Planning Inspectorate explored with Vicki Redman, Partner from Bond Dickinson, the lessons learned from recent applications and the changes to legislation. At the moment only applications for non-material amendments have been promoted. Some of the issues which have arisen are that applicants have adopted a precautionary approach to date and there are no prescribed timescales for decision making.
Applicants can do a lot of preparation for non-material change applications including informal consultation at the pre-application stage as well as supplying letters of no concern with the application. Applicants may wish to consider whether they would be better placed securing planning permission for the change provided of course it is the Associated Development element of the project. Guidance is awaited from Government on the material change application process which has recently been revised to provide a more streamlined process. There is also no definitive approach on what determines whether an application is to be treated as material or non-material and will be determined on an individual basis. That being so a material change application is more likely where:
- The ES needs updating with new likely significant effects
- A Habitats Regulation Assessment would be required or there would be a need for a new or additional European Protected Species licence
- Compulsory acquisition of additional land is required.
The level of engagement at our seminar demonstrates both the level of knowledge that has built up but also the fact that sharing the knowledge will help the dissemination of best practice. Here at Bond Dickinson having advised on the promotion of eight consented DCO projects, four at pre-application and determination stage as well as having advised Interested Parties on their interaction with 13 DCOs including the implementation stages we have developed a number of procedures and project management tools to assist promoters on their schemes. Bringing lessons learned from those projects only serves to contribute to the emerging best practice.