The Development Consent Order process

Development Consent Orders (DCOs) are currently a hot topic in East Anglia, so Catherine Hibbert, a highly experienced planning law paralegal, takes us through the Development Consent Order process.

A diverse range of infrastructure projects in the region, including the Ipswich Rail Chord, certain M25 highway improvements, the Sizewell C Power Station and the East Anglia One offshore wind farms, have all been authorised by means of DCO over the last decade.

What is a Development Consent Order?

DCOs were introduced by the Planning Act 2008 in the wake of the long running Heathrow Terminal 5 planning inquiry as a means of streamlining decision-making processes for major infrastructure projects, with the stated aim of making the procedures fairer and faster for communities and applicants alike.

DCOs authorise the development and use of Nationally Significant Infrastructure Projects (NSIPs); these are major proposals in excess of a prescribed size relating to energy, transport, water, waste and waste-water which are considered by the Government to be of such importance that permission to build and operate them needs to be confirmed at national level by the relevant Secretary of State. A single duly authorised DCO will confer all the necessary consents/powers to enable the scheme to proceed, including planning permission, compulsory purchase powers, authority for highway and street works, listed building consents etc. It is no longer necessary to secure a raft of different consents from different bodies to enable an NSIP scheme to proceed – a single DCO does it all.

DCO applicants can include commercial bodies as well as government agencies and local authorities.

The stages of the DCO process

The DCO process comprises six clear stages.

1. Pre-application
   An applicant who has confirmed its intention to submit a DCO to the Planning Inspectorate is responsible for developing its own scheme; as a front-loaded process, the scheme must be fully scoped and defined before the application can be submitted. The applicant must formally consult widely with statutory consultees, parish councils, local authorities, landowners, special interest groups, landowners/tenants and the public during the pre-application stage. Local Authorities will be asked to provide an opinion as to the adequacy of pre-application consultation before the application can be accepted, so there will be plenty of opportunity for those affected by the DCO to engage with the applicant during this time when it is still developing its proposals; this period therefore provides a key opportunity for stakeholders to influence the DCO scheme - whatever their points of view. Opportunities for securing amendments to the DCO post-application are more limited.
2. Acceptance
   Following submission of the formal DCO application, the Planning Inspectorate has 28 days in which to formally accept the application or not and will consider whether the proposal meets the standard required to be examined and whether sufficient information has been provided.
3. Pre-Examination
   Once an application has been accepted, an Examining Inspector (or panel of Inspectors) will be appointed by the Planning Inspectorate as Examining Authority. The DCO application will be formally advertised and copies of the application documents will be published on the Planning Inspectorate website. Relevant Local Authorities automatically become Interested Parties; members of the public/interest groups can formally register as an Interested Party within a 28-day minimum registration period, which gives them the right to submit written representations and to request the right to speak at any hearing. A Preliminary Meeting will take place to consider procedural matters as to how the application will be examined and an examination timetable will be set. There is no statutory timetable for this pre-examination stage, but it usually lasts around 3 months.
4. Examination
   Examination starts the day after the close of the Preliminary Meeting and must be completed within six months. The Examination is an inquisitorial process and the Examining Inspector can ask written questions and may convene hearings; Interested Parties will be asked to provide more details about their views - all in accordance with the examination timetable. Unregistered parties can only participate in the Examination at the discretion of the Examining Inspector.
5. Decision
   The Examining Authority must prepare a report including a recommendation about whether to grant or refuse development consent within three months of the close of the Examination. The relevant Secretary of State then has a further three month period in which to consider the recommendation and make a decision.
   The timetable effectively prescribes that a decision on the DCO is to be confirmed by the Secretary of State approximately 12 – 15 months after application.
6. Post Decision
   A six-week period follows the decision of the Secretary of State during which any decision may be challenged in the High Court.

The strict time limits attributable to defined stages of the Development Consent Order process lend to a relatively speedy decision which limits the period of uncertainty faced by those affected by the proposals.

What is the relevance of DCOs?

More DCO projects in East Anglia are in the pipeline, including the Longfield solar farm, Bradwell B nuclear power station and the proposed expansion of Luton Airport, shining the spotlight on this relatively new process. National Grid’s new pylon scheme, East Anglia GREEN, is also likely to come forward and this, of itself, may lead to additional green energy schemes in the vicinity. There are also a number of highways and road improvement schemes that will likely be pursued as DCOs. This is in line with a rising trend in the numbers of DCO schemes coming forward nationally, reflecting an emerging confidence and developing expertise in the relevant processes amongst scheme promoters.

DCOs will impact landowners and those adjacent – to include adverse impacts but also potentially "opening the door" for development opportunities.

If you are affected by a DCO and want further advice on how best to protect your interests, please get in touch with the team of Planning Law solicitors at Holmes and Hills.