What is a Development Consent Order (DCO)?

A Development Consent Order (DCO) is a legal instrument in the United Kingdom that grants permission for major infrastructure projects to be constructed. It is typically used for projects such as airports, power stations, and railways. The DCO regime was introduced in 2008 as a way to streamline the planning process for large-scale projects, aiming to reduce delays and uncertainties. The process involves applying the Planning Inspectorate, which then conducts an examination to consider the environmental, social, and economic impacts of the proposed development.

If approved, the DCO grants the developer the necessary powers to acquire land, carry out construction, and operate the infrastructure. The DCO process is designed to ensure that major infrastructure projects are delivered efficiently and with consideration for the wider public interest and environmental concerns.

Purpose of DCOs

DCOs play a crucial role in facilitating the planning and authorization process for nationally significant infrastructure projects (NSIPs) in England and Wales. The purpose of DCOs is to streamline and simplify the approval process for large-scale projects, such as airports, power plants, and railway lines. By providing a single consent for the entire project, DCOs aim to reduce the complexity and time involved in obtaining multiple planning permissions and permits from various authorities.

The key stages of the NSIP process include pre-application, examination, and decision. To make a DCO application, the project promoter must submit a comprehensive set of documents and plans to the Planning Inspectorate, which is responsible for evaluating and examining the application. The decision on the DCO application is ultimately made by the relevant Secretary of State.

When drafting a DCO, it is crucial to consider the requirements outlined in the Planning Act 2008 and relevant national policy statements. General principles such as sustainability, public participation, and environmental impact assessment should also be taken into account to ensure that the DCO aligns with legal and policy considerations.

Initial Application for Development Consent

The first step in submitting an initial application for Development Consent is to gather all necessary documentation, including completed application forms, plans, environmental impact assessments, and any other relevant supporting materials. It is crucial to ensure that the application is filled out accurately and completely, as any missing or incorrect information could delay the process.

Once the application is submitted, the Planning Inspectorate plays a key role in assessing its acceptance. The Inspectorate will review the application to ensure that it meets all requirements and guidelines. If the application is accepted, the Inspectorate will then move on to the pre-examination stage, which involves notifying the relevant parties and setting a timetable for the examination process.

During the initial application stage, it is important to carefully follow all guidelines and requirements to avoid potential challenges or delays. This may include being mindful of specific deadlines for submission and ensuring that all documentation is thorough and accurate.

Overall, the process of submitting an initial application for Development Consent involves careful attention to detail and compliance with the guidelines set forth by the Planning Inspectorate.

Careful Consideration of the Proposed Development

The proposed development is a mixed-use complex that will include residential apartments, commercial spaces, and green public areas. The purpose of this development is to create a vibrant and sustainable community hub that meets the growing demand for housing and commercial spaces in the area. The scope of the project involves the construction of multiple high-rise apartment buildings, retail spaces, and recreational facilities.

The potential impact of the development on the surrounding area is significant. It will bring a boost to the local economy by creating job opportunities and attracting businesses. The addition of green public spaces will enhance the quality of life for residents and create a more inviting atmosphere for the community. However, there may also be concerns about increased traffic and strain on local infrastructure, so thorough planning and consideration of these factors will be crucial.

In conclusion, the proposed development aims to meet the needs of the growing population while also adding value to the surrounding area. It presents an opportunity for economic growth and improved community well-being.

Requirements for Approval of a DCO

Maintaining a clear audit trail of changes made to the draft DCO is important for transparency and accountability. This includes submitting track-changed versions of the draft DCO and a supporting explanatory document to demonstrate the evolution of the proposal and the reasons for any modifications.

In terms of timeframes, the minimum duration for each stage of the DCO process is as follows: 28 days for acceptance of the application, 6 months for examination by the Planning Inspectorate, 3 months for the Secretary of State to make a decision, and 6 weeks for any legal challenges. Adhering to these timeframes is essential for ensuring an efficient and fair process for all parties involved in the DCO application.

Confirmation of Approval of a DCO

The Inspectorate will present a report and recommendation to the Secretary of State for approval. The timeline for each stage can vary, but generally, the entire process can take around 12-18 months.

Maintaining a clear audit trail of changes to the draft DCO is crucial. This includes submitting track changed versions, a supporting explanatory document outlining the reasons for the changes, and a fully updated Explanatory Memorandum.

During the Examination, any suggested amendments or new provisions must be carefully addressed. This involves reviewing each suggestion, considering its merits, and making any necessary changes to the draft DCO. The revised document is then resubmitted for further examination and consideration.

By following these steps and maintaining a detailed audit trail, the process for obtaining confirmation of approval for a DCO can be managed effectively and efficiently.

 

I have been served with a formal notice concerning a proposed DCO – what does this mean, what do I need to do and how can we help?

Q. What is a Nationally Significant Infrastructure Project and who decides them?

A: Nationally Significant Infrastructure Projects (“NSIPs”) are major infrastructure developments in England and Wales. These include projects such as power plants, large renewable energy projects, new airports, airport extensions and major road projects. A Development Consent Order (“DCO”) is the means for obtaining planning permission and a range of other consents for developments categorised as NSIPs – note this can include the use of compulsory purchase powers to acquire any land and rights required for the project. Instead of applying to the local authority, the developer must apply to the Planning Inspectorate who will consider the application and make a recommendation to the Secretary of State. The relevant Secretary of State will then decide whether a DCO is granted. The notices served as part of the DCO process are different to those you will see for straightforward planning applications and compulsory purchase orders.

Q. How does the NSIP process work?

A. The process comprises six key stages with statutory timescales, including pre-application, acceptance, pre-examination, examination, decision and post-decision stages. From accepting an application to making a decision, the whole process should take approximately 15 months. Previously, the average time taken for major applications was around 2 years.

Q. How can a social housing provider get involved and have a say on a project?

A. The best chance to influence, for example the design, layout, or location of a NSIP takes place during the pre-application stage before the applicant finalises its application and submits it. The opportunity for this is during the public consultation period. The applicant must formally consult on its proposed application before it is submitted. If you wish to be involved, you should take part in the applicant’s pre-application consultation. Once the application is submitted you can be involved by making a relevant representation and then registering and participating in the examination.

Q. We have been identified as a statutory consultee – what does this mean?

A. Statutory consultees are organisations or individuals that are legally required to be consulted on NSIPs. If you have been consulted on a proposed application, is it likely that you either have an interest in the land subject to the DCO or could be affected by a project in such a way that you may be able to make a claim for compensation.

Q. Our land/interest has been identified as land which is subject to proposed compulsory acquisition or land as being affected by a project in such a way that means compensation may be payable– what should we do?

A. Often a social housing provider will not be aware of a proposal for a NSIP until it receives notice of the formal statutory consultation. While a DCO can authorise the compulsory acquisition of land, various rigorous policy tests must be met before compulsory purchase will be authorised. Objections which relate solely to compensation values for compulsory acquisition will be disregarded, however, it may be that you are able to argue that the various tests are not met. It is crucial that you engage in the process as early as possible to secure your position.

With this in mind, you should consider making an objection or relevant representation so as to put a marker down and alert the applicant that it will need to proactively engage with you and/or that you are challenging their grounds for taking powers of compulsory acquisition. We can advise you on how best to deal with the compulsory acquisition negotiations, the split of compensation for shared ownership properties and also how to deal with similarly affected tenants or leaseholders whilst also protecting your own interests.

Get In Touch

Julie has particular experience in dealing with Nationally Significant Infrastructure Projects and negotiating complex S106 agreements and infrastructure and highways agreements as well as providing strategic planning advice to housebuilders, commercial developers, landowners and local planning authorities.

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Published: 3rd April 2022
Area: Real Estate & Planning

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