The nationally significant infrastructure project regime and development consent orders - how to have your say

Blog | Social Housing
Published: 3rd April 2022
Area: Real Estate & Planning

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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.

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Julie Russell has vast experience working on all aspects of legal planning, development and infrastructure work.

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