On 30 April 2024, the Government issued six DCO guidance notes, which are applicable only in England. The existing guidance on pre-application process and examination of applications were withdrawn and replaced by four notes on pre-application, acceptance, pre-examination and examination. There are also two new notes covering fast track applications and DCO drafting. In addition, the Nationally Significant Infrastructure Projects 2024 Pre-Application Prospectus (“the Prospectus”) was published on 16 May 2024.
The layout of the new guidance notes has shifted towards a Q&A format, which helps make them more user friendly and easier to navigate. The content has been rearranged, bringing content covering the same topics closer together, which is easier for users to digest. Below we set out some key points to note arising from these new documents:
Pre-application Process
This updated note on the pre-application process is much longer than the guidance it replaces, which covered both pre-application process and acceptance. It provides context for how concepts introduced by the Prospectus, such as Inception Meetings and the Programme Document fit into the process. The Inception Meeting will inform applicants about the right level of pre-application service to be provided by the Planning Inspectorate (“PINS”). The Programme Document must set out stipulated information to identify at an early stage which applications are likely to be complex, what issues and potential resolutions exist, and to ensure that applicants stay on track to submit within the average timeframe for pre-application stage, which is two years. The Programme Document will be held on the applicant’s website and updated as necessary.
A key point to note is the guidance regarding re-consultation, which states:
“Only where the project taken as a whole changes very significantly, and to such a large degree that what is being taken forward is fundamentally different from what was previously consulted on, should re-consultation on the proposed application as a whole be considered.”
This is likely welcome news to applicants, who can more likely use targeted consultation, which does not require a preliminary environmental information (“PEI”) report to be produced, provided what is being reconsulted is not ‘fundamentally different’.
Acceptance
The acceptance note provides the basic timeline for a decision and what PINS’ judgment will be based on. Further guidance is provided on adequacy of consultation, including the statement of community consultation. It sets out how to ascertain whether documents provided as part of the application are of a satisfactory standard, however, there is not as much new content in this note as there is in the pre-application guidance.
Pre-examination
This guidance note provides more detailed guidance on the content of relevant representations. A representation will be “relevant” where it is in accordance with the requirements of s102(4) of the Planning Act 2008 and regulation 4 of the Infrastructure Planning (Interested Parties and Miscellaneous Prescribed Provisions) Regulations 2015. Regulation 4(2)(b) has been amended and this new definition will apply to all applications for a DCO made after 30 April 2024, which aims to encourage “more detailed submissions at an earlier stage” in the process.
Relevant representations must contain “principal submissions and, where practicable, the full particulars of the points raised”.
The guidance highlights the importance of obtaining more detailed submissions at an earlier stage, drawing on experience from DCO applications to date, where relevant representations may have only been a few lines, with further detail being provided at a later stage. This, however, won’t be possible for fast track applications, where the initial stage will be the only opportunity for interested parties to provide relevant representation if they wish to be on the fast-track timetable.
Relevant representations should relate to the application, contain sufficient information such that the examining authority can ascertain if the representation agrees or disagrees with the application and why and should highlight the main points of their argument, with reference to supporting evidence and documentation where possible.
The guidance notes that all relevant representations should include as much information as possible, but highlights it is ‘particularly relevant for local authorities and statutory bodies’ (being the 8 public authorities listed in Schedule 2 of the Infrastructure Planning (Fees) Regulations 2010). The guidance notes that the relevant representations from these statutory bodies should be in line with the guidance and secondary legislation as much as possible, given these bodies are able to charge for their pre application advice, though this is reliant on the applicants ensuring the bodies have the information they need.
At this stage, the examining authority can also issue a procedural decision, including a request for the applicant to provide a principal areas of disagreement summary statement (PADSS), which is already a requirement for fast-track applications.
Examination
The examination guidance notes that the Infrastructure Planning (Applications: Prescribed Forms and Procedure) Regulations 2009 have been amended such that an Examining Inspector involved in giving pre-application advice under section 51 can be appointed to the Examining Authority. However, it is now understood that this change was intended not to ensure that Inspectors who give substantive advice at the pre-application stages are specifically appointed to Examining Authorities. It is instead to assist with resourcing of Inspectors for Examinations to remove a barrier to appointing Inspectors to Examining Authorities where they have previously given general advice at the pre-application stage.
This guidance note highlights the importance of local impact reports, especially in light of sections 104 and 105 of the Planning Act 2008, which set out what PINS must have regard to when making the decision whether or not to grant development consent.
It also provides further detail on the role of PADSS in the examination. The guidance notes that PADSS take the statement of common ground a step further, not only stating key areas of disagreement, but stating what exact changes are sought to the draft DCO. PADSS can also be submitted by interested parties as part of their relevant representations, and/or by the applicant themselves. As is set out below, a PADSS is a requirement of a fast-track route application
Fast track applications
This guidance needs to be read in conjunction with the guidance notes above, as this is only supplementary guidance. It is possible, pursuant to s98(4A) of the Planning Act 2008, for the Secretary of State to set a completion date for the examination that is earlier than the statutory maximum (6 months). The process as a whole will take an estimated 12 months in comparison to the usual 17 months. This guidance is welcome, as the fast-track application is novel to the DCO process.
This note provides guidance as what will make an application likely to be eligible for the fast track process:
- the applicant must meet the quality standard (see below);
- there must be clarity about issues and a prospect that they can be resolved during a four month examination;
- objections to compulsory acquisition are likely to be resolved in those four months;
- no change requests likely; and
- there is a relevant NPS and it is up to date.
Whether or not to apply for a fast track examination is entirely the applicant’s decision, although it is a costly one. Participation in the enhanced pre-application support service from the Planning Inspectorate is obligatory, which the Prospectus confirms will cost £208,850 per year. Applicants must state a commitment to using this service in the Programme Document.
The overarching theme in this guidance is preparation and notification. The guidance is set out to ensure that the application can run to timetable, in order to complete the examination stage in 4 months.
The Programme Document should also contain an indication of an applicant’s intention to apply for the fast track, have detailed consultation materials ready for the various milestones set out in that document and set out expectations of any statutory consultees so that they can alert if they cannot resource a fast track proposal.
Applicants need to submit a fast track admission document at same time as the application itself, explaining how they meet the quality standard. The principal areas of disagreement should be articulated in the fast track admission document, to enable PINS to determine the likely complexity of the examination. The PADSS should specify what changes any interested party is seeking to the dDCO.
Supplementary tests to the key ‘quality standard’ test include showing the applicant complied with the pre-application steps, engaged with the enhanced service and had regard to section 51 advice.
A provisional decision regarding fast track is taken during acceptance (within the usual 28 day period) alongside the process for determining general acceptance of the DCO application, and is then confirmed once relevant representations have been made. The guidance requires the applicant to set a date for receipt of relevant representations at a maximum of 6 weeks after the date of notification of an accepted application, in order for the pre-examination stage to be completed within 3 months.
The guidance note states the Examining Authority can ask for the examination to revert to the usual timetable if it appears that issues that were anticipated to be straightforward are not progressing as hoped. Similarly, if changes are proposed by the applicant post acceptance, that cannot be timetabled into the application, this may require a reversion to the usual application process.
Content of a Development Consent Order required for Nationally Significant Infrastructure Projects
This note is very similar to the PINS advice note 15: ‘drafting Development Consent Orders’, but is now more straightforward in its drafting and will be afforded more weight (as guidance) then the previous advice note. This note contains detailed drafting advice on a variety of issues often tackled in a DCO and their schedules, including Deemed Marine Licences.
Final comments
It is very positive seeing Government take a proactive approach to the updating of the suite of PINS guidance notes. They are an important suite of documents which support the changing DCO regime, and more updates can be expected for the remainder of the suite. All applicants and interested parties should be aware of the change to guidance as they have immediate effect.
What practitioners, and users of the DCO regime, are waiting for, is to see whether these changes in guidance make a meaningful change to the conduct of the DCO regime. There is a clear will to change the system amongst its users, and those responsible for managing it. There are some very good ideas amongst them, and in particular:
- the idea of a “fast-track” appears very appealing (although it would seem that satisfying the necessary criteria may be as burdensome as the default option, and even then not guaranteed); and
- the prospect of early PINS engagement and facilitation to unlock differences between applicants and technical stakeholders through the evidence plan process is one that could pay dividends for certain projects.
We are therefore reserving judgement on the effectiveness of these changes as a whole - but the concern is that they are not going to significantly move the dial to effect the change which appears to be sought by those involved.
This article has been written by Alex Minhinick (partner) and Olivia Heininger (associate). Please contact them for any queries on how these changes affect you or for any advice on DCO consenting generally.