Infrastructure Planning Blog

Today’s entry looks at the long-awaited guidance published by the Government relating to Development Consent Order (DCO) applications, a High Court case on land access for infrastructure projects, and a brief comment on the Dean Moor Solar Farm DCO decision.

Guidance galore

The Government has published its long-awaited guidance on the DCO process. In a word, it is sublime. Here are the key takeaways from the pre-application and acceptance guidance respectively:

1. On consultation, it is explicit that “There is no statutory requirement for applicants to engage or consult during the pre-application stage, and nothing in this guidance should be read as creating such a requirement” and that “pre-application engagement and consultation, and the applicant’s approach to this, is not a statutory consideration in determining whether an application should be accepted”
2. On the content of what might be included in an entirely discretionary consultation, “Engagement and/or consultation on the basis of a succinct description of the impacts may be appropriate, and iterative sharing of relevant information with public authorities is encouraged.”
3. On acceptance, “Minor inconsistencies or matters which can be corrected, updated or supplemented in the pre-examination period without prejudicing the examination should not be reasons for an application to not be accepted” and additionally “the provision of information about the applicant’s assessment of the key issues (and the fact that this may indicate that a number of unresolved matters remain), is not a matter for consideration as to whether the application should be accepted for examination”
4. On the unduly severe approach adopted in relation to EIA at the acceptance stage, “An application may still be accepted in situations where a limited amount of further targeted or confirmatory environmental information relating to the EIA or Habitats Regulations is anticipated provided that sufficient information has been submitted to identify and assess the likely significant environmental effects of the proposals - this could be based on desk-top studies, professional judgement and reasonable worst-case assumptions”.

A few observations. First, what is clear is that the trend toward excessive (both in number and content of) consultations is now firmly rebuked. It is a much needed corrective (something we explored in our very first blog). There have been some who have argued, in the absence of the guidance, that consultations should follow what they have always done. It is clear that approach reflects unwelcome risk aversion.

Second, the guidance and Government this week at the NIPA conference, make clear that this is a call to arms. It is for developers to challenge their consultants (and for consultants to challenge risk aversion) in ensuring that the opportunity for a more streamlined, proportionate set of engagement activities is taken.

It has been a little dismaying to see the doubts about how far the Government would go on this front. In truth, it is not unsurprising in light of the Government’s acceptance of the Nuclear Regulatory Taskforce report. Recommendation 25 is plainly reflected in this guidance. Note, for example, the Taskforce stated that guidance should say “consultation and engagement should not be assessed during the acceptance phase… There should be no obligation to provide a draft EIA as part of consultation. Guidance may recognise the benefits of consultation but it should not create an expectation that it must always occur” (per point 1 and 2 above).

The Taskforce also recommended that “rejection at the acceptance stage should only occur if there is strong evidence that any deficiencies identified at the application submission stage cannot be remedied within [a] presumptive pre-examination period” which is reflected in point three. That presumptive pre-examination period, by the way, is now to be found in the pre-examination guidance (which states that “the expectation is for this period to be kept as short as possible, generally lasting no longer than four months and a maximum of five months in exceptional circumstances”).

Even point 4 above has pangs of Recommendation 13 (which called for “Affirm[ing] the Rochdale Envelope. It should be acceptable to grant consent while some surveys or design details are still outstanding. Worst-case assumptions should be case specific and evidence-based”).

The point here being that the risk aversion we saw in this period between the confirmation that statutory consultation would be repealed, and the publication of this guidance, is itself an indication of how precautionary the process has become. That is why our strong view is that this is a huge opportunity to self-correct. We highlighted a dangerous signal that there was a potential for the Inspectorate to effectively apply consultation requirements into the existing “satisfactory” test applied at the acceptance stage (see Blog 55). The clear, and unequivocal, rebuke of that approach in the guidance means that it is sincerely hoped that risk will not eventualise.

There is a drive to use Initial Assessments of Principal Issues (IAPI) to be more exacting, and assist with shutting repeat issues in examinations. The new examination guidance sets out that “The Government is keen to trial new approaches to streamline examinations.” On that point, one model worth considering is from – you guessed it – the Nuclear Taskforce’s idea of “Interim Recommendation Reports” which the Government’s response makes clear is being taken forward through this route to use the IAPI to “explain those issues which will not be examined further unless further information comes to light” and “will perform a role similar to an ‘interim report’ and be better able to shape the subsequent examination, recommendation, and decision stages”.

There is somewhat vague guidance on the new “opt-out” power. In particular, it says that where a project wishes to be opted out of the DCO regime, it will need to show “whether the scale and complexity of the development can be appropriately assessed on, and determined under, the proposed alternative regime” and “whether the proposed alternative regime, alongside any other permits, licences, or consents required for the development, would provide a sufficiently complete, coherent, and deliverable consenting route for all relevant elements of the project”. Vague in this context isn’t necessarily a bad thing, as the Secretary of State will no doubt wish to maintain discretion over which projects are considered outside of the Planning Act 2008.

There is also updated guidance relating to the content of DCOs. One point that is worth highlighting is the confirmation that “provisions exempting land belonging to a statutory undertaker from broad compulsory acquisition provisions within the draft DCO, for example to avoid engaging the additional requirements in section 127 of the Planning Act, may be acceptable if the applicant can demonstrate that the necessary land interests and rights have been, or will be, obtained by agreement with the statutory undertaker concerned”. This confirms a long-standing point of contention between promoters and statutory undertakers on what “negating” means. Will veto provisions be done away with now?

Relatedly, the Government has confirmed there will be a return of the Model Provisions in updated guidance, which Anna Payne confirmed at the NIPA conference would happen by summer 2027. That will be much needed given the inconsistency in decision-making, and the conflicts we have seen with Government policy to date. For a flavour of what may be included in that, it’s worth reminding yourself of Recommendation 28 of the Taskforce Report (which sets out provisions which should be included).

Whilst we’re all waiting, it would be prudent for both promoters, Examining Authorities and other decision-makers, to follow what is in there! (In case you missed the first hundred references, my co-blogger, Mustafa Latif-Aramesh, was a member of the Taskforce, and has recently been appointed by the Secretary of State to the Nuclear Regulatory Implementation Panel overseeing the implementation of the recommendation alongside colleagues from DESNZ, the MoD – and, as a result of that review, much more is to come).

There is also entirely new guidance on decision-making which appears to encourage the use of “minded to letters” (on that point, for good measure, see Recommendation 27 of the Taskforce Report). It also confirms that for quashed DCOs subject to redetermination, “the expectation is that, upon receipt of necessary information as above, the Secretary of State will normally re-determine the application within 3 months, as for the original decision.” This will presumably be welcome news for the promoters of the Aquind Interconnector who are currently in its third year of the re-determination of that DCO following the quashing of its refusal.

Land’s End

The High Court has handed down a judgment in relation to the use of section 172 of the Housing and Planning Act 2018 for the purposes of seeking land access for infrastructure projects.

The useful part, not part of the judgment, is that there is no finding that a company with a licence under the Electricity Act 1989 cannot rely upon the powers under section 172. For context, in an unwelcome and entirely obiter throwaway comment from an earlier case, this was – entirely incorrectly, in my view – said to be in doubt. Readers should note that the good folk at MHCLG amended the equivalent power in the Planning Act 2008 (s53) so that it smells a little more like section 172 (which, as this case underlines, is an overlapping rather than mutually exclusive statutory power).

Back to the case, the judgment was less about whether the power could be relied upon, and more about the content of what a notice should include. The practical points on that front are as follows.

The judge held that “notices [which] are broadly framed and provide the [acquiring authority] with the convenience of undertaking its surveys at will, with little restriction, and with no stated conclusion or end to the use of the power” are, in effect, not compliant. Notices must include “the details.. with such precision as is reasonable and practicable at the time of service of the notice, explaining what is proposed to be done where, and when”.

How much time can pass between a notice and the access being taken? It depends. The judge held that “the length of time over which a notice remains effective depends upon the nature of the activity and circumstances of each proposed entry.” This does not, however, mean that “a notice must specify the first day on which there will be an entry”.  

Where does that leave us? In this case, there was reliance on a year-old notice. The judge held that “the decisions as to: (1) how long after service of a notice it may continue to be relied upon, and; (2) whether a particular entry will be at a "reasonable time" are both fact and case specific. On the one hand it will require an assessment of the survey which is anticipated and on the other hand will include the characteristics of the land and people who occupy it, as well as other statutory obligations which relate to the land such as [bovine tuberculosis] or protected species and their habitat. This requires the acquiring authority to take into account whether the owner or occupier can have reasonably been on notice of a particular entry such that they could make any necessary arrangements in preparation.”

In response to the question you’ve been asking about who a notice must be served on, the learned judge concludes “the acquiring authority must notify all the people who either own or occupy the land so that the acquiring authority then knows its position.” For the property geeks, the judge does “not accept that a s.174 notice runs with the land” which, though bringing delight to the geeks, does not seem to be that much of an imposition on utilising the process.

Overall, this is a very welcome judgment that provides much needed clarity on exactly how developers give notice (and the contents of that notice). It clears the way for those with statutory powers to continue to use this power.

Dean-dong

We promised to cover the Dean Moor DCO decision. This was the second of the two DCOs which TLT secured in a single day. The decision letter (which is listed as “Secretary of State for [department] decision letter” on the PINS page) is short, and this blog is already too long, so there is one interesting point to note.

The Examining Authority concluded that the project was compatible with the (new, and unwelcome) duty to “seek to further the purposes” of the Lake District National Park partly on the basis that the project’s “contribution to climate change mitigation and net-zero supported the discharge of the duty by addressing long-term risks to the National Park’s statutory purposes”. We love it, fabarooni, tip-top, creative thinking, bring on the trumpets, let’s buy some fireworks and balloons.

The Secretary of State, however, decided to pop that balloon noting that he disagreed with “the climate change benefits of the Proposed Development [being] relied upon to discharge either the ‘conservation’ or ‘enhancement’ aspects of the.. duty”. Ah, well, nevertheless. The rest of the decision is consistent with Peartree Hill (the other of the two projects which TLT secured consent for in a single day, and which we covered in Blog 57).

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