Intelligence: 8 July 2020Can Development Consent Orders help meet the challenges of our time?

The strength and certainty of the Development Consent Order (DCO) planning process will be essential for powering the UK economy back to growth following COVID-19 –our latest research findings with Womble Bond Dickinson and Copper Consultancy concludes.

The firms have researched perspectives from across the planning, development and infrastructure industry to assess the strengths and weaknesses of the planning regime for ‘Nationally Significant Infrastructure Projects’ as created by the Planning Act in 2008, the year of the global financial crisis. The process deals with planning applications for major infrastructure projects from roads and railways to power stations, wind and solar farms, rail freight terminals and a host of specialist large scale projects.

The certainty created by the DCO process – which is the result of a heavily front-loaded set of responsibilities on both the applicant and on the Planning Inspectorate, together with a final decision by the relevant Secretary of State – was championed by respondents to the research. This demonstrates that the process is more important now than ever, both for projects within its current remit and for those that could potentially be included in future. 

Infrastructure & Energy Director, Ben Lewis says:

“The UK economy has been seriously shaken by COVID-19 and there will be more after-shocks to come.  We need infrastructure investment to power us out of this pandemic and, for that to happen, we need the right conditions for creating confidence, stimulating investment, and enabling projects to move forward.  Our research has highlighted the imperative of certainty in the planning process as the most valued aspect of the DCO regime.  Right now, we should all see the DCO process as a key cog in the economic recovery wheel – we are going to be heavily reliant on it and we need to ensure it is fit-for-purpose and maintained at all costs.”

Alongside recognising the value of certainty, the research identifies, however, that the planning system overall has become cumbersome with inadequate flexibility and particularly a lack of choice of consenting mechanisms for investors and developers to build out large developments, not just infrastructure, faster and greener.

Kevin Gibbs, Head of Strategic Planning at Womble Bond Dickinson, commented: "Planning delays and uncertainty remain significant hurdles to the Government achieving its vision for speedier large-scale development and to address climate change.  This research provides first-hand insight into the performance of the Planning Act over the past twelve years and seeks ways to improve the regime to better meet the challenges of the UK going forward.  To provide the incentive for national and international investment off the back of the Government's £5bn pledge to boost infrastructure projects we require a system that provides a choice for the development industry.  We believe that the range of recommendations in this report provides this choice in a collaborative and innovative manner."

Effective engagement also needs to be at the heart of the process, according to Copper Consultancy, so that delivery is balanced and improved through stakeholder involvement and meaningful participation in the DCO planning process.

Andrew Weaver, Director of Infrastructure at Copper Consultancy, added: “It’s clear that in the wake of COVID-19, we need to adapt and innovate to support the UK’s recovery. Changes are needed today to deliver the essential housing, infrastructure and economic corridors that will underpin society tomorrow; but its delivery begins and ends with the people we build it for.  Infrastructure’s success stories are led by open, honest conversations about the need and benefits of a scheme, securing buy-in from stakeholders and communities, and delivering the right scheme for them. We need to work in partnership with communities, articulating the benefits of schemes in ways that are relevant to them.  Only when people are at the heart of development does the community, and country, benefit.”

“The DCO process has merit and relevance – but not just because of the certainty and timeframes articulated in the report. Meaningful consultation and engagement is enshrined in statutory law.  Approval is dependent on evidence that promoters respond to consultees’ needs and priorities as far as is reasonable. They must demonstrate how they reflect the requirements of the landscape, the health and wellbeing of the communities they serve, and the economic context of the surrounding area.”

Our research also highlighted:

  1. The DCO process’ ability to balance scrutiny of proposals with a committed timetable for decision making is its most widely appreciated strength.
  2. These ‘certainty principles’ are integral to the effectiveness and success of the DCO regime over a decade of delivery since its creation in 2008.
  3. Sustained efforts must be made by Government to keep an up-to-date set of National Policy Statements (NPSs) in place – on the basis that these statements underpin the need case and are the foundations upon which the DCO process is built.
  4. The clarity and certainty of the DCO process timetable ensures that projects can move from planning into construction and operation quickly and seamlessly – gone are the former delays between a project approval and the applicant’s ability to get going because the fixed DCO decision-making timetable enables applicants to accurately forward plan for construction and operation. 

More than anything, the research reinforces the value of the DCO process for effective and timely decision-making and demonstrates that it will have a crucial role to play in the immediate future.

“Boris Johnson’s government promised the UK an infrastructure revolution and a levelling up agenda,” adds Ben. “Now, with COVID-19 added on top, and calls for a green recovery, the importance of the right decision-making framework for infrastructure investment is even more plain to see. We are almost a decade on from the first DCO being approved, and the system is proving itself to be more valuable now than ever.  In my opinion, it is the single most important aspect of powering the UK back to growth and I think we will see its worth in the next few years more than ever before.”

Informed by the research, we are also engaging with industry bodies, including the National Infrastructure Planning Association (NIPA), and pressing Government to legislate for a formal review of all NPSs every five years and to remove the need for an NPS to be suspended whilst it is under review. 

This, the research suggests, will enable an improved and enhanced DCO process to function as effectively as possible and eliminate the risks of decisions being stalled or challenged because an up-to-date NPS is not in place. 

It will also ensure the maintenance of a comprehensive national need case that ties in with the National Infrastructure Assessment (produced by the National Infrastructure Commission) and hopefully, the Government’s long overdue National Infrastructure Strategy. 

Here's some feedback we've recieved so far... 

"This is utterly brilliant. I particularly love the Nationally Settlements Strategy idea which is genius and precisely the answer we’ve been grasping for to all the problems Garden Communities have faced." Charlie Banner QC

“This report -  supported by survey work and written by people who actually use the system rather than just theorise -  is well timed. Over the last ten years, the NSIPs procedure has become an integral part of our planning system and it is right to explore, as part of any radical and comprehensive review of the planning system, how well it Is working, how it can be improved and indeed whether there would be advantages in extending the procedure so that it can be used, with potential amendments,  in relation to other nationally significant development projects.” Simon Ricketts, Town Legal

“It has become quite clear that the current Local Plans system and subsequent application process is not going to deliver the larger scale new communities that we need to deliver for the country. Using the DCO process is an interesting option and would allow a broader consideration of the proposals at a principle and masterplan level while perhaps leaving some of the later detail to local determination. The creation of an NPS for housing across the country would also be a welcome step to the creation of a national spatial plan.” Andrew Taylor, Countryside Properties.

"I found it stimulating, thought-provoking and extremely well researched, thought through and presented…" Anon

“Wow! After spending 30 minutes or so flicking it through it, I have now gone back to the start for a more thorough read. Will revert – the frequency of NPS feels spot on and should sit somewhere between the National Industrial Strategy and National Housing Strategy – nipping and tucking on a 5 year cycle would reflect changes in the market and on the demands of the country nationally and then regionally.” Daniel Harper, SSE

“An interesting thought piece on the potential of Development Consent Orders - one to inform the discussion - explore the potential..” Jan Bessell, Pinsent Masons

“Well done all involved at Barton Willmore, Copper and Womble Bond Dickinson in this thought-provoking work.” Anna Pickering, Highways England

What do you think? Drop us a line.

  

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Lets Find a Way, Covid-19, #letsfindaway, DCO, infastructure