Planning Act 2008: Content of a Development Consent Order required for Nationally Significant Infrastructure Projects
Guidance on the content of a Development Consent Order required for a Nationally Significant Infrastructure Project.
Applies to England
Content of a Development Consent Order
The purpose of this guidance
This National Infrastructure Planning Guidance (“guidance”) is primarily for applicants involved in preparing an application for development consent and provides detail on the content of a Development Consent Order (DCO) and Explanatory Memorandum (EM). It also provides a context for all users of the Nationally Significant Infrastructure Project (NSIP) regime about how the DCO and EM fit into the overall process.
Paragraph 001 Reference ID 04-001-20240430
Published: 30/04/2024
What is the DCO?
Under Regulation 5 of the Infrastructure Planning (Applications: Prescribed Forms and Procedure Regulations 2009 (as amended) (the “APFP Regulations 2009”), an applicant for an Order granting development consent for a proposed NSIP must include in the application, amongst other documents, a draft of the DCO together with an EM which explains the purpose and effect of the provisions in the draft Order.
If approved and made by the Secretary of State, the DCO is the most significant outcome of the NSIP process because it:
- grants the development consent and some other required permissions for the approved project;
- grants the power to compulsorily acquire land and rights, if so required;
- defines the works which have been approved; and
- sets out the requirements (conditions attached to the DCO) which will control the construction, commissioning, operation and, if appropriate, the decommissioning of the approved works.
Where a DCO seeks to apply, modify or exclude a statutory provision, make bylaws, or deal with a matter relating to or ancillary to development as specified in Part 1 of Schedule 5 of the Planning Act 2008 (as amended) (the “Planning Act”), section 117 of the Planning Act 2008 requires the DCO to be in the form of a statutory instrument (SI). In practice, every DCO to date has been made as a SI and therefore this guidance assumes that this will continue to be the case. A draft DCO should therefore be submitted and validated as a draft SI using the publicly available template, and follow the statutory drafting conventions.
Whilst many applicants continue to refer to the lapsed Infrastructure Planning (Model Provisions) Order 2009 in their EM, the requirement under section 38 of the Planning Act to have regard to model provisions containing standard articles for a DCO was removed by the Localism Act 2011. There is therefore no need to include provisions in a draft DCO contained in the Model Provisions Order which are no longer relevant. The current approach to drafting a DCO is set out in this guidance supplemented by precedents from made DCOs in recent years, and the Planning Inspectorate’s advice covering both the DCO and the accompanying EM.
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Published: 30/04/2024
Characteristics of a DCO
The length or scope of a DCO is contingent entirely upon the scale and complexity of the proposed development, the powers granted, modified or excluded, and the number and type of consents and authorisations granted. This means that some DCOs can be very substantial documents, and hence the advice to applicants is to begin preparation of their draft DCO at an early stage during pre-application.
Whilst each DCO must be drafted to meet the specific circumstances of the proposed development, the standard approach is to set out the main provisions as articles grouped into appropriate parts (sections). The following list includes some of the most common provisions included in the articles of a DCO:
- the date upon which the SI comes into force;
- definitions of key terms in the DCO and provisions setting out how to interpret the DCO;
- the principal powers of the DCO including:
- development consent granted by the DCO;
- the parameters of the authorised development and permitted limits of deviation;
- the authorised use;
- the maintenance and operation of the authorised development;
- to whom the powers in the DCO are granted and whether these can be transferred to another body; and
- the application and disapplication and modification of legislative provisions;
- necessary powers in relation to:
- highways works, forming or laying out access arrangements, creating, diverting, restricting or stopping up or otherwise prohibiting traffic on public rights of way, traffic regulation measures and street works;
- supplementary powers such as the discharge of water, authority to survey and investigate land, and works to protect buildings;
- where appropriate, powers of acquisition including compulsory acquisition of land and rights, powers to extinguish public rights of way and override easements and other rights, acquisition or use of subsoil or airspace only, temporary use and possession of land to carry out and maintain the authorised development and recovery of costs of new connections;
- the procedure for obtaining approvals and discharging requirements attached to the DCO and where necessary, an appeals mechanism against refusal;
- protection of statutory undertakers’ interests including apparatus and the recovery of costs;
- where appropriate, a deemed marine licence;
- any necessary operational powers to deal with matters such as felling or lopping of trees and removal of hedgerows; and
- general matters such as the certification of plans and documents, provision for electronic communications, and application of landlord and tenant law.
The powers and provisions in the articles will be amplified and detailed as necessary in the Schedules to the DCO. Each Schedule relating to a specific article in the DCO will set out in detail how, when and where a power can be used with exact reference to areas identified or defined on specified plans. For example, if the DCO contains powers to compulsorily acquire land, the Schedule which corresponds to the articles granting those powers will identify the specific plot of land, which component of the authorised development this relates to and the purposes for which rights may be acquired.
It is standard practice for Schedule 1 to the DCO to set out the precise description of the authorised development and any associated development as numbered works, while Schedule 2 commonly sets out all the requirements attached to the DCO. Other Schedules will typically cover closure and alterations to streets, rights of way, and protective provisions to cover the interests of affected statutory undertakers.
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Published: 30/04/2024
What are the main components of a DCO?
Definitions
Section 235 of the Planning Act contains a range of definitions of terms used in the Act, and definitions in a draft DCO should refer to these to avoid any unnecessary repetition, or where there is conflict provide an explanation and justification in the EM. It is, however, essential that the draft DCO is precise in its meanings and therefore definitions will often need to be bespoke to the development which is the subject of the Order. In all circumstances, definitions should be kept simple and not amount to effectively DCO provisions themselves.
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Published: 30/04/2024
Defining commencement
“Commencement” is a key definition in a DCO as the authorised development cannot legally commence until all pre-commencement requirements have been discharged. For this reason, having received development consent, developers may seek to carry out site surveys and some preliminary works without formally “commencing” the authorised development, while working through the process of discharging pre-commencement requirements. To do this, DCOs normally contain a definition of commencement which allows for specified preliminary works that will not be considered a material operation which begins the development in accordance with section 155 of the Planning Act.
The definition of commencement must not provide for preliminary works which are so extensive that they would be likely to have significant environmental effects themselves, and would normally need consideration and approval by the discharging authority prior to such works starting. Typical examples of matters which are not acceptable preliminary works include major earthworks, clearance of trees and ground clearing, activities affecting protected species or archaeological remains, unless appropriate controls are secured in another manner.
The proposed definition of commencement and any permitted pre-commencement works or permitted preliminary works will be carefully considered by the Examining Authority throughout the course of an examination of the application with reference to the specific circumstances of the proposed works.
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Published: 30/04/2024
Defining ‘maintenance’
Most DCOs will require a provision to maintain the authorised development. The definition of maintenance must not be so extensive as to permit the replacement of the consented development with the construction of what is effectively a different project. Neither should maintenance activities result in adverse significant environmental effects not already identified or assessed as part of the Environmental Statement (ES) submitted in relation to the proposed development. It is therefore appropriate to include such a restriction in the way maintenance is defined in the DCO.
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Published: 30/04/2024
Description of the development
It is essential that the drafting in the DCO accurately defines both the land over which powers are required and the works to be undertaken. In turn these must be consistent with the land and works plans submitted with the application under Regulation 5(2)(i) and (j) and (o) of the APFP Regulations 2009.
The Planning Act provides for developments and works which are associated and/or ancillary (“associated development”) to the principal development (or NSIP) to be included with the authorised development. The guidance covering associated development and the provision of housing in NSIPs provide examples appropriate to different types of NSIP, recognising that each case will have its own range of such matters and that technological innovations may give rise to new types of associated development not yet identified.
But in all cases, the key considerations are that associated development and works proposed to be included in a DCO must be demonstrably linked and subordinate to the NSIP, and required to ensure it can be built or operated. It is not acceptable to propose associated development in a DCO which is self-contained or effectively a separate NSIP development in its own right. Further guidance is provided separately on associated development applications for major infrastructure projects.
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Published: 30/04/2024
Parameters and limits of deviation
In a situation where the design of the proposed development is contingent on continuing detailed studies and refinement, the environmental assessment will be carried out on a worst case or ‘Rochdale Envelope’ basis. The approach to describing the development in the DCO must then be through parameters setting out the maximum permitted dimensions of the physical elements. However, these must be no more than necessary to accurately contain the proposed development.
Some DCOs require the final positioning of works to be subject to detailed design or site investigation to achieve an optimum scheme. This may be the case with highway proposals or the micro siting of electricity pylons for example. The DCO will usually provide for the precise location of numbered works to be subject to horizontal and/or vertical limits of deviation. In all cases these limits should be specific to the individual works and kept to the minimum.
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Published: 30/04/2024
Application, modification or exclusion of statutory provisions
A DCO may apply, modify or exclude an existing statutory provision, and the proposed power must be amplified and detailed in a corresponding Schedule. This must identify the provision to be changed, the Act or SI number of the provision as applicable, clearly detail the changes and when the changes will come into effect.
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Published: 30/04/2024
Inclusion of other consent requirements in a DCO
A DCO can also include powers which remove the need to obtain certain additional authorisations, listed in Schedule 2 of the Infrastructure Planning (Interested Parties and Miscellaneous Prescribed Provisions) Regulations 2015 (as amended) (the IPMPP Regulations 2015) and the government is keen that maximum use is made of these provisions, as explained in pre-application guidance. However, it is necessary for the authority responsible for granting the authorisation to consent to this process and consequently applicants should consider the desirability for such authorisations to be included in a DCO and discuss these with the appropriate authorities during the pre-application stage.
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Published: 30/04/2024
Compulsory acquisition and temporary possession
The Planning Act provides for the inclusion of powers in a DCO to cover compulsory acquisition and temporary possession of land and rights, and many DCOs authorise interference in land to facilitate construction. An applicant may also include an article to extinguish and suspend private rights over land it is acquiring, or it already owns.
There are particular provisions in Chapter 1 of Part 7 of the Planning Act relating to statutory undertakers, Crown land, commons and open spaces and land held inalienably by the National Trust.
Applicants are reminded that Regulation 6 of the IPMPP Regulations 2015 limits the period in which compulsory acquisition powers can be exercised to five years, though a longer or shorter period can be specified in the DCO itself under section 154 of the Planning Act. However, given the uncertainties that a lengthy delay to implementing approved compulsory acquisition powers can have for some landowners, seeking a period of longer than five years will require justification to persuade the Secretary of State that this is warranted.
It may be appropriate to include a power to impose restrictive covenants over part of the land which is subject to compulsory acquisition or use under the DCO, and such cases will need to be explained and justified in the EM. Where land is only proposed to be subject to powers for the compulsory acquisition of land and/or the imposition of restrictive covenants, DCO provisions must identify the land to which they relate and the nature of the restrictive covenant to be imposed.
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Published: 30/04/2024
Protective provisions
Protective provisions can be included as Schedules to the DCO where a NSIP may affect other assets. They are usually agreed with key statutory undertakers, such as utility companies, but may also need to be agreed with other bodies.
Applicants should expect to agree the form of protective provisions with the relevant parties for inclusion in the draft DCO prior to submitting the application for development consent. Where agreement on protective provisions has not been reached during the pre-application stage, applicants should include their preferred drafting taking into account the standard protective provisions commonly used by the relevant party (usually statutory undertakers) and endorsed in recent DCO decisions. It is not acceptable to submit a draft DCO with blank schedules for protective provisions on the basis these will be supplied during the examination, and to do so means the application is highly unlikely to be accepted for examination by the Planning inspectorate under section 55 of the Planning Act.
Most statutory undertakers have now developed their own preferred form of protective provisions which is very helpful to the preparation of the draft DCO. However, these must be adapted as necessary so they accurately reflect the proposed development. They should also not simply negate other provisions of the DCO, particularly concerning proposed compulsory acquisition of statutory undertakers’ land.
Examining Authorities are expected to ensure that the final form of a recommended DCO contains protective provisions which are bespoke to the application under consideration.
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Published: 30/04/2024
Deemed Marine Licences
Subject to geographic restrictions, a DCO may deem a Marine Licence (DML) to have been granted under Part 4 of the Marine and Coastal Access Act 2009 for the activities specified in the DCO subject to any conditions. This will be provided for in an article with the DML itself contained in a specific Schedule.
The Marine Management Organisation (MMO) must be involved in the form and content of the proposed DML and the conditions to which it should be subject as it will be the body discharging them. Where applicants choose to have a marine licence deemed by a DCO, they should seek to agree the draft DML with the MMO prior to submitting the application to the [Planning Inspectorate (further advice is provided by the Planning Inspectorate on working with the MMO).
The DML must be drafted so that it is effectively an independent legal document, for example relevant definitions and project works must be within the DML. Furthermore, requirements in the DCO must not conflict with conditions attached to the DML. The DML will be approved as part of a DCO, but there are limitations on what changes can be made to an approved DML as a consequence of seeking a material or non-material change to an approved DCO under Schedule 6 of the Planning Act 2008.
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Published: 30/04/2024
Appeals mechanism
A DCO typically provides for the applicant to appeal against a decision of a discharging authority (where that discharging authority is a planning or highway authority) concerning requirements where it disagrees with a decision. There are two possible approaches, and it is for the applicant to determine which route is best for the project in question.
The first is to import the standard appeals process from the Town and Country Planning Act 1990, with modified versions as appropriate of sections 78 and 79 of the Act. There are many examples from made DCOs to guide applicants.
The second is to set out in detail in the draft DCO a bespoke appeals mechanism, and in this case the Planning Inspectorate has produced standard drafting, which will need to be tailored to the specific circumstances of the proposed development.
In some cases, arrangements between the Secretary of State and promoters mean that the Secretary of State is the discharging authority. In those cases, the decisions of the Secretary of State are unlikely to be the subject of an appeals process, and this should be confirmed in the EM.
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Published: 30/04/2024
Hedgerows and trees
Applicants may wish to include an article within the draft DCO to allow the removal of hedgerows (if necessary) for the purposes of carrying out the authorised development without the need to first secure consent under the Hedgerows Regulations 1997. Such an article can either refer to the specific hedgerows intended for removal described clearly in a Schedule, or drafted to include powers for general removal of hedgerows subject to appropriate controls and mitigation being included.
Similarly, applicants may also wish to include powers allowing them to fell, lop or cut back roots of trees subject to a Tree Preservation Order (TPO). This power can extend to trees which are otherwise protected by virtue of being situated in a conservation area. The key requirement is to clearly set out the conditions which must be met before the power can be used, specifically to identify the affected trees and the works permitted to each tree in a Schedule.
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Published: 30/04/2024
Certification of plans and documents
It is normal to provide an article and Schedule in the draft DCO listing a range of plans and other documents which are required to be certified as true copies by the Secretary of State following approval of the DCO. If this includes the ES as a whole, certification is a lengthy and time-consuming task and sometimes is not completed until well after the approved development is well into implementation.
Whilst there must be no ambiguity over what has been approved and the plans and documents which describe this, applicants should limit those plans and documents needing certification to those which are secured under the DCO and particularly which may be different to the version submitted as part of the application.
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Published: 30/04/2024
Requirements
Section 120 of the Planning Act provides that a DCO may impose requirements in connection with the development for which consent is granted. Such requirements may correspond with conditions which could have been imposed on the grant of planning permission under the Town and Country Planning Act 1990. In this regard, the relevant paragraphs of the National Planning Policy Framework and associated Planning Practice Guidance concerning conditions will generally apply. Requirements should therefore be precise, enforceable, necessary, relevant to the development, relevant to planning and reasonable in all other respects.
The body to whom the applicant will need to apply for the discharge of each requirement must be named in the DCO. For some requirements this will typically be the relevant planning authority for the area(s) within which the development is situated, sometimes taking into account the views of a named statutory body. In other cases, it may be a statutory body directly or the Secretary of State. Where arrangements exist between promoters and the Secretary of State, these will not ordinarily be recommended for amendment by the Examining Authority. Unless such arrangements exist, applicants are encouraged to agree wording with the discharging body as early as possible and ideally prior to submission of the application to the Planning Inspectorate.
Requirements can impose an obligation on the applicant to begin development within a certain date of the DCO coming into effect. They can also be drafted to ensure the authorised development is carried out in general accordance with design drawings and constructed in accordance with a written phasing scheme. There are instances where proposed requirements in a DCO will interact with the conditions of an existing planning permission for development in or adjacent to the site. Applicants are therefore encouraged to consider these thoroughly to ensure that any conflicts are identified and a means of resolving them put forward.
An application may have significant adverse environmental effects that require mitigation; such effects will be identified in the accompanying ES and/ or relevant environmental information. Any mitigation measures relied upon in the ES must be capable of being delivered, often through relevant management plans such as a Code of Construction Practice, or a Construction Environmental Management Plan and/or a Site Waste Management Plan. These mitigation measures must be appropriately secured, and this will generally be achieved through the requirements in the DCO.
Requirements can impose an obligation on the applicant to seek approval of final details of the proposed development prior to construction. These should typically be drafted such that they are not tailpiece requirements which simply provide for their own variation, but at the same time should not prevent the discharging authority from approving details which would lead to environmentally better outcomes where appropriate.
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Published: 30/04/2024
DCO revisions
Changes to the wording of a draft DCO may well be put forward by the applicant and others during the course of the examination. This may be for several reasons such as responding to:
- questions raised by the Examining Authority;
- representations made by interested parties; or
- agreements reached with other interested parties, for example in relation to protective provisions or revisions to requirements.
As explained in the fast-track guidance, it is most unlikely that any but minor changes are possible to an application accepted for a fast-track examination otherwise the completion of the examination within four months would be at substantial risk.
Given the central importance to the NSIP consenting process of the DCO itself, it is in everyone’s interests that it is given thorough scrutiny by the Examining Authority during the examination and amended as appropriate so that the final form is in an optimum state to recommend to the Secretary of State.
The examination timetable will make provision for revised version(s) of the draft DCO to be submitted by the applicant. As the form of the draft DCO at the end of the examination can often differ substantially from that submitted as part of the application it is important that there is a clear audit trail through tracked change versions to identify both changes to the draft DCO made during the examination and the reasons why those changes have been made. This will greatly assist the Secretary of State in understanding how the final form of any DCO that is recommended by the Examining Authority has evolved. A validated word version of the final DCO (in a Statutory Instrument template) is also required by the Secretary of State and should be submitted before the end of the examination.
Once approved by the Secretary of State, a DCO can only be altered in line with the process set out in section 153 and Schedule 6 to the Planning Act.
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Published: 30/04/2024
What is the Explanatory Memorandum (EM)?
Regulation 5(2)(c) of the APFP Regulations 2009 requires that the draft DCO must be accompanied by an EM explaining the purpose and effect of each provision in a draft DCO. The EM is used by the Examining Authority and the Secretary of State as decision-maker to help understand what is proposed in the draft DCO, why particular provisions have been included and from where the wording has been derived. Such information therefore needs to be more than just a description of the proposed powers.
A justification must be provided in the EM for every article and requirement, explaining why the inclusion of the power is appropriate in the specific case. The extent of justification should be proportionate to the degree of novelty and/ or controversy in relation to the inclusion of that particular power. There is no requirement to explain where and how the DCO drafting departs from the model provisions set out in the Infrastructure Planning (Model Provisions) (England and Wales) Order 2009, which has now lapsed.
There is no difficulty with explaining that the formulation of a particular article or requirement has been used in other made DCOs, but a justification must be provided as to why this is appropriate in the specific circumstances of the draft DCO. A statement that this is simply a precedent provision will not suffice. Where the principle of the provision is well established, the detailed drafting should follow the relevant Government Department’s preferred drafting unless there are particular circumstances arising from the nature of the specific NSIP.
For unprecedented provisions, the EM must adequately explain why and how draft DCO provisions have been tailored to meet the specific needs of a particular NSIP and may be required to address novel issues.
As with the draft DCO which will be altered and revised during the course of the examination, so too will the reasoning in the EM need to be updated accordingly. A fully updated EM must be submitted with the final version of the applicant’s draft DCO towards the end of the examination, or earlier where requested by the Examining Authority.
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Published: 30/04/2024