The role of local politics in DCO decision making

Answer

There are undeniable complexities in the links between politics and the planning system, with both national and local politics having a role to play. One area of the planning system where this is evident is within the process for obtaining a Development Consent Order (DCO) for the construction and operation of a nationally significant infrastructure project (NSIP), commonly referred to as the NSIP regime. NSIPs are major infrastructure projects that meet criteria set out in the Planning Act 2008 (PA 2008). Due to their size, complexity and national importance, permission to build NSIPs must be granted at a national level, in the form of a DCO, as opposed to a planning permission granted by the local authority.

Following a lengthy six-stage process, the decision on whether to grant a DCO is made by the relevant secretary of state. On the face of it, since the decision is made at a national level, one would think that the NSIP regime doesn't allow for the influence of local politics. However, when consideration is given to the entire breadth of the NSIP regime, local politics can have a considerable influence.

It's worth noting the six stages:

• pre-application;
• acceptance;
• pre-examination;
• examination;
• decision; and
• post-decision.

Pre-application

The lengthiest stage, pre-application, not only involves the meticulous preparation of a significant number of application documents and designs, but also a statutory requirement to carry out extensive consultation with the local community, landowners and the local authority. The applicant (developer applying for a DCO) will then submit the application to the planning inspectorate who has 28 days to decide, on behalf of the secretary of state, whether to accept the application for examination.

Acceptance and pre-examination

If the application is accepted, the pre-examination stage commences and an examining authority (one or more planning inspectors) will be appointed on behalf of the secretary of state. During this stage, the applicant must publicise that their application has been accepted for examination, and interested parties can register to take part in the examination process.

Examination

The examination stage is a statutory six-month period where the examining authority will ask questions about the application and invite comments from interested parties (including local authorities) both in writing and at hearings. The examining authority will pose written questions and request information from certain people or organisations, including the local authority.

Decision

Following the conclusion of examination, the examining authority has three months to consider the application and provide a written recommendation to the secretary of state. The secretary of state then has three months to determine whether to grant consent for the application. If they do, they’ll make the DCO. Unlike planning permission granted by a local authority, a DCO is a statutory instrument that grants the applicant all powers required for the construction and operation of the NSIP, including powers to acquire land compulsorily, and as a piece of legislation, it can disapply or amend other legislation where required. Although the examining authority provides a written recommendation, the secretary of state can (and sometimes will) make a decision contrary to this.

The role of local politics in the current regime

Although NSIPs are governed by national planning law and policy, their local impact calls for a dedicated consultation process during the pre-application stage. Under the PA 2008, consultation with local authorities, landowners and local communities is a statutory obligation, and it’s during this stage where local politics are most entwined with the NSIP regime.

The applicant will, at an early stage, seek to engage with the local authority (or authorities) to obtain advice as to how they should conduct community consultation. The applicant must then prepare a Statement Of Community Consultation (SOCC), setting out how they intend to conduct their consultation, which then must be carried out in accordance with the SOCC. Following the conclusion of consultation, the applicant must compile a consultation report – a key document submitted as part of the DCO application. This demonstrates the level of consultation the applicant has engaged in, explains how they’ve responded to feedback from consultees and, where applicable, provides justification as to why proposals haven’t been amended in response to feedback. When the planning inspectorate is deciding whether to accept the application for examination, considerable weight is given to the consultation report, alongside submissions made by the local authorities as to whether consultation has been 'adequate'. This is a key step in an application being accepted and an opportunity for local authorities to influence an application's acceptance, and thereby possibly cause a project undue cost and delay.

Political ideologies can influence the way a local authority scrutinises the application, and local politicians may take advantage of the fact that the general public tends to lack an understanding of the meaning and purpose of the consultation stage of the NSIP regime. This lack of understanding is particularly evident in relation to renewable energy infrastructure for which the need is set at a national level, by government policy. It’s often not understood that consultation, in relation to renewable energy NSIPs, isn’t a debate of whether there’s a need for such developments, but rather a process for determining how they can best be incorporated into the local area.

If an application is accepted for examination, the local authorities continue to engage with the applicant and will produce a statement of common ground, highlighting areas of agreement between the parties, and those subject to ongoing negotiations. Local authorities are also able to submit relevant representations to the planning inspectorate. Throughout the examination, the local authority remains a key party.

Following the close of examination, the examining authority will consider the application and provide a written recommendation to the secretary of state who will determine whether to grant consent.

Under section 104 of the PA 2008, although national policy forms the basis of the decision, the secretary of state must have regard to a variety of factors in coming to a decision on a DCO application. One such factor is local policy, to which material consideration must be given. Consequently, local politics, to the extent that it’s informed the development of local policy, can influence a decision on granting consent. Of course, local policy can’t be changed overnight, and so it may not reflect the stance of the current local politics and may create a juxtaposition between the views being expressed by a local authority and the local policy in place.

Another factor to which the secretary of state must have regard under section 104 of the PA 2008 is the local impact report. This is prepared by the local planning authority to detail specific local impacts of the applicant's proposals. It shouldn’t promote a particular political agenda, as it’s intended to purely highlight the potential impacts on the local area and local communities, but nonetheless, is a key area of influence for local politics on decision making.

Once a DCO has been made, there’s a six-week period during which anyone can challenge the decision in the High Court, known as a judicial review. This right may be exercised for political reasons. Reform UK has made it clear that, due to its strong stance against net zero, it intends to obstruct green energy projects in areas such as Lincolnshire. Even where a consent has been granted against local objection, judicial review can be a powerful tool for those opposing development, causing substantial delay and costs, even if a challenge is unsuccessful, something which may deter developers from making future applications for DCOs in that area. This is one reason why the ability to bring a judicial review is an area of reform being considered under the Planning and Infrastructure Bill.

When a DCO is granted, it’ll contain 'requirements', which must be discharged (similar to planning conditions). For the vast majority of DCOs, this gives the local planning authority a great deal of influence over the details of a project once a DCO has been granted, as they’re responsible for discharging these requirements. The local authority can complicate this, making the process unnecessarily time consuming, thereby delaying construction. If a local authority is acting unreasonably in refusing to discharge requirements, or causing unreasonable delays, this can be appealed, but this will not alleviate delays. There are a few exceptions to this, most notably, National Highways schemes, where the applicant gives the function of discharging requirements to the secretary of state for transport instead of the relevant local authorities. Given the current political climate, more applicants may seek to adopt this approach, reducing the influence of the local planning authority, thereby avoiding the risk of delays due to local political influence.

As a DCO is a statutory instrument, a breach of its terms amounts to a criminal offence. Under a DCO, the local planning authority is the enforcing authority and therefore responsible for enforcement where any of the terms have been breached. This power could be used by the local authority to subject the project to in-depth scrutiny, although so far, local authorities have rarely used their powers of enforcement.

The proposals in the Planning and Infrastructure Bill

In an attempt to reduce the delivery timescale for NSIPs, the Planning and Infrastructure Bill will remove the statutory requirement for pre-application consultation. The intention isn’t to remove community engagement from the process, instead, it’s expected that new statutory guidance will be introduced, emphasising that adequate pre-application engagement and consultation will remain a key factor in deciding whether an application will be accepted for examination. It’s intended to allow the pre-application process to become more flexible so that community engagement and consultation can be adapted to specific projects. The current requirements are restrictive in nature, with everyone consulted on everything. This leaves room for argument that applicants haven’t complied with strict procedural steps, increasing the risk of challenge and resulting in projects being delayed as developers undertake further rounds of consultation to reduce that risk. It’s hoped that the proposed changes will result in more effective consultation and engagement, but the impact this will have on the influence of local politics remains to be seen.

The Planning and Infrastructure Bill also proposes changes to the judicial review process in relation to NSIPs, removing the initial paper permission stage and taking claims straight to an oral hearing. These changes will also see the removal of the right to appeal where the grounds are deemed to be totally without merit. All claims will be heard at an oral hearing, and meritless claims will be refused permission to appeal. It’s worth noting that a claim will only be prevented from being appealed to the Court of Appeal where it’s totally without merit. In all other cases, the ability to appeal the refusal of permission to the Court of Appeal will remain. This will ensure that the right to challenge DCO decisions is protected, while seeking to prevent unnecessary delays caused by challenges that are completely meritless.

Without doubt, despite being a regime for consenting national infrastructure, local politics have a role to play in DCO decision making, even though the influence may be more subtle. In the current political climate and given the proposals contained within the Planning and Infrastructure Bill, it’s likely that we’ll see a change in the level of influence over the coming years.

Phillippa Collins is a trainee solicitor at Womble Bond Dickinson