DCO Process Top FAQs Stages of the DCO Process: Pre-Application & Application

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1 DCO Process Top FAQs Stages of the DCO Process: Pre-Application & Acceptance Pre-Examination & Examination Decision & Post-Decision Click to jump to a section... Questions Answers Pre-Application & Application Abolition and Transitional Matters Will the abolition of the IPC affect imminent and ongoing applications? The Infrastructure Planning (Transitional Provisions) Direction 2012 came into force on 1 April It applies to both proposed and submitted applications where formal notice (under section 46) was received by the IPC. Projects that did not reach this stage will not be covered by the Direction. Under the Direction, anything done prior to 1 April 2012 in relation to such projects (by the promoter and by the IPC) will have continuing effect.

2 National Policy Statements (NPSs) / Policy What NPSs are in place? What NPSs are in the pipeline? National Policy Statements What happens if no NPSs are in place? NPPF Is the National Planning Policy Framework (NPPF) relevant to NSIPs? NPSs underpin the DCO examination and decision making process. The energy NPSs were designated on 19 July 2011 and comprise: EN-1 Overarching Energy EN-2 Fossil Fuel Electricity Generating Infrastructure EN-3 Renewable Energy Infrastructure EN-4 Gas Supply Infrastructure & Gas and Oil Pipelines NPS EN-5 Electricity Networks Infrastructure NPS EN-6 Nuclear Power Generation NPS - Volumes I &II The NPS for Ports was designated on 28 February The NPS for Waste Water - A framework document for planning decisions on nationally significant waste water infrastructure was published on 21 February and designated after a period of 21 days. The decision maker (post Localism Act 2011) is the Secretary of State who must have regard to: any Local Impact Report; any matters prescribed in relation to the development; and any other matters which the Secretary of State thinks both important and relevant to the decision (including Planning Policy Statements, Planning Policy Guidance and any draft NPS). Potentially yes. Although the NPPF states that it does not contain specific policies for NSIPs, it goes on to state that These are determined in accordance with the decision-making framework set out in the Planning Act 2008 and relevant national policy statements for major infrastructure, as well as any other matters that are considered both important and relevant (which may include the National Planning Policy Framework). National policy statements form part of the overall framework of national planning policy, and are a material considerations in decisions on planning applications. So, matters that the Government consider 'important and relevant' to decisions on NSIPs may include the NPPF. In addition, the NPPF also provides that local planning authorities should work with other authorities and providers to take account of the need for strategic infrastructure, including nationally significant infrastructure within their areas. Timescales Are the pre-application, application and examination deadlines calendar or working days? Fees What are the fees for a DCO? All deadlines specified under the Planning Act 2008 are calendar days apart from that set by Regulation 10 of the Infrastructure Planning (Applications: Prescribed Forms and Procedure) Regulations 2009 which provides for working days relating to the notification of an accepted application. Fees are set out in the Infrastructure Planning (Fees) Regulations In summary: Applications under sections 52 and 53 of the Planning Act 2008 for rights of entry and assessing interests - 1,000. Venue costs may be charged when the applicant does not provide a venue for a hearing. DCO application fee - 4,500. Examination fees include a lump sum payment (depending on the number of appointed persons) plus a daily handling fee and a final payment as follows: 13,000 (single appointed person), 30,000 (panel of three appointed persons), 43,000 (panel of more than three appointed persons) lump sum; 615 per day (single appointed person), 1,340 per day (panel of three appointed persons), 2,040 per day (panel of more than three appointed persons) daily fee; 1,230 per day (single appointed person), 2,680 per day (panel of three appointed persons), 4,080 per day (panel of more than three appointed persons) final payment minus initial payment.

3 Thresholds How do we know what the thresholds are for NSIPs? The Planning Act 2008 established a new statutory regime for determining Nationally Significant Infrastructure Projects (NSIPs). NSIP types and thresholds are defined in Part 3 of the Planning Act 2008 and promoters for these types of development must comply with the DCO process. Adding to the categories of NSIPs defined in the Planning Act 2008, a draft 2012 Order classifies major sewerage projects as NSIPs. The Infrastructure Planning (Waste Water Transfer and Storage) Order 2012 was laid before parliament on 26 March Applicant s Name Is it possible to change the name of an applicant part way through the DCO process? Project Changes Can project changes be made? At the pre-application stage, there is no barrier to adding 'partners' to the details for the proposed NSIP, all of which will be published on the Planning Inspectorate s (PINS) website and available for the public to inspect. At the pre-application stage, it is possible to 'change' the project in order to respond to consultation responses. However, if a project is changed, further consultation may be required in accordance with the statutory requirements. So robust preparation is key. The responsibility for making a DCO rests with the decision maker (i.e. the Secretary of State) and under section 114 of the Planning Act 2008 the decision maker has the power to make a DCO which is different from that originally applied for by the promoter. Statement of Common Ground Do Statements of Common Ground need to accompany the application for a DCO? Guidance and advice (see further PINS Advice Note 8: "How to get involved in the planning process") indicates that agreements reached between promoters and statutory bodies should be documented as such statements (i.e. statements of common ground) and accompany the application. However, there is no statutory requirement to do so. The Statement of Common Ground is important as it may limit the issues that will be discussed during examination. Once an application for a DCO is accepted, the Examining Authority will set a provisional timetable for the examination which will include a date for such statements of common ground to be provided. The timetable will be confirmed following the preliminary meeting. Are statutory consultees under a statutory obligation to respond to pre-application consultation for proposed NSIPs? Who must be consulted? No. There is no statutory obligation in the Planning Act 2008 but as the DCO process is heavily 'front loaded' there is little scope for applications to be materially revised once submitted. Hence, the aim is to alert promoters of issues and concerns as soon as possible. Under section 42 of the Planning Act 2008, promoters must consult: statutory consultees (i.e. 'prescribed persons' listed in Schedule 1 to the Infrastructure Planning (Applications: Prescribed Forms and Procedure) Regulations 2009; local authorities prescribed in section 43 of the Planning Act 2008; the Greater London Authority if the site is situated in Greater London; and the persons prescribed in section 44 of the Planning Act 2008 including owners, lessees, tenants, and those with an interest in the land. Under section 47 of the Planning Act 2008, promoters must consult the local community. What is the difference between "statutory consultees" and "interested parties"? Once an application is 'accepted' by the Planning Inspectorate (PINS), the promoter must set a deadline for 'relevant representations'. Any member of the public who makes such a representation becomes an 'interested party' for the purposes of examining the application, as do statutory consultees, all of whom are entitled to take part. Promoters are advised to consult as widely as possible.

4 What local authorities should I consult? What if a proposal for an NSIP covers a number of local authority areas? Do I have to summarise and respond individually to every consultation response made in the DCO process or can I do general summary responses by category of consultation response? EIA When should I engage with stakeholders on EIA matters? EIA What is Preliminary Environmental Information (PEI)? Local authorities are statutory consultees and must be consulted at the pre-application stage. The provisions are complex but broadly, if a proposal affects a number of local authority areas, the relevant local authorities that must be consulted are: authorities where the site falls within their area; and adjacent authorities where their boundaries abut the authority or authorities where the site is located and the site is within one authority's boundary. The short answer is that it is prudent to summarise and respond in brief terms individually to every consultation response made in the DCO process. Most DCO applicants have been doing this, in spite of it being time consuming. PINS Guidance Note 14 ( Compiling the Report ) refers to a list of the individual responses being provided and categorised in an appropriate way in relation to consultations undertaken. It refers to a summary of responses by appropriate category and also that within those categories sorting responses according to whether they contain comments which have led to any changes or no changes. In practice, it is difficult to follow the guidance as to how consultation responses have led to changes or no changes within those categories without having the individual response summaries listed. Most DCO applications to date have therefore included individual summaries of individual relevant responses in their section 42 reports as well as in the section 37 reports. This also assists in demonstrating section 49 compliance. The recent (July 2012) PINS section 55 acceptance checklist report for the Roosecote biomass power station highlights that, in deciding whether to accept a DCO, PINS is reviewing the group summaries of relevant responses and cross-checking that with issues raised in the individual summaries to check whether they were properly captured in the response to group summaries. In that case, some instances of issues being raised in the individual summaries but not adequately tackled in the group summary responses were cited, but overall the consultation material was considered satisfactory for acceptance purposes. Whilst there is some comfort from that PINS may not refuse acceptance due to there being a few instances of a lack of clarity in this respect, it reinforces the need for a thorough approach to be undertaken. Preliminary Environmental Information (PEI) must be made available at the pre-application stage if the project is 'EIA development' (which most if not all NSIPs will be). The Statement of Community (SOCC) must state whether the proposal is EIA development or not and how the PEI information is to be consulted upon. The Infrastructure Planning (Environmental Impact Assessment) Regulations 2009 (as amended in 2012) will apply. The Infrastructure Planning (Environmental Impact Assessment) Regulations 2009 define PEI as information set out in part 1 and schedule 4 to the Regulations which has been compiled by the applicant and is reasonably required to assess the environmental effects of the development (including any associated development). Consideration should be given to: the development including physical characteristics, operation, production processes, residues and emissions; the main alternatives together with reasons and taking into account environmental effects; those aspects of the environment likely to be significantly affected by the proposed development; the likely significant effects of the proposed development; the measures to prevent, reduce and where possible offset any significant adverse effects; and any difficulties. No reference is made to part 2 of schedule 4 which sets out the information that must always be included in an Environmental Statement. In short, the PEI does not therefore need to comprise a draft ES in its entirety but will need to be sufficient to reasonably assess the environmental effects of the development.

5 EIA Will transboundary effects be taken into account? Yes (see PINS Advice Note 7 "Environmental Impact Assessment: Screening and Scoping"). All NSIPs that are subject to EIA (again, which most if not all NSIPs will be) will be screened to determine what, if any, significant effects on the environment of other European Economic Association (EEA) states there are. The Government must ensure that it does not derogate from its obligations under the Convention on Environmental Impact Assessment in a Transboundary Context (Espoo 1991) and EIA regime. Promoters are encouraged to go to PINS with details that identify possible significant transboundary impacts, or if they consider that there are none, the reasons why. EIA Do the DCO 'Model Provisions' still apply? The Model Provisions (the Infrastructure Planning (Model Provisions) (England and Wales) Order 2009) are now repealed as the statutory basis for the Order in the Planning Act 2008 has been repealed by the Localism Act Promoters may still refer to the repealed Order for assistance if they choose. Revised non-statutory guidance to replace the Model Provisions is being considered by Government. DCO What is associated development? It will be determined on a project-by-project basis by the Secretary of State, taking into account the provisions of the Planning Act DCLG guidance "Guidance on associated development: Applications to the Infrastructure Planning Commission" sets out the principles underpinning the concept, together with examples, and provides that: "Associated development should not be an aim in itself but should be subordinate to and necessary for the development and effective operation to its design capacity of the NSIP that is the subject of the application." It cannot include dwellings, or development in Scotland, or in waters adjacent to Scotland. In addition, it does not include development in Wales, except for surface works, boreholes or pipes associated with underground gas storage by a gas transporter in natural porous strata. DCO What are ancillary matters? DCO Do I have to apply for all necessary elements of the project, such as grid connections, in one DCO? Site Preparation Can preliminary works be carried out before the DCO is granted? Transparency Are all queries and responses made public? Section 120 (5) and schedule 5 to the Planning Act 2008 make provision for ancillary matters (i.e. consent for legal powers not consisting of development). For example, the acquisition of land, compulsorily or by agreement; the creation, suspension or extinguishment of, or interference with, interests in or rights over land; the abrogation or modification of agreements relating to land; or the carrying out of specified excavation, mining, quarrying or boring operations in a specified area. No although the energy National Policy Statements encourage projects being covered by single DCO applications, they do acknowledge that there may be situations where a project can be brought forward under more than one DCO. Any decision to split a project will need to be carefully considered, logical and justifiable. In principle, yes, applications can be made to the local planning authority (or other relevant body) for early works, but care must be taken to ensure that the works are not actually part of an NSIP (as a DCO is a legal requirement for the NSIP). Consideration should also be given to potentially complex issues such as environmental impact assessment and the Habitats Regulations. DECC and DCLG jointly issued a letter in July 2009 confirming this in-principle position for new nuclear power station proposals and also noting that early works consent may be granted subject to a requirement to remove the works if a DCO is not granted. Pursuant to the Planning Act 2008, the Examining Authority must disclose all advice it provides to applicants. Accordingly, responses to all telephone and queries will appear in the online register of advice. A careful approach is advised given the transparency rules.

6 Pre-Examination & Examination Information Requests Can the Examining Authority request further information? Issue Specific Hearings What format does the examination take? The Planning Act 2008 and the Infrastructure Planning (Examination Procedure) Rules 2010 provide for the Examining Authority to request further information and/or clarification. The Examining Authority may also request further information and comments from interested parties. If the Examining Authority considers that an environmental statement is inadequate or incomplete, it can require the applicant to provide further environmental information under the Infrastructure Planning (Environmental Impact Assessment) Regulations The NSIP regime was enacted in part to try to make the consenting process quicker for infrastructure projects one way it seeks to achieve that is by favouring written evidence over hearings. The process therefore involves a number of rounds of written submissions these can include the relevant and written representations, responses to questions raised by the examining inspector and the local impact report (for local authorities). Following each round, there is an opportunity for other parties to respond, again in writing. Decision & Post Decision Whilst interested parties and those affected by a project have the right to request open floor or compulsory acquisition hearings, it is at the examining inspector s discretion as to whether to hold issue specific hearings, and if they do, what is to be discussed. So far a number of examinations have included issue specific hearings on the form of the DCO, requirements and obligations concentrating on the project mitigation issues. Hearings have also been held on specific topics (such as transport or ecology) or in relation to specific locations (such as an affected town or village) where the examining inspectors require further information on these. There is effectively a presumption against cross examination issue specific hearings are run as round table sessions, with the Panel acting in an inquisitorial/facilitating role. Enforcement Who is responsible for enforcing the requirements set out in a DCO? Nuisance Can claims in nuisance be brought by those affected by a project? Post-Grant Changes Can changes be made to a DCO once granted? The DCO itself will need to identify appropriate bodies from whom approval is required, for example, for monitoring schemes and designs. The requirements in the DCO Model Provisions Order listed the IPC as the approving body. Reference should now be made to the Secretary of State or if appropriate the local planning authority. The duty to monitor and enforce requirements and other provisions will rest with the relevant enforcing body, in practice in most cases, the local planning authority. In the absence of contrary provisions, section 158 of the Planning Act 2008 provides a defence to civil and criminal claims of nuisance for development authorised by a DCO. The Planning Act 2008 does not preclude the service of an abatement notice (section 80 of the Environmental Protection Act 1990) but the Planning Act 2008 provides a defence. Yes. Changes can be made to correct errors in a DCO in accordance with section 119 of the Planning Act 2008 ('correctable errors'). Also, non-material changes can be made to a DCO subject to the satisfaction of the Secretary of State that any changes to be made are 'insignificant' and 'negligible' under section 153 and schedule 6 to the Planning Act 2008 ('non-material changes'). Schedule 6 to the Planning Act 2008 also gives the Secretary of State powers to make material changes to or revoke a DCO ('material changes and revocation'). There is no definition of what constitutes 'material' change. The process is set out in the Infrastructure Planning (Changes to, and Revocation of, Development Consent Orders) Regulations 2011.

7 Post-Grant Changes Can changes be made to a DCO once granted? PINS Advice Note 6 "Preparation and Submission of Application Documents", however, does reiterate the Examining Authority's approach that "Once an application has been submitted and accepted [by the examining authority], there will only be limited opportunity to submit any additional or amended information. In particular, there is little or no scope for the acceptance of any material revisions to a scheme during the examination of the application." Notwithstanding this, a letter from the Planning Minister to the IPC in November 2011 did recognise that "it may become necessary to make material changes to an application after submission through no fault of the applicant, for example where the regulatory environment changes or information comes to light which could allow the impacts of the project to be reduced", which will give promoters a little comfort. If you would like to discuss any of the issues raised here, please contact: Richard Ford T: +44 (0) M: +44 (0) E: richard.ford@pinsentmasons.com Gordon McCreath T: +44 (0) M: +44 (0) E: gordon.mccreath@pinsentmasons.com Richard Griffiths T: +44 (0) M: +44 (0) E: richard.griffiths@pinsentmasons.com Jonathan Riley T: +44 (0) M: +44 (0) E: jonathan.riley@pinsentmasons.com Paul Rice T: +44 (0) M: +44 (0) E: paul.rice@pinsentmasons.com This briefing note does not constitute legal advice. Please contact us if you require assistance. Combining the experience, resources and international reach of McGrigors and Pinsent Masons Pinsent Masons LLP is a limited liability partnership registered in England & Wales (registered number: OC333653) authorised and regulated by the Solicitors Regulation Authority, and by the appropriate regulatory body in the other jurisdictions in which it operates. The word partner, used in relation to the LLP, refers to a member of the LLP or an employee or consultant of the LLP or any affiliated firm who is a lawyer with equivalent standing and qualifications. A list of the members of the LLP, and of those non-members who are designated as partners, is displayed at the LLP s registered office: 30 Crown Place, London EC2A 4ES, United Kingdom. We use Pinsent Masons to refer to Pinsent Masons LLP and affiliated entities that practise under the name Pinsent Masons or a name that incorporates those words. Reference to Pinsent Masons is to Pinsent Masons LLP and/or one or more of those affiliated entities as the context requires. Pinsent Masons LLP 2012 For a full list of our locations around the globe please visit our websites: