08 Jul 2020

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 – according to new research published today (8 July) by Womble Bond Dickinson (WBD), in collaboration with Barton Willmore and Copper Consultancy.

The report looks at 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 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.

Alongside recognising the value of certainty, the research identifies, however, that the planning system overall has become cumbersome with inadequate flexibility. Beyond infrastructure, there is also a lack of choice of consenting mechanisms for investors and developers through which to build out large-scale developments, quickly and sustainably.

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.

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 2008 over the past twelve years and seeks ways to improve the regime to better meet the challenges of the UK going forward. Also, to provide the incentive for national and international investment in large scale developments, off the back of the Government's recent £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."

The research also highlights:

  1. The DCO process’s 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.
  5. The role the DCO process could have in new settlements by preparing a National Settlements Strategy which identifies broad parts of the country suitable for new settlements/large scale developments with the DCO process incorporated as a consenting model but with different consenting and delivery models to be applied.

Informed by the research, WBD, Barton Willmore and Copper are also engaging with industry bodies, including the National Infrastructure Planning Association (NIPA), 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. The research suggests this 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.

Ranking in the UK's top 20, WBD is a transatlantic law firm providing legal expertise from across eight offices in the UK and 19 offices in the US. Rated by Chambers Legal Directory as a national leading practice for planning and infrastructure, the team works for a broad range of clients including commercial developers in the energy, residential, transport, waste, manufacturing and retail sectors as well as many local authorities. The firm was nominated earlier this year for Planning Law Firm of the Year on the back of a successful Supreme Court win.

The report can be downloaded here. An executive summary is also available here

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

Charles Banner QC

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

Anna Pickering, Highways England