Updates to UK development consent order procedures move infrastructure into the internet age

New regulations and guidance relating to the promotion of nationally significant infrastructure projects have been introduced to address difficulties resulting from COVID-19 restrictions. They reduce the emphasis on physical deposit and inspection of documents and promote the use of online resources - a sensible and timely change. The measures are temporary, but suggest a general shift in approach.

The Infrastructure Planning (Publication and Notification of Applications etc.) (Coronavirus) (Amendment) Regulations 2020 (2020 Regulations) came into force on 22 July 2020, and include important changes to applications associated with the promotion of development consent orders under the Planning Act 2008 (2008 Act). The changes apply from 22 July 2020 to 31 December 2020 in relation to proposed and accepted applications for a development consent order (DCO).

The provisions apply to:

• applications for non-material changes to a DCO;
• proposed and actual applications to make a material change to, or revocation of, a DCO and amendments proposed to DCOs in exceptional circumstances;
• a proposal to include in the DCO the compulsory purchase of additional land that was not identified and included in the book of reference at the time of the DCO application, and that has not been consented to by all persons with an interest in the proposed additional land;
• accepted applications for a DCO where a screening opinion may not have taken account of all relevant information or an environmental statement may be inadequate; and
• a subsequent application for development that requires an updated environmental statement or further information in addition to the updated environmental statement.

The effect of the change is to substitute the requirement for publication of hardcopy documents at a place in the vicinity of the proposed development with electronic publication on a website maintained by or on behalf of the applicant.

The effect is to ensure that consultation requirements for nationally significant infrastructure projects can reflect restrictions on movement and access to local centres of information during the COVID-19 pandemic. This will require applicants to place much greater reliance on their application website during the applicable period and to the extent that the 2020 Regulations apply to their schemes.

Despite the changes, the associated guidance (which is statutory to the extent that the changes apply to the pre-application stage) states that applicants should continue to engage proactively with consultees to find alternative means to provide access to documents where required – for example, by providing copies of documents on a USB flash drive where parties have access to a computer but have limited or no internet access.

The government’s intention is not to dispense entirely with the requirements for traditional (non-website-based) engagement with applications. The applicant must still try to carry out detailed consultation exercises to understand which non-statutory consultees are likely to require additional support in the current circumstances.

Regulation 6 of the 2020 Regulations provides that the above changes do not have retrospective effect and apply only after 22 July 2020 to applications that have not already triggered the relevant notice requirement under the 2009, 2010, 2011 and 2017 Regulations.

This means the need to have placed documents on deposit could still theoretically be challenged before that date. However, our view is that courts would be sympathetic to applicants where deposit has been impossible or very difficult. Also, a person would need to show that they had actually been disadvantaged as a result of the absence of physical deposit.

The following provisions in respect of notification requirements are amended:

• Regulation 4 of the 2009 Regulations the requirement to publish a proposed application for development consent under 2008 Act;
• Regulation 8 of the 2009 Regulations - the requirement to publish notice of an accepted application for development consent under the 2008 Act;
• Regulation 9 of the 2009 Regulations - the requirement to publicise an accepted application for development consent under the 2008 Act;
• Regulation 7 of the 2010 - the requirement to give notice of the proposed provision of additional land within an order for development consent under 2008 Act;
• Regulation 8 of the 2010 Regulations - the requirement to publicise the proposed provision of additional land within an order for development consent under the 2008 Act;
• Regulation 6 of the 2011 Regulations - the requirement under Part 1 of the 2011 Regulations to publicise an application to change or revoke an application for development consent under the 2008 Act;
• Regulation 14 of the 2011 Regulations - the requirement under Part 2 of the 2011 Regulations to publicise a proposed application to change or revoke an application for development consent under the 2008 Act;
• Regulation 19 of the 2011 Regulations - the requirement under Part 2 of the 2011 Regulations to publish notice of the application to change or revoke an application development consent under the 2008 Act;
• Regulation 20 of the 2011 Regulations - the requirement under Part 2 of the 2011 Regulations to publish notice of an application to change or revoke an application for development consent under the 2008 Act;
• Regulation 55 of the 2011 Regulations - the requirements under Part 3 of the 2011 Regulations in respect of the specific notice format;
• Regulation 56 of the 2011 Regulations - the requirement under Part 3 of the 2011 Regulations to publish notice of an order made to change or revoke an application for development consent under the 2008 Act;
• Regulation 19 of the 2017 Regulations - the requirement to give notice in respect of a screening opinion not taking account of all relevant information;
• Regulation 20 of the 2017 Regulations - the requirement to publicise an application to give additional information within an environmental statement;
• Regulation 22 of the 2017 Regulations - the requirement to publicise an application for subsequent EIA development; and
• Regulation 24 of the 2017 Regulations - the requirement to publicise an application not complying with EIA requirements.