A practical approach to reform: Labour’s sensible way forward for development consent orders

Since taking power, the Labour government has made clear its ambition to get Britain building, a key pillar of its “plan for change” to drive economic growth. Reforming the development consent order (DCO) process for nationally significant infrastructure projects (NSIPs) forms a large part of this ambition.

The current system has become a political football. At face value, long-running challenges to major infrastructure – whether air, rail or energy – have created agitation for reform. Since Labour has taken power, we have heard tough language on “blocking the blockers” and “fixing a broken system”.

Yet in reality, the government is taking a steady and practical approach to reform. For all its rhetoric, the changes set out in the Planning and Infrastructure Bill are far from revolutionary. Instead, they focus on streamlining the planning and approvals process for NSIPs within the existing regime.

In doing so, there is optimism within the sector that change will unlock investment – ensuring that major infrastructure projects ranging from new rail links to solar sites can be approved and built in a timely manner, but without entirely ripping up the rulebook.

Understanding the changes

In many ways, Labour is trying to take the NSIP regime back to basics. The DCO process was designed to provide clear, streamlined consents, ensuring that major new rail links and clean energy generation sources do not get bogged down in local planning disputes.

However, the system has become slower and more cumbersome over time. The average NSIP now takes 4.2 years to secure development consent compared to 2.6 years in 2012.

Labour’s proposed reforms aim to redress the balance and expedite consents. Key changes include engaging with multiple consenting bodies at the same time rather than sequentially, meaning that an overall decision can be made sooner. This reinforces the principle that the DCO process should be a one-stop shop.

>> Also read: Planning reforms a red herring for unlocking economic growth, Arcadis cities boss says

>> Also read: Wider reform to combined authority governance needed to make most of new planning powers, says think-tank

The greatest fanfare, however, has been focused on limiting opposition and the bill contains a series of measures on this front. The government has proposed limiting the number of legal challenges that can be made, down from three to one. For those cases deemed “without merit” by the high court, there will be no right of appeal.

Greater weight will also be given towards national policy statements (NPSs) for industries including renewable energy and ports, over local priorities. One piece of good news is that NPSs will be reviewed and updated at least every five years to ensure that the NSIP regime and policies keep pace with rapidly evolving technologies and the wider economic priorities of the government.

Labour has already signed off nine NSIPs since taking office, and the Planning and Infrastructure Bill – if made law in its current form – holds the power to further refine and accelerate forthcoming decisions.

Settling reform within the current system

For all the tough talking, the government’s hope is that these changes will be sufficient to accelerate investment without the need for significant changes in how NSIPs are assessed. This is being welcomed by the industry, which has a good handle on the hoops and hurdles it needs to work its way through within the current regime.

Wholesale change would have been challenging, and a big risk for a government that wants to preserve some stability in the current frameworks.

Streamlining the approvals process for DCOs also has the benefit that it should help free up resources from the planning inspectorate, improving its capacity to expedite development.

But, while the government’s pragmatic approach to reform is welcome, more adjustments may be needed to meaningfully impact the pace at which developers can get spades in the ground. We can therefore expect to see further amendments to the bill as it is makes its way through parliament and the government continues to consider how to best support its ambitious timelines for infrastructure delivery.

Checks and balances on opposition

Of course, schemes will still see opposition, and so the industry must still manage its own expectations over the new bill. The practical effect of reducing the number of acceptable appeals should be to deter objections submitted with no chance of success. However, this is not a developers’ charter.

The system still ensures that valid objections will be heard and given weight. For the government, it is important to maintain this sense of balance and the regime needs to be seen to protect the right to challenge developments where there are strong social or environmental concerns.

By working within the parameters of the existing regime and National Planning Policy Framework, the bill retains the importance of comprehensive stakeholder engagement. Ultimately schemes should be expected to limit the number of objections in the first place by explaining proposals and bringing local communities onside. This means ensuring that the benefits of job creation, improved connectivity and energy security are communicated and felt at a local level. Very valid routes of objection remain open, and development teams need to make sure they do not become complacent.

In all, what is proposed is more of a refinement than a new regime. With this bill, the government is committing to a more transparent and smoother path to consent for new investment where conditions are met. However, industry will still be expected to play its part, being thorough in the consultation process and still prepared for plans to be scrutinised.

Alex Dillistone is a partner in the infrastructure team at law firm Winckworth Sherwood