Development Consent Orders

11 October 2016

Catherine Harris, partner and head of agriculture, takes a look at the recent decision to grant a Development Consent Order (DCO) for Triton Knoll Electrical System.

In early September this year the Secretary of State for Business, Energy and Industrial Strategy issued his decision to grant a Development Consent Order (DCO) for the Triton Knoll Electrical System, which will affect a number of readers. For those who are unaware of this project, it is proposed to lay up to 6 cables along a length of some 60km, in order to transport electricity generated from an offshore wind farm in the North Sea to a new substation site at Bicker Fen in South Lincolnshire.

A DCO is the product of the Planning Act 2008 which governs large-scale planning projects, known as Nationally Significant Infrastructure Projects (NSIPs). The nature of projects that the Secretary of State will consider designating as NSIPs include energy, transport, water and waste. Recent examples of NSIPS include the York Potash Harbour Facilities and the River Humber Gas Pipeline project.

The timeline, from the point of application by the Developer to decision, is relatively short considering the far reaching and often emotive nature of NSIPs. In the case of Triton Knoll, the Application for a DCO was received by the Planning Inspectorate in April 2015 and the hearings took place over a prescribed 6 month period closing in March 2016. After the close of the hearings, the Examining Authority issued its report to the Secretary of State in June 2016 with the final DCO being issued in September 2016.

Once issued, a DCO provides a range of authorisations including planning permission, often affecting more than one local authority area. Other authorisations include statutory consents such as for stopping up highways and the discharge of water. Protective provisions where other assets are affected may also be included within the DCO where for example railways, watercourses or rivers are affected.

It is not necessarily the case that a DCO will include compulsory purchase rights put often such rights are included. To obtain compulsory purchase rights a Developer has to demonstrate that any interference with the private rights of landowners is necessary, in the public interest and proportionate. It is a balancing act between public interest and the loss suffered by the landowners. In essence, there must be a justified interference, and this is a high threshold to overcome.

If compulsory purchase rights are included within a DCO, as in the case with the Triton Knoll DCO, then the Developer may implement those powers, but is not obliged to do so. Often a Developer will still prefer to proceed with private negotiations and will continue negotiations with affected landowners alongside the DCO process.

Implementation of compulsory purchase powers under a DCO will involve additional statutory procedures and it can be quicker and cheaper for Developer to proceed to negotiated settlements. For landowners, settlements can be more financially advantageous and address landowner specific concerns.

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