Infrastructure Delivery: the DCO Process in Context
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NIPA Insights Programme 2016 Research Project Infrastructure Delivery: the DCO process in context Does the Planning Act process deliver the certainty and flexibility necessary to attract investment, permit innovation during the design and construction process and support cost effective infrastructure delivery – whilst providing appropriate protection for affected landowners and communities? Technical Report Dr Ben Clifford and Professor Janice Morphet June 2017 Infrastructure Delivery: The DCO Process in Context – Technical Report UCL Research Team Primary research team Dr Ben Clifford Professor Janice Morphet Efstathia Kostopoulou Focus group chairs Professor Brian Field Professor Maria Lee Dr Ed Manley (N.B. – Not involved in the authorship of this report) Acknowledgements We would like to thank the NIPA ‘client group’ of Keith Mitchell, Robbie Owen and Michael Wilks, and their consultant, Hannah Hickman, for their support and guidance for this research. We would like the thank their Member Steering Group (listed in Appendix E) for their helpful feedback on the research topic and our emerging report and recommendations. Finally, we would like to thank all those who agreed to be interviewed or participate in a focus group for this research. For reasons of anonymity, all those we spoke to are not named in this report, however we were struck by how generous people were with their time and a real enthusiasm to help ensure the best possible system for consenting nationally significant infrastructure. We are also grateful to Effie Kostopoulou for all her hard work in supporting this research, particularly in arranging the interviews and focus groups, and Eileen Crotty for her expert and timely transcribing of all those interviews. 1. Infrastructure Delivery: The DCO Process in Context – Technical Report Contents 1. Introduction 3 2. 2008 Planning Act: context 5 3. The operation of Planning Act 2008 since its introduction 19 4. Why is flexibility important? 32 5. 2008 Planning Act: issues and challenges in practice 42 6. Findings: General interview and focus groups 53 7. Findings: A14 Cambridge to Huntingdon Improvement Scheme 104 8. Findings: Galloper Offshore Windfarm 139 9. Conclusions and Recommendations 165 Appendix A NIPA Insights Research brief 175 Appendix B Research methodology 176 Appendix C Summary consent data for NSIP DCOs 180 Appendix D Construction status of consented DCOs 186 Appendix E Membership NIPA Insights Project Steering and Stakeholder Groups 189 Appendix F List of those interviewed 190 Appendix G List of those who participated in focus groups and round tables 131 Appendix H Paper on detail and flexibility in highways design 192 Appendix I References 201 2. Infrastructure Delivery: The DCO Process in Context – Technical Report 1. Introduction This research was commissioned by NIPA Insights in September 2016-March 2017 to examine the ways in which the 2008 Planning Act has been operating in relation to detail and flexibility in the system. The research brief is set out in Appendix A. The research that has been undertaken and is reported here has been based on a variety of approaches in a combined methodology that is set out in Appendix B and included a literature review, interviews, round tables, focus groups and case studies. The project has been managed by a small group representing NIPA Insights and acting as the client for the project as shown in Appendix C. This group has been assisted by a client side manager. The group has met approximately monthly during the project and there have been additional conversations and discussions between the research team and project board members in addition to these meetings. The first part of this report examines the purposes of the system when it was established and then there is a review of how it has been working in practice since including the number of applications made within the system, a sectoral breakdown and an analysis of consented schemes that have been implemented. Following this there is a discussion on the issues and challenges faced by all involved in the 2008 Planning Act system including scheme promoters, their advisers, communities, regulators, local authorities and the government. These issues and challenges have been provided both from the research brief that was prepared by NIPA Insights following round table member sessions. To these have been added issues and challenges that have been raised at roundtables and focus groups held as part of this project. There have been two roundtables – one for the project steering group and one for any members of NIPA (particularly legal members). The four focus groups have been specifically concerned with issues raised by promoters and constructors, government and regulatory bodies and communities and environmental stakeholders. Those who have participated in these round tables and focus groups are shown in Appendix G. 35 interviews have been conducted and have represented all sectors and constituencies engaged in the 2008 Planning Act processes, including 22 interviewees who were talking about their experience in general and 13 who were talking more specifically about their experience in relation to our two case study NSIPs, the A14 Cambridge to Huntingdon Improvement Scheme and the Galloper Offshore Windfarm. Those interviewed are shown in Appendix F. Following the section on the issues and challenges identified in considering flexibility in relation to certainty and community and landowner interests in the 2008 Planning Act by all those involved. The research team have examined these questions and analysed the material obtained during the research through the literature review, document close reading and analysis, interviews and case studies to prepare their findings on these issues and challenges. This has included consideration of how, in some cases, these may be ameliorated through changes in practice by some of the constituencies that play a part in the process. These have been distilled as recommendations and are focused on addressing the issues of community and landowner interests and flexibility. These are set out at the end of this report. They are also presented in a shorter summary “Main Report” of the research, that was requested by the NIPA Insights steering group and is published alongside this more detailed “Technical Report”. Overall the system is working as intended but there are areas in the process where changes in practices and operational culture could help it to work better. When the 2008 Planning Act was first designed, it was principally aimed at removing delay in the processes that had been observed through the Town and Country Planning system inquiry procedures. In hindsight, it is possible to see that these lengthy inquiries were the exception rather than the rule, although it is recognized that the time taken to deal with them caused concern from all aspects of civil society. For other applications, the system appears 3. Infrastructure Delivery: The DCO Process in Context – Technical Report to be working at the same kind of speed as before if the full extent of the process is considered, rather than just the procedural elements from pre-submission to grant of the Development Consent order (DCO) but with more certainty. However, there may have been an unintended consequence of the front-loading of DCO applications, making it more like a planning application, in that the focus has been primarily on the achievement of the DCO rather than considering the implementation of NSIP projects in their entirety. The issues that are emerging now and the subject of this research are primarily related to concerns about the implementation of consents rather than their achievement in the first place. However, many of the consultants engaged in the process are incentivised to the point of granting the DCO but have less involvement after in the implementation of the scheme, when different consultants and contractors take over supporting delivery for the promoter. These issues are also coming to light as several consented schemes are now moving towards implementation following promoter pauses after achieving their DCO. Promoters and contractors have been less willing to engage together in the earlier parts of the process prior to granting DCOs and contractors are frequently introduced later in the post-DCO period. This is against the advice of all those involved in project management in the public and private sector including National Audit Office and the Major Projects Association. Promoters are concerned about the expense of designing a scheme from the outset when it may not receive consent and there are also concerns about the risks of determining a detailed scheme too early in the process. From constructors, there are fears that early engagement will reduce their chances of tendering for the project later in the process particularly for publicly funded schemes. There are also concerns about the potential cost of engagement in a project that may not receive consent. We have given some thought to this issue which appears to lie at the heart of the challenges and issues related to detail and flexibility and the conclusions and recommendations address these points. A second area that has emerged as being a pivotal point between the process of obtaining consent and its implementation is the drafting of the DCO. All constituencies engaged in the 2008 Planning Act process that we have interviewed or met with have pointed out that the content and approach of the DCO draft has a major impact on subsequent constructability. In some DCOs, the flexibilities that are required for later construction have been included in the associated consent processes following the DCO, particularly where these have included local authorities in their discharge. Also while the DCO non- material change process has been used there is a great reluctance to use the material changes process and this is discussed further in the conclusions and recommendations. If the variation in DCO drafting is such a significant factor in the deliverability of the consented scheme then it should be possible to address these variations in some practical ways which are also discussed in the conclusions and recommendations.