Out-Law Analysis | 26 Mar 2020 | 5:50 pm | 4 min. read
We are in uncharted territory with Covid-19 related rules and government guidance causing substantial changes to our daily lives. While the current conditions mean delays to some projects are inevitable, others may well be able to use the coming months to continue to make progress – depending on what is realistic and can be achieved fairly and with an acceptable level of risk.
What is a fair approach or an acceptable risk for one project may not be for another. Views on what is fair and appropriate could also differ between those promoting and those examining or responding to projects. At the same time, infrastructure consenting is a long game. Delay is never welcomed, but some promoters may choose to sit tight and wait for business as usual to return - although this in itself involves a degree of risk given the uncertainty around when this will happen.
It is worth discussing with the host local authorities the options for how the local community can be engaged without exhibitions or other methods which cannot now go ahead.
As a broader point, if projects across the board choose or are forced to pause we will all suffer the consequences, be it from delays to energy projects needed to support the gird in achieving net-zero or transport schemes that will help to reconnect us.
The development consent order (DCO) process for nationally significant infrastructure projects (NSIPs) in England has four main stages: pre-application; submission and examination; decision-making; and implementation. While this article considers potential routes through some of the main parts of the pre-application stage, many of the principles will be equally relevant to the other phases.
The DCO process has a deliberate and heavy focus on pre-application consultation, making engagement a significant part of the process. Although some consultation activities may be able to continue relatively unaffected, other areas will clearly present challenges - including lack of deposit venues for consultation documents, disrupted postal services or public exhibitions which can no longer safely take place.
Exhibitions are often one of the main ways in which the local community take part in a consultation process. They provide access to both information on the scheme and to project team members, who can provide explanations in a way documents cannot. Exhibitions may be particularly beneficial for local residents who do not use the internet.
The exhibitions are very likely to have been trailed in the scheme promoter's statement of community consultation (SoCC); and as compliance with the SoCC is one of the acceptance tests considered by the Planning Inspectorate on submission of a DCO application it is not likely to be an option to simply cancel them and rely on other consultation methods. This might be possible with a planning application, but the DCO regime has a considerably greater level of consultation requirements written into the legislation. Rewriting the SoCC may be an option, but doing that may in itself require consultation with the host local authorities and add a couple of months to the programme.
Assuming the SoCC can be amended or has not yet been finalised, it is certainly worth discussing with the host local authorities the options for how the local community can be engaged without exhibitions or other methods which cannot now go ahead. The key will be to focus and brainstorm on what is possible, rather than what has been done in the past; and to take it from there. For instance, could webinars with telephone dial-in facilities help, perhaps combined with a beefed-up approach to a community letter drop and a telephone line available for individuals' queries and comments?
There are very few people without access to a telephone, so even those without internet access would not be prevented from engaging with the project and its team if this bundle of methods was adopted. Although this approach is not the same as holding public exhibitions, that is not the test and it may be sufficient to allow fair engagement with consultees.
Whatever approach you decide on, any change to the consultation process will have to be considered against the legal tests and government guidance. The 2008 Planning Act and its related regulations set out what a promoter must do, but other legal principles such as those in equalities legislation or which come from case law will be equally relevant. A promoter will also need to assess its proposed approach against the government's guidance on the pre-application process, which applies to all DCO applications and which inherently reflects many of the same legal principles.
Unsurprisingly, there is nothing in the guidance which is directly relevant to the present circumstances. However, there are various over-arching principles which need to be achieved or complied with, not least that consultation should be "thorough, effective and proportionate".
The guidance contains helpful advice on the role of host authorities in relation to the draft SoCC, including that when commenting on consultation methods the authority's aim should be "to ensure that people affected by the development can take part in a thorough, accessible and effective consultation exercise about the proposed project".
Specifically, the guidance notes that consultation techniques should be a topic for discussion with host authorities, including "the appropriateness of … electronic-based ones". It later identifies that promoters should "use a range of methods and techniques to ensure that they access all sections of the community".
It is for the promoter to make the case to the local authority that its updated consultation approach can achieve what the guidance requires. It is ultimately for the Planning Inspectorate to decide whether consultation has been adequate, but the views of the host authority are always important at the application acceptance stage.
Where statutory consultation cannot go ahead, promoters can still seek to make the best use of the time. For some, it may be possible to carry out a non-statutory round of consultation, which often features in the pre-application approach on many schemes in any case. The legislative requirements in the 2008 Act would not apply directly to non-statutory consultation, although other requirements and principles of course will still be relevant. This increased flexibility may mean that a different form of consultation round can proceed.
Engagement with statutory consultees may well be able to continue, using the ways of working which we are all now adopting as normal. There is nothing to prevent promoters continuing to discuss the technical and environmental aspects of their schemes with the likes of host authorities, Natural England, the Environment Agency and landowners, apart perhaps from illness among key personnel. Those discussions are invariably valuable in shaping the project and its mitigation, helping to iron out issues before the relative inflexibility of the application stage kicks in.
Promoter teams can also use this time for a project review; to refresh the risk matrix – not least to accommodate the effects of Covid-19 - and to move consultation or application documents forward as much as possible.
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