Introduced to provide a streamlined consenting process for projects deemed to be nationally significant to Wales, from submission of application, the regime provides a 42-week determination period (excluding the pre-application period for ease of comparison and because these periods were not accounted for in the research). It was designed to provide set timeframes and certainty to developers and investors, therefore allowing for more effective financial and risk management - one of the key achievements of the Development Consent Order (DCO) regime introduced by the Planning Act 2008. But has it worked? Has it provided certainty to the sectors it covers? Has it delivered consents in shorter timeframes?
On current evidence, I regret to say that the answer is no. As of the 1st September 2017, there were 14 projects registered with the Planning Inspectorate (PINS). Of those, one is no longer proceeding, two are at notification stage, nine are stuck at the pre-application stage, and only two are at Examination (but one of these is way behind schedule). The DNS regime has therefore not, to date, been proven to deliver the certainty found in the DCO regime.
The first DNS accepted for Examination had an official start date of 22nd December 2016 (although this was the second submission as the first application in July 2016 was deemed invalid due to an inadequate Environmental Statement (ES)), and should have been determined by 31st August 2017. However, following the initial hearings in March 2017, the Examination was suspended until this September, due to inadequacies within the submitted ES (the one that was deemed valid on acceptance). There is no concrete confirmation on the PINS website (which is far from easy to navigate!) on when the decision is due, but using my powers of deduction (based on an examination start date of around 28th March 2017), the decision should be issued by early March 2018 – some 15 months after acceptance!
So, assuming the Welsh Ministers stick to their allotted 12 weeks (and they must for the integrity of the regime), we will have our first DNS decision by late February / early March 2018, and the second following in quick succession by 21st March 2018 – two applications that were accepted by PINS some seven months apart. That is not certainty of timescale, albeit we won’t know conclusively until March next year.
But could the DNS route still be faster than the Town and Country Planning route to permission? The research includes a review of 243 large scale planning applications in Wales between 2006 and 2016, focused on the categories identified when the Welsh Government first consulted on the DNS regime in 2015, which have a high likelihood of significant, ‘more-than-local’ impacts. Strangely, the report only considered energy generating schemes up to 25MW rather than the 50MW DNS threshold, and did not mention a number of the other current DNS categories.
But I digress. It found that wind turbine and new settlement (assumed to be 500+ units) applications were taking far longer to determine, on average, than all other categories. The maximum determination period was a staggering 342 weeks (for a new settlement) and 304 weeks (for a wind farm). Admittedly, some of this was devoted to s106 negotiations, but this is still an unbelievably long determination period – at least we can definitely say the DNS regime is quicker than that! I should also say well done to the applicants for their perseverance!
A summary of the report’s findings is included in the table below, but overall, when you compare the assumed 42-week DNS period with the average traditional route time-frames highlighted in the research, certain categories of development - energy generation (renewable and diesel), open cast coal mining, commercial / retail / leisure, and “new” settlements - would almost certainly, even with the over-runs, benefit from inclusion in the DNS regime.
Sadly, for the one category that appears to have the most to gain – new settlements - the report does not recommend this.
Source: Welsh Government Research
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Wales, Development Consent Order, Town Planning, New Settlements