The Future of the Development Consent Order

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Following the General Election, where a great deal of emphasis was put on infrastructure across the country, and as we approach Brexit Day this month, it is an opportune time to reflect on the Development Consent Order Process.

A Development Consent Order (DCO) is the means of obtaining permission for developments categorised as Nationally Significant Infrastructure Projects (NSIPs). This includes energy, transport, water and waste projects and were intended to simplify and speed up the process of obtaining planning permission.

“But what does that have to do with Brexit?”

The key matter is in relation to the legislation which created the DCO process. Due to the fact that the process in essence removes the argument around the principle of development, it removes certain human rights.

This has been allowed due to the United Kingdom signing up to various European treaties which remove these rights. Some may argue that the DCO process can simply be replicated through primary legislation in the House of Commons, however this may not be as straightforward as one might think due to the fact that treaties hold a higher authority in relation to those human rights.

Once the United Kingdom completes its departure from the European Union in a year’s time those rights that were removed by treaty will return to individuals. This will open up the issue around the principle of development and we will likely see a number of Judicial Reviews come forward from opponents of specific DCOs.

Therefore a key issue, which needs to be addressed post the 31st January, is how the DCO process will be guaranteed.

Without the DCO process in place, a number of future infrastructure projects will be at risk of long delay or worse cancellation – not something that the Government will be keen on considering their emphasis on levelling the country up during the General Election.

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