Staying Alive: Extending The Life Of A DCO – Energy and Natural Resources – UK – Mondaq News Alerts

09 November 2021

Bryan Cave Leighton Paisner LLP

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The regime for Nationally Significant Infrastructure Projects(NSIPs) allows for Development Consent Orders (DCOs) to be grantedfor a set period of time (often 5 years), but only recently has itbecome clear that time limits can be extended to keep DCOsalive.

The Department for Business, Energy and Industrial Strategy(BEIS) recently (16 September 2021) granted a non-material change to extend thetimescale for implementation of a DCO for a period of 5 years for aproposed gas-fired power station. This is the first time such asignificant extension has been granted and in this blog we explorehow it was pursued.

The applicant, C.GEN, secured a DCO in 2014 for a gas-firedpower station in North Killingholme, which had an original lifespanof 7 years. Due to a variety of commercial factors in theintervening years, implementation of the consent was ultimately notpossible within the original 7 year time frame. However, there wasa keenness to preserve the consent and deliver the project giventhe role of gas-fired power stations in the future national energygeneration mix (as recognised in the 2020 Energy White Paper), to complement themove to renewables and support the targets for net zero and 40GWoffshore wind capacity by 2030.

As a result, an application for a non-material change wassubmitted to BEIS in August 2020 to extend the time forimplementation of this DCO, with BCLP advising C.Gen since2018.

There are two types of change that may be made to a DCO - theseare non-material or material. Separate procedures are prescribed inlegislation1 and in non-statutory Government Guidance for handling each type ofapplication.

The C.GEN application was for a non-material change and requiredconsideration of the interplay between the proposed changes and theEnvironmental Statement, the Habitats Regulations Assessments,compulsory acquisition powers, and the effects on businesses andresidents. The Guidance also sets out the various steps which needto be taken and procedure to be followed and is a useful startingpoint for applicants considering post-grant changes.

The alternative mechanism, where material changes are sought,involves a more costly and detailed process (potentially includingan 'examination' akin to a public inquiry). Thereis no legal definition of a material and non-material change socareful consideration is necessary as to which approach isappropriate in each case, and an awareness of the risk and costprofiles which vary depending on which route is pursued.

In both cases an application must be prepared setting out thechanges, and even the non-material process can require anenvironmental report, as well as high quality consultation andcomprehensive engagement. In either case, the application must besupported by a draft Statutory Instrument, compliant with thesalient rules and regulations, as it is creating 'newlaw'.

In light of the time since the original DCO grant in this case,the applicant wanted to ensure that the scheme complies with thelatest position on carbon capture, and this was reflected in theapplication. The decision by BEIS to extend the DCO also includedprovisions to incorporate current carbon capture technologies thatenable either the pre-combustion removal of carbon dioxide (IGCCmode), or post-combustion capture (CCGT mode) within theproject

Applications to change DCOs can take some time both tocorral the necessary information for the application, carry outengagement, and also to allow time for the decision-making process(where, in the case of non-material change applications, there isno statutory timescale). In this case the application was made inAugust 2020 and a decision was made in September 2021.

The only other DCO extension we are aware of was for a 12 monthextension and was granted in July 2020, during the height of theCovid-19 pandemic and associated lockdowns. That application wasmade at a time when planning rules were temporarily relaxed toallow extensions to conventional TCPA consents (which are usuallyprohibited) but DCO projects had to follow the pre-existing routepursuant to Schedule 6 of the 2008 Planning Act, and seek anon-material or material change in order to secure a similarextension. That application for a 12-month extension was basedfirmly and solely on the extraordinary circumstances produced bythe pandemic in 2020, and hence was for a relatively shortperiod.

The C.GEN North Killingholme project DCO extension is the firsttime that an extension has been sought for a substantial period oftime in this case 5 years which is of coursereflective of the standard timescale for an entirely new DCO.

Footnote

1 Planning Act 2008, Schedule 6 and theInfrastructure Planning (Changes to, and Revocation of, DevelopmentConsent Orders) Regulations 2011

The content of this article is intended to provide a generalguide to the subject matter. Specialist advice should be soughtabout your specific circumstances.

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Staying Alive: Extending The Life Of A DCO - Energy and Natural Resources - UK - Mondaq News Alerts