Project Nutcracker: The new DCO "fast-track" - not worth the bother I'm afraid

This article is the second of our in-depth critiques of ideas for speeding up the consenting of UK infrastructure. See our Introductory article for the impetus behind this series, summed up in the famous Prayer for Serenity:

"God grant me the serenity to accept the things I cannot change, the courage to change the things I can, and the wisdom to know the difference"
Prayer for Serenity by Reinhold Niebuhr

This article looks at the new "fast-track" for DCO applications meeting certain "quality" standards. The fast-track offers the chance to get a decision on a DCO application 12 months after an application is made, as opposed to the more usual 17 months. A saving of five months. In exchange, the applicant is bound into a lot more pre-application work, with no guarantee they will be allowed to use the fast-track and, even if they are, no guarantee the Examining Authority won't change its mind if the application ends up being more controversial or complex once the examination starts.

This simply doesn't seem a worthwhile deal to me.

If any months are saved from the examination and determination period for fast-tracked applications, those months will be added to the pre-application period….which, helpfully for anyone wishing to trumpet the success of fast-track, isn't monitorable by publicly available statistics.

But simply moving work from one point in the process to another isn't a step forward for applicants or for the UK.

For me, fast track falls into the category of reforms which will make no difference, or in fact make things worse. I will be reasonably surprised if many pursue it, and suspect most who do will regret it.

More fundamentally, fast-track exposes an ideology behind how speeding up is to be achieved which is wrong-headed: the idea that if only applicants would work harder to agree everything with everyone before submitting an application then the system would function as it should. A "quality" application is apparently one which is easy for PINS to examine and easy for the Secretary of State to determine. A separate article to follow explaining the flaw with this thinking.

1. fast-track: how it works

The Government's newly launched Guidance on the fast-track process, sets out the criteria for applications eligible for fast-track. The idea running throughout it is that "well-prepared" applications, which meet defined "quality standards" may have the privilege of a shorter period between application and decision.

Criteria for fast-track

In summary, fast-track is there for applications where there is "both clarity about the issues for consideration during the examination and that these will be limited in number and straightforward in scope."

The "Main test" for whether an application "meets the fast-track quality standard" is whether the principal areas of disagreement between the applicant and other parties have been narrowed such that the application is "capable of being examined and/or disagreements being resolved" within a maximum examination period of four months. A Principal Areas of Disagreement Summary Statement (PADSS) must be submitted with any application seeking fast-track status, to assist PINS in making this assessment¹.

The two "Supplementary tests" to be met for fast-track are:

1. whether the applicant has complied with the steps set out in its Programme Document (the step-by-step programme to submission agreed with PINS at the inception meeting) and has engaged with PINS new "enhanced pre-application service" (see below); and
2. whether the applicant has had regard to any formal advice issued by PINS in respect of the project under section 51 of the Planning Act 2008 (PA2008).

The extra effort and cost required to be considered for fast-track

Applicants who want to use the fast-track must propose this to PINS at their "inception meeting" (ie the first meeting with PINS on the project, in its early pre-application stage). There is an expectation that they will have discussed use of fast-track with statutory consultees first. Applicants must indicate their intention to use the fast-track in their Programme Document, to be discussed with PINS at the inception meeting.

Potential use of the fast-track must be flagged to statutory consultees at this early stage, so that "they can confirm at an appropriate point early in the pre-application stage their ability to resource a fast-track proposal". Presumably if they say they can't then the applicant can't use fast-track.

Note that applicants are now expected to fully fund the costs of the key statutory consultees throughout the DCO process following recent changes to the Fee Regulations 2010 – see Guidance explaining this.

The clear expectation is that more work will be required by the statutory consultees and by the applicant in the pre-application period in order for something to be a fast-track application.

Applicants who want to use fast-track must take up PINS' "enhanced pre-application service". The cost of this service is £208,850 per year. What you get for this (compared with the cheaper "basic" or "standard" services at £62,350 and £126,050 respectively) is essentially more help/intervention/oversight/interference (pick your descriptor!) by PINS in the pre-application stage. See the description of the nine "Supplementary pre-application components" at the back of the Prospectus.

The assumption is that this will assist with the "resolution" (a much-used word in the Guidance) of issues before the application is submitted. However, this could end up being at best a mixed blessing – see below in "Added Dangers of Fast-track."

A "fast-track admission document" must be submitted with any application seeking fast-track status alongside the rest of the application documents, demonstrating how the three tests (see "Criteria for fast-track" above) are met and how commitments contained in the Programme Document have been met. Where the applicant considers that an issue has been resolved (most likely one outlined in the Programme Document) a statement from the relevant statutory consultee must be provided to evidence this. Areas of outstanding disagreement between the key parties must also be confirmed via a statement from the relevant consultee.

Obtaining and losing fast-track status

It is entirely at an applicant's discretion whether to seek fast-track status or not.

The actual application for the fast-track is only made when the DCO application is submitted. As explained above, a document must be submitted evidencing that the three tests have been met.

PINS will then make a "provisional decision" whether to allow the use of fast-track at the same time as they determine whether to accept the application for examination.

Even a positive provisional decision can be reversed if the number or nature of relevant representations from objectors suggests that the application will struggle to be determined within 4 months.

It is also possible that "new matters arise during the examination which make completion of the examination in this timescale impossible."

In other words, despite having put in extra time and effort at the pre-application stage, and having paid both PINS and statutory consultees for enhanced engagement, there really is no guarantee that fast-track status will be obtained (or retained).

How fast is it compared with non-fast-track?

In a best case, the applicant will save five months on the post-submission phase, as compared with not having gone through fast-track. See comparison below:

2. just not worth it

I would be very surprised if the effort of trying to save (at best) five months in the consenting process is worth the extra effort and cost involved in the fast-track.

The biggest problem with the DCO process currently (from a timing perspective) is how long the pre-application stage takes. Statistics are not easy to collect from individual developers, and therefore this phase doesn't attract the headlines and focus that other stages of the process do. But a pre-application phase of two years is not unusual even for fairly straightforward schemes. Pre-application consultation is an issue for another day and another article, but still it is important to see the five months potential saving for fast-track in that context.

More fundamentally, the five month post-submission time-saving is likely simply to be transferred to the pre-application period, which is bound to be elongated with the drive for resolution of issues upfront. In other words, not an overall time-saving at all.

The financial cost to an applicant of funding the attempt to secure fast-track status will include not only paying PINS for the "enhanced" service, but the expense of preparing more detailed pre-application consultation information, fully funding the key statutory consultees to engage in more depth with the issues, and paying the applicant's own consultant team to facilitate this enhanced engagement.

Yet for all this, seeking fast-track is ultimately a gamble. There is no guarantee that despite an applicant's best efforts from the earliest stages of their project preparation they will end up being on the fast-track right through to the decision. Fast-track can be de-railed at any stage by consultees who remain (or turn) difficult, and by PINS' right to change its mind about their ability to deal with the examination in four months.

It is certainly true that high quality pre-application engagement usually narrows down issues and is time well spent, but applicants can choose to do that now, without any help from PINS or any formal fast-track process.

3. added dangers of fast-track for the applicant

I would go further. Fast-track is in some ways more risky for an applicant than the current lighter-touch PINS' involvement with DCOs during the pre-application stage, and more risky than the "basic" or "standard" services now being offered in the Prospectus.

Why? The higher the "tier" of service you pay for, the more you will have to share with PINS in order for them to try to help you resolve those issues.

This means for fast-track applicants (who must subscribe for the highest tier of service) there will be more "section 51 advice" from PINS being given and published on their Advice Log. There will be more "multiparty meetings" being "facilitated" by PINS, of which meeting notes will be published. Not to mention the duty to show how regard has been had to all of the advice given by PINS, some of which you may or may not agree with, and might prefer to debate in an examination.

Washing all this dirty laundry in public (whether or not issues are ultimately resolved between the parties) is unlikely to be helpful for any project. PINS' assumption seems to be that transparency is always a virtue. This fails to recognise the reality that compromise and changes of position (especially if it is the statutory body climbing down) is often better done in private. Local authorities, for example, are political entities. They have electorates, and being seen to hold and maintain positions may be important for them. While not political in the same way, nature conservation bodies may be sensitive to being seen publicly to water down their initial stance even there is good reason for a change of stance (for example, more detailed information and work being produced by the applicant).

4. teeing up excuses

I am not the only one with doubts about the effectiveness of the new regime. The Prospectus² manages expectations in two ways under their heading "What does success look like and what does it depend upon?"  Firstly, through setting the somewhat modest goal of "consistently smoother and potentially faster post-application stages". Secondly, by noting that success depends on there being a "collaborative effort involving statutory bodies, local authorities, and other stakeholders." The following reference to monitoring is notable:

"The success of our service, and the achievement of government’s policy objectives, also has interdependencies with service reforms at other government bodies which have an advisory role in the PA2008 process. These interdependencies will be taken into account as the performance of the new service is monitored by the Inspectorate and wider government."

As the Prospectus notes "the pre-application stage of the PA2008 process is driven by the applicant, but the quality of applications and the success of service reforms is dependent upon the performance of multiple actors within the PA2008 process, including statutory bodies."

The Prospectus and new Guidance request that statutory consultees play their part and engage in a timely way. But such words have no teeth when it comes down to it. Even with applicants now required to fully fund their costs, statutory consultees cannot magic up staff from thin air. There continues to be a draining of resources from the public to the private sector. Even if statutory consultees use applicants' money to out-source some of their work to private sector consultancies, there is finite capacity even there. Most of the consultancies I know are already stretched and struggling to service all of their DCO clients.

Any solution to the problems of the DCO regime needs to recognise the finite number of man/woman-hours available to staff the system in the short to medium term, and not put forward ideas that create more work.

5. REFERENCES

My intention in this series of articles (as explained in my Introductory article) is to create reasoned analyses based on basic facts and axioms. Those under-pinning this article are set out below:

6. the new PINS tiered pre-application services more generally

The above article focuses just on the fast-track, but readers may find it useful to read my colleague, Ian Mack's, recent article on the whole suite of pre-application services being offered now by PINS, which sets out PINS' expectation with regard to new processes and the new documents for the pre-application and submission phases of all projects - see here. 

Footnotes

1. These are now recommended for all applications but only required for aspiring fast-track applications.

2. Note that the Prospectus deals not just with the fast-track service but the three tiers of pre-application service on offer from PINS.