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Angus Walker Angus Walker Partner
09 February 2018

787: DCO decision delays increasing

Today’s entry looks at delays to DCO decisions.

I spoke at the sixth annual ‘NSIPs Forum’ on Wednesday and in preparation produced the diagram below of which DCO decisions have been / will be made on time.

As you can see, things were going swimmingly until the end of July 2016, with only one decision delayed out of 56 issued, for the Able Marine Energy Park, or 1.8%. Since then, six out of 14 decision will have been delayed, or 42.9%. I have chosen the figures for maximum effect, but they are pretty stark.

Five of the delays have been by the Secretary of State for Business, Energy and Industrial Strategy, and two by the Secretary of State for Transport.

Why the delays? They were as follows, officially:

  • Able – seven months – Crown Estate and habitats issues;
  • Hornsea 2 – two months – the harbour porpoise;
  • Triton Knoll Connection – three days – officially the decision was made on time, but was published three days late. Given that the decision letter is dated two days after the deadline that isn’t very credible. No reason given, but not much of a delay;
  • Yorks and Humber Pipeline – 14 months – delayed for a ridiculously long time due to withdrawal of carbon capture and storage funding and then seeing if it could be used for something else;
  • Richborough Connection – two months – general election took place on the day the decision was due;
  • East Anglia Three – one and a half months – general election took place two weeks before the decision was due; and
  • Silvertown Tunnel – seven months on current estimate, decision not issued yet – air quality issues.

Arguably, then, each was delayed for its own particular reasons, but just as arguably, the decisions could have been taken with the three months allotted if the department concerned had really put its mind to it.

Why the trend? One possible reason is that the Department for Business, Energy and Industrial Strategy was established on 14 July 2016, and although it managed to knock out three decisions on time in its first two weeks of existence, since then it has barely managed 50%. Has energy moving from its own department to a composite department meant less attention is paid to decision deadlines? It’s not as if there was more to do – in fact only half as many decision will have been issued in the two years since July 2016 than the two years before that date.

Another reason may be that nothing particularly bad happened when the first decision in the recent trend was delayed, and so the incentive to stick to deadlines after that may have lessened. Indeed, the one sanction of having to report the delay to Parliament wasn’t even observed for the last, longest delay to the Yorks and Humber pipeline project. Being told off on this blog just doesn’t seem to do it, for some reason.

Whatever the reason, the trend should stop. Although Secretaries of State aren’t getting in trouble for delaying individual decisions, the trend *is* damaging to the regime as a whole. One of its main advantages for promoters, investors, and even third parties affected by projects, is the near certainty of when decisions will be made and uncertainty will be removed. The Government needs to up its game to previous levels.

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