Why a development consent order has no right of appeal

If a development consent order is made for a wind farm, a reservoir or a new road near you, there is no appeal. A development consent order challenge can only be brought by judicial review in the High Court, and the claim must be filed within six weeks. Section 118 of the Planning Act 2008 says so in terms, and the court has no power to extend that period. Nothing in the regime allows anyone, applicant or objector, to ask a second decision-maker to look again at whether the project is a good idea.

That comes as a shock to people who have followed a planning application through refusal and appeal. The two systems look similar from the outside. They are built on different foundations.

How the infrastructure regime differs from planning

Nationally significant infrastructure projects are consented under the Planning Act 2008 rather than the Town and Country Planning Act 1990. The categories are set out in sections 14 to 30 of the 2008 Act and cover things like large generating stations, airports, harbours, major highways, railways, water resources and pipelines. The capacity and size thresholds in those sections have been amended several times, so check the current figures before assuming a project falls inside or outside the regime.

A development consent order is a statutory instrument, not a planning permission. It can grant the principal consent, authorise compulsory acquisition, override easements, deem other consents to be given and disapply specified legislation, all in one document. That breadth is why Parliament built a different procedure around it.

The process is front-loaded and tightly timetabled. Pre-application consultation is a statutory duty rather than good manners. The examination itself must be completed within six months of the preliminary meeting, the examining authority then has three months to report, and the Secretary of State has three months to decide. Those deadlines can be extended by ministerial statement, and in practice several recent decisions have been.

Who decides, and on what advice

The Planning Inspectorate runs the process but does not decide. An examining authority, either a single inspector or a panel of up to five, reads the application and the representations, holds hearings, asks written questions and writes a recommendation report.

The decision is taken by the relevant Secretary of State. Energy projects go to the energy department, highways and railways to transport, water resources to Defra. That is a political decision taken by a minister accountable to Parliament, and it is the central reason there is no appeal: you cannot appeal a minister's decision to another minister.

Section 104 of the 2008 Act requires the decision to be made in accordance with any relevant national policy statement, subject to defined exceptions such as where doing so would breach international obligations or lead to adverse impacts outweighing the benefits. Where no national policy statement applies, section 105 sets a broader balancing exercise. National policy statements are themselves designated after parliamentary scrutiny, and they can be challenged by judicial review within six weeks of designation, which is often the real moment of decision for the principle of a technology.

Why Parliament left out a merits appeal

The design logic runs like this. The project's principle has already been settled by a national policy statement approved by Parliament. The detailed examination is conducted by a professional inspectorate with inquisitorial powers. Interested parties have a statutory right to be heard. The final decision is taken by an accountable minister. Adding a merits appeal after all of that would reopen the whole examination and defeat the timetable the Act was written to impose.

Whether that trade is a fair one is a reasonable thing to argue about. It puts a great deal of weight on the examination stage and on the quality of the national policy statement, and it means an objector who misses the registration window has very little left.

For householders and small developers the contrast is stark. A refused planning application carries an appeal to the Planning Inspectorate on the merits, and inspectors' decisions can be cited as indicative of how similar issues have been approached, as we set out in our note on using appeal decisions in a planning application. None of that exists here.

Judicial review and the six week window

Judicial review asks whether the decision was lawfully taken, not whether it was right. The grounds are the familiar public law ones: a misinterpretation of policy or statute, a failure to take a mandatory consideration into account, inadequate reasons, a breach of the environmental assessment rules, procedural unfairness or a decision no reasonable minister could reach.

The time limit is the hardest part. Six weeks from the day after the order is published, with no discretion to extend, and permission from the court is needed before the claim proceeds. A claimant also needs to have been engaged enough in the process to have standing and to avoid the argument that the point could have been raised at examination.

If a claim succeeds the order is usually quashed and the matter goes back to the Secretary of State to decide again, lawfully. A quashing is not a refusal. And several high profile orders have been remade after a successful challenge, with the legal defect cured.

Taking part as an interested party

Because the examination is where the arguments are won, registration matters more than anything else in this process. You become an interested party by submitting a relevant representation during the registration period after the application is accepted, which is usually around 28 days and is advertised locally and on the project page of the national infrastructure website.

A relevant representation can be short. What it has to do is identify you and set out, in outline, what you agree or disagree with. Once registered you can submit written representations, respond to the examining authority's written questions, attend and speak at hearings, and ask for an open floor hearing where anyone registered can be heard.

Miss the window and your position weakens considerably. The examining authority has a discretion to accept late material and often does, but you have no right to be heard and no standing built up for a later claim. This is the opposite of the position in a planning appeal, where third parties can usually write in at any point before the deadline, something we cover in third party involvement in someone else's appeal.

Most of these projects are environmental impact assessment development, so the environmental statement is the single most useful document for an objector. It is where the applicant's own assessment of noise, traffic, landscape and ecology effects is set out, and the environmental impact assessment must be prepared by competent experts under the 2017 Regulations. Reading its non-technical summary before writing a representation is time well spent.

Applicants prepare a statement of community consultation before they consult, which sets out how they will engage. It is the infrastructure equivalent of the statement of community involvement that accompanies a large planning application, and local authorities are consulted on it.

Requirements do the work of conditions

A development consent order carries requirements in a schedule, and they function as planning conditions do. Approval of detailed design, construction hours, noise limits, landscape and ecology management plans, traffic routeing, decommissioning.

Requirements are where an objector who cannot stop a project can still change it. Arguing at examination for a tighter construction noise limit, a longer landscape establishment period or a routeing restriction that keeps lorries off a village street is realistic. Arguing that the project should not happen at all, where a national policy statement says it should, usually is not.

Changes after consent are handled by their own procedures for material and non-material changes, which means a scheme can evolve without a fresh application. Watch for those notices if you care about a project that has already been consented.

Where the two regimes touch

Associated development, local roads, site compounds and utility diversions often sit alongside a consented project and may come forward as ordinary planning applications to the council. Those carry the usual rights of objection and appeal.

The Secretary of State can also direct that a project which would not otherwise qualify be treated as requiring development consent, and some schemes that look like large planning applications are consented this way. If you are unsure which regime applies to something near you, the national infrastructure project pages list every live application.

This is general guidance, not legal advice; the time limits here are short and unforgiving, so take advice from a planning solicitor early if you are considering a challenge.

If you are preparing representations or supporting documents for a scheme of your own, you can browse all 66 report types to see what a technical submission usually contains. PlanScope provides AI-assisted draft reports for planning applications. Reports should be reviewed before submission. We do not guarantee planning approval.