Guidance

Planning Act 2008: Guidance on preparing an application: Part 3 - Content of a Development Consent Order

Provides guidance on the pre-application stage for DCO applications.

• From: Ministry of Housing, Communities and Local Government
• Published: 3 July 2026

Applies to England and, in limited circumstances, to Wales and Scotland

1. The purpose of this guidance

1.1 This guidance covers the statutory requirements relating to the draft Development Consent Order (DCO or Order) and Explanatory Memorandum (EM). It also contains information about a wide range of matters to which preparation of the draft DCO commonly gives rise, including associated development. The guidance should be read in conjunction with Part 1: Pre-application steps and Part 2: Application contents covering the range of information necessary for an application.

1.2 This guidance should be read in conjunction with the Introduction to National Infrastructure Planning Guidance, which includes information about audience, legal status and territorial extent of the full guidance suite.

2. The draft Development Consent Order

2.1 Under Regulation 5 of the Infrastructure Planning (Applications: Prescribed Forms and Procedure Regulations 2009 (the “APFP Regulations”), an application for an Order granting development consent must include, amongst other information, a draft of the proposed DCO, together with an EM which explains the purpose and effect of the provisions in the draft DCO.

2.2 If approved and made by the Secretary of State, the DCO is the most significant outcome of the Nationally Significant Infrastructure Project (NSIP) process because it:

• grants the development consent and other powers and permissions which are required to enable the project to be carried out; setting out the works for which the applicant has development consent
• grants the power to compulsorily acquire interests in and rights over land, and to use land temporarily, if so required
• sets out the requirements (conditions attached to the DCO) which control the construction, operation, maintenance and, if appropriate, the decommissioning of the consented works

2.3 Where a DCO seeks to apply, modify or exclude a statutory provision, make, disapply or modify byelaws, or deal with a matter relating to, or ancillary to, development as specified in Part 1 of Schedule 5 to the Planning Act 2008 (“the Planning Act”), section 117 of the Planning Act requires the DCO to be a statutory instrument (SI). In practice, every DCO to date has been made as a SI and therefore this guidance proceeds on the basis that this will continue. A draft DCO should be prepared using the SI template or any successor format and follow the statutory drafting conventions before it is submitted as part of a DCO application in line with the Planning Inspectorate’s advice.

2.4 Whilst many applicants continue to refer to the revoked Infrastructure Planning (Model Provisions) Order 2009 in their EM as the basis for drafting numerous articles, the statutory requirement under section 38 of the Planning Act to have regard to model provisions containing standard articles for a DCO was repealed by the Localism Act 2011. The current approach to drafting a DCO is set out in this guidance and may also be supplemented by precedents from DCOs made in recent years.

2.5 The government’s intention is to reintroduce a version of the model provisions through a prospective Part 4 of this Pre-application guidance expected to be published by summer 2027. The objective is to provide a set of standard DCO articles and schedules which will contain precedent provisions to assist applicants in preparing a draft DCO.

3. Structure of a draft DCO

3.1 The length and scope of a DCO depends on numerous factors, including the scale and complexity of the proposed development, the extent of powers granted, modified or excluded, and the number and type of consents and authorisations granted.  Applicants are advised to begin preparation of the draft DCO at an early stage during pre-application.

3.2 Whilst each draft DCO should be drafted to reflect the specific circumstances of the proposed development, the conventional and established approach is to set out the main provisions as articles grouped into appropriate parts (sections), as outlined below; however, this list is not prescriptive or exhaustive:

• definitions of key terms in the DCO and provisions setting out how to interpret the DCO
• commencement provision containing a placeholder (“[  ]”) for the future date(s) upon which the SI will be made and come into force
• description of the proposed authorised development
• the principal powers of the DCO including:
  • the power to construct, operate, maintain and (where relevant) decommission the proposed development, subject to the provisions of the DCO including the requirements
  • the parameters of the authorised development and permitted limits of deviation where relevant
  • to whom the benefit of the DCO is granted and how these benefits can be transferred to other persons
• application, modification or disapplication (exclusion) of other statutory provisions
• inclusion of other consents or authorisations granted by the DCO
• powers relating to highways works, discharge of water, authority to survey and investigate land, and works to protect buildings
• any necessary powers to fell or lop trees and remove hedgerows
• biodiversity gain plan provisions
• land acquisition powers including compulsory acquisition of land and rights, the power to override easements and other rights, acquisition or use of subsoil or airspace only, the powers to take temporary possession of land to carry out and maintain the authorised development, and ancillary powers such as recovery of costs of new utility connections
• protective provisions and protection of statutory undertakers’ interests and the interests of others, including apparatus and the recovery of costs
• powers to extinguish, divert, and create new public rights of way
• requirements
• the procedure for obtaining approvals and discharging requirements and an appeals mechanism
• miscellaneous provisions such as for the certification of plans and documents, electronic communications, and the application of landlord and tenant law
• Deemed Marine Licences (DML) where required

3.3 Schedules to the DCO (given effect by an operative article in the main body of the DCO) set out more detail on the exercise of and controls on the powers set out in the articles, as well as providing more information about the scope of the DCO.

3.4 It is standard practice for Schedule 1 to the DCO to set out the description of the proposed authorised development and any associated development as numbered works, while Schedule 2 commonly sets out all the requirements which govern the exercise of various powers in the DCO. Other Schedules will typically include the detail of matters such as closure and alterations to streets, rights of way, protective provisions to cover the interests of affected statutory undertakers, as well as the detailed provisions of any DML.

4. The main components of a draft DCO

Definitions

4.1 Section 235 of the Planning Act contains a range of definitions of terms used in the Act. Definitions in a draft DCO should refer to these without setting them out again, to avoid any unnecessary repetition, or, where the draft DCO definition differs from that in the Planning Act, provide an explanation and justification for this conflict in the EM. It is essential that the draft DCO is precise in its meanings and therefore definitions will often need to be bespoke to the development which is the subject of the DCO. In all circumstances, in accordance with established statutory drafting convention, definitions should be kept simple and not amount to extending the scope of the development consent granted by the DCO.

Defining ‘commencement’

4.2 “Commencement” is a key definition in a DCO as the authorised development cannot legally commence until all pre-commencement requirements have been discharged. For this reason, having received development consent, developers may seek to carry out site surveys and some preliminary works without formally “commencing” the authorised development, while working through the process of discharging pre-commencement requirements. To achieve this outcome lawfully, DCOs normally contain a definition of commencement which allows for specified preliminary works to be carried out that will not be considered a material operation which begins the development in accordance with section 155 of the Planning Act.

4.3 The definition of commencement should not provide for preliminary works which are so extensive that they would potentially give rise to significant environmental effects themselves, and would therefore normally need consideration and approval by the discharging authority prior to such works starting. Typical examples of matters which are not acceptable preliminary works include major earthworks, and activities potentially affecting protected species or archaeological remains, unless appropriate controls are secured in another manner.

4.4 The proposed definition of commencement and any permitted pre-commencement works or permitted preliminary works, and the extent of controls over matters such as hours of working and construction noise levels, are likely to be carefully considered by the Examining Authority throughout the course of an examination of the application, with reference to the specific circumstances of the proposed works.

Defining ‘maintenance’

4.5 Most DCOs will include a power for the undertaker to maintain the authorised development. The definition of maintenance must not be so extensive as to permit the replacement of the consented development with the construction of what is effectively a wholly new project. The maintenance activities defined and authorised in the DCO must be consistent with what has been assessed in the Environmental Impact Assessment (EIA) and set out in the Environmental Statement (ES) and should not be so wide or flexible that materially new or different effects could arise from those assessed. It is therefore appropriate for DCOs to include appropriate limits over the way maintenance is defined.

Description of the development

4.6 It is essential that the draft DCO accurately defines both the land over which powers are required and the works to be undertaken. In turn these definitions must be consistent with the land and works plans submitted with the application under Regulation 5(2)(i), (j) and (o) of the APFP Regulations.

Associated development

4.7 The Planning Act provides that, in addition to the development for which development consent is required under Part 3 of the Planning Act (“the principal development”), consent may also be granted for associated development, recognising that each case will have its own range of such matters and that technological innovations may give rise to new types of associated development not yet identified.

4.8 Associated development is defined in section 115 of the Planning Act. It is of relevance to development proposals in England and Wales, but not in Scotland. In Wales it is only in respect of limited classes of development (surface works, boreholes or pipes associated with underground gas storage by a gas transporter in natural porous strata of a prescribed capacity and flow rate; or if the principal development proposal is for the construction or extension of a generating station that has a capacity of above 350MW and is either non-wind or offshore, or an above ground electric line).

4.9 There is not a definitive list of items which constitute associated development for each category of NSIPs set out in Part 3 of the Planning Act. It is for the applicant to identify what other works are required to support the principal development and justify the need for these in the EM. The impacts of the whole of the proposed development including any associated development must be assessed in the EIA. Any request for a screening or scoping opinion should include a clear description of any proposed associated development, or the expected parameters where it is not yet fully defined. This will ensure that the associated development is considered in the Planning Inspectorate’s decision-making on the determination of EIA screening and/or the scope of information to be provided in an ES.

4.10 On submission of a DCO application, as part of the acceptance process the Planning Inspectorate is likely to review and consider the approach taken to some elements of development included as associated development. Once the application is accepted, the Examining Authority may wish to pursue this further, as well as the balance between the principal development and items of associated development. Applicants are encouraged to consider the approach taken to associated development in existing made DCOs. It is recommended that the following principles are taken into account:

• Associated development requires a direct relationship with the principal development. It should therefore either support the construction or operation of the principal development or help address its impacts.
• Associated development should not be an aim in itself, but should be subordinate to the principal development. In most cases, it will be typical of development brought forward alongside the relevant type of principal development or of a kind that is usually necessary to support a particular type of project, for example changes to access, landscaping, drainage and signage in relation to a highway NSIP.
• Development should not be proposed as associated development if it is only necessary as a source of additional revenue for the applicant, in order to cross-subsidise the cost of constructing or operating the principal development.
• Associated development should be proportionate to the nature and scale of the principal development. However, this principle should not be read as excluding any associated infrastructure development that is on a larger scale than is necessary to serve the principal development if that associated infrastructure provides capacity that is likely to be required for another proposed major infrastructure project. For example, in the case of an application for an offshore generating station, it may be appropriate for a degree of overcapacity to be provided in respect of the associated transmission infrastructure, so that one or more planned future projects may also benefit from it. Applications which include elements designed for the basis of overcapacity would be expected to demonstrate the need for such overcapacity and must fully assess the environmental effects.

4.11 However, whether or not development constitutes the principal development or development associated with it, the proposed development or authorised development (generally set out in Schedule 1 of the DCO) as a whole may be subject to requirements or approvals as specified in other provisions of the DCO.

Housing

4.12 Section 115 of the Planning Act provides for “related housing development” in a DCO application for any of the categories of NSIP specified in section 14 of the Planning Act, and any projects that are directed into the system under section 35 of the Planning Act. Development consent cannot be granted under section 115 of the Planning Act for related housing development if it, or the principal development for which consent is required, is in Wales. Section 115(7) of the Planning Act requires the Secretary of State to take into account any matters set out in this guidance when deciding a DCO application that includes related housing development.

4.13 Development consent may be granted for related housing development in two specific circumstances:

1) Where there is a functional need for the housing for the construction or operation of a project.

Where housing (rather than temporary accommodation) is needed for construction workers, or to support a 24-hour presence on the site for key workers, the maximum amount of permanent housing that can be granted development consent as related housing development is normally 500 dwellings. There may be some situations in which an applicant chooses to provide housing for construction workers which is of a standard that will allow these dwellings to be retained as, or converted to, permanent dwellings once construction of an infrastructure project is complete. In such cases, dwellings to accommodate more than 500 workers may be consented for the construction phase of the project providing the number of permanent dwellings after any conversion is 500 or fewer. The requirement for conversion should be included in the draft DCO. 

Housing provided on the basis of a functional need will normally be located close to the infrastructure project concerned. However, it may be more sustainable in overall terms to provide housing elsewhere, for example in a local town with better access to other local services and facilities. Such related housing development is likely to be acceptable as long as it is within reasonable commuting distance of the infrastructure being constructed. 

2) Where the related housing development is not functionally linked to the infrastructure project but is geographically proximate to it.

Where housing is not functionally linked to the proposed development the maximum amount of permanent housing that could be granted development consent is normally 500 dwellings. It is very unlikely that the Secretary of State will consent more than 500 dwellings for a single NSIP. Where related housing development is proposed as being proximate to any part of the project rather on the same site as or is next to it, this means up to 1 mile away from any part of the infrastructure (excluding any associated development) for which development consent is being sought.

The Secretary of State expects any related housing consented on the basis of geographic proximity to an infrastructure project to include a percentage of affordable housing in accordance with any policies set out the relevant development plan and National Planning Policy Framework (NPPF). Affordable housing should be secured through a section 106 agreement between the applicant and the local planning authority.

4.14 A DCO application that includes related housing development may also include other development such as local infrastructure provided it is associated with, integral to and proportionate to that housing, and meets the principles for associated development set out above. Irrespective of whether related housing development is being provided on the basis of functional need or geographic proximity, in locations where specific policies in the development plan or NPPF indicate that development should be restricted, a lower number of dwellings, or no housing at all, is likely to be appropriate. Such locational constraints and the amount of housing being sought will be considered by the Examining Authority during the examination and the Secretary of State when reaching a decision on the application.

4.15 A draft DCO can include provisions for temporary accommodation (for example construction workers) which may be associated development rather than related housing development, provided it does not amount to the construction or extension of one or more dwellings. There is no limit to the amount of temporary accommodation units that may be provided. However, the draft DCO will need to provide for temporary accommodation to be removed or demolished once construction of an infrastructure project is complete, unless a separate planning permission (under the Town and Country Planning Act 1990) has been granted for its retention.  

Limits of deviation and other parameters

4.16 In a situation where some details of the proposed development are uncertain, environmental assessment should be carried out on a reasonable worst case or ‘Rochdale Envelope’ basis. This approach involves assessing a range or envelope of development options to ensure decision‑making proceeds on the basis of an assessment of the reasonable worst case, in terms of the likely significant environmental effects of the proposed development. In all cases, however, the  parameters in the draft DCO must ensure that the proposed development does not give rise to effects that have not been properly assessed as part of the DCO process.

4.17 Some DCOs allow the final positioning and nature of works to be subject to detailed design or site investigation. This may be the case where the exact route of a new or altered highway or the micro siting of electricity pylons is unknown, for example. The draft DCO will usually set out the location of numbered works, subject to lateral (horizontal) and/or vertical limits of deviation. In all cases it is recommended that these limits are specific to the individual works and kept to the minimum, although it is acceptable common practice for groups of individual works to have a common set of limits or other parameters. The reasoning for the need for and extent of the limits of deviation should be set out in the EM.

Application, modification or exclusion of statutory provisions

4.18 A draft DCO may propose to apply, modify or exclude an existing statutory provision (unless specifically excluded under the Planning Act), and the proposed application, modification or exclusion may be specified in a corresponding Schedule. This Schedule can identify the applied, modified or excluded provision, the Act or SI Number of the relevant provision, and clearly detail the circumstances in which the application, modification or exclusion will come into effect. Where the draft DCO seeks to apply, modify or exclude an existing statutory provision, appropriate justification must be provided in the EM and/or the Statement of Reasons where applicable for the Secretary of State to consider.

Compulsory acquisition and temporary possession

4.19 The Planning Act provides for the inclusion in a DCO of powers of compulsory acquisition of interests in and rights over land and the power to take temporary possession of land. Many DCOs also authorise interference with rights in land to facilitate construction. An applicant may also include powers in a draft DCO to extinguish and suspend private rights over land it proposes to acquire, or that it already owns, to ensure that there are no impediments to the delivery of the proposed development.

4.20 There are specific provisions in Chapter 1 of Part 7 of the Planning Act relating to statutory undertakers, Crown land, commons, allotments and open spaces and land held inalienably by the National Trust.

4.21 Regulation 6 of the Infrastructure Planning (Interested Parties and Miscellaneous Prescribed Provisions) Regulations 2015 (“the IPMPP Regulations”) limits the period in which compulsory acquisition powers can be exercised to five years from when the DCO powers come into force, though a longer or shorter period can be specified in the DCO itself under section 154 of the Planning Act. However, given the uncertainties that a lengthy delay to implementing approved compulsory acquisition powers can have for some landowners, seeking a period of longer than five years will require particular justification to demonstrate to the Secretary of State that this is necessary and proportionate.

4.22 It may be appropriate to include a power to impose restrictive covenants over land within the Order Limits, and such cases will need to be explained and justified in the EM. Where land is proposed to be subject to the imposition of restrictive covenants, draft DCO provisions must identify the land to which they relate and the nature of the restrictive covenant to be imposed.

Protective provisions

4.23 It is recommended that protective provisions are included as Schedules to the DCO where the proposed development interacts with land and apparatus owned and/or operated by statutory undertakers and other parties. Protective provisions are usually agreed with key statutory undertakers, such as utility companies, but may also need to be agreed with other bodies or organisations for example Network Rail, National Highways, the Environment Agency, local authorities and drainage authorities.

4.24 It is not acceptable to submit a draft DCO with blank schedules for protective provisions on the basis these will be supplied during the examination, and to do so means the application is highly unlikely to be accepted for examination by the Planning Inspectorate under section 55 of the Planning Act.

4.25 Applicants should therefore aim to agree the form of protective provisions with the relevant parties for inclusion in the draft DCO prior to submitting the application for development consent. Most statutory undertakers have now developed their own preferred form of protective provisions which is very helpful to the preparation of the draft DCO. However, these must be adapted as necessary, so they accurately reflect the proposed development. Furthermore, they should not simply negate the principal provisions of the DCO and thereby become an impediment to implementation of the project, for example by conferring unfettered plan approval procedures at detailed design stage that could be operated by the statutory undertaker to frustrate delivery of the project.

4.26 However, provisions exempting land belonging to a statutory undertaker from broad compulsory acquisition provisions within the draft DCO, for example to avoid engaging the additional requirements in section 127 of the Planning Act, may be acceptable if the applicant can demonstrate that the necessary land interests and rights have been, or will be, obtained by agreement with the statutory undertaker concerned.

4.27 Where agreement on protective provisions has not been reached during the pre-application stage, it is recommended that applicants include their preferred drafting taking into account the protective provisions commonly agreed by the relevant party (usually statutory undertakers). The Examining Authority will recommend a final form of any relevant protective provisions which are bespoke to the application under consideration for final decision by the Secretary of State, which may mean that departures from the relevant party’s template or standard protective provisions are required.

Non-planning consents, permits and licences

4.28 One of the advantages of the Planning Act is the ability to include several non-planning consents within the draft DCO. The DCO can disapply the need for the consents to be obtained separately in the usual way or by deeming them to have been given by the DCO. This streamlining enables projects to move from consent to delivery efficiently, avoiding the need for a substantial volume of permits and licences to be obtained post-consent.

4.29 However, a consent or authorisation prescribed in the IPMPP Regulations is subject to section 150 of the Planning Act. This means that a provision in the draft DCO disapplying the need for the consent can only be included if the relevant body who would otherwise be responsible for granting it has consented to the inclusion of the provision. Where sufficient information is not available for statutory bodies to provide consent, or they are unwilling to do so for other reasons, applicants are required to seek the necessary approvals separately to the DCO process.

4.30 The experience from those DCOs granted to date suggests that little use has been made of the provision in section 150 of the Planning Act. Whilst the disapplication of other consenting regimes can be complex to organise, the example of the Marine Management Organisation in handling DMLs under section 149A of the Planning Act within the body of DCOs shows that this should not be an impediment.

4.31 The government’s expectation therefore is that where an applicant proposes a provision within their draft DCO to remove a requirement for a prescribed non-planning consent to be granted by the relevant body, the body that would normally be responsible for granting this consent should make every effort to agree to the proposal. Such a body should only object to the inclusion of such provision with good reason, such as an insufficient level of information being available until post-consent work is carried out, and after careful consideration of reasonable alternatives. It is therefore essential that such bodies are consulted at an early stage, and that applicants give thorough and early consideration to this aspect of pre-application preparation.

4.32 Some projects will require permits to implement DCOs which lie outside the provisions of section 120 of the Planning Act, for example certain environmental permits to operate a particular development to be issued by the Environment Agency. In this case, an applicant should confirm if any permits outside the scope of section 120 of the Planning Act are required for the proposed development at an early stage in the preparation of an application and normally make the appropriate application in respect of the environmental permit simultaneously with the DCO application where possible. Applicants should also consider the timing of applying for and securing such consents, including how this aligns with the DCO application and examination timetable, and whether there is any potential impediment to the permit being granted. Further guidance is provided by the Environment Agency (‘Check if you need an environmental permit’ and ‘guidelines for development requiring planning permission and environmental permits’).

Hedgerows and trees

4.33 Applicants may include an article within the draft DCO to allow the removal of hedgerows (if necessary) for the purposes of carrying out the authorised development without the need to first secure consent under The Hedgerows Regulations 1997. Such an article can either refer to the specific hedgerows intended for removal described clearly in a Schedule or be drafted to include powers for general removal of hedgerows subject to appropriate controls and mitigation being included.

4.34 Similarly, applicants may include powers allowing them to fell, lop or cut back roots of trees subject to a Tree Preservation Order (TPO). This power can extend to trees which are otherwise protected by virtue of being situated in a conservation area. The key requirement is to clearly set out the conditions which must be met before the power can be used, and to identify the affected trees and the works permitted to each tree in a Schedule.

4.35 The applicant should ensure that the powers sought in respect of hedgerows and trees do not exceed what is necessary or proportionate for the delivery of the proposed development.

Biodiversity net gain

4.36 Applicants must include an outline biodiversity gain plan as part of their DCO application. The purpose of the outline biodiversity gain plan is to set out the strategy for how the proposed development will deliver the statutory biodiversity gain objective of at least 10%. It must include the matters set out in the relevant biodiversity gain statement. The Secretary of State will not grant an application development consent unless satisfied that the biodiversity gain objective is met, as set out in the relevant biodiversity gain statement.

Requirements

4.37 Section 120 of the Planning Act provides that a DCO may impose requirements in connection with the development for which consent is granted. Such requirements may correspond with conditions which could have been imposed on the grant of planning permission under the Town and Country Planning Act 1990 and should be sufficiently justified for that particular project in context. In this regard, the relevant paragraphs of the National Planning Policy Framework and associated Planning Practice Guidance concerning conditions should be taken into account. Requirements should therefore be precise, enforceable, necessary, relevant to the development, relevant to planning and reasonable in all other respects.

4.38 Requirements can cover a wider variety of issues, typically:

• ensuring the authorised development is carried out in general accordance with design drawings secured by the DCO and parameters
• ensuring the authorised development is constructed in accordance with a phasing scheme submitted by the applicant for approval
• securing the monitoring, reporting and adaptive management of mitigation for environmental and other effects, including Biodiversity Net Gain requirements

4.39 Any mitigation measures relied on in the ES must be effective and capable of being delivered. Such measures will often be identified in relevant management plans such as a Code of Construction Practice, or a Construction Environmental Management Plan and/or a Site Waste Management Plan. Mitigation measures must be appropriately secured, and this will generally be achieved through the requirements in the draft DCO. Management plans which become the subject-matter of requirements will usually be required to become certified documents (see below).

4.40 Requirements can impose an obligation on the applicant to seek approval of final details of the proposed development prior to construction. These should typically be drafted without tailpiece mechanisms that simply provide for their own subsequent variation, but at the same time should not prevent the discharging authority from approving details which would lead to environmentally better outcomes than those set out in the ES where appropriate.

4.41 There are instances where proposed requirements in a draft DCO will interact with the conditions of an existing planning permission for development in or adjacent to the site or with other DCOs. Applicants are therefore encouraged to consider these interactions thoroughly to ensure that any specific conflicts are identified and any drafting in the DCO put forward to deal with the conflicts is clearly justified.

4.42 Applicants will need to include requirements in the draft DCO to secure that the biodiversity net gain  objective will be met so that the Secretary of State can grant development consent. Further detail on what these requirements must secure is set out in the biodiversity gain statements.

Discharge of requirements

4.43 The body to whom the applicant will need to apply for the discharge of each requirement must be named in the draft DCO. For some requirements the discharging authority will be the relevant planning authority for the area(s) in which the development is situated, sometimes in consultation with a named statutory body or other authority.  For other requirements, discharge may be by another statutory body directly or the Secretary of State.

4.44 Where arrangements exist between applicants and the Secretary of State, for example with National Highways concerning discharge of requirements in highways DCOs, these will not ordinarily be recommended for amendment by the Examining Authority. Unless such arrangements exist, applicants are encouraged to agree wording with the discharging body as early as possible during the pre-application stage prior to submission of the application to the Planning Inspectorate. Where a different body may be consulted on the discharge of a requirement prior to determination by the discharging authority, this should be made clear in the wording of the relevant requirement.

Appeals mechanism

4.45 A draft DCO typically provides for the applicant to appeal against a decision of a discharging authority (where that discharging authority is a planning or highway authority) concerning requirements where it disagrees with a decision. In some cases, as noted above, standing arrangements between the Secretary of State and an applicant mean that the Secretary of State is the discharging authority. In such cases, the decisions of the Secretary of State are unlikely to be the subject of an appeals process, and this should be confirmed in the EM.

4.46 There are two possible approaches to providing for an appeals mechanism in the draft DCO, which applicants may adopt depending on the specific proposal. The first is to import the standard appeals process from the Town and Country Planning Act 1990, with modified versions as appropriate of sections 78 and 79 of the Act. There are many examples from made DCOs to guide applicants. The second is to set out in detail in the draft DCO a bespoke appeals mechanism. In this case, the Planning Inspectorate has produced standard drafting, to which applicants should have regard, but which will need to be tailored to the specific circumstances of the proposed development.

4.47 Usually, provision for forms of arbitration in a draft DCO in relation to the discharge of requirements will be unacceptable to the Secretary of State.

Certification of plans and documents

4.48 It is conventional to provide an article and Schedule in the draft DCO listing a range of plans and other documents which are required to be certified as true copies by the Secretary of State following approval of the DCO. Applicants should consider carefully which documents require certification, as it is a lengthy and time-consuming task and sometimes is not completed until well after the approved development is well into implementation. Applicants should therefore limit the number of plans and documents needing certification to those which relate to a particular provision of the draft DCO such as a requirement, and particularly which may be different to the version of the plan or document submitted as part of the application.

4.49 Where required mitigation is to be implemented through management plans or control documents pursuant to articles or requirements of the draft DCO, those plans or documents should be included in the list of documents to be certified in order to provide greater certainty.

4.50 Applicants are also encouraged to consider the use of digital certification and publication of certified versions. Digital approaches can support timelier certification, improve accessibility, and ensure that definitive versions of approved plans and documents are readily available to stakeholders.

Deemed Marine Licences

4.51 Subject to geographic restrictions, a DCO may include provision deeming a Marine Licence (DML) to have been issued under Part 4 of the Marine and Coastal Access Act 2009 for the activities specified in the DCO. This power is conventionally set out in an article, with the DML itself contained in a specific Schedule.

4.52 The Marine Management Organisation (MMO) (in England) or Natural Resources Wales (in Wales) must be engaged in the form and content of the proposed DML and the conditions to which it should be subject as it will be the body discharging them. Where applicants seek to have a marine licence deemed in a draft DCO, they should seek to agree the draft DML with the MMO or Natural Resources Wales prior to submitting the application to the Planning Inspectorate (further advice is provided by the Planning Inspectorate on working with the MMO and Natural Resources Wales).

4.53 It is recommended that the Schedule containing the details of the DML is drafted so that it is effectively a self-contained document that can be understood without reference to the wider DCO. For example, relevant definitions and project works should be set out within the DML Schedule. Furthermore, requirements in the draft DCO must not conflict with conditions attached to the DML. Whilst the DML will be approved as part of a DCO, Schedule 6 to the Planning Act precludes subsequent changes to a DML by the Secretary of State through the Schedule 6 process, as changes can only be made by the MMO or Natural Resources Wales following a variation request.

DCO revisions

4.54 Changes to the wording of a draft DCO are usually put forward by the applicant and others during the course of the examination. This may be for several reasons, such as responding to:

• questions raised by the Examining Authority
• representations made by interested parties
• agreements reached with other interested parties, for example in relation to protective provisions or revisions to requirements

4.55 Given the central importance to the NSIP process of the DCO itself, it is in all parties’ interests that it is given thorough scrutiny by the Examining Authority during the examination and amended as appropriate so that the final form can be considered by the Secretary of State.

4.56 It is recommended that the examination timetable makes provision for revised version(s) of the draft DCO to be submitted by the applicant. As the form of the draft DCO at the end of the examination can often differ substantially from that submitted as part of the application, it is important that there is a clear audit trail (such as through the use of versions displaying tracked changes) to identify both the extent of changes to the draft DCO made during the examination, and the reasons for those changes. This will greatly assist the Secretary of State in understanding how the final form of any DCO that is recommended by the Examining Authority has evolved.

4.57 An editable (e.g. in a Microsoft Word document) version of the recommended version of the draft DCO (in a Statutory Instrument template or any successor format) is  required by the Secretary of State alongside the Examining Authority’s recommendation report.

4.58 Once approved by the Secretary of State, a DCO can only be altered in accordance with the corrections and changes processes set out in section 119, and Schedule 4 to the Planning Act, and section 153 and Schedule 6 to the Planning Act respectively.

5. The Explanatory Memorandum

5.1 Regulation 5(2)(c) of the APFP Regulations requires that the draft DCO must be accompanied by an EM explaining the purpose and effect of each provision in the draft DCO. The EM is used by the Examining Authority and the Secretary of State as decision-maker to help understand what is proposed in the draft DCO, why particular provisions have been included, and from where the wording has been derived. Such information therefore needs to be more than a mere description of the proposed provision.

5.2 A justification must be provided in the EM, explaining why the inclusion of each provision is appropriate in the specific case and setting out its purpose and function. The extent of justification should be proportionate to the degree of novelty and/ or controversy in relation to the inclusion of that particular provision.

5.3 There is no obligation on applicants to explain where and how the DCO drafting departs from the model provisions set out in the Infrastructure Planning (Model Provisions) (England and Wales) Order 2009 as compliance with it has not been required since 2015. Nonetheless, as noted in section 2 above applicants do still find it useful to have reference to model provisions, and the government’s intention is to produce an updated version as additional guidance by Summer 2027.

5.4 While applicants may refer to the fact that the formulation of a particular article or requirement exists in made DCOs, a justification must be provided as to why the article or requirement is appropriate in the specific circumstances of the draft DCO. A statement that a provision has appeared in an existing DCO will not suffice.

5.5 As the draft DCO is revised during the course of the examination, the corresponding reasoning in the EM will need to be updated accordingly. A fully updated EM must be submitted with the final version of the applicant’s draft DCO towards the end of the examination, or earlier where requested by the Examining Authority.

Published 3 July 2026