Development Consent Orders: What Applicants Must Now Judge

Government has confirmed that organisations behind major infrastructure projects, from power stations to reservoirs, face no statutory duty to consult the public before applying for Development Consent Orders. From 24 July 2026, pre-application engagement becomes a matter for their own judgement, guided by principles rather than a prescribed process. The change reshapes where legal risk sits, not whether it exists.

What has the government actually changed?

Major infrastructure projects, the power stations, reservoirs and rail lines too large for routine planning permission, are about to lose a long-standing legal requirement. From 24 July 2026, the organisations that build them will no longer have to consult the public before applying for consent.

The change follows the government’s response to the consultation on streamlining infrastructure planning, published on 3 July 2026. It confirms how government will implement the Planning and Infrastructure Act 2025 (PIA 2025), the law passed last year that reformed how these projects are approved.

In law, these projects are called Nationally Significant Infrastructure Projects, or NSIPs. Instead of routine planning permission, they need a Development Consent Order, or DCO, granted under the Planning Act 2008.

The change is a significant one for anyone who has built a career on statutory pre-application consultation. Until now, consulting the public before submitting a DCO application was a legal requirement, not a choice.

Consultation will not form part of the acceptance test under section 55 of the Planning Act either. Engagement becomes discretionary, shaped by four principles government intends to confirm in guidance:

1. Frontloading
2. Proportionality
3. Openness and transparency
4. Timeliness

Applicants decide the nature and extent of engagement on their own project. Nobody else signs it off before submission, and there is no longer a consultation report to produce as a matter of statutory obligation.

Why does removing a statutory duty not remove legal risk?

This is the point practitioners should not miss. A statutory duty to consult created a clear, checkable standard. Its removal does not remove the question a court will still ask if a decision is challenged: was the process fair to those affected?

The Gunning principles are the common law test for fair public consultation. They come from R v London Borough of Brent, ex parte Gunning (1985) 84 LGR 168, and were confirmed by the Supreme Court in R (Moseley) v London Borough of Haringey [2014] UKSC 56.

These principles attach to consultations that are actually run, not to a statutory trigger. An applicant who chooses to engage, however informally, can still be judged against that fairness standard if a legal challenge follows.

The acceptance test will not assess consultation, but it will still test whether an application contains enough clear, coherent information to support examination. Thin engagement tends to produce thin evidence, and gaps left at pre-application do not disappear.

Those gaps resurface at examination instead. The Planning Inspectorate appoints an Examining Authority, one or more inspectors, to test the application. Early in that process it publishes an Initial Assessment of Principal Issues, or IAPI, setting out the main issues the examination will focus on.

Unresolved gaps are more likely to surface here, at far greater cost and delay than resolving them earlier would have been.

Risk has not left the system. It has moved from a statutory checklist to the applicant’s own judgement, and judgement is exactly what gets tested in judicial review proceedings. Practitioners already weighing consultation risk against the Gunning principles will recognise the shift immediately.

What should applicants and local authorities do differently now?

Applicants need a documented rationale for their engagement choices, not just a record that engagement happened. Government has indicated that tools such as Issues and Engagement Logs, and Principal Areas of Disagreement Summary Statements, or PADSS, remain valuable. Even without a mandatory submission requirement, they demonstrate that issues were identified early and addressed in good faith.

Section 51 advice from the Planning Inspectorate should be treated the same way. Applicants may depart from it, but a recorded reason for doing so is now the difference between a defensible judgement call and an unexplained gap in the record.

Local authorities have a parallel task, and a resourcing one. Government is contributing fifteen million pounds of additional funding to expand the Planning Inspectorate’s inspector numbers, alongside cost recovery arrangements intended to help local authorities and statutory bodies engage properly rather than by exception.

Guidance will encourage applicants to share applications with host authorities at submission, so that Local Impact Reports can be prepared, or drafted, earlier and feed into the IAPI. Authorities that wait for the old statutory rhythm will find themselves consistently behind a process that no longer waits for them.

None of this is a reason to over-engage defensively. Consultation responses repeatedly warned that unclear guidance risks gold-plating, engaging beyond what a project needs, as much as it risks doing too little. A consultation function that cannot explain, in writing, why it engaged the way it did on a live DCO project is carrying more exposure than it was twelve months ago, not less.

How tCI Can Help

Organisation Wide Learning Hub Access
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Training that works with your real projects, not hypothetical scenarios. Sector tailored sessions help teams apply good practice to live challenges: sharpening consultation documents, building defensible codebooks, strengthening equality analyses. Half day or full day workshops for health, local government, planning and public service teams.

Coaching for Complex or High Risk Consultations
Expert guidance when the stakes are highest. One to one and small group coaching for senior officers navigating legally exposed or politically contentious decisions. Strengthen your judgement on proportionality, evidence standards and challenge management. Essential for organisations that may face judicial review risk or major service changes.

Whether you’re preparing for a high stakes service change, building long term consultation capability, or need confidence that your evidence approach will stand up to scrutiny, we can help.

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