1004: Latest DCO decision, a highway judicial review and other news

This week’s entry analyses the latest decision on a Development Consent Order, a High Court judgment on a challenge to three highway DCOs and other news.

Latest DCO decision

The latest decision on an application for a Development Consent Order (DCO) (actually second-latest – see below) was for the twice-delayed Boston Alternative Energy Project.

• Project: a 102 MW (gross) energy from waste project in Boston, Lincolnshire;
• Promoter: Alternative Use Boston Projects Ltd;
• Application made: 23 March 2021;
• Application decided: 6 July 2023, 27½ months, considerably more than average;
• One inspector: Max Wiltshire;
• 27 relevant representations: low;
• Five written representations: low;
• 101 questions in the first round: low;
• Two issue specific hearings, no compulsory acquisition hearings, and no open floor hearings: the lowest I’ve seen;
• Two local impact reports, from Boston and Lincolnshire;
• Five consultations during the decision stage, which took a day less than a year; and
• 729 documents were on the Planning Inspectorate web page on the date of the decision: above average.

The Examining Authority recommended refusal unless habitat issues were resolved. Some notes from the decision letter.

Three environmental permits were needed, one of which was for a novel process, the other two were more routine. The uncertainty of the novel one caused moderate negative weight against the project. The project had to consider climate change adaptation as well as mitigation, being close to the east coast. The project would provide 36.8% biodiversity net gain on the main metric and 57.25% for hedgerows.

Fishing impacts were accorded minor negative weight, despite the Boston and Fosdyke Fishing Society being added as a consultee on the Navigation Management Plan. Impacts on water were only accorded minor negative weight despite the representations of the UK Without Incineration Network.

Unusually, the SoS amended the schedules of streets subject to alteration of layout and permanent stopping-up to accommodate a delivery route advocated by Natural England.

Natural England remained concerned about the impact on priority saltmarsh, and the SoS amended the DCO to add more protection. On habitats more generally, the SoS concluded that there were imperative reasons of overriding public importance (IROPI) for the project to proceed. Compensatory measures were not secured by the DCO but the SoS had confidence that there was enough detail for this to happen subsequently. The DCO provides that compensation amounting to the rescue and rehabilitation of five harbour seals a year must be provided.

Interestingly, the DCO includes the ability to vary the electricity generation cap, provided it stays within the environmental envelope of the project. We’ve noted how the imposition of caps for electricity generation are egregious, but this offers a novel way of enabling future technological changes that increase capacity without affecting the scale of the development consented to. One hopes the government makes a habit of not imposing caps at all or using the mechanism.

Congratulations to our client, Alternative Use Boston Projects, and our colleagues who helped support this project.

Finally, I have to mention the transport impacts on Liquorpond Street, just because it has such a great name.

High Court judgment

The High Court (Mrs. Justice Thornton) issued a judgment on a combined challenge to three nearby DCOs relating to improvements to the A47 trunk road in Norfolk. The judgment can be found here and the challenges were unsuccessful. Here is a summary.

For the record (and SEO), the three decisions were to grant the Blofield to North Burlingham, North Tuddenham to Easton and A11 Thickthorn Junction DCOs.

The sole ground was about cumulative carbon assessment, namely that the Secretary of State unlawfully failed to consider the cumulative carbon impact of the three projects and did not compare the combined emissions against the UK’s national carbon budgets. In legal terms, the question was whether the SoS approach breached paragraph five of Schedule 4 of the Environmental Impact Assessment regulations.

Despite describing the phrase used in the decision letter ‘inherently cumulative’ as ‘vague and unhelpful’, the judge held that the assessment was not unlawful. The cumulative impacts of the three projects were in fact addressed in the decision letter to some extent. However, that is pretty much irrelevant – as carbon emissions are a global issue, it doesn’t make sense to add projects’ impacts together just because they are near each other. As counsel for National Highways said, the effect on carbon would have been the same if they had been in Norwich and Oxford (choosing a modest 150-mile separation).

It is not explained how the contribution to carbon budgets from each project was 0.0001%, 0.004%, and 0.015% in their decision letters, but the claimant added these together with related local developments to get 0.47% (I get 0.0056%, just over 100th of that figure, but that doesn’t include the related developments).

The claimant has vowed to seek permission to appeal, although the irrelevance of spatial proximity argument seems to be a good one, so I don’t see an appeal being successful.

We noted last week that the attempt to constantly re-litigate an issue that has, once again, been endorsed by the courts means the NPS, or further reforms to judicial review, are required. Within an hour of that post being published, this decision is yet another example of that point in practice: nationally significant infrastructure projects are being delayed, at substantial cost to the public purse, on the basis of a matter in which the courts and the Secretary of State seemingly have an established practise.

Other news

The Hornsea Four offshore wind DCO was granted on 12 July 2023 despite the Examining Authority recommending refusal on habitats grounds. Full report in next week’s blog – this one’s long enough already!

The Climate Change Committee issued its annual report to Parliament on 28 June 2023 and can be found here. It reports that ‘Our confidence in the UK meeting its goals from 2030 onwards is now markedly less than it was in our previous assessment a year ago.’ Meanwhile, Friends of the Earth, ClientEarth and the Good Law Project are challenging the government’s second attempt at a Net Zero Strategy that was published in March. ClientEarth’s press release can be found here.

The government has named seven prospective DCO applications that are to participate in a trial of an enhanced pre-application service, which are listed here.

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