1025: 2024 in infrastructure and recent cases

This week’s entry looks ahead to the coming year and reports on three relevant court cases.

Happy new year! Infrastructure policy in 2024 is likely to be dominated by the forthcoming election, (which technically doesn’t need to take place until January 2025 but will almost certainly be this year). The designation of perhaps six revised National Policy Statements (five energy, one road, and one rail) should also happen this year. These will be the first revisions to existing NPSs and are a long time coming.

There are no definite legislative changes in the offing (for biodiversity net gain, see later; it’s not this year for DCOs), but there are proposals relating to ‘project speed’. Will any changes, such as mandatory paid pre-application advice and selected third-party costs, be implemented before Parliament is dissolved?

In terms of decisions, there are no fewer than 11 applications at their decision stage. The only quashed decision awaiting redetermination is for the Aquind interconnector, which could happen at any time. The other projects are the A12 Chelmsford upgrade (due by 12 January), the Drax Bioenergy with CCS and Sheringham and Dudgeon offshore wind extensions (both due by 17 January), the thrice-delayed Net Zero Teesside project (due 16 February), the Medworth energy from waste project (due 21 February), the once-delayed A66 project and twice-delayed Sunnica solar farm (both due 7 March), the Yorkshire Green overhead line (due 14 March), the once-delayed North Lincs Green Energy Park (due 15 March), the HyNet CO2 pipeline project (due 20 March), and the four-times delayed A1 Morpeth to Ellingham project (due 5 June).

Another 20 applications are somewhere between having been initially made and a recommendation being issued by the panel of inspectors, so it’s a busy year all around.

Now for some recent court cases of interest.

Sizewell C challenge fails in Court of Appeal

The challenge to the grant of the Sizewell C DCO launched by Together Against Sizewell C has been unsuccessful in the Court of Appeal, having also been unsuccessful in the High Court. The judgment was issued on 20 December and can be found here.

The point at issue was the assessment of the effect on habitats of providing a permanent water supply to the project. Was that a separate project, and if so, should its cumulative effects have been assessed?

The essence of the judgment is to confirm that the nuclear power station promoted by EDF Energy and a water supply project to be promoted later by Northumberland Water Ltd (or even the fall-back of EDF promoting its own permanent desalination plant) were different projects, and any dependence on the latter by the former did not make it the same project.

Furthermore, it was legitimate in such circumstances to adopt a staged approach for environmental assessment and appropriate assessment. The water supply project was not yet sufficiently defined but would involve these and would include a cumulative assessment if necessary. It is interesting to consider what would happen if the subsequent development did not need EIA / AA.

Considerations that this might end up with a built-in but inoperable power station or that it would be hard to refuse the water supply project if the power station had been built were dismissed. By the way, judges, ‘adumbrate’ doesn’t mean ‘delineate’; it means ‘foreshadow’.

How mandatory BNG might affect decision-making

Biodiversity net gain becomes a mandatory requirement for larger planning applications later this month (the precise date is still not yet known), for smaller ones from 1 April and for DCO projects from November 2025, so the latter regime has the benefit of the town and country planning regime sorting out the issues beforehand.

A town and country planning challenge was successful in November because an inspector erred in pre-empting the mandatory requirement in what seems like a clear error, but it sheds light on how BNG might be approached in the future.

In the Saredon Aggregates case, an inspector had reduced the weight to be given to a nearly 40% increase in biodiversity units because ‘some of the biodiversity net gain that would be achieved is required to meet national policy and future legislative requirements in order to mitigate the environmental impact of the development’. The refusal was quashed because ‘future legislative requirements’ should not have been a factor in the decision. Fair enough. But does that mean that less weight is placed on the benefits of biodiversity net gain when it does become a statutory requirement?

This could be quite a key question for DCO projects, decisions on which are based on whether the benefits outweigh the adverse impacts. Should the first 10% of any BNG be discounted as being a legal obligation, and only anything beyond that count as a benefit? I think the initial net gain is still a benefit.

Novel approach to silencing objectors

I wouldn’t recommend this as a general tactic, but the Guardian is carrying a story about Farnborough Airport expansion, where the police have issued one of its main critics with an ‘asbi’ (anti-social behaviour injunction, the new asbo) for aggressively bombarding the airport with endless questions. The story can be found here. Just thought you’d like to know.

Don’t forget the competition from Blog 1023 is still running until Monday, January 8 2024—there is just time to get your entry in!