1027: Five NPSs, two DCO decisions and other news

This week’s bumper entry covers the designation of revised National Policy Statements, the first decisions of the year on Development Consent Order applications, and other miscellaneous news.

NPS designation

On 17 January 2024 the Secretary of State for Energy Security and Net Zero ‘designated’ the five revised energy National Policy Statements EN-1 to EN-5 (the sixth, EN-6 for nuclear power, is following a slower path and will probably be replaced by a completely new EN-7 next year). The five designated NPSs are linked from this page, or to save on clicks go straight to EN-1, EN-2, EN-3, EN-4, and EN-5.

Designation is the Planning Act 2008 equivalent of ‘adoption’ of a local plan; the new versions become *the* versions, and the old ones—designated way back in 2011, they’re not much younger than Luke Littler—are consigned to history. This is the first time any NPSs have been revised under the regime, and it’s been rather stop-start.

In particular, this means that low-carbon energy (and its connections) becomes a ‘critical national priority’ and its benefits rank higher against adverse impacts, and solar energy gets its own section of the revised EN-3. The Environmental Improvement Plan features heavily in EN-1.

DCO decisions

On 12 January 2024 – on time – the Secretary of State granted the application for the A12 Chelmsford to A120 Widening Scheme DCO.

• Project: a widening of the A12 from two to three lanes along 15 miles between junctions 19 and 25 in Essex;
• Promoter: National Highways;
• Application made: 15 August 2022;
• Application decided: 12 January 2024, 17 months, the expected length when the decision is not delayed;
• Two inspectors: Max Wiltshire and Jon Gorst;
• 213 relevant representations: above average;
• 36 written representations: above average;
• 129 questions in the first round: below average, but the ExA decided not to ask any on traffic and transport until later;
• Five issue-specific hearings, three compulsory acquisition hearings, and two open floor hearings are above average;
• Four local impact reports, from Braintree, Chelmsford, Essex, and Maldon;
• Two consultations during the decision stage; and
• 1265 documents were on the Planning Inspectorate web page on the date of the decision: above average.

Notes from the decision letter.

The project included a gas main diversion that was considered nationally significant in its own right, and its need was also considered. The other Secretary of State (for energy) was consulted during the decision period and did not have concerns, and the energy National Policy Statements were considered for this bit.

Dr. Boswell, a serial highway DCO challenger, was involved in this examination via his ‘Climate Emergency Planning and Policy’ group. The delay in the banning of new petrol and diesel cars was held not to be significant because the modelling does not assume a ban or even the current 80% mandate. The new draft NPS gets a mention on this issue and was considered by the Secretary of State.

There was the usual tussle between UK and WHO air quality standards; the latter are stricter but not part of UK policy or law. The new particulates target was considered.

On BNG, not mentioned in the decision letter but in the ExA report, the project would achieve 28.4% for the area metric, 34.49% for hedgerows, and 156.73% for watercourses, so well above the 10% minimum for each, despite it not yet being mandatory. One district authority wanted a separate calculation per district, but the applicant resisted this.

Rights of way were considered under ‘land use’ when they are usually in the socio-economic section.

There was an argument about detrunking; essentially, Essex County Council did not want to pay for maintaining detrunked highways. Compromise wording was added to the DCO. Going against many years of precedent, four requirements relating to local highways are to be discharged by the local authority and the rest by the Secretary of State. This was at Essex’s request and opposed by National Highways. This does not set a precedent for future DCOs, apparently.

There was a disagreement between the applicant and the Environment Agency on flood risk, which was the subject of the two decision-stage consultations. The Secretary of State decided that the initial concerns had been addressed.

There is a relatively long list of changes made to the DCO by the SoS on pages 72-75 of the Decision Letter.

On 16 January 2024 – a day early – the other Secretary of State granted the Drax Bioenergy with carbon capture DCO.

• Project: an extension to a biomass generating station to include post-combustion carbon capture at Drax in North Yorkshire;
• Promoter: Drax Power;
• Application made: 23 May 2022;
• Application decided: 16 January 2024, 20 months, somewhat longer than average;
• Two inspectors: Caroline Jones and Ben Northover;
• 283 relevant representations: above average;
• 12 written representations: about average;
• 223 questions in the first round: about average;
• Five issue-specific hearings, two compulsory acquisition hearings, and two open floor hearings, above average;
• One local impact report, from North Yorkshire and Selby jointly;
• Two consultations during the decision stage; and
• 911 documents were on the Planning Inspectorate web page on the date of the decision—about average.

Notes from this Decision Letter (only 19 pages compared with the earlier one’s 78 pages).

There is quite a useful early summary of what weight was given to each factor (from very great positive to little negative) at paragraph 4.3 (not sure what ‘neutral negative weight’ means, though, I think that’s a misprint and should just be ‘neutral’). Can we make that standard?

The issue of other consents (environmental permits) came up but was dismissed on the ground that there was no reason that they would not be granted.

Protective provisions for a CO2 capture pipeline were not included because National Grid announced during the examination that they were withdrawing from that separate project. A requirement imposed on the Keadby 3 project that it could not operate until the pipeline was operational was not imposed since this was not a consent for a new power station.

However, the applicant was not successful in arguing for a seven-year commencement period instead of the usual five, despite the ExA agreeing to it.

Only seven significant changes to the DCO were made: three reversing the time limit, two adding Natural England as a consultee, and two clarifying that it is the Secretary of State’s conclusions on habitats that matter, not the applicant’s shadow conclusions.

Other news

Before you get too excited about on-time decision-making, however, the decision on the Sheringham and Dudgeon windfarm extension has been delayed from 17 January 2024 for three months until 17 April 2024 – by affordability and skills minister Amanda Solloway. This is to ensure there is sufficient time for the Department to consider further information and to conduct any necessary consultation, apparently.

In an examination first (as far as I’m aware), on the Immingham Green Energy Terminal DCO application, the inspectors have issued their first questions (marked ‘draft’) more than a month before the Preliminary Meeting with a healthy two months to answer them (and a request not to answer them until the examination actually starts). It is interesting that various trials, such as late questions and early ones, are being tested.

A challenge to the East Anglia One North and Two windfarms by Substation Action Save East Suffolk (SASES) has been unsuccessful in the Court of Appeal. The judgment is here.

The grounds relate to flood risk and cumulative impacts. The appeal is rejected for essentially the same reasons that the High Court challenge was rejected (as stated explicitly for the flood risk ground at paragraph 47). On surface water flood risk, it is confirmed that a sequential test does not need to be carried out. On cumulative assessment, if there is inadequate information about other future projects likely to have cumulative impacts at the time of assessing a project, it is lawful to wait until those other projects come forward before carrying out a cumulative assessment (the Nautilus and Eurolink interconnectors in this case)—see paragraph 55 of the judgment.

This appeal is not to be confused with the challenge by the similar-sounding Suffolk Energy Action Solutions (SEAS), which was dismissed in July 2023. I think the windfarms are now free of challenge, but you never know.

Next, there is a story in the Times (paywall) that the Lower Thames Crossing application consisted of 2383 documents running to 359,000 pages. However, in the Examination Library for that project, there were only 554 application documents. I think what they’ve done is included all examination documents submitted by National Highways, which by my calculations is actually 2404, so 21 more.

But choosing the largest project to use the regime as an example of how it is too wordy is not very fair (although I agree that documentation, particularly environmental statements, has become longer and longer over time). Typical applications are much smaller but nevertheless due a ‘reset’.

Finally, the date of the introduction of mandatory biodiversity net gain has been announced for the Town and Country planning regime as 12 February 2024 for large sites and 2 April 2024 for small sites. DCOs are still on track for November 2025 although there is considerable pressure to provide at least 10% already.