1030: Court delays for infrastructure, and making changes to DCO projects

Today’s entry looks at how long it takes for legal challenges to DCOs to be heard and determined, and also has a history of the ability to make changes within the scope of a DCO.

Courtroom drama

This week the Court of Appeal gave permission to a litigant to legally challenge the Manston Airport DCO. For background, the original DCO was made in 2020, and then the government conceded on a legal challenge. The application was re-determined and consent (re)granted in August 2022. That re-making of the DCO was then subject to fresh challenge (from the same litigant as the first judicial review claim). The High Court refused to grant permission for the challenge on the papers in January 2023, it was then given permission at a court hearing in March 2023, was heard in July 2023 and the claim was refused in September 2023. The High Court judge refused permission to appeal in October 2023 and the litigant sought permission directly from the Court of Appeal.

It has taken until this week, February 2024, for the Court of Appeal to grant permission to appeal in relation to that September 2023 High Court decision on a DCO made in the preceding year, being effectively the sixth stage of proceedings since then and so now a hearing will take place in the Court of Appeal in the coming months. The increasing lengths of time which critical infrastructure are delayed is not a one off. Even looking for a charitable example of the system acting more swiftly doesn’t instil great confidence: the A428 Black Caxton project had its DCO made in August 2022, and it took until May 2023 for all legal challenges to be dismissed.

Turning back to the Manston Airport decision, it was handed down by a non-planning judge, like the permission granted in respect of Sizewell C (which was then dismissed, though we understand that project may be making its way to the Supreme Court).

From my perspective, there is a clear case for distinguishing DCOs from conventional planning permissions in the context of the Aarhus Convention. The process is jam-packed with opportunities to be heard, and the repeated attempt to bring challenges (usually on substantively the same grounds) that have repeatedly failed is having significant effects on UK infrastructure.

Article 9 of the Aarhus Convention sets out that access to judicial procedures to challenge public authorities that contravene provisions of national law relating to the environment must not be prohibitively expensive. In practice, this means restricting the liability of claimants to pay the other side’s costs of £5,000 (if claiming as an individual and £10,000 in all other cases) and of defendants to £35,000. This is based on the laudable goal of ensuring individuals can hold public authorities’ feet to the fire on matters relating to environmental protection.

On the other hand, the cap acts as an incentive to relitigate every DCO decision, even where the ground has been covered, and delays nationally significant and critical infrastructure coming forward, bearing in mind that JR-induced delays to getting spades in the ground well exceed the court costs and run into the millions. This is by no means an easy issue to balance, but access to justice is fundamentally about ensuring people have had their fair go (and it is reasonable to suggest a lot of the litigants have had their fair go).

A History of ‘Materially New or Materially Different’

Could this be the most boring history ever written? Let’s find out.

Those working on DCOs will be familiar with the fact that most DCOs permit variations to the parameters of projects provided they do not lead to ‘materially new or materially different’ environmental effects. This is a useful tool in the toolbox to allow flexibility, ensuring value-engineered design and construction adjustments in the detailed design stage can be made without having to go through the arduous and disproportionate process of amending a DCO (either by a material or non-material amendment).

The first instance of the phrase ‘materially new or materially different’ was actually in a DCO that was ultimately withdrawn: the Fieldes Lock Rail-Linked Power Station project promoted by Veolia. That project was accepted but then withdrawn for commercial reasons, but if you go deep into the archives, the now-hidden draft DCO clearly uses the phrase ‘materially new or materially different environmental effects’. After that, it was then substantively used in a number of DCOs, including the Network Rail (Norton Bridge Area Improvements) Order 2014 and the National Grid (North London Reinforcement Project) Order 2014 (both promoted by BDB). In fact, the phrase is used in some form or another in 97 DCOs out of the ~130 DCOs made to date.

And yet, despite its long history and common usage, there is often a discussion about exactly what it means. There have been concerns that the subtle change from ‘materially new or materially different worse environmental effects’ to ‘materially new or materially different environmental effects’ increases the risk to contractors who propose environmentally better solutions. When confronted with such suggestions, the government has, until recently, rejected these concerns. For example:

• In response to these concerns, the Secretary of State stated in the A19 Testo’s correction notice that the terminology of ‘materially different’ does not prevent ‘the necessary scope for changes that are better for the environment, provided such changes do not result in significant effects that have not already been previously identified and assessed in the Environmental Statement’.
• In response to these concerns, the Secretary of State stated in the A303 Stonhenge (the first made version) that changing the drafting to “materially new or materially different worse environmental effects was not an error that is capable of correction but reflects the Secretary of State’s preferred drafting and ensures a consistency of approach across transport development consent orders.’
• In the Great Yarmouth Third Crossing decision letter, the Secretary of State stated that ‘“materially new or materially different” is wording preferred by the Secretary of State’.

I say this has been the government position until recently because we then got the A57 Link Roads DCO, granted in 2022, which uses the phrase ‘materially new or materially different worse environmental effects’. More recently, this issue was also picked up in the Getting Great Britain Building document published by DLUHC. In particular, that document notes that ‘under the status quo, developers are required to apply for additional planning permission if they propose project amendments that have ‘materially new or materially different environmental effects’. They therefore want to ‘make sure that project changes that will deliver positive impacts for projects, communities, and the environment can be approved more quickly’. There are a number of draft DCOs in the system that are seeking to address this serious issue and that respond positively to this (final!) acknowledgment that there may well be an issue in the ‘preferred’ drafting.

It’s worth noting that the phrase has been used in the conventional planning context for a great many years. Indeed, in a further sign of the Secretary of State’s evolving views on this question, the called-in application for the London Studios development granted planning permission this week even has a condition which uses the phrase ‘any materially and unacceptable or materially worse new adverse noise and vibration impacts’.