1033: Medworth republished and solar farm quashed as it should have been a DCO

This week’s entry reports on the Medworth Energy from Waste DCO decision and a solar farm High Court judgment.

Medworth

After having been published on 20 February and then mysteriously withdrawn due to ‘clarification’, the decision documents for the Medworth Energy from Waste DCO application were republished on 28 February.

They are still dated 20 February, so does the six-week judicial review period start on 20 or 28 February?

Here are the facts and figures.

• Project: Energy from Waste project near Wisbech in Cambridgeshire.
• Promoter: MVV, which you really need to know stands for Mannheimer Versorgungs und Verkehrsgesellschaft.
• Application made: 7 July 2022.
• Application decided: 20 February 2024 (19 1/2 months).
• Two inspectors: André Pinto and Claire Megginson.
• 666 relevant representations, devilishly high.
• 164 questions in the first round, relatively low.
• Seven Issue Specific Hearings, three Compulsory Acquisition Hearings, and three Open Floor Hearings (on the high side).
• Two local impact reports from King’s Lynn and West Norfolk, and jointly from Fenland and Cambridgeshire.
• 891 documents were on the Planning Inspectorate webpage on the date of the decision: above average.
• One consultation during the decision stage. The decision for Medworth was made one day early (if you ignore the withdrawal and republication).

Notes on the Medworth decision letter:

In Safety of Rwanda Bill style, the decision letter declares that ‘the Secretary of State has complied with all applicable legal duties and has not taken account of any matters which are not relevant to the decision.’ That should stop any legal challenges.

Draft, now designated, revised NPSs EN-1, EN-3 and EN-5 were considered important and relevant to the decision but the old ones were still the ones to be relied upon. At what point during consideration of an application does it switch to the new ones?

There is an interesting summary of weight given to issues in paragraphs 4.8 – 4.10 (and repeated at paragraphs 7.2 and 7.3) – the Secretary of State gave minor negative weight to climate impacts, geology, hydrogeology and contaminated land, and the historic environment where the Examining Authority gave neutral weight.

On carbon emissions, although the project would emit over 8.2 million tonnes of CO2 over its lifetime, because the waste being incinerated would otherwise have gone to landfill, the developer calculated that the equivalent landfill would emit over 10.8 million tonnes of CO2 so the net effect would be a reduction of 2.5 million tonnes. As you can imagine several objectors disagreed with this analysis. The Examining Authority threw its hands up in the air and ‘stated that it cannot reconcile the differences between the parties on operational GHG emissions, agreeing with all parties that there are many variables.’ The Secretary of State agreed there were a lot of uncertainties and upgraded the weight of carbon impacts to minor negative.

The proposal is carbon capture ready but does not include the construction and operation of such technology within the application. The local MP noted that MVV was planning a carbon capture and storage (CCS) facility in its home town of Mannheim. The applicant said it could not commit to providing CCS until government support was known. The issue of CCS was given neutral weight.

In my view there should be stronger obligations to instal CCS technology as soon as possible, or 8 million tonnes of CO2 will have been released into the atmosphere unnecessarily. I don’t think just looking at the net figure is good enough. The carbon budget for the whole country will be 193 million tonnes in 2035.

The Secretary of State says she wants more frequent reporting of efforts to provide Combined Heat and Power (CHP), saying the DCO has been amended to require an initial report after 18 months and then every five years thereafter, but it looks to me like it already said that.

Landscape and visual was an issue, given the two 84-90 metre high proposed chimneys (quite a bit lower than 115 metres in the case of the early Brig y Cwm DCO application, though) and this issue was ascribed great negative weight. Not enough to outweigh the positive contribution of the project in the end, though. Requirement 6 requires 10% biodiversity net gain to be provided.

There is a curious paragraph (7.7) unrelated to the ones either side of it and lacking context about what ‘in development’ means, which apparently means under construction. Whether or not I agree with that, it seems to be a reference to paragraph 3.7.45 of EN-3.

There are nearly three pages of amendments to the DCO.

Solar permission quashed

In rather a complicated judgment that explored things like PDF metadata, the High Court has quashed a solar farm (town and country planning) permission in County Durham because it effectively allowed a solar farm of more than 50MW to be built, and a late ‘clarification’ to restrict it to 49.9MW was not valid. Here we have one solar farm that should have been a DCO, whereas recently we had two solar farms that correctly shouldn’t have been a single DCO – with the same developer and same local authority.

The judgment can be found here. The later restriction was not valid because the earlier permission had to be implemented in strict accordance with the approved plans. If the solar farm of the density approved only had 49.9MW capacity then using typically available solar panels would have been about 2/3 of the size and so had less impact. It was nonsense to require a larger solar farm using underpowered solar panels so that the number of panels shown on the plans was used but the output did not exceed 50MW.