1035: Planning Act 2008 regime amended and A66 decision details

As mentioned in last week’s blog, on budget day, the government issued its response to the earlier consultation on reforms to the NSIP process, which can be found here.

Well, they have wasted no time in starting to implement their proposals. On Friday 8 March 2024 three statutory instruments were laid, the first two coming into force on 30 April 2024 and the third on 1 April 2024, as follows:

• The Infrastructure Planning (Examination Procedure)(Amendment) Rules 2024
• The Infrastructure Planning (Miscellaneous Provisions) Regulations 2024
• The Infrastructure Planning (Fees) (Amendment) Regulations 2024

To summarise the changes that will be made, they are to:

• remove the ban on pre-application advice inspectors subsequently being appointed to the Examining Authority for the same project;
• update the list of prescribed consultees;
• encourage relevant representations to be full particulars of the case rather than an outline;
• remove a minimum of 21 days’ notice for hearings;
• allow notice of hearings to be advertised on applicants’ websites rather than in local newspapers;
• remove a minimum of 21 days’ notice for providing written representations;
• remove the obligation to obtain consent before sending things by email instead of in hard copy;
• introduce fees for (apparently optional) pre-application advice at £2300 per day that the advice is given; and
• allow eight public bodies to charge fees for providing relevant services.

Additionally, some guidance has been produced on the last set of changes.

It appears that it will not be compulsory to pay for pre-application advice, but you would then get less than you are getting at the moment for free, eg meetings with PINS and advice on the drafting of the DCO. The three-tier concept of levels of advice does not appear to be reflected in the regulations but may still be a thing when approaching the question of the number of days of advice.

The changes to the statutory consultee list (as heavily amended over the years), other than sorting them into groups and adding some useful sub-headings, are that the following have been removed.

• The Disabled Persons Transport Advisory Committee
• The Equality and Human Rights Commission
• The Gas and Electricity Markets Authority
• The Homes and Communities Agency
• The Marine Management Organisation
• The Office for Nuclear Regulation
• The Office of Rail and Road
• The Passengers Council
• The relevant local resilience forum
• The relevant strategic highways company
• The relevant waste regulation authority
• The Scottish Fisheries Protection Agency
• The Scottish Human Rights Commission
• The Water Industry Commission of Scotland and
• The Water Services Regulation Authority

These are generally bodies that did not reply to consultations, although the MMO is already mentioned in the Planning Act directly, so this removes duplication, and National Highways would be the relevant highway authority for the strategic road network, which is still on the list. The only one to have been added is ‘the relevant ambulance service’. These changes apply to any application where statutory consultation starts on or before 30 April 2024.

The eight bodies that will be able to start charging for their work from 1 April 2024, as long as they publish a statement of charges on their websites, are:

• The Environment Agency,
• Natural England,
• Historic Buildings and Monuments Commission for England (ie Historic England),
• National Highways,
• The Coal Authority,
• The Health and Safety Executive,
• Marine Management Organisation and
• Natural Resources Wales

Two lots of guidance are promised in the next month or so: a Pre-Application Prospectus and Pre-application guidance.

In related news, a relatively speedy consultation has been launched on altering (read raising) the nationally significant infrastructure project thresholds for highway and railway projects, badged as a ‘call for evidence’ although only one question out of 14 actually asks for evidence.

The consultation is here and closes on 5 April 2024.

No revised thresholds are proposed, but it does seem to be couched in language suggesting the thresholds should be raised.

A66 upgrade granted consent

The ‘Project Speed’ model DCO application has now been granted, but from application to decision, it was actually slower than average. The representation period started the day after the application was accepted (which took the maximum 28 days), which is a record, at least. The period between the end of that stage and the start of the examination was of average length. The examination took exactly six months; the recommendation stage was fast at 70 days rather than three months, but the decision stage was delayed by four months.

Here are the facts and figures:

• Project: A66 upgrade consisting of dualling of six separate sections of the A66 between the A1 and M6 across the Pennines and junction improvements at either end, numbered 01 to 11 except 10 for some reason;
• Promoter: National Highways
• Application made: 21 June 2022.
• Application decided: 7 March 2024 (20 1 / 2 months)
• Four inspectors: Richard Allen, Neil Humphrey, Marie-Louise Milliken and Stephen Roscoe
• 231 relevant representations, above average.
• 67 questions in the first round, very low.
• Three Issue Specific Hearings, two Compulsory Acquisition Hearings, and one Open Floor Hearing (average).
• Three local impact reports from North Yorkshire and Richmondshire (jointly), Cumbria and Eden (jointly) and Durham (I’m ignoring one from Barnard Council Town Council because it isn’t a principal local authority).
• 1599 documents were on the Planning Inspectorate webpage on the date of the decision: high.
• Ten consultations during the decision stage – exceptionally high.

There are quite a few points of interest arising from the decision letter.

Slightly oddly, the revised national policy statement has not been given any weight because it does not ‘support a different outcome in this case’. Although the benefit-cost ratio was 0.92, the Secretary of State took into account the benefits that could not be monetised in reaching his decision that the benefits outweighed the adverse impacts.

Particular alternative options for three of the eight project elements were given airtime in the decision letter, but the requirements for consideration of alternatives were considered to have been met.

There was a bit of a tussle between National Highways and Natural England over the appropriateness of the former’s air quality standard in its Design Manual for Roads and Bridges, but this is being dealt with at a national level. The Environment Agency won a different tussle on flood risk on the Appleby to Brough section of the project, with the DCO being amended accordingly.

Unlike recent highway DCO decision letters, the contribution to national carbon emissions as a percentage of ever-tightening carbon budgets goes down for this project rather than up.

The Secretary of State waspishly responds to a request from CEPP (aka Andrew Boswell) to consider the points it / he made by just saying, ‘Such matters have been considered’.

The historic (since 1330) Brough (‘bruff’) Hill Fair is to be relocated, but not for the first time. There is a novel article (36) in the DCO to move the historic rights to hold the fair at the new site. The better-known Appleby Horse Fair was also impacted, but not as much.

If you are interested in the treatment of sterilisation of mineral rights by an NSIP, read paragraphs 181-183.

Five protected habitats were considered for effects, appropriate assessment was carried out for three of them, and a derogation was required for one, the North Pennine Moors SAC, because of the impacts on blanket bog, which is one of the eight types of irreplaceable habitat. The Secretary of State agreed that the development is imperative and in the public interest to the extent that it overrides the risk of harm (ie IROPI). Compensation includes banning the burning and cutting of the peat in the relevant area.

Conclusions on environmental impacts are grouped and summarised in paragraphs 233-236. Impacts on carbon emissions, landscape and visual, heritage and geology, and soils were limited, moderate, minor, and minor negative respectively, the remainder were neutral or positive.

The application version of the DCO had a novel approach of having no requirements, and this has made it to the final version. The rationale for this is set out in the Environmental Management Plan (paragraphs 1.4.3-6), namely that usually there are requirements and an EMP or equivalent, which fleshes out the requirements and does not need to be in statutory language, so why not just do away with the requirements and have everything in the EMP? It does have 21 annexes, combining various other control documents. Compliance with the EMP itself is required by an article (53) rather than a requirement. I wonder if this approach will be followed by other projects. The Secretary of State opines that ‘the applicant will want to reflect on the effectiveness of this approach before potentially applying it to other schemes (if that is the intention).’

There was a related concern that the detailed design, also secured by an article (54) rather than requirement, was not detailed enough in three sensitive areas, but the applicant provided ‘watercolour visualisations’ – not something I’ve seen before but rather a cool way of demonstrating good design – check out this one for example.

If your project affects a protected landscape, be aware that a strengthened duty relating to National Parks and Areas of Outstanding Natural Beauty was introduced by LURA on 26 December 2023 via an amended section 11A of the National Parks and Access to Countryside Act 1949. This was considered via a Secretary of State consultation during the decision stage on this project and is covered in paragraphs 302-311.

The Yorkshire Green overhead line project was decided on time on 14 March 2024 and will be covered in the next edition of the blog, and the North East Lincolnshire Green Energy Park decision was due on 15 March 2024 but has been delayed for a second time, until 10 May 2024.