1036: An English DCO, a Welsh DCO and Scottish reforms

Today’s entry reports on the grant of development consent for the Yorkshire Green and HyNet Pipeline projects and looks at reforms proposed for section 36 consents in Scotland.

It’s easy being green

Our usual summary for the Yorkshire Green, granted development consent last week, is shown below:

• Project: Reconducting of 2.4km of the 400kV overhead lines, two new sections of 275kV overhead line and works to 5km of the existing XCP Poppleton to Monk Fryston overhead line
• Promoter: National Grid Electricity Transmission.
• Application made: 15 November 2022
• Application decided: 14 March 2024 (~18 months)
• Three inspectors: Jessica Powis, Annie Coombs and Gavin Jones
• 39 relevant representations (low).
• Four Issue Specific Hearings, two Compulsory Acquisition Hearings, and one Open Floor Hearings (moderate).
• Three local impact reports.
• 960 documents were on the Planning Inspectorate web page on the date of the decision: high.

The decision letter is relatively short (22 pages), but there are a few points to note. The Secretary of State agreed with the ExA that a section 106 agreement was the appropriate securing mechanism for the delivery of BNG. The suggestion of using a requirement in the DCO didn’t carry the day, with the decision letter noting ‘that [the] agreement is preferred to a Requirement in the Order as some of the potential works may be outside of the Order Limits, though exact details are not yet finalised.’ There have, of course, been requirements which deal with land outside of Order limits in the past, but that doesn’t take away from the conclusion that the agreement was / is legally effective.

The decision letter records the Secretary of State’s interest in ensuring appropriate mitigation from construction activities on a travellers’ site, and the made DCO includes a specific requirement for additional measures, including the potential for ‘mitigation measures to reduce the significant effects as far as practicable’. By the by, the phrase ‘practicable’ is now very well-trodden ground in DCOs and the control documents secured by DCOs, but there is still concern in some corners that such phrasing is insufficiently secure. In truth, I think the ‘practicable’ is likely to be not just acceptable but sensible, absent some increased necessity for certainty given the potential for increased costs in delivering critical infrastructure.

There is also an interesting point to note about time limits in the DCO. It’s clearly precedented to have a compulsory acquisition period that starts from the end of a judicial review period (rather than the making of a DCO), but this Order not only does that, but also amends the standard ‘time limit’ requirement so that if there is a judicial review, the time in which the development must be commenced is extended by a period equivalent to the period beginning with the day the application is made and ending on the day it is withdrawn or finally determined, or if shorter, one year. It is hoped that such provisions become more common: the seemingly incessant, and repeatedly failing, legal challenges against DCOs effectively prevent development from commencing. Making sure development isn’t timed out because of these challenges is therefore essential.

Finally, there is quite a lot of variation in how the purposes for which rights can be taken are defined and detailed, but interestingly, Schedule 13 of this DCO contains, in some instances, the ability to acquire ‘rights for the authorised development.’ This decision is also a useful reminder that the part of Advice Note 15 that talks about the need for specificity on the purposes for which restrictive covenants can be imposed is commonly misunderstood. The principle is that where land is subject to the imposition of rights / RCs, the purpose should be clear. The principle should not be extended to a claim that land that is subject to outright acquisition cannot be subject to a general ability to impose RCs. Indeed, being able to impose RCs may well be a form of reducing land interference.

I was going to clean my room, but then I got Hynet

Here is our usual summary table for the decision to grant development consent for the Hynet CO2 pipeline:

• Project: Approximately 37km of Carbon Dioxide (CO2) Pipeline
• Promoter: Liverpool Bay CCS Limited
• Application made: 3 October 2022
• Application decided: 20 March 2024 (~18 months)
• Two inspectors: Christopher Butlet and Matthew Shrigley
• 97 relevant representations (low-ish).
• 3 Issue Specific Hearings, 2 Compulsory Acquisition Hearings, and 1 Open Floor Hearings (moderate-ish).
• Two local impact reports.
• 1,683 documents were on the Planning Inspectorate web page on the date of the decision: very high.

Here are a couple of useful things from the decision letter. As readers will no doubt be aware, for projects in Wales, there are restrictions on the inclusion of ‘associated development’ in a DCO. For this project, in addition to the pipeline, the promoter wanted to include ‘above ground installations’ (AGI) and ‘block valve stations’ (BVS). Are the AGIs and BVSs associated development? No, says the Secretary of State and the ExA, they form part of the NSIP and so can properly be included in the DCO.

This is on the basis that pipeline is specifically defined as ‘a pipe (together with any apparatus and works associated therewith), or system of pipes (together with any apparatus and works associated therewith).’ The Welsh Government seems to be the only body who disagreed, though they didn’t justify their view in the examination. The Welsh Government’s view appears to have been based on the idea that pipelines should be seen in the context of ‘construction’ and some of the AGIs and BVSs were existing facilities. To be clear, the decision to include AGIs as part of the NSIP is precedented so the Secretary of State’s decision here seems to me to be the right one.

Interestingly, the promoter sought and obtained a local planning permission for the BVSs in case the Secretary of State agreed with the Welsh Government. This was obtained to ensure the project could start as soon as possible in that eventuality. The decision letter records ‘that if the BVSs are found to be part of the Proposed Development, then any works would be carried out under the DCO and not under the permission.’ But there may be a more fundamental issue: if they are an NSIP, does it mean – following the logic of the recent High Court judgment quashing a planning permission for a solar project over 50MW – the planning permission itself is unlawful, and steps should be taken to revoke it?

Restrictions on acquisition powers in respect of undertakers again rears its head, with the Secretary of State agreeing with the ExA that ‘consent’ requirements for compulsory acquisition were not necessary. This is becoming increasingly common.

LochBESS monster

The Scots are consulting on potential reforms to the section 36 Electricity Act 1989 regime. In particular, Scottish Ministers are consulting on increasing the 50MW threshold for requiring s36 consent. The revised threshold is not set out, but its assumed that the intention is to increase the threshold.

The full list of changes being consulted on are as follows, most of which relate to fees given the apparent resourcing issues in Scotland:

• a central planning hub to support authorities;
• short term working group to look at proportionality of assessments;
• taking stock of the use of processing agreements;
• developing templates for Section 75 agreements;
• devolving power to authorities to locally set planning fees;
• introducing an annual inflationary increase in planning fees;
• increasing discretionary charging including processing agreements, sites not allocated in the development plan and masterplan consent areas;
• introducing fees for appeals;
• service charge for submitting applications online;
• considering the potential to alter the threshold for applications under the Electricity Act;
• introducing a fee category for hydrogen projects; and
• increased fees for prior notification and approval categories.
• consistent approach to fees for shellfish farming.

The consultation closes in May.