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Home / News and Insights / Blogs / Planning Act 2008 / 1044: Two more failed DCO legal challenges, a new roads DCO, and a new DCO prospectus

Mustafa Latif-Aramesh
Partner & Parliamentary Agent

Today’s bumper entry looks at the new prospectus relating to DCO projects, the grant of development consent for the M3 Junction 9 DCO, the dismissal of challenges to Sizewell C and Manston Airport, and the start of a new legal challenge to the Net Zero Teesside DCO.

New prospectus in prospect

Following the suite of new guidance documents relating to DCO projects, the government has published the ‘Pre-application Prospectus‘. You may remember that there was previously a pre-application prospectus published in 2014 but which was later withdrawn. This new document seeks to substitute that document.

The primary purpose of the document is to set out the tiers of pre-application services provided by the Planning Inspectorate, as well as introduce new requirements for documents. Those tiers are drafted like Netflix subscription offers. Here’s a summary of those tiers, and what they mean:

  • Tier 1 (Channel 5): the basic service – this will involve only the Inspectorate’s statutory duties, nothing more, nothing less. The government says that ‘the basic tier could represent an appropriate service for very experienced applicants and low-complexity projects, for which an up-to-date relevant National Policy Statement(s) is in place, seeking no or limited compulsory acquisition powers, and / or which are likely to give rise to examination issues that are few and commonly considered by Examining Authorities’. Following this to the letter may mean that very few projects go for the ‘basic’ package. Cost: £62,350 per year of service. Number of days of service reflected in that charge: 43.
  • Tier 2 (Freeview): the standard service – this service tier includes project update meetings between the applicant and the Inspectorate at key milestones in the pre-application process, a standard draft document review service, and an embedded risk review process. In a wonderfully drafted sentence, the government tier says that this is ‘an appropriate service for most projects, ie those that are neither exceptionally straightforward nor exceptionally complex.’ Cost: £126,050 per year of service. Number of days of service reflected in that charge: 79.
  • Tier 3 (AppleTV, Prime, and NowTV all at once): the enhanced service – this is the gourmet option of the bunch where promoters can expect the Planning Inspectorate to be extensively involved in application, adopting what is referred to as a ‘pre-emptive’ role [which] will involve the Inspectorate identifying project and programme risks based on its experience.’ There are nine elements to what is involved (including evidence planning, multi-party meetings, preparation, and production of various matters like policy compliance and compulsory acquisition cases) This package comes with your own Enhanced Examining Inspector at the pre-application phase. All fast-track applications must use this package. £208,850 per year of service. Number of days of service reflected in that charge: 125.

You can see this handy table for more details of what is covered by the packages. The updated prospectus also provides nifty templates for inception meetings, and what is usually required for them. All projects should expect to be confirmed within a service tier before the end of August 2024 – so you have been warned. For projects that have requested a scoping opinion in accordance with EIA Regulation 8 before 30 April 2024, charging for the new services will begin on 1 April 2025. If you haven’t or if you are seeking the enhanced package, then charging begins 1 October 2024.

There are also further details about the ‘programme document,’ which promoters are expected to prepare. This will include setting out the main steps that the applicant anticipates taking during the preparation of the application. In essence, this will include an indicative programme setting out the key steps in the preparation of the Fast Track (where applicable) procedure application to the point of submission; and a summary of the policy context for the application. It must be published on the promoter’s website, and introduced at the inception meeting.

There is a new requirement to produce a ‘Issues Tracker and Potential Main Issues for the Examination’ (PMIE), with the expectation that this will be RAG-rated, and should be ‘up front’. Promoters will naturally wish to be careful about how these issues are framed, and as this document is open to local authorities and other key stakeholders, it may have the effect of being a ‘how to blow up your own project and get it judicially reviewed’ document if it is not cautiously crafted.  The PMIE should be a ‘short document’ and demonstrate that there are ‘sufficiently few and uncomplex residual issues to potentially allow for a four-month examination to be timetabled.’ How this is interpreted will be important, ensuring that the tired and unsophisticated tactic of objectors to turn one issue into 10 is not taken as a failure of the promoter.

Encouragingly, the prospectus confirms that the Planning Inspectorate is able to provide ‘Advice about the acceptance tests under the legislation and acceptance process’ – that may be seem obvious, but the government was keen that more ‘robust’ advice could be given, and it’s good to see there is no attempt to skirt around that requirement.

Relatedly, there is further information about the Adequacy of Consultation Milestone (AoCM). To inform the AoCM, the promoter will make a written submission to the Inspectorate which establishes the consultation undertaken to date, confirms the approaches set out in the Statement of Community Consultation, and summarises the consultation responses and the way in which they are shaping the application. Again, this is welcome to avoid the repeated attempts to prevent projects coming forward by arguing for more consultation (an approach which the government is clear does not represent its policy or requirements).

M3 Junction 9

Whew, we now turn to a DCO made on time. Here is our usual summary table:

  • Project: widening of the M3 from a dual two-lane motorway to a four-lane motorway with associated improvements
  • Promoter: National Highways
  • Application made: 21/11/2022
  • Application decided: 16/05/2024 (18 months)
  • Three inspectors: Wendy McKay and Matthew Sims
  • 106 relevant representations (low).
  • 307 questions in the first round (moderate).
  • Three Issue Specific Hearings, 0 Compulsory Acquisition Hearings, and one Open Floor Hearing (low).
  • Four local impact reports.
  • 649 documents were on the Planning Inspectorate web page on the date of the decision: moderate

A few useful things from the decision letter are set out below.

First, the application provided a biodiversity net gain of 4.14%, but this could have risen to 14% if ‘other neutral grassland’ were to be provided instead of chalk grassland. The National Park Authority agreed that establishing chalk grassland is significantly more important in this instance than achieving a target for BNG. It’s interesting that when the BNG comes into force for DCO projects, decisions and choices like this are likely to be constrained, even though seemingly all parties agreed that BNG should be further down the pecking order for what needed to be achieved. The loss of discretion like this is generally discouraged when we come up with future policies and legislation.

Second, there is a very detailed consideration of the new duty on relevant authorities, including the Secretary of State, to seek to further the purposes of the National Park. Before the amendment made by Section 245 of LURA came into force, there was a duty to ‘have regard’ to those purposes. The Secretary of State endorsed the promoter’s view that some meaning must be applied to the words ‘seek to’ until such a time that there is guidance and regulations to assist in the application of the duty. The fact that steps had been taken to reduce the impact, as well as the fact that the Secretary of State amended the dDCO so that the requirement to replace failed planting of newly established habitats should be extended from a 5-year period to a 10 year period was taken as according with the duty. Similarly, the requirement on detailed design has also been amended so that regard has to be had to that amended duty.

The decision letter sets out the now well trodden position on carbon, it also addresses the successful quashing of the Net Zero Strategy:

‘The CBDP was not quashed and remains government policy and sets out the government’s commitment to comply with carbon budgets and the NDC in the Paris Agreement. The Secretary of State has no reason to consider that the Proposed Development will hinder the delivery of the current Net Zero Strategy or any updated strategy. The Secretary of State is satisfied, in light of the net construction and operation emissions that have been identified, that consenting the Proposed Development will not affect the delivery of the Net Zero Strategy, or net zero in principle, nor will it have a material impact on the ability to meet the national targets, including 5CB (and overachievement in the Net Zero Strategy) or 6CB, and it will not lead to a breach of the UK’s international obligations in relation to the Paris Agreement or any domestic enactments or duties…’

The Secretary of State agrees with the ExA that the ‘latest evidence and risk analysis of the CBDP’ is not required in order for him to be able to reach a reasoned conclusion on whether approving the Proposed Development would lead to a breach of international obligations or statutory duty or be otherwise unlawful. The Secretary of State considers that any issues in terms of delivery risk of the government’s overall strategy for achieving carbon budgets do not affect his conclusions in respect of the impacts of the Proposed Development in this case, in light of his conclusions on the significance of carbon emissions set out elsewhere in this section.

That seems sensible to me; it would be a bizarre conclusion that ‘delivery risks’ and uncertainties would prevent any development from coming forward. It seems right that this kind of decision and judgment rightly sits within the discretion of a decision maker. Another thing that seems sensible to me is how the Secretary of State has dealt with adverse traffic impacts. For context, there was a particular link/junction which saw an adverse worsening in traffic conditions. The Secretary of State and ExA’s conclusions on this are quite telling:

‘Like the ExA, the Secretary of State considers that the evidence within the application shows that there will be a reduction in delays and, in most locations, road capacity improvements as a result of the Proposed Development and that the reduction in delay at M3 J9 will have a direct beneficial impact on the [wider area].’

I say this makes sense because it cannot be the case that any adverse impact on particular parts of the road network that arise from a roads project under the Government’s Road Investment Strategy should weigh against the grant of development consent where the wider benefits of the projects are real and significant. It is not the role of individual roads DCO projects to address all and every adverse impact that exists on the road network as a whole where there is an established statutory framework which leads to priorities being established. This is not like a private sector development where their impacts will need to be mitigated, but an intervention in the context of the wider regime.

In terms of the DCO,  there is a useful confirmation that DCOs can (and should) disapply sections 28E (duties in relation to sites of special scientific interest) and 28H (Statutory undertakers, etc.: duty in relation to carrying out operations) of the Wildlife and Countryside Act 1981 (see article 3(1)(d)). Natural England has resisted such disapplications. There is now consistent precedent for this in all but one of the DCOs which have attempted to do this.

The Secretary of State has, again, changed the reference to ‘materially new or materially worse’ environmental effects to ‘materially new or materially different environmental effects,’ though there appears to be a new practice to ensure environmentally better changes are permitted (though not pursued in this DCO).

More failed challenges to DCOs

Permission to appeal the decision of the Court of Appeal to the Supreme Court in relation to Sizewell C has been refused. You’ll recall that case concerned whether the reliance on a prospective water pipeline connection which was not yet fully defined meant that the EIA produced was compliant with the EIA Regulations (it was according to the High Court and Court of Appeal). That dismissal means it is the end of the road for legal challenges for this project, just shy of 2 years since the DCO was granted.

I’d recommend reading this refreshing analysis on judicial review in the infrastructure context by Catherine Howard who acted for EDF Energy on Sizewell C. It advocates for, but also disagrees with, some reforms which we on this blog have endorsed. You should read it! We are now in a position where over 80% of judicial reviews against made DCOs have failed, and those which have succeeded have all been positively re-determined. That is both a strength and weakness of the regime: the system is generally producing robust and unimpeachable decisions, but the obscene delay and expense caused to critically required infrastructure is clearly not acceptable.

My own personal journey is that I have become more convinced of the need for change through primary legislation. I’ve also reduced my confidence in Aarhus-confined changes and I think our political leaders need to seriously consider whether – in light of our robust domestic environmental controls, the strength and fairness of our examination procedures, and the history of repeatedly failing challenges – the demands of the Aarhus Convention are simply incompatible and disproportionate for ensuring we meet the most important environmental goal in bringing forward low carbon infrastructure. On that point, the claimant behind the unsuccessful legal challenges to the A47 Blofield to North Burlingham, A47 North Tuddenham to Easton, A47/A11 Thickthorn Junction and the A12 Chelmsford DCO projects, has now launched a legal challenge against Net Zero Teesside, a carbon capture project.

Meanwhile, and separately, the esteemed judges of the Court of Appeal have dismissed an appeal of the High Court’s decision relating to Manston Airport DCO project. Though it might seem obvious to most, I should make clear what follows is a factual analysis, and that though my colleagues are advising on this project, this is purely based on the judgment published today from a random geezer not involved (me). That case turned on a report prepared by the promoter (the ‘Azimuth Report’) which was based on interviews conducted with 24 persons, but the transcripts of those interviews were not submitted into the examination. The claimants therefore said the decision was procedurally unsound as there had been no scrutiny over those interviews. Not so, say their Lordships: the report, as it was presented, was the subject of consultation and there was no rule of procedural fairness which required the positive submission of those interviews.

The claimants also attempted to argue that rule 19 of the Examination Rules applied to the process of further consideration of the application following the quashing of the initial decision. For context, Rule 19 is titled ‘Procedure after completion of examination’ and rule 20 is titled ‘Procedure following quashing of decision.’ Rule 19(3)(b) provides that where the Secretary of State ‘takes into consideration any new evidence or new matter of fact… and is for that reason disposed to disagree with a recommendation made by the examining authority, the decision-maker shall not come to a decision which is at variance with that recommendation without giving [interested parties] an opportunity of making representations in writing to the decision-maker in respect of any new evidence or new matter of fact.’

The claimants argued there was unfairness in that a report (the ‘IBA report’) produced at the behest of the Secretary of State (and therefore ‘new’ evidence) was not subject to express consultation in accordance with that rule. The Court of Appeal held that rule 19 does apply to the process following the quashing of a DCO (other quashed DCO applicants, please note), but that the new evidence was not what led to them disagreeing with the ExA. Rule 19(3)(b) only applies where there was a causative effect from the new evidence resulting in the disagreement with the recommendation. On that basis, there was no breach.

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