763: Infrastructure planning-related court news

Today’s entry reports on two recent infrastructure planning-related court cases and one forthcoming one – or possibly two.

Whitemoss hazardous waste project

The Whitemoss hazardous waste project proposed in Skelmersdale, Lancashire, was granted consent back in May 2015.

It was challenged in the High Court by Arthur Scarisbrick, a nearby resident. He was refused a hearing but successfully appealed to the Court of Appeal. The judgment, issued on 23 June, can be found here. I believe that the challenge was crowdfunded.

The case centred around the declaration of need for hazardous waste projects in paragraph 3.1 of the Hazardous Waste National Policy Statement (NPS), so has relevance to other types of project, since similar statements are made in other NPSs. The statement says:

‘The Secretary of State will assess applications for infrastructure covered by this NPS on the basis that need has been demonstrated’.

Lord Justice Lindblom, who gave the leading judgment, said that those words established a ‘qualitative’ need for hazardous waste infrastructure rather than a ‘quantitative’ need of how much was needed. There was no selectivity about which projects were needed – the NPS didn’t imply that a larger project was more, or less, needed than a smaller one.

Furthermore, the statement of need is not a ‘trump card’ that means all applications should be granted, though, a balance must be struck with the adverse impacts of the proposed project – and in this case a balance was struck. The main impact was that the project was situated in the Green Belt, and need was only one of nine factors that overrode the presumption against building in the Green Belt according to the examining authority.

As an incidental point, the declaration of national need in the NPS was supplemented by both regional (the north west of England) need and local (Lancashire) need. Project promoters can thus boost their need cases in NPSs by pointing to regional and local need.

I note that this judgment has taken over two years since the original decision was made. Although the High Court has speeded up its throughput, things seem to slow right down again at the Court of Appeal.

Mynydd y Gwynt wind farm

There is one more pending judicial review of a Development Consent Order decision – the refusal of the Mynydd y Gwynt onshore wind farm application in November 2015 was challenged by its promoter, Mynydd y Gwynt Ltd. The main reason, if you recall, was the effect on protected bird species the red kite.

The case was heard in the High Court and judgment was given in favour of the government by Mr Justice Hickinbottom in October 2016. Actually that was nearly a year later so perhaps the High Court isn’t that much faster after all.

The case has been appealed to the Court of Appeal and the appeal is pending. If the claimant loses, it will be the first time a Planning Act 2008 judicial review has gone against the developer.

Then again, there would still only be one judicial review relating to the Planning Act regime that has succeeded (the Preesall Gas Storage project challenge).

Air quality plan

The government have produced two air quality plans in the last six years and both of them were quashed by judges following challenges by environmental pressure group ClientEarth. The government produced a third draft plan for consultation earlier this year and is supposed to publish its final plan by the end of this month.

ClientEarth challenged the draft plan but yesterday the challenge was ruled unsuccessful by Mr Justice Garnham. The reason was essentially that as this was only a draft plan it could change and a flawed final plan was not inevitable, although ClientEarth argued it wasn’t a draft plan but a consultation document. He did say that the final plan could still be successfully challenged when it came out. The judgment is not available online yet, but ClientEarth’s press release about it can be found here. It seems there may be an issue about whether petition-like consultation submissions can be ignored or not.