797: Silvertown tunnel gets consent
The most recent decision on a Development Consent Order (DCO) application was made on 10 May, more than five months after the previous one.
Here are the facts and figures:
- project: a new tunnel under the Thames at Silvertown in east London;
- promoter: Transport for London;
- application made: 31 May 2016;
- three inspectors: Peter Robottom (his fifth), Lilian Harrison (her third, she retired from her fourth one, Tilbury2), Austin Smyth (his second);
- 387 relevant representations, high;
- 48 written representations, above average;
- 302 questions in the first round, high;
- three compulsory acquisition hearings, seven issue specific hearings and three open floor hearings – high;
- nine Local Impact Reports, from Greenwich, Bexley, Southwark, Tower Hamlets, Lewisham, Hackney, Redbridge, Newham and the Greater London Authority (the second most after the Thames Tideway Tunnel);
- examination exactly six months, recommendation exactly three months, decision one day less than ten months, after two postponements;
- 737 days from application to decision, nearly two years, the second longest; and
- 895 documents on the Planning Inspectorate web page on the date of the decision (not including the relevant representations), high.
There are quite a few learning points from the decision letter (DL).
The first issue was whether the decision was being taken under s104 or s105 of the Planning Act 2008 (ie whether a relevant National Policy Statement (NPS) was in place or not), quite an esoteric point only of interest to real Planning Act geeks. But surely there’s one for roads, I hear you cry (if you are a geek). Indeed, but because this project joined the regime by using the opt-in process of s35, it was not strictly a nationally significant infrastructure project of the type contemplated by the NPS. The decision was in the end taken under s104 (ie there is a relevant NPS), but it sounded a close run thing.
The DL notes that five changes were made to the application post-submission, but that ‘each of the changes can be regarded individually as non-material’. Note that each is considered separately rather than having a cumulative effect that means they stop being able to be considered, something of a relief.
The new tunnel will cost money to travel through, but the application also included the ability to charge to travel through the existing Blackwall Tunnel so that traffic can be managed between the two tunnels. That caused some disagreement, but was allowed. Never underestimate the power of a Development Consent Order!
Air quality was far and away the most significant issue, and occupies over eight pages of the DL. There was a protracted series of late consultations on the issue, but essentially the project was allowed because it was considered that even though it would make air quality at some locations worse for a while, it would not slow down achievement of keeping within pollution targets as quickly as possible in the whole of London (the relevant air quality zone). Although some disagree that the test is no more complicated than that, I agree with it. It ought to follow through by knowing when the last area in London was expected to come into compliance currently and that the project’s exceedances wouldn’t be later than that.
Even so, some pretty strict monitoring requirements have been imposed. Requirement 7 in the DCO on the ‘monitoring and mitigation strategy’ (covering a few things including air quality) runs to more than two pages of the DCO. NO2, the main offending pollutant, must be monitored in the vicinity for at least three years before the expected opening date. If the scheme causes a worsening of air quality beyond that assessed (as determined by a panel of experts, who will have to decide what impacts are from the scheme and what are from other things), then a scheme of mitigation must be prepared within three months and approved by the Mayor. It doesn’t say what such a scheme might contain, but the government seemed to like the idea of increasing charges for the tunnel to discourage users of it (para 30 of the DL).
Incidentally, it was OK to use National Highways’s Design Manual for Roads and Bridges’ method of addressing air quality rather than the stricter Institute of Air Quality Management’s, although a precautionary approach was required to be taken (para 29).
Apparently, ‘Like the Panel the Secretary of State takes comfort from the from Public Health England (PHE) (PR 5.6.20-23) and in respect of air quality’. Well that’s good to know.
There is an ‘offsite by river’ target of 55% for transporting spoil by the river rather than road, which is the subject of a Construction Materials Management Plan and the DL says it should be 55% per worksite. The 55% doesn’t appear to be explicit, but because that plan has to be approved by the local authorities they will no doubt insist on it.
There was quite a significant Hazardous Substances Consent issue. Not for the tunnel itself, but because it went near two sites that handled hazardous substances. The Health and Safety Executive went a bundle on this – its written representation had 12 appendices – and in the end they got a requirement for each site that the tunnel can’t open until the Hazardous Substances Consent at each site has been revoked or modified to their satisfaction.
When it came to charges for using the tunnel(s), everyone wanted a discount or to be let off altogether, but obviously the cheaper it got for more people, the less effective pricing would be to control congestion. In the end the Charging Policies and Procedures document says that those on low incomes will get a 50% discount for at least three years as the only explicit discount/exemption.
Bikes and pedestrians won’t be allowed through the tunnel but enhanced opportunities to cross the river must be provided for at least the three-year monitoring period.
TfL were not granted compulsory acquisition and temporary possession powers over some parcels of land around a fire-damaged nightclub (Studio 338), whose reinstatement was somewhat uncertain.
The bespoke temporary possession powers in a DCO continue despite the Neighbourhood Planning Act 2017, for the moment at least. This DCO disapplies that act in relation to temporary possession, even though the act suggests only another act can. Could be very helpful for future DCOs.
The next decision due is in more than four months’ time, for the A19 Testo’s Junction DCO application on or before 26 September, with the one after the day after that.