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14 September 2018

807: Northern Highway upgrade is latest DCO decision

Today’s entry reports on the latest decision on a Development Consent Order application.

On Wednesday, a full nine days before the end of the allotted three months, the Secretary of State for Transport granted a Development Consent Order (DCO) for the junction between the A19 and the A184 in South Tyneside.

By amending the title of the DCO from the A19/A184 Testos Junction Improvement Development Consent Order 2018 to the Testo’s Junction order, it puts beyond doubt that it is pronounced to rhyme with Tesco’s rather than asbestos and has an apostrophe.

It was a good day for apostrophes – on the same day Cornwall Council decided that Land’s End had an apostrophe (although I must say I never knew that was in doubt).

Here are the facts and figures:

  • project: an upgraded junction on the A19 in South Tyneside;
  • promoter: Highways England;
  • application made: 14 July 2017;
  • one inspector, Rynd Smith (his seventh);
  • 12 relevant representations, very low;
  • three written representations, very low;
  • 135 questions in the first round, low these days;
  • one compulsory acquisition hearings, five issue specific hearings and one open floor hearing – average;
  • one Local Impact Report, from South Tyneside;
  • examination four and a half months, recommendation five days short of three months, decision nine days short of three months;
  • 425 days from application to decision, just under 14 months, the third shortest; and
  • 218 documents on the Planning Inspectorate web page on the date of the decision (not including the relevant representations), low.

In a relatively short decision letter (14 pages – Silvertown was 28), there still some points of general interest.

One issue had been about which Environmental Impact Assessment regulations to use – the 2009 ones or the more recent 2017 ones. The transitional provisions say that the applicant can continue to use the 2009 ones if it has requested a scoping opinion.

In this case the Highways Agency applied for the scoping opinion but Highways England made the application. Highways England at least had the benefit of a transfer scheme made under the Infrastructure Act 2015, but the inspector (endorsed by the government) concluded:

‘Following consideration, these submissions indicate that the person seeking the scoping opinion and the current Applicant are by operation of the Infrastructure Act 2015, Regulations and / or a transfer scheme made under it, one and the same legal person, and additionally or alternatively that the important consideration is the continuity of the project and this has been demonstrated at all times since the scoping opinion was sought.’

Another issue was on the obscure area of ‘escheat land’, a feudal concept where if there is no successor to a landowner then the land defaults to the Crown. However, if the Crown doesn’t do anything with it it stays in a sort of limbo. The inspector decided that for the purposes of the DCO regime undealt with escheat land was not Crown land, eschewing previous views on the subject.

Section 4.7 of the inspector’s report is a lengthy treatise on whether you can rely on provisions in previously made DCOs relating to similar infrastructure without further justification. I don’t fully follow it but if it is saying you have to justify using the same provisions as were used on a similar project I think that is unnecessary. Justify novel provisions, sure, and those you have taken from a different type of project, but can’t we just take use of the same provisions in successive eg highways DCOs as read?

The DCO has some flexibility in it by describing one work without great detail, but accompanied by two alternative engineering plans. This was for either a two-bridge or single bridge crossing of the main road.

Drafting purists will be horrified that the government has amended the order where it modifies other enactments in two places to start sentences with ‘But’ (article 25(5)(a) and schedule 6, paragraph 5(8)). What is the world coming to?

Issuing the decision nine days early is a welcome reversal of the recent trend to issue more and more decisions late. Indeed, this DCO becomes the third fastest from application to decision at 425 days (the first and second being the Immingham highway project and the Redditch railway project respectively).

The next decision due is for the Eggborough power plant, no later than 27 September.

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