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07 December 2018

814: A consultation, a case and a competition

Welcome to the first Planning Act blog post from BDB Pitmans!

Today’s entry consists of two Planning Act 2008 news items plus the annual blog competition.

National Policy Statement consultation

Hot on the heels of amending the thresholds for water projects by statutory instrument (see blog 810), the government has published the Water Resources Infrastructure National Policy Statement (NPS) for consultation. The consultation document and draft NPS can be found here.

Rather than declaring need in the NPS itself, as the others do, it says that each water company’s five-year Water Resource Management Plan (WRMP) will contain the need for new infrastructure, although it does mention a need for 150-200 megalitres per day of desalination plants in London and the south east of England.

Perhaps the road and rail NPS could take a similar approach, given that Network Rail and Highways England now produce their own five-year plans.

Even when talking about assessment of effects, the other job of an NPS, it also refers to WRMPs for details, although it does go on to cover 14 main types of impact in chapter 4. The area with the most pages devoted to it is biodiversity and nature conservation.

One issue the NPS covers is ‘environmental net gain’, ie leaving ‘the natural environment in a measurably better state than before’. This is an issue that comes up a lot on other projects, and I am a little sceptical that one can legally include development that goes beyond offsetting impacts of a development, since it has lost its association with the development. Something to think about in this and other cases, for it is surely desirable, but starts looking a bit bribeish if you’re not careful.

The consultation closes on 31 January 2019.

Judicial review of highway route announcement

Sefton Borough Council challenged the ‘preferred route announcement’ for Highways England’s (HE) Port of Liverpool access project, but was unsuccessful. The judgment can be found here.

Of note, this was the first time Highways England has been judicially reviewed in its three and a half year existence, and it was agreed that it could be judicially reviewed.

Sefton argued that HE should have included a tunnel option in its consultation. Quite a lot of the arguments were about what HE was obliged to do under its licence. 

The judge concluded that HE was entitled not to include the tunnel option in its consultation, having given clear reasons that it was too expensive and poor value for money.  It helped that dismissed options such as the tunnel could still be argued by parties responding to the consultation even if they weren’t amongst the options that were being put. The judge also noted that there would be a statutory consultation and an opportunity to make representations on the Development Consent Order application where the tunnel could be re-argued.

Also, the judge did not agree that if the tunnel had been included, the outcome of the consultation would necessarily have been the same.

It was a good week for Highways England. Two judicial reviews against the preferred route announcement for the A27 Arundel project were withdrawn before reaching the court after a further consultation exercise was announced.

Christmas champagne competition

Now onto the competition!

With due acknowledgement to the GCHQ Puzzle Book II (an ideal stocking-filler), this year’s competition is adapted from one of their puzzles.  Please solve this picture puzzle to find a nationally significant infrastructure project (both words to ensure you have fully solved it please).

Entries via email by Thursday 3 January 2019.  A correct entry will then be drawn out of the virtual hat to win a bottle of champagne.

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