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Home / News and Insights / Blogs / Planning Act 2008 / 819: A DCO grant and a withdrawal

Today’s entry reports on the latest decision on a Development Consent Order and an application that has been withdrawn.

You win some

On Wednesday the Secretary of State for Transport granted a Development Consent Order (DCO) for an extension to the port of Tilbury in Essex known as Tilbury2.

It is exactly five months since the last DCO was granted, quite a gap, reflecting the drought of applications 18 months ago.

Here are the facts and figures:

  • project: a port facility on the north shore of the River Thames east of London;
  • promoter: the Port of Tilbury London Ltd (a subsidiary of Forth Ports);
  • application made: 31 October 2017;
  • three inspectors, Lilian Harrison, Mike Ebert and Max Wilshire originally, Lilian Harrison resigned after three months and was replaced by Paul Hudson;
  • 32 relevant representations, low;
  • 14 written representations, low;
  • 326 questions in the first round, above average;
  • two compulsory acquisition hearings, six issue specific hearings and two open floor hearings – above average;
  • two Local Impact Reports, from Thurrock and Gravesham;
  • examination exactly six months, recommendation exactly three months, decision exactly of three months – the decision was on the first birthday of the preliminary meeting;
  • 477 days from application to decision, 15 1/2 months, below average; and
  • 696 documents on the Planning Inspectorate web page on the date of the decision (not including the relevant representations), above average.

Here are the points I noted in the decision letter.

Some of the development was in the green belt, and rather than looking at it all together, the inspectors looked at each element of it and decided whether it was inappropriate, and then if so, if there were very special circumstances to allow it (the legal tests). Some decisions have gone this way (eg the M4) and others have adopted a more holistic approach (eg A14 and Knottingley).

The scope for changes adopts the Secretary of State for Transport’s favourite formulation (other Secretaries of State may differ): as long as the changes do not give rise to

‘Materially new or materially different effects that have not been assessed in the environmental statement.’

I don’t see why it can’t say ‘materially worse’ instead of ‘materially different’, surely if a change is better in every respect it should be allowed .

The effect on a scheduled ancient monument, Tilbury Fort, was assessed as severe, but that was below the level of ‘substantial’, the test used in the National Policy Statement.

There is a lengthy section on habitats assessment (paragraphs 56-76); it appears that the Secretary of State reached a positive conclusion despite Natural England’s reservations, partly due to there being no countervailing evidence.

The Port of London Authority had not withdrawn its objection to compulsory acquisition of its land by the end of the examination so the Panel ‘therefore’ recommended that CA powers should not be granted (rather a low bar but probably just unfortunate wording). Agreement was reached during the decision period, though, so powers were granted.

Crown Estate consent was received on 17 January, two months into decision period.

Energy company RWE argued it was having land taken and s127 applied, but the Secretary of State noted that it was not operational land so could be taken; RWE disagreed about the protective provisions but also lost on that point.

There is quite a lengthy list of 20 changes made to the DCO at paragraph 99.

You lose some

In other news the application for the North Wales Connection, the power line to connect the proposed Wylfa Newydd power station was withdrawn. According to a letter from the project’s promoter National Grid, Horizon Nuclear Power had terminated the contract to build the grid connection.

The application had reached the stage of waiting for a preliminary meeting date, the representation period having concluded in November with 821 representations made. The application for the Wylfa Newydd power station itself continues, however.

Two applications leaving the register means that the total number of live applications has dropped from 26 to 24, not quite reaching the previous peak of 27.

The next decision is for the Millbrook Power Station, due on or before (but probably on) 13 March. Its claim to fame is that it is in the same location as the first ever DCO application, for the Rookery South facility. Indeed, that is something of a bone of contention, as it seeks to make amendments to the Rookery South DCO that the Rookery promoter Covanta disagrees with. I think this is the first DCO to seek to amend another one (although not the last, the A19 Downhill Lane DCO due to be accepted for examination today seeks amendments to the A19 Testo’s DCO, albeit cooperatively that time).

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