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31 January 2020

851: Courts busy on Planning Act 2008 challenges

Today’s entry reports on various pending challenges to aspects of the Planning Act 2008 regime.

Airports National Policy Statement

We are awaiting judgment from the Court of Appeal on the challenge by several parties to the Airports National Policy Statement (NPS), essentially challenging the ten words in paragraph 2.33:

‘The Northwest Runway at Heathrow is the Government’s preferred scheme’.

I do think the NPS is flawed. For example, paragraph 3.12 says:

 ‘The Government believes that the Heathrow Northwest Runway scheme, of all the three shortlisted schemes, is the most effective and most appropriate way of meeting the needs case set out in chapter 2. As such, the Government has also concluded that the other shortlisted schemes do not represent true alternatives to the preferred scheme.’

Because one alternative performs the best it doesn’t mean the others are not alternatives.

Secondly, also on alternatives, the two competing schemes were ruled out as alternatives when considering habitats issues. If they were not alternatives, then either the government’s consultation was flawed because it said it had an open mind between the three schemes, but in fact it didn’t, or the habitats assessment was flawed because there were in fact three alternatives when it said there weren’t. One of those must surely be the case (or both).

Thirdly, also on habitats, Gatwick was ruled out because although Heathrow was considered potentially to damage eight habitats whereas Gatwick might only harm one, that one had a ‘priority species’ (an orchid) in it (without checking whether the species would in fact be harmed). That was the government’s investigation. When Heathrow did its own consultation last year it decided that ten habitats might be harmed, and one of the extra two – you’ve guessed it – is home to a priority species. That reason for ruling Gatwick out doesn’t look so good any more.

I note that the NPS was designated on 5 June 2018. A Supreme Court appeal may well be the outcome whoever wins.

Stansted expansion application

We are also awaiting judgment on a High Court challenge to the effect that Stansted Airport’s planning application to increase passenger capacity from 35 million per annum to 43 million should have been a DCO. Yes, the increase is only 8 million when the threshold is 10 million but it’s more complicated than that.

Meanwhile, though, that very planning application was refused last week by the local authority, Uttlesford District Council on grounds of noise, air quality and climate change. The council changed control in May to ‘Residents for Uttlesford’, which may explain the change of heart (the application had previously been provisionally granted). I would not be surprised if the refusal was appealed, it was recommended for approval by officers.

DCO surveying power

Thirdly, we are awaiting judgment on a more esoteric subject but one that will be of great interest to prospective DCO applicants and affected landowners. This is whether in the case of a DCO, compulsory powers to survey land in advance of a DCO application must use the laborious route under section 53 of the Planning Act 2008 or can rely on the newer and much simpler process under section 172 of the Planning and Housing Act 2016.

The particular case is in connection with the Stonehenge highway project and the challenge is from a Philip Sawkill, tenant of a nearby farm over whose land surveying powers were sought. There is a second ground that s172 does not allow the surveying body to discharge water onto the land.

Judgment is expected in the next couple of weeks.

Drax power station

Permission has been granted to ClientEarth (a not unsuccessful litigant) for a hearing in the High Court to challenge the decision to grant the Drax power station DCO on 4 October 2019. This should take place in a couple of months’ time.

The main ground is its impact on climate change. How can any reasonable secretary of state grant permission for a power station that could generate 12 million tonnes of CO2 per year when since the examination finished the government enacted ‘net zero’, ie that any CO2 must be fully offset by something else? True, it is better than the coal-fired power station it is replacing. However, the DCO does not currently require any offsetting and the decision letter says:

 ‘the secretary of state does not consider that Net Zero currently justifies … attributing the development’s negative GHG [greenhouse gas] emissions impacts any greater weight in the planning balance.’

The Examining Authority recommended that the application be refused in its report.

Missed case from last year

Finally, the first DCO, for Rookery South, was the subject of litigation last year, which I missed. An environmental permit for the project was challenged by local group BACI Bedfordshire Ltd (I thought they made chocolates) and made it to the Court of Appeal on the grounds that it had been issued unlawfully, but the challenge was dismissed. The subject-matter was ‘fugitive emissions’ and an incorrect statement in Covanta’s application that heavy metals did not dissolve in water.​

PS on Sunday, the date will be 02/02/2020 – that’s the first date without a one in it since when? How quickly can you work it out?

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