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14 February 2020

852: Plane, train and automobile news

Today’s entry reports on a variety of infrastructure planning developments in the transport sector.

Planes

On 7 February the High Court rejected Stop Stansted Expansion’s (SSE) challenge that the expansion of that airport should have used a Development Consent Order (DCO), rather than the town and country planning application that it had used, and also the alternative ground that the government should have declared the project a nationally significant infrastructure project following SSE’s application that it should so be declared. A link to the judgement can be found here.

Sure, the passenger cap was to be increased from 35 million passengers per annum (mppa) to 43 mppa, which is short of the 10 mppa capacity increase that is the threshold, but the case focused on what the expanded airport was capable of handling rather than the limit, which is a different and separate test in the Planning Act 2008 (section 23(1)(b) rather than 23(1)(c) for the aficionados). It was ruled that it was for the airport to assess its capacity based on what the expectation of its use would be, relying on the word ‘expected’ in section 23(4)(b). I don’t agree with that interpretation, as the ‘expectation’ is still as to its capacity.

However, the case usefully illustrates that a cap is separate from physical capability, which is probably an error in the Planning Act. Strictly speaking you have the situation that if you have a tiny airport and want to make it slightly larger, while increasing a cap that would never be reached by over 10 mppa, that would be an NSIP, and if you increased a cap by a very small amount, eg 10 ppa, but built a lot more infrastructure at the airport that would be an NSIP as well. SSE did have a point on that front.

There is quite a lot in the judgement about non-experts probably never managing to succeed in alleging that expert opinion was so unreasonable that no reasonable authority would have reached the same conclusion (so-called Wednesbury unreasonableness) (paragraphs 68-77).

Incidentally this case also illustrated that it is not just a project’s promoter that can apply to the government to bring a project into the Planning Act 2008 regime even when it is below the thresholds in the Act – anyone can. I would guess the chances of succeeding are rather lower than when the project promoter makes the application, though.

Ironically, the town and country planning application for the expansion that the airport was so keen on was recently refused by the local authority, Uttlesford District Council, after previously having been approved in principle. Between these two events control of the council changed from Conservative to ‘Residents for Uttlesford’. I expect the refusal to be appealed.

Trains

You will no doubt have read or heard that High Speed 2, the second project for a high speed railway in the UK (the first one being St Pancras to the Channel Tunnel), was reconfirmed as going ahead by the government following the publication of a review into it by Doug Oakervee on 11 February. The review can be found here.

The 63 conclusions are summarised on pages 11-18, which I further summarise as:

  • HS2 should proceed (‘strong advice’ against cancelling);
  • this means the full Y-shaped network to Leeds and Manchester;
  • the specification for phase 1 (London to West Midlands) should be reduced, eg from 16 trains per hour to 14;
  • the construction of phases 2a (West Midlands to Crewe) and phase 1 should be merged;
  • pause the parliamentary bill to authorise phase 2b (Crewe to Leeds) until it can be integrated into a rail investment programme for the north (=5-7 year delay to opening); and
  • make Old Oak Common the London terminus initially, but continue to progress Euston as the terminus when ready.

The government pretty much endorsed those findings as stated, and has additionally said it will take the development of Euston from HS2 Ltd, and possibly also phase 2, and hand it to a special purpose vehicle. To offset spending concerns, £5 billion was announced for five years of spending on cycling and buses.

More recently, Secretary of State for Transport Grant Shapps MP hinted that the route north of Birmingham might not be as high speed to save costs. Should it just be called ‘2’, then?

Automobiles

The latest DCO decision was made last week, and was the first to be made for four months and also the first to be made on time after six delays in a row. It was for a section of the A30 in Cornwall – Chiverton to Carland Cross near Truro, including a new junction at Chybucca, possibly a wookie’s relative. There’s also a new bridge at Pennycomequick Lane – gotta love Cornish placenames.

Here are the facts and figures:

  • Project: 12.5km of new dual carriageway adjacent to the existing A30;
  • Promoter: Highways England;
  • Application made: 30 August 2018;
  • One inspector, Heidi Cruickshank, her first appointment;
  • 117 relevant representations, above average;
  • 18 written representations, low;
  • 134 questions in the first round, low;
  • One compulsory acquisition hearing, four issue specific hearings and one open floor hearing – average;
  • One Local Impact Report, from Cornwall;
  • Examination exactly six months, recommendation exactly three months, decision exactly three months, i.e. on the first anniversary of the Preliminary Meeting;
  • 525 days from application to decision, 17 and a bit months, slightly above average; and
  • 710 documents on the Planning Inspectorate web page on the date of the decision (not including the relevant representations), above average.

A few points as usual on the decision letter. The DCO can be found here.

There is a developing issue about ‘nitrogen deposition’ on habitats due to a November 2018 European case known as the ‘Dutch nitrogen case’ (strictly speaking ‘cases’ as it was two joined cases).

The government agreed with Highways England that nitrogen deposition of less than 1% was insignificant and so there was ‘no discernible degradational effect’ on the habitat. Note that the corollary is not true that if it is more than 1% the development cannot proceed, it merely has to go further along the habitats flowchart of considerations, but is being interpreted in that way in some quarters. An ‘appropriate assessment’ is appended to the decision letter.

Scottish Power tried to get a wide-ranging indemnity but was not successful, part of the reason was that there are arbitration provisions built into every DCO. This will no doubt get picked up and run with on other projects.

Wording about imposing rights on land identified for temporary possession were removed, I’m not sure if the intention had be to do this unannounced.

A disapplication of the Control of Pollution Act 1974 was removed, again citing the arbitration clause, despite this appearing in other DCOs.

Carbon did not feature too heavily in this application, since the applicant concluded there would be a net carbon reduction from the reduction in congestion, even when construction impacts were taken into account.

As is becoming the norm, there were changes made during the examination. This was something that was questioned at last week’s NSIPs forum. An interesting phenomenon. Is it because applications are more rushed / less complete when made, or is it because third parties ‘keep their powder dry’ during statutory consultation and then raise issues in their representations that applicants try to address? I also think the process for making changes could be clearer depending on the level of change (and how you decide the level), having been involved in some examination changes recently.

And more

The conference coincided with the National Infrastructure Commission issuing design principles, which were presented by Judith Sykes of the NIC. The strapline for these is ‘climate people places value’ – in order of importance or just alphabetical order? As I said at the time I think good design will remain a nice to have until there are sufficient incentives to ensure it happens, either via carrot (it ends up cheaper in the long run) or stick (you might get refused if you don’t have it).

Also at the conference, Jenny Preece of MHCLG said that we should expect more action from the government in the coming months, in particular to implement pledges to build 300,000 homes, have 40 GW in offshore wind by 2030, support hydrogen and nuclear power, and provide full-fibre broadband to all by 2025.

The National Infrastructure Strategy would be published on budget day, 11 March (although with the change of chancellor perhaps that’s not so certain). There wasn’t much new on National Policy Statements although the water resources one would be laid before Parliament in ‘early spring’.

Simone Wilding made a plea for realistic applications dates from applicants (they won’t publish them if applicants don’t want that), and said that changes during applications should be avoided ‘like the plague’ – I bit strong, I thought. She suggested that consultation and application documents should signpost that data will be used by the Planning Inspectorate and that their privacy notice should be cited. She emphasised the value of strong project managers and avoiding loose ends at the end of examinations.

There was much talk about the age of energy national policy statements and the challenge to the Drax DCO decision.

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