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Home / News and Insights / Blogs / Planning Act 2008 / 859: Two decisions and COVID-19 latest

Today’s entry reports on two recent DCO decisions and virus-related developments.

Both decisions were made on time on 9 April 2020, one energy and one transport. Ten decisions remain delayed – five ‘sine die’, ie without a new deadline (all transport), and five with a deadline (one transport and four energy). The next decision that has a due date is Manston Airport on 18 May 2020.

Energy DCO decision

The stats on the first of the two recent decisions, Riverside Energy Park, are as follows:

  • project: an energy to waste (EfW) facility, with anaerobic digestion (AD) and other elements near Belvedere in south east London​, of about 96MW;
  • promoter: Cory;​
  • application made: 16 November 2018;​
  • one inspector, Jonathan Green (his sixth, always as a single inspector);​
  • 87 relevant representations, middling​;
  • 18 written representations, fairly low;​
  • 91 questions in the first round, low​;
  • two compulsory acquisition hearings, three issue specific hearings and one open floor hearing – average;​
  • four Local Impact Report, from Bexley, the GLA, Havering, and Kent and Dartford, jointly;​
  • examination one day short of six months, recommendation exactly three months, decision exactly three months;​
  • 510 days from application to decision, just under 17 months, about average; and​
  • 606 documents on the Planning Inspectorate web page on the date of the decision (not including the relevant representations), average.​

Points to note in the decision letter.

Although visual impacts were moderately adverse, these and other impacts were outweighed by the benefits of the project, principally the need for electricity generation.

The Applicant didn’t want a limit on the output of the facility in terms of megawatts or on the input to it in terms of waste. They succeeded on the first point but not on the second, where the input was capped at the ‘worst case’ level assessed in the environmental statement. The EfW and AD facilities had separate caps imposed.

The Explanatory Note to the DCO was amended to reflect physical inspection difficulties.

The DCO specifically provides that implementing it does not breach a previous planning permission and that an as yet unimplemented permission would not lapse due to the temporary use of land under the DCO.

The Applicant is able to create or acquire new rights over any order land, although this power has been removed from recent transport DCOs (and see in particular below).

Variations of approved plans under the requirements are permitted as long as they are ‘unlikely to’ give rise to materially new or different environmental effects, which is weaker than the usual ‘will not’.

The Applicant has to consider combined heat and power every three years and report to the local planning authority (increased to five years if CHP is installed).

Stock text on ‘energy National Policy Statements continuing to form the basis for decision-making under the Planning Act 2008’ is included on the net zero issue; meanwhile a legal challenge that the NPSs should be reviewed is currently in progress (nothing to do with this project specifically).

Transport DCO decision

The stats on the second decision, for the A585 Windy Harbour to Skippool project, are as follows:

  • project: 5km of dual carriageway and new junctions north of Blackpool in Lancashire;
  • promoter: National Highways;​
  • application made: 29 October 2018;​
  • one inspector, Gareth Symons (his first);​
  • 31 relevant representations, low;
  • 10 written representations, low;​
  • 86 questions in the first round, low​;
  • one compulsory acquisition hearing, one issue specific hearing and two open floor hearings – low;​
  • three Local Impact Report, from Lancashire, Fylde and Wyre;​
  • examination exactly six months, recommendation exactly three months, decision exactly three months;​
  • 528 days from application to decision, about 17 1/2 months, slightly above average; and​
  • 514 documents on the Planning Inspectorate web page on the date of the decision (not including the relevant representations), slightly below average.​

Useful takeaways from the decision letter are as follows.

Some of the development was within the green belt, but that part was all within existing highway boundary and so ‘very special circumstances’ were held to obtain.

Despite being some way inland, the project required a deemed marine licence because it affected a culvert within the Marine Management Organisation’s jurisdiction.

One interesting point I picked up (paragraph 21 of the decision letter) is that acoustic fencing in one area must be consulted upon and that commitment is in the register (actually record) of environmental actions and commitments, which seems to suffice even though the DCO does not say everything in the REAC must be implemented but that various control documents must reflect it.

An appropriate assessment was carried out and is appended to the decision letter, because of potential effects on an SPA and a Ramsar site.

Natural England was concerned that the Duchy of Lancaster had shooting rights over land earmarked for a bird mitigation area. The suspension of such rights must be achieved before construction could take place.

One article in the DCO allowed new rights to be created and restrictive covenants to be imposed on any of the order land, including land otherwise only subject to temporary possession. This power was removed because the relevant landowners were likely to be unaware that their land was subject to this additional power and had therefore not been properly consulted.

Other news

I have been heavily involved in the National Infrastructure Planning Association’s development of advice to government how, provided it does not affect public health, infrastructure planning can continue during this challenging time. We have produced this paper, which covers the inability to hold consultation events, allow physical inspection of documents, erect site notices, carry out land referencing in the same way, hold preliminary meetings and hearings and access sites for surveying and implementation. I hope you find it interesting and useful.


The Planning Inspectorate is consulting those involved in the A38 Derby Junctions DCO application as to the practicalities of holding virtual hearings. They have issued a covering letter a questionnaire and an FAQ.

I don’t get the feeling that PINS want people not involved in this project piling in on the virtual hearings issue.

Finally, the challenge to the grant of the Drax DCO is being heard by a virtual High Court starting on Tuesday 28 April.

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