860: Latest DCO decision ‘early’ following new deadlines, plus COVID-19 developments

Today’s entry reports on the latest DCO deadlines, DCO decision and COVID-19 planning-related developments.

Deadlines

As regular readers of this blog will know there were five transport Development Consent Order (DCO) applications where decision deadlines had come and gone with no decision and also no new deadline.

On Wednesday the Secretary of State for Transport Grant Shapps MP made a written statement to parliament that finally gave new decision deadlines for the five applications, namely:

• Lake Lothing Third Crossing: 5 May (originally due 5 December);
• West Midlands Strategic Rail Freight Interchange: 5 May (originally due 27 January);
• A63 Castle Street Hull: (Sunday!) 31 May (originally due 24 March);
• A303 Sparkford to Ilchester: 17 July (originally due 12 December); and
• A303 Stonehenge: 17 July (originally due 2 April).

That means all projects whose decisions have not met the original deadline at least have new deadlines to work towards.

Decision

Despite having just been given a deadline of 5 May 2020, the Lake Lothing application was then decided the very next day, on 30 April 2020.

The stats are as follows:

• Project: a new crossing of Lake Lothing between the existing two crossings at Lowestoft in Suffolk; note that this was brought into the regime by a section 35 direction;
• Promoter: Suffolk County Council;
• Application made: 13 July 2018;
• Two inspectors, David Morgan (his first) and Peter Widd (his fifth), although the latter sadly died during the examination and was replaced by Stephen Roscoe (his sixth);
• 37 relevant representations, low;
• 11 written representations, low;
• 143 questions in the first round, below average;
• Two compulsory acquisition hearings, four issue specific hearings and two open floor hearings – average;
• Two Local Impact Reports, from Great Yarmouth, and jointly from Waveney and Suffolk (noting that the latter was the applicant);
• Examination exactly six months, recommendation exactly three months, decision nearly eight months, i.e. five months late;
• 657 days from application to decision, 21 1/2 months, well above average; and
• 642 documents on the Planning Inspectorate web page on the date of the decision (not including the relevant representations), average.

Points to note from the decision letter:

The UK Marine Policy Statement and the Ports National Policy Statement were deemed to be ‘important and relevant’.

Although it was brought into the regime under section 35, the ‘with NPS’ decision criteria nevertheless were applied to this project rather than the ‘without NPS’ criteria.

Agreement was reached with Associated British Ports on 2 April, although that was apparently unnecessary: the decision letter says the effect on the port would not justify refusal even without an agreement.

On design, the government concludes that the development ‘has an aspirational aesthetic component to its design, delivering an iconic new work of architectural engineering’ – praise indeed!

Crown consent was not given until nearly six months after the end of the examination, even longer than usual.

There is quite a detailed consideration of compulsory acquisition, as that seemed to be the source of most objections.

The applicant gets a bit of a telling off for putting in a DCO with ‘considerable’ changes at the last minute.

On the DCO, there was quite a debate about byelaws, resulting in three-page article 46.

ABP must issue a ‘general direction’ under article 41(8) – it is unusual for third parties to have to do things under DCOs, what with the attendant criminal liability, so that may be breaking new ground.

The government did not like the ability of the applicant to transfer compulsory acquisition powers to statutory undertakers without its say-so and without liability for compensation being clear and so removed that ability.

COVID-19 related developments

The representation period for the M54 to M6 project has been extended due to COVID-19, presumably because (in line with NIPA’s advice) it may take people longer to receive notice, consider documentation and submit their representations; it was 9 March to 20 April and is now 9 March to 18 May.

The A38 Derby Junctions DCO application’s consultation on virtual hearings has now closed and the Planning Inspectorate will publish a response on 5 May, with hearings earmarked for 9-17 June. Meanwhile, though, a test virtual planning appeal under the Town and Country Planning Act (TCPA) regime is to take place on 11 May relating to a property in Bude in Cornwall; this will no doubt help inform the virtual DCO hearing process.

The first TCPA planning appeal without a site visit due to COVID-19 was determined on 28 April (with the agreement of the parties). You can find it here. Again, this will help with unaccompanied site inspections for DCO applications.

The Welsh government issued updated planning guidance on 29 April that says that site visits are allowed under coronavirus restrictions, and that site notices can be put up too (although will anyone see them?). Come on England, keep up with the Joneses! An English update was published on 28 April, here. Nice name check for NIPA!

Finally, I attended some of the ClientEarth judicial review of the decision to grant the Drax DCO this week. The Courts Service has issued advice on how to behave during a virtual hearing (can you spot the missing word ‘sure’?). For this hearing I was told to dress smartly but also switch my video off…