861: Latest decision and COVID-19 developments

Today’s entry reports on the latest Development Consent Order decision and COVID-19-related developments.

Latest decision

The West Midlands Interchange project was granted a DCO on 4 May 2020, a day before the new deadline it was given.

• Project: an intermodal freight terminal of 297 hectares off the M6 in South Staffordshire;
• Promoter: Four Ashes Ltd (the project is sometimes called Four Ashes);
• Application made: 3 August 2018;
• One inspector, Paul Singleton (his first);
• 1324 relevant representations, very high (seventh equal highest);
• 98 written representations, high;
• 370 questions in the first round, above average;
• One compulsory acquisition hearing, six issue specific hearings and one open floor hearing – above average;
• Two Local Impact Reports, from Staffordshire and South Staffordshire;
• Examination exactly six months, recommendation exactly three months, decision over five months, ie over two months late;
• 640 days from application to decision, 21 months, well above average; and
• 1,130 documents on the Planning Inspectorate web page on the date of the decision (not including the relevant representations), high.

Points to note from the decision letter are as follows.

The project would take up 297 hectares of Green Belt (ie it is entirely in the Green Belt). However, the national and regional need for the project were considered to demonstrate very special circumstances and allow the development (para 68). I think that goes further than previous decisions in terms of justification for Green Belt encroachment.

The project was needed; there is unmet need for freight infrastructure in the Black Country and South Staffordshire, not met by existing or consented RFIs which serve markets closer to their locations (established by the DIRFT DCO).

It is a common suggestion that so-called rail freight applications won’t develop the rail part and just be a road freight operation.

Interesting that the decision letter refers to a previous decision letter not being challenged in the courts and therefore ‘a material consideration’ (para 28). I think you mean ‘important and relevant’, the Planning Act 2008 equivalent phrase. The government concluded that the rail requirements in the DCO would provide a good deal of confidence that the rail facilities would be delivered as soon as is reasonably possible. The applicant’s attempts to allow variation of the rail requirements by consent of the Secretary of State were rejected as the changes were capable of being too great and should use the official DCO variation process instead.

National Highways achieved approval of a junction design.

The effect on wind at a nearby sailing club was a significant issue and resulted in an additional requirement to assess the effect of nearby buildings on wind before their detailed design was approved.

Article 12(3) in the DCO allows a footpath to be stopped up that doesn’t yet exist, haven’t seen that before.

There is an explicit, and in my view unnecessary, provision that implementing any planning permission granted for land within the order limits does not constitute an offence of breaching a DCO.

A good table of phasing of highway improvements as stages of the development are reached (requirement 25).

An extension and slightly weaker wording of the usual text:

…a variation can only be approved if it would not ‘give rise to any materially new or materially different significant effects on the environment that have not been assessed in the environmental statement or in any updated environmental information supplied under the 2017 EIA Regulations’.

COVID-19 developments

Legislation to allow online-only document inspection has been introduced for town and country planning applications, listed building applications and environmental assessment for petroleum and pipelines and town and country planning, but there is still no change yet for nationally significant infrastructure projects.

Updated government guidance and updated Planning Inspectorate guidance during the pandemic were both issued on 13 May 2020 and can be found here and here, as was updated guidance on ‘NSIP events’, here. The government guidance contains the helpful statement:

‘It is important to keep the planning system moving as much as we can, so that it is able to play its full part in the economic recovery to come, at both national and local levels.’.

The first online hearing (for a town and country planning application) was held in Cornwall on 11 May 2020, and went OK as far as I am aware.

The M25 Junction 10 project joins the A38 Derby Junctions project to have a lengthened examination and also to schedule online hearings. The former application will have a Compulsory Acquisition Hearing over three days from 16-18 June 2020, and the latter will have a variety of hearings from 9-18 June 2020. The A1 Birtley to Coalhouse project is also consulting on online hearings.

You may have joined my webinar on 14 May 2020 and one of the topics covered was the ability of an examining authority to waive the need to put up a site notice advertising a hearing. The M25 J10 project applied for this and was granted it, but on condition that a further newspaper notice is published.

The South Humber Bank DCO application was accepted for examination on 4 May 2020, and although none of the surrounding documentation refers to the pandemic, once it starts its representation period it will be the first application to hold such a period wholly within lockdown. The M54 to M6 project extended its period by four weeks, but had already started when lockdown was imposed.

The Aquind project has issued a questionnaire about a virtual Preliminary Meeting, which can be found here.

Finally, the Norfolk Boreas had its examination extended by the Secretary of State by five months – on its last day, see this statement.