863: Drax judgment and latest DCO decisions

Today’s entry reports on the High Court judgment on the challenge to the Drax Development Consent Order and the decisions on the Cleve Hill solar and the A63 Castle Street projects.

Drax judgment

The judgement can be found here.

It is quite lengthy, but here is a summary. The Drax Re-Power project was given development consent last October. Although it is effectively the replacement of coal-fired power with gas-fired power, its emissions are not restricted by the Development Consent Order. The panel had recommended refusal mainly on lack of need and the greenhouse gas emissions that could arise, but the then Secretary of State, Andrea Leadsom, granted the DCO.

The decision was challenged by environmental lawyers ClientEarth, who have had some successes with air quality challenges in the past. There were nine grounds of challenge that can be summarised as need not being demonstrated, the potential emissions not being given due weight, and net zero not being properly taken into account. The case was heard via Microsoft Teams on 28-30 April 2020. I dropped in for some of it.

The judge, Mr Justice Holgate (one of the two judges who rejected the challenge to the Airports National Policy Statement, only to be overturned in the Court of Appeal), rejected all of the grounds.

On need, is it taken as read or should one look at whether the projected demand is already being met for that type of infrastructure? Overarching Energy National Policy Statement EN-1 leans towards the former view but then does say things like paragraph 3.2.3:

‘The weight which is attributed to considerations of need in any given case should be proportionate to the anticipated extent of a project’s actual contribution to satisfying the need for a particular type of infrastructure’.

The judge concluded that ‘it is necessary to read EN-1 as a whole, rather than selectively’, ie going with the general theme rather than specific references in the NPS, throwing in for good measure:

‘The case advanced by ClientEarth was a barely disguised challenge to the merits of the policy’.

Reliance is placed on the challenge to the Whitemoss DCO in the Scarisbrick case, which covered similar ground.

On greenhouse gas (particularly CO2) emissions, the inspectors weighed them against the proposal. The Secretary of State gave them some weight but not enough to refuse consent, relying on paragraph 5.2.2 of EN-1 which says:

‘Government has determined that CO2 emissions are not reasons to prohibit the consenting of projects’

because there are other ways that emissions can be controlled such as via greenhouse gas permits. The judge agreed with this, interpreting the NPS as meaning emissions are not reason enough to refuse an application on their own, but could be in combination with other adverse impacts.

Passing over grounds relating to carbon capture readiness and monitoring (where ClientEarth gets told off for raising that in its challenge but not at the examination), we come to net zero.

According to the decision letter:

‘the Secretary of State does not consider that Net Zero currently justifies … attributing the Development’s negative GHG emissions impacts any greater weight in the planning balance’, since ‘there are a range of potential pathways that will bring about a minimum 100% reduction in the UK’s emissions’.

I do think it surprising that potentially adding back in 10% of the UK’s emissions, which would require covering five counties of England entirely with trees to offset, does not affect the weight given to them (a point that is not particularly covered in the judgement). Furthermore, given that the committee on Climate Change said various ‘speculative options’ (ie things not invented yet or severe curbs on behaviour such as eating less meat) were necessary to achieve net zero, having to achieve a further 10% did not require any investigation as to how that could be achieved. Placing reliance on a subsequent greenhouse gas emissions permit to control the emissions does not seem sufficient, since such a permit must be granted if the applicant undertakes to monitor and report on emissions, there is no ability to limit them. There may be other permissions that are needed and could result in curbs.

Interestingly, Drax’s lawyers sent a letter during the decision stage (not uncommon) that was read by officials but apparently was not taken into account by the Secretary of State herself in the decision and so there was no need to allow others an opportunity to comment on it, even though the decision letter is signed by the official. The judge concluded that:

‘the advice actually given by officials to the Secretary of State was not influenced or tainted by the letter’.

This is an issue because the decision regulations require that if the Secretary of State is reaching a different conclusion on a question of fact than the examining authority, she must provide an opportunity to make submissions on that. Having said that these arguments sound legal rather than factual ones. However, the judge went further and concluded that even if ClientEarth had been able to make submissions, they wouldn’t have made any difference. But surely it’s not just any submissions ClientEarth could have made?

So that is the judgement in a rather large nutshell. As you can see, I’m not fully convinced by the later parts of it, unless and until National Policy Statements explicitly address it.

Cleve Hill solar park

This week has been busy for applications (three being made, including the Sizewell C nuclear power station) and decisions (two being made). Another three are due on Monday so I’d better clear the decks.

The Cleve Hill solar park is the first solar Development Consent Order (DCO). Here are the details.

• Project: a solar farm and additional energy storage totalling 350MW near Faversham in Kent;
• Promoter: Cleve Hill Solar Park Limited;
• Application made: 16 November 2018;
• Three inspectors, David Rose (his first), Andrew Mahon (his first, although he has subsequently been appointed to the Aquind interconnector) and Helen Cassini (her first), who was appointed three weeks into the examination;
• 867 relevant representations, high;
• 29 written representations, fairly low;
• 237 questions in the first round, fairly low; 165 of them start ‘Could the Applicant’;
• Two compulsory acquisition hearings, seven issue specific hearings and three open floor hearings – above average;
• Three Local Impact Reports, from Swale, Canterbury and Kent;
• Examination two days short of six months, recommendation exactly three months, decision exactly three months;
• 559 days from application to decision, 18 1/2 months, above average; and
• 984 documents on the Planning Inspectorate web page on the date of the decision (not including the relevant representations), high.

The Decision Letter has its usual crop of points worth noting.

National policy statements do not cover solar farms so the decision was made under section 105 of the Planning Act 2008 rather than section 104 (despite the Overarching Energy NPS covering it). Significant weight was given to the project’s contribution to net zero.

Visual effects were a big issue but they were concluded only to have a moderate impact; EN-1 says that nationally significant infrastructure projects are very likely to have a negative effect on landscape and visual perception that is hard to mitigate. Indeed this was one of several issues where there were a large number of representations from members of the public before, during and after the examination.

The second big issue was biodiversity, in relation to several bird species, dormice and eels in particular. It got down to the level of anti-worm chemicals in manure that birds might eat. Additional mitigation was proposed during the examination that resulted in the inspectors rating the biodiversity effect as ‘neutral’. I’m sure we’re all familiar with the Eels Regulations 2009.

Then, heritage, with the impact on listed buildings. These can cause difficulty (see the next decision) but the visual harm to them created by the solar farm was concluded to be less than substantial.

Loss of agricultural land is an issue for solar projects but hardly any of the land lost here was of the best quality.

The final big issue was safety, the potential for fires, explosions and leakage of chemicals from both the solar panels and the battery storage. The examining authority concluded there was nothing of weight in the arguments.

A limit on the ability of the project to expand was consulted on during the decision period and imposed in the DCO. Is this a blow to limits derived from environmental impacts only?

In the most significant issue of relevance to other projects, the Secretary of State decided that compulsory acquisition powers could be granted over land that would provide biodiversity net gain, even though the examining authority did not think they could, saying:

‘ the Secretary of State considers that in accordance with s122 of the 2008 Act, the land is required and that there is a compelling case for inclusion particularly in view of the additional benefits in respect of biodiversity net gain that the Development would be able to deliver’

I (and others) have previously thought they couldn’t, because they go beyond offsetting the effects of the project, so that is of great interest.

The Secretary of State was offended by a ‘deemed consent’ provision where he was to grant transfer of powers:

‘There is no suggestion that the Secretary of State has previously failed to respond to such requests within good time.’

A63 Castle Street improvement

The second project to get consent was this road improvement one, three days before its extended deadline of 31 May 2020. This was despite the inspector recommending refusal.

• Project: improvements to the A63 where it runs through central Hull, mainly grade separating a junction;
• Promoter: National Highways;
• Application made: 20 September 2018;
• One inspector, Peter Willows (his first);
• 20 relevant representations, very low;
• Seven written representations, very low;
• 186 questions in the first round, low;
• Two compulsory acquisition hearings, six issue specific hearings and one open floor hearing – above average;
• One Local Impact Report, from Hull;
• Examination exactly six months, recommendation two days short of three months, decision just over five months, ie just over two months late;
• 616 days from application to decision, 20 months, well above average; and
• 644 documents on the Planning Inspectorate web page on the date of the decision (not including the relevant representations), average.

The Decision Letter (whose PDF name is ‘190926 draft decision’, perhaps that should be changed?) contains the usual matters of interest.

The main one is that the Secretary of State reversed the inspector’s recommendation that the application be refused. The inspector’s report does cater for that possibility. The issue was a single one: that a listed building called the Earl de Grey pub, which needed to be moved to accommodate the widened road, had not had details of its moving specified with enough detail in the application and so it could not be said that paragraph 5.133 of the National Networks NPS on heritage assets was satisfied. Having visited the site I can say that the building in question is closed down and boarded up; it also had planning permission already to be moved. Anyway, that was enough to tip the balance into refusal according to the inspector, but the Secretary of State disagreed, saying that as the building was in the way the harm to it was necessary. It is at these moments I wonder why people clamour for national policy statements to cover their projects…

The project removes part of a disused (other than by drug users – 500 needles have been removed during site clearance) burial ground, a unique issue where up to 19,000 bodies may be affected. Historic England wanted a lot of them removed and examined before being re-interred, but did not get as many as they wanted. National Highways had obtained a ‘faculty’ for this from the church, the parallel system to planning permission that exists for church land that had a lower figure.

Flooding was an issue because the separation of the junction involved lowering one road. However, the whole of Hull is in Flood Zone 3, so alternatives are not possible. The Environment Agency said that if flood risk was made worse elsewhere to any degree at all the flooding exception test was not met, but the Secretary of State disagreed.

National Highways and its predecessor the Highways Agency now have 12 DCOs, far more than any other applicant.

84 DCOs have now been granted; three windfarms are due to be decided on Monday.