865: Infrastructure planning litigation news

Today’s entry reports on some forthcoming litigation relating to infrastructure planning and a brief note on the first virtual DCO hearing.

Good Law Project Energy NPS challenge

First, the Good Law Project (with Dale Vince of Ecotricity and George Monbiot of the Guardian) is challenging the Secretary of State’s refusal to consider reviewing the suite of six energy National Policy Statements (NPSs). These were designated in July 2011 and so are approaching nine years old.

They have published their grounds of claim here.

Extracts of a letter from an unnamed civil servant (which the claimants thus refer to as the ‘Sir Humphrey letter’ in a nod to Yes, Minister) reveal the Department for Business, Energy and Industrial Strategy’s (BEIS) thinking.

First it says they will consider reviewing the NPSs (not committing to actually doing so) once the Energy White Paper is published, which could be in another year.

Secondly, it says the civil servants have not asked ministers whether to review the NPSs as a result of the GLP’s correspondence. I’m not sure if this is trying to establish that there is no decision of the Secretary of State to challenge, but perhaps not.

The main thrust of the defence is that the white paper will change policy so it is premature to review the NPSs now, or even think about whether to review them.

The grounds of challenge are a couple about the non-decision issue I just mentioned, and three relating to the decision not to review the NPSs not involving the criteria for doing so set out in section 6(3) of the Planning Act 2008, such as there having been a significant unanticipated change in circumstances that would allegedly have resulted in materially different policy in the NPS.

Transport Action Network RIS2 challenge

The second challenge is not to an NPS but the government’s second Roads Investment Strategy (RIS2), covering the period 2020-25, which allocates funds to road projects. The challenger, the Transport Action Network, has also published its facts and grounds, which can be found here.

There are four grounds: insufficient regard was had to climate change in producing RIS2; it should incorporate a metric for measuring greenhouse gases; it does not seek to keep air quality below the required thresholds; and it should have been accompanied by a Strategic Environmental Assessment (the equivalent of Environmental Impact Assessment but for plans or programmes rather than individual projects).

As its name suggests, RIS2 is an investment rather than planning strategy; we shall see how the challenge fares if it turns into a hearing.

Chris Packham HS2 challenge

Naturalist and TV presenter Chris Packham is appealing to the Court of Appeal having lost a challenge in the High Court about HS2. The judgment in the High Court can be found here.

The court found that he had not made the challenge promptly and it should be dismissed on that ground but went on to consider the merits anyway.

They were around the ‘Oakervee Review’ where HS2 was paused, reviewed and restarted between October and February. The grounds were the review process itself, local environmental concerns, climate change and legitimate expectation.

Hero Granger-Taylor HS2 challenge

Another unsuccessful challenge to HS2, this time to a proposal to tunnel under a property about half a mile north of the southern terminus at Euston. The judgment can be found here.

The nub of the decision was that the tunnel design was not so flawed that there was no solution to build it safely (despite a pilot tunnel only being 10 inches thick), and in any event HS2 wasn’t committed to definitely doing it.

GLA Riverside challenge

The Mayor of London is seeking a judicial review of the Riverside Energy Park DCO, granted on 9 April, according to this tweet.

Girling Sizewell challenge

Finally, in a bit of satellite litigation a Joan Girling has been given permission to challenge a planning permission relating to the Sizewell C nuclear power station project for preliminary works involving clearing 30ha in an Area of Outstanding Natural Beauty.

Meanwhile the main Sizewell DCO application was one of three submitted on 27 May – a big acceptance day on 24 June coming up.

First virtual hearing

The first virtual hearing relating to a DCO application was held on 9 June 2020, for National Highways’s A38 Derby Junctions project. I didn’t attend as rubberneckers were discouraged but from what I hear it went well, so well, that the remaining dates that had been set aside for hearings have been vacated. The first ever video recording of a DCO hearing is now live at this link.

Points to note for those involved in future hearings:

• the hearings are done using Microsoft Teams;
• the Planning Inspectorate holds practice sessions in advance to get everyone familiar with the set-up;
• the hearing sessions take one to two hours with (sometimes short) gaps in between;
• the Examining Authority rather than the applicant controls screen sharing of documents;
• documents should be easy to download and quick to display, rather than everyone watching a PDF draw 15 layers over five minutes;
• the agenda is more rigid than an in-person hearing tended to be; and
• the applicant (and anyone else with more than one person in more than one location) needs to set up its own method of internal communication (this issue has affected the fortnightly quizzes I’ve been holding too!)

I’ve been asked a couple of times if people have to register to attend these virtual hearings (where in theory even if they had to before they could just have turned up at the hearing venue). The answer is yes. To do so, look for the notice of the hearing on the Planning Inspectorate web page for the project in question and provide the requested details. See section 3 of this letter relating to the A38 Derby Junctions hearings as an example.