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24 July 2020

870: A variety of infrastructure planning developments

Today’s entry reports on a number of developments in the world of infrastructure planning.

Document deposit waiver legislation and guidance

The first development is that legislation came into force on 22 July to waive all requirements for physical document deposits contained in secondary legislation associated with the Planning Act 2008 regime. It does not waive the two requirements in primary legislation, relating to Statements of Community Consultation (SoCCs) and compulsory acquisition notices once a Development Consent Order (DCO) has been granted.

The waiver remains in place until 31 December 2020. In transitional provisions in regulation 6, if you have already complied in part with any document deposit requirement, or if you do so during the waiver period, then the regulations don’t apply, ie you must carry on with your document depositing (but just for that stage of the process).

On the same day, guidance was published to cover the regulations but also states more formally that government considers that the two deposit requirements in primary legislation need not be complied with (this was previously contained in a written ministerial statement in parliament). It also deals with service of documents where signatures are not being captured and newspaper notices where physical publication is not happening.

The first ‘minded to refuse’ letter

The third highway DCO decision that was due on 17 July (the first being A19 Downhill Lane that was issued on 16 July, and the second A303 Stonehenge that was delayed until 13 November), was for the other A303 project, the A303 Sparkford to Ilchester, further west.

Nothing happened on 17 July, but on 21 July the secretary of state issued the first ‘minded to refuse’ letter, and launched a further consultation on the project, setting a new decision deadline of 20 November, the third extension for this project. There have been two ‘minded to approve’ letters before (Able Marine Energy Park and Hornsea Three), but this is the first ‘minded to refuse’ one.

The remaining issues are (a) the risk of birdstrike from attenuation ponds near a Royal Naval Air Station; (b) adverse effects on non-motorised users; (c) matters relating to the old detrunked A303 and (d) matters relating to temporary possession and imposition of new rights.

There is a definite trend towards examining authorities recommending refusal. From the start of the regime to 27 May 2020, there had been 83 recommendations for approval and three recommendations for refusal: for the Navitus Bay offshore windfarm in November 2015 (which was also refused by the Secretary of State) East Midlands Gateway rail freight project in January 2016 (granted by the SoS) and the Drax RePower project in October 2019 (granted by the SoS). Since 28 May 2020, of the recommendations we know about, there have been two recommendations for approval and six for refusal. Come on, that is a trend – a rise from 3.5% to 75%! Of the six, one was refused by the SoS (Thanet extension), three were granted (A63, Norfolk Vanguard and Manston Airport), one was ‘minded to approve’ (Hornsea Three) and this has now got ‘minded to refuse’.

What is behind the trend? I can think of a few possibilities: application standards are slipping as a result of the high statistics for approvals; examining authorities are giving more weight to adverse impacts; examinations are leaving more issues unresolved; and / or projects are just getting more complex. Whatever the reasons, applicants probably need focus more on resolving issues during, or even before, examination.

ClientEarth appeals Drax

One of the refusal recommendations mentioned above was for the Drax RePower project, the grant of which was the subject of a challenge by ClientEarth. The case was heard in the High Court and the claim was refused by Mr Justice Holgate. ClientEarth have now been given permission to appeal to the Court of Appeal. Their press release is here.

And finally…

I spotted that the appointment of the Examining Authority for the MetroWest railway project on 2 July is the first time an all-female panel (ie more than one inspector) has been appointed since the regime began. An encouraging milestone.

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