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07 August 2020

871: Cases and a white paper

Today’s entry reports on recent infrastructure-related cases and the implications of the planning white paper for infrastructure.

Recent cases

Broadcaster and environmental campaigner Chris Packham took his challenge to HS2 to the Court of Appeal, where he was again unsuccessful. The full judgement can be found here.

Although successful on one point, that the challenge was in time (where the High Court had taken a different view), the thrust of the judgement was that the decision to go ahead with HS2 following the Oakervee review into it:

‘was not a decision on the planning merits; it was a decision on whether or not to proceed with a project whose planning merits had already been considered in a statutory process, and its first phase approved in an Act of Parliament’.

The Oakervee review:

‘was not an exercise compelled, or even provided for, in any legislation relating to climate change, in any legislation relating to major infrastructure, or in any legislation at all’.

One interesting part of the judgement is paragraph 102, which re-states the Airports National Policy Statement judgement (given by the same judge, Lord Justice Lindblom) and is worth setting out in full given the challenge being heard in the Supreme Court in October.

‘Thus the court’s conclusion on the section 10(3)(a) issue – holding that, in the circumstances, the Paris Agreement as an unincorporated international obligation was “so obviously material” that it had to be taken into account in discharging the explicit requirement in that provision of the statute – did not depend on the Government’s commitment to the Paris Agreement necessarily having the status of “Government policy” on climate change within the reach of section 5(8). It simply depended on that unincorporated international obligation, with its clear significance for the United Kingdom’s responsibilities in mitigating and adapting to climate change, qualifying in the context of the provision in section 10(3)(a) as an “obviously material” consideration.’

I had thought the judgement was that the Paris Agreement was government policy and therefore breached the Planning Act 2008, but it didn’t even need to be that to do so.

On the same day judgement on another challenge was issued, but this one was successful. This was brought by the London Borough of Hillingdon and the full judgement is here.

There is a scheme of approving planning details in the HS2 Act, and Hillingdon had refused an application from HS2 to approve details relating to the route in the borough because it hadn’t received any information from HS2 relating to archaeology. HS2 argued that it didn’t need to provide such information, Hillingdon was bound to approve its application. Having lost in the High Court, Hillingdon won in the Court of Appeal, the judges holding that Hillingdon had to have adequate information to be able to perform its statutory duty.

Forthcoming cases

ClientEarth have been given permission to appeal the judgement of the High Court on the grant of the Drax Development Consent Order, so that will be another case for the Court of Appeal to hear in the autumn.

The Greater London Authority are challenging the Riverside Energy Park DCO, granted in April.

The Good Law Project’s case on reviewing the energy National Policy Statements will apparently be heard in the High Court in the week beginning 9 November.

And finally the Transport Action Network was successful in getting one of its four grounds of challenge to the second Roads Investment Strategy heard in the High Court, the climate change ground, but were not successful on its other three grounds. Nevertheless that means a hearing will take place.

Planning White Paper

You may have heard that the Ministry of Housing, Communities and Local Government issued a Planning White Paper called Planning for the Future for consultation on 6 August. I commend to you the web accessible version because the version with the nice pictures in it has rather a small font.

It is almost exclusively concerned with the town and country planning regime, but not quite exclusively. It has been exhaustively covered on its general provisions elsewhere but here are two infrastructure planning specific ones.

First, slightly hidden under proposal 5, which is about automatic outline permission in designated ‘growth’ areas, is question 9(c), which asks:

‘Do you think there is a case for allowing new settlements to be brought forward under the Nationally Significant Infrastructure Projects regime?’

The accompanying text says:

‘for exceptionally large sites such as a new town where there are often land assembly and planning challenges, we also want to explore whether a Development Consent Order under the Nationally Significant Infrastructure Projects regime could be an appropriate route to secure consents.’

So it may be a DCO near you soon that consents a new town, such as along the Oxford to Cambridge arc.

Secondly, section 106 agreements, which are commonplace in the DCO regime as well as town and country planning, are to be merged with the Community Infrastructure Levy into a new (communityless) Infrastructure Levy. Rates for this will be set nationally rather than locally (although there can be area-specific variations), based on a fixed proportion of the development value above a threshold. Hmm, what is the development value of an infrastructure project, which might itself be enabling housing? Something to think about there.

The consultation runs until 29 October, so there is plenty of time to consider the 24 proposals that it contains.

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