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Home / News and Insights / Blogs / Planning Act 2008 / 872: Latest DCO decision and other news

Today’s entry reports on the latest decision on a Development Consent Order (DCO) application and other infrastructure planning news.

Latest decision

The VPI Immingham power station was given consent on 7 August. Here are the details:

  • Project: a 299MW open cycle gas turbine power station near Immingham on Humberside;
  • Promoter: VPI Immingham, I think the V stands for Vitol, its parent company;
  • Application made: 11 April 2019;
  • One inspector, Rory Cridland (his first);
  • 24 relevant representations – none from individuals, very low;
  • 9 written representations, low;
  • 114 questions in the first round, very low these days;
  • Two compulsory acquisition hearings, three issue specific hearings and one open floor hearing – around average;
  • Two Local Impact Reports, North Lincolnshire and North East Lincolnshire;
  • Examination exactly six months, recommendation one day less than three months, decision exactly three months;
  • 484 days from application to decision, just under 16 months, below average; and
  • 327 documents on the Planning Inspectorate web page on the date of the decision (not including the relevant representations), low.

The decision was made on time and the inspector recommended approval, an increasingly rare occurrence these days. Here are a few notes from the decision letter.

Although ‘biodiversity net gain’ is not used as a phrase, the DCO does require a ‘biodiversity enhancement and management plan’ to be submitted and approved before final commissioning, which must contain measure to enhance biodiversity and habitats. The two local authorities considered that would result in biodiversity net gain, Natural England acknowledged that the plan ‘allows for’ a net gain.

On heritage, the Decision Letter (copies from the inspector’s report) says National Policy Statement EN-1:

‘indicates that both designated and non-designated heritage assets may be of equivalent significance and that the absence of designation should not be taken to indicate a lower significance. It states that if the evidence before the Secretary of State indicates that a non-designated heritage asset may be affected by the Development then the heritage assets should be considered subject to the same policy considerations as those which apply to designated heritage assets.’

I think it’s a bit narrower than that, otherwise what’s the point of designation? Paragraph 5.8.5 of EN-1 only refers to (an admittedly non-exhaustive list of) three categories of non-designated assets that are of equivalent significance to designated ones, and crucially refers to those types in the sentence about evidence before the Secretary of State (actually IPC).

On climate change the development is considered to cause an ‘inevitable increase’ in greenhouse gases, representing less than 1% of the carbon budgets for 2023-27 and 2028-32 of 1,950MtCO2 and 1,725MtCO2 respectively (actually 247,780tCO2, so only about 0.02%, partly due to its intermittent use as ‘peaking’ plant).

The Ministry of Defence gets told off and essentially ignored for not responding when asked about its concerns about the effect of the project on aviation.

On habitats the applicant got told off for concluding there would be no impact from on water quality once mitigation was taken into account so screened out the need for appropriate assessment, since recent EU case law says you can’t do that. An appropriate assessment was therefore carried out (and reported over seven paragraphs) but concluded there would not be an impact on the relevant Natura 2000 sites in the Humber Estuary. On air quality, although the NOx deposition levels were already being exceeded, this development would only increase them by 0.5% and 1% was considered to be the threshold of significance.

Protective provisions had not been agreed between the applicant and Cadent; the government sided with the applicant on the issues in dispute (the amount of insurance and whether arbitration applied in the case of dispute). The same went for all other statutory undertakers where agreement had not been reached: Network Rail, Total Lindsey Oil Refinery and Phillips 66. Saying that a project will have a serious detriment on a statutory undertaker when standard protective provisions are in place is increasingly not being believed.

The DCO amended the Able Marine Energy Park DCO to insert protective provisions for VPI Immingham, and in turn included protective provisions for Able in this DCO.

The next decision due is the Great Yarmouth Third Crossing on 24 September.

Other news

The Progress Power DCO, which came into force on 14 August 2015, would have expired on 13 August 2020 but has been give a reprieve of a year by means of an amending order, which was considered to be non-material in the light of the information provided by the applicant. The application was made on 29 May and decided on 27 July, which is fairly fast for such things, and is the first to allow an extension to a DCO, in this case due to access restrictions arising from the coronavirus pandemic.

The challenge by the Greater London Authority to the Riverside Energy Park DCO will be heard in the High Court on 6 and 7 October, overlapping with the Supreme Court’s hearing the appeal by Heathrow Airport to the cancellation of the Airports National Policy Statement on 7 and 8 October. On the latter, Plan B Earth has published Heathrow Airport’s grounds for seeking permission to appeal here.

Finally, the delayed preliminary meeting for the Aquind project started on 18 August 2020 and went without a hitch. It is being held in two instalments, though, the second one being on 8 September 2020. That means that all aspects in the life of a project have now taken place since the pandemic started.

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