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04 September 2020

873: A section 53 refusal and a salutary habitats reminder

Today’s entry reports on two technical issues – compulsory land access and retroactive habitats effects.

Compulsory land access

Section 53 of the Planning Act 2008 allows prospective applicants to obtain compulsory powers to enter land for surveying purposes in advance of making their applications. There is a simpler process under section 172 of the Housing and Planning Act 2016 that at least those with other compulsory acquisition powers can use instead, and I think any prospective applicant should be able to use.

Section 53 is a slow and uncertain process, exemplified by a fairly recent (but only just spotted) decision on an application by Arora, promoters of the alternative Heathrow West project. The application was made on 12 November 2019 and refused on 24 June 2020 – over seven months later, which is relatively fast for these things. The decision letter can be found here.

The reasoning is that the applicant has not demonstrated that their project is, or forms part of, a nationally significant infrastructure project (NSIP). Heathrow West is an alternative part of the main Heathrow project but it is not endorsed by Heathrow Airport Ltd – the Planning Inspectorate found that there was no contractual or commercial link with the offical project, and it is a replacement of part of the main project so is not part of it. The argument that the project could get consent to be an NSIP under s35, although hadn’t yet, did not succeed either.

Habitats consultation

Just when you thought it was safe to go back into the water, the Department for Business, Energy and Industrial Strategy, BEIS (baize), has launched a consultation on whether energy infrastructure projects have likely significant effects on habitats that were designated or extended after they were consented. Yes, you might think that your project is safe from habitats issues once it gets consent, but it is possible that a new habitat is designated later, or an existing one is extended, and your project might be found to cause harm to the habitat. Under regulation 65 of the 2017 habitats regulations the government must review such cases ‘as soon as reasonably practicable’ and decide whether to affirm, amend, or – gulp – revoke the consents. Some of the projects in question are operational.

The consultation document can be found here and the consultation closes on 9 October. Two NSIPs are in the frame: Walney extension and Burbo Bank; the remaining projects are older Electricity Act consents.

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