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11 September 2020

874: Infrastructure planning autumn outlook and news in brief

Today’s entry looks at what the rest of the year holds for infrastructure planning plus some brief news items.

Court cases

The courts at all levels are set to be busy hearing Planning Act 2008 related cases, as follows:

  • the High Court will hear the challenge to Road Investment Strategy 2 by Transport Action Network, I understand in October;
  • the Court of Appeal will hear the challenge to the granting of the Development Consent Order (DCO) the Drax Repower project by ClientEarth, at a date yet to be set;
  • the High Court will hear the challenge to the granting of the DCO for the Riverside Energy Park project by the Greater London Authority, on 6 and 7 October;
  • the Supreme Court will hear the challenge to the designation of the Airports National Policy Statement (NPS), where Heathrow Airport Limited is seeking to overturn the decision of the Court of Appeal to cancel the NPS, on 7 and 8 October; and
  • the High Court will hear the challenge to the energy NPSs by the Good Law Project, during the week beginning 9 November.

DCO decisions

The Secretaries of State for Business, Energy and Industrial Strategy, and Transport will also be busy with seven decisions due on DCO applications remaining this year:

  • the original deadline for the Great Yarmouth Third Crossing DCO application is on 23 September;
  • the twice-delayed deadline for the Wylfa nuclear power station DCO application is on 30 September;
  • the original deadline for the Southampton to London Pipeline DCO application is on 7 October;
  • the original deadline for the West Burton power station DCO application is on 22 October;
  • the twice-delayed deadline for the A303 Stonehenge DCO application is on 13 November;
  • the thrice-delayed deadline for the A303 Sparkford DCO application is on 20 November, which has a ‘minded to refuse’ letter; and
  • the four-times (fource?) delayed deadline for the Hornsea Three offshore windfarm DCO application is on 31 December, which has a ‘minded to approve’ letter.

News in brief

The second and final day of the Preliminary Meeting for the Aquind interconnector project took place on 8 September, meaning that the examination officially started the following day. That is the first examination to start since lockdown, indeed the first since the Kemsley power upgrade examination started on 19 February. It means that every stage from application to decision has now taken place as a virtual equivalent (albeit for different projects) and so the jigsaw is now complete from application onwards. There is still an issue with unrepresentative environmental surveys, but it is not insurmountable.

At a National Infrastructure Planning Association event on 7 September the digital Environmental Statement for the Sizewell C project was demonstrated. It is definitely the future, enabling parties with different roles to examine the data easily from their point of view, it can be found here. It does not actually form part of the application for Sizewell C, which is in the midst of its relevant representation period – a traditional hard copy and electronic version were submitted. However it is being used for engagement purposes, and tellingly members of the applicant’s team use it themselves, suggesting it is genuinely useful.

Finally, the examination into the Wheelabrator power station and energy from waste project closed on 19 August, a week after the last deadline for submitting documents. The applicant submitted four documents on that day, and the Examining Authority has made a procedural decision to refuse to accept the documents. They are entitled to refuse late written representations under rule 10(1) of the examination rules, but I’m not sure that that rule has been invoked before, Examining Authorities are generally very forgiving of late submissions from any party. The reasoning relies on the obligation to allow parties to comment on written submissions, but where does that end? Must comments be allowed on the comments? If the applicant had dressed up their submissions as comments on the representations made at the final deadline would that have been OK? I can see the sense of refusing last-minute new evidence that has no time to be challenged, but a final summary of case that does not introduce new evidence would surely be useful.

I do however agree that late submissions without good reason for their lateness, and particularly submissions from new parties to the examination without good reason for joining late, should be routinely given less weight to encourage early and timely participation. That may need a change in the law because it is currently a binary case of accept / refuse. Something to think about in any review of the regime.

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