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09 October 2020

877: Court and other miscellaneous news

Today’s entry reports on legal challenge developments and other miscellaneous news.

On Wednesday 7 and Thursday 8 October, the Supreme Court duly heard the appeal by Heathrow Airport Ltd against the Court of Appeal’s decision that the Airport National Policy Statement is of no effect until it is reviewed. The judgment of the five judges will take a while to be issued, though, so don’t hold your breath.

A challenge by the Greater London Authority to the granting of the Riverside Energy Park DCO in south-east London was due to be heard in the High Court on 6 and 7 October, but it was withdrawn at the last minute. According to Planning magazine, a spokesperson for the mayor said:

‘After further legal advice the mayor has taken the difficult decision to withdraw his claim, mindful of the substantial costs of proceeding to a full hearing.’

Judgment was however issued in satellite litigation around the Sizewell C nuclear power station application, whose representation period has recently closed. A resident of the nearby village of Leiston had challenged the decision of the local council to grant permission to move parts of the existing Sizewell B complex around to make way for Sizewell C.

The judgment can be found here. Takeaways are: being a site described in a National Policy Statement as suitable for development constituted exceptional circumstances for construction in an Area of Outstanding Natural Beauty (not very many NPSs do identify sites, though). Given that the impact on the AONB was minimal or possibly beneficial, the applicant did not have to provide evidence as to how much this application would speed up the Sizewell C application, but had there been an impact it might have had to. Consideration of how up to date environmental information was, was a rationality argument, and the phrase is ‘up to datedness’ rather than ‘up to dateness’ (not sure I agree on that last point).

On the litigation that the energy NPSs are out of date, the government has confirmed that it will set out its final decision on whether to review them in the forthcoming Energy White Paper, due this autumn. The litigation is continuing, however, because the claimants say the existing NPSs should be suspended, and the government is currently not intending to suspend them. The case is due to be heard starting on 10 November – will the white paper come out before or after that? Meteorological interpretations by the civil service are rather flexible.

The Prime Minster gave his Conservative Party conference speech on Tuesday, where he said that the government were increasing the target for offshore wind generation by 2030 from 30 gigawatts to 40 gigawatts. Two things to note: this was already a commitment in the Conservative Party manifesto for the 2019 election, see page 55 here. Secondly, he said ‘I remember how some people used to sneer at wind power, twenty years ago, and say that it wouldn’t pull the skin off a rice pudding.’, which was actually self-deprecating, as it was he who said that, a mere seven years ago – see here.

Still, that is a positive step. The total power capacity in the country is around 78GW (see chart 5.7 on page 88 here so the current 10.3GW from wind would rise to more than half of that.

When it comes to onshore wind, however, it seems to be a different picture. In the 2015 Conservative Party manifesto, under the heading ‘We will halt the spread of onshore windfarms’, it said ‘we will … change the law so that local people have the final say on windfarm applications.’ Accordingly legislation was introduced to require pre-application consultation on planning applications for more than two wind turbines, but this was time-limited to seven years. Articles such as this from November 2019 suggested that the Conservatives were less opposed to onshore wind. A couple of weeks ago, however, the government extended the consultation requirement for a further five years by means of this innocuous-looking instrument.

Finally, I mentioned before the obligation to review consents in the light of subsequently created or extended European-level protected habitats. This has recently been completed in respect of wind farms affecting the Southern North Sea Special Area of Conservation, and the report can be found here. To the no doubt relief of wind farm operators any wind farms in operation can carry on unaffected, but ones not yet built are to have a further condition added to their deemed marine licences to protect harbour porpoises from construction noise.

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