879: Stonehenge DCO approved and other news

Today’s entry reports on the decision to approve the Stonehenge tunnel plus some other recent events related to the Planning Act 2008 regime.

Stonehenge approval

The A303 Amesbury to Berwick Down Development Consent Order was granted yesterday (12 November), a day before its twice-delayed deadline. Although that is its official name it is of course the project to put the A303 in a tunnel as it passes Stonehenge.

The panel of five inspectors recommended refusal, continuing a recent trend for such recommendations, but the Secretary of State for Transport nevertheless granted the project after two delays to the decision deadline.

Here are the facts and figures:

• project: a dualling of the A303 in a tunnel as it goes past Stonehenge in Wiltshire;
• promoter: National Highways;
• application made: 19 October 2018;
• five inspectors, Wendy McKay (her fourth), Alan Novitzky (his fourth), David Richards (his second), Ken Taylor (his first) and Edwin Maund (his second, he was appointed a month after the others);
• 2370 relevant representations – very high (the fourth highest);
• 62 written representations – high, and generally substantial;
• 1076 questions in the first round, the record;
• two compulsory acquisition hearings, 11 issue specific hearings and four open floor hearings – one of the highest;
• two Local Impact Reports, Wiltshire and Devon;
• examination exactly months, recommendation exactly three months, decision ten and a half months, seven and a half months late;
• 755 days from application to decision, a bit less than 25 months, very high; and
• 1,493 documents on the Planning Inspectorate web page on the date of the decision (not including the relevant representations) – very high.

Points to note from the decision letter are as follows.

The biggest issue was of course cultural heritage and the historic environment, to which the decision letter devotes eight of its 29 pages.

The inspectors said the project would benefit the present generation, but that:

‘permanent irreversible harm, critical to the OUV [Outstanding Universal Value of Stonehenge as a World Heritage Site] would also occur, affecting not only present, but future generations’.

That is ironic considering that one of the purposes of the project was to enhance Stonehenge by not having a busy road running right next to it. The Secretary of State preferred the view of Historic England, Wiltshire Council, the English Heritage Trust, the National Trust and the Department for Culture, Media and Sport, and concluded there would be less than substantial harm.

There was a late archaeological find near Stonehenge but outside the DCO boundary that was the subject of a late consultation. Positions appeared to be much the same as for Stonehenge, and the Secretary of State considered the project should still go ahead.

On landscape, the inspectors concluded the middle was beneficial but the ends were not. The Secretary of State concluded that the overall impact was neutral.

Druids don’t often get mentioned in decision letters but they are in this one, in respect of article 16 of the DCO on removal of human remains. Interestingly there is considered to be a minor adverse impact on well-being from drivers not being able to see Stonehenge as they drive past.

Unusually, there were allegations that deciding in favour of the application would conflict with an international agreement, in this case the UNESCO Convention on World Cultural and Natural Heritage. The letter says:

‘As the ExA has noted, an international treaty has no legal effect in domestic law unless implemented by domestic legislation’.

That sounds the same as the Paris agreement argument relating to the Airports National Policy Statement, but it isn’t, as the former is to do with the law and the latter is to do with policy.

On habitats, the stone curlew raised its head, resulting in a requirement in the DCO just for it.

The Secretary of State departed from his usual position on statutory undertakers, allowing the applicant to transfer powers to acquire rights to them without reference to him.

On the DCO, the Secretary of State corrected drafting inconsistencies in articles 22 and 50 and requirement 8 during the decision stage at the request of the applicant. Variation within the limits of deviation ‘as necessary or convenient’ had ‘or convenient’ removed. To get round the distaste for pre-commencement works, the DCO requires these to have their own approved management plan. Finally of interest, the DCO excludes part of the Planning Act 2008 itself, so that the need for scheduled ancient monument consent outside the DCO limits is reinstated.

Wording about land being subject to both temporary possession and the acquisition of new rights was removed as no land appeared in both schedules.

A late 125,000-signature petition was considered not to raise any new issues.

The other A303 project gets delayed again

The A303 Sparkford to Ilchester project, on the same road as Stonehenge but further west, was due to have its decision issued a week today, 20 November, but the decision deadline has been extended for a record-equalling fourth time, to 29 January 2021. The decision period will have lasted for 505 days rather than the 91 it should have done, but amazingly that’s not the longest ever, which was 512 days for the eventually refused Yorks & Humber Carbon Capture and Storage Pipeline.

A consultation on bird strike has been launched, one of the four issues in the previous ‘minded to refuse’ letter.

Electricity generation threshold

From 2 December the Planning Act 2008 will be amended to remove battery storage from the calculation of the threshold as to whether an electricity generation projet needs to use the regime. This statutory instrument amends section 15 of the Planning Act 2008 so that electricity storage (except for pumped storage) does not count towards the nationally significant infrastructure project threshold. There are saving provisions for any applications that have been accepted for examination by 2 December.

This statutory instrument then does the other half – it requires those projects just exempted by the other one to obtain consent under the Electricity Act 1989 instead.

Energy NPS judicial review

The judicial review of the review of the six energy National Policy Statements launched by the Good Law Project was due to be heard this week, starting on 10 November. However the government has obtained a postponement of the case on the basis that it is going to formally announce its decision whether to review the NPSs in ‘late November / early December’. The hearing will resume in January even if the government hasn’t made any announcement.

The announcement is to be part of the Energy White Paper – the slight range of dates suggests it may or may not coincide with the Spending Review on 25 November, when we are hoping the long-awaited National Infrastructure Strategy will be published.