890: First two DCOs quashed in the same week

Today’s entry reports on the quashing of two Development Consent Orders.

The first decision on a Development Consent Order (DCO) was taken on 13 October 2011, for the Rookery South energy from waste project. Since then, 100 more decisions have been made. But the total must now go backwards from 101 to 99 because for the first time not one but two DCOs have been quashed by the High Court.

Note that these aren’t the first decisions to be quashed, as on 9 April 2013 the Preesall Gas Storage application was refused by the Secretary of State (see decision letter here), the refusal was successfully challenged by the applicant in the High Court (see judgment here) and the decision was then redetermined positively (see the second decision letter here).

Manston Airport

On 16 February, the Manston Airport DCO was quashed by the High Court. The DCO had been granted on 9 July 2020, the decision had been challenged by a nearby resident Jenny Dawes, and the Secretary of State for Transport decided not to defend the challenge, but only on the ground that insufficient reasons had been given for departing from the Examining Authority’s recommendation of refusal. There was thus no hearing in the High Court, which had been due to take place on 16 February.

The application therefore goes back to its decision stage, a consultation will take place on matters chosen by the Secretary of State, and the decision will be retaken.

Norfolk Vanguard

On 18 February, the Norfolk Vanguard DCO was quashed by the same judge; this time there had been a hearing, on 20 and 21 January. The DCO had been granted on 1 July, and the decision had been challenged by Raymond Pearce, a resident near the point at which the Vanguard and Boreas onshore cables were to feed in to the National Grid at Necton in Norfolk, east of Swaffham, also where the Hornsea Three cable would cross this one. The Hornsea Three application was granted on 31 December 2020 and the Boreas windfarm application is due to be decided on 12 April this year.

The challenge was on the grounds that the Secretary of State did not properly consider the cumulative, mainly visual, impact of the Vanguard and Boreas proposals in the Necton area. The challenge can be traced back to paragraph 4.5.102 of the inspectors’ recommendation report which says:

‘Finally, whilst the Norfolk Boreas Offshore wind farm has been included in the Applicant’s LVIA cumulative impact assessment, the ExA [(Examining Authority of inspectors)] have not considered it in this part of the assessment due to the limited amount of details available. The ExA considers it would most appropriate for Norfolk Vanguard Offshore Wind Farm cumulative impacts to be considered in any future examination into Norfolk Boreas.’

The problem was that that was a very controversial issue in the examination and it was never suggested at that time that details were limited and the proper thing to do was wait until the second application. The Secretary of State restated this paragraph at 4.46 of the decision letter.

It might have been OK to defer full consideration of the cumulative impacts had the Boreas project indeed only had limited details, but it didn’t. The cumulative impacts were considered in the ES and concluded to be significant. The key paragraph of the judgment is 129, and the judge found the conclusion that the information was limited to be ‘illogical or irrational’. Ironically if there had in fact been fewer details about the Boreas project the decision would have been OK.

That is the essence of the error, although the judgment goes on to say that the whole point of choosing Necton was its supposed suitability for both projects so cumulative impacts were very relevant to both applications. Consenting the first project gets a ‘foot in the door’ for the second. The judge also concludes that because of the success of that ground of challenge, the ground on adequacy of reasons also succeeded.

There was a little Brexit moment at the end where the court could have allowed the DCO anyway, but the threshold for reaching that decision is higher when the error is a breach of EU law. It was decided that the threshold still applied for the moment even though we are no longer in the EU.

The judgment had me reaching for my dictionary where it uses ‘solus’ to mean the project on its own rather than cumulatively with the other project. Solus means alone and originally comes from stage directions, so there you go.

Like Manston, the application goes back to its decision stage, a consultation will take place on matters chosen by the Secretary of State, and the decision will be retaken.

These quashings are frustrating for applicants, because they didn’t arise from anything that they did wrong. It will no doubt send a frisson of anxiety through the body of inspectors charged with writing reports to make sure what they are saying is consistent with the examination documents and hearings, and perhaps also government departments to be less ready to adopt inspectors’ reports uncritically.