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Home / News and Insights / Blogs / Planning Act 2008 / 923: An English DCO decision, a Welsh tidal energy project, and a Scottish judgment

Today’s entry reports on the first DCO decision in nine months: the decision to grant development consent for the South Humber Energy Bank Centre; the ‘minded to approve’ letter from the Welsh Ministers for an offshore tidal project and a Scottish judgment relating to the Habitats Regulations.

South Humber Energy Bank Centre

Details about the project:

  • project: increasing the electrical capacity of an existing energy from waste facility from 49.9 MW to 95 MW by improving its efficiency;
  • promoter: EP Waste Management Limited;
  • one inspector: Christopher Butler;
  • 12 relevant representations – low;
  • six written representations – low;
  • no compulsory acquisition or temporary possession proposed;
  • 163 questions in the first round – low/moderate;
  • one specific hearings and two open floor hearings – below average;
  • 580 days from application to decision; and
  • 300 documents on the Planning Inspectorate web page on the date of the decision (not including the relevant representations or decision/scoping documents) – average.

Notes from the decision letter are as follows.

On carbon assessments which have caused other DCO projects some delay, it’s worth noting the decision letter sets out:

‘The [promoter’s] assessment concludes that the GHG [greenhouse gas] emissions from the construction of the Proposed Development would result in a minor adverse (not significant) effect when compared to the carbon budget for the period. The emissions from the construction period of the Proposed Development are mostly a result of the embodied carbon within the construction materials used. The assessment of the operational GHG emissions concludes that the emissions from the operation of the Proposed Development would be partly offset by emissions savings achieved by diverting waste from landfill, and by recycling of metals in bottom ash…. The ExA notes that GHG emissions from the construction of the Proposed Development [367kTCO2e] would be considerably less than 1% of the total UK carbon budget emissions during any five-year carbon period under which they arise, and as such would result in a minor adverse effect. Overall, the ExA considers that construction of the Proposed Development will not have a significant impact on the UK meeting the current carbon budget targets.’

It goes onto state:

The Secretary of State notes the Energy White Paper states that National Policy Statements continue to form the basis for decision-making under the Planning Act 2008. The Secretary of State considers, therefore, that the ongoing need for the Authorised Development is established and that granting the DCO would not be incompatible with the 2035 sixth Carbon Budget target or the 2050 Net Zero target—as specified in The Carbon Budget Order 2021 and The Climate Change Act 2008 (2050 Target Amendment) Order 2019 respectively. Operational emissions of the Proposed Development will be addressed in a managed, economy-wide manner, to ensure consistency with carbon budgets, net zero and our international climate commitments. The Secretary of State does not, therefore need to assess individual applications for planning consent against operational carbon emissions and their contribution to carbon budgets, net zero and our international climate commitments.

Whilst this seems like a clear position for projects going forward, it should be borne in mind that (1) the energy NPS explicitly states that the decision maker does not ‘need to assess individual applications in terms of carbon emissions against carbon budgets and this section does not address CO2 emissions or any Emissions Performance Standard that may apply to plant’; and (2) the presence of the existing facility with its planning permission makes the baseline condition more palatable. Nonetheless, as a general approach, this will provide DCO promoters with some comfort particularly as most projects will be below that 1% impact.

On that note, the decision letter re-confirms that the energy National Policy Statements continue to support the need for energy development notwithstanding there are draft energy National Policy Statements out for review. The Secretary of State states that those draft documents are important and relevant, but nothing in them would have led him to making a different decision.

There was a concern that a section 106 agreement was not binding on the mortgagee of the site (Lloyds Bank), and so the Secretary of State has incorporated a requirement in the DCO which sets out that before the construction works on the main site commence, a s106 agreement which binds them is in place. That section 106 agreement was considered critical for concluding there would be no adverse impact on functionally linked land for the Humber Estuary SPA/Ramsar site (in particular, it makes provision for an alternative site to mitigate for the loss of habitat).

Paragraph 5.51 of the decision letter appears to be pre-empting the issue which led to the quashing of the A303 Stonehenge decision: despite there being limited cultural heritage impacts, the Secretary of State restates the position and cross-refers to the impacts on particular heritage assets. As you’ll recall, the Examining Authority’s omission in reporting on all impacts in that case led the court to conclude the Secretary of State had not in turn considered all heritage impacts (even though those impacts were included in the promoter’s assessments).

For fans of issues relating to overlapping planning permissions, one of the key issues in the examination was the interaction of the DCO and the existing planning permission in place. Article five of the made Order sets out how the existing planning permission will cease to have effect following the provision of a notice, but that the discharge of some conditions will be treated as though it were a discharge of the requirements under the DCO. This is by no means novel (eg the Hinkley Point C Nuclear Power Station Order 2013 contains a similar provision).

Morlais Demonstration Zone

The Welsh Ministers have issued a ‘minded to approve’ letter for an offshore tidal energy electricity generating station, located in the Irish Sea to the West Anglesey, together with export cables and onshore infrastructure to provide a proposed grid connection.

The decision was made under the Transport and Works Act 1992, but there are a few interesting nuggets of wider interest.

There was an adverse impact on the integrity of the vegetated cliff habitat of the Holy Island Coast SAC. For the purposes of the Habitats Regulations, there was therefore a need to show imperative reasons of overriding interest (‘IROPI’). The IROPI in this case was stated as follows:

Wales is facing a climate emergency, there is need to deliver a low carbon economy and make a decisive shift away from fossil fuel. The MDZ would help develop a tidal stream energy sector which would provide an additional source of reliable, predictable, renewable energy whilst assisting decarbonisation of the energy sector.’

From the Inspector’s report there is an interesting, slightly philosophical discussion, of whether the loss of protected habitat for a period of almost 40 years can be classified as ‘temporary’ but ‘long term’. The Inspector sets out:

‘A dictionary definition of ‘permanent’ could be something that is either ‘long-lasting’ or ‘forever’. A ‘permanent’ job often would be a period of continuous employment within someone’s working life. For some human lifespans, the near 40 year Project Life of Morlais could be considered to be ‘permanent’. An ecological habitat would be expected to be continuous many times beyond such a relatively short timescale, and especially if that habitat were to be protected. However, I am unaware of habitats that could be considered to be ‘forever’. They are dynamic environmental systems that change over time, perhaps subtly or even significantly, in response to factors affecting them… While I understand how the Applicant arrives at a view that the effects could be considered ‘long-term, temporary’, for the works proposed and the possible effects of them on the SAC vegetated cliff, I prefer the NRW’s interpretation of ‘permanent’ for the reasons given above.’

Beavers 1 – 0 NatureScot

Finally, readers may be interested in the decision of the Court of Session on whether the NatureScot’s beaver-killing policy was lawful.

Article 12 of the Habitats Directive prohibits various activities in relation to protected species like beavers, but Article 16 allows for derogations from the prohibition in Article 12, provided that there is no satisfactory alternative. The Court said reasons had to be provided for derogations, but there was no obligation to carry out a detailed or individual reassessment of the population every time it granted a licence authorising a derogation – in effect saying a general policy could be considered, even if individual licence decisions had to be justified.

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