943: A development consent order news miscellany

Today’s entry rounds up some Development Consent Order related news.

M54 to M6 decision

The latest DCO to be granted was on 21 April for the M54 to M6 Link Road.

Here are facts and figures for the project:

• project: a new highway linking Junction 11 of the M6 to Junction 1 of the M54 (although will not be a motorway itself);
• promoter: National Highways;
• two inspectors: Robert Jackson and Kenneth Stone;
• 43 relevant representation – below average;
• 8 written representations – very low;
• 411 questions in the first round – above average;
• three specific issue hearings, one compulsory acquisition hearing and one open floor hearing – low; and
• 851 documents on the Planning Inspectorate web page on the date of the decision – average.

Some points of interest in the Decision Letter.

There is an interesting section (almost half of the letter) on carbon impacts, since this has been holding up a number of highway DCO applications. These words in paragraphs 44 to 46 should allow the other applications to continue if they include the approach in the third bullet below:

• ‘the Secretary of State notes the context of that case and the Court’s conclusion that a [Road Investment Strategy] RIS is essentially a high level strategy document, rather than an environmental-decision making document’ ;
• ‘there are a number of ways [a carbon] assessment can acceptably be undertaken and that this does not necessarily need to be done at RIS level’ ;
• ‘ the Secretary of State considers that the Applicant’s approach to assessing the impact of the Proposed Development on carbon is acceptable as it takes into account the Proposed Development and all other developments likely to have an influence on the Proposed Development and on the area the Proposed Development is likely to influence’; and
• ‘the Secretary of State accepts that the only statutory carbon targets are those at a national level and notes that neither the Applicant nor any other party has suggested that there are non-statutory carbon targets at any other level that may need to be considered’.

It no doubt helped that the contribution of the project to the sixth carbon budget would only be 0.0062% (being lower than before due to the new Emissions Factor Toolkit which assumes a faster take up of electric vehicles). The inspectors said this was much lower than a 1% threshold of significance, although the Secretary of State said that there was in fact no such threshold. The Institute of Environmental Management and Assessment (IEMA) says that significance is whether a project ‘whether it contributes to reducing greenhouse gas emissions relative to a comparable baseline consistent with a trajectory towards net zero by 2050’. The full text at paragraph 34 of the decision letter is worth considering for those grappling with this issue.

Some ancient woodland was so close to the project as to be effectively lost, but was to be compensated with new woodland nearby at a ratio of 7:1, which Natural England found acceptable. There was some harm to bats but this was outweighed by the benefits of the project. The project was in the Gren Belt but it was considered that there were very special circumstances that meant it could go ahead (basically, as set out in paragraph 75, that it would decrease congestion and delays).

Because a requirement in the DCO obliges the developer to consult Natural England on matters relating to its functions, this was considered sufficient to deal with the loss of ‘best and most versatile’ agricultural land when it came to detailed design.

Part of an article was removed that would have waived the project from requiring consent under a local authority street works permit scheme as being ‘unprecedented’ (this is not entirely fair: the made, then quashed, A38 Derby Junctions DCO disapplies a local permit scheme and the Southampton to London pipeline DCO includes modifications – the Secretary of State also seems to suggest that previous schemes are relevant, but previous schemes do not usually have permit schemes in place!). Part of an article allowing land rights to be created for the benefit of third parties was also removed.

MetroWest railway

A decision on the proposed MetroWest railway between Bristol and Portishead was due this week but instead got the rare treatment of a ‘minded to approve’ letter, a draft DCO and the publication of the Examining Authority’s report, and a further extension to the decision deadline of 10 months. The Written Statement announcing this says seven months, but the Secretary of State can’t count. The decision had already been delayed once by six months (which the Secretary of State describes as four months), so this is now 16 months in total.

The reason for the delay is that the cost of the project had increased from that set out in the Funding Statement so that a funding gap now existed. The Department for Transport has refused to contribute to meeting it and so the project promoter (North Somerset Council) have ten months to find it from somewhere else. The minded to letter says a letter from the Applicant dated 12 November 2021 has been published and gives more details, but I can’t find it. The minded to letter says that there must be a reasonable prospect of funds for the whole project before compulsory acquisition powers can be granted, according to guidance.

North Lincolnshire Green Energy Park

This application was made on 21 March but was withdrawn on 8 April, 10 days before the acceptance decision. The letter of withdrawal does not give much away, but says that the application will be resubmitted by the end of April. This brings the number of pre-examination withdrawals or acceptance stage refusals since 2020 to 7 – approximate to the number of refusals/withdrawals in the 10 year period between 2010 and 2020. That is a clear trend – and something which will no doubt make all involved nervous.

Holocaust memorial challenge

Finally, in non-DCO news, the approval of a planning application to build a memorial to the Holocaust in Victoria Tower Gardens close to the Houses of Parliament was quashed in the High Court recently. The judgment can be found here. I report it because of its treatment of alternatives, which have become rather topical of late, and it also underlines the need for a local legislation search for a major project.

The alternatives point was around a sentence in the inspector’s report ‘in order that it may garner significant weight, the merits of such alternatives must, logically, be underpinned by a good measure of evidence demonstrating their viability and credibility as such an alternative’, suggesting that objectors need to work up alternatives before they are worthy of consideration. The judge decided that this was not what the inspector had meant, given an associated footnote and two cross-references, but that the amount of information available about an alternative was nonetheless a legitimate consideration. Note that the A303 Stonehenge judgement is referenced – will the impending Aquind Interconnection case follow this line of argument?

The appeal succeeded, though, because the permission was found to infringe the London County Council (Improvements) Act 1900. Don’t ignore local legislation!