947: Two M25 improvement DCOs granted in three days

Today’s entry analyses the latest two decisions on Development Consent Order applications.

Within two working days of each other, two DCOs were granted for improvements to the M25, at roughly diametrically opposite junctions, namely junction 10 (the junction with the A3) and junction 28 (the junction with the A12). The former had been delayed three times and the latter once, but upon the granting of the M54 to M6 DCO last month which set out the Government’s position on carbon impacts of highway projects, the backlog of decisions is now being cleared.

M25 Junction 10

Junction 10 facts and figures:

• project: improvements to the junction between the M25 and A3 in Surrey;
• promoter: National Highways;
• two inspectors: Gavin Jones and Grahame Gould;
• 62 relevant representations: average;
• 30 written representations: average;
• 224 questions in the first round: below average;
• two specific issue hearings, one compulsory acquisition hearing and one open floor hearing: low; and
• 1002 documents on the Planning Inspectorate web page on the date of the decision: above average.

There were no fewer than nine consultations by the Secretary of State during the decision stage – see paragraph 10 of the Decision Letter. There were also nine changes to the application during the examination.

One of the main issues was that it would take longer to get to the Royal Horticultural Society’s gardens at Wisley, which are right at the junction, and the RHS suggested an alternative. The benefits of the scheme to safety and congestion reduction (which would benefit Wisley staff and visitors too) were considered to override the impact of the longer journey. Similar considerations applied to other direct accesses to and from the A3 that were being closed, and access to the heritage site at Painshill Park.

There was an unusual issue that takes up a lot of the decision letter where the applicant was proposing a certain amount of replacement land (referred to as just ‘RL’ – a new abbreviation to get used to alongside SCL, CL and OS) to offset environmental impacts such as the loss of 0.4 hectares of ancient woodland. This was at a ratio of about 2.1:1, but the inspectors thought it should be less than proposed and closer to 1:1, partly because some of the landowners whose land was being taken for the replacement land had objected. The Secretary of State agreed with the inspectors, although the applicant noted that they had slightly miscalculated by including 0.12 hectares too much. Usually arguments about replacement land centre around the developer not providing enough, in this case the developer was supposedly providing too much. There was also an argument about if the replacement land is to be reduced, which of it should be dropped and which should be kept – the Secretary of State chose a more consolidated than fragmented option. In yet another complication, some of the M25 land that was compulsorily acquired for the original junction 10 was still registered as common land.

Biodiversity net gain was an issue because although it is not a legal requirement for NSIPs yet, it is in the two relevant local authorities’ development plans.

Photomontages have been an issue in other applications where they were advised in a scoping opinion but not provided, leading to non-acceptance. In this case though it was just third parties calling for them, and they were not required by National Highways’ design process the Design Manual for Roads and Bridges.

The RHS described some trees that were being lost as Grade II and Grade II*, but that was not from any recognised classification system so little weight was given to it. On the other hand, the project contains the UK’s first heathland green bridge.

The same text for carbon impacts has been used as for the M54-M6 Link Road decision, although with different percentages to reflect the project data. This project has about 1/4 of impact of the M54-M6 project by the sixth carbon budget, so it was OK on that front.

On habitats, this project demonstrated imperative reasons of overriding public importance (IROPI) and so was allowed to go ahead despite its habitats impacts; I think this is the first entirely terrestrial project to need to show this. The compensation consists of two areas of replacement habitat and the enhancement of large areas of the SPA.

In the DCO, an article modifying the 2017 general vesting declaration regulations was removed as were certain provisions allowing statutory undertakers benefiting from compulsory acquisition to be able to acquire land themselves rather than the Applicant having to do it and then transfer it to them, as ‘this has not appeared to be a problem’ in the past. Drafting in two other articles was amended to reflect the drafting in the A30 Chiverton to Carland Cross DCO. Wording allowing the retention of temporarily possessed land to two years after the completion of the relevant work was changed back to the usual one year.

There is an interesting distinction between when the Secretary of State not determining an application to sign off a requirement leads to an assumption that it has been granted or refused. The latter case is in relation to two particular requirements on habitats and restoration of land, and also if the application is accompanied by a report saying there will be materially new or different environmental impacts to those originally assessed. But why would the applicant ever submit such a report?

M25 Junction 28

Junction 28 facts and figures:

• project: improvements to the junction between the M25 and A12 on the edge of Greater London, mainly consisting of a new loop road;
• promoter: National Highways;
• two inspectors: Richard Allen and Rod MacArthur;
• 30 relevant representations: low;
• 9 written representations: low;
• 259 questions in the first round: about average;
• three specific issue hearings, one compulsory acquisition hearing and one open floor hearing: low; and
• 755 documents on the Planning Inspectorate web page on the date of the decision: average.

Points of interest from the decision letter are as follows.

There is an interesting couple of paragraphs on alternatives, given their current focus, which conclude that ‘the ExA accepts that the Applicant reached a balanced judgement in advancing option 5F’. Is that the phrase we should now be using?

Something has gone a bit wrong with the DCO, where the numbering of the requirements starts at 54, continuing the numbering of the articles of the main order. This makes cross-referring to the decision letter a bit tricky e.g. when the latter refers to requirement 17 and the DCO calls it requirement 70. I hope this gets corrected in the official DCO rather than needing a correction order application.

Requirement 17 is a new one, and requires a non-motorised users route to be delivered where it is within the order limits and approved where it is not, before the new loop can open for traffic. A new requirement 16 (/69) has also been added to deal with a late change request and ensure it meets safety standards.

The London Borough of Havering asked for £1m for developer contributions, but it was held that the development plan policies with which the £1m was to resolve conflicts did not apply to this project and the request was not justified. The report does not appear to go as far as a development plan being incapable of applying to a nationally significant infrastructure project, just that this one didn’t.

There was an argument between the applicant and the panel over whether the design of the project ought to be independently reviewed. The Secretary of State modified a requirement to require the applicant to submit a report following a review of the design, but independent input to this is not an obligation.

1016 trees would be lost but 8225 new ones would be planted; despite the eightfold increase there would be a temporary visual impact until the new ones reached maturity and this was considered a negative impact.

The same text for carbon impacts has been used as for the M54-M6 Link Road and M25 J10 decisions, although again with different percentages – this project has the least impact of the three, about 1/20th of the M54-M6 project by the sixth carbon budget, so no wonder it was OK on that front.

The compulsory acquisition of 12 plots of land already principally owned by the applicant but with other interests attached was not allowed because there were no works planned for those plots.

Quite a few of the changes to the DCO are made partly because the original drafting was ‘unprecedented’, which on its own I don’t think is necessarily sufficient to refuse drafting, otherwise DCOs will not evolve with the times.

Other news

The next decision ought to have been for the Sizewell C nuclear power station DCO, due on 25 May, but to nobody’s great surprise this has been postponed, with a new deadline of 8 July. The irony of telling the examining authority off on this very project for seeking an extension to the recommendation period because it would erode developer confidence in the certainty of timings under the Planning Act is of course not lost on any of us and was something of a hostage to fortune.

The official reason is: ‘to ensure there is sufficient time to fully consider further information provided by the applicant and interested parties in response to the Secretary of State’s post-examination consultation’. Meanwhile a pair of marsh harriers has decided to nest in the area proposed for development for the first time in at least 25 years.

The next decision will instead be on the A1 Morpeth to Ellingham DCO application, which is another highway project delayed due to consideration of carbon impacts.

Finally, in judicial review news, Suffolk Energy Action Solutions (SEAS) are challenging the two recent East Anglia offshore windfarm DCO decisions, on the ground that the Secretary of State should have split the onshore and offshore elements and only granted the latter.