951: Notes from the latest highway DCO decision
Today’s entry reports on the latest decision on a development consent order.
On 22 June 2022 the Secretary of State for Transport granted the application for the A47 Blofield to North Burlingham DCO. This is the first to be granted of six projects to dual single-carriageway gaps along the A47 trunk road, which runs roughly east-west from Great Yarmouth to Birmingham (although all the projects are east of Peterborough). This section is about 4km long between two villages east of Norwich.
Here are the facts and figures:
- project: improvements to the A47 east of Norwich;
- promoter: National Highways;
- application made: 31 December 2020;
- application decided: 22 June 2022, so about 16 1 / 2 months, all deadlines adhered to for a change;
- one inspector: Alex Hutson;
- 75 relevant representations: average;
- eight written representations: low;
- 284 questions in the first round: about average;
- four specific issue hearings, two compulsory acquisition hearings and three open floor hearings: average; and
- 606 documents on the Planning Inspectorate web page on the date of the decision: also average.
Apart from the low number of written reps, this has been a pretty average application in terms of numbers. I give, however, several notable points arising from the decision letter, as follows.
The applicant requested a change to the project in various minor areas, but the inspector refused it because it required additional compulsory acquisition and there wasn’t enough time to complete that procedure during the examination. The applicant had another go later, having got the approval of the relevant landowners – thus avoiding the procedure – and it was accepted that time.
Consideration of alternatives, currently a hot topic, was dealt with in a single short paragraph (24) like in the old days.
The applicant said Natural England agreed with its conclusions on habitats, but the inspector did not take their word for it and asked Natural England directly, who asked for further justification on each site but then agreed.
Another topical issue reared its head for I think the first time: ‘nutrient neutrality’, which is essentially river pollution. The applicant convinced the inspector that no sensitive river was within the hydro-logical effects of the project.
The applicant said that the project provided 40% biodiversity net gain and this was not disputed. Neither the Examining Authority nor the Secretary of State appear to have probed whether any land was being compulsorily acquired just for biodiversity net gain although it looks from the Statement of Reasons that that was not the case. Note the government’s consultation on BNG stated that ‘we expect that it would generally be preferable for developers to deliver further gains within the existing project boundary or through the purchase of market off-site biodiversity gains without resorting to additional compulsory acquisition of land’.
On climate change, as the project would only use up 0.001% of the fourth, fifth and sixth carbon budgets this was sufficiently insignificant, any less-than-national targets were once again found not to need to be considered. The now-standard paragraphs that the scheme does not affect the ability to meet the Net Zero target are included though there is an interesting paragraph on the relevance of a local carbon target (paragraph 56). The decision letter says ‘LTP4 [the relevance policy in the emerging local transport plan] is not yet adopted, the Secretary of State does not consider that it is appropriate to attach material weight to these LTP4 targets in the determination of this application’ – does this approach align to the approach to local carbon targets in the Bristol Airport appeal decision (see paragraph 189: ‘it was not suggested that local carbon budgets have any basis in law or policy’)?
On heritage, the project managed to achieve improvement to the setting of two listed churches.
Due to landscape and visual (especially lighting) effects, the inspector asked for an outline landscape and ecological management plan during the examination, which was provided, something to consider providing with future applications if not being done already.
There was a bit of a tussle about whether to provide a new non-motorised user crossing of the road, which was resisted by the applicant despite strong hints from the inspector that it would be a good idea. The inspector eventually conceded that the project had had done as much as it could in the circumstances but was still disappointed.
An agreement between the applicant and Norfolk County Council on who would be responsible for what bits of road was only concluded 12 days before the decision.
On protective provisions, the applicant did not reach agreement with Anglian Water but the Secretary of State sided with the former, having received a letter from the latter one day before the decision. The dispute was related to ‘deferment’ – does the applicant pay less compensation because new kit will result from the project that will therefore not need to be replaced as early as it would have done.
Changes made to the DCO are set out in the letter and take up over four pages of it. The phrase ‘to maintain consistency with highways DCOs’ appears ten times – somewhat at odds with the approach of requiring project-by-project specific justifications without reliance on it being a DCO within a particular sector (in this case highways).
The next decision that is due is for the Sizewell C nuclear power station on or before 8 July.