956: First ever material amendment to a DCO and second ever nuclear DCO made

What a week! Today’s entry reports on the first ever material amendment order and on the granting of the Sizewell C nuclear power station DCO.

Able Marine Energy Park

The Able Marine Energy Park was granted development consent all the way back in 2014.

8 years later, it is the subject of the first ever material amendment application. The material amendment order (MAO) can be seen here and the decision letter is here.

The promoter wanted to alter the alignment of the quay, create a barge berth, amend dredging and sediment disposal patterns arising from the new quay alignment, seek a more efficient construction methodology and the alteration of a footpath. The reason an MAO was necessary is because the proposal had the potential to lead to materially different environmental effects. A few key facts and figures about the application follow below.

• promoter: Able Humber Ports Ltd;
• application made: 11 April 2019;
• one inspector: Alan Novitzky;
• 14 relevant representations;
• 105 questions in the first round;
• 0 hearings; and
• 300 documents on the Planning Inspectorate web page on the date of the decision (not including the relevant representations).

The entire process took just shy of one year one month, notwithstanding that the process for a material amendment is based on effectively re-running the DCO examination process. It beat the shortest DCO application (for the nearby A160 Immingham improvements) by four days and the shortest examination (a record held by the A19 Testo’s scheme) by 13 days. Incidentally, all three projects had the same law firm acting for them…

Here are a few further things of note from the decision.

First, a few new acronyms points to highlight; because there are different regulations which apply to material amendment applications, there is an Examining Body (ExB) rather than the Examining Authority (no consideration seems to have been given to calling the single lead inspector Chairman MAO). There is an Updated Environmental Statement (UES).

Second, it’s worth noting that this application is known as ‘Material Change – 2’ because ‘Material Change – 1’ (MC1) application has not yet been made. MC1 proposed the compulsory acquisition of additional land (not authorised under the 2014 DCO). There is an interesting exchange to read here where a screening decision was effectively re-taken. You can see what led to that screening decision being re-taken in our letter on pages 3 – 5 here.

Third, the original application was the first DCO project to go through a Habitats Regulations Assessment derogations case; this MAO application had to grapple with that issue but its interesting to note that the Imperative Reason of Overriding Public Interest which justified the adverse impact on the integrity of a protected site was actually strengthened since the initial application because of the British Energy Security Statement.

We learnt some useful lessons on how to achieve a material amendment and are happy to share these with friends and colleagues.

Sizewell C Nuclear Power Station

The second ever nuclear DCO, the Sizewell C Nuclear Power Station has been granted consent. The decision letter weighs in at a hefty 194 pages, and we’ve read it so you don’t have to. First, a few key facts and figures about the application.

• promoter: NNB Generation Company (SZC) Limited (EDF);
• application made: 27 May 2020;
• five inspectors: Wendy McKay, David Brock, Helen Cassini, Neil Humphrey and Edwin Maund;
• 1,282 relevant representations;
• 15 Issue Specific Hearings;
• 9 Open Floor Hearings (though held across 4 days);
• 1 Compulsory Acquisition Hearing (held over 2 days); and
• 4,376 documents on the Planning Inspectorate web page on the date of the decision (not including the relevant representations).

Perhaps surprisingly given the clear and urgent need for energy supply and resilience, the Examining Authority’s recommendation was that development consent should only be granted where issues relating to water supply, and Habitats Regulations Assessments were resolved (which was not the case at the time of their recommendation).’

There is much to digest but here a few points to note from the decision letter. First, the decision letter confirms that the application is to be decided under section 105 (ie, where no National Policy Statement has effect) given the ‘sunset’ clause contained in EN-6 which provides that it applies in relation to nuclear projects being delivered up until 2025.

Second, on the question of water supply, the promoter introduced a change during examination which would permit them to construct a temporary water desalination plan. Essex and Suffolk Water wrangled with the promoter, EDF, over a suitable water supply. This was also accompanied by agreement to use reasonable endeavours to supply water, and if there wasn’t sufficient capacity, then this would be supplied by a not fully specified alternative permanent mechanism, with a long stop date of 2032.

Incidentally, Natural England said that this would impact its view on the Habitats Regulations Assessment given what it considered to be insufficient information on the permanent water supply. Whilst the promoter sought to argue that the permanent pipeline would be subject to its own assessment, the ExA concluded that this did not fully address the assessment of the cumulative impacts of the project.

The Secretary of State disagreed, considering that there was reasonable certainty about the water supply being provided. On the question of whether the project and the permanent water supply were the same project, the Secretary of State considered that the latter fell within the Water Resources Management Plan and that was a separate project and that the source of the water supply was not integral to the project (paragraph 4.65). The Secretary of State concluded there was sufficient assessment provided, given the status of that WRMP, on the cumulative impacts.

Third, the project proposed various compensatory sites, including a 4.52 hectare wetland habitat. The promoter applied for a local planning permission to bring this forward early (and relatedly, concerns raised by the RSPB that this would conflict with the DCO are batted away, see paragraph 4.196). There was also 6 hectares of wetland to compensate for the loss of reedbed and ditches at the Sizewell Marshes SSSI. The need for this arose as a result of a crossing proposed over the SSSI. Natural England favoured a three span bridge which would entail 200m2 less damage to the SSSI. The Secretary of State disagreed and favoured the promoter’s crossing, noting that it would not delay the delivery of the project.

The promoter also put forward marsh harrier habitat compensation land both on its own estate and at a parcel of land called Grange Farm. The promoter did not think the latter was necessary, but provided in case the Secretary of State disagreed. As it happened, both the ExA and Secretary of State did not consider the land was required (see paragraph 6.10). There’s a lesson in here about putting forward ‘without prejudice’ compulsory acquisition cases.

Fourth, amusingly, the Austrian Government had a role in the post-examination process, going as far as to issue a ‘Final Expert Statement’ requesting that the promoter follow the lessons learnt at Taishan Nuclear Power Plant in relation to nuclear waste, and re-assess external hazards, and various other safety matters. The ONR gave its support to the promoter on virtually all points raised by the Austrian Government.

Fifth, there were 22 disagreements between Natural England and the promoter (excluding those related to habitats issues). With the exception of two of these issues, the ExA ‘does not consider that NE has made out its case and it gives very little weight to their disagreement with the Applicant’ (and the Secretary of State agrees). There’s a lesson in there too, I think, about trying to resolve issues but not using a lack of agreement as an insurmountable hurdle to delivering nationally needed infrastructure.

Sixth, the Examining Authority also recommended that the Sizewell Link Road (SLR) (required in connection with the project) be delivered before commencement of the project. The Secretary of State disagreed, noting that it would cause a two year delay to the delivery of the project which would not be palatable given the significant and urgent need for the project.

Seventh, the DCO introduces a ‘Deed of Obligation’; this is similar to, but not identical, to a section 106 agreement secured under the terms of the DCO. The ExA’s recommendation report explains that s106 was not considered appropriate because the ‘applicant owned very little land, certainly not the main platform, and that the promises to be given were wider than the tests of s.106 allowed’. The latter is probably more persuasive than the former (note that other DCOs have got around the first issue through DCO drafting, eg paragraph 9 of schedule 19 to the Thames Tideway Tunnel DCO). But does this mean the end of s106 agreements for DCOs?

In an example of how these things grow legs and commitments find a home during examination, its worth noting the ‘DoO’ went through ten iterations and grew from 31 pages in length to 729 pages. The DCO includes a mechanism to modify the obligations in the Deed, largely based on equivalent statutory provisions for modifying s106 agreement obligations.

Other news

Following the commitment in the British Energy Security Strategy, the government announced at the despatch box that the measures to streamline offshore wind are imminently going to be introduced into the Energy Bill:

‘To meet commitments made in the British energy security strategy we will look to amend the Bill to include measures on offshore wind habitats regulations assessment and an offshore wind environmental improvement package. This measure will help to reduce the time it takes to get planning consent for offshore wind projects from up to four years down to just one year.’

The Planning Inspectorate are trialling a new registration process, and also trialling a new examination document library approach. These approaches will be used on the recently accepted Drax Bioenergy with Carbon Capture and Storage Project, and full details of the trial can be seen here.

The High Court judgment on the Net Zero Strategy will be covered in the Net Zero Blog next week.