959: Latest highway DCO decision and some court challenges
This week’s blog reports on the latest DCO decision and some court challenges.
A47 North Tuddenham to Easton
On 12 August the decision was made to grant the A47 North Tuddenham to Easton DCO application, which has been made on time.
- project: improvements to the A47 west of Norwich;
- promoter: National Highways;
- application made: 15 March 2021;
- application decided: 12 August 2022, so just under 17 months;
- one inspector: Adrian Hunter;
- 84 relevant representations: average;
- 15 written representations: average;
- 218 questions in the first round: below average;
- three specific issue hearings, three compulsory acquisition hearings and one open floor hearing: average; and
- 701 documents on the Planning Inspectorate web page on the date of the decision: also average.
No material changes were made during the examination, but one non-material change with five elements was accepted. Despite being fairly small the project managed to be in three local authority areas, plus a county council on top.
The ExA recommended the DCO be made, although five issues were listed on which the Secretary of State ‘may wish to satisfy themselves’. This is a somewhat more positive formulation than Sizewell C, which was that the case for the DCO was not made out unless two issues were resolved.
One of the issues was that Natural England’s position on the Inheritance Tax Act 1984 be sought, mainly because NE did not participate in the examination. The others were to do with barbastelle bats, Norfolk County Council protective provisions, the proposed deletion of article 7, and nutrient neutrality – more on each of these below.
Alternatives get a fairly brief mention, although one junction was subject to alternative proposals put forward by third parties. Other modes are briefly referred to but ‘the road-based form of the Proposed Development would tackle the identified highway problems along the existing A47 directly’.
There was a supercolony of bats fairly near the proposal (I have to say it – at the ROARR! Dinosaur Adventure Park) and measures to encourage bats to cross the road safely were agreed to be somewhat uncertain, and this weighed significantly against the project. Biodiversity delivery would be maximised although no percentage net gain was given and this was OK – will we see that for much longer? Carbon emission text is similar to previous decision letters but with some additional text including acknowledgement of the unlawfulness of the Net Zero Strategy, this project would contribute 0.004% of the fourth, fifth and sixth carbon budgets. There is quite a lot of text on cumulative impacts with other A47 schemes, particularly issues raised by Andrew Boswell (see the legal challenge section below).
On heritage, I must mention the effects on the crinkle crankle wall at Berry Hall but these were considered to be mitigated appropriately. On trees, 256 individual trees, 66 groups and 27 hedgerows would be removed, but 200,000 new trees, shrubs and hedges would be planted, which was considered adequate despite the time lag in establishing them. Noise monitoring was done in September 2020, during the pandemic, but the approach of comparing this with September 2019 data was considered to be a robust approach. There were complaints that an old (2015) traffic model had been used despite there being an (unapproved) 2019 model, but this was considered acceptable.
On nutrient neutrality, the applicant said that its mitigation would reduce nutrient input to watercourses, and Natural England agreed with this.
That strange reference to the Inheritance Tax Act 1984 was because Berry Hall is listed as being of ‘outstanding scenic, historic or scientific interest’ for tax reasons. That was not considered equivalent to being a listed heritage asset but was nevertheless a material consideration in the decision. Natural England thought additional screening planting should be provided and the applicant agreed to consult them on this.
There are over three pages of minor amendments to the DCO. The article 7 issue was about planning permissions being granted within the order limits not being a breach of the DCO. This was removed by the ExA and not reinstated by the Secretary of State, despite appearing in a few made DCOs. The Norfolk County Council protective provisions were also agreed, the remaining outstanding issue.
The next DCO decision is due a mere four days after this one, for the A428 Black Cat to Caxton Gibbet improvements, expected on 18 August.
Court challenge news
It appears that two recent DCO decisions are to be challenged in the High Court. First, the A47 Blofield to North Burlingham DCO, granted on 22 June, is being challenged by former Norwich Green councillor Andrew Boswell. The grounds are believed to relate to cumulative carbon emission assessments and failure properly to consider environmental information; an article on the challenge in New Civil Engineer can be found here. One of these is a ‘bandwagon’ issue – that the secretary of state was not provided with adequate information on which to base his decision, which contributed to the success of the Stonehenge DCO and Net Zero Strategy challenges. Incidentally the just-made A47 decision is just the other side of Norwich from this one – and there is a third one in between, Thickthorn Junction, which is due on 20 September.
Secondly, the Sizewell C DCO, granted on 20 July, is being challenged by pressure group Together Against Sizewell C (TASC, not to be confused with An Taisce, who challenged the grant of the Hinkley Point C DCO). A news item on the website of their lawyers, Leigh Day, can be found here. Six grounds are listed, four of which relate to the two reasons that the Examining Authority did not recommend that the project be approved (habitats and how water would be supplied to the project). Additionally, alternatives are mentioned (all the rage at the moment) and when nuclear waste would be removed from the site.
In non-DCO news, but of environmental law interest generally, the Supreme Court has agreed to hear an appeal of the case of Finch v Surrey County Council. If you recall, this is the one about an oilwell in Surrey, and whether the emissions that will result from burning the oil should be assessed as part of consideration of permitting the well to be used. This is an indirect, but agreed to be inevitable, effect, and the emissions would not be assessed at any other point.
The Court of Appeal decision, split 2 / 1, can be found here. The Supreme Court hearing and judgment will take a few months.
And finally, the lights might only stay on in the UK this winter if it rains in Norway. National Grid ESO’s ‘winter outlook’ document relies upon 5.7 GW of electricity coming from overseas interconnectors, one of which is the 1.4GW North Sea Link from Norway. However, the Norwegian government has said that if its hydroelectric output remains low due to lack of rain, it will not export electricity to other countries, according to this FT article (paywalled).