960: Another highway DCO granted and an airport redetermination

Today’s entry covers the grant of the A428 Black Cat to Caxton Gibbet DCO and the re-grant of the Manston Airport DCO.

For the first time the Secretary of State for Transport has granted two Development Consent Orders on the same day (although his counterpart in Business, Energy and Industrial Strategy has already done so twice).

Black Cat to Caxton Gibbet

The first project is an improvement to the A428 from its junction with the A1 at the Black Cat Roundabout (named for a garage of that name) east to Caxton Gibbet (which was indeed a place where people were hanged up to the 18th century). When built, it will actually become the A421.

Here are the facts and figures:

• project: dualling of 16km of the A428 in Bedfordshire and Cambridgeshire;
• promoter: National Highways;
• application made: 26 February 2021;
• application decided: 18 August 2022, so just under 17 months;
• three inspectors: Menaka Sahai, Andrew Parkin and Matthew Scriven;
• 124 relevant representations: above average;
• 26 written representations: above average;
• 331 questions in the first round: above average (with an unusual five levels of referencing, eg 1.3.2.1(a));
• six specific issue hearings, two compulsory acquisition hearings and one open floor hearing: above average; and
• 1130 documents on the Planning Inspectorate web page on the date of the decision: also above average.

Notes from the Decision Letter are as follows.

Compared with the previous two decisions, the Examining Authority’s recommendation was unequivocally in favour of granting the DCO.

The project included a gas pipeline diversion that qualified as a Nationally Significant Infrastructure Project (NSIP) in its own right. The SoS Transport consulted the SoS BEIS and also took an environmental impact assessment screening opinion into account (which made it an NSIP because of significant effects on archaeology).

The East West Rail project featured significantly in the examination as it will cross this route and also called into question the need for it, but the SoS decided it was still needed as there would not be much road to rail switching.

There is a discussion of Biodiversity Net Gain (BNG). The project would provide over 10% net gain for standard units and river units, but a net loss of hedgerow units, and all three need to be considered separately. A requirement has been added to the DCO to prevent the scheme from proceeding until no net loss of priority habitats can be demonstrated (so, not necessarily a gain per se). There is also discussion of no ‘trading down’ of one habitat for a lower quality one even if a greater area of the latter, as the biodiversity metric rules require.

Some Grade II listed cottages (Brook Cottages) are to be lost by the scheme, and there is extensive discussion of the relevant paragraph of the National Policy Statement, paragraph 5.131. Whether the loss was unavoidable meant revisiting the options appraisal for the scheme (so we’re back to previously-considered alternatives being important). Essentially the options that preserved the cottages did not sufficiently solve road safety issues and the latter trumped the former. A vulnerable tenant of the cottages was also rehoused to allow the project to go ahead.

The usual carbon text is included; it was originally reported that this project would contribute 0.002% of the third carbon budget, 0.012% of the fourth, 0.011% of the fifth and 0.023% of the sixth. However the Emissions Factor Toolkit has been revised to reflect the faster take up of electric vehicles and this gives figures of 0.002%, 0.012%, 0.010% and 0.018% respectively. Further data was provided during the decision period reducing this a tiny bit more, to 0.017% of the sixth budget.

The phrase ‘land adjacent to the Order limits’ was used as a way of overriding any undiscovered local legislation that might affect the project; the application of other powers of the DCO to such land was removed and the land itself restricted to land necessary for construction only.

The applicant is ticked off for not including a psychiatric nursing home in its Equalities Impact Assessment. The fact that not many properties were being lost was not considered decisive, as each should be considered individually.

On habitats there was an argument that mitigation was not ’embodied’ and so shouldn’t be counted for screening purposes pursuant to the Sweetman case but Natural England agreed it was embodied mitigation. However Natural England thought that the effects on barbastelle bats in relation to another site did require assessment.

The next project to be decided is yet another highway one, and another relating to the A47 in Norfolk, at Thickthorn Junction, due by 20 September, whereupon if granted National Highways will have 22 out of 110 DCOs, ie a fifth of all DCOs.

Manston Airport

The Manston Airport DCO was granted for a second time, having been quashed by the High Court in February 2021 after the Secretary of State for Transport decided not to defend a judicial review challenge to it on need in particular. The SoS commissioned a report into need that concluded that the need case had not changed since the ExA’s report said it wasn’t needed. The SoS has disagreed with both and decided that the project should go ahead.

The second DCO is for all intents and purposes identical to the first one, but the new Decision Letter is much longer than its predecessor, particularly when discussing need, not surprisingly.

Some interesting points. The status of need is downplayed in the decision letter, although sufficient need, or at least demand, is considered to exist. The ‘Making Best Use’ policy for airports is considered still to apply to Manston even though it closed in 2014 and needs a consent to reopen (para 65). Its offering on ‘general aviation’ (ie non-scheduled business and enthusiasts’ flights) is given considerable weight (para 70).

On existing capacity, other airports’ expansion plans that have not yet come forward were not given weight since they might not succeed, in other words there is an element of ‘first come, first served’ when it comes to airports (para 97).

Brexit weighs in favour of the project (para 119), as does its ability to provide resilience (para 124).

On carbon, the government’s Transport Decarbonisation Plan and Jet Zero Strategy, both published since the original decision, can be relied upon to meet aviation decarbonisation targets without directly limiting aviation demand (para 149).

The rest of the letter is pretty much the same as the first one.

This is the second redetermination of the first four DCOs ever to be quashed, all last year. The first was the Norfolk Vanguard offshore windfarm DCO, which was redetermined this February a year after it was quashed (and unlike Manston involved significant amendments to the DCO). Manston has taken 18 months since it was quashed, and a record 1,493 days since the application was first made. The other two are A38 Derby Junctions and A303 Stonehenge. If Stonehenge takes at least another three months to be redetermined, it will overtake Manston as the longest.

And finally, the ‘regulation 23’ notice about the decision says it was taken by Karl McCartney MP, although incorrectly calls him Karly.