965: Project Hyper Speed: infrastructure reforms announced and infrastructure related injunctions

Today’s entry looks at the Chancellor’s announcements for infrastructure reform, as well as recent infrastructure-related injunctions.

Project Speed gets overtaken

The Government has announced the intention for major reforms to infrastructure planning. This will seemingly see streamlined a wide range of areas from start to end:

• reducing the burden of environmental assessments;
• reducing bureaucracy in the consultation process;
• reforming habitats and species regulations; and
• increasing flexibility to make changes to a DCO once it has been submitted.

Specific reforms include:

• bringing onshore wind planning policy in line with other infrastructure to allow it to be deployed more easily in England; and
• reforms to accelerate roads delivery, including by consenting more through the Highways Act 1980 and by considering options for changing the Judicial Review system to avoid claims which cause unnecessary delays to delivery.

The Government has explained its rationale for these reforms as follows:

‘The UK’s planning system is too slow and too fragmented. For example, an offshore wind farm can take four years to get through the planning process11 and no new substantive onshore wind farm has received planning consent since 2015.12 On some metrics, the system has also been deteriorating in recent years: the timespan for granting Development Consent Orders (DCOs) increased by 65% between 2012 and 2021.’

The Government’s approach seems to be looking at end-to-end delivery. This is subtle change from the reform announcement in early September which, in our view, made a slightly unfair comparison to Sizewell B by focussing only on the period from application to decision (rather than pre-application to decision).

As part of its “Growth Plan”, the Government has also  set out 138 projects which will be accelerated through the process. That list includes 86 road projects (including the A303 Stonehenge), rail (including East West Rail) and nuclear projects (the two existing Sizewell and Hinkley projects). Note that this list is “is non-exhaustive of all projects which may benefit from acceleration”. The reason for referring to projects which are advanced in the process is because the list is focussed on those which start “construction by the end of 2023”.

The Government intends to legislate to implement the above reforms, so it will be interesting to see the details once announced.

We previously noted that the EU were considering relaxing EIA for clean energy projects. That Directive is in its penultimate stage at the moment, and will go the European Parliament in due course. We noted it was odd that we would fall behind the European Union on this issue. The reforms announced this morning sound as though we may not. It will be interesting to see how the proposed “non-regression principle” in the Levelling Up and Regeneration Bill is reformed in the reportedly ‘gutted’ Bill

Rage against the machine

There is seemingly an increasing use of injunctions to stop protestor activity in relation to infrastructure.

Less than 12 months ago, the High Court granted an injunction to National Highways against persons unknown who are the blocking, slowing down, obstructing or otherwise interfering with the flow of traffic on the Strategic Road Network. That nation-wide injunction, applying to all parts of National Highways’ network, was preceded by three interim injunctions stopping similar protest activity (one banning protests on the M25, one banning protests in parts of the strategic road network in Kent, and further order banning protests on M25 feeder roads).

Over the summer, the High Court granted an injunction against protestors attempting to disrupt the construction of Esso’s Southampton to London pipeline (which obtained development consent in 2020). That followed one protestor literally digging himself in along the pipeline route. Eyre J, who granted the injunction, held that an injunction was “proportionate and necessary to ensure that [Esso was] permitted to carry on its lawful activities”.

This week, the High Court granted a route-wide injunction for both phases of HS2. An interim injunction had been granted before this, and three protestors saw themselves landed with immediate censure (three were committed to prison, with one being sentenced to 332 days).

It’s notable that the Planning Act 2008 specifically prohibits DCOs from including “provision creating offences” (see section 120(8)) except in relation to any of the matters listed in paragraph 32B of Schedule 5. That paragraph means DCOs can create offences relating to byelaws, fixed penalty notices, road user charges but also the “construction, improvement, maintenance or management of a harbour”. That latter basis for creating offences is why article 55 of the Sizewell C DCO makes it an offence to “intentionally obstruct… any person acting under the authority of the undertaker in setting out the lines of the harbour limits, or in constructing, [a permanent beach landing facility] or [a temporary marine bulk import facility]”. The harbour works are protected, but other parts are not.

It may be worth amending Schedule 5 so that types of development, other than harbours, are able to create similar offences. Note, that under the Transport and Works Act 1992, Orders contain a provision creating an offence for obstruction all the time (see, for example, article 20 of the London Overground (Barking Riverside Extension) Order 2017. That said, clause 6 of the Public Order Bill (still going through Parliament) may reduce the need for this for transport projects.

Other news

Though today has seen major announcements, the A47 Thickthorn project has been delayed until 16 October 2022. The ministerial statement refers to the need to delay “due to the the period of national mourning” (which ended on the day of the State Funeral).

There is litigation in Europe which will be of general interest to readers. The European Union proposed a system designed to help investment in clean energy. For context, the commission did not include gas and nuclear in its original legislation to set up the system, and decided to add them following consultation. Greenpeace has taken issue with what is considered to be “clean”, arguing that the EU’s inclusion of gas and nuclear is unjustified. Meanwhile, Austria and Luxembourg have taken specific issue with the inclusion of nuclear, and their legal challenge to the system will be heard later this year.