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Home / News and Insights / Blogs / Planning Act 2008 / 973: DCO decision bonanza for rail and highways, and the end of growth

Mustafa Latif-Aramesh
Partner and Parliamentary Agent

Today’s entry reports on two DCO decisions for the MetroWest railway project plus the A417 Missing Link project. It also reports on the demise of the Growth Plan and new research on NSIPs.

In the interests of space, the A57 decision will be discussed in next week’s blog.

MetroWest goes to the ball

Back in April 2022, the Secretary of State issued a ‘minded to approve’ letter but did not make the DCO because of the cost of the project had increased from that set out in the Funding Statement. This was contrary to the compulsory acquisition guidance that there must be a reasonable prospect of funds for the whole project before compulsory acquisition powers can be granted.

The actual decision deadline was delayed by a generous 16 months, but the decision has been issued three months before that later deadline.

In a seven page decision letter, the Secretary of State has now confirmed that those concerns have fallen away. Incidentally, that may be the shortest decision letter, but that’s plainly because the decision letter cross-refers to the ‘minded to approve’ letter on all other matters. The change of heart stems from the confirmation of additional funding being made available.

We didn’t comment on the other aspects of the decision at the time, but there are a few useful points to note from the decision letter and DCO. The minded to approve letter sweeps away concerns related to whether Covid requires a re-assessment of the project, noting that ‘restrictions in England have only recently been relaxed’ and the final decision letter does not directly address Covid. In relation to assessment matters, there is perhaps a useful lesson to learn in the context of diesel or polluting transport vehicles:

‘Due to the initial use of DMU’s [diesel trains], the Secretary of State agrees with the ExA that the Proposed Development attracts a negative weight in the planning balance in respect of carbon emissions but that significant weight can be given to the likelihood that DMUs would be, in the long term, removed from the network.’

How many apples are worth an orange? The Secretary of State and the ExA reaches a notable conclusion about whether a permissive path severed by the project should be substituted. The project involved the severance of an existing permissive path, and so proposed the construction of a bridge. The Secretary of State considered that the visual effects from the bridge, most significantly to adjoining occupiers of dwellings and their living conditions, would not be outweighed by the benefits of the footbridge in avoiding severance and connecting the housing areas. The relevant work in the DCO schedule was therefore removed.

The Secretary of State again adopts the ‘disaggregation’ approach to Green Belt issues whereby the railway is considered to be local transport infrastructure (and therefore appropriate development) but that compounds are inappropriate development but ‘Very Special Circumstances would exist that would outweigh the harm that would result from these elements of the Proposed Development’. The Secretary of State also disaggregates a bridge and vehicular access, concluding those too are inappropriate development but there are very special circumstances which justify their construction.

The minded to approve letter has a ‘Brexit first’ – under the Habitats Regulations, where there is an adverse impact on the integrity of a protected site, there has to be a consideration of Imperative Reasons of Overriding Public Interest (IROPI). Where there is a priority habitat involved, the basis for IROPI is more limited and used to have to be ‘reasons relating to human health, public safety or beneficial consequences of primary importance to the environment; or any other reasons which the competent authority, having due regard to the opinion of the European Commission, considers to be imperative reasons of overriding public interest.’ Except we’ve left the EU so the Exit Regulations now replace ‘European Commission’ with ‘appropriate authority’. On MetroWest, the Secretary of State issued a request for an opinion from Defra as the appropriate authority. Defra have apparently duly confirmed that IROPI could be established because of the benefits of the project.

In our post concerning Hillside we noted there were more DCO overlaps on the way; my colleagues acted for National Grid on this project as there was an overlap between the MetroWest project boundary and the Hinkley Point C Connection boundary. The protective provisions in the made DCO secure protections in connection with National Grid’s project (see the references to ‘2016 Order’).

Finally, article 27(2) of the made DCO is useful evidence against that the view that you cannot have a purportedly ‘general power’ to impose restrictive covenants over land proposed for outright permanent acquisition. That view has been in long need of correction and is inconsistent with dozens of Transport and Works Act Orders.

The (soon to be found) Missing Link for the A417

Next up we have the A417 Missing Link project, and there are a few things to note from the decision letter.

The project would involve the loss of 1000m2 of habitat within an SSSI boundary but this would be compensated with 3,600m2 of calcareous grassland. This impact was not considered sufficient to refuse development consent. There were also impacts on the AONB in the area, but it was considered there were compelling reasons, exceptional circumstances and a guarantee of high environmental standards. Those compelling reasons can be summarised as a better road safety record, improving design standards of the road network, reducing congestion, and improving journey times and journey time reliability.

There is an interesting line in the decision letter which records that in respect of replacement land being provided, that ‘The Secretary of State is also satisfied with the Applicant’s proposed timing of the provision of replacement land.’ It’s worth digging into this point: the promoter acknowledged that timing of the provision of the replacement land which would follow the construction of the Proposed Development. This is a useful confirmation of the point that replacement land can be provided following the acquisition of the relevant special category land – ie, replacement ‘has been or will be’ provided in the parlance of sections 131 / 132 of the Planning Act 2008. It is worth noting that the ExA’s Recommendation Report explicitly cites the provision of additional land (over and above the extent of land proposed to be acquired) as justifying its conclusion that the land is no less advantageous notwithstanding the timing:

‘We accept and agree with the conclusions of the Applicant in this regard and are satisfied that the Replacement Common Land complies with the definition contained in s131(12) of the PA2008, as it is greater in area than the land acquired and would be no less advantageous to the persons entitled to rights of common (as there are none), and would be more advantageous to the public, notwithstanding the fact that it could not be provided until after the Proposed Development has been constructed.’

The ExA’s Recommendation Report also considers a disagreement between the promoter and Natural England regarding the disapplication of section 28E. The ExA’s view gives an interesting gloss on statutory interpretation:

Given the national shift towards greater environmental protection and biodiversity enhancement, we take a precautionary approach and advocate to SoST that the requested disapplication of s28E and H of WACA 1981 are removed from the Applicant’s preferred DCO in order to protect potential future SSSI land within the Order Limits. The rDCO (Appendix D) has those elements removed from Article 3.

You can read a joint legal opinion from us (BDB Pitmans) and the promoter’s solicitor for this project on this issue at page 13 here explaining why we consider disapplication is appropriate.

Goodbye Growth (plan) and DCO trends

Liz Truss and Kwasi Kwarteng’s Growth Plan included a list of projects which would be prioritised. The government has announced a reversal of this policy stating that:

The government will seek to accelerate delivery of projects across its infrastructure portfolio, rather than focus on the list of projects that were flagged for acceleration in the Growth Plan. The government will continue to ensure that all infrastructure is delivered quickly through reforms to the planning system, including through updating National Policy Statements for transport, energy and water resources during 2023, and through sector-specific interventions.

Relatedly, Sam Dumitriu of the new group ‘Britain Remade’ has carried out a stellar piece of research on how DCO projects have fared over the last decade. His headline findings:

  • projects accepted for examination in 2012 received a decision within 17 months on average, however projects accepted in 2020 must wait 22 months for a decision on average;
  • the share of projects being delayed has also increased from 20% between 2012 and 2016 to 43% from 2017 onwards;
  • in the last 2 years the number of refusals or withdrawals at the first hurdle when an application is first submitted is identical to the 10 years prior;
  • the number of documents submitted per application has tripled on average from 381 in 2012 to 1143 in 2020; and
  • page counts are up across all DCO projects.

I’d recommend reading his piece in full, packed with graphs and pie charts. (For transparency, Sam is a friend, and I’m quoted in the piece). There are many reasons for these trends, but acknowledging the facts and stats is the first step in assessing what may be required in the forthcoming NSIP Action Plan.

For more updates, subscribe to our Planning Act 2008 blog.

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