976: A judgment and the year in infrastructure planning

East Anglia Offshore wind judgment

A group called Substation Action Save East Suffolk Ltd were unsuccessful in a challenge to the grant of the East Anglia One North and Two offshore windfarms this week.

The judgment is here and is quite long. I paraphrase the grounds as:

• the flood risk sequential test was not properly applied;
• not enough weight was given to heritage issues;
• relied on an unworkable requirement on noise;
• did not secure a decent generating capacity;
• did not assess extensions cumulatively;
• did not properly consider alternative.

The judge found that issue 1 was a lawful use of planning judgment; on issue 2 the Secretary of State was ticked off for inadvisable drafting but there was no legal obligation to apply a certain amount of weight to heritage issues.

On noise, the requirement was requirement 27 in the DCO, which required the two windfarms not to exceed particular noise levels together. The judge decided that the requirement was achievable and reasonable.

On capacity, the judge somewhat curiously concluded:

there is no legal or policy requirement for the generating capacity to be formally secured. Furthermore, as a general principle, there is no legal requirement that all benefits which are given weight in a planning balance must be formally secured, in order to be treated as material considerations. In this case, the decision to give weight in the planning balance to the generating capacity was a matter of judgment for the Defendant.

Can unsecured benefits really be counted?

On cumulative effects, the judge distinguished the facts and circumstances from the successful Norfolk Vanguard challenge. It was OK to assess cumulative impacts on the limited facts known about other projects.

On alternatives, the judge found that praying the Stonehenge tunnel judgment in aid of assessing alternatives was an oversimplification, as that case was found to be ‘wholly exceptional’ and ‘overwhelming’. If a project’s benefits outweigh its adverse impacts, that does not mean alternatives become a material consideration. Hear, hear, and let’s see what the judgment is on the Aquind challenge.

Miscellany

The Project Speed exemplar project A66 Rule 8 letter has been published. Of note is first that the timetable takes up the full six months, so no savings there, and secondly, the issue of questions is deferred by nearly two months from their usual issue date of shortly after the preliminary meeting, and after one of each type of hearing has been held.

The latest two projects to be accepted (Yorkshire Green and M3 Junction 9) took 23 and 24 days respectively instead of the usual 28. Is this the start of a trend or merely a mince pie-fuelled pre-Christmas surge?

The Levelling-up and Regeneration Bill completed its passage through the House of Commons on 13 December. A large number of government amendments were made on that day at Report Stage and at the time of writing a new version of the bill has not been published, but expect clause numbers to change. One interesting insertion was new clause 118, which allows the Secretary of State to amend several planning acts, including the Planning Act 2008 via regulations that ‘facilitate, or are otherwise desirable in connection with, the consolidation of some or all of those enactments’. Should we expect a bumper consolidated planning act some time in 2025?

Summary of the year

What a year! Three Prime Ministers and five planning ministers occupied their roles at various times. This has slowed down the series of proposed reforms to the Planning Act 2008 regime and wider planning law that includes it.

Project Speed has slowed down (!) but will still involve speeding up various aspects of the regime. No new draft or final National Policy Statements have hit the presses all year, although plenty of promises have been made that they are being reviewed. Digitalisation should make involvement in the process easier. Environmental Impact Assessment is due for replacement and Biodiversity Net Gain is due to be introduced, but not until 2025 for DCO projects.

In DCO terms, 14 applications were made and 20 were decided (not the same ones). 19 of the latter were granted and one was refused, for the Aquind interconnector, which is currently awaiting judgment on a challenge that it shouldn’t have been refused.

The courts were quite busy (eg see above) and more generally the Net Zero Strategy was held to have unlawfully failed to explain how individual policies would contribute to achievement of the sixth carbon budget and a 9% shortfall also needed to be explained. These are to be remedied by the end of March 2023. 2021 is still the only year when any DCOs have been quashed, when four were, and in 2022 two of those were re-decided positively. At least one of those is subject to a further challenge.

So that’s it for 2022, we hope you have a great break and we’ll see you again in 2023!