980: Aquind refusal overturned and latest DCO granted

This week’s entry covers the judgment on the challenge to the refusal of the Aquind interconnector DCO application and the grant of the East Northants waste extension DCO.

Aquind

The High Court has issued its judgment on the challenge by Aquind to the Secretary of State’s refusal of its application for an interconnector between France and the UK (also called Aquind).

You may remember the blog entry at the time of the original refusal, where I opined that the main reason for refusal was ‘surprising’ (and lawyers aren’t supposed to be surprised as that shows a lack of foresight). Well, the court has held that the reason was irrational and has sent the application back for redetermination.

The judgment can be found here but here is a summary and my analysis.

The onshore element of the project was controversial because it went through urban Portsmouth to get from the coast, to a substation just outside the South Downs National Park called Lovedean. Various alternative landfalls and substation locations had been considered, including one 15 miles to the west at Mannington in Dorset. In 2015 the capacity there had been booked by the Navitus Bay windfarm, but that DCO was refused and the capacity was released in early 2016.

The decision letter refused the application on the basis that the applicant should have looked at Mannington again given the release of capacity, without any consideration as to its suitability. That reasoning unnerved the entire infrastructure planning industry as it suggests that any application might get refused for not considering an alternative, however vague.

The court gave this short shrift. On the facts, at least one other reason had been expressed by National Grid as to why Mannington was unsuitable – it would require strengthening of the line between it and Lovedean to accommodate the greater load (history does not relate whether that would have been the case for Navitus Bay as well). Failing to take that into account was on its own enough to overturn the decision, but there was more.

On statutory law, section 104 of the Planning Act 2008 requires the application to be decided in accordance with any relevant National Policy Statement (NPS), unless (amongst other reasons) the adverse impact would outweigh the benefits of the project. The Examining Authority had concluded that the benefits were substantial.

Paragraph 4.4.3 of NPS EN-1 sets out how to deal with alternatives, with eight principles set out in bullet points. The decision letter covered two of them, but ignored the other ones, in particular the second and sixth which deal with the alternative delivering in the same timescale and whether it is commercially viable and physically suitable. This was particularly important given it was the issue that decided the application. The letter also failed to say in terms whether the Secretary of State concluded that the project was in accordance with the NPS. The judgment underlines that NPSs are special and not just something to put in the balance. The s104 and NPS grounds of challenge therefore also succeeded.

Finally, the decision also fell foul of caselaw. The ‘Tameside’ case was long before DCOs were invented but required consideration of the question, as Lord Diplock put it:

did the Secretary of State ask himself the right question and take reasonable steps to acquaint himself with the relevant information to enable him to answer it correctly?

And crucially, the court should intervene:

only if no reasonable authority could have been satisfied on the basis of the enquiries made that it possessed the information necessary for its decision.

In this case, the court concluded that the Secretary of State did not have the necessary information about Mannington, had made insufficient attempts to obtain it and so had behaved irrationally to have based his decision on it being a possibility.

That’s it in a nutshell. The decision must now be re-taken by the Secretary of State, and as the judge noted, it could still be negative (contrary to the BBC’s rather misleading headline ‘Government loses bid to block cross-Channel electricity cable).

The uncertainty around assessment of alternatives has therefore been significantly reduced – at the very least, if the Secretary of State is going to decide against you because of an alternative, he or she should at least ask you about it first. I still also maintain that projects should still be granted if they accord with the relevant NPS and their benefits outweigh their adverse impacts, even if there is a better alternative – you don’t need to promote the best project, just one that is good enough (other than where there are specific obligations to consider alternatives, eg when protected habitats are affected).

Having said that, the line of cases being established by Mr Justice Holgate that ‘obviously material’ alternatives should be assessed, such as in the A303 Stonehenge case, still stands.

ENRMFWE

A whole nine days before the three-month deadline, the same government department, although in the name of minister for local government Lee Rowley MP, has granted the East Northants Resource Management Facility Western Extension DCO application.

This is an extension to a project that was the subject of a DCO in 2013, and amended in 2018. The new DCO has a special article that allows the developer to switch from the original order to the new one by notifying the local authority, upon which the original order no longer has effect.

• project: an extension both in time and quantity of a hazardous waste facility in east Northamptonshire – as before, the facility can store low level radioactive waste;
• promoter: Augean (note reference to labours of Hercules);
• application made: 8 September 2021;
• application decided: 24 January 2023, 16 1 / 2 months, faster than average;
• one inspector: Simon Warder;
• 17 relevant representations: low;
• two written representations: very low;
• 170 questions in the first round: low these days, even for a relatively uncontroversial project;
• two issue specific hearings (I’m counting hearings over one day as one hearing), no compulsory acquisition hearings and no open floor hearings: the equal fewest ever;
• one local impact report from North Northamptonshire; and
• 338 documents on the Planning Inspectorate web page on the date of the decision (and most of those seem to be consultation report and environmental statement appendices): low.

There is very little in the 21-page decision letter of note as this was an uncontroversial application. On carbon, it simply says there is ‘no substantive evidence to indicate that the proposed development would generate greenhouse gas at a level which would call into question the ability of the UK to reach its overall Net Zero 2050 target or its carbon budgets’. Highway and other projects usually have to do a bit more than that, and to be fair the environmental statement points out that carbon content of the deposits at the site is obliged to be limited to 6%.

Visual impacts weighed moderately against the proposal but nothing else did. There were only two unresolved objections by the end, one of which was a late submission from the Woodland Trust who did not offer any evidence of their claim that the project would harm ancient woodland.

The DCO was not much changed by the Secretary of State. An ability to vary the limits of deviation upon certification by the local authority that there would be no materially new or different environmental effects was removed; and as usual the Secretary of State has removed himself from the scope of the arbitration article. Slightly randomly, wording saying the street authority’s consent cannot be unreasonably withheld or delayed was removed, even though the same wording appears in other places in the DCO.

The next decision due for a DCO application is for the slightly delayed A47 Wansford to Sutton project, whose deadline is 17 February 2023.

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