984: Latest highway DCO granted against inspector advice and BNG news

This week’s entry reports on the latest Development Consent Order to be granted and developments in the area of Biodiversity Net Gain.

A47 Wansford to Sutton

The latest DCO to be granted is another on the A47 trunk road, albeit further west than the previous ones. It is of general interest for a number of reasons: it explores the extent to which objectors, and indeed the Examining Authority, can force the applicant to change the project (spoiler: they can’t), it gives a bit more on the approach to Net Zero, and it covers some minor points applicable to other projects too.

Facts and figures:

• Project: a dualling of the A47 trunk road from its junction with the A1 eastwards towards Peterborough;
• Promoter: National Highways, who are now the proud owners of 24 DCOs by my count;
• Application made: 5 July 2021;
• Application decided: 17 February 2023 (after a five-week delay), 19 1 / 2 months, slower than average;
• One inspector: Robert Jackson;
• 50 relevant representations: below average;
• Nine written representations: low;
• 497 questions in the first round: on the high side;
• Four issue specific hearings, one compulsory acquisition hearing and no open floor hearings: average;
• One local impact report from Peterborough; and
• 691 documents on the Planning Inspectorate web page on the date of the decision: above average.

The main point at issue in the decision letter was that according to objectors, with which the one-person Examining Authority (ExA) agreed, the project stopped short of a key junction at its western end (the Wansford West roundabout), which if improvements to it had been included, would have allegedly meant the project’s objectives being met rather than not being met. A new cycle route in the application did cross that junction, and the ExA recommended that if the junction was not to be upgraded then a different non-motorised crossing be substituted for that cycle crossing. The ExA tried to tie this to ‘good design’ but the Secretary of State disagreed.

The Secretary of State disagreed with requiring the project to be extended and approved the project as applied for, noting that the Wansford West roundabout could be upgraded at a future date and stating that ‘it is for the Applicant to put forward the application it considers best meets the relevant legal, policy and guidance tests’. This emphasises that it is very difficult to get applicants to change their projects if they don’t want to. Three post-application changes were made by the applicant, mind you.

On alternatives, Wansford Parish Council proposed that the route run further north and bisect a Scheduled Ancient Monument, an unnamed ‘cropmark site of a barrow cemetery and a quadrilateral ditched enclosure, together with pits and a pit alignment’ (I can see why it was just called ‘the Scheduled Monument’). The ExA decided that the consideration of this alternative by the applicant was flawed but nevertheless the chosen route was better. The Secretary of State dismissed the Stonehenge case as being of any relevance since it was described as ‘wholly exceptional’.

There was some criticism about whether residents of the village of Upton were properly consulted about the relocation of another roundabout not long before the application was made – those with land interests were but the wider community was not. Both the ExA and the SoS concluded that the approach taken was acceptable. This suggests that ‘targeted consultation’ following a full statutory consultation does not need to include further community consultation. While circumstances will vary, this is a welcome endorsement that the examination process itself can remove prejudice to interested parties: consultation is not something that necessarily stops following application submission, and it would be wrong to exclude consideration of the examination process itself in determining whether there has been adequate consultation.

The SoS additionally disagreed that the longer routes that residents of Upton would have to take (up to 3.6km in one case) amounted to ‘severance’ of that community.

On traffic, the ExA criticised the ‘VISSIM’ traffic model (which I bet you didn’t know stands for ‘Verkehr In Städten – SIMulationsmodell’) as not considering safety and assuming greater knowledge by motorists of road conditions than would actually be the case. The SoS concluded that the VISSIM model was fit for purpose and noted that the applicant undertook sensitivity testing under a custom-made ‘Wansford Traffic Model’.

There was a further dispute about the appropriateness of an existing underpass under the A1, which was very steep on one side for cyclists and disabled people. The SoS agreed that it was ‘less than ideal’ but the project did not worsen the situation.

Although Biodiversity Net Gain (BNG) is not yet a requirement for DCO applications (see more below), this project did calculate it (albeit using metric 2.0 rather than the latest 3.1), and it would provide a whopping 38.4% gain for habitats and 69.05% for hedgerows.

On air quality the UK Health Security Agency (which appears to be an increasing presence in examinations) had questioned why PM2.5 particulates had been scoped out, and suggested the new lower WHO target be applied. The project would produce a combined PM2.5 / PM10 concentration of 18.87μm3, and while this was higher than the recently announced UK target of 10μm3, that was for PM2.5 alone and wasn’t to be achieved until 2040.

On carbon emissions, the decision letter goes a bit further than previous ones. It says ‘there is only a single receptor impacted by carbon (the atmosphere) and it is a global one’, but there is no set level above which carbon emissions become environmentally significant. The applicant said emissions would represent about 0.0078% of the fourth to sixth carbon budgets (the SoS noted this should have been 0.00078%), but the SoS said that it is not appropriate to sum up the effects across carbon budgets, and each should be considered separately. The ExA thought that the construction carbon impacts had been underestimated and the SoS asked for a worst-case assessment during the decision stage, which resulted in a figure about 15% higher than previously reported. The increasing emphasis on construction emissions (less affected by national decarbonisation policies) should be noted by all.

Objectors (including Climate Emergency Planning and Policy, the group set up by the challenger to the other A47 projects) argued that the applicant had not assessed cumulative carbon effects, but the SoS concluded that they were not clear enough about what they were proposing should be done and that anyway given the single receptor, considering nearby projects would be arbitrary and uncertain.

Although the project would cause the loss of 19.1ha of best and most versatile agricultural land, this was ‘an inevitable consequence of the location of the Proposed Development’ and had been minimised, and so only weighed moderately against the development.

One of the ExA’s reasons for refusal was that Crown consent had not been obtained for one parcel of land to be acquired and another temporarily possessed (from DLUHC) by the close of the examination, although it was obtained one month before the decision. This shows that getting Crown consent by the end of the examination is advisable, although it is often very difficult.

The next DCO decision due is not until 10 May 2023, unless one of the three projects being re-determined pops out, a bit of a gap, but new DCO applications are coming thick and fast this year so far. One more has been withdrawn during its decision period, the Cambridge Waste Water project, underlining that acceptance is far from a rubber-stamping exercise.

Biodiversity net gain news

On 21 February 2023 the government published its response to the submissions received from a consultation exercise on biodiversity net gain (BNG) held early last year. It also published some guidance on various aspects of the proposed regime.

For the uninitiated, BNG represents a not-yet-fully-appreciated revolution in planning and land use that is coming into force in November this year. Every planning application (apart from the very smallest, see below) will be required to secure at least a 10% net gain in biodiversity, which in practice means securing a greater area of land somewhere else than the development will use up and ensuring it will be dedicated to biodiversity for at least 30 years.

The response document can be found here, and the other guidance documents can be found here.

I summarise the first document as follows:

• exemptions from the BNG obligation are limited to householder applications, areas of <25m2 and BNG sites themselves (so no BNG on top of BNG – fair enough);
• it will therefore even apply to: brownfield land, change of use applications, temporary applications and applications that would be PD were they not in conservation areas, national parks etc;
• irreplaceable habitat will be treated separately and its definition consulted upon, it will have separate information requirements;
• BNG will apply to NSIPs from November 2025 as planned, although the Action Plan (see below) qualifies this to ‘terrestrial’ NSIPs – this is even though most people asked for it sooner; there will be consultation on a ‘biodiversity gain statement’ for NSIPs;
• there will be no lighter touch offsite NSIP approach (which I think means they are abandoning the idea of estate-wide approaches for the likes of National Highways, Network Rail and National Grid);
• January 2020 will be the baseline date for scoring habitats that have since been degraded, to discourage deliberate degradation;
• there will be no compulsory acquisition (CA) specifically for BNG, but guidance will be issued on this, suggesting that the government thinks it already falls within the scope of CA powers (I agree);
• the length of the 30-year commitment will be reviewed no earlier than 2026;
• anyone can provide land for biodiversity units, including local authorities, but the latter can’t show preference for their own land;
• you will be able to sell excess biodiversity gain, but this may be reviewed if it is limiting gains to exactly 10%;
• Natural England will maintain the BNG site register and it will open in November 2023; applications to the register will be determined within 6 weeks
• a binding legal agreement that the site will be created and maintained is a pre-requisite to registration – there will be guidance on what such agreements should involve (eg permissions obtained, no conflicting activities such as shooting);
• registration will have to include a Habitat Management and Monitoring Plan, which the legal agreement must secure adherence to;
• the registration fee will be somewhere between £100 and £1000;
• ‘Additionality’ (ie double-counting) proposals in the consultation are to be adopted – you can count existing mitigation and compensation for protected species as BNG, for example, but at least 10% of the ‘after’ total must be outside that;
• there will be advice on ‘stacking’ of payments (ie getting paid for doing the same thing under different requirements, eg BNG and nutrient mitigation);
• Natural England will sell biodiversity credits on behalf of the government; an (intentionally uncompetitive) indicative credit price will be published by May 2023 and reviewed every six months
• BNG can be secured through planning conditions, planning obligations (ie s106) or conservation covenants (or a combination);
• local authorities will enforce BNG adherence, not Natural England;
• applications to become ‘responsible bodies’ for conservation covenants will start in ‘early 2023’;
• the government will explore accreditation or ‘earned recognition’ for providers of BNG land.

If that is all too much to take in (or even if it isn’t) I am going to hold a webinar on it from 9.00 – 10.00 am on 9 March 2023 – sign up here.

NSIP Reform Action Plan

Finally, DLUHC published an ‘Action Plan’ on reform of the Nationally Significant Infrastructure Project regime on 23 February 2023, and it can be found here. It will be covered in full in the next blog entry.

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