996: The Curious Case of the Waste Water Treatment Plant in the Nighttime
Today’s entry looks at the Section 51 advice that led to the Cambridge Waste Water Treatment DCO project being withdrawn.
We’ve previously written about two of the three applications that were withdrawn earlier this year. This post looks at the third. The context here is important: it is slightly problematic that two of the three applications forced into withdrawal in the last three months have been resubmitted, one of them in nine days and one in 15 days, and both were accepted the second time around. Those precedents may suggest that greater use of the pre-examination period is required. More generally, between 2010 and 2020, 7 projects were withdrawn or refused at the acceptance hurdle, and, by comparison, a similar number have been refused or withdrawn between 2020 and 2023. In other words, we have had a decade’s worth of withdrawals and refusals in a quarter of the time.
Cambridge Waste Water has now been resubmitted, with a decision due on 26 May 2023 (ie, about two months between withdrawal and resubmission). For the avoidance of doubt, we are not instructed on this project. The Inspectorate has now published a 36 page Section 51 advice outlining what were likely to be the reasons for the withdrawal. By way of caveat, it’s worth noting that the promoter’s response to these is not included, so in fairness to them, it’s not clear how much of this is really fatal. The two other projects that were withdrawn, quickly resubmitted, and accepted suggest that we should take Section 51 with some caution on the severity of non-compliance. Without the applicant’s response or sight of the application documents, all of the comments below should therefore be read in that caveated spirit. For the same reason, none of the below should be mistaken for making the claim that the application was rightfully or wrongly turned away.
As a general comment, the note sets out seven ‘principal’ areas of concern, and then a table that sets out 118 more detailed comments. A cursory run-through of the latter ‘detailed’ items suggests that many of these issues are matters that are likely to be resolvable in the pre-examination, or examination, periods. Indeed, a number of the issues raised seem to be about the merits of the application, rather than a straight-forward application of the acceptance test in Section 55 though they may have been offered in that context. For example, comment 12 seems to be an issue with dDCO drafting; comments 83 and 86 raise a concern around the extent of compulsory acquisition and the limits of deviation sought (not their representation in the plans, but a merits-based question about their width); and comment 94 wonders why upgrading an existing plant has not been considered. Other comments similarly suggest matters that may be helpful, but are very unlikely to be legally required (eg comment seven) or incapable of being resolved/provided before the examination begins.
On the ‘principal areas of concern’, there are a few useful nuggets to consider. The first and second is summarised as follows:
‘The stated need for the proposed development (PD) (in, for example, the Statement of Reasons) is to deliver new housing for the continued growth of Cambridge. To achieve this, the WWTP will be relocated to release the existing plant area for housing development. The application does not include the total demolition and remediation of the existing site, and states that this, and the redevelopment, would require separate consents and EIA. None of these elements is considered as part of a cumulative assessment.’
Both the housing redevelopment and the demolition / remediation give rise to consideration of the ‘definition of a project’ in EIA terms. That matter was recently considered in the Court of Appeal case of R (Ashchurch Rural Parish Council) v Tewkesbury Borough Council. In that case, Tewkesbury Borough Council unlawfully considered that the ‘project’ for the purposes of the EIA Regulations was a bridge alone rather than the future development with which it would connect. The court held that the application for the bridge was improperly hived off from the wider development, which provided the sole underlying justification for its existence and could not be lawfully ignored when deciding on the identity of the ‘project’.
Bearing in mind these principles, it may be perfectly acceptable to not include ‘housing redevelopment’ where that is not sufficiently certain in EIA terms, though perhaps the application documents should have made that case (assuming they did not). It seems more difficult not to include ‘the total demolition and remediation of the existing site’ (assuming it was in fact excluded from the EIA). More generally, this is an unusual infrastructure project where the need was not for the infrastructure in question.
Perhaps the most consistently raised issue in applications that are withdrawn or refused is inconsistencies. This is again raised in the Section 51 note for this project, but this appears to be compounded by a number of missing documents, including ES figures. The note further records that ‘the HRA screening report identifies the potential for likely significant effects during construction and operation of the [proposed development] on the Wicken Fen Ramsar site and Fenland Special Area of Conservation (SAC). However, these two sites have not been assessed in the submitted HRA Report.’
The Inspectorate’s other principal areas of concern relate to the wide description of the works in the dDCO as well as the absence of things like decommissioning (cf. principal area 1 above). The only comment here is that traditionally, going back into Private Bill practice, it is quite common to exclude temporary works from the relevant plans. Indeed, the concept of temporary work plans is a relatively recent innovation that has not transferred into recent Hybrid Bills. I do wonder whether the traditional route may be preferable, particularly where assessments have included a reasonable worst case scenario on the temporary works, so that contractor-led innovations are not unduly constrained during the detailed construction phase.
The document says that it was not clear which works comprised the NSIP and which were associated development. In our view, as long as there is demonstrably at least one NSIP being applied for, the rest of the development does not need to be classified in that way.
Planning Act Blog Party!
A reminder that we are hosting a quiz and party to celebrate our 1000th Planning Act blog next month, and blog readers are invited!
Drinks, nibbles, and fun will be provided. The event will take place on 15 June 2023 from 6.00pm until 9.30pm.
Join forces and submit your team of three to five players; we want to see creative team names for a fun-filled evening of thought-provoking questions, activities, yummy food, and drinks, as well as top prizes! If you would like to attend but would need to join a combined, randomly selected team, then please let us know.
To RSVP, please click here to email our events team with your chosen team name and list of team members by Thursday 1 June 2023.
We hope to see you there!