997: Decision stage changes and judicial reviews

This week’s entry looks at a project that is being changed during the decision stage and has a roundup of legal challenges.

Decision-stage changes

The Net Zero Teesside application is in its extended decision stage, having been delayed from its original deadline of 10 May to 14 September 2023. On 27 April 2023 the applicant applied to change part of the project, involving revised versions of nine application documents. The change is to remove part of a work and associated land rights. I think it is the first time that an applicant has applied for a change after the end of the examination, but to be fair, it was at least heralded as a possibility during the application.

The Secretary of State is currently consulting on the change, amongst various requests for information including the potential conflict with the Hornsea 4 offshore windfarm, which is to sit on top of the proposed CO2 store that this project is intending to use.

On the subject of change requests, I noticed that there is one (during the examination this time) for the Drax Bioenergy and CCS project where the deadline for comments is 23:59 on Sunday 11 June 2023. That’s quite an unsociable date!

Court circular

On 10 May 2023 the High Court heard a challenge to three highway DCOs, all on the A47 in Norfolk (North Tuddenham, Blofield and Thickthorn), and all focusing on carbon assessment. The judgment won’t be out for a few weeks.

On 23 and 24 May the High Court heard a challenge by Suffolk Energy Action Solutions to the East Anglia One North and Two DCO decisions and a challenge by two local authorities that two solar farms below 50MW are in fact one and the second one should have been consented to by a DCO as an extension to the first one. These will also take a while to be decided upon.

Permission to appeal has been refused by the Court of Appeal for the challenge by Transport Action Network to the A428 Black Cat DCO and also the Bristol Airport Action Network challenge to the (non-DCO) expansion of Bristol Airport, meaning they are now both challenge-free. Not a good week for action networks.

We have seen the court’s decision on the first of these. Two grounds were about priority habitat; given there was a DCO article requiring approved offsetting of any loss, there was no error. One was that it was irrational not to seek more information underlying the Transport Decarbonisation Plan – it was not (noting in contrast that not seeking further information was an error in the Aquind judgment). Two were breaches of the EIA regulations in failing to consider local or sectoral carbon budgets – there was no breach as there is no duty to do this, only guidance at most. That last point might get rehearsed in the A47 challenges.

A hearing on the challenge to the Manston Airport DCO will take place on 5-6 July 2023.

On the redetermination of the Aquind DCO following the quashing of its refusal, the Secretary of State for DESNeZ asked questions of five parties on 3 March 2023. On 23 May 2023 the 436 responses received were published on the PINS website…

The other two quashed and being redetermined DCOs are stuck in the slow lane: Derby Junctions (last activity 29 March 2022) and Stonehenge (last activity 10 November 2022).

Finally, two new applications have been accepted two days early each, the Bramford to Twinstead overhead line in Suffolk / Essex and the Cambridge Waste Water Treatment Plant Relocation (which we covered in last week’s blog). The latter means that all three withdrawn-just-before-not-being-accepted applications made this year have been successfully re-applied for, eight days, 15 days and two months later respectively. All three were re-submitted and accepted well within the standard pre-examination period, and barely touch the projects which have spent the longest in the pre-examination phase – is there a lesson there?

The latter has some interestingly novel drafting in its draft DCO (in a document titled ‘PowerPoint Presentation’) – check out article 2’s definition of rights over land, article 9’s treatment of statutory nuisance, article 44’s disapplication of powers over the River Cam, Schedule 2’s reference to ‘immaterial changes’ and Schedule 17’s dis-applications of legislation.

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