1021: Delaying, breaking and weighting the law

Today’s entry looks at the trends on delays for DCO projects, an appeal decision on prisons, and a High Court judgment on the weight to be given to biodiversity net gain.

Delaying the law

We noted last week that the A66 Northern Trans-Pennine DCO application, due on 7 November 2023, had been delayed by four months to 7 March 2024. Well, two more DCO projects due to be decided this week have now also been delayed: North Lincs Green Energy Park has been delayed by four months and Net Zero Teesside (their third delay) by a further three months.

Between 2012 and 2016, between 90 to 100% of decisions were made on time. This dropped to 62% in 2017 before rising back up to 100% in 2018. Since then, no year has been above 75% of the decisions made on time, and this year it’s at a rock bottom 33%—in other words, it has never been worse.

This continuing trend might make suggestions that we should be congratulating ourselves on the operation of the Planning Act 2008 ring hollow.

Breaking the law

As there are no DCO decisions to talk about, let’s talk about a new prison. The Secretary of State has granted planning permission for a new prison adjacent to the existing HMP Gartree in Leicestershire. The prison, which forms part of the Government’s New Prison Programme, will provide accommodation for just over 1700 prisoners.

The Appeal Inspector recommended refusal. The crux of the issue was that both the Secretary of State and the Inspector considered there was a conflict with the development plan, but only the former thought material considerations were such to grant permission notwithstanding that conflict.

There are a couple of interesting points from the decision letter and the Appeal Inspector’s Report. The matters that were held to include weight in favour of the development were the additional capacity provided (in the context of our prison system operating at over 97% capacity, 1,700 more beds is a pretty good dent). Interestingly, this prison also provided 26% BNG!

On alternatives, there is an interesting conclusion:

‘The Secretary of State notes the Inspector’s reasoning at IR233 and notes the Inspector’s conclusion that the evidence in respect of a search for alternative sites offers only very limited support for the appellant’s case that there are no other suitable sites for a Category B Training prison. The Secretary of State considers that the claimed lack of alternative sites carries very limited weight in favour of the proposal.’

Indeed. Just by way of contrast, in another recent appeal decision, a truck-stop near an AONB was refused planning permission primarily on the basis of alternatives. The proposed location was intended to accommodate the need for roadside facilities at junctures that are consistent with a government circular, but ‘alternative sites were put forward by the council that are south of the AONB, one of which was agreed upon by witnesses for both the Appellant and council as being potentially suitable’. Plainly, in line with the A303 Stonehenge judgment, there is a more acute consideration of alternatives where a sensitive receptor is affected.

The (prison) decision is also a further confirmation in a long line of appeal decisions and DCO decisions that the mere increase in congestion on parts of the road network should not be equated with an ‘unacceptable’ impact nor a ‘severe’ impact on the road network.

Weighting the law

The High Court has handed down a judgment relating to an Inspector’s decision refusing planning permission for a sand and gravel quarry in the Green Belt on the basis of a legal error underlying the weight that the Inspector accorded to biodiversity net gain. The development would lead to 39% BNG, and the Inspector concluded as follows on the weight to be attributed to this:

‘… some of the biodiversity net gain that would be achieved is required to meet national policy and future legislative requirements in order to mitigate the environmental impact of the development. Consequently, I consider that such enhancements should be afforded only moderate weight.’

The High Court said this analysis was flawed. The effect of the Inspector’s interpretation was that when assessing the weight to be attributed to the biodiversity net gain for the purposes of assessing whether there were very special circumstances outweighing the harm to the openness of the Green Belt the Inspector reduced the weight on the basis of a mistaken view as to the law (ie, that BNG was required). Hence, the High Court quashed the decision.