1037: A miscellany of infrastructure planning news and rumour

This week’s entry covers a miscellany of Planning Act 2008 regime items: a Court of Appeal challenge, more on the Medworth decision hiccup, the Aquind redetermination, and a website relaunch.

Court of Appeal throws out offshore wind challenge

The challenge to the East Anglia One North and East Anglia Two offshore windfarms by Suffolk Energy Action Solutions (SEAS) has been unsuccessful in the Court of Appeal. The judgment is here.

There is actually a point of general interest in the judgment and it is about paying landowners for options in return for (amongst other things) them not objecting to the project. Is that legal?

The answer is yes. The review of authorities starts in 1869 but then jumps to 1993. There are some useful nuances revealed, as follows:

• it would be wrong to require landowners to support the project because they would potentially be being paid to lie that they supported the project, in contrast to just saying nothing;
• although the judgment doesn’t say so, it implies that having a non-disclosure agreement that the landowner can’t say anything would be a bit dodgy; and
• neither, in my view should such an agreement prevent a landowner from answering Examining Authority questions truthfully and fully.

In the case in question, the non-objection provision was only in heads of terms, and agreements were not concluded until after the examination (which rather reduces the force of not being able to object, but anyway) so were not yet effective, and 75% of the landowners objected anyway, which made the claim rather weak. Having said that, the second ground that the secretary of state did not address such clauses properly mainly failed because of their non-binding nature in that case. The door is thus left a little open on that issue.

The legal challenges to these windfarms are a bit confusing because there are two environmental groups making challenges with similar names – SEAS, this one, and SASES, another one. They are both at the stage of having lost in the Court of Appeal this year; I don’t know if they have tried or will try to appeal to the Supreme Court. The DCOs were decided on 31 March 2022 and have been delayed for very nearly two years – perhaps something for Lord Banner to consider in his review.

Medworth hiccup

The Medworth energy from waste DCO was granted after the decision documents were temporarily removed from the Planning Inspectorate website for a few days while ‘clarification’ was sought. A bit of light has been shed on the issue by this BBC story, and there is some more in Planning magazine (paywall).

The project is near Wisbech in Cambridgeshire and would be in the constituency of Steve Barclay, the Environment Secretary. The BBC story claims that the Energy Secretary sought to overturn the decision, but this is denied. In any event, it was approved but is almost certainly going to be challenged in the courts, which may mean more comes out about the decision-making process.

NNNPS debated in Parliament

The finalised revised National Policy Statement for National Networks was debated and approved by the House of Commons on 26 March. The record of the debate can be found here. The debate ranged over HS2 cancellations and delays to DCOs generally, but highlighted a gap about carbon emissions and was particularly bemoaned by Green MP Caroline Lucas. The chair of the Transport Committee was concerned that their recommendation on consideration of alternatives was rejected. Inevitably, potholes were mentioned.

Nevertheless, the NPS was approved (despite being described as a ‘work in progress’ by the Minister) and can now be designated.

New national infrastructure website

I expect most readers have been getting a little irritated with having to click extra buttons to get to ‘beta versions’ of various parts of the Planning Inspectorate’s national infrastructure website. Well, they have finally switched over to a full new website called ‘Find a National Infrastructure Project’, for English projects at least, which can be found here. You can download a handy spreadsheet of all 225 projects on file, containing various dates (the date examination closed field needs fixing). My master spreadsheet does not feel threatened by this.

Anyway, it’s nice to see it all coming together in a more readable form.

Drax decision gets challenged

The decision to grant consent for the application for a DCO for the Drax Bioenergy Carbon Capture and Storage that was made in January this year has apparently been challenged by a group called Biofuelwatch. According to their lawyers, Leigh Day, the grounds are (I paraphrase):

• the emissions from biomass burning were zero-rated unlawfully;
• emissions from units to be fitted with CCS technology were not assessed; and
• transport and storage of captured CO2 were to be treated as a separate project, rather than being assessed as part of a whole.

Aquind latest

This interconnector project between Portsmouth and France had its refusal successfully quashed and has been at redetermination stage for over a year. The Ministry of Defence has replied to the Department of Energy and Net Zero to say that it has ‘significant national security concerns’ about the project, but they are sensitive and a special process needs to be put in place (of confidentiality, presumably) before detailed representations can be made.

The longest DCO from initial application to (second) determination remains A303 Stonehenge at 1729 days. Aquind will overtake it on 9 August 2024, if not redetermined by then.