1045: General election implications and a late highway DCO decision

This week’s entry reports on the effect of the election announcement and other Planning Act 2008 miscellanea.

Election effects

You may be dimly aware that there is to be a general election on 4 July 2024. What does that mean for infrastructure planning?

First of all, it meant a mini-flurry of transport announcements on 24 May 2024. Three transport DCO decisions were all delayed until 4 October (Lower Thames Crossing, Luton Airport and Immingham Eastern Ro-Ro Terminal) and one was decided that day (A1 Morpeth to Ellingham) – see more below. Luton Airport and IERRT were both to be after the election – Luton a comfortable month later – but have been delayed anyway. The A1 decision was due during the election period but has been brought forwards by nearly two weeks. That’s not saying much as it had already been delayed four times by nearly 2 1/2 years.

Meanwhile there are three energy DCO decisions due during the pre-election period, or in one case on the day of the election, they are all solar projects – Mallard Pass (due 13 June after one delay), Sunnica (due 20 June after four delays) and Gate Burton (due 4 July, not yet delayed). Although there has been no separate government announcement, the project page for each project has been updated to say no decision will be taken until after the election and there will be a new update at that point.

The other significant announcement of 24 May 2024 was the designation of the revised National Policy Statement for National Networks. As is always the case, it has not changed from the version laid before Parliament on 6 March 2024, which can be found here.

This is therefore now *the* National Policy Statement for road, rail and rail freight DCO applications and the old one can be forgotten about. Please see our blog post analysing the March version that has now been designated.

A1 Morpeth to Ellingham decision

At 962 days, more than 10 times the statutory period, this application had the longest decision stage by miles, the next longest was for the M25 Junction 10 DCO application at a mere 577 days.

Here are the facts and figures.

• Project: widening of the M1 to dual carriageway between Morpeth and Ellingham in Northumberland
• Promoter: National Highways
• Application made: 07/07/2020
• Application decided: 24/05/2024 (46 1/2 months)
• Two inspectors: Kevin Gleeson and Andre Pinto
• 50 relevant representations (low).
• 357 questions in the first round (moderate).
• Five Issue Specific Hearings, four Compulsory Acquisition Hearings, and three Open Floor Hearings (high).
• One local impact report, from Northumberland.
• Nine consultations by the Secretary of State during the decision stage: very high.
• 1240 documents were on the Planning Inspectorate web page on the date of the decision: high.

Points to note from the Decision Letter.

The Examining Authority recommended that the DCO be made, subject to sorting out an issue relating to Work 5b, an 807 metre access track, involving keeping three options in the DCO as agreement had not been reached on them. In the intervening three years agreement was reached, on option c, and the DCO was amended accordingly.

There is a lot of text on climate change. The successful challenge to the (sixth) Carbon Budget Delivery Plan is noted and that there will be a new one within a year. On cumulative carbon impacts the successful defence of the A47 DCO challenges in the Court of Appeal is noted. This project is a mere 0.0151% of any carbon budget, despite being a fairly extensive one.

Landscape and visual impacts were moderate adverse because not fully screened after 15 years. The project would lose some ancient woodland and would affect a SSSI, and the biodiversity gain watercourse metric showed a loss of 11.69%. However the statutory authorities considered that the mitigation was adequate. A new requirement was added about ancient woodland requiring its mitigation to be subsequently approved with a replacement ratio of 12:1 plus an extra 2.4 hectares. Tellingly, the biodiversity paragraph in the decision letter is headed ‘Biodiversity no net loss’ reflecting that net gain is not yet a statutory requirement for DCOs. A revised air quality assessment using a 2024 Methodology showed greater levels of nitrogen deposition and ammonia concentrations which is what resulted in the extra 2.4 hectare commitment.

The new duty on public authorities to further the purposes of legislation protecting National Parks and Areas of Outstanding Natural Beauty is mentioned and is clearly a new factor to consider in DCO applications. However in this case the nearest sites in question were at least 7.5km away.

The Examining Authority did not think that an appropriate assessment of effects on protected habitats was necessary (even though the applicant’s own data reported likely significant effects) but the Secretary of State disagreed. The result of the appropriate assessment was, however, that there would not be adverse effects on the integrity of the sites in question.

In the end, the ExA considered that only landscape and visual, and biodiversity and ecology impacts weighed against the project, The Secretary of State added climate change, and geology and soils to the list but still thought the benefits substantially outweighed the adverse impacts overall.

During the lengthy decision stage, Northern Gas Networks withdrew their objection, re-made it and withdrew it again. Interesting drafting note that the Secretary of State added two powers in Schedule 5 of the Planning Act to the preamble of the DCO (green belt and diversion of watercourses). A few amendments were made to the DCO, one being to move definitions to the smallest part of the DCO that uses them (eg if they are only mentioned in one schedule, have them at the start of the schedule rather than the start of the DCO).

The next DCO decision will be… who knows? The next one that hasn’t been delayed due to the election is due on 18 July 2024.