1046: Defining England in planning law, and making the most of DCOs

Today’s entry looks at a case defining ‘England’ in a planning context, and also considers the disapplication of rail and nuclear consents under DCOs.

This is England (up the Mean High Water Springs)

This case related to the mooring of the Bibby Stockholm barge in Portland Harbour in Dorset. The primary issue in the claim was whether the mooring (in waters off the landside harbour) was in ‘land,’ which fell within the ambit of the Town and Country Planning Act 1990.

For context, the definition of ‘land’ under the TCPA is ‘any corporeal hereditament, including a building…’, and planning permission is granted for ‘development’ which references ‘land’ in its definition (ie, ‘carrying out of building, engineering, mining or other operations in, on, over, or under land’).

The claimants were seeking to argue that ‘land’ included the sea bed covered by the sea so that they could take enforcement action against the Bibby Stockholm. In particular, they were seeking to rely on the statement in Lord Hale’s treatise ‘De Jure Maris,’ which suggested that ‘that arm or branch of the sea which lies within the fauces terrae [jaws of the land], where a man may reasonably discern between shore and shore, is or at least may be within the body of a county, and therefore within the jurisdiction of the sheriff or coroner.’

Mr Justice Holgate enters stage left: the term ‘land’ is so ‘potent’ that it’s clear it does not include the seabed covered by water. In addition, the definition of land is something which must be a ‘corporeal hereditament,’ which means it must be capable of being inherited, and held. The seabed covered by water is neither; the sea bed is ‘allodial land’ which is not held under a tenure but instead is a radical right vested in the Crown. On that basis, the planning jurisdiction of councils does not extend to it.

Mr Justice Holgate notes that his position is consistent with the fact that a number of enactments make clear where they apply outside of ‘land’. The Planning Act 2008, he notes, includes ‘waters adjacent to England’ up to the seaward limits of the ‘territorial sea’ for some projects (eg in relation to offshore wind). This judgment is a useful confirmation for projects that attempt to go out to sea to carefully consider the definition of ‘England’ in the various thresholds under the Planning Act 2008.

The judgment also dealt with the claim that the Town and Country Planning Act ought to be interpreted to include the mooring because not doing so would mean that there would be no Environmental Impact Assessment. Mr Justice Holgate dismissed the idea that the mooring was a ‘project’ for EIA purposes given that the minimal works carried out on the quayside could not conceivably have amounted to an ‘urban development project’ (ie, a project caught by the Environmental Impact Assessment Directive), even on a broad interpretation.

Beep beep

Alright, alright, I’ll talk about the Rail Vehicle Accessibility Regulations 2010. Under those regulations, ‘each passenger doorway in the side of a rail vehicle must be fitted with an audible warning device’, which must emit a warning sound ‘commencing not less than 3 seconds before the door starts to close’.

This is why, when you are on the tube or train, you hear a ‘beep’ before the doors close. Interestingly, the Docklands Light Railway in East London has the shortest dwell time in the UK, and does not conform to that requirement. Transport for London ran a trial to assess the impact of introducing a 3- second warning sound on passenger safety and accessibility.

What were the results? The paper from TfL shows that safety incidents increased as people heard the beeps and ran from the platforms. The disruption caused by jammed doors and the like would lead to increased journey times, meaning trips would be up to 19% longer.

Other than being a good example of unintended consequences (the rationale is to assist those with disabilities), it does make me think we should be making more use of disapplying statutory requirements in DCOs. The DLR was consented via a Transport and Works Act Order, not a DCO, but the point still stands: if a rail, or indeed any other DCO, came forward, surely there is a strong case to show why these particular regulations should be disapplied?

This isn’t just a rail issue; take the requirement for ‘regulatory justification’ under the Justification of Practices Involving Ionising Radiation Regulations 2004, which applies to nuclear projects. The government has already said that light water cooled reactors (which meet a specific technical specification) are justified, but it’s not clear to me that this requirement does fundamentally more than ensure the benefits of a project outweigh its disbenefits in a human health context (something already considered in the DCO context).

When we come across regulations like this, one option is to advocate for their repeal (or making using of exemptions, like DLR has in the case of the 2010 regulations). The other is to use the tools at our disposal, like section 120 of the Planning Act 2008, to make full throated justifications for why they should be disapplied under a DCO. As an industry, we should do this more. This requires going beyond a standard consents matrix and looking at sector-specific regulations that may well have pretty adverse operational effects. There are a great number of operational regulations that are simply not addressed, but surely they should be if they have the potential to induce delays.

The current hurdles for that approach are that for some consents / approvals, Section 150 requires the consent of the discharging authority for that consent. Any new government should take a view on whether that list under Section 150 can and should be whittled down, particularly where (1) the controls are adequately dealt with already under the terms of a DCO and (2) the Secretary of State considers their competence allows them to make these determinations, having due regard to a discharging authority’s views.

Other news

What’s a blog post without reporting yet another failed challenge to DCOs? The Supreme Court has refused permission to Substation Action Save East Suffolk Ltd to appeal against the decision of the Court of Appeal in the judgment relating to East Anglia One and Two. You’ll recall that case concerned flood risk and cumulative impact assessments (we covered it here).

That case should not be confused with the challenge brought by Suffolk Energy Action Solutions in relation to the same projects. The judgment on whether that challenge is proceeding is yet to be made.