Angus Walker

This week’s entry reports on a judgment on a challenge to the grant of a Development Consent Order (DCO) and a developer asking for the decision on their own DCO application to be delayed.

Dr Boswell strikes again

Andrew Boswell, who has challenged almost every recent highway DCO has turned his hand to challenging an energy DCO for a change, for the Teesside Net Zero project in the north-east. Once again he has been unsuccessful and the judgment can be found here.

His grounds were that the Secretary of State’s Decision Letter did not explain how the project would help deliver net zero; that there were errors in the consideration of greenhouse gas emissions by the project; and the Secretary of State did not reach her own conclusion on need.

The alleged errors were to do with whether the SoS followed guidance produced by the Institute of Environmental Management and Assessment (IEMA), since if so, this was alleged to be inconsistent with achieving net zero since there would be a substantial level of emissions. The judge disagreed, saying the SoS did not rely on IEMA guidance in reaching conclusions on significance (paragraph 72). She said that the claimant was really attacking policy on allowing not fully carbon captured projects (this one would emit 20MT of CO2 in its lifetime even with 90% of carbon being captured) (para 76). And in any event even if the SoS had relied on IEMA guidance it would still be OK (para 78).

On the other grounds the judge said that the claimant was trying to make environmental impact assessment a hurdle rather than an aid to decision-making, so it is wrong to say there is a different test for significance when it comes to assessment and when it comes to decision-making (para 80).

Incidentally, the applicant alleged that the baseline should be an unabated power station but the inspectors and the SoS disagreed and weighed the emissions moderately against the project.

Extension request

A decision on the Heckington Fen solar DCO (or is it Heck Fen?) (between Sleaford and Boston in Lincolnshire) was due on 9 August 2024 but on 5 August 2024 the applicant wrote to the SoS asking for a five-month extension. The SoS has replied to ask the applicant to provide more justification for the request by 11 September, and meanwhile the decision date has been and gone with no decision. I suppose parliament isn’t sitting so the delay cannot be announced by a statement there.

What seems curious to me as an outsider is that the five months are requested so that the applicant can conclude agreements with landowners along the cable route, when the rights to place the cable there are being sought via compulsory acquisition in the DCO. The applicant’s letter says they want to ‘ensure that permissions can be obtained’ and ‘legal agreements can be finalised’. Why can’t they just say like in other cases that attempts have been made to obtain the rights by agreement but have taken too long and so compulsory powers are being sought? Or is it that incomplete powers are being sought in the DCO? Time will no doubt tell.

New advice postscript

Just a bit more on the suite of advice notes – the one on seeking powers to enter land pre-application for surveying etc. under s53 of the Planning Act 2008 has been rewritten but there is no mention of the alternative and easier method under s172 of the Housing and Planning Act 2016, where there is still some uncertainty as to whether the proposed applicant needs pre-existing powers of compulsory purchase or not.

The advice note says that the process takes about three months ‘but can take longer’, and that doesn’t include giving 28 days’ notice of the intention to apply for compulsory powers. Does it really take that little time these days? It certainly didn’t use to.