This week’s entry looks at the unsuccessful challenge to the grant of the A66 DCO in more detail and a consultation on infrastructure planning in Scotland.
Judge kicks A66 challenge
We have previously reported on the challenge by Transport Action Network to the granting of the A66 Northern Trans-Pennine DCO. The hearing was on 23 October 2024 and the judge gave the judgment orally a mere two days later on 25 October 2024; it has taken since then to get hold of a copy of the judgment.
The first ground was on habitats, where socio-economic impacts were allegedly wrongly categorised as health impacts, and how did impacts on human health weigh neutrally in the planning balance in the decision letter and yet be enough to be imperative reasons of overriding public importance? The judge considered that enough attention was given to human health in the IROPI context and that it was not irrational to conclude that the test was met.
The second ground was on the impact on the North Pennines Area of Outstanding Natural Beauty – DCO applications that cause harm to AONBs should be refused unless there are exceptional circumstances and where consent is in the public interest. The judge said that the test was met and the precise words needn’t be used ‘like an incantation’. The impact on the AONB was in fact concluded to become acceptable over time. The new duties to ‘seek to further the purposes’ of National Parks and AONBs in s11A of the National Parks and Access to the Countryside Act 1949 and s85 of the Countryside and Rights of Way Act 2000, respectively, are the new battleground.
The third ground was essentially that the DCO should have been refused because the benefit-cost ratio was less than one. The judge decided it was not irrational for the Secretary of State to give consent, saying as he did that there were qualitative benefits that could not be monetised.
The fourth ground was the same as the single ground that was unsuccessful in the challenge to the A38 Derby Junctions DCO decision, namely that the decision was unlawfully based on an out-of-date economic assessment. The judge said that although the A38 case had been appealed to the Court of Appeal, he nevertheless had confidence in his judgment on the point. That permission has been denied, and so this ground is dropped from the claimant’s appeal to the Court of Appeal.
Keeping up with the Joneses
Not to be outdone by the consultation on infrastructure planning in Wales (closing date 13 December 2024) there is a consultation in Scotland about introducing several Planning Act 2008-like measures.
In Scotland there is not an equivalent to the Planning Act 2008, and for electricity generation and power lines, the Electricity Act 1989 is used, whatever the size of the project. The (Scottish and UK) government have issued a consultation on making improvements to the process (so just for those two types of infrastructure rather than more generally). This one closes on 29 November 2024, it was only 28 days.
Although the consultation proposes changes to make the process more similar to the Planning Act regime, there are several differences, highlighted below.
Mandatory pre-application consultation is proposed to be introduced, explicitly based on the Planning Act 2008. Accompanying the consultation must be a ‘Preliminary Information Report’, the equivalent of a preliminary environmental information report. The consultees are to be agreed with the Scottish Government rather than being a fixed list (which will presumably add a bit of time). A Statement of Community Consultation is to be sent to the local authority for comments, but these are made to the Scottish Government rather than the prospective applicant, and it is the Scottish Government who then decides what changes should be made (for offshore projects this would only apply to any onshore elements). The consultation is required to include at least two public events (it later suggests exactly two), as well as a website, email and postal address. There is a question as to whether two stages of consultation should be held for electric line projects. A Pre-Application Consultation Report is submitted with the application, equivalent to a Consultation Report. Of course everything is going to get a slightly different name.
There is to be an acceptance stage, but the only reason for rejection is inadequate consultation rather than the standard of the application documents, although the document later says an application can be rejected if not all the required documents are submitted. It doesn’t say how long this stage is proposed to take. The list of application documents under the Electricity Act 1989 is greater for electric lines than generating stations. It is proposed to harmonise these and supplement them with a detailed plan, the pre-application consultation report, a statement of alternatives considered, a statement on benefits and needs, and a statement of all the components requiring consent. This appears a lot lighter touch than for a DCO.
Post-application, the Scottish Government will invite representations rather than the applicant. The consultation suggests that the government be able to set time limits for each stage, rather than having these set in advance (which isn’t great for certainty). It also suggests more strategic engagement with statutory bodies, including a forum, a framework, and additional funding, which sounds a good move.
On amendments to applications during their consideration, it is merely proposed that a point be declared after which amendments are no longer permitted. They must already not be substantial. For examination generally, the consultation proposes that only if a local authority objects, a reporter is appointed who may have a site inspection, request written information, and/or hold a hearing or public inquiry. There could also be a pre-examination (procedural) meeting. Seem familiar? There is a proposal to introduce fees for applications for ‘necessary wayleaves’ for electric lines, currently free.
For post-decision changes, the consultation says that the process for electric line variations is vaguer than for generating stations and suggests making the former clearer. The consultation also proposes that the Scottish Government can propose variations where there has been a change in environmental circumstances, technology, or to correct errors. On legal challenges, it is proposed to unify the currently differing process and timescales to allow a statutory appeal within six weeks. This is narrower than a simple rehearing of the case; it must be that the decision is not within the powers of the Scottish Ministers or one or more relevant requirements have not been complied with.
The consultation suggests that any changed process will even apply to applications that are in progress, from the point they have reached onwards. What could possibly go wrong with that? There are some interesting questions, such as whether you agree that these proposals will ‘increase the speed of the end-to-end project planning process overall’ (I think this should extend beyond the planning process), and how many people in your organisation will need to familiarise themselves with any change in process.
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