858: Further DCO delays during COVID-19 pandemic, time for action

Today’s entry reports on further impact of COVID-19 on infrastructure planning and how it might be dealt with.

There are 29 ‘live’ applications for Development Consent Orders (DCOs), and now 17 of them have been delayed (not necessarily because of COVID-19), or had hearings postponed (which may not necessarily turn into a delay). The full table is here, in the order that the applications were made:

As well as the Stonehenge tunnel project becoming the 10th delayed decision last week, three projects have had their preliminary meetings postponed and another three have had hearings that were due to take place cancelled. The A38 Derby Junctions project, in a first for the Planning Act 2008 regime, has had its examination extended by up to five months, although hopefully the extension will not in fact be that long.

While some uncertainty as we enter this period is inevitable, in my view it is vital that we quickly find ways to continue with projects so that the UK is in the best position to recover from the crisis as soon as it can and to keep going as much as possible during it.

To that end, it is heartening that the government are keen to achieve this, and the National Infrastructure Planning Association (NIPA) is helping by examining what might allow projects at all stages to proceed. We are producing a paper covering four different aspects: consultation, hearings, documents and site access, where we examine how processes could be adapted and the law might be changed, and held a Teams call earlier for a discussion of the various issues. The limit of 80 participants was quickly reached which is an encouraging sign that there is a significant appetite to find ways to get / keep things moving.

The finalised paper is intended to be submitted to the government by the end of this week and you should then be able to read it on the NIPA website.

It is likely that some of these practices may become permanent if they fulfil the criteria of allowing equivalent participation, but some may just be temporary stopgaps.

Other news

The Sawkill judgement came out on Friday, about whether the simpler surveying power in the Neighbourhood Planning Act 2017 can be used instead of the cumbersome one in the Planning Act 2008, even for DCOs. The answer is a slightly ambiguous yes (although not ambiguous for the defendant National Highways). For the ambiguity I quote paragraph 44:

’44. Fourthly, the existence of the difference between the two powers constituted by the need for the Secretary of State’s approval under section 53 of the 2008 Act is not determinative of the point, and is readily explicable. The power to use section 172 of the 2016 Act has been granted by Parliament specifically to the Defendant, in particular, in its role as an acquiring authority: it is therefore an organisation with a particular standing, to which the statutory power has been granted. By contrast it is open to any individual to make an application for a DCO and to pursue it through the provisions of the 2008 Act. When that fact is borne in mind, the need for supervision by the Secretary of State in cases where the power under section 53 is invoked can be readily understood. The Secretary of State’s supervision is not therefore a factor of any significant weight in resolving the question of whether or not the Defendant is obliged to use section 53 of the 2008 Act and is excluded from using section 172 of the 2016 Act’.

That doesn’t make it clear whether anyone can use s172 rather than just those who had an independent surveying power already, as National Highways did, but I think they should be able to. Incidentally the case concerned land to be surveyed for the purpose of the Stonehenge tunnel. A second ground as to whether National Highways was entitled to discharge water onto the land in carrying out its surveying also failed. I understand the claimant is appealing to the court of appeal. The full judgement can be found here.

Finally, in amongst all the other news, an application was not accepted for examination, for the Thurrock Flexible Generation Plant. The details can be found in this letter. The reasons given were that the Flood Risk Assessment was not based on up to date sea level rise projections; the visualisations were 2-D rather than the 3-D wirelines and photomontages that had been suggested, and that there was not enough information on design and external appearance within the Rochdale envelope approach to allow the application to be examined robustly.