886: Two highways get 99th and 100th DCO decisions

Today’s entry catches up on the two most recent decisions on Development Consent Orders.

On 8 and 19 January 2021 the first two decisions to be made this year on Development Consent Order applications were issued, meaning that 100 decisions have now been made since the regime began. 95 of those decisions were positive and five were refusals, which is a pretty good approval rate. The next milestone will be in five approvals’ time, when 100 DCOs will be in existence.

The 99th decision was to approve the A38 Derby Junctions project.

• project: improvements to three junctions on the A38 to the north and west of the centre of Derby;
• promoter: National Highways;
• application made: 23 April 2019;
• two inspectors, Stuart Cowperthwaite (his third project) and Simon Warder (his first);
• 31 relevant representations – low;
• 13 written representations – low;
• 721 questions in the first round, very high;
• two compulsory acquisition hearings, six issue specific hearings and two open floor hearings – above average;
• three Local Impact Reports, Derbyshire, Derby and Erewash;
• examination nine months, ie three months longer than normal – the first delayed examination because of the pandemic, recommendation exactly three months, decision exactly three months;
• 626 days from application to decision, 20 1/2 months, well above average; and
• 809 documents on the Planning Inspectorate web page on the date of the decision (not including the relevant representations) – above average.

Notes from the decision letter are as follows. The inspectors and the Secretary of State both agreed the DCO should be made, for a change.

On air quality, although there would potentially be a very small increase in exceedance of pollution levels at one location, the local authority had a duty to address this and so it could be assumed it would.

Stonehenge may get all the airtime but this project also affected a World Heritage Site, the Derwent Valley Mills WHS, which saw the world’s first factories, for spinning cotton.

On climate change there were challenges that the project would hinder achievement of net zero. The government concluded that the carbon budget for 2033 to 2037 had not yet been approved, even though a level had been recommended by the Climate Change Committee, and considered that there was no clear evidence of non-achievement. The government also relied on the Roads Investment Strategies having considered climate change when they were developed to include this project.

If an environmental mitigation site turned out not to be suitable, the provisions of the Operational Environmental Management Plan that the local authority would be consulted on an alternative site were found to be appropriate.

For reference, the project provided replacement land for some open space land that would be lost and this was considered acceptable.

That the project ‘supports a prosperous and competitive economy’ weighed heavily in its favour.

The DCO was amended in the usual few places; the justification for a couple of the changes is that there was no explanation of provisions in the Explanatory Memorandum, so they were removed.

Unfortunate typo: the Royal School for the Deaf at one point is referred to as ‘the Royal School for Death’.

The 100th decision was to approve the A1 Birtley to Coal House project.

• project: widening of the A1 south of Gateshead;
• promoter: National Highways;
• application made: 14 August 2019;
• two inspectors, David Cliff (his second project, the other being the just-decided Hornsea Three) and Max Wiltshire (his second);
• 24 relevant representations – low;
• 14 written representations – low;
• 209 questions in the first round, below average;
• two compulsory acquisition hearings, six issue specific hearings and two open floor hearings – average;
• one Local Impact Report, Gateshead;
• 392 days from application to decision, just over 17 months, about average; and
• 631 documents on the Planning Inspectorate web page on the date of the decision (not including the relevant representations) – about average.

This one was notable for a celebrity objector – Sir Antony Gormley, because of the visual impact of the project on the Angel of the North. In the event further mitigation was deemed acceptable (and the Angel gets a specific mention in Requirement 3) and both the inspectors and the Secretary of State considered the project should be approved.

Notes from the decision letter follow.

COVID-19 rears its ugly head for the first time. The inspectors wondered whether the effects on transport modelling should be considered. The Secretary of State considered it was too early to tell what the long term effects would be.

Three changes (two considered to be non-material and one material, additional land) were made during the examination.

Interestingly on Green Belt issues, the Derby project above was considered to fall within the local transport exception, but this project was not. Nevertheless very special circumstances were found to exist to allow it to go ahead.

On climate change similar arguments to Derby Junctions are employed; this project would contribute 0.01% of the third, fourth and fifth carbon budgets (2022-2037) and would be unlikely to affect the government’s ability to meet them. Contrast these arguments with the Drax case, which will be reported on next week.

Unusually the Environment Agency was affected as a landowner, but the Secretary of State considered its infrastructure could be adequately protected.

There was a fairly standard argument about an indemnity in a protective provision – this time Network Rail won on including it.

Work No. 5a in the DCO is unusual for containing four possible designs of bridges crossing the East Coast Main Line. Requirement 5 also has several options for landscaping. This confirms that alternatives can be carried through applications and even through decisions.

The additional cost of one of the landscaping options has to be met by the local authority if it is chosen – who pays for things doesn’t often appear in DCOs.

A gas transfer station is included in the works; it already has permitted development rights to be built but National Highways would not have the benefit of them if it built the station itself, and the usual ‘no materially new or materially different’ provision is applied to a condition attached to the permitted development instead of the DCO.