949: An infrastructure planning miscellany

This week’s entry reports on various infrastructure planning developments.

Another delayed decision

First, the latest decision on a Development Consent Order application that was due for the once-delayed A1 Morpeth to Ellingham project, whose extended deadline was (Sunday) 5 June after a four-month delay was announced in January. This has now been delayed for a further six months to 5 December 2022; this was heralded in a written statement on 22 May about the ‘Union Connectivity Review’ where a government response to the report of Sir Peter Hendy is due later in the year and may affect this project. A further written statement was issued on 6 June to confirm the new deadline.

The next decision deadline is for the A47 Blofield to North Burlington project (between Norwich and Great Yarmouth), which so far has not been delayed, something of a rarity these days. It is due on 22 June.

Water project brought into DCO regime

Next, Southern Water has been granted a section 35 direction to bring one of its projects into the DCO regime, namely the Hampshire Water Transfer and Water Recycling Project. The water transfer element could have been a nationally significant infrastructure project because that is a category already in the Planning Act 2008. The application letter says that because it will only be used during drought conditions, it will not trigger the threshold of 80 million litres per day deployable output, and the letter refers to the annual average deployable output. The water recycling element is not specified in the Act, although as a water project it is able to be brought into the regime.

Defra wrote back asking for more information as to whether the project would help with home building and what its effect on the South Downs National Park would be. Southern Water wrote back to say (a) it would and (b) some options under consideration might cross it – we are unsure what that has to do with it being ‘nationally significant’. Defra then issued the direction. All correspondence can be found here, although often the original request is not published.

Two consultations

The Levelling-up and Regeneration Bill (which we must all call LURB) had its second reading on 8 June and got through that stage without a vote. The debate can be found here.

The replacement of Environmental Impact Assessment, what are to be Environmental Outcomes Reports, got a brief mention to the effect that more would become apparent when a new version of the National Planning Policy Framework comes out in July.

Another area LURB amends is compulsory purchase. A consultation has been launched here on how prospective changes to planning permission should be assessed. In summary, it will be less favourable to those having their land acquired.

The changes proposed are that certificates of appropriate alternative development will be merged with other ways of determining ‘hope value’; landowners will have to pay for it; and possibly capping or removing hope value compensation in some cases. A case about valuation dates, Lockwood v Highways England, will be dealt with by statutory amendment.

Meanwhile, a consultation on biodiversity net gain for marine areas – so-called ‘marine net gain’ has been launched and closes on 30 August. The consultation document can be found here.

There are five main differences proposed for marine net gain (MNG) compared to (terrestrial) biodiversity net gain (BNG). First, MNG will cover species as well as habitats, since thing move around much more in the marine environment; secondly, benefits that can count will be wider ‘environmental net gain’ rather than just biodiversity gains; thirdly and relatedly, any environmental benefits that are not biodiversity improvements will be subsidiary to biodiversity improvements; fourthly, benefits that are uncertain will not be counted, compared with BNG where they are counted with a discount. The consultation document gives an example of wind turbines acting as an artificial reef, i.e. you won’t be able to rely on that as a gain. Finally, the proposal is that financial contributions will be the main way to demonstrate MNG rather than developing your own land, although the latter option is not ruled out.

The document proposes that intertidal land will be covered by BNG rather than MNG, the frontier between the two will be the low water mark. Finally, no date is given when it will be introduced; ‘necessary legislative powers’ will be sought.

Scottish offshore guidance

Finally, the Scottish government has issued guidance about use of the Rochdale envelope (or as they call it the ‘design envelope approach’) specifically for offshore wind projects (which are consented under the Electricity Act 1989 rather than the Planning Act 2008 in Scotland) that can be found here.

Presumably this is because of the enormous expansion in offshore wind around the Scottish coast (ScotWind) that was announced in February (map here), with 10 floating and 7 fixed turbine projects totalling over 10GW of generation, as this is likely to involve rapid technological change over time.