963: A new government and an updated advice note

This week’s entry looks at the new government and an updated advice note on habitats assessments.

All change at the top

With only four cabinet positions continuing to be held by the same person (defence, Scotland, Wales and Alok Sharma at COP26), there have been significant changes in Secretaries of State; here is what you need to know.

Simon Clarke, MP for Middlesbrough South and East Cleveland, is the new SoS for Levelling Up, Housing and Communities. At the time of writing no new minister for housing and planning had been announced, although incumbent Marcus Jones MP is not staying on.

Simon Clarke has been a junior minister in the department before. Four years ago he complained about restrictions on building on the green belt, in contrast to Liz Truss, who said during the leadership campaign that the Planning Inspectorate shouldn’t be able to override local authority refusals to develop the green belt. He will shepherd the changes to the DCO regime that are now in the Levelling-up and Regeneration Bill (rather than the Energy Bill, as previously indicated).

Jacob Rees-Mogg, MP for North East Somerset, is the new SoS for Business, Energy and Industrial Strategy (trivia note: he is younger than Kylie Minogue). He has previously expressed scepticism on net zero and has encouraged oil extraction, but on 8 September 2022 he said during the debate on energy costs:

‘We must have energy independence and become a net exporter of energy by 2040. We cannot be held captive by volatile global markets or malevolent states. We must tackle the root causes of the problems in our energy market by boosting domestic supply. We will invest in renewable energy with vim and vigour, accelerating the deployment of wind, solar and — particularly exciting, I think — hydrogen technologies. To reassure my right hon. Friend the Member for Pendle (Andrew Stephenson), we will invest in nuclear technologies, which also provide us with cheap and clean electricity.’

Nevertheless, the moratorium on fracking / shale gas extraction has been lifted, but this is unlikely to produce much in the short term. The forthcoming Finch Supreme Court case may decide whether the emissions from combusting fracked gas should be assessed at the fracking permission stage.

Anne-Marie Trevelyan, MP for Berwick-upon-Tweed, is the new SoS for Transport. Before becoming an MP she campaigned for dualling of the A1 in what would become her constituency. She will have the first DCO to decide amongst the new secretaries of state, for the A47 – A11 Thickthorn Junction project due by 20 September 2022. She also has the delayed A1 Morpeth to Ellingham project to decide by 5 December 2022 but may delegate that to a junior minister.

Finally, Ranil Jayawardena, MP for North East Hampshire, is the new SoS for Environment, Food and Rural Affairs. We don’t know much about him yet but he has some challenges ahead with sewage outflows, biodiversity net gain, nitrate neutrality (Liz Truss has pledged to reverse its brake on housing) and environmental outcomes reports (which the Office for Environmental Protection has criticised). He will decide a hazardous waste DCO in February 2023, which doesn’t happen very often.

New advice note

Version 9 of the Planning Inspectorate’s Advice Note Ten on Habitat Regulations Assessment relevant to Nationally Significant Infrastructure Projects was issued this August. It is a major re-write – I tried doing an automatic comparison but over 50% of it was all crossed out with new text added.

If you are dealing with European sites I would therefore recommend careful study of the advice note, but we’ve spotted two particular points. First, the advice incorporates the 2018 ‘People Over Wind’ case at paragraph 3.15, where mitigation is not allowed to be included in the screening stage when deciding if an appropriate assessment needs to be carried out.

Secondly, paragraph 5.6 says that if you need an environmental permit from the Environment Agency that may affect a European site, you are ‘strongly advised’ to submit such an application at least six months before your DCO application. That seems to go beyond general advice about when to seek an environmental permit.

If there is any doubt as to whether the habitats directive still applies in the UK, that should be dispelled (ie it does still apply) given the recent case of Harris v Environment Agency. In that case the Agency was held to have breached the directive and the corresponding regulations in the context of reviewing the effects of water abstraction licences, particularly permanent ones, given that ‘the science of understanding the effects on SSSIs has moved on’, and there was no trigger to review such licences.