969: Successful highways DCO and a failed nuclear challenge

Forget the political kerfuffle, today’s entry reports on the grant of development consent for the A47/A11 Thickthorn Junction and the failed attempt to challenge the Sizewell C Nuclear Power Station DCO.

My way, or the highway

Whilst fracking is causing political earthquakes, the Secretary of State has granted consent for the A47/A11 Thickthorn Junction project. A few quick facts:

• Project: single lane free-flowing link road connecting the A11 and the A47, and link road including the construction of two bridges and junctions;
• Promoter: National Highways;
• Application made: 31 March 2021;
• Application decided: 14 October 2022, so just under 17 months;
• Single inspector: Mathew Shrigley;
• 40 relevant representations: low to average;
• 10 written representations: low;
• 144 questions in the first round: above average (various questions are subdivided);
• Three issue hearings, one compulsory acquisition hearings and one open floor hearing: average; and
• 535 documents on the Planning Inspectorate web page on the date of the decision: also average.

Here are a few things that stand out from the decision letter.

First, there’s an interface with the Hornsea 3 DCO project which primarily relates to construction access, but their relevant representation also records an issue with operational maintenance of their assets. Interestingly, the construction traffic management requirement in the DCO includes Orsted (the promoter of the Hornsea project) as a consultee on the post-DCO traffic management plan.

Second, a few DCO provisions stood out to me. Design is considered once again. Both the Examining Authority and Secretary of State recommended a post-DCO design review. The wording broadly follows the wording adopted in the M25 Junction 28 DCO, requiring ‘a report to be prepared by the undertaker of its findings following a review of the design of the bridges, underpasses, and structures of the authorised development; the review to be carried out in consultation with the relevant planning authority and the local highway authority’. The precedented provisions relating to handover of local roads are considered appropriate.

More generally on DCO provisions, it is worth noting the Secretary of State is solidifying their stance on precedent. The backend of the decision letter is littered with references to changes made to ensure ‘consistency with highways DCOs’ (a phrase used a grand total of six times) and also reverting to the precedented approach to the provisions (the word ‘precedent’ is used in some permutation eight times). This is becoming a clear trend.

Third, there’s an interesting issue about a potential piece of open space. The Examining Authority accepted this was ‘ordinary land’ (see paragraph 8.10.14) but considered that even if it was special category land, an exemption from special parliamentary procedure was available. The preamble to the made DCO does not reference s131 so it’s safe to say the Secretary of State agreed the ‘potential’ open space was not open space for the purposes of s131/132 of the Planning Act 2008.

Legal challenges to Sizewell C Nuclear Power Station fails

The legal challenge to the Sizewell C Nuclear Power Station has failed. ‘Together Against Sizewell C’ had attempted to judicially review the grant of development consent on seven grounds. Permission to challenge on those grounds was refused by Mr Justice Kerr on the papers, though we wait to see if it will be renewed in open court. It’s worth noting that another legal claim against the nuclear project – brought by the RSPB – failed because they did not lodge their papers in time.