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DCO Decision Confirms Heritage Approach

In R (on the application of John Mars Jones on his own behalf and on behalf of the Pylon The Pressure Group) v The Secretary of State for Business, Energy and Industrial Strategy [2017] EWHC 1111 (Admin), the High Court dismissed the judicial review of a Development Consent Order made under the Planning Act 2008 by the Secretary of State for Business, Energy and Industrial Strategy.  The Order authorised an overhead electricity line to wind farms following developer requests to connect to the network. The Claimant, whose Grade II* listed Tudor farm lay within 125 metres of the route, challenged the decision to make the Order on several grounds, including the treatment of heritage effects.

The Secretary of State was required to regard to two relevant policy statements under section 5 of the 2008 Act – Overarching National Policy Statement for Energy (EN-1) (“EN-1”) and the National Policy Statement for Electricity Networks Infrastructure (EN-5) (“EN-5”).  The policy statements together required careful consideration of the feasibility of alternatives to overhead lines and the protection of heritage assets. He was required to determined the Order application in accordance with them unless, among other things, satisfied that the adverse impact of the proposals would outweigh the benefits.  He was also required to have regard to the desirability of preserving listed buildings or their setting (under regulation 3 of the Infrastructure Planning (Decisions) Regulations 2010).

The Order was approved, on the basis that in the absence of substantial harm, there was no need for the disproportionate costs of undergrounding the cable section.

Dismissing the challenge, Lewis, J held on the main grounds that:

  • The  approach to heritage effects had been correct – identifying the scale of harm and then weighing the scheme benefits against, among other things, the heritage harm.
  • The regulation 3 duty had been complied with looking at the report and decision as a whole. There was no duty to consider alternatives not forming part of the Order scheme and the option of refusal had been properly considered.
  • Permanent extinguishment of private rights – despite the temporary nature of the Order -was not a principal controversial issue and did not require specific reasons to be given on it.
  • The fact that the weighing exercise was in a different part of the  part of the report to the assessment of heritage harm did not matter. It is worth noting that the limited (30 year) duration of the Order was accepted as minimising the impact on the setting of the listed buildings (being for period which would be insubstantial relative to the life of the buildings) and offering a sensitive approach to heritage effects.

Manifesto for Planning 2015: please don’t reinvent the wheel

However the new Parliamentary balance of power plays out, planning will be in the frontline of addressing housing needs. The Conservative manifesto remained focussed on Localism and subsidies for first time buyers/ landowners. Labour had proposed rent control, infrastructure investment, public sector housebuilding and delivery of the Lyons Review recommendations, including the doubling of housebuilding in five short years through a new generation of Garden Cities.

Our manifesto for progress on the ground is simple:

  1. No new planning legislation. There has been some helpful, and some genuinely radical, planning reform in the vast swath of legislative paperwork spawned by the Coalition (Localism Act 2011, Enterprise and Regulatory Reform Act 2013, Growth & Infrastructure Act 2013, Infrastructure Act 2015, and a set of CIL Amendment Regulations every year since 2010).  Please stop legislating, at least for one Parliamentary term. There is now insufficient public sector resource to do much with legislation as it stands, let alone more of it. (see 8, below)
  2. No changes to the Town and Country Planning Act. pic
  3. No changes to the NPPF. Broadly it works.
  4. CIL agreements for major sites. CIL breaks down when applied to big projects. It makes sense to put agreements entered into ahead of CIL setting and during the application process on a footing that prevents viability debates and creates certainty about land value and infrastructure delivery.
  5. A National Policy Statement for Housing which sets defined Broad Housing Market Areas and needs and a tiny change to the Planning Act 2008 to allow (but not require) DCOs for housing above the 5,000 units mark.
  6. Fiscal incentives for authorities to allocate land to meet needs. None of the manifestos tackle the issue that dogs what is meant to be a plan-led system – there are no local political incentives to plan for growth to meet needs. They are, in fact, usually perfectly aligned in the opposite direction. Failure to plan will be rewarded by re-election. A clearer relationship between land allocation and infrastructure planning and Government grants would clarify local decision making.  Funding that is tied to allocations, LDOs and authority-sponsored DCOs makes sense.
  7. A national template highways agreement and a national template planning agreement. So much time is wasted in unnecessary, cruel and unusual drafting that could be so much better spent on decisions about where, when and how we are going to build (not just approve) an extra 200,000 homes every year for the next Parliamentary term to meet the minimum of needs.
  8. Resourcing planning.  In many local authority legal departments the last person to leave has already switched off the lights and departed for a remotely operated shared services regime.  Planning officers are a endangered species. Highways teams have been outsourced en masse. Despite this there is some committed work done in challenging circumstances.  The development industry should look harder at how it can support the public sector.  Authorities in turn should recognise that delivery will now often require outsourcing to the most capable external advisers at developers’ cost, rather than holding onto what is seen as a revenue stream amidst unprecedented under-capacity.
  9. Sort out the CPO process.  It is too long winded and unfair.  The Law Commission did an excellent report on how it could be improved and that should be dusted off.  And allow the private sector to initiate the CPO process – after all if it is acceptable for CP powers to be given as part of the DCO process why cannot there be a similar ability to support housing and smaller scale development?
  10. Transparency and viability.  We need to make the viability assessment process less opaque and more open.  We also need to make sure that if viability is addressed as part of the local plan process then it should be rare for the policies to be challenged afresh application by application.  But where viability is raised as a reason for non-compliance with policy then the figures, in an appropriate form, should be available for the public to review.

DCO regime faces a real test

Better known as the super-sewer, the Thames Tideway Tunnel (“TTT”) Development Consent Order, granted on 12 September 2014, was a super-sized DCO application.  The scheme covers 25km from Acton to Abbey Mills and with 43 hearing sessions and 1246 representations is by far the largest application to go through the Planning Act 2008 process to date.  Based on recent news reports, it is also now set to be the most contentious DCO so far, with two judicial review challenges lodged.

The first challenger is, unsurprisingly, the London Borough of Southwark.  Thames Water may have been expecting a claim after the Leader of Southwark publicly branded the decision “ludicrous and evil“.

tunnelNothing has emerged yet on the grounds of their challenge but it is a safe assumption that it will focus on the use of Chambers Wharf as a site to drive the main tunnel to the Abbey Mills pumping station, and the impact of the drive site on residential amenity.  The Examining Authority concluded that the use of Chambers Wharf was not justified and weighed against the making of the Order.  The Examining Authority considered that if the option of driving from Abbey Mills (i.e. a reversal of the drive direction) were fully explored there was a good prospect that it would be found to be preferable in terms of overall environmental and community impacts.  While the Secretaries of State noted that the intensity and duration of impact on nearby residential occupiers during the 6 year construction period (including 33 months of night time working) weighed against the making of the Order, they considered that the mitigation package would substantially mitigate those adverse impacts and the selection of Chambers Wharf as a drive site was justified.

The crux of Southwark’s challenge is likely to be the extent to which the Secretaries of State are required to consider alternatives to the applicant’s proposals in the course of their decision making.  This is a fundamental question given that the National Policy Statement for Waste Water (NPS) approves the principle of a tunnel but leaves the specific route, design, layout and construction programme of that tunnel to be determined as part of the DCO application.  The answer will influence the future approach of applicants and objectors.

The second challenger is the Blue-Green Independent Expert Group (“BGIEG”) – an interest group formed by a broad coalition of independent experts.  News reports indicate that their challenge relates to the failure to comply with the public participation requirements of the EIA Directive and EIA Regulations.  BGIEG’s challenge is likely to focus on the precautionary principle (Article 191 of the Treaty on the Functioning on the European Union), obligations arising under the UN Aarhus Convention and the EU Public Participation Directive and criticisms of the robustness and adequacy of the Environmental Statement.

Whether BGIEG continues its argument that the case for progressing the scheme by way of a tunnel has not been proven remains to be seen. During the course of the examination, BGIEG argued that the NPS decision in principle to use a tunnel was made without proper testing of alternatives, including blue-green infrastructure solutions.  The starting point of the inquiry was that contained in the NPS, namely the Examining Authority and the decision maker in undertaking any assessment of the TTT application should do so on the basis that the national need had been demonstrated.  The NPS states that in reaching that conclusion the strategic alternatives have been considered and strategic alternatives did not need to be assessed by the Examining Authority or the decision maker.  If a court were to hear a challenge, let alone allow a challenge, on this ground it would deal a heavy blow to the sanctity of NPSs.

Despite being a long-standing objector, Hammersmith & Fulham has notably not challenged the decision.  They may be sitting back to watch the Southwark showdown first.