DCO regime faces a real test

Print Friendly, PDF & Email

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.