Angus Walker reports on legal challenges to DCOs (development consent orders).
It has been quite a year for legal challenges to DCOs, with the first four successful challenges having taken place. Here is a brief history of legal challenges to DCOs, with handy links.
The first ever DCO to be granted, for the Rookery South Energy from Waste project, was challenged by rival waste company FCC Environmental and it got to the Court of Appeal. The judgment can be found here. The first two grounds of challenge were on the criteria for awarding compulsory acquisition powers, the third was that the environmental information was out of date by the time Special Parliamentary Procedure had been undertaken. The challenge was unsuccessful.
The next DCO to be challenged was for the Heysham to M6 Link Road project, which was challenged by David Gate, a member of a local campaigning group. The judgment is here. There were five grounds of challenge; the one of greatest interest was that the consultation was not flawed just because the developer had a preferred option. The challenge was unsuccessful.
The third challenge was the refusal to grant a DCO for the Preesall Gas Storage project. The challenge was by the applicant, Halite Energy Group, on the main ground that the Examining Authority took a novel approach not debated during the examination, which the Secretary of State adopted despite reaching a different conclusion, in breach of the principle of fairness. The challenge was successful, and the DCO was granted second time around.
The fourth was the for the Hinkley Point C nuclear power station, by Irish environmental organisation An Taisce. It got to the Court of Appeal, the Supreme Court did not agree to an appeal on the papers. The judgment can be found here. The main ground was whether Ireland should have been consulted on transboundary effects because of the chance of a nuclear accident affecting it, and the argument centred around ‘likely to have a significant effect on the environment’, since although unlikely, an accident could have severe effects. The challenge was unsuccessful.
Challenge 4.5 was to the Able Marine Energy Park by AB Ports, but this was refused on the papers and did not proceed to a hearing and was not reported as a result. There may be others like that that I don’t know about.
The fifth reported challenge was to the grant of the Thames Tideway Tunnel DCO, which was challenged by four parties. One challenge got to the Court of Appeal, that by Thames Blue Green Economy Ltd. The judgment can be found here. The main ground was that it was proper to consider the relevant National Policy Statement in challenging a DCO because of a change of circumstances. The challenge was unsuccessful.
The sixth challenge was to the Clocaenog Forest wind farm DCO by Michael Williams, a local resident. The judgment can be found here. The main ground was that an appropriate assessment should have been carried out but was not. The challenge was unsuccessful.
The seventh challenge was to the Whitemoss hazardous waste project, by Arthur Scarisbrick, a local resident, which got to the Court of Appeal. The judgment can be found here. It turned on a phrase in the relevant National Policy Statement, namely that applications would be assessed ‘on the basis that need had been demonstrated’. The challenge was unsuccessful.
The eighth challenge was to the North Wales Windfarm Connection DCO, made by John Mars Jones on behalf of the Pylon the Pressure Group. The judgment can be found here. The grounds were on heritage and visual impacts, extinction rather than suspension of rights and failure to give reasons. The challenge was unsuccessful.
The ninth challenge was to the refusal to grant the Mynydd y Gwynt onshore windfarm DCO, by the developer Mynydd y Gwynt Ltd, which got to the Court of Appeal. The judgment can be found here. The main ground was the assessment of the impact of the project on the red kite. The challenge was unsuccessful.
The tenth challenge was to the Drax Repower project DCO, by environmental law firm ClientEarth, which reached the Court of Appeal. The judgment can be found here. The main grounds were was about the effect of a project’s contribution to need and the approach to greenhouse gas emission. The challenge was unsuccessful.
Challenge 10.5 was to the Riverside energy from waste DCO by Transport for London, but it was withdrawn before the court hearing.
Then we get to 2021. The eleventh challenge was to the Manston Airport DCO, by local resident Jennifer Dawes. It was not defended by the Secretary of State for Transport on the ground that insufficient reasons had been given from differing from the Examining Authority on need. There was no hearing but the challenge was nevertheless successful.
The twelfth challenge was to the Norfolk Vanguard windfarm DCO, by local resident Raymond Pearce. The judgment can be found here. The main ground was the lack of consideration of the cumulative impact of a substation being built for that and another windfarm, Norfolk Boreas. The challenge was successful.
The thirteenth challenge was to the A38 Derby Junctions DCO, by local resident Mair Bain. It was not defended by the Secretary of State on the ground that a reasoned conclusion on environmental impact assessment had not been provided, mainly relating to climate change impacts, so the challenge was successful.
The fourteenth challenge was to the A303 Stonehenge DCO, by Save Stonehenge World Heritage Site. The judgment can be found here. The grounds that succeeded were a failure to consider impacts on all heritage assets properly and a failure to consider an obviously material alternative routeing. The challenge was successful.
The fifteenth challenge was to the Wheelabrator Kemsley projects DCO, by the developer, EFW Group. The judgment can be found here. The ground was that a section 35 direction should mean a project is a nationally significant infrastructure project. The challenge was unsuccessful.
There is an interesting challenge due to be heard next week, to establish whether the Swansea Tidal Lagoon DCO has been commenced or not.
That’s it for challenges to DCOs (or refusals) that I know about. Of course there have been some other Planning Act related cases, most notably the challenge to the Airports National Policy Statement, which went to the Supreme Court and was reversed in each court it reached. There have been ones to other NPSs, on costs and on access to land for surveys.
These will be the subject of a future blog entry.