“Levelling up” - court challenges to nationally significant infrastructure projects
Government’s plans to re-boot the economy will require consents for new infrastructure. Is the Planning Act 2008 regime up to the challenge?
You may have detected some recent confusion over parts of the Government’s messaging. But one message from Downing Street is clear enough. Both Numbers 10 and 11 want to “get Britain building”, to “level up” and to fuel our “Northern Powerhouse” – and each of those slogans is, in its way, a promise about new infrastructure.
Because we’re all Keynesians now, the importance of those promises will only increase after lockdown. Indeed, we're told that the plan to re-boot our economy is a “job creation programme — focusing on upgrading infrastructure, including broadband and green energy projects” with a focus on “shovel-ready projects” including carbon capture and storage and offshore wind.
Bring on the infrastructure planning!
But not so fast. We’re also told by a “transport heavyweight” that, after the Court of Appeal’s judgment in the recent Heathrow case, you can kiss private-sector investment in infrastructure goodbye. Daniel Moylan - the heavyweight in question - thinks that the Planning Act 2008 is “a highly risky, possibly unusable, route to obtaining development consent” and that judicial review of DCOs is a “lucky dip faced by promoters” akin to a “lottery”.
So - is he right? Is the Planning Act 2008 up to the job of rescuing our economy? Or are endless JRs going to stop us from getting Britain building?
Let’s take just a moment on the heavily mis-reported Heathrow case. The surprising thing about that judgment was NOT its implications for global climate change policy. It doesn’t really have any. The Court of Appeal’s view won’t be the final word in any event - we’ll see what the Supreme Court makes of it. Don’t forget, even after a very surprising decision which may end up being overturned in the Supreme Court - the Court of Appeal has not quashed the Airports NPS. And the flaw the Court identified is eminently fixable if the Government were interested in fixing it (albeit there’s not much evidence that they are).
No… the real surprise about the Heathrow case is to see a challenge under the Planning Act 2008 succeed at all. Those challenges are very rare birds.
As Angus Walker said in his brilliant 2018 paper to the Oxford Planning Law Conference – then 10 years into the 2008 Act regime:
“Out of 70 decisions made on DCO applications (65 approvals and 5 refusals), 10 have been challenged. All the challenges to approvals were unsuccessful. Of the two challenges to refusals, one (to the Preesall Gas Storage project) was successful and the refusal was quashed and subsequently reversed, and the other (to the Mynydd y Gwynt onshore windfarm) was unsuccessful. Depending how you look at it, either the developer was successful in all but one case, or the challenges were unsuccessful in all but one case.”
2 years on, that headline statistic still stands. We recently saw a high-profile ClientEarth challenge to the Drax Power Station near Selby hit the skids – see Angus’s summary of it here. The position remains that, overall, the Planning Act 2008 regime has been remarkably resistant to legal challenges.
Why is that? At least 4 reasons:
The regime is heavily (some would say exhaustively) front-loaded - there are two sides to all that front-loading, and I’ll return to the negative side in a moment. But the positive side is that issues which might otherwise have become legal stumbling-blocks can be identified and addressed well before the examination is held, and still further before any decision is made.
National Policy Statements (the merits of which can’t be questioned by objectors to a DCO) can establish the “need” for developments in advance of any application being made - either for a class of developments (see e.g. the Drax case) or for a specific piece of development (see Heathrow and the Airports NPS). So what would otherwise be a highly contentious point at examination (ask anyone with painful memories of the Heathrow Terminal 5 inquiry) falls away.
Beyond establishing need, NPSs also set out what the key material policy tests are going to be for each kind of development, and how those tests should be addressed.
Written material is copious, posted online to be read by all, and most issues that arise during the examination can be addressed not on the hop (i.e. in the witness box of a planning inquiry) but through yet further rounds of written submissions. This iterative process allows legal problems to be nipped in the bud well before a decision is taken.
Almost 12 years into the DCO regime brought about by the Planning Act 2008 and, so far as legal challenges to consents or refusals are concerned, the developers succeeded in all but one case. A remarkable record.
Beneath that headline, the full picture is a little more complex.
One of the reasons that Angus Walker thought in 2018 – and I agree – that developers have tried to avoid the DCO regime where they can notwithstanding its resilience to legal challenge is because:
“the regime is seen as more expensive to pursue than alternatives, particularly for smaller projects; even when the cost is similar, the spend profile requires earlier expenditure than usual due to the front-loaded nature of the regime”.
So - the negative side of the front-loading: that kind of process comes not only with significant early financial cost but also with legal risk.
Take, for example, pre-application consultation. The 2008 Act requires pre-application consultation. And the 2015 DCLG Guidance on the pre-application goes further process recommends even earlier non-statutory consultation - e.g. at the stage of considering options - for large projects with long development periods.
That non-statutory consultation can itself provide legal hurdles – see the example of the long-proposed A27 bypass around Arundel in West Sussex (full disclosure, I am part of the team promoting that DCO for Highways England) where legal challenges to the first round of non-statutory consultation led to a 2nd round of non-statutory consultation and now 5 years after the Government budgeted up to £250million for the scheme in its Road Investment Strategy there is still no announcement of a preferred route, let alone a pre-application statutory consultation on that preferred route, still less an actual DCO application.
In the end, achieving a DCO under the Planning Act 2008 is resource-intensive, paper-heavy and - that phrase again - front-loaded. But still - the vast majority of DCO applications which reach a decision are successful. And if you can succeed, decisions granting consent for national infrastructure projects have been incredibly resilient in the face of legal challenge, and certainly more resilient than decisions under the conventional planning regime. So a bit of promising news for HMT.
And is Mr Moylan right that judicial reviews of DCOs are a “lucky dip faced by promoters” akin to a “lottery”? Well it’s been 1 victory for objectors in almost 12 years of the Planning Act 2008 regime - that’s a lottery I wouldn’t mind playing.
Stay well, #planoraks.
