The Largest Environmental Statement And Other Comparisons

Today's entry compares the Planning Act 2008 and hybrid bill regimes.

Last Monday, the bill for the first phase of High Speed 2 was deposited in Parliament, and earlier this year the application for the Thames Tideway Tunnel was made under the Planning Act 2008 - two of the largest infrastructure applications ever made.

How do the sizes of the applications compare, and what about the processes for deciding them?

Size

Much has been said about the sizes of the two applications, but how do they actually compare? There is a certain amount of rivalry as to who had the largest environmental statement (ever) so before a fight breaks out, your intrepid blog author, who is a little bit obsessive about these things (future clients note: close attention to detail, not afraid of hard work) has counted the pages in the electronic versions of their respective environmental statements and can announce the following results.

Drum roll, please.

So the winner is HS2, but the Thames Tideway Tunnel (TTT) is in fact in third place behind the Hinkley Point C nuclear power station (HPC) application. The '160 -> 142' is because the DCO actually got shorter between the application version and the finally decided version.

Of course the ES is only one of several application documents, and so the TTT could still win on overall application size - HS2 doesn't have a consultation report, for example.

Process

How do the processes compare? They have broadly similar elements but are nevertheless rather different.

Objections

Objections to a DCO must be made during a representation period, which can be as short as 28 days, although the documentation will have been published somewhat earlier. For example, the Hinkley Point C application documents were published on 23 November 2011, and the representation period ended on 24 January 2012, and the Thames Tideway Tunnel documents were published on 27 March 2013, and the representation period ended on 28 May. In both cases, that meant about two months to consider the documentation.

The process for objecting to HS2 has been split in two - first, there is a chance to comment on the environmental statement during a period of 60 days, and next spring there will be an opportunity to object to, or 'petition against', the bill. There is a second petitioning period in the Lords that will take place in 2015, and the same points can be made again or new ones can, but the chance to change the bill is much more limited.

Examinations

The examination of an application for a DCO is largely carried out in writing, with some hearings before a panel of 1, 3, 4 or 5 inspectors. Once the preliminary meeting has been held, it must take no more than six months. The inspectors are neutral and, unlike at conventional planning inquiries, proactive.

The examination of a bill is largely carried out orally before a committee of around 10 MPs and then again before seven or so peers, and has no time limits. The Commons committee for the Crossrail Bill, the last hybrid bill, heard petitioners between 17 January 2006 and 10 July 2007.The Lords committee heard petitioners between 26 February and 8 May 2008. The government wants to do all this for HS2 before the election in May 2015, so they will have to shoehorn two and a half years' work into less than a year, which is wildly optimistic.

MPs and peers are also proactive, are neutral in the sense of not having a constituency interest but not in the sense of being opinionated, will not attend all the hearings and when there will often be, um, multi-tasking.

Changes

Changes to a project promoted by hybrid bill are generally accepted if the promoter of the bill wishes to make them. If they will have significant environmental effects or will affect new landowners, then there is a mini-petitioning period on the changes, so-called 'additional provisions'. If the committee of MPs recommends that changes are made to the project against the promoter's wishes then these are conventionally accepted by the bill promoter and are also promoted by way of 'additional provisions'. For Crossrail, the changes were grouped together in four batches and there were four supplementary petitioning periods in the Commons. They split the environmental assessment into 'changes requiring additional provisions' and 'changes that not requiring additional provisions' in each case, and so there were no fewer than eight supplementary environmental statements.

There is a contrast here with DCOs. Changes supported by the promoter can be made to a DCO in some circumstances, but they cannot be too significant and even the smallest changes are scrutinised carefully. Whether changes not supported by the promoter can be made to a DCO is currently a live issue with the TTT application.

Decisions

DCOs are decided within six months of the end of the examination period. Once a hybrid bill has completed consideration of petitions, in each house it will then have a conventional committee stage, report stage and third reading, before finally receiving royal assent at the end. The Crossrail Bill was introduced into Parliament in February 2005 and received royal assent in November 2008, a period of three years and nine months. The Hinkley Point C DCO application was made on 31 October 2011 and received consent on 19 March 2013, under 17 months later.

As being currently experienced, though, one major difference is that the Hinkley Point C decision is being challenged by way of judicial review, being heard in the High Court this week, whereas the enactment of an Act of Parliament cannot be challenged in this way. By the time the Hinkley Point C proceedings have been finally disposed of, a year or more could have elapsed from the date of the decision, so this should be considered as part of the comparison.

Quite a few differences of approach there, and perhaps each regime could learn from the other.

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