UK: Court Of Appeal Ends Claim And Other Infrastructure Project News

Today's entry is a round-up of news on nationally significant infrastructure project applications.

Judicial review latest

Five judicial review applications have been made against NSIP application decisions. Greenpeace's challenge to the Hinkley Point C nuclear power station application, on the issue of the long-term storage of nuclear waste, has been dropped.

The challenge of An Taisce, the Irish counterpart to the National Trust, on the grounds of consultation on transboundary effects, is due to be heard in the High Court next week, on 5 and 6 December.

The challenge of Halite Energy against the refusal of their application for a gas storage facility is due to be heard in the High Court the following week, on 10 December.

The challenge of FCC Environmental to the publication of the Rookery South energy from waste project Development Consent Order is not due to be heard until 5 and 6 February 2014.

Finally, the challenge of Transport Solutions for Lancaster and Morecambe (TSLM) to the grant of consent for the Heysham to M6 Link Road project finally ran out of steam yesterday, when Lord Justice Sullivan, sitting in the Court of Appeal, refused to allow them to appeal from the High Court.

There is some general interest in that last one on three fronts. First, the claimant had said that their counsel was not available until February, but the court overrode this and held the hearing yesteday. Perhaps this is the 'planning fast track' in operation.

Secondly, Lord Justice Sullivan confirmed that the two grounds of appeal had no arguable case in the Court of Appeal, that the project was not a nationally significant infrastructure project, ('it was extremely difficult to see how the development did not fall within the plain language' of the Act), and that the consultation had been a foregone conclusion ('the question of the route had been considered before, at length; the examining authority considered all relevant matters, including the principle of the route').

Thirdly, the time taken to finally dispose of a challenge is quite long. The application was decided on 19 March, and the challenge was not finally disposed of until 28 November, i.e. 8 months and 9 days later. The planning fast track, a move by the Ministry of Justice to speed up planning cases in the High Court (see paragraphs 40-43 of this consultation document, which was effectively the announcement of the move), did not come in until July, so even if the Court of Appeal listing was influenced by it, it did not have much effect. We shall see if future cases are any faster.

The other challenges are taking as long or longer. The Rookery South challenge will be heard nearly a year after the event being challenged took place, the Hinkley Point C challenge nearly 10 months later, and the Preesall challenge exactly 8 months later. It's all very well having a fast-track consenting regime, but if projects can then suffer lengthy delays in the courts, the aims of the regime have not been realised. Moves in the pipeline beyond the planning fast track, such as a specialist planning chamber, are likely to be announced soon, however.

Withdrawn applications

On Tuesday, the Atlantic Array offshore wind farm application was withdrawn by promoter Channel Energy (part of RWE). The reasons for this are set out in a press release, which says 'in light of the significant technical challenges specific to the zone, identified from intensive research, at the current time, it is not viable for RWE to continue with development in the Bristol Channel Zone'.

The preliminary meeting (PM) was due to be held on 10 December, and the period just before the PM is probably one of the most likely times that an application might be withdrawn, as once the preliminary meeting is held, the applicant gives up control of the timetable for the project.

A quick analysis of withdrawn applications confirms this:

Approved applications

It's not all doom and gloom, though. In the last month two more Development Consent Orders have been granted, taking the total to 13. The first was the upgrade of a spur off the M1 at junction 10a leading to Luton Airport, and the second, a day later, was the double-tracking of about 3km of railway between Redditch and Alvechurch in Worcestershire. Network Rail is now the proud owner of three DCOs; indeed transport projects seem to be faring better than energy projects so far. Perhaps they are less complex, perhaps it is because their historical consenting regimes are more similar, or perhaps it's their choice of law firm ...

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