Blog fans may be bored of highway DCO legal challenges, but there is always something new to take away, and this one is no exception; government announcements following Finch and the MoD’s objection to Aquind are also covered this week.
Derby day
You may recall that the A38 Derby Junctions DCO was originally granted in January 2021 but was quashed after the Secretary of State did not defend a challenge to it. It was made again in August 2023 without any significant changes and challenged again by the same challenger, (Ms) Mair Bain. Not Dr Boswell for a change, but he was involved and is mentioned several times in the judgment. The judgment can be found here.
Economic assessment methodology changed between the original application and the second decision, and this was the subject of the first and main ground of challenge, namely that the assessment should have been updated in the light of the new methodology. The defence was originally that this would not have made a difference to the decision with expert evidence provided to demonstrate that to be the case, but that defence was dropped, the expert evidence no longer relied on, and rebuttal evidence from the claimant consequently not admitted.
Based as it was on the previous version of the National Policy Statement for National Networks, the decision focused on paragraph 4.5 of that NPS, which says that decisions should be based on an economic assessment. The judge noted that 4.5 did not stipulate any particular level of detail, just that the information be proportionate to the development.
Yesterday’s judgment noted that paragraph 4.7 of the old NPS says that any updated methodology should be complied with ‘only where it would be material to the investment decision and in proportion to the scale of the investment and its impacts’. The SoS did address whether to update the assessment and decided not to, and that was sufficient (paragraph 83 of the judgment).
Environmental assessment more generally was the subject of the associated ground, namely the requirement that a reasoned conclusion on EIA had to be up to date, but the judge held that there was no obligation to formally state that the environmental information is up to date (paragraph 88). Furthermore, the conclusion on climate change and carbon emissions was not affected by the economic assessment, and so it didn’t matter if that was out of date (paragraph 94). The claimant said that the SoS did take economic factors into account in deciding between alternatives. The judge said that the SoS was entitled to decide not to re-assess the alternatives with the new methodology (paragraph 98).
Basically, given that the challenge was inadequate addressing of issues by the SoS rather than not addressing them at all, the challenge had to be that the SoS had behaved so unreasonably that no reasonable SoS would have done the same (so-called ‘Wednesbury unreasonableness’ after a case of that name). This is a much more difficult hurdle for a claimant to overcome than alleging that a relevant issue had been ignored altogether.
Delays from legal challenges, even unsuccessful ones, continue to hold up projects – indeed the first Stonehenge challenge has been the only successful highway JR so far. The original Derby Junctions DCO was granted over three and a half years ago as a case in point.
Finch fallout
Back in July, the Supreme Court issued a judgment in the case of Finch, where a Surrey oilwell should have assessed the environmental impacts of the eventual combustion of the oil extracted before the decision was taken. It was covered in detail in this blog post.
Pursuant to that judgment, the government has announced that it will consult on new environmental guidance for oil and gas firms on this issue, to come into force at some point next year, after a consultation expected to conclude in the spring. This may be combined with a consultation on how to implement the manifesto commitment of issuing no more oil and gas licenses for new fields.
In the same announcement, the government has decided not to defend challenges against the granting of permission for the Rosebank and Jackdaw oilfields. The first is west of Shetland and is owned by Equinor, and the second is east of Aberdeen and is owned by BG International, part of Shell.
The first challenge was made by Greenpeace and Uplift (a new pressure group focused on stopping oil and gas extraction), and the second by Greenpeace alone. Among the grounds in both cases was the assessment of combustion effects, ie, the very subject of the Finch case, and the challenges had been suspended until the Finch case was decided.
More information about the cases can be found in press releases from Greenpeace on Rosebank and Jackdaw. Ironically here is an article from when the Jackdaw challenge was made headlined ‘Low risk of Greenpeace challenge derailing Jackdaw, says Shell‘.
At the end of the announcement, the government says that the litigation does not mean that the licences for Rosebank and Jackdaw have been withdrawn, but surely an inevitable consequence of not defending the challenges will mean that the decisions to issue the licences will be quashed. That is what happened when the government did not defend the Derby Junctions DCO challenge, after all.
Aquind allegations
News finally on the nature of the Ministry of Defence’s reservations about the Aquind electricity interconnector from France to Portsmouth, currently being redecided after its refusal was quashed. A witness statement from James Muncie, deputy director for economic security and statecraft, has been published on the PINS website, backed up by a supporting statement from the captain of Portsmouth Naval Base. Some of the reasons are secret but the project would ‘unacceptably impede and compromise the safe and effective use of a key defense asset, HMNB [His Majesty’s Naval Base] Portsmouth, and RN [Royal Navy] operations in the area of HMNB Portsmouth and the English Channel, including unacceptably limiting military training. This represents a clear risk to Auckland defence national security’.
Security concerns are difficult ones for the developers to rebut, and there is no suggestion that changes to the project would allay them or what exactly the project’s impact would be (that’s probably in the secret bit). Is the project no more? We shall wait and see what happens next.
