Today’s blog looks at Lord Banner’s independent review into reforming judicial review for DCO projects, a failed legal challenge to another DCO decision, and an interesting solar appeal decision.
That would be enough
The much-awaited independent review into legal challenges carried out by Lord Banner KC has been published. Before going onto the meat of the recommendations, the most welcome aspect of the review is the clear acknowledgement that ‘often challenges to the planning decisions and merits have been dressed up as rationality challenges’ and, more importantly, that notwithstanding the relatively ‘low’ numbers of legal challenges, ‘each one is of national significance, that delays occasioned by unsuccessful challenges cause clear detriment to the public interest, the proportion of DCOs that are challenged (c.22%) is significant, and the proportion of those challenges that are unsuccessful is high.’ Preach, your Lordship.
Onto the recommendations. There are two specific recommendations that are to be lauded. The first is removing the multiple bites of the cherry in the same court for legal challenges. Lord Banner sets out that ‘the paper permission stage in the High Court should be eliminated.’ Some commentators suggested this couldn’t be done, and Lord Banner explains in a robust manner why such views are categorically flawed. The mechanism suggested by the review is that NSIP cases should proceed straight to an oral hearing, akin to Section 289 TCPA challenges. This has been advocated on this blog and is to be welcomed. Of the two potential mechanisms, the legislative route seems better to me.
The second substantive recommendation to focus on is that there ‘may be a case for raising the permission threshold for judicial review claims challenging DCOs’, and at minimum the current threshold should require both that there is an arguable claim and that there is a realistic prospect of success. This too has been endorsed by us and is to be welcomed. The government’s call for evidence, published at the same time as the review, sets out that it does not necessarily agree. In particular, ‘there is a more fundamental concern that raising the permission threshold in this way could unduly restrict the right of access to justice.’
I (hopefully) very rarely nail my colours to the mast, but I will say this: access to justice is traditionally considered both a procedural and substantive right ‘that allows those who feel their other rights may have been violated to enforce them and seek redress.’ As the Supreme Court held in the Unison, ‘the right of access to justice…is not restricted to the ability to bring claims which are successful. Many people, even if their claims ultimately fail, nevertheless have arguable claims which they have a right to present for adjudication’.
But access to justice should be seen as a good, which, like other principles and protections, requires balance. The ability to bring a challenge may well protect someone’s interests, but it also interferes with someone else’s (in this, a developer’s interests in providing not just a public good but a nationally significant public good). The DCO process has unique characteristics that allow people to seek redress through engagement and robust examination. It should be no surprise whatsoever that such a process is turning out decisions that are – in the overwhelming majority of cases – found to be unimpeachable. The fact that we cannot consider these things, as we would with any trade-off, is to confuse a factor in the overall trade-off as an inalienable and untouchable edict from Mount Sinai.
There are other recommendations (eg, automatic status of being ‘Significant Planning Court Claims’ to help expedite claims, the introduction of targets for determining applications) but there are some things that are specifically not recommended. In particular, one route we have floated is changing the cost caps. Lord Banner does not agree and importantly says this ‘so long as the Auckland remains a member of the Aarhus Convention’. That is probably the safer bet, but it’s worth saying that the Compliance Committee already considers we are not compliant, nor does it mean that the repeatedly failing litigants who are seeking to delay projects should not have a harder time of seeking to bring the same challenges time and time again.
We previously highlighted a report from Auckland Day One that looked at JR reforms – those should still be considered, but for now the measures in Lord Banner’s review would be enough.
Satisfied
Speaking of failed challenges, Transport Action Network has lost a legal challenge to the A66 project. There were four grounds, and two are particularly interesting: first, a Habitats Regulations-related ground, which sought to argue that the finding of imperative reasons of overriding public interest (and that a derogations case was made out more generally) was flawed. In particular was the claim that road safety did not qualify as a ground relating to human health. Not so, said the High Court.
The second interesting consideration was the specific consideration of the test in the National Networks NPS that ‘There is a strong presumption against any significant road widening or the building of new roads and strategic rail freight interchanges in a National Park, the Broads, and Areas of Outstanding Natural Beauty, unless it can be shown there are compelling reasons for the new or enhanced capacity and with any benefits outweighing the costs very significantly.’ The claim that this was not made out was firmly rejected, with the judge noting that ‘the Secretary of State plainly took into account the need for the development in terms of national considerations, and he also took account of the prospects and opportunities of carrying out the development elsewhere’.
It says ‘49,9MW’ with a comma after 49
Yes, yes, I’m really stretching the Hamilton references. An interesting (TCPA, not NSIP) appeal decision for the Hawsksworth solar project has been made wherein an objector argued that the capacity of the appeal scheme would mean that it was a NSIP. As we know, EN-3 states that the maximum combined capacity of the installed inverters, measured in AC, should be used for the purposes of determining solar site capacity. In this case, the specific objection was that ‘overplanting’ (which would deal with solar panel array degradation) would mean that the NSIP threshold (50MW) could be exceeded.
The Inspector ultimately decided that ‘that the proposed development, subject to the imposition of appropriate planning conditions, is not a NSIP’. It’s interesting to compare that conclusion with the judgment in R (Galloway) v Durham County Council [2024] EWHC 367 (Admin), the case concerning the solar development in Durham which two (solar farms) became one with a potential output greater than 50MW. In that case, the judge seems sniffy at the suggestion that an amendment to a planning condition which stated the project ‘shall have an export capacity of not more than 49.9MW (AC)’ would be sufficient to avoid the NSIP threshold (see paragraphs 68 to 70 of the judgment), though that case was more straight-forwardly an example of an exceedance.
Another interesting contrast is the saga over the Hickley Rail Freight Terminal DCO application, which includes rooftop solar. On the first go, the Inspectorate was minded to refuse the application for examination (ultimately leading to a withdrawal by the promoter), and, in their reasons, they were concerned about whether a cap was necessary and lawful. The promoter ‘acknowledge[d] that as improvements in technology are made, the generation capacity from the array could exceed this threshold by the end of the construction period (10 years) and therefore is suggesting a requirement in the submitted draft Development Consent Order (Doc 3.1) to limit generation capacity to 49.4 MW’. Their view on this was:
