Today in our planning case law update, senior associate Jen Ashwell covered three different areas of legal challenge to development consent orders:

  •  Firstly, she considered the Manston Airport DCO, which was determined for the second time this summer, four years on from the acceptance of the DCO application in 2018. This redetermination followed the quashing of the original decision, although we understand that the second decision is now subject to a further legal challenge. That case highlights the importance of including full reasoning in decisions, especially in cases where the Secretary of State disagrees with the recommendation of the Examining Authority. 
  •  She then talked through the recent legal challenge to the East Anglia One North and East Anglia Two Offshore Wind Farm DCOs, which involved a challenge based around a so-called “gagging clause” in Heads of Terms, which the claimant alleged prevented affected landowners from bringing important environmental information before the Examining Authority. The challenge wasn’t given permission to succeed due to evidential gaps in the claimant’s case, but it is a helpful reminder of the role of the EIA process and the inquisitorial nature of DCO examinations. The judgment also confirmed that “business as usual” remains in relation to the relevant wording in Heads of Terms, requiring parties not to object to the application. 
  •  Finally, she flagged the most recent climate-focussed litigation, which is a particularly ripe ground of challenge to transport schemes at present. The main issue  is that legislation and policy haven’t  quite caught up with the Government’s ambitious net zero targets and so, despite applicants and decision-makers seeking to follow the current planning framework for assessment of carbon emissions, criticism is being levelled at the approach being taken. The most recent legal challenges have been made to the A428 Black Cat to Caxton Gibbet DCO and two of the A47 DCOs (Blofield to North Burlingham and North Tuddenham to Easton) and are all currently awaiting permission to proceed. 

The webinar recording will be available on our website shortly. My colleagues Gary Soloman, partner, and Patrick Munro, senior associate, also covered key cases relating to the CPO and TCPA regimes and we will provide summaries of these later this week.