Over the last couple of months there have been a number of DCO judgments which are worth noting. Alex Minhinick covered these in our webinar on DCO Hot Topics last Thursday which is available for viewing on our website, and has set out the headline points below.

R (on the application of (1) Durham County Council; (2) Hartlepool Borough Council) v Secretary of State for Levelling Up, Housing and Communities (D); Lightsource SPV 206 Limited and Lightsource Development Services Limited (IPs) [2023] EWHC 1394 

Firstly, a highly material planning decision which goes to the interaction of the NSIP and conventional planning regimes.  Planning permission was granted in 2020 to Lightsource for a 49.9 MW solar farm known as Hulam.   Further applications were then made for another solar farm at Sheraton, a mile away from Hulam, and various related applications.  Those remaining applications would have had the effect of the two solar farms sharing a connector substation, from which a connection would be made to the Distribution Network at the Hartmoor substation.   The applications were validated and refused. There was an appeal, which was then interrupted to allow the local planning authorities to seek two declarations from the Court: a) that the two solar farms should be considered a single project,  an NSIP, on account of their common connector substation and onward connection to the distribution network; and b) that the Secretary of State (SoS) did not therefore have jurisdiction to determine the appeal applications.

In terms of where the decision could be taken, the Court held that Parliament had not allocated the question of whether a development constitutes an NSIP solely to the SoS. There were other enforcement scenarios where it would clearly come before criminal courts.  The High Court decided that, in those circumstances, it was entitled to determine whether the development constituted an NSIP for itself even if it meant the Court had to make evaluative planning judgements.

On the key issue, the development did not constitute an NSIP. The sharing of some cabling and a common substation between two solar farms which were one mile apart was insufficient to mean that they constituted a single generating station.  Much of the basis of this decision looked at the definition of a “generating station”  and whether the common parts of the two proposals shared elements of generating stations.  Onward connections to the grid were not considered to fall under that definition. This decision turned on the specific facts of the arrangements of the two solar farms in question, which did not meet many of the usual dis-aggregation factors so it may be that conclusions on other schemes are not quite so straightforward.

Together Against Sizewell C Ltd, R (On the Application Of) v Secretary of State for Energy Security and Net Zero [2023] EWHC 1526 (Admin)  

The High Court has considered the challenge to the Sizewell C DCO, on the basis it was granted before a permanent supply of potable water was identified for the generating station.  There were seven grounds to this claim, many of which were highly technical. Much of the case revolved around how one should go about identifying a “project” for Habitats Regulations or Environmental Impact Assessment (EIA).  The reason why the potable water supply had not been identified was largely down to the regulation of the water industry, and the manner in which the local water supplier was looking to reinforce its wider network to get the water required to Sizewell so the approach had not been confirmed.  Many of the challenge grounds fell over on the basis the Court found the SoS was entitled to treat those the power station and the water supply as different projects. 

The other interesting aspect is the extent to which the decision maker was entitled to rely on the judgement about when other elements necessary to deliver the project would be delivered. Whilst the water supplier did not have a fixed solution for potable supply, it was acknowledged that a supply could be provided, even if it required Sizewell to provide a purpose-built desalination plant. The Court highlighted that a decision maker’s assessment of the prospects of that solution (or another) emerging is a matter for their own judgement, taking account of the range of controls which would regulate how that solution was being delivered. 

Mr Justice Holgate said that there was no obligation to assess a hypothetical scheme and that the approach taken by the claimants would lead to a “sclerosis in the planning system which it is the objective of the legislation and case law to avoid”.

R (Boswell) v Secretary of State for Transport [2023] EWHC 1710 (Admin)

It is also worth noting the latest failed challenge to a DfT decision on a national highways DCO for three related NSIPs for the A47.  The decision followed what is now an established line of case law that it is acceptable for a decision maker to rely on percentage contributions to a carbon budget and conclude in relation to a particular proposed that there is no material impact on the government’s ability to meet its carbon reduction targets. There is a suggestion that it would be sensible for the Government to amend the relevant National Policy Statements to reflect this to avoid further litigation on this issue.

What about the rest of 2023?

We are closely tracking some other decisions on DCOs due later this year, including the Supreme Court’s decision in Finch which is all about the downstream emissions of the combustion of oil from new oil wells.   The Court of Appeal held that the ES should only assess the greenhouse gas emissions that would be produced from the operation of the development itself.   This is also notable for being the first case in which the newly created Office for Environmental Protection has intervened.  We understand that the hearing relating to the challenge to the second Manston Airport decision was due before the summer recess and the latest challenges to National Highways A57 schemes will have a rolled up hearing in September.

If you have any queries on any of the issues arising from these judgments or DCOs more generally, please do get in touch with Alex Minhinick.