Four Planning Act 2008 judicial reviews launched in one week

This entry reports on the issuing of four separate judicial review proceedings against three recent development consent orders issued under the Planning Act 2008.

On 19 March, the Secretaries of State for Energy and Climate Change (Ed Davey MP) and Transport (Patrick McLoughlin MP) granted consent for the Hinkley Point C nuclear power station application and the Heysham to M6 Link Road application respectively. On 25 March, the development consent order (DCO) for the Rookery South energy from waste project was finally published after spending nearly a  year and a half undergoing special parliamentary procedure.

The Planning Act allows six weeks to launch a judicial review following the publication of a DCO and so for the first two projects the period expired on Tuesday 30 April and for the third it will expire on 6 May. I understand that no fewer than four proceedings have been issued - two for Hinkley Point, one for Heysham to M6 and one for Rookery South.

Funnily enough I submitted my slides for the National Infrastructure Planning Association annual conference on Monday and said that there had been no judicial reviews of Planning Act decisions. A week is a long time in the Planning Act regime!

Hinkley Point C challenges

The two challengers are Greenpeace and the Irish equivalent of the National Trust, An Taisce ('an tashka' - the store).

I am not aware of the grounds on which Greenpeace have challenged, but according to press reports, An Taisce have challenged on the issue of 'transboundary effects'.

Consultation of other member states where a project was thought to be likely to have a significant effect on them was an amendment to the Environmental Impact Assessment directive occasioned by the coming into force of the Espoo convention in 1997, Espoo ('espeau') of course being Finland's second city.

At first glance I can't see that ground succeeding, since although if there was an accident at Hinkley Point C it might have significant effects on the environment in Ireland, the chances of an accident and hence the effects are not 'likely'. Contrast this to offshore windfarms where other member states have been consulted but where the windfarm in normal operation could have an effect on shipping etc. in another country.

Heysham to M6 challenge

The challenge to this highway scheme comes from lobby group 'Transport Solutions for Lancaster and Morecambe' (TSLM). According to their website the challenge is on five grounds.

The first three are to do with the Planning Act regime. The first is that the project is not a nationally significant infrastructure project and so shouldn't have been applied for under the Planning Act in the first place. Well it certainly seems to be for a purpose connected with a Secretary of State highway to me, given that it directly connects to the M6. The second ground is that there was no consultation on the principle of the project when pre-application consultation was carried out. The third ground is that the National Policy Statements for ports and nuclear energy were used to justify the project and shouldn't have been.

The fourth ground is that an alternative route was improperly dismissed. The final ground is that the effect on otters was not assessed properly.

Rookery South challenge

Proceedings have been launched against the proposed energy from waste project at Rookery South in Bedfordshire by FCC Environmental, the waste company (formerly Waste Recycling Group) that was one of three petitioners to be accepted for consideration during special parliamentary procedure. I am not aware of the grounds for challenge.

Analysis

Challenging a project is not permitted between the application being accepted and the DCO being published, and these challenges reflect that. Although the challengers have respected that moratorum they have still raised issues that occurred before the applications were made.

For all four challenges they are not challenges directed at the project promoters, EDF Energy, Lancashire County Council and Covanta Energy but at the government in deciding the applications. The promoters will therefore have to be mere 'interested parties' when the proceedings reach court, which is likely to be in a few months' time.

It was almost inevitable that a challenge would be launched against one or more of the recent batch of decisions as these are projects with significant impacts (in the UK!). The test of the Planning Act regime will be whether any of the challenges is successful.