Minister Knows Best

Why at the moment do ministers conclude so often that they have to reject their inspectors’ recommendations in relation to planning proposals and major infrastructure projects?

Something is clearly wrong when there can be a hugely expensive, time consuming inquiry or examination, followed by a lengthy, considered and reasoned report, only for the decision letter to arrive at a different balance. Is it the fault of inspectors? Has Government not communicated its up to date policy priorities? Are these decisions driven by political convenience? The problem is that we don’t get to find out – the minister’s decision is inevitably as bland as bland, with differences cloaked by “legal cover” explanations as to the different weight applied to particular considerations. Is it any wonder that the losing party so frequently then embarks on a legal challenge?

Anglia Square, Norwich

Yesterday (13 November 2020), Robert Jenrick issued his decision letter refusing, against his inspector’s recommendations, a called in application for planning permission in relation to the proposed development at Anglia Square, Norwich of “up to 1250 dwellings, hotel, ground floor retail and commercial floorspace, cinema, multi-storey car parks, place of worship and associated works to the highway and public realm areas”. The proposal included a 20 storey tower. Inspector David Prentis had held an inquiry over 15 days in January and February 202, providing his 206 page report to the Secretary of State on 6 June 2020. Russell Harris QC appeared for the applicant (Weston Homes and others), Tim Corner QC appeared for Norwich City Council and Historic England (represented by Guy Williams), Save Britain’s Heritage (represented by Matthew Dale-Harris), the Norwich Society and the Norwich Cycling Campaign were all rule 6 parties.

Photo from Save Britain’s Heritage website (credit: Dan Glimmer)

Why was the inspector’s recommendation not accepted?

“The Secretary of State has carefully considered the Inspector’s assessment at IR468- 469 of the building typologies proposed, and their height. While he recognises that there has been an effort to place the taller buildings within the site rather than on the edges, the Secretary of State considers that the bulk and massing of the built form proposed is not sympathetic to its context. In particular, he is concerned that the frontage to St Crispins Road would include 8, 10 and 12 storey buildings, and he finds, like the Inspector at IR607, that Block F, which would have frontages to Pitt Street and St Crispins Road, would appear strikingly different and unfamiliar, to an extent that would cause harm. The Secretary of State also concurs with the advice of Design South East as quoted in the evidence of Historic England (IR269 and IR474) that:

“with blocks of over 10 storeys, it is only in comparison with the tower that these could be considered low rise, and in the context of the wider city they are very prominent. These blocks are not just tall, but also very deep and wide, creating monoliths that are out of scale with the fine grain of the surrounding historic urban fabric”

He “finds that the tower would be of an excessive size in relation to its context, and does not demonstrate the exceptional quality required by Policy DM3(a).

The Secretary of State “disagrees with the Inspector on the scale of the heritage benefits of the proposal set out in IR542, specifically the second bullet given his concerns over the design of the proposal. Taking account of the wider heritage impacts of the scheme as set out in paragraphs 27 to 59 of this letter, the Secretary of State disagrees with the Inspector and finds that, while the benefits of the scheme are sufficient to outweigh the less than substantial harm to the listed buildings identified at IR536-540, when considered individually, they do not do so when considered collectively, given the range and number of heritage assets affected, and given the increased harm found in comparison to the Inspector. He therefore finds, like the Inspector, that the proposals would conflict with policy DM9. He has also found conflict with elements of policies JCS1 which states that heritage assets, and the wider historic environment will be conserved and enhanced through the protection of their settings, and conflict with elements of policy DM1 which states that development proposals will be expected to protect and enhance the physical, environmental and heritage assets of the city.

“Overall the Secretary of State concludes that the benefits of the scheme are not sufficient to outbalance the identified ‘less than substantial’ harm to the significance of the designated heritage assets identified at IR536-537 and in paragraphs 27-59 above. He considers that the balancing exercise under paragraph 196 of the Framework is therefore not favourable to the proposal.”

Bob Weston of Weston Homes has indicated that the decision will be challenged (Norwich Anglia Square: Robert Jenrick ‘sided with Nimby brigade’, BBC website, 12 November 2020).

A303 Stonehenge DCO

Yesterday (12 November 2020) Grant Shapps overturned the examining authority’s recommendation and confirmed the A3030 Stonehenge DCO. The examining authority comprised no fewer than five inspectors (Wendy McKay, Alan Novitzky, David Richards, Ken Taylor and Edwin Maund).

Why was their recommendation rejected?

“ It is the ExA’s opinion that when assessed in accordance with NPSNN, the Development’s effects on the OUV of the WHS, and the significance of heritage assets through development within their settings taken as a whole would lead to substantial harm [ER 5.7.333]. However, the Secretary of State notes the ExA also accepts that its conclusions in relation to cultural heritage, landscape and visual impact issues and the other harms identified, are ultimately matters of planning judgment on which there have been differing and informed opinions and evidence submitted to the examination [ER 7.5.26]. The Secretary of State notes the ExA’s view on the level of harm being substantial is not supported by the positions of the Applicant, Wiltshire Council, the National Trust, the English Heritage Trust, DCMS and Historic England. These stakeholders place greater weight on the benefits to the WHS from the removal of the existing A303 road compared to any consequential harmful effects elsewhere in the WHS. Indeed, the indications are that they consider there would or could be scope for a net benefit overall to the WHS [ER 5.7.54, ER 5.7.55, ER 5.7.62, ER 5.7.70, ER 5.7.72 and ER 5.7.83].”

“Ultimately, the Secretary of State prefers Historic England’s view on this matter for the reasons given [ER 5.7.62 – 5.7.69] and considers it is appropriate to give weight to its judgment as the Government’s statutory advisor on the historic environment, including world heritage. The Secretary of State is satisfied therefore that the harm on spatial, visual relations and settings is less than substantial and should be weighed against the public benefits of the Development in the planning balance.”

See also his overall conclusions at paragraphs 80 to 86.

Again, as with Anglia Square, the position of Historic England proved influential, as was that of the National Trust and other bodies.

A legal challenge from campaigners appears inevitable.

Manston Airport

On 9 July 2020 Grant Shapps also overturned the examining authority’s recommendation and confirmed the Manston Airport DCO. The examining authority comprised four inspectors (Kelvin MacDonald, Martin Broderick, Jonathan Hockley and Jonathan Manning).

The proposals would permit the reopening and development of Manston Airport, enabling it to become a dedicated air freight facility handling at least 10,000 air cargo movements each year, with the offer of some passenger, executive travel, and aircraft engineering services.

Why was the examining authority’s recommendation to reject the proposals not accepted?

“For the reasons above, the Secretary of State disagrees with the ExA’s recommendation to refuse development consent. As set out above in paragraphs 20 and 21, the Secretary of State considers there is a clear case of need for the Development and this should be given substantial weight. He considers the Development would support the government’s policy objective to make the UK one of the best-connected countries in the world and for the aviation sector to make a significant contribution to economic growth of the UK and comply with the Government’s aviation policy that airports should make the best use of their existing capacity and runways, subject to environmental issues being addressed. Substantial weight is given by the Secretary of State to the conclusion that the Development would be in accordance with such policies and that granting development consent for the Development would serve to implement such policy. The Secretary of State also considers that there are significant economic and socio-economic benefits which would flow from the Development, which should also be given substantial weight.

The Secretary of State accepts that there is the potential for short term congestion and delays on the local road system caused by the Development to occur before appropriate mitigation is delivered; however, he considers that the residual cumulative impacts would not be severe and gives limited weight to these effects. He concludes that the need and public benefits that would result from the Development clearly outweigh the heritage harm and the harm that may be caused to the tourist industry in Ramsgate. The Secretary of State also concludes that with the restrictions imposed by him in the DCO and also through the UUs only limited weight should be given to noise and vibration adverse effects.

For the reasons set out in paragraphs 24-26 above, the Secretary of State is content that climate change is a matter that should be afforded moderate weight against the Development in the planning balance. He does not agree with the ExA that operational matters weigh moderately against the grant of development consent being given for the Development.

The Secretary of State is content that the impacts of the Development in terms of air quality [ER 8.2.28 – 8.2.43]; biodiversity [ER 8.2.44 – 8.2.62]; ground conditions [ER 8.2.76 – 8.2.82]; landscape, design and visual impact [ER 8.2.104 – 8.2.120]; and water resources [ER 8.2.219 – 8.2.227] are of neutral weight in the decision as to whether to make the DCO.

When all the above factors are weighed against each other either individually or in- combination, the Secretary of State is satisfied that the benefits outweigh any adverse impacts of the Development.”

An objector, Jenny Dawes, has challenged the decision. Her crowdfunding page gives some basic information.

The claim was filed on 20 August and was granted permission by the High Court on about 14 October to proceed to a full hearing. It doesn’t seem that a hearing date has yet been set. The barristers are Paul Stinchcombe QC, Richard Wald QC and Gethin Thomas.

Norfolk Vanguard offshore windfarm

On 1 July 2020 Alok Sharma overturned the examining authority’s recommendation and confirmed the Norfolk Vanguard offshore windfarm DCO. The examining authority comprised four inspectors (Karen Ridge (Lead Member), Caroline Jones, Gavin Jones and Grahame Kean).

Why was their recommendation to reject the proposals not accepted?

“The Secretary of State notes that the ExA determined that consent should not be granted for the proposed Development because of potential impacts on habitats and species afforded protection under the Habitats Directive. In determining that it was not possible on the basis of the information available to it to rule out an AEoI on two sites protected by the Directive – the Flamborough and Filey Coast Special Protection Area and the Alde-Ore Estuary Special Protection Area – the ExA concluded that the proposed Development would not be in accordance with NPS EN- 1 and could not therefore be granted consent.

However, in other respects, the ExA concluded that, while there would be impacts arising from the proposed Development across a range of issues (including on local landscape and traffic and transport), those impacts were not of such significance or would be mitigated to such a degree as to be not significant as to outweigh the substantial benefits that would derive from the development of a very large, low carbon, infrastructure project. The ExA notes that, if one set aside the conclusion on Habitats-related issues, then in all other matters, the proposed Development would be in accordance with the National Policy Statements and national policy objectives. This conclusion was subject to some clarification on specific points, including mitigation proposals.

As is set out elsewhere in this submission, in light of the ExA’s Report to the Secretary of State, the Secretary of State consulted a range of parties including the Applicant about the Habitats-related issues and other relevant matters that had been raised in the ExA’s Report. On Habitats, further information on potential bird impacts such that the Secretary of State is now able to conclude that, on balance, there would be no Adverse Impact on Integrity for the Flamborough and Filey Coast Special Protection Area and the Alde-Ore Estuary Special Protection Area.

The Secretary of State notes that there were a range of views about the potential impacts of the Development with strong concerns expressed about the impacts on, among other things, the landscape around the substation, traffic and transport impacts and potential contamination effects at the site of the F-16 plane crash. However, he has had regard to the ExA’s consideration of these matters and to the mitigation measures that would be put in place to minimise those impacts wherever possible. The Secretary of State considers that findings in the ExA’s Report and the conclusions of the HRA together with the strong endorsement of offshore wind electricity generation in NPS EN-1 and NPS EN-3 mean that, on balance, the benefits of the proposed Development outweigh its adverse impacts. He, therefore, concludes that development consent should be granted in respect of the Development.”

Lang J granted permission on 2 July 2020 in relation to a crowdfunded legal challenge brought by an objector, Ray Pearce.

Drax Power Station Re-Powering Project

These DCO overturn instances are of course not new. On 9 October 2019 Alok Sharma overturned the examining authority’s recommendation and confirmed the Drax Power Station Re-Powering Project DCO. A challenge to the decision failed: ClientEarth v Secretary of State (Holgate J, 22 May 2020).

Nor of course are such instances new when it comes to planning appeals and call-ins.

Might I suggest that a review be carried out as to why they are occurring so often?

Finally, given the infrastructure theme to much of this post, please can I recommend my Town partner Duncan Field’s recent paper in the Journal of Urban Regeneration and Renewal, Overcoming obstacles to planning major infrastructure projects.

Simon Ricketts, 14 November 2020

Personal views, et cetera

Author: simonicity

Partner at boutique planning law firm, Town Legal LLP, but this blog represents my personal views only.

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