Infrastructure blog

Today’s entry looks at the application of the enhanced duty under section 85 of the Countryside and Rights of Way Act 2000 (which applies to national landscapes), and section 11A of the Nationals Parks Act (which applies to national parks).

Areas of outstanding national bickering

First, a little bit of recent history. You may remember that the Levelling Up and Regeneration Act 2023 amended the duty which applies to national parks and national landscapes. Previously, the requirement was that the Secretary of State should have ‘regard’ to the impacts on those protected sites. The 2023 Act changed this so that the decision-maker had to “seek to further the purposes” of the relevant site. This phraseology is not asking for those purposes to be obtained, or achieved, but instead that something which can said to be “seeking to” further them is accepted.

In my view, the updated duty could be said to go beyond consideration of rectification of harm to a protected site, but this does not mean that the Secretary of State must adopt all measures that are theoretically available to further the purposes of that site. It’s also not expressly suggested that “enhancement” should be read as something that is necessarily distinct from “mitigation”. A decision-maker will need to consider whether there is anything more that reasonably and proportionately could be done by the project in the context of its objectives to further the purpose of conserving and enhancing. However, it is not clear to me that this is really giving anything more than the protection afforded in a National Policy Statement.

To take a National Policy Statement at random, consider the National Policy Statement for Ports which pre-dates the new duty and sets out that these protected sites have 'the highest status of protection in relation to landscape and scenic beauty', and 'the decision-maker may grant development consent in these areas in exceptional circumstances' which typically requires consideration of 'any detrimental effect on the environment, the landscape and recreational opportunities, and the extent to which that could be moderated'. This drafting is broadly replicated across all National Policy Statements. The novel drafting of “seeking to further” from the 2023 Act intends to make the consideration of impacts active rather than passive, but it is too far to suggest that this is radically different from what NPSs have been doing to date or that they actually require securing particular outcomes.

Anyway, nobody cares about my own personal views on the issue in the abstract – how has the duty actually been considered in the DCO world? On the M3 Junction 9 project, the promoter reported a moderate adverse effect on the South Downs National Park. Those impacts were temporary, and there were other positive benefits to the project. The Secretary of State concluded that ‘the Scheme is justified and that its benefits cannot be delivered by any alternative route or means and there is no further mitigation that can be reasonably required to mitigate its effects on the National Park’ and so the duty was fulfilled. The Secretary of State in both that case, and the A66 Trans-Pennine Upgrade (where similar considerations applied), added a DCO provision which set out that the promoter would have due regard to the duty in the detailed design of the scheme.

However, things more recently have been contentious. The “minded to approve” letter on the Gatwick Airport DCO application highlighted that the Secretary of State wanted an agreement to be reached on the quantum of compensation. The disagreement on quantum between promoters and environmental groups is, in some cases, vast (in the order of tens of millions of pounds). It has also put Natural England in a position where it has said that it does not wish to comment on specific compensation, but that ‘substantial’ sums may be required.

One of the recent DCO cases – Luton Airport - has endorsed a specific quantum of compensation (£250,000) in respect of an existing impact of flights over a national landscape. Meanwhile on the Lower Thames Crossing, the local national landscape group suggested the duty required at least £38m (compared to a without prejudice position of the promoter of £3m), but the Secretary of State noted ‘that there remains disagreement on the amount of the financial contribution and that the amounts currently proposed' and therefore 'added a provision to the DCO… to allow the amount to be agreed by all parties' prior to commencement. For obvious reasons, I'm not going beyond these factual statements in respect of both of these projects.

Outside of the DCO world, there have been two key cases. The first was a challenge to an appeal decision which was conceded by the Government on the basis that the Inspector did not consider the impact of the duty. The second, in respect of which a full judgment was rendered, set out that a decision was required to "consider whether the proposed development will leave unharmed the natural beauty, wildlife and cultural heritage of the National Park. If the development will, the decision-maker has satisfied the duty and may grant planning permission. In that context, the learned judge concluded that ‘it is not a necessary prerequisite for the proper discharge of the duty under section 11A(1A) of the 1949 Act that the decision maker also determines whether the planning application proposes development which would enhance those characteristic features of the National Park.’

Contrary to what some are suggesting, the judge also makes clear that:

“The strengthened duty is expressed in qualified terms. The planning authority is required "to seek to further" the section 5(1) purposes. It is it not under a duty necessarily to fulfil those purposes… a duty "to seek to further" the section 5(1) purposes necessarily invests the planning decision maker with the responsibility to judge, firstly, whether the planning application before them for decision proposes development which interferes with the fulfilment of those purposes; and if it does, whether and if so why the grant of planning permission is justified… The planning authority may need to consider whether and if so, how the proposed development may be mitigated in order to address the identified conflict with the statutory purposes. They may need to consider whether any compensatory measures are available which might offset the identified conflict with the statutory purposes. They will need to consider the imposition of conditions or the need to obtain planning obligations to secure such measures.”

It is clear that, against this backdrop and regardless of the merits of such arguments, we can expect DCO decisions in the future to be challenged on this point. Part of the reason for this is that the language (“seeking to further”) is not a phrase which has been used in any other context, and in respect of which there was (until the High Court judgment), limited judicial treatment.  Even outside of these challenges, you can imagine for future applications, that there will be significant disagreements as to what, if any, quantum is required or potentially DCOs with Grampian-style conditions which prevent projects from starting prior to an agreement.

The Government’s growth agenda is clear that they want to “build, baby, build” so this seems like an area where they might want to look at given the duty could be used by objectors to stifle, or entirely prevent, development . There are three potential options to consider:

1. Guidance: there is a power to publish guidance which seeks to clarify and articulate what the duty requires. This has been done, but I can’t see it really working to prevent arguments, even hopeless ones, from suggesting that both the duty and guidance require excessive amounts of compensation, or worse still, require outright refusing of critically needed infrastructure.

2. Regulations: the 2023 Act envisages that regulations will be made to assist in the application of the enhanced duty. No regulations have yet been produced. I’m afraid that this route too would itself be subject to legal challenge, but in any event it’s not clear to me that given there may be a need for some level of judgment that any set of regulations really would remedy the potential for vexatious or stifling action, nor could regulations go as far as changing the words of the primary legislation itself.

3. Reverting: that leaves going back to the clearer, and much understood, duty which existed prior to the 2023 Act.

I think this last option is to be preferred. For the reasons set out above, neither guidance nor regulations would offer a foolproof mechanism for avoiding the inevitable disagreements, legal challenges and stalling tactics for implementing development. As it stands, objectors are likely to seek extortionate amounts of compensation purportedly relying on the duty, to the detriment of delivering infrastructure and ensuring it remains commercially viable. Reinstating the previous wording would be entirely consistent with the Government’s wider ambitions, managing expectations (in that there appears to have been an over-interpretation of what this duty actually means) and would also avoid over-complicating the ‘highest level of protection’ already afforded in National Policy Statements.

There is, in my view, merit in the argument that given the “highest level of protection” afforded in various National Policy Statements, adding a further statutory duty does not actually aid the environment but merely creates more bureaucratic barriers to development or opportunities for delaying development. In fact, if it really was considered necessary to require compensation in more express terms, the NPS would be a more appropriate way of achieving that outcome given it would make it abundantly clear that these questions are about trade-offs, and proportionality, not about gouging millions or stopping development. In this case, we can see the potential abuses of the system so it’s right that the government looks at this again.  

Who wants to be a billionaire?

The government has published it’s impact statement for the Infrastructure Planning Bill. So far as major infrastructure is concerned, the assessment is that the reforms will are valued at a “minimum” of  £0.9 billion and maximum of £2.9 billion. One of the impacts reported as uncertain relates to the natural capital and decarbonisation, notably the Government “expect[s] that a more effective planning system will bring forward investment in renewable energy infrastructure sooner than in the existing NSIP regime. As such we would expect to see environmental benefits from reduced carbon emissions sooner”.

This kind of thinking is heavily underrated. The sclerosis is the planning system is really bad if you care about the environment: yes, schemes have mitigation requirements which directly help the environment, but the development itself in a lot of cases is good for the environment. It reminds me of the remarkable position of our American cousins: according to one paper, an assessment delays a forest-restoration project by 1.5 years on average, while an impact statement does so by over three years. In pursuance of environmental goals, we are finding ourselves preventing the kinds of the development that would make a faster, more effective impact on mitigating climate change. I am quite suspicious of claims about “non-regression” for that reason, and I think you should be too!