Out-Law Analysis 4 min. read
11 Apr 2023, 3:54 pm
Planned updates to the key policy document for nationally significant road and rail projects in England are a direct response to recent high-profile rulings on when officials must consider alternative approaches.
Although intended to apply only in exceptional circumstances, the inevitable effect of these updates will be more discussion of alternatives at examination. The proposed changes to the national policy statement for national networks (NNNPS) have also stoked debate over changing the scope of a project in the consenting process to avoid impacts on surrounding infrastructure.
Some of the changes to the NNNPS are a response to recent case law, as well as recurring matters related to highways development consent orders (DCOs). Paragraph 4.19 of the NPSNN, for example, has been updated in light of the High Court’s decision on the A303 Stonehenge project.
In that case, the judge ruled that the secretary of state had acted unlawfully in 2020 when granting a DCO for a road scheme that included a 3.3km tunnel through the Stonehenge UNESCO World Heritage site (WHS). The judge said that in the particular circumstances of that case, where the secretary of state had concluded that substantial heritage harm in a WHS would result, he ought to have considered alternatives.
Despite analysis of alternatives being before the secretary of state – including a proposal for a longer tunnel, the entrances and exits of which would have been outside of the UNESCO site – the judge concluded that he had failed to consider them. The decision followed a line of cases concerning the question of when alternatives need to be considered, even when statutory or policy reasons do not necessarily require a project promoter to do so.
The revised paragraph 4.19 continues the commitment that, generally, the examining authority and the secretary of state are not required to ‘look behind’ the alternatives appraisal work that has been undertaken pursuant to DfT guidance, except when other tests are engaged. As developers will be aware, however, this existing wording does not prevent alternatives being a major feature of DCO examinations. The new text will only accentuate that.
The new text explicitly incorporates the common law principle re-emphasised in the A303 case. Accordingly, when “wholly exceptional circumstances” apply, such as when a proposed development involves ‘conspicuous planning harm’ that is outweighed by overall benefits, an alternative site or location for the project is a relevant planning consideration, and the examining authority and the secretary of state must ‘look behind’ appraisals that were previously undertaken.
This new text should only really apply to proposed developments that find themselves at the more extreme end of the scale of planning harm, where the overall benefits outweigh planning concerns. But applicants will need to be careful to assess as part of their optioneering processes whether that applies to them or, more importantly, whether the secretary of state might decide that it does. If so, the applicant will need to ensure that the alternatives analysis is provided. If there is any doubt, the safe course will be to provide the analysis. So even if 4.19 only applies in exceptional circumstances, in practice it is bound to result in more discussion of alternatives at examination.
The second key issue arising from the policy amendment is the statement that, where those circumstances apply, the consideration of alternatives needs to be “proportionate”. While that requirement is consistent with case law, it is a vague concept and certainly likely to be subject to claims from objectors who argue that the approach taken by the secretary of state fails the test.
While that will be a difficult case to make out, given the high threshold for showing a decision has been unreasonable or irrational in public law terms, if confirmed it is another thing that applicants will need to be careful to tick off. If an applicant thinks they might be in paragraph 4.19 territory, their alternatives analysis should also justify why it is proportionate in the circumstances of the case.
The amended NNNPS is accompanied by a helpful text – again reflecting the case law – which indicates that vague or unrealistic alternative proposals brought forward by objectors will be considered “either irrelevant, or where relevant, will be given little or no weight, and the extent to which they are considered should be determined accordingly.” This puts the onus on the objectors to come up with proposals that work.
It remains to be seen, however, how coherent alternative proposals put forward by objectors which have not gone through a full assessment process will be handled. What can be said with confidence again is that there will be more discussion of alternatives - and specifically whether they are vague or unrealistic - as a result.
The second big change relates to how the NPS proposes that impacts to wider transport infrastructure should be dealt with. This matter is a feature of examinations into highway projects. The proposals state that, when a development negatively impacts on surrounding infrastructure and “connecting transport networks”, the secretary of state should ensure an applicant has taken “adequate” steps to mitigate those impacts. This could include increasing the project’s scope to avoid impacts on surrounding transport infrastructure and providing resilience on the wider network.
This proposal is, however, exactly what local authorities already ask for in examinations, in an effort to prevent project promoters from defining the scope of their projects as limited only to achieving certain outcomes. At the same time, promoters might argue that it is not the job of new national infrastructure to fix existing local issues. In an age where the budgets of transport projects are under mounting pressure, it is reasonable to question whether projects can reasonably be expected to increase their scope without blowing their budget, or at very least, their benefit-cost ratio.
Increasing the scope of a project can also have numerous side effects, depending on when it happens. Changing the scope of a project during the consultation phase, for example, can lead to lengthy delays to its commencement. Changing the scope of a project at the environmental impact assessment stage, meanwhile, risks being required to provide ‘further environmental information’ which can be time consuming and costly. If the proposals are brought forward, the government should ensure that accompanying guidance or wording allows for exceptions to be made in cases where increasing the scope of a particular project might lead to other, greater, environmental impacts.
Co-written by Matthew Fox of Pinsent Masons.