Today's entry reports on the next stage of a judicial review of a decision of the Infrastructure Planning Commission.
The Court of Appeal has agreed to hear a case on whether temporary accommodation counts as 'dwellings' and therefore can't be part of an application under the Planning Act 2008. This relates to the proposed Hinkley Point C nuclear power station but has implications for all large infrastructure projects.
Long before EdF Energy applied on 31 October 2011 to the Infrastructure Planning Commission (IPC) for consent for the project to be built, it asked the IPC to give it powers to enter land for surveying purposes, as it is entitled to do under the Act. This was on 7 January 2011, and on 19 April the IPC granted it permission. At that time, only land that a promoter proposes to acquire compulsorily can be the subject of this surveying power. This is being widened by the Localism Act 2011, but that will not address the main legal issue about dwellings. The land in question, owned by Innovia Cellophane Ltd near Bridgwater, was to be used for temporary accommodation for workers building the nuclear power station. The issue is that an application under the Planning Act cannot include 'dwellings', and so if temporary accommodation counted as 'dwellings', the land could not be subject to the surveying power. Innovia therefore sought a judicial review of the IPC's decision to grant the surveying power on three grounds, one of which was the dwellings point.
The High Court dismissed the claim, with Mr Justice Cranston issuing this judgement, back in September. You can appeal to a higher court first by asking permission from the lower court to do so, and then if they refuse, by asking the higher court. That is what has happened - Innovia asked the High Court for permission to appeal two of the grounds, but it refused, so it asked for permission from the Court of Appeal. We have just heard that on 1 February the Court of Appeal (Lord Justice Sullivan, a planning expert) granted permission to appeal, but on the 'dwellings' ground only.
In due course a date will be found for the Court of Appeal hearing, should Innovia decide to proceed with it. This is likely to be in a couple of months.
Once this case has finally been determined (who knows, it could yet go to the Supreme Court), it will be decided generally whether temporary accommodation does or does not amount to 'dwellings' for the purposes of the Planning Act. If it does, then in England a planning application will have to be made to the local planning authority for it separately (it already has to in Wales). In that case it would be relieved from having to be temporary accommodation and could actually be permanent dwellings up front.
It occurs to me that it is a separate issue whether land can nevertheless be compulsorily acquired for workers' accommodation even though there will be a separate planning application for it. That could still be the case, since compulsory powers can be included for land that 'is required to facilitate or is incidental to' the development that is part of the application as well as the development itself.
Warming to that theme, if that is right, then Innovia's case should not succeed, since the issue that decides whether surveying powers can be granted is not whether permission to develop the land can be included in the application (i.e. whether temporary accommodation can be 'associated development'), but whether the land in question is intended to be compulsorily acquired. EdF Energy might not get compulsory purchase powers over the land but they could certainly apply for them.
In any event, if Innovia successfully demonstrate that temporary accommodation consists of 'dwellings', it might not derail EdF Energy all that much, nor mean that they and other developers would necessarily have to pay a premium for land to house their workers.