Today's entry reports on the latest stage of special parliamentary procedure being undergone by the Development Consent Order (DCO) for the proposed Rookery South energy from waste project in Bedfordshire being promoted by Covanta Energy.

On 13 October 2011, the Infrastructure Planning Commission (IPC) approved the application for a DCO for the Rookery South project.  Because it involved the compulsory acquisition of local authority and/or statutory undertaker land, at least one such landowner had objected to the application, and Covanta were not themselves a local authority or statutory undertaker, the DCO had to undergo 'special parliamentary procedure' (SPP) before it was able to be implemented.  This is a requirement under the Planning Act 2008, which has been narrowed in scope but not removed by the Localism Act 2011.

The DCO was open to objections, or petitions, and 39 were made against it.  DECC and Covanta Energy each responded to each petition saying it should not continue.  A hearing was held on 8 March in front of a committee of two chairmen (Lord Brabazon, Chairman of Committees in the House of Lords and Lindsay Hoyle MP, Chairman of Ways and Means in the Commons) for them to hear oral arguments as to whether the petitions should be accepted or not.

Decision

This morning, the two chairmen decided that five of the 39 petitions made against the DCO should go forward to be considered by a committee of MPs and peers.  They also criticised the legal framework within which they had to consider the petitions.  Full details can be found in their report.

The petitions that were accepted were two each from the two 'host' local authorities, Bedford Borough Council and Central Bedfordshire Council (one that the DCO should not be made at all, and one that it should only be made with amendments) and one from three waste companies jointly.  The 34 that did not get accepted were all from parish councils.

The next stage is that either House has 21 days (not counting prorogation, which starts today and ends on the day of the Queen's Speech next Wednesday) to resolve to annul the DCO after which, if this does not happen, the DCO will be referred to a joint committee of MPs and peers to consider the merits of the five remaining petitions.

The two chairmen did not think that the amendments suggested by the councils relating to waste types should be considered by the committee, nor that getting past this stage reopened all their arguments (the 'key to the door' issue), but said that the committee could reach its own decision on the latter point.

Criticisms

The two chairmen made two criticisms of the legal position.  First, they said that the Planning Act 2008 and the act that sets out SPP, the Statutory Orders (Special Procedure) Act 1945, were incompatible, because the former implies that Parliament should only concern itself with the compulsory acquisition issue, but the latter requires the whole order to stand or fall, and Parliamentary standing orders have been written on this assumption.

Secondly, they said that the EU directive on electricity generation required there to be an appeal mechanism for the refusal of permission for a generating station such as this (see article 7(4) on page L 211/67), and there isn't one from Parliament.  The 1945 Act should therefore be amended to make it compatible with the directive, and the House authorities should be involved in these changes.

The two chairmen request that no further DCOs are referred to them until these issues have been sorted out.  Given the name of a pub in Westminster that I have been known to frequent I was tempted to use the headline 'Last orders at the Two Chairmen?' but perhaps that was too much of an in joke.

In fact, as noted by the two chairmen, the government is already planning to introduce legislation to amend the application of SPP to projects that require DCOs, as announced in the Budget in March, although this may have been to remove further DCO projects from the scope of SPP rather than resolve incompatibilities with the 1945 Act.  The Energy Bill that was expected to be the vehicle for this amendment may however be delayed, as the proposed 'electricity market reform' that it will implement gets clearance from the European Commission that it does not breach state aid rules - see this written answer.