This is entry number 293, published on 7 November 2011, of a blog on the Planning Act 2008 infrastructure planning and authorisation regime. Click here for a link to the whole blog.
Today's entry reports on the outcome of the first judicial review of a decision of the Infrastructure Planning Commission.
On Friday, judgment was given in the first judicial review (JR) directly relating to the Planning Act 2008 regime. There was an earlier JR of the previous government's confirmation that it wanted a third runway at Heathrow (reported here) that relied on the (now not) forthcoming Airports National Policy Statement, but that was only a small part of that case.
The Infrastructure Planning Commission (IPC) was being judicially reviewed over its decision to grant the NNB Generation Company Ltd (80% EDF Energy and 20% Centrica) permission to survey land that was intended for workers' accommodation as part of its application for the Hinkley Point nuclear power station, which it eventually made last week.
The JR, made by the owner of the land Innovia Cellophane Ltd, was on three grounds:
- since dwellings can't be part of an application, the promoter shouldn't have been granted permission to survey something that couldn't be in an application;
- the landowner was still willing to negotate and so the power wasn't being used as a last resort, as recommended in government guidance; and
- the conditions that were part of the permission to enter the land were unenforceable.
The judgment can be found here. The judge, Mr Justice Cranston, dismissed all three grounds (as he would have to for the IPC to win).
He concluded that 'dwellings' did not include hostels or other temporary accommodation, and besides, differentiating between workers'accommodation and dwellings in the Planning Act had a planning purpose - the former helped with constructing the project and the latter has long-term planning impacts that were the province of the local authority. To require workers' accommodation to be applied for separately would conflict with the idea of the Planning Act being a one stop shop.
The judge gave shorter shrift to the other two grounds. A party could always say that they were willing to negotiate and then claim that compulsory powers were not being used as a last resort, meaning that such powers could never be used, so a line had to be drawn somewhere.
On the conditions point the judge said that the IPC did not have to impose conditions to deal with every possible situation. He also said that NNB and Innovia had recently concluded a contract to deal with such matters, so the claimants were protected. Would they have done so if they had known it would be used against them in this judgement, I wonder?
Ironically, the two local authorities where the land is situated, West Somerset and Sedgemoor, would like the temporary accommodation to be left as permanent dwellings after construction is complete, saying that they had "concerns about ... the EDF preference for temporary accommodation for construction workers rather than permanent housing". In a way, EDF have to have that preference, otherwise they could not acquire the land compulsorily. It will be interesting to see what does happen to the accommodation after construction is complete.