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A38 Derby Junctions DCO Quashed

Merrow Golden

The grant of a Development Consent Order approving a major junction improvement scheme on the A38 in Derby has been quashed pursuant to a consent order.

The Secretary of State conceded a judicial review claim brought by a local resident in the area immediately affected by the scheme and an actively involved interested party during the prior DCO examination.

The claim contended that the decision to grant the DCO was unlawful because in making the decision, the Secretary of State had:

(1)    breached the EIA Regulations, both because he had failed:

(i)    to consider cumulative climate change impacts; and, 
(ii)    to provide an up-to-date reasoned conclusion;

(2)    failed to provide legally adequate reasons;
(3)    reached an irrational conclusion regarding the development’s impact on meeting the Net Zero Target and/or in the application of the NPSNN;
(4)    failed to consider the Net Zero Target and declared Climate Emergency when considering GHG emissions as part of the balance under section 104(7) of the Planning Act 2008; and,
(5)    unlawfully failed to consider and/or apply NPSNN policy on air quality impacts.

The Secretary of State conceded that he failed to provide a reasoned conclusion as required by Regulation 21 of the Infrastructure Planning (Environmental Impact Assessment) Regulations 2017 and/or failed to include a reasoned conclusion in his decision notice (i.e point (1)(ii) above).  In light of this, Highways England, as the Interested Party, did not contest the claim.

Importantly, the development’s climate change impacts had been a key issue during the examination proceedings, but the Examining Authority were unable (on the basis of the information before them) to conclude on a number of points, which they ultimately left to be determined by the Secretary of State:

  • “whether the Proposed Development would lead to the UK being in breach of the Paris Agreement 2015. Whilst there was no evidence that there would be a breach (as per s104(4) of the PA2008) we are unable to confirm there would not be a breach on the evidence submitted;
  • consideration of the cumulative effects of carbon emissions from the Proposed Development with those from other developments on a consistent geographical scale, for example by assessing the cumulative RIS1 or RIS2 programmes (of which the Proposed Development is part) against the relevant UK carbon budget;
  • whether the Proposed Development would affect the ability of the Government to meet the target of the revised net zero carbon by 2050 that was set (in July 2019) after the application was submitted;”

The Claimant’s challenge on ground 1(ii) related to the Secretary of State’s consideration of climate change impacts and the outcome of this case will, therefore, be of wider interest to those considering the climate change impacts of DCOs and other major development schemes.

Merrow Golden acted for the Claimant, as junior to David Wolfe QC, and instructed by Richard Buxton Solicitors.