Procedural decisions

On 21st March 2023 the Planning Inspectorate sent a letter/email about procedural decisions  to all those who registered to take part in the DCO for the proposed Lower Thames Crossing.  We appreciate that as many people are not familiar with the DCO process it might be helpful for us to share our initial understanding of the information in the letter/email.

Long story short

The Planning Inspectors for the LTC DCO have asked National Highways (NH) to provide them with details of if and how the recent announcement of the 2 year delay to the start of construction, if permission is granted, could change the application, providing a clear indication of what changes could be needed and how long it would take NH to submit those changes. NH have until 30th March to provided PINS with this info.

Thurrock Council have asked PINS to consider extending the Pre-examination stage of the DCO by 3 months, pushing it back to at least the 1st Sept 2023.  PINS have now asked NH for their comments on this, and what implications this may cause if granted.  Again NH have until 30th March to provide PINS with this info.

NH have also given PINS notification that they are planning to have another consultation on some proposed changes. They are aiming to have this consultation April/May 2023 and it will last at least 30 days.  NH plan to then advise PINS by June 2023 of any changes that result from the consultation. PINS will then decide if these changes are considered to be material changes or not and what will happen next.

 

Detail of what the letter/email covers

There are three key sections to the procedural decisions within this letter.

The Transport Secretary’s statement of the 2 year delay on LTC construction

As covered on our recent update, the Transport Secretary has announced that if permission is granted for the proposed LTC there will be a two year delay in the start of construction.

In his statement Mark Harper MP made specific comment that:

“the development consent order process will be an important opportunity to consult further to ensure there is an effective and deliverable plan”

The Inspectors who will examine the LTC DCO application have now shared that they have asked National Highways for a variety of information, all of which they are requesting to be submitted by Thurs 30th March 2023.

Firstly, to describe the purpose, nature and timing of any activities NH have in mind to conduct in order to address this and the stakeholders (if any) that they propose to engage.

Secondly, what, if any, do NH consider to be the implications arising for the Application documents and for the Examination, including the timing of the commencement of the formal Examination period?  They have been asked to include any reasoning for their response.

Taking that into account, NH have then been asked to indicate their initial view as to what, if any, implications a two-year delay in the start of
construction could have:

  • for the design of the proposed development and particularly whether any material change to the design is likely to be proposed as a means to address the rephasing of funding
  • for the requirement for land or rights, either permanently or temporarily to deliver the proposed development (Compulsory Acquisition and/ or Temporary Possession)
  • for any security for the proposed development in the draft Development Consent Order (dDCO) or any other agreement or obligation.

They have been asked to provide a summary table on these aspects, detailing what they believe will need to be changed and when any changes would be ready to be submitted to the Inspectors.  It is noted that if a substantial proportion of the changes are deemed material changes then they would need to be submitted before the Examination stage could begin.

The Inspectors go on to say ask NH to share details of an implications of the 2 year delay could have on:

  • for any time-sensitive base data that has informed the Environmental Statement (ES)
  • for any time-sensitive forecasts or projections included in the ES
  • for the assessment conclusions recorded in the ES

Again asking for a summary table with details of changes, when they would be ready for submission, and again stating that if a substantial amount of material changes are needed it would need to be done before the Examination stage begins.

NH have been asked to provide all of the above to the Inspectors by Thurs 30th March 2023.

 

Thurrock Council’s request for an extension of the Pre-Examination stage of the DCO

Because of the Transport Secretary’s statement regarding the 2 year delay, and the council’s financial position and the temporary standing down of the council’s LTC team whilst matters are assessed, negotiated and clarified, the council have now (on 13th March) formally requested the Inspectors consideration to extend the Pre-examination stage of the DCO.  This would allow them to better prepare for their participation in the DCO process.

Remembering that PINS themselves stated the importance of the councils representation for the Local Impacts Report, which they and the Transport Secretary have to consider as part of the decision making process, adequate time to review the DCO documents and prepare and submit such an important document would be best practice.

Thurrock Council note that they understand that it was the intention of the Examining Authority to start the Examination on 1 June 2023.  The request is that the Examination not start before 1st September 2023 at least.

The Inspectors have asked NH to comment on this request and whether they feel there would be any implications if such a request is granted.  Again they have until Thurs 30th March to respond to PINS.

On the above two aspects the Inspectors have advised that dependent on NH response they will then consider whether and to what extent to also ask those registered as Interested Parties for their comments.  If they decide to do so we will all receive a further letter advising us of details of what they would like us to comment on and by which date the comments would be needed.

 

National Highways notification of changes to the application

Finally, the letter from the Inspectors highlights that National Highways (NH) have notified them on the 16th March that they propose to make some changes to the DCO application, following another consultation which they plan to hold in April/May that will last at least 30 days.  They say it will be a non statutory consultation, and they would then formally submit changes to PINS in June 2023.  PINS would then decided whether to accept the changes and how they would be examined at their discretion as to how long that decision takes.

The letter of notification has been published, as have further details of the changes and consultation.

There seem to be changes to temporary works in the East Tilbury area, changes to the nitrogen deposition compensation land around the Blue Bell Hill area, and some changes to the northern tunnel portal.

 

TCAG’s comments on this

We had actually emailed PINS ourselves on the 18th March to ask them whether, following the Transport Secretary’s statement about the 2 year delay, and his comment about further consultation to ensure they get things right, how this would affect the DCO process.

We also expressed our concern that we already believed the DCO application to be out of date, even before the 2 year delay announcement, considering National Highways have advised us they are still assessing the LTC against the newly set legal targets within the Environment Act, including PM2.5 air pollution.

We asked if PINS would be requesting any additional or updated info in light of the 2 year delay.  We also attached a copy of the additional evidence we had submitted to the Transport Select Committee’s Inquiry into the Strategic Road Investment, of which the LTC is part.

To date we have not received a direct reply to our email, but obviously this letter sent to all Interested Parties certainly answers some of the questions and points we raised to PINS.

When you consider all the aspects that we feel should be addressed/updated in light of the 2 year delay it could be a considerable amount of work for NH to prepare and submit.  Things like updated traffic modelling, emissions, pollution, new legislation.

Whilst technically the DCO application has been submitted prior to any changes to the roads policy, so will be judged against the known to be outdated policy, we would argue that since it is known to be outdated it would be good practice to give consideration to the fact it is in need of and will be updated.

There are new Biodiversity Net Gain (BNG) requirements coming in in Nov 2025.  They would require at least 10% BNG, and looking at the current LTC DCO application documents the project would not fulfil that requirement.

When the Transport Secretary has publicly stated that the importance of getting things right, it is hard to see how these various aspects and updates to the LTC DCO application could be overlooked.  We will have to wait and see what NH response to PINS is, and what happens next.

It is also worth noting the potential change in the timetable to the LTC DCO.

Currently it was anticipated that the strict DCO Examination would take place from June – December.  Since PINS have 3 months to then consider and make their recommendation to the Transport Secretary, who then has a further 3 months to consider and announce whether the DCO has been granted, that would have happened around June 2024.

If Thurrock Council’s request to not start the Examination until at least 1st Sept is granted, the 6 month Examination would be Sept-March. 3 months for PINS to consider and make their recommendation, and then a further 3 months for the Transport Secretary to consider and announce whether they are granting permission or not, would take us up to Sept 2024.

Remembering that depending on what information is decided needs to be updated for the LTC DCO application, as a result of the 2 year delay, and how long that takes to prepare and submit, it could be pushed back even further.

Regardless of when the decision is finally made there would then also be a 6 week window for any legal challenges to be launched, if there is a case to be had.

 

Watch this space, we will update further as we learn more, and we’ll publish a separate update on the available details of the Minor Refinements Consultation very soon!