UK: Update On "Need" And CPO

Last Updated: 18 February 2015
Article by Zyda Law

1. Introduction

1.1.  On 5th February 2015 the Court of Appeal have delivered their judgement in the R (oao FCC Environment (UK) Ltd) v Secretary of State for DECC [2015] EWCA Civ 55 wherein the Court of Appeal ruled on the extent that a DCO applicant is entitled to rely on a National Policy Statement's expression of national "need" for a class of project in making out the "compelling reasons in the public interest" necessary to be granted Compulsory Acquisition Powers ('CPO').

1.2. This briefing note looks at the main legislative provisions and considers the implications of the judgement on applicants preparing to submit a DCO application which includes a request for CPO.

1.3. The case relates to the, now abolished, IPC's decision to grant the first Development Consent Order to Covanta in respect of their Rookery South Energy from Waste generating station and resource recovery facility.  

2.  Legal Issues

Primacy of the NPS in the decision whether or not to grant development consent

2.1.  Section 104 Planning Act 2008 sets out the legal framework for the secretary of state to decide an application for development consent where there is a relevant national policy statement in place. It requires the application to be decided in accordance with the national policy statement unless certain limited exceptions apply. Section 106 of the Act allows the secretary of state to disregard any evidence that relates to the merits of the national policy statement.

2.2. The Overarching Energy NPS sets out at paragraph 3.1.3 that "the government has demonstrated that there is a need for those types of infrastructure and that the scale and urgency of that need is as described for each of them in this Part."

2.3. This is a key feature of the 2008 Act regime which allows the principle of the need for certain forms of NSIP development to be established conclusively, at a national level, through the NPS's and avoid the repetition of "need" arguments which plagued pre-2008 Act major infrastructure inquiries.

2.4.  Section 122 Planning Act 2008 sets the conditions that must be satisfied before an order granting development consent may include provision for the compulsory acquisition of land. The land to be acquired must be required for the NSIP project, to facilitate or be incidental to that development or is replacement land and that there is compelling case in the public interest for the land to be acquired compulsorily.

2.5. Covanta, in their application for development consent, relied upon the NPS to demonstrate the need for their project generally and for justifying the inclusion of CPO powers.

2.6. The question before the Court of Appeal was whether the High Court judge was correct in concluding that it is "difficult to conceive of circumstances in which the Panel in applying statutory guidance, as it must, which established an urgent need for development, could legitimately conclude that there was not a compelling case as a necessary element of the scheme, justifying compulsory acquisition of land."

3.  Ruling

3.1. The Court of Appeal adopted the agreed stance of the parties that the two tests are independent of one another. But helpfully for applicants it has clarified that:

  • While the NPS establishes an urgent need for development this does not mean that the "compelling case in the public interest test" is automatically and necessarily met;
  • Rather it means that the need for the development is to be treated as established and cannot be questioned; but
  • It may be possible to meet the need without the use of the requested CPO powers.

3.2. Essentially, while the need for the specific category of development as set out in an NPS is beyond question; the applicant is still required to satisfy the Secretary of State that there is a compelling case in the public interest for the specific compulsory acquisition powers being sought.

4.  Implications for Applicants seeking CPO Powers

4.1. The decision is helpful for applicants in clarifying that they are fully entitled to rely on the NPS's in setting out the broader "need" for the development.

4.2. However, applicants will still be required to demonstrate the compelling case in the public interest for the specific powers being sought in their Statement of Reasons and be prepared to defend that stance at examination.

4.3. Factors relevant to making out this case will be that for each power being sought that:

  • The land is necessary for the scheme;
  • That the scheme could not be modified in a way that affects the requirement for land which would otherwise be subject to compulsory acquisition;
  • That the powers being sought are proportionate and no more than is necessary.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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