Summary and implications
On 22 November 2011, a Panel of three Commissioners of the now superseded Infrastructure Planning Commission made an order granting development consent ("DCO") to Covanta Rookery South Limited ("Covanta") for a Resource Recovery Facility, comprising an Energy from Waste plant and a Materials Recycling Facility at the Rookery South Pitt, near Stewartby, Bedfordshire.
Over three years later, following a Special Parliamentary Procedure, and High Court and Court of Appeal Judicial Review hearings, Covanta is only now in a position to implement the DCO free from challenge following the Court of Appeal's dismissal of the Judicial Review appeal.
This article examines the findings of the Court of Appeal on the reasons challenge, and the lessons to be learnt for future DCOs.
The Special Parliamentary Procedure was triggered because the DCO authorised the compulsory acquisition of land belonging to local authorities and statutory undertakers who had made representations which they had not withdrawn. Use of the Procedure meant that the DCO did not come into force until 28 February 2013, once Parliament's Joint Committee had reported on the DCO without amendment. Thankfully the Special Parliamentary Procedure no longer applies for DCOs, so this is one less future barrier to a DCO coming into force.
The risk of judicial review, however, firmly remains for DCOs. Large infrastructure projects, particularly those seeking compulsory acquisition powers, will almost inevitably impact on numerous individuals, organisations and Local Authorities. It only takes one of those persons affected to seek to challenge the legality of the DCO to potentially then delay the safe implementation of the scheme for a considerable period of time.
The Court of Appeal held that the IPC Panel recognised that a compelling case in the public interest had to be demonstrated, arranged a hearing to deal specifically with the issue of compulsory acquisition and dealt with "Compulsory Acquisition Matters" in a separate Chapter (7) of the Panel's Decision and Statement of Reasons document ("SR Document").
The Appellant had argued to the IPC Panel that there were alternative sites available which could be used to meet existing need without using compulsory acquisition powers. In the Court of Appeal, the Appellant then argued that the Panel failed to give adequate reasons for its conclusion that there was a compelling case in the public...