Update On 'Need' And CPO

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...