Approval for road improvement scheme quashed by High Court on EIA grounds

A development consent order (DCO) approving a major road junction improvement scheme has been quashed by the High Court, after the government admitted that environmental impact assessment (EIA) requirements had not been met.

Proposals to expand a section of the A38 in Derby to six lanes encountered stiff opposition from environmental groups. Nevertheless, transport secretary Grant Shapps granted the DCO in January.

He has now consented to a quashing order after being faced by a judicial review challenge.

Shapps granted permission for the project, which involves improvements to three junctions on the A38 at Kingsway, Markeaton and Little Eaton, after finding that its benefits, including support for new housing and jobs, outweighed its climate change impacts.

However, campaigners argued that the scheme will result in hundreds of trees being felled and the destruction of green space and wildlife habitats.

They say the project will have a negative impact on the achievement of the government's pressing climate change and air quality targets.

Lawyers representing a local campaigner focused their arguments on alleged breaches of the EIA Regulations.

Shapps was, amongst other things, alleged to have reached an irrational conclusion regarding the development’s impact on meeting the net zero target.

He was also said to have failed to consider cumulative climate change impacts and the air quality requirements of the National Policy Statement for National Networks.

Shapps, however, conceded the case on grounds 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 such a reasoned conclusion in his decision notice.

The claimant was represented by barrister Merrow Golden of Francis Taylor Building (FTB) Chambers and David Wolfe QC of Matrix Chambers, who were instructed by Richard Buxton Solicitors. 

In an article on the case for FTB Chambers, Golden said one of the successful grounds of challenge "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".

However, Highways England, which was the applicant for the project, has expressed confidence that a fresh DCO will be granted in time for work to commence on the scheme late next year.

In a press release, the government roads agency said: "We’re confident that the scheme remains the best solution for improving congestion along the A38 in Derby.

"We’re still planning to deliver the project. We will however need to slow down with our planned activities and work whilst our DCO application is being reviewed.

"The work we had planned to carry out in August will be paused during the DCO re-granting period, and we’ll re-programme the work at a more suitable time period.

"Subject to our DCO being re-granted in summer 2022, we expect to start construction work on the project in early winter 2022."

A version of this story originally appeared in ENDS Report's sister title Planning Magazine.

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