What is it with these Conservative ministers and compliance with the law? They seem to think they can ride roughshod over them and when anyone attempts to call them out they just stonewall, obfuscate or bully.
Grant Shapps has been in the news for overriding official advice that a number of road schemes, including the Stonehenge Tunnel and the Lower Thames Crossing, required review on environmental grounds. The Transport Action Network’s (TAN) lawyers were seeking a judicial review into the massive roadbuilding scheme hailed by Rishi Sunak as the country’s largest ever, on the grounds that it was incompatible with environmental and air quality commitments.
At the last minute, it was revealed that the decision to override the official advice was taken by Shapps. TAN’s lawyers were bemused.
The submission from David Wolfe QC stated: “On the day before the limitation period for issuing this challenge was due to expire, the defendant provided the claimant with the advice of his officials, which was that it was appropriate to review the NPS.”
He added later: “The claimants have been presented, on the one hand, with official reasoning in support of a review, and on the other, with a decision by the defendant not to review the NPS, with no explanation of why, or on the basis of what information or considerations, he chose to depart from his officials’ advice.”
Messy, huh? And it was not at all reassuring to learn that the government’s lawyers that the transport secretary is not duty bound to give any reasons for his decision. Hold that thought.
Now TAN have the bit between their teeth and aren’t going to let Shapps get away with this. They are a comparative giant – a Goliath – compared with the David of this story: Guston Parish Council.
Guston is a village of fewer than 2000 inhabitants not far from Dover.
The department for transport (DfT) has decided to slap one of their inland border facilities (IBF) on the village outskirts, on 37 hectares of farmland which they are charmingly naming the White Cliffs IBF. The site, which sits alongside the A2, will act as a location for starting and ending transit movements of goods from the UK. The site includes parking areas for HGVs and other vehicles as well as security measures and facilities to enable the checking of vehicles and goods entering and exiting the site. All this infrastructure is necessary as a consequence of Brexit and our departure from the Single Market and the Customs Union
Unsurprisingly, the denizens of Guston were less than thrilled by the news. Theirs is a peaceful, historic hamlet and the idea of thousands of lorries rocking up every day is not an appealing one. They weren’t encouraged to warm to the idea when the government’s ‘engagement’ process got underway without them having any information on which to ‘engage’.
What’s more, the use of the new we-can-do-what-we-like-because-Brexit Special Development Orders, allowing the DfT to bypass the usual planning progress left them feeling powerless. The consultation process was clearly just a box ticking exercise and it looked as if it was game over for any resistance to the scheme before it could even begin. Where would they find the money to take on the government?
They wrote letters, asked questions, got a petition together but every attempt to get answers was met by stony silence.
Luckily for them, a planning expert based in Devon caught wind of their plight. Unhappy at the cavalier treatment of the locals but even more concerned that laws were being ignored or bypassed, the expert offered her services at no cost in the interests of justice. This is not about the altruism of this individual but it is an important point. Money should not be the deciding factor when challenging breaches of the law.
For starters, the government were in breach of the UN’s Aarhus Convention to which we are signatories. In short, this gives the right of everyone to access to environmental information, to allow for public participation in environmental decision-making and the right to access to justice if the first two conditions are not met.
Asking for comments without the necessary information clearly did not comply. She helped draft a request for more detailed information. They received this.
Hardly detailed and caveated with ‘subject to change, but it gave them enough to mount their case.
The expert moved on to the use of the Special Development Order.
The EU introduced the Environmental Impact Assessment (EIA) directive over twenty years ago and we have adopted the directive into our law. An EIA covers the impact of a project on the environment , identifies measures needed to mitigate this impact where necessary and specifies how that mitigation will be monitored to ensure it is effective. It’s a really important protection for humans and the natural world alike.
The farmland that is set to be buried under tarmac (allegedly only for the five-year duration of this temporary facility) is sequestering carbon, playing a crucial role in managing water run-off, providing a local amenity (dog walkers and ramblers use the National Trail which runs across the land) and includes a small Saxon cemetery and Roman road.
An EIA MUST be completed on a project of this size and scale. In this instance, the threshold of 250 extra lorries per day would be enough in itself to warrant an assessment of sorts. The poor village can actually expect some 6,660 EXTRA vehicles every day! This definitely puts it into the realm of EIA! But the knockout blow in Guston’s case against the government is that a law it introduced in 2019 specifies that a Special Development Order (SDO) cannot be used for any development in excess of 5 hectares. The White Cliffs project is 37 hectares, seven times more than the government’s own guidelines for triggering an EIA.. It has to undergo an EIA.
The Parish Councillors had also assumed that they could only deal with the DfT in this matter but again the planning expert was able to set the record straight. The decision to invoke an EIA rests with Robert Jenrick, Secretary of State for Housing, Communities and Local Government. Now readers of the Bylines network will no doubt have a rather jaded view of Honest Bob Jenrick, but the final clause of the EIA Regulations 2017 does give some defence against his methods since it states that there must be ‘no political interference’.
This is all well and good, but how to get a government with its fingers in its ears to accept that the project falls into the category for an EIA? Inside knowledge paid off once again. It turns out that anyone can ask for a ‘Screening Direction’ which will establish whether an EIA is required. An application was sent to the National Planning Casework Unit in Birmingham and now has a case number. This unit comes under the Planning Inspectorate and, ultimately, Jenrick. The Unit is meant to be autonomous. We shall see.
If Guston get their EIA, which they should – how could they not? – the project will have to be withdrawn.
Councillor Tracey Creed BEM, Chair Guston Parish Council told me:
“What has always been difficult to manage is the late notice, the sudden impact, the distraught residents who were informed in the 11th hour by the Department for Transport that Guston, a small village not far from Dover port, had been chosen to accommodate an Inland Border Facility. It was just dropped on our laps from up high, with no consultation or consideration. From 27th October 2020 Guston Parish Council has been locked in a battle, tirelessly working to extract information from the Department for Transport and desperately seeking support from our District and County Councillors. We are a parish council that will fight for what is right, we have no political affiliation, and therefore our concerns are for our village and community.
The whole process has been stressful, exhausting and infuriating. Overnight we have had to be prepared to engage on issues with pollution, environment, traffic management, safety, and planning to name a few, whilst doing our best to support residents whose properties directly affected by this proposal are confronted with surveyor reports detailing £100k devaluations. Is this fair treatment?
We have no rights, we have no support, all we have is an SDO…….so we greatly thank our Devon planning expert who appeared as a ray of light offering us advice and help during this very dark period.”
One thing is for certain – the DfT are beginning to feel the heat and quite rightly so,. But why should private individuals, volunteers and parish councillors be put in a position where they cannot trust their government to act within the law? And where would Guston be if the Devon volunteer had not stepped up to the plate? Not everyone can ‘lawyer up’ or pay experts. Riding roughshod over the law and attempting to blag it are both becoming hallmarks of this government. It is behaviour that has to stop.
An edited version of our story is running on Kent Bylines.