A38 Derby Junctions Development Consent Order

This was a successful challenge to the Secretary of State’s grant of Development Consent on 8 January 2021 for the A38 Derby Junctions scheme. The grounds of challenge included that the Secretary of State had failed properly to assess the cumulative Greenhouse Gas impacts of the scheme and failed to provide a reasoned conclusion as to those impacts.

The A38 Derby Junctions scheme seeks to make changes to three roundabouts to the west and north of Derby city centre. The scheme forms part of the Government’s second Road Investment Strategy (“RIS2”) and has a budget of £200-250 million. We were instructed on behalf of a member of Derby Climate Coalition, which had taken part in the examination of the DCO and was an interested party, and which had concerns regarding the environmental impacts of the scheme including in relation to greenhouse gas emissions and air quality.

The Examining Authority (the entity responsible for examining the DCO application and making recommendations to the Secretary of State) concluded in its report that it did not have sufficient information on the cumulative climate impacts of the scheme, or how its climate effects (cumulative or otherwise) impacted on the Government’s climate change targets and obligations, including the Net Zero target and Paris Agreement. The cumulative impacts of a scheme must be assessed as part of the EIA process. In addition, regulation 21 of the Infrastructure Planning (Environmental Impact Assessment) Regulations 2017 (“EIA regs”) requires that the Secretary of State to reach a ‘reasoned conclusion’ on the significant effects of the scheme, including the carbon impacts. National policy, under the National Policy Statement for National Networks, requires that substantial weight is given to air quality considerations where a scheme would lead to a deterioration in air quality in a particular area.

The Secretary of State, in his Decision Letter granting the DCO, essentially claimed that the cumulative climate impacts had already been assessed as part of the assessment of RIS2 and stated, without giving explanation or reasons why, that the scheme was “not incompatible with the nationwide carbon targets and commitments of the Government” and he was “satisfied that any increase in carbon emissions that would result from the development” would not have a “material impact on the ability of the Government to meet its carbon reduction targets”.

We wrote to the Secretary of State for Transport and Highways England (now National Highways) setting out proposed grounds of challenge, including that the Secretary of State: (1) failed to consider the cumulative climate change impacts of the scheme; (2) failed to provide a ‘reasoned conclusion’ that was up to date as to the cumulative climate change impacts of the scheme; (3) failed to consider and/or apply national policy on air quality impacts.

Despite the Secretary of State and Highways England initially resisting the claim, once proceedings had been lodged in court, both consented to the quashing of the Secretary of State’s decision to grant Development Consent on the basis of his failure to comply with the EIA Regs and to provide a reasoned conclusion. The Development Consent Order for the A38 Derby Junctions scheme was quashed by the Court on 8 July 2021 on the basis that that the Secretary of State failed to provide a reasoned conclusion as required by Regulation 21 of the Infrastructure Planning (Environmental Impact Assessment) Regulations 2017 on the significant effects of the proposed development on the environment, taking into account his examination of the environmental information, and/or failed to include a reasoned conclusion in his decision notice when making the A38 Derby Junctions Development Consent Order 2021.

Counsel instructed were David Wolfe QC of Matrix Chambers and Merrow Golden of Francis Taylor Building.