Very unusually for a development consent project, the Secretary of State ("SoS") has issued a minded to agree letter for the Portishead Branch Line - MetroWest Phase 1 project (see letter dated 19 April 2022 here), a project that will involve rebuilding a disused railway line. In parallel he has extended the deadline for making the decision on the application to 19 February 2023 to allow for further information to be submitted by the applicant and consulted upon (see written statement to Parliament by Robert Courts MP here).
The SoS is minded to 'agree', rather than minded to 'approve', because in this case the Examining Authority ("ExA") had recommended that the SoS grant consent and the SoS agrees with the ExA. There have been minded to approve letters seen in the past, e.g. for the Hornsea Three Offshore Wind Farm (here) where the SoS disagreed with a recommendation to refuse and for the Able Marine project (here) where the SoS agreed with a recommendation to approve. As far as we are aware, this is the first "minded to agree" letter for a development consent project, perhaps indicating a change in terminology to distinguish cases where the SoS does or does not agree with the ExA's recommendation.
The minded to agree letter reads like a full decision letter and sets out a comprehensive analysis of the position. Published alongside the letter are the ExA’s Recommendation, the draft Development Consent Order ("DCO") incorporating the SoS's required modifications and the SoS's draft Habitats Regulation Assessment ("HRA"), all of which normally would only be published once the decision has been made. It will be interesting to see how the SoS deals with any submissions made about the contents of those documents between now and 19 February 2023. The minded to approve letter for Hornsea Three prompted the submission of strong objections, for example on the contents of the draft HRA.
The Portishead letter explains that the SoS is not yet in a position to decide whether to accept the ExA's recommendation. This is due to a significant increase in the cost of the scheme from that set out in the Funding Statement resulting in a substantial funding gap. This prompted the SoS to conclude that the gap in funding presents an impediment to the delivery of the project, meaning it may not be delivered, and thus there would be no compelling case in the public interest for the land to be acquired compulsorily.
The SoS has therefore decided that consent cannot yet be granted until he has been provided with an updated Funding Statement and information to enable him to confirm the updated costs of the scheme and to be satisfied that adequate funding will be available to meet those costs.
The applicant (North Somerset Council) has been given until 30 November 2022 to provide the information, with interested parties then having 14 days to comment, before the SoS makes his decision by 19 February 2023. As a result, the decision deadline has been extended by ten months.
It is unclear why such a long delay is necessary. This latest delay is in addition to an earlier six-month extension to allow further consideration of environmental matters. With a worrying lack of attention to detail, the written statement to Parliament erroneously calculates the extension from 19 April 2022 to 19 February 2023 as being seven months (rather than ten) and the earlier extension from 19 October 2021 to 19 April 2022 as being four months (rather than six).
Given that there has been a significant increase in the costs of building materials in recent months, this development may be of interest for the many project promoters who are seeking compulsory acquisition powers through their DCO.
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