Why the number of NSIP decisions being delayed is increasing

A delay to a ministerial decision on an application for a road tunnel in east London means that decisions on four out of the last eight projects to be determined under the fast-track process for nationally significant infrastructure projects have been delayed.

Silvertown tunnel: ministerial decision delayed
Silvertown tunnel: ministerial decision delayed

A delay to the secretary of state's decision on the proposed development consent order (DCO) for the Silvertown Tunnel project in east London has prompted speculation over the wider implications of such delays for a system designed to provide certainty for major schemes.

The latest delay was signalled by transport minister Paul Maynard last week. The proposal involves building a new road tunnel under the Thames between Blackwall and North Greenwich, and is designed to ease congestion on the existing Blackwall Tunnel. The decision on the project had been due last week following receipt of the report by the panel of inspectors on 11 July, setting the clock ticking on the three-month time limit for the secretary of state to make a decision.

But Maynard announced that the government needed an extra month to make the decision on the DCO application to consider responses submitted in the wake of the UK's Air Quality Plan, published in July. The Department for Transport had sought views from applicant mayoral agency Transport for London on the impact the project would have on meeting the proposals outlined in the air quality plan. Responses on this issue were received not only from Transport for London but also by Southwark Council and Friends of the Earth, both of whom oppose the tunnel project and had raised concerns about its impact on air quality.

Angus Walker, head of infrastructure at law firm Bircham Dyson Bell, pointed out the Silvertown Tunnel decision is the third DCO in a row to be delayed. The decisions on the Richborough high voltage connection point in Kent and the East Anglia Three Offshore Wind Farm off the coast of Suffolk have already been subject to extended decision-making timescales due to the timing of the general election, although both consents have now been issued.

Walker said the Silvertown Tunnel delay could have "more general application" due to the moving target of air quality policy. This, he said, means that by the time decisions on projects are made, the air quality policy context may have moved on from the time that the issue was discussed and assessed at the examination. He added that a more general concern was the fact that "having maintained a remarkable adherence to the three-month decision period in 41 out of the first 42 decisions, only four of the last eight have been stuck to".

"The fear that the sky will fall in if a decision is delayed seems to have been unfounded, and so the stigma of delay has been lessened," he said. "But it has an overall negative effect of confidence in the regime, one of whose hallmarks has been predictable timing of decisions."

But Howard Bassford, partner at law firm DLA Piper, who has acted for objectors to the Silvertown Tunnel project, said the case was "a complex urban scheme" which had "involved a bit of extra ministerial thinking". Bassford rejected any concerns over the speed of decision-making under the DCO regime. "I don't detect a trend of delay or decrease in efficiency and it is still the streamlined process that it was meant to be," he said. "When you compare it to what went before, with cases like Terminal Five, Dibden Bay and Sizewell B, this is very slick." He also pointed out that no cases had yet involved an extension of writing time for inspectors or of examination time.

Catherine Howard, partner at law firm Herbert Smith Freehills, said the ability to extend decision-making timescales was important in certain cases. "The secretary of state cannot turn a blind eye to a relevant consideration, no matter how late in the day it arises," she said. "As with any public law decision, failure to take account of a material issue like a new government policy can lead to a legal challenge."

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