Highway and Railway (Nationally Significant Infrastructure Project) Order 2013

Earl Attlee Excerpts

Wednesday 10th July 2013 Grand Committee

Moved by

[Earl Attlee]

That the Grand Committee do report to the House that it has considered the Highway and Railway (Nationally Significant Infrastructure Project) Order 2013.

Relevant documents: 2nd Report from the Joint Committee on Statutory Instruments.

[Earl Attlee]

My Lords, this order will substitute a new Section 22 to, and amend Section 25 of, the Planning Act 2008 to amend the criteria for highway and rail schemes to be considered nationally significant infrastructure projects. In addition, it introduces thresholds for the construction or alteration of highways on the strategic road network and rail schemes in England only.

The new Section 22, which deals with highway schemes, sets out thresholds based on the area taken up by the scheme, which are as follows. For schemes on motorways, the threshold will be 15 hectares. For schemes on highways other than motorways that have a speed limit of 50 miles per hour or above, the threshold will be 12.5 hectares. For schemes on all other highways, the threshold will be 7.5 hectares. These thresholds will include land on which the construction or alteration will take place and any adjoining land to be used in connection with the scheme.

The new Section 22 will also remove any alteration or construction of a highway from the development consent order regime where the Secretary of State for Transport is not the highway authority. In addition, certain highway schemes on the strategic road network that consist of the alteration of a highway are also removed, first, where the alteration is necessary as a result of a scheme that has already received planning permission; and secondly, where an alteration is necessary because of works by the local highway authority and for which an order has already been made. In both cases, the Secretary of State has to be requested to carry out the works. The new section also removes highway schemes where an earlier order has been made and which require a further order within seven years of the first order.

This order will also amend Section 25 to introduce a threshold so that any construction or alteration of a railway will come within the ambit of the Planning Act 2008 only where the construction or alteration of the railway track is not on operational land or on land acquired for the purpose of constructing or altering a railway and exceeds a continuous length of two kilometres. The order also includes transitional arrangements for existing development consent orders, and for applications for DCOs that have been submitted for determination prior to the coming into force of the order.

These amendments to the Planning Act 2008 are being proposed to ensure that only genuinely nationally significant infrastructure projects fall within the DCO regime. Currently, the Planning Act does not set any thresholds for nationally significant infrastructure highway or rail schemes, which means that any scheme, regardless of whether it is genuinely nationally significant, must comply with the DCO regime laid out in the 2008 Act.

The DCO regime is designed to speed up and improve the planning process for large or complex schemes that are of national significance. The process has already been used to good effect in delivering schemes that, due to their scale or complexity, may have become bogged down in the alternative planning systems. In these cases, the DCO is the most appropriate regime to use. However, some schemes—for example, a 500-metre sidings extension, the widening of a slip road or a small safety improvement scheme—are of only local importance and could not be considered to be nationally significant, yet are required to use the DCO regime. The necessary level of pre-application work and the requirement for an examination under the DCO regime, which is right for genuinely nationally significant schemes, would be disproportionate, and in some cases unnecessary, for smaller, less complex or more discrete schemes.

We have also identified that small schemes which would not have been nationally significant are being delayed or not taken forward. This is because the cost and time it takes to promote a DCO—in the order of 18 months—acts as a disincentive when looking to deliver schemes as part of an in-year based programme. Consequently, we sometimes have little choice but to adopt solutions which do not yield maximum benefit to road users, but which are far more readily deliverable.

During the recent national and local pinch point fund rounds, several schemes which would have benefited from using this funding to support growth were not considered because they would have been required to follow the DCO regime and the time taken to gain the order would have put them out of time for the fund. The proposed thresholds would allow the most proportionate regime to be used, and this would increase certainty that the most optimal schemes are being delivered, which would have a greater benefit for growth. The Planning Act, as currently worded, has also led to confusion about whether certain local schemes, because they have a purpose connected to the strategic road network, should be within the DCO regime. This has led to serious delays and added costs to developers while the wording in the Act is clarified. In a few cases the planning process had to be restarted leading to abortive work and cost.

By setting out in very clear terms that only those highway schemes for which the Secretary of State for Transport is or will be the highway authority, this confusion and potential avenues for delays to much needed growth are removed. Currently, in schemes that provide a development with access to the strategic road network, to mitigate the impacts of the development they are also required to use the DCO regime, even when those works already benefit from planning permission as part of the overall development consent. Under the DCO regime, promoters must submit full consultation and assessment documentation and undergo an examination even when they are uncontested. This can take up to 18 months for the whole process and can be undertaken only after the full development site application has been granted. Under the Highways Act, uncontested schemes that are part of the planning permission for a site and the required side road orders can be made without a hearing and without a charge, therefore making this regime quicker and less expensive. These mitigation works are needed to deliver new developments and, as such, any delay or cost increase affects delivery of new growth.

Local major schemes and schemes that are developer-funded would usually have already gone through public scrutiny via the examination in public of the local plan or through a full planning application process. Under the DCO regime, they would be required to undertake them again, adding further costs and delays to the scheme delivery. The proposed amendment would remove all local major schemes from the DCO regime and allow developers certainty to proceed through one regime under the Highways Act. There is still the option of using the DCO regime for a scheme that will now fall outside the development consent regime but which is none the less considered to be of national significance by the Secretary of State on application making a direction that the scheme is of national significance. This will then bring the scheme within the development consent regime. The position for railway developments under Section 25 of the 2008 Act has similarly resulted in schemes that would not ordinarily be considered nationally significant being required to obtain a DCO pursuant to the 2008 Act, and with similar consequences. As there is currently no threshold, any scheme for the construction or alteration of a railway that cannot progress using permitted development rights under the Town and Country Planning Act 1990 regime becomes a nationally significant infrastructure project and requires a development consent order, regardless of the size and scale of the scheme involved.

The proposed amendments to Section 25 of the Act will mean that railway construction or alteration schemes will require a DCO only if they include the laying of a stretch of railway track, whether single or multiple track, of more than two continuous kilometres on land that is not existing railway operational land. For these purposes, non-operational land would include any land acquired for the purposes of the scheme itself.

Because railways are by their nature generally long and linear, a distance-based threshold, as already applied to gas pipelines, for example, seems appropriate. Bearing in mind the scale and likely impacts of development, and mindful of the types of schemes that typically come forward, a two-kilometre threshold appears appropriate to ensure that only those schemes that have wider impact require authorisation by DCO. Smaller railway schemes and those on existing railway operational land will be able to proceed using the alternative planning procedures, reducing costs and enabling schemes to be delivered more quickly and with greater certainty.

The proposed amendment to Section 25 of the Act will ensure that only development that is justifiably regarded as nationally significant will be required to proceed under the 2008 Act regime. These amendments have been subject to a public consultation and were strongly supported by the respondents. I beg to move.

[Lord Rosser]

My Lords, this is another of those fairly formidable orders, certainly as far as volume is concerned. It is not always easy to understand fully, not what the point is, because I understand that, but what the argument is in favour of the order. Before I go any further, I will say that we are not opposing it, just in case the Minister gets the impression from some of my comments that we might be.

The purpose of the order, as the noble Earl said, is to make sure that only developments that can be considered to be nationally significant infrastructure projects have to be dealt with under the planning process set out in the Planning Act 2008. It does that by amending the circumstances in which projects are considered to be nationally significant, resulting in more projects proceeding instead under the planning regime set out in other legislation. The Explanatory Memorandum states that the amendments are being made with the intention of restricting the ambit of the Planning Act 2008. It states that the current provisions in respect of highway and railway developments mean,

“that developers have been faced with excessive burdens in order to deliver small, less complex or discrete but still important transport infrastructure improvements”.

I have read the Explanatory Memorandum, perhaps not as thoroughly as I might have done, but it appears rather stronger on statements about problems than on specific cases to help identify the problem that has currently arisen. The noble Earl’s comments about the problems of the present arrangements, which he just made, sounded quite dramatic. It would be helpful if he could provide more specific information about actual problems that have arisen to fill the gap that I believe is there so that that is on the record.

For example, how many schemes that have had to be dealt with under the Planning Act 2008 regime would not have had to be dealt with in that way if the terms of this order had been in force? What percentage of the total number of schemes dealt with under the Planning Act 2008 does that figure represent? I may not have read the Explanatory Memorandum as carefully as I should have done, and maybe the Minister will say to me that the information is in there, but at the moment I am not clear what the answer to that question is.

What additional costs have been incurred as a result of dealing with schemes under the Planning Act 2008 regime that it is now proposed are dealt with in future under the planning regime set out in the Highways Act 1980, the Transport and Works Act 1992 and the Town and Country Planning Act 1990 as appropriate? Once again, I have no feel for what these additional costs are.

The Minister made some reference to this in his speech, but how long does it take to deal with schemes under the Planning Act 2008 regime, which it is now proposed should be dealt with in future under the Acts to which I referred a moment ago, and how long will it take if they are dealt with under those Acts? What kind of saving are we talking about as far as time is concerned?

As I say, I hope that the Minister will be able to provide at least some of the information that I am seeking in order to give a better feel for what is involved regarding costs and delays, and what percentage of cases that currently come under the Planning Act 2008 would no longer do so if we made change in the order so that they were dealt with under the one or more of the three other Acts referred to. We need to have on record the information that has led to these changes being proposed, and to be satisfied that the case really stands up and is rather stronger than simply the desires of a few interested parties for whom the less troublesome the planning process is, the better. However, I reiterate that we are not opposed to the order, despite the impression that I might have given the Minister in my comments.

[Earl Attlee]

My Lords, the argument in favour is to allow projects to go forward in accordance with the appropriate planning process. The noble Lord quite rightly asks me about actual problems. During my discussions with officials, I was clear with them that there are problems, and they privately admitted to me that they have adopted less than ideal solutions in order to avoid the DCO process. This is because when the 2008 Act was going through Parliament, to be honest, it was not fully appreciated what the adverse effects of the legislation would be. If Parliament had realised that it would not have quite the desired effect, we would not have done it but would have done precisely what these amending orders do.

The best that I can do is to write to the noble Lord with some good, specific examples of schemes that have gone ahead, unless inspiration arrives. Part of the problem is that some schemes simply never see the light of day because the DCO regime is just too difficult.

The noble Lord asked about the time length under the Planning Act versus the Highways Act. It is about nine months for the Highways Act process, including consultation, and about 18 months for the DCO process. As the noble Lord will appreciate, that can cause pretty serious problems. I beg to move.

Motion agreed.