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Advice to Kate Harrison

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Enquiry

From
Kate Harrison
Date advice given
12 August 2011
Enquiry type
Email

We are looking at our draft Development Consent Order and the Model Provisions Regulations and would be grateful of the IPC's guidance on the following.

  1. The foot note to Article 5 of the Model Provisions (Street Works) provides that the Article should not be used in respect of trunk roads. We may be mistaken but cannot see a distinction in the New Roads and Street Works Act 1991 between ordinary roads and trunk roads (unless designated a special road and within s61 of the 1991 Act as a protected street). Can you please advise whether the foot note applies to all trunk roads and if so the provenance for this?

  2. We have been looking at the model provisions for railways to see if any may be relevant to our draft Order. Article 12 of those provisions (Application of the 1991 Act) identifies major transport works by reference to s86(3) of the 1991 Act. However, s86(3) of the 1991 Act is about major highway works and it is s91(2) of the 1991 Act that defines major transport works. So that we can understand the relevance and effect of this article, can you please clarify whether it is the intention of the model provisions to change the definition of the term major transport works and if not, whether it is the term or definition under the 1991 Act that should prevail?

  3. i) If it is proposed as part of a development consent to stop-up a private street, does the private right of way need to be acquired/compulsorily purchased in addition to incorporating the provisions of article 11 (Stopping up) of the Model Provisions? and ii) Would it make any difference whether or not an alternative private street is proposed?

  4. We have a copy of the IPC's letter dated 25 May 2011 which is published on your website under the Ipswich Rail Chord application documents. Can you please provide us with a copy of the draft Order to which the IPC's comments relate and the letters dated 13 and 04 May which are referred to, so that we can take the IPC's views on board when considering the drafting of our draft Order?

Advice given

As you will be aware, we have already replied to point 4 in your email by way of our email and letter dated 4th August 2011. In relation to the other three points in your email, firstly we would note that the Model Provisions are not mandatory but advisory, and as such they should not applied rigidly, and secondly that the Model Provisions are due to be revoked in due course. We would also refer you to s.120(5) of the Planning Act 2008, and in particular s.120(5)(a) which allows an order granting development consent to "apply, modify, or exclude a statutory provision which relates to any matter for which provision may be made in the order". Where it is proposed to follow this approach or otherwise depart from the Model Provisions then this should be fully explained in your Explanatory Memorandum.

In relation to your specific queries we would reply as follows:-

  1. We presume that you are actually referring to article 8 (street works) rather than article 5 of the Model Provisions. In any event, we would agree with the interpretation of the New Roads and Street Works Act 1991 (the 1991 Act) set out in your email. With regards the footnote, as you will be aware the Model Provisions were drafted by central Government, and we are therefore making enquires of the relevant Departments to ascertain the provenance of this wording. We will provide further s.51 advice on this point just as soon as we are able to clarify this matter.

  2. You will note from the definition of 'major highway works' in s.86(3) of the 1991 Act that these mean "..works....executed by a highway authority.." and that under s.91(2) 'major transport works' means "..substantial works required for the purpose of a transport undertaking...". A 'transport undertaking' is defined in s.91(1)(b) as meaning (inter alia) a railway undertaking of which the activities, or some of the activities, are carried out under statutory authority.

In the case of a DCO authorising the construction of a railway it is likely that such major highway works would be carried out by the developer, generally a 'transport undertaking', authorised by the DCO rather than by a highway authority. Article 12 of the Railway Model Provisions provides for such works to be authorised by a DCO by in effect modifying the 1991 Act so as to treat 'major highway works' as if they were 'major transport works' being carried out by the developer. If Article 12 from the Railway Model Provisions was to be included unmodified in your draft DCO you would though need to be satisfied that your client is a 'transport undertaking' as defined in s.91(1)(b) of the 1991 Act.

  1. If it is proposed under a draft DCO to stop-up a private street, then yes the private right of way might need to be compulsorily acquired if the agreement of the owners and occupiers of the land had not been obtained by the time the application for development consent is submitted or if such agreement might not be forthcoming during the examination of the application. In those circumstances it would be necessary to include compulsory acquisition provisions in the draft DCO in addition to incorporating the provisions of either article 9 or 11 (stopping up) of the general or railway Model Provisions, and for the relevant application documents relating to compulsory acquisition to be submitted with the application.

If an alternative private street is proposed, then yes this may potentially make a difference. For example, if the substitution of an alternative private street for that proposed to be stopped-up is agreed with the owners and occupiers of the land prior to the application being submitted, then compulsory acquisition powers may not need to be included in the draft DCO.

In any event, a full explanation as to why particular model provisions have been included in, excluded from or modified in the draft DCO should be given in your Explanatory Memorandum.