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Meeting with Affected local authorities Andrew Yeomanson

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Enquiry

Meeting with
Affected local authorities Andrew Yeomanson
Date of meeting
30 May 2014
Enquiry type
Meeting

Below is a record of advice issued by the Planning Inspectorate in response to questions outstanding from its meeting with local authorities on 30 April 2014.

Advice given

?Q[1]: How does the NSIP process deal with powers to work on the existing public highway and the adoption (become maintainable at public expense) of new roads built by third parties?

In the ?normal? planning application/permission process, these issues are normally dealt with in Leicestershire as follows:

? Agreement under Section 278 of the Highways Act:

In Leicestershire, we use a S278 Agreement to enable a developer?s contractor to work on a County Road as if it were acting as the Highway Authority. The Agreement provides for the contractor to work on the public highway and indemnifies the Highway Authority against any actions and costs arising from the works being undertaken. Our Agreement also provides for a range of other matters, including design approval; payment of fees; dedication of land into the highway; and indemnities against any claims arising from the completion and opening of the works, e.g. Part 1 claims. In this case, the A6 is a County Road, as is the Ashby Road and the road leading into Lockington.

Often Agreements are also required under Section 4 of the Highways Act, which gives powers for the Highways Agency to work on County Roads, and Section 6 of the Act, which gives powers for a County Highway Authority to work on a Trunk Road. In this case, the A453 is an existing Trunk Road (which is the responsibility of the Highways Agency) and the Kegworth Bypass will become (see below) a County Road.

? Agreement under Section 38 of the Highways Act:

In addition to providing for the County Authority to take on the maintenance of a new road at public expense (adoption), in Leicestershire we use a S38 agreement to provide us with a range of safeguards to ensure that the road is built to an appropriate standard and that we are able to maintain it in the future, including to provide for the payment of commuted sums. Commuted sums are payments (by the developer) to enable the Highway Authority to maintain assets that are non-usual, complex or which would otherwise impose burdens for which no other sources of funding are provided. Examples might include, structures; landscaping where it is in the Highway; non-standard items of street furniture, such as heritage lighting or bollards; and areas dedicated into the public highway that are not otherwise required for the safe and satisfactory functioning of the highway.? (Leicestershire County Council, April 2014)

Advice from the Planning Inspectorate: The PA2008 does not amend the HA1980 so as to allow s278 or s38 provisions to be included within a Development Consent Order (DCO) and there are no direct references in the PA2008 to entering into an agreement under s278 or s38 of the HA1980.

Any related s278 or s38 Agreement could however be entered into separately with the relevant highway authority in the same way as under the Town and Country Planning Act 1990 (TCPA) regime. Any such agreements should be submitted by an applicant as part of its application for development consent; or at a stage in the examination of that application agreed by the Examining Authority. If there were genuine reasons why it would not possible to provide such agreement by the end of an examination it may be possible to have an appropriately worded Grampian-type Requirement included in a DCO. For example, a requirement that the s278 or s38 agreement between the applicant and the relevant highway authority must be entered into before development could commence. I would emphasise however that Grampian-type Requirements are not generally considered desirable by Secretaries of State and every effort should be made to avoid the need for them.

Alternatively, s120 of the PA2008 allows a DCO to apply and modify legislation and allows a wide range of ancillary matters to be included in a DCO. It could therefore be possible for matters relating to such highway works normally dealt with in s278 or s38 agreements to be dealt with as a provision or as a Requirement. However, as detailed specifications and drawings may not be available at the point of application, there could be difficulties associated with this approach.

There are already several model provisions which are frequently adopted in DCO?s that grant developers certain powers to undertake works to highways. For example, granting the undertaker a power to: carry out street works (although the model provisions specifically state that this should not be used to authorise street works to a trunk road); stop up streets; construct and maintain new or altered streets; and enter into agreements with street authorities. These provisions can grant powers to work on existing highways and to ensure that it is clear who will be responsible for maintaining new or altered streets (normally the undertaker for 12 months following completion, then the relevant highway authority). These provisions do not necessarily contain the same amount of detail as agreements under the HA1980 would do and the highways authority for the road may require an undertaker to enter into separate agreements in addition to provisions in the DCO; particularly where the works relate to a trunk road.

Given the anticipated submission of the application in Q3 2014, it is recommended that the affected highways authorities prioritise reaching agreement with the applicant on the preferred method of securing provisions equivalent to ss278 and 38 of the HA1980. It would be useful if the Planning Inspectorate could be kept up to date with these discussions.

?Q[2]: How does the [nationally significant infrastructure project] NSIP process deal with the detrunking of a route?

The A50 southbound carriageway (past the hotel) is currently a Trunk Road but will become a County Road (serving the hotel and Lockington) once the works are completed.? (Leicestershire County Council, April 2014)

Advice from the Planning Inspectorate: Section 120(3) of the PA2008 provides that an order granting development consent may make provision relating to, or to matters ancillary to, the development for which consent is granted. S120(4) provides that the provision that may be made under subsection (3) including in particular provision for or relating to any of the matters listed in Part 1 of Schedule 5 of the PA2008; but this is not an exhaustive list.

While it is not specifically listed in Schedule 5 (unlike the designation of a highway as a trunk road or special road); de-trunking is considered to be an ancillary matter within s120 for which provision can be made in a DCO. This could be done in a number of ways. For example, examination iterations of the A556 Knutsford to Bowden Improvement DCO secured this provision by way of including a Schedule titled ?Classification of roads etc.?; within which are specified the roads to be classified as trunk roads and special roads as well as the roads which are to be de-trunked. Note that the Knutsford to Bowden Scheme is still in the period within which the Examining Authority is writing its report and recommendation to the Secretary of State for Transport, and the Order has not been made.

Q3: Can CIL be applied to development under the PA2008 regime?

Advice from the Planning Inspectorate: CIL can be applied to development authorised under the PA2008, where the charging authority has issued a Schedule, subject to the tests in the CIL Regulations. As you will be aware however, where the charging authority has issued a Schedule it retains a discretion whether or not to apply CIL to development under its jurisdiction.

S206 of the PA2008 authorises the charging authority to charge CIL in respect of development in its area. This is not limited to development under the TCPA, and Reg 5(1)(f) of the CIL Regs specifically provides that ?planning permission? for the purpose of Part 11 of the PA2008 (CIL) includes ?development consent granted by an order made under section 114(1)(a) of PA2008?.

Reg 6(2) of the CIL Regs is likely to be of particular significance in relation to NSIPs given the built elements of many such schemes might not ordinarily be frequented by people. Reg 6(2) provides that the following are not to be treated as development for the purposes of the Regulations:

?(a) a building into which people do not normally go; (b) a building into which people go only intermittently for the purpose of inspecting or maintaining fixed plant or machinery.?

In consideration of the built elements of the scheme proposed by Roxhill Ltd, it will be for the charging authority to apply the tests provided in the CIL Regs. The charging authority should also be reminded that the use of CIL will restrict the ability to enter into s106 Agreements and equally the power to rely on any Grampian-type Requirement to enter into a highway agreement (Reg 123). You will be familiar with the rationale where this ensures that where a charging authority intends to fully or partially fund infrastructure via CIL then it cannot seek a planning obligation contribution towards the same item of infrastructure.

Q4: In the context of the forthcoming general election and the anticipated timescales associated with the emerging application; what, if any, would be the implications of a change in Secretary of State in the decision period?

Advice from the Planning Inspectorate: A change of Secretary of State in the decision period should make no difference to applications progressing under the PA2008, which will continue to be determined in accordance with the National Policy Statements and other relevant guidance; unless and until any changes are made to the statute or guidance.