Advice to Parsons Brinckerhoff

Enquiry

• From: Parsons Brinckerhoff
• Date advice given: 10 September 2012
• Enquiry type: Email

Further to the Planning Inspectorate's previous advice on side road orders and compulsory acquisition relating to Nationally Significant Infrastructure Project applications under the Planning Act 2008 (as amended by the Localism Act 2011), Parsons Brinckerhoff enquired whether it is possible to include tolling provisions within a highways scheme.

Our response was by email.

Advice given

Thank you for your email enquiry.

We note in your email your interpretation that, having read our previous advice on side road orders and compulsory acquisition, a Nationally Significant Infrastructure Project (NSIP) application can include 'anything' the applicant requires for the proposed development and 'this overcomes any other procedural requirements'.

You are correct in so far as the Planning Act 2008 (as amended by the Localism Act 2011) (PA 2008) provides in general terms for a 'single consent regime', in which developers will usually only need to submit one application instead of the numerous related applications which often had to be made under the previous regimes. A developer does, however, need to carefully consider, on taking their own legal advice, which powers they consider are necessary for the development and effective operation of their proposal, and importantly, whether such powers can in each case lawfully be included in the draft Development Consent Order (DCO) submitted with their application, and if so on what basis. In this regard it should be noted that, in addition to development for which development consent is required (see s.31 and s.115(1)(a)), and any associated development (under s.115(1)(b) and s.115(2), applicants can include in their draft DCO matters that are ancillary to the development for which they are seeking consent (s.120(3) and (4)). A list of ancillary matters that can be included in draft DCOs is set out in Schedule 5 to the 2008 Act. With regards your enquiry relating to the possible inclusion of tolling provisions in a draft DCO, the provisions a developer would likely need to consider include s.120(3) and (4), as well as paragraphs 18, 32A and 32B of Schedule 5. These paragraphs, which were inserted by the Localism Act 2011, respectively allow an applicant to include in their draft DCO powers to charge tolls, fares and other charges, make and enforce byelaws that may relate to the charging of tolls, and create offences in connection with the non-payment of tolls and related matters.

I emphasise, however, that the information provided here is neither a prescriptive or exhaustive list of possible powers your client might require and, as stated above, a developer would in each case need to check the particulars of their proposed application against the requirements of legislation. I nonetheless hope that you have found this information useful.