Advice to Peel Holdings
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- From
- Peel Holdings
- Date advice given
- 17 September 2013
- Enquiry type
REF: WESTERN GATEWAY INFRASTRUCTURE SCHEME
I am writing on behalf of Peel Holdings regarding the delivery of the Western Gateway Infrastructure Scheme, (“WGIS”). I am the Transport Consultant for Peel on the project. We have been given the links to your email address by the Highways Agency.
WGIS received planning consent in 2009, together with the related Port Salford, (tri-modal inland freight interchange on the Manchester Ship Canal). Planning conditions connect the opening of Port Salford to the delivery of WGIS.
This delivery is proceeding, in collaboration with the Highways Agency, Salford City Council, Trafford Council and Transport for Greater Manchester.
WGIS is the National Infrastructure Plan, (Section 2.15). It is being part funded by the Regional Growth Fund.
WGIS will be delivered in two phases. Contractors have been appointed for the first phase for which construction will commence in Spring 2013, taking approximately 14 months to complete. This enables a portion of Port Salford to open.
The second phase includes the closure of sliproads on the M60, requiring some form of Orders to be obtained. This phase of WGIS also ‘dovetails’ with the Agency’s Managed Motorway Scheme for this section of the M60, which is due to commence construction in Q4 2013. In discussions with the Highways Agency, there is not a clear understanding, (by both parties), on the best way forward to achieve these ‘Orders’ given the several procedural changes that have recently occurred and, from what we are told, will be occurring in the near future.
The purpose of this email is to ascertain a contact name in PINS who we, with the Highways Agency, could meet early in the New Year to discuss all the issues more thoroughly and for PINS then to provide advice on how to proceed.
(Meeting note and additional information recieved by the Planning Inspectortate attached)
Advice given
Please note that this response does not constitute legal advice on which you can rely and you are strongly advised to seek your own legal advice on this issue.
You obtained planning permission for the development on 16 July 2009 reference 03/47344/EIAHYB. The permission is subject to the following condition:
- Unless otherwise agreed in writing by the LPA in consultation with the Highways Agency no development beyond 50% of the Rail Link Warehousing (77,250sq.m) and the full Multi Modal Terminal pursuant to this planning permission shall be commenced unless and until:
b. The highways order necessary under the Highways Act required for the mitigating highway works as identified in Plan C namely
i. the closure of the M60 Junction 11 southbound on slip
ii. the closure of the M60 Junction 11 northbound off slip
iii. the closure of the M60 junction 11 southbound off slip
have been confirmed.
In March 2012 you applied to vary or remove a number of conditions attached to permission 03/47344/EIAHYB. This resulted in the grant of a new planning permission on the 5 July 2012 reference 12/61611/EIAHYB. This permission was subject to the same condition 11.
The orders required to comply with condition 11 are probably orders under s.18 Highways Act 1980 (HA) (although please note that we have not had the benefit of considering Plan C referred to in condition 11 or the application documents in reaching this conclusion and we strongly advise that you seek the views of the Local Planning Authority, the Highways Authority and your legal team as to the applicable orders).
S.18 (1) provides that:
(1) Provision in relation to a special road may be made by an order under this section for any of the following purposes:—
(c) for authorising the special road authority—
(i) to stop up, divert, improve, raise, lower or otherwise alter a highway that crosses or enters the route of the special road or is or will be otherwise affected by the construction or improvement of the special road;
If you develop beyond 50% of the Rail Link Warehousing and develop the full Multi Modal Terminal without the orders or equivalent authorisation as required by condition 11 you will be in breach of the condition of your planning permission and the Local Planning Authority could take enforcement action.
s.33(4) Planning Act 2008 (PA) states that:
If development consent is required for the construction improvement or alteration of a highway none of the following may be made or confirmed in relation to the highway or in connection with the construction improvement or alteration of the highways
– (d) an order under s.18 of the Highways Act 1980.
This is now reflected in the HA at s.18 (1A) which states:
Subsection (1) is subject to section 33(4) of the Planning Act 2008 (exclusion of powers to make or confirm orders in relation to highways for which development consent required).
s.31 PA states that development consent is required for development to the extent that the development is or forms part of a NSIP
The Planning Act 2008 (Commencement No.4 and Saving) Order 2010/101 states that provisions 31 - 35 came into effect on the 1 March 2013 subject to the saving provision which provides that the provisions of the Act brought into force by then shall have no effect in relation to an application made before 1 March 2010 for any such consent or authorisation as is mentioned in section 33 of the Act (effect of requirement for development consent on other consent regimes).
Your application for planning permission was made before the 1 March 2010. This means that the provisions of the PA do not apply to that application and development consent is not required for the development for which permission was applied for in your application.
You did not make an application for consent for orders under s.18 HA before 1 March 2010 and I assume from your e-mails that one has not yet been made. As detailed above s.33(4) prohibits these orders being made under the HA where development consent is required.
Interpretation of legislation is for the Courts. It is for you to decide, having taken your own legal advice, how and on what basis to proceed and then to justify your approach. If you consider that s.33 PA means that you can only get authorisation to stop up the motorway slip roads by applying under the PA then you will need to make an application to us for development consent. Alternatively, if you consider that development consent is not required and the PA does not apply, you will need to apply for orders under the HA. You may wish to approach the Highways Agency to discuss this.
In your e-mail you also refer to a proposed additional motorway slip road.
S.22(2)PA as amended by the Highway and Railway (Nationally Significant Infrastructure Project) Order 2013 provides that the construction of a highway which is wholly in England for which the Secretary of State will be the highway authority and the area of development is greater that the relevant limits will be an NSIP. In relation to the construction of a motorway the area of development is 15 hectares (22(4)(a)). Area of development in relation to the construction of a highway means the land on which the highway is to be constructed and any adjoining land expected to be used in connection with its construction(22(9)(a)).
If the area for development of the proposed slip road is more than 15 hectares the development will be an NSIP and you will have to apply for development consent in accordance with the PA. If the area for development is less than 15 hectares the development is not an NSIP and you can obtain planning permission by applying to the LPA. If the development is an NSIP and you apply for development consent under the PA you will not need a scheme under s.16 HA (schemes authorising the provision of special roads) or an order under s.18 HA (in fact you are prohibited from getting these) as the development consent order will authorise the works. If the development is not an NSIP you may need orders under the HA to authorise the works and you will be able to apply for this in accordance with the HA if required. As stated above you should seek your own legal advice on this issue.