Advice to Catharine Symington

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Enquiry

From
Catharine Symington
Date advice given
15 June 2011
Enquiry type
Email

We are advising a client who is contemplating the implementation of a railway scheme which would require the doubling of a length of existing railway and the reinstatement of a section of disused railway alignment, which we are advised is still “operational” and hence may retain permitted development rights. There is some uncertainty about the application of the Planning Act 2008 with regard to this scheme and we would welcome your advice.

The Planning Act 2008 states that the construction of a railway is an Nationally Significant Infrastructure Project (NSIP) “only if -- the construction of the railway is not permitted development” (s25(1)(c) of the Act). This could be interpreted in a number of ways;

a) The scheme is an NSIP only if the whole railway is not permitted development, meaning that if any part of the railway is permitted development, then the scheme as a whole is not an NSIP. Under this interpretation the scheme would be implemented using permitted development rights where these exist and a TWA Order in other areas (or a TWA Order for the complete scheme).

b) The Act could be interpreted to mean that if only a part of the railway is permitted development, then the whole railway scheme can still be considered as an NSIP. In this case a Development Consent Order (DCO) will be required for the complete scheme irrespective of the fact that parts of it are permitted development.

c) The scheme should be divided into sections; those that are permitted development and those that are not. The latter would be regarded as NSIPs and would be authorised by means of a DCO.

We would be grateful if you could advise which of the above interpretations is correct. We would be happy to meet with you to discuss this in further detail should this be helpful.

Advice given

Firstly I should inform you that the IPC cannot advise on the merits of applications for development consent orders (DCOs) or proposed such applications, give legal advice nor interpret legislation as the latter is a matter for the courts.

Specifically we cannot advise on whether a proposal constitutes a Nationally Significant Infrastructure Project (NSIP) requiring development consent. It is for developers to take their own legal advice upon which they can rely. For further information on the IPC's policy on giving Section 51 advice please visit our website at http://infrastructure.independent.gov.uk/wp-content/uploads/2010/03/Policy-on-s.51-advice-giving.pdf

Whether something is or forms part of an NSIP depends on whether the development concerned falls within the definitions in s.14-30 of the Planning Act 2008 (PA 2008) and this will depend on the facts. In this case s. 25 will also need to be considered and the conditions met if the railway scheme is to fall within s.14.

If the proposed development does fall within s.14 of the PA 2008 then s.31 of PA 2008 applies, i.e. development which is or forms part of an NSIP requires development consent.

If all works relating to a proposal can be carried out using permitted development rights under Parts 11 and 17 of the Town and Country Planning (General Permitted Development) Order 1995, an Order granting development consent would not be required.

However, if there are no permitted development rights available then express consent would need to be sought either under PA 2008 if the project falls within the conditions set out in PA 2008 or the Transport and Works Act 1992 (TWA 1992) if the conditions of PA 2008 are not met.

Schedule 2 of PA 2008 amends TWA 1992 as follows:

  1. In section 1 (orders as to railways, tramways etc) after subsection (1) insert –

“(1A) subsection 1 is subject to –

(a) section 33(2) of the Planning Act 2008 (exclusion of powers to authorise development);

(b) section 120(9) of that Act (exclusion of power to include ancillary provision in orders)”

S.33(2) of PA 2008 sets out that “to the extent that development consent is required for development the development may not be authorised by any of the following –

(c) An order under section 1 or 3 of the Transport and Works Act 1992”

S.120 of PA 2008 sets out what may be included in an order granting development consent and includes under subsection (9) “to the extent that provision for or relating to a matter may be included in an order granting development consent, none of the following may include any such provision –

(c) An order under section 1 or 3 of the Transport and Works Act 1992”.