Advice to George Bathurst
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- From
- George Bathurst
- Date advice given
- 20 March 2014
- Enquiry type
Advice on whether Windsor Link Railway project is likely to qualify as a Nationally Significant Infrastructure Project (NSIP).
Advice given
Following your correspondence in respect of the Windsor Link Railway project, please see below s.51 advice on whether this project is likely to qualify as a Nationally Significant Infrastructure Project (NSIP).
Please note that at this stage, the Planning Inspectorate is unable to give a definitive answer to whether a project qualifies as an NSIP, this being in the first instance a matter for the applicant to decide having sought their own legal advice if necessary, and ultimately a matter for the Secretary of State (SoS) to determine and the Courts.
Railways
With regards to potential rail schemes, we would refer you sub-section 14(1)(k) and to the relevant thresholds of a NSIP under section 25 of the Planning Act 2008 (as amended) (the PA 2008). In the first instance it is for the applicant to decide whether the project falls within the criteria set out in section 25 of the PA 2008.
In coming to such a decision all the relevant criteria and thresholds in either s.25(1) or s.25(2) would need to be satisfied in order to conclude that the project is an NSIP. If development is (or forms part of) an NSIP then the applicant would be required to seek development consent under the PA 2008 (see section 31 PA 2008).
From the information provided to date there are a number of criteria which do not appear to be satisfied, and the applicant is advised to consider the following points in deciding whether this project constitutes one or more NSIPs:
• To what extent, if at all, some or all of these proposed works could be carried out as permitted development (PD). Network Rail (NR) enjoy extensive PD rights, and whilst it appears that NR would not be the applicant in this case, it's not clear what their involvement (if any) would be.
• Whether what is proposed would amount to laying (or constructing) a continuous length of track of more than 2km. This criterion applies equally to either the construction or alteration of a railway.
• Whether at least part of the proposed works could be carried out on railway operational land. Note s.25(1)(ba)(ii) and s.25(2A), which allow construction or alteration of a railway on railway operational land, without obtaining an order granting development consent, if that land was acquired for the purpose of that construction or alteration.
From the information provided to date we are also not clear to what extent the works comprise alterations to rather than construction of a railway, and the reasons for coming to this view.
Highways
With regards to the highways elements of the scheme and consideration of whether these may comprise part of an NSIP or a separate NSIP, we would refer you to s.14(1)(h) and the relevant thresholds of a NSIP under section 22 of the PA 2008. If development is (or forms part of) an NSIP then the applicant would be required to seek development consent under the PA 2008 (see section 31 PA 2008).
In deciding whether an order granting development consent is required for the highways element of the scheme the applicant is advised to consider the following points:
• Whether what is being proposed constitutes an improvement to rather than an alteration or construction of a highway(s) or a combination of two or more of those. This will determine which thresholds are applicable to the project. • Whether the Secretary of State will be the highway authority for the highway. • In the case of construction or alteration, whether the highway/s exceeds the area thresholds specified for motorways, roads where the speed limit exceeds 50mph, and any other highways. • In the case of highways where the works comprise improvements, whether the improvement is likely to have a significant effect on the environment. Associated development
Should the applicant decide that any of the railways and/or highways elements of the works described do constitute development for which development consent is required it should be noted that in addition to the development for which development consent is required, consent may also be granted for associated development. It is for the applicant to consider whether any of the proposed development would comprise associated development in accordance with s.115(2) PA 2008, having regard to the relevant DCLG guidance.
Other matters
The current description is of two phases of development, which implies that these are two parts of the same project, whereas it would appear that what is being proposed could potentially be multiple projects which may or may not be carried out on a phased basis. Hence, what is proposed could constitute two or more NSIPs. The applicant may wish to note that it is possible for 2 or more NSIPs to be included in a single application for an order granting development consent, provided that those projects are progressed in parallel, and are thus able to be included in the same application. The applicant will need to consider all of the relevant criteria under Sections 25 and 22 of the PA 2008 for each NSIP.
Given the above, how the applicant describes and consults on the project(s) would be a key consideration for the SoS when deciding whether or not to accept any application(s) for development consent that may be forthcoming, and the applicant is therefore advised to consider carefully how the project(s) are described and consulted upon.
If, having considered the relevant thresholds in the PA2008, the applicant concludes that none of the development being proposed constitutes an NSIP(s), the developer may consider the option of seeking a Direction under s.35 PA2008 from the SoS for Transport so that this development is treated as development for which development consent is required.
The works described include related residential development. Residential development could not be included under sections 22 or 25 of the PA 2008, nor could it be included if the developer was to seek a Direction from the SoS under s.35, even on the basis of it being a business or commercial project. Consent for any residential development would therefore need to be sought separately from the relevant local planning authorities.
From the information provided to date it’s not clear to us how readily the housing and non-housing elements of "phase 1" could be physically separated from each other for consenting purposes. If this proves to be possible, careful consideration would need to be given so as to ensure that the NSIP and residential elements of the overall scheme are clearly distinguished when describing and consulting on any proposed applications.
If the projects were to be separated out, and either or both elements were EIA development, any cumulative effects would need to be assessed in the relevant EIA(s) and reported on in the respective ES(s).
Possible next steps
We hope that the above advice is useful. Having considered the above, you might consider it helpful to meet to discuss these matters further. In any event, it would be necessary to receive additional information from you before any further s.51 advice could be given about whether these proposals might constitute NSIP(s).