Final highway and railway threshold changes announced

From 18 December 2012 to 22 January 2013 (rather a short, Christmas and New Year-filled period) the government consulted on raising the thresholds for highway and railway projects to be considered nationally significant infrastructure projects and thus required to use the Planning Act regime for authorisation.  The consultation document can be found here.

Yesterday the government laid the statuory instrument that will bring about the changes.  As it must undergo the 'affirmative' procedure, i.e. be positively endorsed by both Houses of Parliament, it is not expected to come into force until late July, a month later than envisaged in the consultation document.  A month late is good going for the DfT - the 'national networks' National Policy Statement is 42 months late and counting ...

The order is not yet on the Internet, but I will include a link when it is, and I can supply a copy This email address is being protected from spambots. You need JavaScript enabled to view it. until then.

Railway threshold

The new railway threshold will be almost the same as that as consulted upon: if the amount of new railway includes at least 2km outside the railway boundary (i.e. the limits of deviation in the original, usually Victorian, Act authorising the railway) then it must use the Planning Act, otherwise it shouldn't.

There is a new qualification, though - the 2km must be outside operation railway land, unless the land concerned was acquired for the purpose of carrying out the construction or alteration in question. 

Highway threshold

The whole of the highway threshold section in the Planning Act is to be substituted with a new section. All local authority highways are taken out of the Planning Act regime altogether.  The highways that are left in are therefore new, altered or improved motorways or trunk roads.

Alterations of motorways or trunk roads are further exempted in two cases:

• if a developer has asked for the alteration for a development that has planning permission that makes the alteration necessary, or
• if a local highway authority has asked for the alteration for local highway works that have already got certain orders under the Highways Act 1980 and the alteration is necessary for the works.

As in the consultation, development already consented not more than seven years ago that needs a further Highways Act order does not need to use the Planning Act.

For improvements, the threshold remains that if they trigger environmental impact assessment then they must use the Planning Act, otherwise not.

For alterations not caught by the exemptions and for new highways, a new area threshold is introduced.  If the highway is or is to be a motorway, then the development must take up at least 15 hectares, if the speed limit will be at least 50mph then it must take up 12.5 hectares, if lower then the limit is 7.5 hectares.  The last limit is a bit lower than that suggested during the consultation, whcih was 10 hectares.

What counts as the area is clarified (it was not set out in the consultation).  It is not just the area to be occupied by the highway itself, but also 'any adjoining land expected to be used in connection with its construction' (or alteration).

Transitional provisions

For applications that have already been made by the time the order comes into force, they 'must' continue to use the Planning Act regime.  Other projects that have taken some steps short of an application by then do not automatically continue to use the Planning Act, but the route is always open to them to apply to be 'upgraded' under section 35 of the Act.

Analysis

The changes are not greatly different from those proposed during the consultation.  I have spotted three differences:

• one must look at the purpose for which operational railway land was acquired before deciding whether it counts as being outside the scope of the Act;
• sub-50mph highways need only take up 7.5 hectares rather than 10 hectares, and
• alterations to highways occasioned by local highway works that have already been consented are now to be exempted.

The changes do not completely remove local authority interest from the regime, since local authorities may wish to procure or sponsor new or altered trunk roads or motorways in their areas.

Although the drafting in the order is clear, there are still one or two questions that remain that only practical experience of the regime will tease out. Is land to be landscaped to mitigate the effects of a highway 'used in connection with its construction', for example?