UK: Analysis Of Planning Act Project Thresholds (2)

Last Updated: 26 September 2012
Article by Angus Walker

Today's entry looks at the current Planning Act thresholds for transport projects.

A previous blog entry examined the thresholds by which seven types of energy project are considered to be nationally significant and must therefore use the Planning Act regime to be authorised. Today's entry looks at  the five transport thresholds.  The thresholds are to be reviewed by the government (no further details yet), which has promoted this analysis.

Highways

Complexity *****
Height *
Ignorance *****

The threshold for highways is without a doubt the most complex, and partly as a result of this, the least well known.  It also potentially applies to a large number of projects.  But that's not necessarily a bad thing!

There are effectively four sub-categories, two of which are fairly simple and two of which are more complicated.  First, you need to know what a highway for which the Secretary of State is the highway authority - these are motorways and trunk roads, which the Highways Agency looks after on the Secretary of State's behalf.  I'll call them 'SoS highways' here.  Note that a 'highway' can be anything with a public right of way along it, not just the vehicular roads that spring to mind: indeed during the passage of the Planning Bill the government suggested that a footpath might in some circumstances be deemed nationally significant.

The first simple threshold is if you are building a new highway and it will be an SoS highway. A slip road might be caught, so even this is quite a low threshold.   The second simple one is if you are improving an SoS highway and the improvement is such that you need environmental impact assessment (EIA) for it.  Having the mindset 'well, it's within the existing highway boundary' is not sufficient, it might still need EIA and be within the Planning Act regime - who owns the land is not relevant.

The first complicated one is if you are building a new highway and it isn't going to be an SoS highway itself, but it is being built 'for a purpose connected with' an SoS highway.  I have thought long and hard about that test.  If the highway will physically connect to an SoS highway, does that mean it is necessarily being built for a purpose connected with that highway?  Maybe, maybe not.  If it isn't phyisically connecting with an SoS highway, does that mean it can't be being built for a purpose connected with one?  It may still be, if it is providing indirect access or congestion relief.

Finally, the 'alteration' of a highway.  Again we've got this 'purpose' test, but this time the highway alteration must be being done by or on behalf of the SoS, which is more restrictive than the construction threshold. 'Helpfully', the interpretation section of the Act says "alteration", in relation to a highway, includes' stopping up the highway or diverting, improving, raising or lowering it'. Improving it! That really gets you going round in circles.

Quirky point: improving and altering highways is only for ones 'wholly in England', so arguably doing a bit of work to the M4 or A1 near London isn't caught, because those highways extend to Wales and Scotland respectively.  I suspect that is an unintended consequence of the definition.

Airports

Complexity **
Height *****
Ignorance **

The threshold for this is a very high 10 million passengers a year for a new airport or an extension of that size to an existing one.  There is an alternative high freight figure as well.  Given that only four UK airports catered for that many passengers in 2011 (LHR, LGW, MAN and STN), this would really only apply to a new runway at one of those, one of the next few on the list, or a large new airport.  One quirk is that a restriction on numbers being lifted could count towards the capacity, without anything being built.  This happened at Stansted three years ago: the limit on passengers was raised from 25m to 35m, which had it happened post-March 2010 would have been an NSIP by one passenger.

A new terminal 2 is being built at Heathrow to increase capacity by 10 million, but the previous terminal was operating at 'over capacity'.  I'm not sure how you calculate the capacity increase in that situation, but it does show that a terminal expansion might trigger the threshold without a runway expansion - presumably it depends on what the main bottleneck is that currently restricts capacity.

Harbours

Complexity ***
Height ****
Ignorance *

The harbours threshold is all about cargo throughput and is calculated on the basis of containers, roll-on roll-off vehicles, tonnage of loose cargo, or a combination of these (e.g. half the threshold for containers plus half the threshold for loose cargo).  It doesn't include passengers, so you can build as large a ferry terminal as you like without being an NSIP (unless you count passengers as loose cargo and weigh them, I suppose).

Railways

Complexity ***
Height **
Ignorance **

The railway threshold is fairly simple, fairly low and fairly well-known, but is the only one that the government pledged to review before the current review was announced.  The rule is whether railway works can rely on 'permitted development' rights or not.  That is simple, but doesn't bear much relation to national significance, since it depends on where some engineers drew a line on a map in about 1846.  Stay within the limits of the original railway and you are insignificant, stray outside and you are vital to the nation.

The complexity is higher because it hasn't really been nailed down what a 'railway' is yet.  A railway is defined as 'a system of transport employing parallel rails ...' and one word in that causes uncertainty: 'system'.  Does the system include stations, bridges etc.?  A railway wouldn't be much good without stations.  But if a new Starbucks at a station needs planning permission, does that make it a nationally significant infrastructure project?  It shouldn't, certainly, but it might, legally.

Rail freight

Complexity ***
Height ****
Ignorance ***

The final transport category is for strategic rail freight interchanges (SRFIs).  The threshold is multi-limbed, but the main criterion is area - the terminal must cover at least 60ha - that's just under 150 acres in old money.  It's not entirely clear what counts as contributing to that area, and there has been some dispute about it.  Should offsite mitigation be included, or just the main site, for example?

The provision of SRFIs in the south east is a bit of a dog's breakfast consisting of a hot potato at the moment. The saga of the Radlett SRFI near St Albans took another turn last week where a third inquiry into it was ordered to take place by Eric Pickles, to be combined with an inquiry into the Slough SRFI.  The former is around 120ha but was applied for before the March 2010 Planning Act switch-on, and the red line boundary for the latter is 58.5ha.  The latter's availability as an alternative to the former was the main reason for the former's refusal, but the latter has been refused as well.  Perhaps if both applications - even now - were re-started under the Planning Act regime they might still take less time to be decided.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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