944: Unsuccessful section 35 directions, and a road scheme in the South East

Today’s entry reports on a number of unsuccessful applications for directions under section 35 of the Planning Act 2008, and a CPO decision for the South East Aylesbury Link Road.

You’re just not that (nationally) significant

Section 35 of the Planning Act 2008 sets out the process by which projects which do not meet the thresholds of a nationally significant infrastructure project are directed into the DCO regime. We have previously commented on an absurdity that these projects are not considered ‘nationally significant infrastructure projects’ but are ‘projects of national significance’; however we can ignore that distinction for the purposes of reviewing unsuccessful applications for directions under section 35.

I won’t name the specific projects, but by my count there are approximately half a dozen failed section 35 directions. Some of them are quite public affairs (eg Stansted Airport), others not so much. The projects are as varied as motorway service areas or local authority highways projects, and scientific research or energy parks.

For background, the Secretary of State may only make a direction under section 35 where the project is in the field of energy, transport, water, waste water or waste, or it is a business or commercial project of a prescribed description. The prescribed descriptions are contained in the Infrastructure Planning (Business or Commercial Projects) Regulations 2013 – effectively projects have to be ‘wholly or mainly’ used for things like tourism, office use, research, sport etc.

There is also a policy statement for business and commercial projects (not a ‘national policy statement’) which refers to matters which are relevant (eg, whether the project is in the area of more than one local authority; substantial physical size). That policy statement is often referred to.

Here are just a couple of lessons that emerge from the unsuccessful decisions:

1. Scope of application –  one application had part of their proposed project disregarded because the Secretaries of State considered that the element of the project (a greenhouse) did not fall within the terms of the regulation stating that ‘the primary activity of the facility (namely crop production/ agriculture) does not fall within the 2013 Regulations’. Another motorway service area application was not a project ‘in the field of.. transport’ because the purpose was commercial;
2. Evidence base – where the Secretary of State has concluded a project fell within the scope of section 35, they have relied heavily on the failure to produce sufficient and robust evidence to show significant economic gains from a potential project. Similarly, the failure to provide sufficient certainty about the use of sites has also been relevant – one decision records the following: ‘the submitted documentation provides no clear indication as to how the proposed uses would be distributed across the site, and little assurance that what is illustrated would come forward in anything like that form…there is some uncertainty about the precise use, occupation and operation of the buildings and facilities proposed, and how these might change as the project continues to develop’; and
3. Role of other consents –  in a number of these unsuccessful decisions, the Secretary of State is mindful of the ‘one stop shop’ nature of the Planning Act 2008 regime but this seems to be disregarded by saying that ‘consents required are not particularly unusual, numerous or complex for a proposal (or proposals) of this size and such consents could be sought separately’. This seems to be an odd statement, other consents ‘could’ always be sought for these kind of projects (that’s why they need a s35 direction!), and given the operation of section 150 the reference to ‘numerous’ consents is also somewhat less important even for fully fledged NSIPs.

South East Aylesbury Link Road CPO/SRO

We don’t often focus on Highways Act 1980 orders on this blog, but the recent decision to confirming a Compulsory Purchase and Side Road Orders for the South East Aylesbury Link Road (SEAL) has a couple of interesting points to note for DCO projects (and not just highways projects!).

The proposal involved the acquisition of open space land (Wendover Park), and like sections 131/132 of the Planning Act 2008, replacement land was being provided. The Inspector’s Report is a good example of the multiple considerations involved in assessing whether replacement land is equally advantageous. The Inspector recommended (and the Secretary of State agreed to) issuing a certificate confirming that the promoter’s acquisition of open space land could proceed.

Generally it endorses the case of Greenwich LBC v Secretary of State for the Environment [1993] Env. L.R. 344 which stands for the principle that replacement open space need not be identical in all respects, and the loss of one aspect could be offset by others.

Here are some of the relevant considerations:

• the assessment of the replacement land needs to be considered against the open space actually being acquired rather than the whole site – the land to be acquired was a wedge of land with vegetation which had the effect of restricting the use of land for recreational purposes. This may sound obvious, but its something which is quite oft ignored;
• the shape of the replacement land was relevant with objectors arguing that it was ‘narrow’ (20m wide and 300m long) and therefore not capable of being used for recreational activities. Leaving aside the limitations of the existing use, the Inspector disagreed, and noted that in any event the size of the replacement land (approximately 200sqm larger than the land to be acquired) was enough to offset any impact; and
• fragmentation was not determinative – a retained hedgerow meant that the land was contiguous but not necessarily ‘continuous’ with the open space. Nonetheless, because there were some ‘gaps’ in the hedgerow this reduced the strength of this objection.

Other factors which were considered relevant enough to address were anti-social behaviour, and drainage – none of which the Inspector nor the Secretary of State considered made the replacement land less advantageous.