Rail – SIMONICITY

Euston We Have A Problem

I have been commuting into Euston station for over twenty years, experiencing increasing frustration: at the past we have lost; the future that we are losing, and at the tatty and graceless perma-temp arrangement we have today.

I’m not sure that this week’s Public Affairs Committee report, HS2 Euston (7 July 2023), has yet had the attention it deserves and I’ll come back to that. But first:

The past

The beauty of transport blog is good on the subject of the original 19th century station; see Lost Beauty #9: Hardwick’s Hall (the Old Euston Station, London, UK) with these wonderful images:

It must have been quite something.

But then so was the 1968 modernist version of Euston when it opened:

This 1968 British Rail brochure gushed with excitement at the wonders of the grill room, party catering room, “high class toilets with showers and baths” and underground car park, showing no regret for the previous building that had been swept away.

Since then, the modernist lines of the new station have of course long been lost by way of multiple interventions. It’s frankly a mess. And for the last few years, as you pull into the station by rail, to the right is a swathe of HS2 construction activity. If you walk out of the station towards Euston Square, via that unsignposted corridor past the left luggage place, through the door into the between the bicycle racks area, across Melton Street you have hoardings either side as you walk past where businesses have been acquired and demolished at the eastern end of Drummond Street – this really is HS2World.

Screenshot courtesy Google

The future

HS2 was going to be the future. Just as those in the 60s were seduced by the clean lines, the white heat of technology, the chance to wipe away the inefficiencies of the past, we were seduced by the idea of high speed rail, with Euston as its southern terminus.

From the Department for Transport’s March 2010 High Speed Rail command paper (foreword by then prime minister Gordon Brown and then Secretary of State for Transport Andrew Adonis):

“… HS2 Ltd’s recommended route for a London-Birmingham high speed line (‘High Speed Two’), which would run from a rebuilt Euston station in London to a new Birmingham City Centre station at Curzon/Fazeley Street, is viable, subject to further work on reducing specific impacts on the local environment and communities.”

“…effective integration with London’s current and planned transport networks is crucial, and that this is best delivered through the combination of a Euston terminus and a Crossrail Interchange station sited between Paddington and Heathrow, which would also provide a link to the Great Western Main Line.”

“…the new British high speed rail network should be connected to the wider European high speed rail network via High Speed One and the Channel Tunnel, subject to cost and value for money. This could be achieved through either or both of a dedicated rapid transport system linking Euston and St Pancras and a direct rail link to High Speed One. HS2 Ltd will carry out further work to assess the viability and cost of each of these, including a full assessment of the business case, prior to any public consultation.”

From the coalition Government’s the Government’s January 2012 white paper, High Speed Rail: Investing in Britain’s Future – Decisions and Next Steps:

“The HS2 Y network (so named due to its shape) will provide direct high capacity, high speed links between London, Birmingham, Leeds and Manchester, with intermediate stations in the East Midlands and South Yorkshire.”

“The network will also provide improved links from the Midlands and the North to Heathrow Airport and the Channel Tunnel (via the existing High Speed 1 line). HS2 passengers will be able to travel directly to Heathrow and the Channel Tunnel without having to change trains.”

“Having reviewed the options again the Government’s conclusion remains that Euston is the right site for a London terminus, best serving passenger requirements and offering greater access to alternative onward travel networks than either Old Oak Common or Stratford. Any terminus other than Euston would offer a worse overall balance of costs and benefits.”

These aspirations weren’t properly tested. The Supreme Court held in R (HS2 Action Alliance) v Secretary of State for Transport (22 January 2014) that the white paper was not subject to any requirement for strategic environmental assessment as it was not a plan that “set the framework” for subsequent decision making. This is still one of the most disappointing litigation outcomes of my career and indeed the court’s consideration of Parliamentary sovereignty versus the effect of EU Directives was a forerunner of much of the subsequent debate over Brexit. I’m not sure that Parliamentary sovereignty has helped us achieve a good outcome on HS2…

I re-read yesterday the House of Commons second reading debate (28 April 2014) in relation to what was at that point the High Speed Rail (London–West Midlands) Bill (short title: “A Bill to make provision for a railway between Euston in London and a junction with the West Coast Main Line at Handsacre in Staffordshire, with a spur from Old Oak Common in the London Borough of Hammersmith and Fulham to a junction with the Channel Tunnel Rail Link at York Way in the London Borough of Islington and a spur from Water Orton in Warwickshire to Curzon Street in Birmingham; and for connected purposes.”) . Patrick McLoughlin (now Lord McLoughlin) was Secretary of State for Transport:

“…it is time to connect great cities such as Birmingham, Manchester, Sheffield and Leeds. It is time for better links between north and south and between east and west, and time to connect to world markets to make the most of their skills and talents. It is time for HS2; time for a new north-south railway line.”

With the benefit of hindsight, the two “on the money” contributions to the debate were from MPs from different sides of the political divide, now both sadly deceased, but both superb representatives of their constituents and true Parliamentarians:

Cheryl Gillan, then Conservative MP for Chesham and Amersham, focused on the implications of the choices as to route and extent of tunnelling for the Chilterns area of outstanding beauty, alternative horizontal and vertical alignments having been rejected for reasons which in my view would not have stood up to proper independent scrutiny (I’ve already mentioned the lack of strategic environment assessment at the white paper stage; the other issue was the Select Committee process for testing the detailed proposals in the Bill – see my 30 July 2016 blog post, HS2: The Very Select Committee)

Frank Dobson, then Labour MP for Holborn and St Pancras, focused on the implications for the area surrounding Euston station:

“I should point out the ridiculous situation whereby the hybrid Bill before the House proposes major works in my constituency, none of which the Government now intend to carry out. The Bill also provides for a link from HS2 to HS1. That ridiculous proposal has been abandoned altogether. The Bill provides for the option 8 design of the station at Euston. That ridiculous proposal, we are told, is shortly to be abandoned, but the design, cost and construction timetable for the alternative to it have not yet been worked out, so there’s nowt to vote on.

The neighbourhoods to the east and west of Euston station and its railway approaches are densely populated with a variety of uses. Most of the streets are overwhelmingly residential. They are home to large numbers of residents living in high densities in settled and varied communities, with a wide range of incomes, housing tenures, jobs, ethnic origins and religions. Most of those residents want to continue to live there. They rightly resent patronising references to their neighbourhood by the much lauded chair of HS2 Ltd and have asked me to remind him and everyone else that where they live is not like the Olympic site. It is not a brownfield site, ripe for redevelopment.

The HS2 project as now proposed would wreak havoc on those neighbourhoods. It would expand Euston station by 75 metres to the west, demolish the homes of 500 people and subject 5,000 more to living for a decade next to the construction site or beside roads that will be made intolerable by the heavy goods vehicles servicing the main site and the 14 satellite construction compounds. No consideration has been given to the cumulative harm that all this would do to the quality of life of my constituents. The proposed working hours regime enables work to proceed at any hour of the day or night. Every little park and play space near the site is to be taken over. Small, locally owned and locally staffed businesses, especially cafes, shops and restaurants in Drummond street, face financial disaster. Between 40% and 70% of their business is passing trade from pedestrians going to and from Euston station, which, for the duration of the works—10 years—will be cut off by a solid, 3.6 metre-high security fence.

The people I represent believe that HS2 should not go ahead. Failing that, they believe that HS2 should terminate at Old Oak Common, at least temporarily, to test its capacity and permit the assessment of any capacity needed at Euston to be based on experience rather than the guesswork used so far.”

Of course the Bill was passed in due course. There have been successive plans unveiled for Euston Station and then effectively abandoned:

Department for Transport’s press statement, HS2 plans can unlock Euston potential (8 September 2015) unveiled Grimshaws’ “pringle” design.

Updated plans were then unveiled in March 2022 of a revised concept design by a design consortium made up of Arup, WSP, Grimshaw Architects, Haptic, and LDA Design, alongside HS2’s Station Construction Partner, Mace Dragados JV.

Despite nearly all of the disruption feared by Frank Dobson already having been caused by the construction works around Euston that are now well underway, Mark Harper, current Secretary of State for Transport, released a press statement on 9 March 2023, pausing new construction work at Euston for two years:

“The Government is prioritising HS2’s initial services between Old Oak Common in London and Birmingham Curzon Street to provide delivery of passenger benefits as soon as possible. We remain committed to delivering HS2 services to Euston, and will address affordability pressures to ensure the overall spending profile is manageable. We will therefore take the time to ensure we have an affordable and deliverable station design, delivering Euston alongside high-speed infrastructure to Manchester.”

There was then Transport minister Huw Merriman’s written statement on HS2 (19 June 2023)

“We remain committed to delivering HS2 services to Euston. We have decided not to proceed with construction at Euston over the next 2 years both to reduce expenditure during that period and to address the affordability challenge set out in the recent National Audit Office report. We will use this time to develop a more affordable scheme design that delivers for passengers, the local community and taxpayers.

The government will not be proceeding to construction on Phase 2a (West Midlands to Crewe) in the next 2 years to reduce expenditure. We will use the time to develop mature designs and delivery approaches to ensure that this section is delivered in the most cost-effective way.”

“As reported in the recent National Audit Office report on Euston, the latest proposed target price from the construction partner (Mace Dragados joint venture) is £4.8 billion – around £2.2 billion over HS2 Ltd’s budget and a higher cost than the previous design.

I visited the Euston site on 5 April 2023 and saw for myself the challenges of constructing a complex station in a dense urban environment that will integrate with the existing conventional station and London Underground and local transport, as well as enabling oversite development.

Nonetheless, the station is not affordable at this cost, nor in any case, does the government have the financial headroom to proceed with the construction over the next 2 years. We will, therefore, use the time to look again at the Euston station design to ensure it delivers for passengers, the local community and taxpayers. This will include considering how we might partner with the private sector to capture benefits for customers. It will require careful prioritisation of requirements and a willingness from stakeholders to compromise.”

It’s way over budget and they don’t know how to build it. And what delay do we think “two years” will turn into? Bodes well doesn’t it?

Which takes us to yesterday’s excoriating Public Accounts Committee’s report, HS2 Euston (7 July 2023).

Its summary:

“Despite being eight years into planning the High Speed 2 station at Euston, the Department for Transport (the Department) still does not know what it is trying to achieve with the station and what sort of regeneration it will support. It is clear now that the £2.6 billion budget HS2 Ltd set for the project was completely unrealistic, even before the impacts of inflation are considered. The Department will now need to reset the project for a second time in order to find a design that is realistic, affordable and provides value for money.

The Department does not know what the additional costs and impacts will be from its decision to pause construction at the station for two years. Working alongside HS2 Ltd, it now has a big task to identify what these costs and impacts are, including the impact on the supply chain and on local residents. It is essential for the Department to collect this information both to help it and HS2 Ltd manage the additional costs effectively and also to better inform any decisions in the future on whether to pause major projects.

Disappointingly, HS2 Euston station is yet another example of the Department making the same mistakes and failing to learn lessons from its management of other major rail programmes. Parliament has also not had the full transparency it needed on the likelihood of cost increases at Euston, despite the improvements the Department and HS2 Ltd have made in reporting on progress.”

My 27 November 2021 blog post Integrated Rail Plan, Unplanned? covered the downgrading of proposals to the north.

In the words of Johnny Rotten, ever get the feeling you’ve been cheated? This tax paying Euston commuter does.

Simon Ricketts, 8 July 2023

Personal views, et cetera

Needs, Damned Needs & Logistics

Will the Government’s proposed planning reforms help bring forward more logistics floorspace, for which there is an acknowledged and unmet need? We’ve been talking about the housing crisis (now apparently – wrongly – seen by Michael Gove as a “not enough home-owners” crisis) for so long now but what about the need for other land uses? Logistics (warehousing and distribution in old money) is a prime example. It has to be accommodated in the wider public interest – unless we are going to change radically our economy, life style expectations and the way in which we source much of our food and other products – but has locational constraints and the need is not necessarily “local”. How do we make sure that deliverable sites are allocated or can otherwise come forward?

Land-hungry as it can be, and sometimes competing for sites which might otherwise be released for residential development (meaning that clear policy guidance is particularly important), there are various reasons why more “big box” and “last mile” logistics space is needed. For instance:

⁃ the structural change in shopping patterns, with a huge move, accelerated by the pandemic, towards on-line retail.

⁃ the drive on the part of operators towards more efficient, better located and sustainable modern facilities – ideally rail-connected, certainly increasingly automated.

⁃ Post-B****t changes in delivery networks and the urgent need for more resilient supply chains, demonstrated by recent temporary product shortages

⁃ the Government’s freeports agenda.

The NPPF currently says this:

“Planning policies should:

a) set out a clear economic vision and strategy which positively and proactively encourages sustainable economic growth, having regard to Local Industrial Strategies and other local policies for economic development and regeneration;

b) set criteria, or identify strategic sites, for local and inward investment to match the strategy and to meet anticipated needs over the plan period;

c) seek to address potential barriers to investment, such as inadequate infrastructure, services or housing, or a poor environment; and

d) be flexible enough to accommodate needs not anticipated in the plan, allow for new and flexible working practices (such as live-work accommodation), and to enable a rapid response to changes in economic circumstances.” (paragraph 82).

The Government’s planning practice guidance is more specific:

“How can authorities assess need and allocate space for logistics?

The logistics industry plays a critical role in enabling an efficient, sustainable and effective supply of goods for consumers and businesses, as well as contributing to local employment opportunities, and has distinct locational requirements that need to be considered in formulating planning policies (separately from those relating to general industrial land).

Strategic facilities serving national or regional markets are likely to require significant amounts of land, good access to strategic transport networks, sufficient power capacity and access to appropriately skilled local labour. Where a need for such facilities may exist, strategic policy-making authorities should collaborate with other authorities, infrastructure providers and other interests to identify the scale of need across the relevant market areas. This can be informed by:

• engagement with logistics developers and occupiers to understand the changing nature of requirements in terms of the type, size and location of facilities, including the impact of new and emerging technologies;

• analysis of market signals, including trends in take up and the availability of logistics land and floorspace across the relevant market geographies;

• analysis of economic forecasts to identify potential changes in demand and anticipated growth in sectors likely to occupy logistics facilities, or which require support from the sector; and

• engagement with Local Enterprise Partnerships and review of their plans and strategies, including economic priorities within Local Industrial Strategies.

• Strategic policy-making authorities will then need to consider the most appropriate locations for meeting these identified needs (whether through the expansion of existing sites or development of new ones).

• Authorities will also need to assess the extent to which land and policy support is required for other forms of logistics requirements, including the needs of SMEs and of ‘last mile’ facilities serving local markets. A range of up-to-date evidence may have to be considered in establishing the appropriate amount, type and location of provision, including market signals, anticipated changes in the local population and the housing stock as well as the local business base and infrastructure availability.

Paragraph: 031 Reference ID: 2a-031-20190722”

The reality is that very often local plans have not kept pace with the extent of need. I wrote about two decisions by the Secretary of State to allow appeals in relation to large logistics proposals in the green belt, in Bolton and Wigan in my 25 June 2021 blog post The Very Specials.

It is certainly a hot market: Logistics space under pressure and could run out in just five months (London First in partnership with CBRE, 3 March 2022).

As somewhat of an advocacy document for the sector, the BPF industrial committee published in January 2022, in conjunction with Savills, Levelling Up – The Logic of Logistics, a “report demonstrating the wider economic, social and environmental benefits of the industrial & logistics sector”, going into detail with facts, figures and examples as to the extent of the current need and extent of historically supressed demand, the functions of logistics space in the economy, the nature of the jobs created, sustainability credentials and its potential “levelling up” role (was this indeed a factor in those Bolton and Wigan decisions?).

The document repeats from the BPF’s Employment Land Manifesto (July 2021) what changes are sought to the planning system:

“■ Introducing a Presumption in Favour of Logistics Development … when precise criteria are met. This is needed as Local Plans can take years to be adopted and therefore are completely out of kilter with the pace of market changes;

■ Ensuring Local Plans allocate sites in the right locations to respond to a broad range of market needs;

■ Modernising Employment Land Reviews to allow for the utilisation of ‘real time’ information so that they can be kept up to date; and

■ Introducing an Employment Land Delivery Test to ensure that a commensurate amount of employment land is brought forward to counterbalance housing and that any employment land lost to other uses is delivered in the right locations. If a local planning authority failed to meet the delivery test, a presumption in favour of sustainable logistics development could be engaged.”

My 14 May 2022 blog post Does LURB Herald A More Zonal Approach to Planning After All? focused on housing issues but the risks are at least as great for logistics (and indeed industrial development more generally and of course often the boundary lines between light industrial, general industrial and logistics are increasingly blurred). With a planning system which is even more plan-led, where planning decisions are to be made in accordance with the development plan and national development management policies “unless material considerations strongly indicate otherwise”, and with the duty to co-operate with other local planning authorities abolished, logistics promoters will have to put all their faith in each local planning authority making the right choices, in an environment where this form of development, often necessarily on green field sites, can often be locally unpopular. Might national development management policies indeed point towards a criteria-based presumption on certain types of unallocated land? We just don’t know.

Of course, it may be that we start to see some large logistics schemes go by way of the Planning Act 2008 NSIPs route, requiring a direction first from the Secretary of State that the project is indeed to be considered a nationally significant infrastructure project. However, until such time as the procedure is reformed, it is an enormous undertaking in terms of process. The track record for business and commercial DCOs is not good: two sought, two withdrawn! The DCO application for the London Resort theme park in Kent was withdrawn on 29 March 2022 and on 13 April 2022 the Secretary of State withdrew (at the request of the promoter, so that the proposal could continue by way of a Town and Country Planning Act application for planning permission) the direction that he had previously made that phase 2 of the international advanced manufacturing park (IAMP) proposal in Sunderland be treated as an NSIP. Of course, the position for rail-connected logistics schemes which meet the tests in section 26 of the 2008 Act for a strategic rail freight interchange is more positive, with four DCOs made to date (Daventry, East Midlands Gateway, Northampton Gateway and West Midlands Interchange).

We will be discussing many of these issues on clubhouse at 6 pm on Tuesday 24 May, where we will be focusing on the BPF’s Levelling Up – the Logic of Logistics report and, in particular, the likely prognosis for industrial and logistics development under the planning reforms now announced. I’ll be joined by Gwyn Stubbings (GLP) and Ben Taylor (Newlands) from the BPF’s industrial committee, together with the BPF’s head of planning and development Sam Bensted. Join us here.

A little further ahead, please also consider registering for a Town Legal/Landmark Chambers webinar (yes a good old fashioned 2020-style webinar…) at 5 pm on Monday 6 June back on the theme of housing: “Will the Bill deliver more or less housing? Yes or no?” Simon Gallagher (Department of Levelling Up, Housing and Communities) will join Zack Simons (Landmark Chambers), Kathryn Ventham (Barton Willmore now Stantec) and myself in a session chaired by Town Legal’s Meeta Kaur. Join us here.

Simon Ricketts, 22 May 2022

Personal views, et cetera

Image from *Levelling up – the logic of logistics*, courtesy of the BPF and Savills

Integrated Rail Plan, Unplanned?

Wouldn’t it be good if Government plans were proper plans, subject to detailed assessment of their environmental effects, including formal assessment of reasonable alternatives and with the requirement for further assessment of material changes? But we lost that argument a long time ago, in R (HS2 Action Alliance) v Secretary of State for Transport (Supreme Court, 22 January 2014). The Supreme Court held that the Government’s January 2012 white paper “High Speed Rail: Investing in Britain’s Future – Decisions and Next Steps” was not subject to any requirement for strategic environmental assessment as it was not a plan that “set the framework” for subsequent decision making.

As per the judgment press summary:

“DNS is an elaborate description of the HS2 project, including the thinking behind it and the government’s reasons for rejecting alternatives. However, it does not constrain the decision-making process of the authority responsible, which is Parliament. Formally, and in reality, Parliament is autonomous, and not bound by any “criteria” contained in previous Government statements.”

So we were to take it all with a pinch of salt, including images such as this, showing the proposed “Y” route, to Manchester (and ultimately Glasgow) and Leeds (and ultimately Edinburgh via Newcastle):

Bear all this in mind when you read the Department for Transport’s Integrated Rail Plan for the North and Midlands published on on 18 November 2021. The plan “confirms” £54bn of spending on rail and local transport in the Midlands and North in addition to the £42bn already included for HS2 Phases 1 and 2a between London, the West Midlands and Crewe and has these images showing the journey time savings proposed:

What an opportunity to make good promises as to Levelling Up and Building Back Better.

The accompanying press statement summarises the proposals as follows:

“It is a £96 billion plan that outlines how major rail projects, including HS2 Phase 2b, Northern Powerhouse Rail and Midlands Rail Hub, will be delivered sooner than previous plans so that communities, towns and cities across the North and Midlands are better connected with more frequent, reliable and greener services and faster journey times.

The plan confirms that the government will:

• build 3 new high-speed lines including:

• HS2 from Crewe to Manchester

• HS2 from the West Midlands to East Midlands Parkway, enabling HS2 trains to join existing lines to serve Nottingham and Derby city centres (unlike original plans)

• a new high-speed line between Warrington, Manchester and Yorkshire, as part of Northern Powerhouse Rail

• electrify and/or upgrade 3 existing main lines including:

• the Transpennine Main Line between Manchester, Leeds and York

• the Midland Main Line between London St Pancras, the East Midlands, and Sheffield

• upgrading and improving line speeds on the East Coast Main Line

The plan also confirms that the government will progress options to complete the Midlands Rail Hub and spend £100 million to look at how best to take HS2 trains to Leeds, including assessing capacity at Leeds station and starting work on the West Yorkshire mass transit system.”

Piecing together the implications one sees that the previous commitment to build HS2 to Leeds in accordance with that 2012 plan has now become simply an extension to East Midlands parkway with HS2 trains then able to go on existing lines to Nottingham and Derby. The long anticipated “Y” becomes a “\”. As recently as 28 May 2021, New Civil Engineer had reported the Transport Secretary saying exactly the opposite: DfT commits to HS2 eastern leg after months of uncertainty.

There is much else to unpack. Those maps stress journey time reductions (which is of course not the only factor at all in securing an improved rail network) but so much is down to the detail: routes, specifications, delivery timescales and of course (HS2 to Leeds being a perfect example) the risk of elements subsequently simply being lopped off. Any supporting assessment work is simply unavailable (see my opening comments).

Let’s go back to New Civil Engineer: The integrated rail plan is a half-baked plan which fails rail passengers (New Civil Engineer, 22 November 2021 – a piece incidentally which accepts the logic of the decision not to extend HS2 to Leeds).

Then let’s turn to the knowledgable Jonathan Stott at Gateley Hamer: Integrated Rail Plan: Midlands wins by country mile and North West in 2nd as Yorkshire handed mass-transit consolation (22 November 2021).

As Jonathan identifies, Yorkshire is potentially the biggest loser, with also a retreat from the proposals for Northern Powerhouse Rail, a new-build high speed line between Leeds and Manchester. The regional press had a field day:

West Yorkshire Mayor Tracy Brabin has written to Grant Shapps setting out the various failings of the proposals, saying that she and other West Yorkshire leaders “are angry and frustrated by the promises that have been seemingly broken. Our communities feel betrayed”. (26 November 2021).

Transport for the North: Integrated Rail Plan branded ‘woefully inadequate’ (18 November 2021)

The reconsideration (not yet a final scrapping) of HS2 between the East Midlands and Leeds brings little relief incidentally to those whose homes and businesses have long been blighted – safeguarding of the route will remain whilst further analysis is done.

⁃ How HS2 U-turn has sent £115 million down the drain after it was spent buying houses on abandoned route – and we can’t even sell them off yet (Mail Online, 19 November 2021)

⁃ HS2: Housing estate in limbo after eastern leg axed (BBC, 18 November 2021)

Manchester of course still gets HS2, but with proposals for a terminus station there, with an above ground, rather than tunnelled, route – long a cause for concern on the part of Andy Burnham: Government planning ‘to put HS2 on stilts through Manchester’ (Guardian, 19 November 2021). Fat chance incidentally of any extension of HS2 to Scotland any more it would appear. The Transport Secretary hardly oozes sympathy in his reactions to Burnham’s concerns:

“If we spend £6bn or £7bn building the station underground at Manchester, we will take away from Liverpool, Leeds, Hull or some of the other places that are calling for money … Manchester is a principal beneficiary of this entire programme and we wish his constituents well in their new journey times.”

Journey times, journey times.

Meanwhile, whilst London is certainly suffering in terms of the unrelieved financial pressures upon Transport for London (see eg Nick Bowes’ Centre for London 10 November 2021 blog post Mind the gap: What’s next for the funding crisis at the heart of London’s transport system), there is at least finally some good news around the corner: Crossrail starts final testing phase ahead of opening (IanVisits, 22 November 2021).

The integrated rail plan and what it does or doesn’t do for levelling up is going to be the topic for this week’s clubhouse Planning Law Unplanned session. Guest speakers cover all the bases: from Birmingham the aforementioned Jonathan Stott, from Manchester Urbed’s Vicky Payne, from Leeds barrister Stephanie Hall and from London my Town partner Raj Gupta. Join us via this link.

M’lud On The Tracks: HS2

Great Bob Dylan album, almost.

This post collects together in one place some of the recent planning, environmental and compulsory purchase litigation in relation to the High Speed Two rail project.

R (Keir) v Natural England (16 April 2021, Lang J; further hearing before Holgate J, 23 April 2021, judgment reserved)

This is the interim injunction granted by Lang J preventing HS2 and its contractors from varying out works at Jones’ Hill Wood, Buckinghamshire, until either the disposal of the claim or a further order.

The claim itself has Natural England as the defendant and seeks to challenge its grant of a licence under the Conservation of Habitats Regulations 2017 in relation to works that may disturb a protected species of bat.

The question as to whether the injunction should be maintained came back to court yesterday, 23 April, before Holgate J, as well as whether permission should be granted in the claim itself, and he has reserved judgment until 2pm on 26 April.

Secretary of State for Transport v Curzon Park Limited (Court of Appeal hearing, 21 and 22 April 2021, judgment reserved)

This was an appeal by the Secretary of State for Transport against a ruling by the Upper Tribunal on 23 January 2020. My Town Legal colleagues Raj Gupta and Paul Arnett have been acting for the first respondent, landowner Curzon Park Limited, instructing James Pereira QC and Caroline Daly. Thank you Paul for this summary:

The case concerns certificates of appropriate alternative development (‘CAADs’) under the Land Compensation Act 1961. A CAAD is a means of applying to the local planning authority to seek a determination as to what the land could have been used for if the CPO scheme did not exist. Its purpose it to identify every description of development for which planning permission could reasonably have been expected to be granted on the valuation date if the land had not been compulsorily purchased. Importantly, subject to a right of appeal, the grant of a CAAD conclusively establishes that the development is what is known as ‘appropriate alternative development’. This is significant as:

• When compensation is assessed it must be assumed that planning permission for that development(s) in the CAAD either was in force at the valuation date or would with certainty be in force at some future date and

• Following reforms in the Localism Act 2001, where there is, at the valuation date, a reasonable expectation of a particular planning permission being granted (disregarding the CPO scheme and CPO) contained in a CAAD it is assumed that the planning permission is in force which converts the reasonable expectation into a certainty.

There are four adjoining sites, each compulsorily acquired by HS2 for the purposes of constructing the Curzon Street HS2 station terminus at Cuzon Street Birmingham – four different landowners and four different valuation dates (i.e. vesting dates under the GVD process). Each landowner applied for a CAAD for mixed use development including purpose-build student accommodation (PBSA). In the real world, the cumulative effects of the proposed adjoining developments (e.g. including but not limited to the proposed quantum and need for PBSA in light of a PBSA need in the local plan) would have been a material planning consideration. However, Birmingham City Council considered each CAAD application in isolation. The Secretary of State argued that they should have considered the other CAAD applications as notional planning applications and, therefore, as material considerations which would have been very likely to result in CAADs issued for smaller scale mixed-used development being issued leading to a lower total compensation award and bill for HS2. The preliminary legal issue to be determined by the Upper Tribunal and now the Court of Appeal is:

‘Whether, and if so how, in determining an application for a certificate of appropriate alternative development under section 17 LCA 1961 (CAAD) the decision-maker in determining the development for which planning permission could reasonably have been expected to be granted for the purposes of section 14 LCA 1961 may take into account the development of other land where such development is proposed as appropriate alternative development in other CAAD applications made or determined arising from the compulsory acquisition of land for the same underlying scheme’.

The Upper Tribunal had rejected the landowners’ argument that the scheme cancellation assumption (i.e. disregarding the CPO scheme) under the Land Compensation Act 1961 required CAAD applications on other sites to be disregarded. However, critically, the Tribunal agreed with the landowners’ that CAAD applications were not a material planning consideration and that there was no statutory basis for treating them as notional planning applications as the Secretary of State has argued. The Tribunal also disagreed with the Secretary of State that the landowners’ interpretation of the statutory scheme would lead to excessive compensation pointing out that the landowners’ ability to develop their own land in their own interests was taken away when their land was safeguarded for HS2 and from November 2013 when the HS2 scheme was launched until 2018 when the land interests were finally acquired by HS2 any planning permissions for these sites would have been determined in the shadow of the HS2 scheme and safeguarding of the land. The Secretary of State appealed the Upper Tribunal decision and the Court of Appeal granted permission to appeal in July 2020 noting that the appeal raises an important point on the principle of equivalence (i.e. the principle underpinning the CPO Compensation Code) that a landowner should be no worse off but no better off in financial terms after the acquisition than they were before) which may have widespread consequences for the cost of major infrastructure projects.

A judgment from the Court of Appeal (Lewison LJ, Lindblom LJ and Moylan LJ) is expected in the next month or so.

Sarah Green v Information Officer & High Speed Two Limited (First Tier Tribunal, 19 April 2021)

This was an appeal against the refusal by HS2 Limited to disclose, pursuant to the Environmental Information Regulations 2004, information as to the potential effect of its works on chalk aquifers in the Colne Valley. The information requested was as follows:

“What risk assessments have taken place, of the potential increased risk to controlled waters as a result of imminent works by HS2 contractors along the Newyears Green bourne and surrounding wetland?

Are any of the risk assessments independent from the developers (HS2) and where are the risk assessment (sic) accessible to the public?”

By the time of the hearing before the First Tier Tribunal, three reports had been disclosed, redacted. The Tribunal summarised the issues before it as follows:

“(1) whether HS2 correctly identified the three reports as being the environmental information which Ms Green requested and whether there was further material held which came within the request;

(2) whether at the time of Ms Green’s request the three reports were “still in the course of completion” or comprised “unfinished documents” and, if so, whether the public interest in maintaining the regulation 12(4)(d) exception outweighed that in disclosure;

(3) whether disclosure of those parts of the three reports which have been redacted in reliance on regulation 12(5)(a) would have adversely affected “public safety” and, if so, whether the public interest in maintaining the regulation 12(5)(a) exception outweighed the public interest in their disclosure.”

The Tribunal found, expressing its reasoning in strong terms, that the public interest in disclosure outweighed the public interest in maintaining any exemption.

“The reports in question in this case concern a major infrastructure project which gives rise to substantial and legitimate environmental concerns. They specifically relate to the risks of contamination to the drinking water supplied to up to 3.2 million people resulting from the construction of the HS2 line. This is clearly environmental information of a fundamental nature of great public interest.”

HS2 appeared to be concerned that “if the versions of the reports current in January 2019 were made public they “… could have been used to try and impact work undertaken in finalising the information”.

“It seems to us that such an approach almost entirely negates the possibility of the public having any input on the decision-making process in this kind of case, which goes against a large part of the reason for allowing public access to environmental information.

The suggestion that public officials concerned in making enquiries and freely discussing options to mitigate environmental problems might be discouraged or undermined by early disclosure of their work seems to us rather fanciful and was not supported by any kind of evidence; the case is not comparable in our view to that of senior officials indulging in “blue sky” thinking about policy options. We accept that the material is “highly technical” but we cannot see why a lack of understanding on the part of the public would have any negative impact on HS2’s work; if a member of the public or a pressure group wanted to contribute to the debate in a way that was likely to have any effect on the decision-making process they would no doubt have to engage the services of someone like Dr Talbot, who would be able to enter the debate in a well- informed and helpful way.”

“HS2’s second main point, that the Environment Agency will be approving and supervising everything, does not seem to us of great weight. Of course the Environment Agency is there to act in the public interest in relation to the environment but its involvement cannot be any kind of answer to the need for public knowledge of and involvement in environmental decisions. The EA is itself fallible and should be open to scrutiny. If the public could simply entrust everything to it there would be no need for the EIR.

HS2’s third main point is that if inchoate information is released it could be misleading and they would incur unnecessary expense correcting false impressions. We were not presented with any specific evidence or examples to illustrate how this problem might have been encountered in practice. It does not seem to us a very compelling point.”

R (Maxey) v High Speed 2 Limited (Steyn J, 10 February 2021)

This was an interim ruling in an application for judicial review, made only nine days previously, of the decision by HS2 Limited to extract the protesters that were occupying the tunnel under Euston Square Gardens and alleging a failure to safely manage Euston Square Gardens in a manner compatible with HS2 Limited’s obligations under the European Convention of Human Rights. It followed a rejection of an application by Mr Maxey for an interim injunction and followed an order made requiring him to cease any further tunnelling activity, to provide certain categories of information to HS2 Limited or others and to leave the tunnel safely, with which he had not complied.

At the hearing, Mr Maxey was renewing his “application for orders requiring (a) the cessation of operations to extract the protesters from the tunnel and (b) to implement an exclusion zone. In addition, the Claimant has expanded the interest relief he seeks to include provision forthwith by the Defendant of (a) oxygen monitoring equipment; (b) a hard-wired communication method; (c) food and drinking water for the Claimant and the protesters; and (d) to make arrangements for the removal of human waste from the tunnel.” He was also seeking to overturn the orders against him.

The judge rejected Mr Maxey’s arguments:

“While I accept that the Defendant is (or at the very least there is a good argument that the Defendant is) currently under a duty to take all reasonable steps to protect those in the tunnel under the site (including the Claimant) from death or serious injury, on the evidence before me there is no realistic prospect of the Court finding that the Defendant is breaching its duty. In my judgment, the claim for interim relief does not meet the first test.

That suffices to dispose of the interim relief application. But if it were necessary to consider the balance of convenience, I would have to bear in mind the strong public interest in permitting a public authority’s decision (here a decision to proceed with the operation and a decision as to the necessary safeguards) to remain in force pending a final hearing of the application for judicial review, so the party applying for interim relief must make out a strong case for the grant of interim relief. The Claimant has not come close to establishing a strong enough case to justify the Court stopping the operations to remove those who are in the tunnel, given the compelling evidence as to how dangerous it is for them to remain there.”

R (Packham) v Secretary of State for Transport (Court of Appeal, 31 July 2020)

I summarised this case in my 9 January 2021 blog post Judges & Climate Change. It was Chris Packham’s failed challenge to the Government’s decision to continue with the HS2 project following the review carried out by Douglas Oakervee, the grounds considered by the Court of Appeal being “whether the Government erred in law by misunderstanding or ignoring local environmental concerns and failing to examine the environmental effects of HS2 as it ought to have done” and “whether the Government erred in law by failing to take account of the effect of the project on greenhouse gas emissions between now and 2050, in the light of the Government’s obligations under the Paris Agreement and the Climate Change Act 2008”.

R (London Borough of Hillingdon) v Secretary of State for Transport (Court of Appeal, 31 July 2020)

This case was heard consecutively with the Packham appeal. It related to Hillingdon’s challenge to the Secretary of State’s decision to allow (against his inspector’s recommendations) an appeal against Hillingdon’s refusal to grant HS2 Limited’s application for approval, under the Act authorising the relevant stage of the HS2 project, of plans and specifications for proposed works associated with the creation of the Colne Valley Viaduct South Embankment wetland habitat ecological mitigation. HS2 Limited had refused to provide Hillingdon with information so that an assessment could be made as to the effect of the proposed works on archaeological remains, HS2 Limited’s position being that it was “under no obligation to furnish such information and evidence. It says that this is because it will, in due course, conduct relevant investigations itself into the potential impact of the development upon any archaeological remains and take all necessary mitigation and modification steps. HS2 Ltd says that it will do this under a guidance document which forms part of its contract with the Secretary of State for Transport which sets out its obligations as the nominated undertaker for the HS2 Project.”

Lang J had upheld the Secretary of State’s decision but this was overturned by the Court of Appeal:

“The key to this case lies in a careful reading of Schedule 17 and the powers and obligations it imposes upon local authorities and upon HS2 Ltd. In our judgment, the duty to perform an assessment of impact, and possible mitigation and modification measures under Schedule 17, has been imposed by Parliament squarely and exclusively upon the local authority. It cannot be circumvented by the contractor taking it upon itself to conduct some non-statutory investigation into impact. We also conclude that the authority is under no duty to process a request for approval from HS2 Ltd unless it is accompanied by evidence and information adequate and sufficient to enable the authority to perform its statutory duty.”

[Subsequent note: Please also see London Borough of Hillingdon v Secretary of State for Transport (Ouseley J, 13 April 2021), “Hillingdon 2” where on the facts Ouseley J reached a different conclusion, holding that an inspector had not acted unlawfully in determining an appeal without information sought by the council from HS2 Limited as to the lorry routes to be used by construction lorries to and from the HS2 construction sites within its area].

R (Granger-Taylor) v High Speed Two Limited (Jay J, 5 June 2020)

This was a judicial review claim brought by the owner of a listed Georgian building near Regents Park. The property was separated by a large retaining wall, built in 1901, from the perimeter of the existing railway. “It rests approximately 17 metres from the front of the property and the drop from the level of the road to the railway below is approximately 10 metres. Unsurprisingly, given that the substrate is London clay, the wall has suffered periodic movement and shows signs of cracking. The Claimant’s expert says that it is “metastable”.”

The claimant was concerned as to the engineering solution arrived at for that section of the route, which was known as the Three Tunnels design. “This judicial review challenge is directed to the safety of the Three Tunnels design in the specific context of the outbound tunnel travelling so close to the base of the retaining wall. It is contended on the back of expert engineering evidence that this aspect of the design has engendered an engineering challenge which is insurmountable: in the result, the design is inherently dangerous. The risk is of catastrophic collapse of the retaining wall, either during the tunnelling works or subsequently, which would if it arose cause at the very least serious damage to the Claimant’s property. Consequently, the Claimant asserts a breach of section 6 of the Human Rights Act 1998 because her rights under Article 8 and A1P1 of the Convention have been violated.”

The judge boiled the questions down to the following:

“has the Claimant demonstrated that she is directly and seriously affected by the implementation of the Three Tunnels design, given the risk of catastrophic collapse identified by Mr Elliff? In my view, that question sub-divides into the following:

(1) should I conclude on all the evidence that the Three Tunnels design is so inherently flawed in the vicinity of the retaining wall that no engineering solution could be found to construct it safely? and

(2) have the Defendants already committed themselves to implement the Three Tunnels design regardless of any further work to be undertaken under Stage 2?

After detailed consideration of expert engineering expert on both sides, the judge rejected the claim.

Anixter Limited v Secretary of State for Transport (Court of Appeal, 30 January 2020)

This was a compulsory purchase case, about whether an owner of four units on the Saltley Business Park in Birmingham, faced with compulsory purchase of one of them, had served counter-notices in time such as to trigger its potential ability to require acquisition of its interests in all four buildings. The court ruled that it had not.

It certainly seems an age since R (HS2 Action Alliance) v Secretary of State for Transport (Supreme Court, 22 January 2014) where in a previous law firm life I acted for the claimant, instructing David Elvin QC and Charlie Banner (now QC). The case concerned whether the publication by the Government of its command paper, “High Speed Rail: Investing in Britain’s Future – Decisions and Next Steps” engaged strategic environmental assessment requirements and whether the hybrid bill procedure would comply with the requirements of the Environmental Impact Assessment Directive (for more on the HS2 hybrid bill procedure, see my 30 July 2016 blog post HS2: The Very Select Committee https://simonicity.com/2016/07/30/hs2-the-very-select-committee/). The loss still grates. And in consequence of that ruling…

There’s a slow, slow train comin’.

Simon Ricketts, 24 April 2021

Personal views, et cetera

Thank you to my Town Legal colleague Lida Nguyen for collating a number of these cases.

Our clubhouse Planning Law, Unplanned session at 6pm on 27 April will follow a similar theme, so if you are interested in issues relating to HS2 or in wider questions as to judicial review, interim injunctions, access to information or compulsory purchase compensation, do join us, whether to contribute to the discussion or just listen in. As always, contact me if you would like an invitation to the clubhouse app (which is still iphone only I’m afraid).

Detail from Bob Dylan’s painting Train Tracks

Blue Christmas

Duncan Field, Victoria McKeegan and I were speculating in our 16 December 2019 planorama vlog as to what the new Government’s legislative programme and policy priorities are likely to be in relation to planning, infrastructure and the environment

We now have the blueprint, in the form of the Queen’s Speech on 19 December 2019 and particularly the 151 pages of background notes published the same day.

There is going to be an “ambitious” planning white paper in due course, but what is promised in the meantime in this very blue paper that these notes represent? The government has little excuse not to deliver on what it has set out, given the size of its majority. The most relevant references are as follows:

Housing (pages 48 to 50):

“My government will take steps to support home ownership, including by making homes available at a discount for local first-time buyers.”

● The Government will support people to realise the dream of homeownership. One of the biggest divides in our country is between those who can afford their own home and those who cannot.

● The Government will shortly launch a consultation on First Homes. This will provide homes for local people and key workers at a discount of at least 30 per cent – saving them tens of thousands of pounds.

● The discount on First Homes will be secured through a covenant. This means these homes will remain discounted in perpetuity, supporting people now and in the future who aspire to own a home of their own.

● The Government will also renew the Affordable Homes Programme, building hundreds of thousands of new homes for a range of people in different places. This will help us prevent people from falling into homelessness while also supporting further people into homeownership.

● We will introduce a new, reformed Shared Ownership model, making buying a share of a home fairer and more transparent. This new model will be simpler to understand and better able shared owners to buy more of their property and eventually reach full ownership.

● To deliver on the homes this country needs, the Government is committed to building at least a million more homes over this Parliament. In the coming months we will set out further steps to achieve this, including an ambitious Planning White Paper and funding for critical infrastructure.

● The Planning White Paper will make the planning process clearer, more accessible and more certain for all users, including homeowners and small businesses. It will also address resourcing and performance in Planning Departments.

● The new £10bn Single Housing Infrastructure fund will provide the roads, schools and GP surgeries needed to support new homes. Alongside First Homes, this will ensure local people truly benefit from house building in their area and build support for new developments

● To help those who rent, the Government will build a rental system that is fit for the modern day – supporting landlords to provide high quality homes while protecting tenants. The Government’s Better Deal for Renters will fulfil our manifesto commitments to abolish ‘no fault’ evictions and to introduce lifetime deposits, alongside further reforms to strengthen the sector for years to come.

● The Government is taking forward a comprehensive programme of reform to end unfair practices in the leasehold market. This includes working with the Law Commission to make buying a freehold or extending a lease easier, quicker and more cost effective – and to reinvigorate commonhold and Right to Manage.

● The Government will ensure that if a new home can be sold as freehold, then it will be. We will get rid of unnecessary ground rents on new leases and give new rights to homeowners to challenge unfair charges. The Government will also close legal loopholes to prevent unfair evictions and make it faster and cheaper to sell a leasehold home.

● For those in the social rented sector, we will bring forward a Social Housing White Paper which will set out further measures to empower tenants and support the continued supply of social homes. This will include measures to provide greater redress, better regulation and improve the quality of social housing.

● This Government has committed to end rough sleeping by the end of this Parliament. The Government will continue to invest in key rough sleeping interventions, building on the progress that we made last year in reducing rough sleeping numbers. The Government will also continue to support those at risk of homelessness and rough sleeping through the continued enforcement of the Homelessness Reduction Act.

Building Safety Bill (pages 51 to 53):

“New measures will be brought forward…to improve building safety.”

● An enhanced safety framework for high-rise residential buildings, taking forward the recommendations from Dame Judith Hackitt’s independent review of building safety, and in some areas going further by:

○ Providing clearer accountability and stronger duties for those responsible for the safety of high-rise buildings throughout the building’s design, construction and occupation, with clear competence requirements to maintain high standards.

○ Giving residents a stronger voice in the system, ensuring their concerns are never ignored and they fully understand how they can contribute to maintaining safety in their buildings.

○ Strengthening enforcement and sanctions to deter non-compliance with the new regime, hold the right people to account when mistakes are made and ensure they are not repeated.

○ Developing a new stronger and clearer framework to provide national oversight of construction products, to ensure all products meet high performance standards.

○ Developing a new system to oversee the whole built environment, with local enforcement agencies and national regulators working together to ensure that the safety of all buildings is improved.

● We will also legislate to require that developers of new build homes must belong to a New Homes Ombudsman.

Fire Safety Bill (pages 54 to 55):

“New measures will be brought forward…to improve building safety.”

● Clarifying that the scope of the Fire Safety Order includes the external walls of the building, including cladding, and fire doors for domestic premises of multiple occupancy.

● Strengthening the relevant enforcement powers to hold building owners and managers to account.

● Providing a transitional period for building owners and managers (the “responsible person”) and Fire and Rescue Services to put in place the infrastructure for these changes.”

National Infrastructure Strategy (pages 90 to 91):

“My government will prioritise investment in infrastructure…”

● The National Infrastructure Strategy will be published alongside the first Budget, and will set out further details of the Government’s plan to invest £100 billion to transform the UK’s infrastructure.

● The Strategy will set out the Government’s long-term ambitions across all areas of economic infrastructure including transport, local growth, decarbonisation, digital infrastructure, infrastructure finance and delivery.

● The Strategy will have two key aims:

○ To unleash Britain’s potential by levelling up and connecting every part of the country. Prosperity will be shared across all of the UK, and long- standing economic challenges addressed, through responsible and prudent investment in the infrastructure.

○ To address the critical challenges posed by climate change and build on the UK’s world-leading commitment to achieve net zero emissions by 2050.

● The Strategy will also provide the Government’s formal response to the National Infrastructure Commission’s 2018 National Infrastructure Assessment, which made a series of independent recommendations to government across all sectors of economic infrastructure (transport, energy, digital, waste, water and flood management).”

Rail reform and High Speed Rail 2 (West Midlands – Crewe) Bill (pages 101 to 103)

● Last year the Government launched a ‘root and branch’ review of the railways led by Keith Williams. The Review is the first comprehensive assessment of the rail system in a generation and is tasked with making ambitious proposals to reform the rail industry.

● The Review is focused on reforms that will put passengers at the heart of the railway, provide value for taxpayers and deliver economic, social and environmental benefits across Britain.

● The Government will publish a White Paper informed by the recommendations next year. Among other things, this will end the complicated franchising model to create a simpler, more effective system.

● The Government has also committed to a number of major investments in the railway, including:

o Midlands Rail Hub, to improve services around Birmingham and throughout the West and East Midlands;

o Northern Powerhouse Rail;

o Reopening a number of the lines and stations closed under the

Beeching cuts in the 1960s; and,

o Significant upgrades to urban commuter and regional services outside London.

● Separate to the wider review of the railway system, the Government awaits the review, of the High Speed Two (HS2) network led by Doug Oakervee which is looking at whether and how to proceed with HS2, including the benefits and impacts; affordability and efficiency; deliverability; and scope and phasing, including its relationship with Northern Powerhouse Rail.

● Without prejudice to the Oakervee Review’s findings and any Government decisions that follow, it is expected that the High Speed Rail (West Midlands – Crewe) Bill will be revived in this Parliament. The Bill was first introduced in Parliament in July 2017 and will enable Phase 2a of HS2. The Bill passed through the House of Commons and had completed Second Reading in the House of Lords before the dissolution of the previous Parliament. Following revival it would begin its next stages in the House of Lords.

English Devolution (pages 109 to 110):

“My government…will give communities more control over how investment is spent so that they can decide what is best for them.”

● We are committed to levelling up powers and investment in the regions across England and allowing each part of the country to decide its own destiny.

● This means proposals to transform this country with better infrastructure, better education, and better technology.

● We will publish a White Paper setting out our strategy to unleash the potential of our regions, which will include plans for spending and local growth funding.

● It will provide further information on our plans for full devolution across England, levelling up powers between Mayoral Combined Authorities, increasing the number of mayors and doing more devolution deals.

● These increased powers and funding will mean more local democratic responsibility and accountability.

● We remain committed to the Northern Powerhouse, Midlands Engine, and Western Gateway strategies.

Business rates (page 111):

“To support business, my government will…bring forward changes to business rates.”

● The Government is committed to conducting a fundamental review of business rates.

● The Government recognises the role of business rates as a source of local authority income and will consider input from the sector as part of the review of business rates. Further details on the review will be announced.

● We are committed to increasing the retail discount from one-third to 50 per cent, extending that discount to cinemas and music venues, extending the duration of the local newspapers discount, and introducing an additional discount for pubs.

● We will also progress legislation to bring forward the next business rates revaluation by one year from 2022 to 2021 and move business rates revaluations from a five-yearly cycle to a three-yearly cycle. This will allow the Government to press ahead with delivering an important reform that has been strongly welcomed by business.

● More frequent revaluations will ensure that business rates bills are more up- to-date reflecting properties’ current rental values. Moving to three-yearly revaluation will make the system more responsive to changing economic conditions.

Environment Bill (pages 112 to 114):

“To protect and improve the environment for future generations, a bill will enshrine in law environmental principles and legally-binding targets, including for air quality. It will also ban the export of polluting plastic waste to countries outside the Organisation for Economic Co-operation and Development and establish a new, world-leading independent regulator in statute.”

● Establishing new long term domestic environmental governance based on: environmental principles; a comprehensive framework for legally-binding targets, a long term plan to deliver environmental improvements; and the new Office for Environmental Protection.

● Improving air quality by setting an ambitious legally-binding target to reduce fine particulate matter (PM2.5), the most damaging pollutant to human health. The Bill also increases local powers to address sources of air pollution and brings forward powers for the Government to mandate recalls of vehicles when they do not meet legal emission standards.

● Protecting nature by mandating ‘biodiversity net gain’ into the planning system, ensuring new houses aren’t built at the expense of nature and delivering thriving natural spaces for communities. We will improve protection for our natural habitats through Local Nature Recovery Strategies and give communities a greater say in the protection of local trees.

● Preserving our resources by minimising waste, promoting resource efficiency and moving towards a circular economy. These measures include extended producer responsibility, a consistent approach to recycling, tackling waste crime, introducing deposit return schemes, and more effective litter enforcement. We will also ban the export of polluting plastic waste to non- OECD countries, consulting with industry, NGOs, and local councils on the date by which this should be achieved.

● Introducing charges for specified single use plastic items. This will build on the success of the carrier bag charge and incentivise consumers to choose more sustainable alternatives.

● Managing water sustainably through more effective legislation to secure long- term, resilient water and wastewater services. This will include powers to direct water companies to work together to meet current and future demand for water, making planning more robust, and ensuring we are better able to maintain water supplies.

Climate change (pages 115 to 118):

“My government will continue to take steps to meet the world-leading target of net zero greenhouse gas emissions by 2050. It will continue to lead the way in tackling global climate change, hosting the COP26 Summit in 2020.”

● We will build on our progress with an ambitious programme of policy and investment, with our first Budget prioritising the environment. This will help deliver the green infrastructure needed to improve lives and achieve Net Zero, including by investing in carbon capture, offshore wind, nuclear energy, and electric vehicle infrastructure so that individuals are always within 30 miles of a chargepoint. We will make sure we help lower energy bills investing in the energy efficiency of homes, schools and hospitals. And away from home, we will use our £1 billion Ayrton Fund to develop affordable clean energy for developing countries.

● The government will continue to use our position as a global leader in this area by hosting the UN Climate Change Summit in Glasgow in 2020 (COP26). We will ask our partners to match the UK’s ambition.

● With a focus on nature based solutions at our upcoming COP summit, at home we will be substantially increasing our tree-planting commitment and creating a £640 million new Nature for Climate fund.

● Our natural environment is one of our greatest assets, and can play a crucial role in the fight against climate change. This government will:

○ introduce a landmark Environment Bill – the first one in twenty years – that will create an ambitious environmental governance framework for post Brexit, as well as banning the export of plastic waste to non-OECD countries;

○ establish a new £500 million Blue Planet Fund to help protect our oceans from plastic pollution, warming sea temperatures and overfishing;

○ lead diplomatic efforts to protect 30 per cent of the world’s oceans by 2030; and,

○ in our trade negotiations, never compromise on our high environmental protection

● We will also ensure that we are protecting our citizens by investing £4 billion in flood defences and lowering energy bills by investing £9.2 billion in the energy efficiency of homes, schools and hospitals.

● We will increase our ambition on offshore wind to 40GW by 2030, and enable new floating turbines.

● We will support decarbonisation of industry and power by investing £800 million to build the first fully deployed carbon capture storage cluster by the mid-2020s; and £500 million to help energy-intensive industries move to low-carbon techniques.

Constitution and democracy (pages 126 to 127):

“A Constitution, Democracy and Rights Commission will be established. Work will be taken forward to repeal the Fixed-term Parliaments Act.”

Setting up a Constitution, Democracy & Rights Commission that will:

● Examine the broader aspects of the constitution in depth and develop proposals to restore trust in our institutions and in how our democracy operates. Careful consideration is needed on the composition and focus of the Commission. Further announcements shall be made in due course.

It’s a blue, blue, blue, blue Christmas.

The usual askew perspectives and commentary will continue here in 2020.

Simon Ricketts, 21 December 2019

Personal views, et cetera

Far Far Away: Slade Green SRFI

Two years after my 6 May 2017 blog post Slow Train Coming: Strategic Rail Freight Interchanges In The South East, progress remains slow.

I referred in my blog post to the ongoing saga of the Howbury Park (now known as Slade Green), strategic rail freight interchange scheme promoted initially by Prologis (who obtained a, now time expired, permission on appeal in 2007) and now by Roxhill.

The site straddles the boundaries of the London Borough of Bexley and Dartford Borough Council. (The effective boundary is the River Cray, with the elements of the scheme within Dartford’s administrative boundaries being an access road and bridge over the river). At the time of my blog post, Dartford had resolved to refused planning permission. Bexley had resolved to grant planning permission but the Mayor of London was considering whether to intervene.

The Mayor on 17 July 2017 directed Bexley to refuse the application, on this ground:

“The proposal is inappropriate development in the Green Belt and very special circumstances have not been demonstrated which would clearly outweigh the harm to the Green Belt by reason of inappropriateness, and any other harm. The development is therefore contrary to Policy 7.16 of the adopted London Plan 2016 and the National Planning Policy Framework 2012.”

Dartford’s reasons for refusal additionally related to the likely effects of additional traffic on air quality and congestion detrimental to the quality of life of the community in Deptford.

Roxhill appealed. The appeals were recovered for the Secretary of State’s own determination on 7 November 2017 for the reason that they related to proposals for significant development in the Green Belt. An inquiry was held over 18 days between June and September 2018.

The Secretary of State issued his decision letter on 7 May 2019. He dismissed the appeals. He found that the scheme was not in accordance with the relevant development plans. “He has gone on to consider whether there are material considerations which indicate that the proposal should be determined other than in accordance with the development plan.

25.In this case the Secretary of State considers that the harm to the Green Belt from inappropriate development carries substantial weight against the scheme and the effect on the character and appearance of the local area carries significant weight along with the adequacy of the proposed rail link and the effect on existing/future passenger rail services. Significant weight is also given to the effect on the convenience of highway users.

26.The Secretary of State considers that the provision of social economic benefits of the scheme has overall limited weight and the resulting net biodiversity gain has moderate weight.

27.The Secretary of State considers that the benefits of the scheme do not outweigh the harm to the Green Belt by reason of inappropriateness and any other harm, and so very special circumstances do not exist. He considers that the adverse impacts of the proposal significantly and demonstrably outweigh the benefits. Overall, he considers that there are no material considerations which indicate that the proposal should be determined other than in accordance with the development plan.

28.The Secretary of State therefore concludes that the appeal is dismissed, and planning permission is refused.”

In terms of the availability of alternative sites:

“18.The Secretary of State agrees with the Inspector that in the 2007 decision it was identified that there was no alternative development site, a finding which attracted considerable weight in favour of that scheme (IR4.2). However, since 2007 the London Gateway, a brownfield site not located in the Green Belt, has been developed. For the reasons given in IR15.8.18 to 15.8.24, the Secretary of State agrees with the Inspector’s conclusions that the London Gateway site has the potential to provide an alternative development option for the provision of a SRFI to serve the same part of London and the South East as the appeals proposal (IR15.8.26)”

The Inspector’s conclusions, set out in section 15 of his report, are also worth delving into.

His findings ahead of his overall conclusions relied upon by the Secretary of State included the following:

“The proposal would have a substantial adverse effect on the openness of the Green Belt and the introduction of this massive development beyond the built limits of Slade Green would constitute urban sprawl.”

“[G]iven the requirement of the NPSNN [National Policy Statement on National Networks] that ‘as a minimum, a SRFI should be capable of handling 4 trains per day’, it follows that in order for the proposed rail link to be considered ‘adequate’, it would be necessary for it to be capable of accommodating 4 trains/day as a minimum…Based on the evidence presented, in my judgement, the number of trains that could be pathed to/from the appeals site, having regard to the current timetable, would be likely to fall well short of 4 per day (each way)”

“Unlike the circumstances in 2007, there is no longer a formally identified requirement for 3 or 4 SRFIs around London [4.2, 7.2.6, 8.5.1, 11.2.12, 11.2.14.f.]. The Government approach set out in the NPSNN is to support the realisation of the forecast growth by encouraging the development of an expanded network of large SRFIs across the regions [11.2.9]. Furthermore, ‘…SRFI capacity needs to be provided at a wide range of locations…There is a particular challenge in expanding rail freight interchanges serving London and the South East’. ”

“Overall, I am content that there is a need and market for SRFIs to serve London and the South East [11.2.2-3]. I turn then to consider the extent to which the appeals scheme would be likely to meet the requirements of SRFIs set out in the NPSNN. ”

However, “the appeals scheme would not be well qualified to meet the identified need for SRFIs to serve London and the South East”

“[T]he appellant’s ‘very special circumstances case’ included the assertion that ‘no alternative development options exist for SRFIs to serve this part of London and the South East…this represents a material consideration of very considerable weight’ ”

“London Gateway, a brownfield site, has the potential to provide an alternative development option for the provision of a SRFI to serve the same part of London and the South East as the appeals proposal. Under these circumstances, even if the appeals scheme was also well qualified to meet that need, in my view, the weight attributable to this would be limited.”

Finally, the inspector also had significant concerns in relation to the traffic modelling that had been relied upon by the local authorities, including Transport for London and concluded that “the residual cumulative impact of the development on the local road network would be severe, with particular reference to congestion.”

How uncertain, expensive and slow this process is. And how valuable it would be have been to have kept the 2007 Howbury Park permission alive.

Simon Ricketts, 11 May 2019

Personal views, et cetera

Slow Train Coming: Strategic Rail Freight Interchanges In The South East

The planning system doesn’t just fail to provide homes. There are clear lessons to be learned from the unstructured and inadequate approach that successive governments have applied to securing appropriate strategic rail freight interchange developments (SRFIs, in the jargon) to serve London and the south east. That approach has now wasted decades without a spade in the ground, despite millions of pounds having been spent, countless inquiries and High Court proceedings and no doubt a lifetime of worry for those potentially affected. The difficulties with SRFIs also illustrate that the problems aren’t over even when planning consent is obtained – issues of commercial viability and land control are as fundamental.
This blog post summarises where the three leading contenders have reached: Goodman’s Colnbrook Slough scheme, Helioslough’s former Radlett Aerodrome scheme and Roxhill’s Howbury Park scheme, all in the green belt. It is a long story but that’s why I have tried to tell it.

What is an SRFI?

An SFRI is defined in the Government’s National Networks national policy statement January 2015 as a “large multi-purpose rail freight interchange and distribution centre linked into both the rail and trunk road system. It has rail-served warehousing and container handling facilities and may also include manufacturing and processing activities”.

What is the consenting process?

If the proposal falls within the criteria in section 26 of the Planning Act 2008 (eg a site area of at least 60 hectares, to be connected to national rail network and capable of handling (a) consignments of goods from more than one consignor and to more than one consignee, and (b) at least four goods trains a day), it falls under the NSIP procedure.

The only SRFIs so far consented as NSIPs have been Prologis’ Daventry International Rail Freight Terminal (3 July 2014) and Roxhill’s East Midlands Gateway Rail Freight Interchange (12 January 2016) (the latter against the examining authority’s recommendations). Goodman’s East Midlands Intermodal Park, Roxhill’s Northampton Gateway Rail Freight Interchange, Ashfield Land’s Rail Central Strategic Rail Freight Interchange (also Northampton) and Four Ashes’ West Midlands Interchange are all at pre-application stage.

An NSIP can of course include associated development. There can be uncertainties as to the extent of warehousing that is justified and the degree to which commitments are to be given as to its rail-connectedness. For applications made from 6 April 2017, up to around 500 homes may also be included (see section 160 of the Housing and Planning Act 2016 and the Government’s March 2017 guidance).

If the proposal doesn’t meet the NSIP criteria, it will need to proceed by way of a traditional planning application. The NSIP process has its pros and cons. It is interesting to note that the three schemes we will be looking at in this blog post have been proceeding by way of a planning application, with the site areas of the Colnbrook and Howbury Park schemes being 58.7 hectares and 57.4 hectares respectively (given an NSIP threshold of 60 hectares that looks like a deliberate “serve and avoid” to me…) and with the Radlett application process having predated the switching on of the 2008 Act.

The need case

The National Networks NPS sets out the need for SRFIs in paras 2.42 to 2.58:

“2.53 The Government’s vision for transport is for a low carbon sustainable transport system that is an engine for economic growth, but is also safer and improves the quality of life in our communities. The Government therefore believes it is important to facilitate the development of the intermodal rail freight industry. The transfer of freight from road to rail has an important part to play in a low carbon economy and in helping to address climate change.

2.54 To facilitate this modal transfer, a network of SRFIs is needed across the regions, to serve regional, sub-regional and cross-regional markets. In all cases it is essential that these have good connectivity with both the road and rail networks, in particular the strategic rail freight network (see maps at Annex C). The enhanced connectivity provided by a network of SRFIs should, in turn, provide improved trading links with our European neighbours and improved international connectivity and enhanced port growth.

“2.56 The Government has concluded that there is a compelling need for an expanded network of SRFIs. It is important that SRFIs are located near the business markets they will serve – major urban centres, or groups of centres – and are linked to key supply chain routes. Given the locational requirements and the need for effective connections for both rail and road, the number of locations suitable for SRFIs will be limited, which will restrict the scope for developers to identify viable alternative sites.  

2.57 Existing operational SRFIs and other intermodal RFIs are situated predominantly in the Midlands and the North. Conversely, in London and the South East, away from the deep-sea ports, most intermodal RFI and rail-connected warehousing is on a small scale and/or poorly located in relation to the main urban areas.  

2.58 This means that SRFI capacity needs to be provided at a wide range of locations, to provide the flexibility needed to match the changing demands of the market, possibly with traffic moving from existing RFI to new larger facilities. There is a particular challenge in expanding rail freight interchanges serving London and the South East.”

Annex C strategic rail freight network map

These facilities are important for our economy, and for reducing vehicle emissions (not that there is any reference to this, or indeed any other supra-local planning interventions, in the Government’s draft air quality plan published on 5 May 2017). Unfortunately, the strategy in the NPS is very general. Whilst there are the references to London and the South East in the passages above, this is even less specific than the former Strategic Rail Authority’s Strategic Rail Freight Interchange policy March 2004, much argued over at inquiries, which asserted that “required capacity would be met by three or four new Strategic RFI” in London and the South East and that the “qualitative criteria to deliver the capacity mean that suitable sites are likely to be located where the key rail and road radials intersect with  the M25.”

Currently it is down to the private sector to identify sites which may meet the NPS criteria, with a wary eye on what other sites may be in the frame – a game not for the faint-hearted, meaning a very limited pool of potential promoters.

Since the NPS, we have had DfT’s Rail Freight Strategy 13 September 2016:

Para 53 “This Rail Freight Strategy will not set out proposals for new enhancements to the network nor specify in detail the freight paths that will be needed in future. These issues are being considered by DfT on a longer timescale as part of the long-term planning process for the rail network, which will consider priorities for the railway beyond the current control period (from 2019). To inform the industry’s advice to DfT as part of this process, Network Rail is currently consulting on a more detailed Freight Network Study. This considers the requirements of the rail network over the next 30 years and is intended to support the series of Route Studies that have been published or are under development by Network Rail.”

Will we see an amended National Networks NPS in the foreseeable future so as to give greater direction? I doubt it.

So now let’s look at the most likely candidates to serve London and the South East

Colnbrook

Those with long memories may recall Argent’s LIFE (London International Freight Exchange) scheme proposed on land to the north of the A4 at Colnbrook, near Slough. The then Secretary of State dismissed an appeal against refusal of planning permission on 20 August 2002, stating:

“The central issue remains […] where to strike the balance between Green Belt and sustainable transport interests. The proposal would be inappropriate development in the Green Belt and would harm the openness of the Green Belt, at the same time there are positive aspects including some sustainable transport benefits”.

 “The Secretary of State continues to support the principle of encouraging more rail freight, but shares the Inspector’s judgement that the balance of benefits and disbenefits is against the LIFE scheme as currently proposed and that the general presumptions against inappropriate development in the Green Belt should apply”.

Goodman are now promoting a smaller SRFI on part of the site. Their scheme is now imaginatively called SIFE (Slough International Freight Exchange) and was the subject of a planning application in September 2010. It was refused by Slough Borough Council and an inquiry was due to take place into Goodman’s appeal in October 2012. However, the inquiry was then put in the sidings whilst the then Secretary of State decided whether to re-open an inquiry into the Radlett SRFI scheme, which he considered might have significant implications for SIFE. As it happened, due to delays in that inquiry process (of which more later), the SIFE inquiry was not rescheduled until The Radlett decision letter was issued in July 2014.

After a ten day inquiry in September 2015, the Secretary of State on 12 July 2016 dismissed Goodman’s appeal against refusal by Slough Borough Council of planning permission for SIFE. The Secretary of State addresses the extent to which there is a need for all three facilities (SIFE Colnbrook; Radlett, and Howbury Park):

“24. The Secretary of State has carefully considered the Inspector’s reasoning about need at IR12.88 – 12.103 and accepts the Inspector’s conclusion that the current policy need for a regional network has not been overcome by the SRFI at Radlett and SIFE is able to be regarded as a complementary facility as part of a wider network (IR12.104).

25. With regard to the Inspector’s analysis of other developments and sites at IR 12.105 – 12.106, the Secretary of State agrees that the NPS makes clear that perpetuating the status quo, which means relying on existing operational rail freight interchanges, is not a viable option.

26. The Secretary of State agrees with the Inspector that there is a reasonable probability that Radlett will be operational in 2018 and there is the prospect of Howbury Park being progressed to implementation. In addition, rail connected warehousing is under development in Barking. On the downside, the geographical spread is uneven. There is a noticeable gap in provision on the west side of London, with Radlett being complementary to rather than an alternative to SIFE. SIFE would contribute to the development of a network of SRFI in London and the South East and a wider national network in accordance with the policy objective of the NPS (IR12.107).”

However he goes on to reach the following conclusions as to whether there are very special circumstances justifying inappropriate development in the green belt:

“13. The Secretary of State agrees with the Inspector’s comments at IR12.8, and like the Inspector, concludes that the appeal proposal would be inappropriate development in the Green Belt and that it is harmful as such. As the proposal amounts to inappropriate development he considers that, in the absence of very special circumstances, it would conflict with national policies and with the CS. Like the Inspector, the Secretary of State considers that the NPS does not change the policy test for SRFI applications in the Green Belt or the substantial weight to be attached to the harm to the Green Belt (IR12.8). For the reasons given by the Inspector at IR12.9 – 12.11, the Secretary of State agrees with the Inspector’s conclusion (IR12.12) that the proposed development would result in a severe loss of openness.

14. The Secretary of State agrees with the Inspector that the introduction of major development on the site, even if enclosed within well-defined boundaries, would not assist in checking sprawl and hence would conflict with a purpose of the Green Belt (IR12.13). For the reasons given by the Inspector at IR12.14, the Secretary of State agrees that the proposal would not be compatible with the purpose of preventing neighbouring towns merging into one another. The Secretary of State accepts the Inspector’s conclusion that the proposed development would encroach into the countryside. He agrees too that this conflict is not overcome by the proposed creation of new habitats and other aspects of mitigation in existing countryside areas (12.15). The Secretary of State agrees with the Inspector’s overall conclusion that these conflicts should be afforded substantial weight (IR12.18). The Inspector acknowledges that the proposed SRFI development’s location in the Green Belt may well be an optimum solution in relation to existing patterns of distribution activity, but like the Inspector, the Secretary of State concludes that this does not reduce the actual harm that would occur (IR12.19)”

His overall conclusions:

“40. The Secretary of State accepts that the most important benefit of the proposal is the potential contribution to building up a network of SRFIs in the London and South East region, reducing the unmet need and delivering national policy objectives. In addition, there is the prospect of SIFE being complementary to Radlett and other smaller SRFI developments and improving the geographical spread of these facilities round Greater London. In this context, the Secretary of State accepts that the contribution it would make to meeting unmet need is considerable.

41. He accepts too that SIFE would comply with the transport and location requirements for SRFIs to an overall very good standard. He acknowledges that sites suitable for SRFIs are scarce and the difficulty in finding sites in the London and South East region. On account of this factor, and the standard of compliance achieved, he affords meeting the site selection criteria significant weight. No less harmful alternative site has been identified in the West London market area, a factor which he affords considerable weight. Attracting less but nevertheless moderate weight are the economic benefits, the reduction in carbon emissions and improvements.

42. In common with the Inspector in her conclusion, the Secretary of State has been persuaded by the irreparable harm that would be caused to this very sensitive part of the Green Belt in the Colnbrook area, leading to the high level of weight he attaches to this consideration. Overall, the Secretary of State concludes that the benefits of the scheme do not clearly overcome the harm. Consequently very special circumstances do not exist to justify the development. Furthermore, he finds that planning conditions would not be able to overcome the fundamental harms caused to the Green Belt, Strategic Gap and Colne Valley Park and the open environment enjoyed by the local community. In addition, he has concluded that the proposal does not have the support of the NPS because very special circumstances have not been demonstrated.”

Goodman challenged the decision on the basis that it was wrong for the Secretary of State, in adjudicating the “very special circumstances” test, to give no weight to Goodman’s argument that it was inevitable that a Green Belt location is essential for meeting the need for an SRFI in this location. However the decision has been upheld: Goodman Logistics Developments (UK) Ltd v Secretary of State (Holgate J, 27 April 2017). Holgate J stated:

“It should be noted that Goodman did not advance the extreme argument that the need for another SRFI to serve London and the South East was such that it was inevitable that a a Green Belt site would have to be released for that purpose. There is no policy support for any such proposition. The NPS does not suggest that the need for a network of SFRIs, or for any particular SFRI, is a need to be met come what may, irrespective of the degree of harm which may be caused, or indeed the degree of need for an SRFI in a particular region. Instead, Goodman relied upon an “inevitability” which was qualified. The claimant argued that it is inevitable that another SRFI to serve the London and South East region will be located on a Green Belt site and harm to the Green Belt will occur, if the need for such a SRFI is to be met. The merits of the “inevitability” argument put forward by Goodman were therefore dependent upon the decision-maker’s assessment as to what importance or weight should be attributed to that need and whether that need should indeed be met after taking into account all the harm that would result.”

He goes on:

“The degree of harm that would result from the appeal proposal is only inevitable (in one sense) if the decision-maker concludes that the need for the SRFI and any other benefits flowing from the proposal are of such weight that the balance comes down in favour of granting planning permission. It is not in fact inevitable that the balance will be struck in that way

But if the “need” for SRFIs is not allowed to amount to “very special circumstances” for the purposes of green belt policy, and if there is room for a balancing of the seriousness of that need as against the degree of harm that would be caused, does this lead to unnecessary uncertainty right until the conclusion of the decision making process? Couldn’t the suitability in principle of development in the green belt have been resolved at an earlier stage, preferably via the national policy statement? Similarly, the uncertainties as to the inter-relationship between the three schemes. Why was a decision on Radlett (positive or negative) allowed to become a prerequisite to determining SIFE?

So what next for the site? As it happens, the proposed new runway at Heathrow Airport in combination with associated mitigation proposals and associated development would in fact take up most of the site in any event. Is this planning process now at least partly about establishing “no scheme world” value?

Radlett

Helioslough’s proposal for an SFRI on the former Radlett Aerodome site has a similarly lengthy – and even more convoluted – history. Two appeals had been dismissed for rail freight distribution proposals on the site, which again is in the green belt. The second appeal decision, dated 7 July 2010, turned on a conclusion by the Secretary of State that the Colnbrook site could be a less sensitive site than the Radlett site for an SRFI and that therefore “very special circumstances” for the development of the Radlett site had not been made out.

Helioslough successfully challenged that decision. On 1 July 2011 HH Judge Milwyn Jarman QC ordered that the Secretary of State‟s decision be quashed, holding that the Secretary of State had misconstrued the Strategic Gap policy in Slough’s. Core Strategy and consequently had failed to treat that as an additional policy restraint over and above the Green Belt designation. So the appeal fell to be redetermined by the Secretary of State.

Prior to redetermining it, the Secretary of State consulted with the parties as to whether to conjoin a re-opened inquiry with the inquiry that was to be held into the SIFE Colnbrook appeal. On 14 December 2012 he notified the parties that we was not going to re-open the inquiry but determine it on the basis of the evidence already before him. On 20 December 2012 he issued a letter indicating that he was minded to allow the appeal, subject to completion of a section 106 agreement.

St Albans City and District Council sought to challenge by way of judicial review the Secretary of State’s decision to not to re-open the inquiry. However that challenge was refused permission by Patterson J on 14 June 2013 (and a subsequent renewal application before Collins J failed).

As it happened, the “minded to grant subject to section 106 agreement” indication was unsatisfactory for the promoter too, which had problems completing a section 106 agreement due to land ownership difficulties (part of the site being owned by Hertfordshire County Council) which had led it to press for obligations to be secured by way of negative Grampian-style condition. Helioslough challenged the Secretary of State’s continued delay in issuing a final decision but permission to proceed with judicial review was rejected by John Howell QC sitting as a deputy judge on 1 July 2013.

A section 106 agreement was finally submitted and the Secretary of State granted planning permission in his decision letter dated 14 July 2014. His conclusions were as follows:

“In conclusion, the Secretary of State has found that the appeal proposal would be inappropriate development in the Green Belt and that, in addition, it would cause further harm through loss of openness and significant encroachment into the countryside. In addition the scheme would contribute to urban sprawl and it would cause some harm to the setting of St Albans. The Secretary of State has attributed substantial weight to the harm that would be caused to the Green Belt. In addition he has found that harms would also arise from the scheme’s adverse effects on landscape and on ecology and that the scheme conflicts with LP policies 104 and 106 in those respects.

53. The Secretary of State considers that the factors weighing in favour of the appeal include the need for SRFIs to serve London and the South East, to which he has attributed very considerable weight, and the lack of more appropriate alternative locations for an SRFI in the north west sector which would cause less harm to the Green Belt. He has also taken account of the local benefits of the proposals for a country park, improvements to footpaths and bridleways and the Park Street and Frogmore bypass. The Secretary of State considers that these considerations, taken together, clearly outweigh the harm to the Green Belt and the other harms he has identified including the harm in relation to landscape and ecology and amount to very special circumstances. Despite the Secretary of State’s conclusion that the scheme gives rise to conflict with LP policies 104 and 106, in the light of his finding that very special circumstances exist in this case he is satisfied that, overall the scheme is in overall accordance with the development plan”.

Inevitably, the council challenged the decision. They asserted that the Secretary of State had applied too strict a test in considering whether he could depart from conclusions he had reached in his initial decision and that the Secretary of State failed to take into account a recent decision that he had made on a nearby site. The challenge failed: St Albans City and District Council v Secretary of State (Holgate J, 13 March 2015).

So shouldn’t this be a scheme that is now proceeding, after all of that work? Reserved matters have been applied for, leading to local heat if a report of a recent planning committee is anything to go by. But the rub is that Hertfordshire County Council as land owner hasn’t made a decision as to whether to make its land available to enable the development to proceed.
Howbury Park
The third scheme is one in Crayford, again on green belt land, that was initially promoted by Prologis and secured planning permission on appeal in December 2007. However, due to the global financial crisis it did not proceed and the permission is now time expired.

Roxhill has now replaced Prologis as developer and has submitted fresh applications for planning permission to London Borough of Bexley and to Dartford Borough Council (the proposed access road is in Dartford’s administrative area).

Bexley members resolved to approve the scheme on 16 February 2017 but Dartford members resolved to reject it on 20 April 2017 following their officers’ recommendation. So presumably we may see yet another appeal.

The Bexley part of the scheme is of course within the remit of the Mayor of London, but not the Dartford part, so there is little that he can do by way of intervention. In any event, it will be seen from his 6 June 2016 Stage 1 report that he is not particularly providing a clear strategic lead on the issue:

“11. … The majority of the SRFI developments to date have been in the Midlands and the North, and the aspiration is to have a network of three SRFI around the M25, including this site at Howbury Park, South East London, Radlett, North London(approved by the Secretary of State) and Colnbrook, West London (decision awaited from the Secretary of State) to build a national network.”

“28 Although London Plan policy 6.15a Strategic Rail Freight Interchanges is supportive of the type of facility proposed due to identified strategic need, policy 6.15b caveats this support and sets out criteria which must be delivered within the facility.

A) The provision of strategic rail freight interchanges should be supported. Including enabling the potential of the Channel Tunnel Rail link to be exploited for freight serving London and the wider region.  

B) The facilities must: (a) deliver model shift from road to rail; (b) minimise any adverse impact on the wider transport network; (c) be well related to rail and road corridors capable of accommodating the anticipated level of freight movements; and (d) be well related to the proposed market.  

29 Supporting text paragraph 6.50 acknowledges that these types of large facilities can often only be located in the Green Belt. The Howbury Park site is referenced as a site potentially fulfilling these criteria, reflecting the previous planning permission. Paragraph 6.50 also states:

‘The Mayor will need to see robust evidence of savings and overall reduction in traffic movements are sufficient to justify Green Belt loss in accordance with policy 7.16, and localised increases in traffic movements.’ “

 ”38 The need for a SRFI is accepted, and is borne out through the NPS, the London Plan and the Inspector’s decision on the 2007 case. The applicant has made a compelling ‘very special circumstances’ case but GLA officers would advise further clarification should be sought on the biodiversity benefits of the proposal and the environmental benefits, notably whether the emission savings and overall reduction in traffic movements are sufficient to justify the loss of Green Belt in line with London Plan policy 6.15 and supporting paragraph 6.50. It should be noted that TfL has raised concerns in respect of the potential impact on the passenger rail network and has suggested conditions to limit the hours of operation of rail movements in and out of the SRFI. GLA Officers would want to know the full details of the potential impacts on the wider transport network (in line with London Plan policy 6.15B (b) and whether such conditions would hinder the operation and whether this would reduce the potential emission savings and traffic movements. GLA officers would also seek details of the proposed biodiversity management plan and compensatory measures. GLA officers would also expect a similar obligations package as that previously agreed to encourage the take up of rail use.

39 For the above reasons, at this stage, it is considered premature for GLA officers to make a concrete judgement as to whether the applicant’s very special circumstances case outweighs the identified harm to the Green Belt, and any other harm.”

Concluding thoughts

Even if your work never brings you into contact with the rail or logistic sectors, these convoluted stories must surely give rise to serious concerns. Successive governments have said that these types of facilities are needed in the public interest, for the sake of our national economy and to reduce polluting road freight miles. And yet they wash their hands of any responsibility for lack of delivery.

The consequences of not providing clear strategic guidance is that years are spent on expensive, contentious planning processes. Often by the time that a process has concluded the world has moved on and the process has to start all over again.
These are massively expensive schemes to promote. What can we do to make that investment worthwhile? If a site is unacceptable, can’t we indicate that at the outset and not many years later?

To what extent should land ownership issues be resolved at the outset of a major project?

Should the NSIP threshold be reduced? These schemes end up being determined at a national level anyway. Why not funnel them through a process that is more fit for purpose?

Why don’t we bite the bullet and arrive at more spatially specific policies in the National Networks NPS rather than leave it for promoters to read between the lines as to what the Government’s approach may end up being to particular proposals – particularly given the inevitably sensitive locations involved, often in the green belt? (Or is that taboo issue the answer to my question?).

Simon Ricketts 6.5.17

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