The Highway and Railway (Nationally Significant Infrastructure Project) Order 2013

EXPLANATORY NOTE

(This note is not part of the Order)

This Order amends the Planning Act 2008 (c.29) (“the Act”). It substitutes a new section for section 22 (Highways), and amends section 25 (Railways). Sections 22 and 25 of the Act set out where highway-related development and where the construction or alteration of a railway fall within the respective scope of section 14(1)(h) and (k) of the Act so as to represent “nationally significant infrastructure projects” for the purposes of the Act. Nationally significant infrastructure projects require development consent under the Act before they can proceed.

Article 3 substitutes a new section 22 into the Act.

Subsection (1) of the substituted section 22 provides that highway-related development only falls within the scope of section 14(1)(h) of the Act (so as to represent “nationally significant infrastructure”) where the development is construction, alteration or improvement of a highway falling within the cases set out in subsections (2), (3) and (5) of the substituted section 22.

Subsection (2) and (3) of the substituted section 22 provide that the construction or alteration of a highway will only fall within section 14(1)(h)of the Act where the highway will be, or is, in England, the Secretary of State will be, or is, the highway authority and the area of development exceeds the limit values in subsection (4) of the substituted section 22. The limit values in subsection (4) are set for motorways, highways with a speed limit greater than 50 miles per hour and for all other highways.

Subsection (5) of the substituted section 22 replicates without change subsection (3) of the previous section 22, and contains provisions relating to improvement of a highway. Improvements to a highway will only fall within the scope of section 14(1)(h) of the Act where the highway is wholly in England, the Secretary of State is the highway authority and the improvement is likely to have a significant environmental effect.

Subsection (6) of the substituted section 22 exempts highway-related development from being a nationally significant infrastructure project where any order listed in section 33(4) of the Planning Act has been made before 1^st March 2010 and where a further order is needed. Subsections 22(7) and (8) of the substituted section 22 provide for two new exemptions from the alteration limb of the definition of highway-related development falling within the nationally significant infrastructure category. Subsection (7) exempts highway-related development consisting of an alteration to the highway where planning permission has already been granted for a development, the alteration is required as a result of that development and the developer has asked the Secretary of State to make the alteration. Subsection (8) exempts highway-related development consisting of an alteration to a highway which is necessary as a result of local highway works (for which an order mentioned in section 33(4) of the Act has been made in relation to those works) and the local highway authority has asked the Secretary of State to carry out those works. Local highway works are defined in subsection (9) of the substituted section 22 as being works carried out by or on behalf of a local highway authority to a highway for which it (rather than the Secretary of State) is the highway authority. Subsection (9) also sets out certain other new definitions for the purposes of the substituted section 22.

Article 4(2) amends section 25(1) of the Act so that, in addition to having to meet the existing criteria set out in that subsection, the construction of a railway will only fall within section 14(1)(k) of the Act if the railway, when constructed, will include a continuous stretch of track of more than 2 kilometres in length on land that either was not railway operational land immediately before the construction work began or else was acquired for the purpose of constructing the railway.

Article 4(3) amends section 25(2) of the Act so that, in addition to having to meet the existing criteria set out in that subsection, the alteration of a railway will only fall within section 14(1)(k) of the Act if the alteration includes the laying of a continuous stretch of track of more than 2 kilometres in length on land that either was not railway operational land immediately before the alteration work began or else was acquired for the purpose of the alteration.

Article 4(4) inserts a new subsection (2A) in section 25 of the Act which provides that the construction or alteration of a railway is not within section 14(1)(k) of the Act to the extent that the construction or alteration of the railway is on the operational land of a railway undertaker (unless that operational land was acquired for the purpose of the construction or alteration of the railway).

Article 4(5) amends section 25(7) of the Act to include definitions for ‘operational land’ and ‘railway undertaker’.

Article 4(6) makes a minor consequential amendment to section 25(8) of the Act.

Article 5 makes transitional and savings provisions. Article 5(1) makes provision for circumstances where an application (whether for a rail or highways-related development) has been submitted prior to the coming into force of this Order. The application process continues to go forward under the Act as it would have done if the Order had not been made and where an order for development consent is made or development consent refused, then the options for challenge are as provided for in the Act. Finally, any provisions in an order for development consent that is made following the conclusion of the process under the Act will continue to have effect and any provisions of the Act that would have applied if this Order had not been made continue to apply.

Article 5(2) makes provision for where an order for development consent has already been made or development consent has been refused prior to the coming into force of this Order. The options for challenge as provided for in the Act will apply to any such order or refusal. Also any provisions of an order for development consent made prior to the coming in force of this Order continue to have effect and that the provisions of the Act continue to apply to the order for development consent that has been made.

A full impact assessment of the effect that this instrument will have on the costs of business, the voluntary sector and the public sector is annexed to the Explanatory Memorandum for this Order on www.legislation.gov.uk.