Today's entry considers whether the promoters of some highway projects are unaware that the Planning Act regime applies to them.

The planning and authorisation regime under the Planning Act applies to 16 different kinds of project, including highways. For each one, there is a threshold above which the project is considered a nationally significant infrastructure project (NSIP) and must use the regime for authorisation. It is a criminal offence to build an NSIP without having authorisation under the regime, not just a risk of enforcement action being taken.

The term 'nationally significant infrastructure project' is a legal concept and does not include any test of whether a project is in fact significant to the nation. The highways threshold is a case in point. The construction of a highway is an NSIP if it is being constructed for a purpose connected with a trunk road or motorway. (That isn't the full definition, but the rest of it only applies to improvements or alterations being carried out by or for the Secretary of State.)

Thus please note (a) you as the promoter do not need to be the Highways Agency and (b) the highway you are building does not need to be a trunk road or motorway. There just has to be some 'purposive' link to a trunk road or motorway. Physically connecting to a trunk road or motorway would make it very likely that its purpose was connected to that road, but I don't think it even needs to connect to a trunk road or motorway - it is why it is being built that is important. If it is being built to relieve traffic on an adjacent trunk road, then there is a good argument that it is an NSIP.

There has been one practical example of this so far. The proposed Heysham to M6 Link Road is being promoted by Lancashire County Council (not the Highways Agency) and it will not become a trunk road (LCC will be the highway authority for it). Nevertheless it is an NSIP because it is to take traffic to and from the M6. By accepting the application just before Christmas, the IPC agrees that it is an NSIP. The forthcoming M1 Junction 10a project being promoted by Luton Borough Council is also in the pipeline.

If you think that is a low threshold, it is actually lower in two ways. First, the regime has been in place for highways for exactly two years today. The transitional provisions excused any projects where applications were made before 1 March 2010, but every highway NSIP after that must use the regime. There are several local authorities who are proposing bypass or link road schemes that connect to trunk roads. They would previously apply for planning permission to themselves. Now, they will risk criminal sanctions if they do so and the project might be an NSIP, or if they rely on a planning application made in the last two years.

The second way is the breadth of the definition of 'highway'. It includes everything from a motorway down to a cycle track or footpath. The then transport minister Jim Fitzpatrick MP acknowledged during the committee stage of the Planning Bill that a footpath could be a nationally significant infrastructure project, giving an example of one on the A38 at Doublebois in Cornwall (see colummn 310 here).

County councils and unitary authorities in particular should therefore take great care before putting a spade in the ground to build a new highway (the point at which an offence would be committed) without checking that what they are doing is legal. Of course in practice they should be checking this much earlier in the process.

There are a lot of developments in the roads area at the moment and we have just produced a newsletter on the subject, covering things like the Cook Report and the A14 Challenge. If you would like a copy please let my colleague Tom Henderson know.

One development that hasn't happened is the publication of the National Networks National Policy Statement. This will set out the need for roads, railways and rail freight terminals and the impacts that project promoters should mitigate and the IPC should assess when considering applications. Originally expected in autumn 2009, we are now into March 2012 and there is no sign of it, although it is supposed to be imminent.

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