Daventry International Rail Freight Terminal

The list below includes a record of advice we have provided for this project. For a list of all advice issued by the Planning Inspectorate, including non-project related advice, please go to the Register of advice page.

There is a statutory duty, under section 51 of the Planning Act 2008, to record the advice that is given in relation to an application or a potential application, including the name of the person who requested the advice, and to make this publicly available.

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Enquiry received via email
response has attachments
I have come across a fault in the traffic assessment submitted and accepted for the DIRFT III project. That project has not developed sufficiently for the local community to 'encounter' that fault.

I am a retired scientist resident in Blisworth which is very near the sites of two major SRFI projects that are being presently prepared for submission to PINS. In my research associated with analysing the traffic forecasts for these projects I noticed how closely the applicants have formatted their traffic figures on the figures presented for DIRFT III and accepted a few years ago.

Just the current figures gave me concern enough and I will deal with them at the appropriate time.

However I wish to report the faulty DIRFT format, as it appears to me, found in the DIRFT data. This was prepared by Vectos and I refer you to Table 8.1 in the document entitled "Document 6.2 Regulation 5(2)(a) Environmental Statement Technical Appendices Transport Assessment, February 2013". The table is reproduced and annotated in the attachment.

Dealing with only the "total persons trips" there are six readily identifiable peak values in the one hour slots and these are coloured red for arrivals and blue for departures. There appears to be evidence for a traditional 3-shift employment system, the figures for which overlay 'background' streams of arrivals and departures throughout the day that correspond to office staff and support workers.

I try to concentrate on the shift worker contingents which I separate from the aforementioned background by a straight forward arithmetical procedure. I get from this:

1. 0600 shift, 1227 arrive and 8 hours later 731 depart.
2. 1400 shift, 550 arrive 430 depart.
3. 2200 shift, 440 arrive 311 depart.

If compared with the steady arrival of loads that need processing at a high and steady rate throughout the day (but with 10s of percentage fewer during night time), this profile of 1227, 550 and 440 contingents does not look right at all - the figures are too small. Here I suspect massaging of the figures at source probably in order to avoid local traffic overload in their forecast.

There is another issue: the contingents departing are only 60 to 78% of the corresponding arrivals. The rather obvious reason for this is that workers are charged with a shift duration that in many cases will differ from 8 hours, usually longer by up to 4 hours. Indeed it is entirely plausible that a proportion of workers are taken on with 12 hour shifts starting at various times.

There is choice in interpretation here: either the figures are carelessly massaged to avoid forecasting a traffic overload or a CONFIGURATION of shift allocations has been invoked and this done without any supporting textual description in the document as far as I can find. Both are a serious problem but what worries me most is that any 'configuration', whether explained to PINS or not, rather assumes that the group of various occupiers (or rather the group of CEOs) would be expected to form a 'club' in which it is agreed that such configuration shall be observed at least until such time that either (a) Highways England can continue to maintain a program of adequate improvements or (b) the onset of warehouse automation sweeps the problem away.

What is clearly unacceptable would be traffic pulses on completion of DIRFT III corresponding to 1500-2000 cars at each shift change arriving and departing whilst far fewer were actually forecasted.

I hope to receive a reply on the points in this letter so I will know whether I am barking at the wrong tree and this is why the letter is entitled "Seeking advice". This letter is not copied to anyone other than PINS but I wonder whether that is wisest.
Following an examination, which considered the Environmental Statement submitted alongside the application, a decision on the application for a development consent order for Daventry International Rail Freight Terminal was taken on 03 July 2014 and has now been issued. That examination cannot be reopened and that decision can only be challenged in the courts. You can find a copy of the Statement of Reasons and the Examining Authority's report to the Secretary of State on our website, here:

[attachment 1]

The period for legal challenge is defined in s118 of the Planning Act 2008. Further information about legal challenge can be found in the letter sent to all interested parties accompanying the statement of reasons.

If you have concerns about how the Development Consent Order is being implemented, I suggest you contact your local planning authority in the first instance.

If you have any questions about the process for considering applications for development consent, please do not hesitate to contact me.

13 November 2017
Tony Marsh
Enquiry received via email
We have received the Examiner's letter dated 13 December 2013 requesting further information and representations on DIRFT3 in the light of the Department of Transport's National Networks NPS. This letter was sent out later on 13 December and was not seen until the beginning of this working week.

Very little time has been allowed for work which requires the obtaining of the DfT's National Networks NPS document and study of it, before considering what representations to make, and drafting and finalising these. This is the more inconvenient because of the holiday season.

Can you please extend the time for representations until Tuesday 24 December? It is unclear why a Friday should be the closing date when the responses will not be examined until the following Monday.

It is not clear when staff at PINS will be available between now and 6 January. When will PINS offices be open and on what days will a member of the DIRFT3 Team be available between Monday 23 December and Friday 3 January 2013, please?
Firstly, the deadlines contained in the Examination timetable are set by the Examining Authority (ExA) and unfortunately the case team are unable to extend them. However, the ExA does have discretion to accept submissions which have been received after a deadline has elapsed.

If you have been unable to meet the deadline of 20 December 2013 I advise you to still submit your response to the ExA's rule 17 letter dated 13 December 2013. Unfortunately, I cannot guarantee the ExA will accept your late submission as part if it's Examination. The case team will confirm receipt and then advise whether the ExA wishes to accept it. Please note that once the ExA closes it's Examination on or before 8 January 2014, there is no scope to accept any late submissions.

Finally, I can confirm that a member of the DIRFTIII case team will regularly check the project mailbox over the Christmas period.

23 December 2013
CPRE Warks - Mark Sullivan
Enquiry received via email
Should we expect any further fees to be paid post examination and if so, how are these calculated?

Is the fee below an on account payment to be increased or indeed credited, in the event that the examination is longer or shorter than currently estimated?
The Infrastructure Planning (Fees) Regulations 2010 as amended by The Infrastructure Planning (Fees) (Amendments) Regulations 2013 provide for one further payment in respect of this examination.

The invoice you have just received was basically calculated on half the the likely length of examination. Once the examination has closed you will be invoiced for the remaining amount, calculated on the actual end date of the examination. Therefore if the examination is longer or shorter than anticipated, it is the final payment that will be adjusted accordingly rather than any increase or credit on the payment requested.

09 September 2013
Horstonbridge - Tim Warrell
Enquiry received via email
With regard to your report of the meeting on 8 July 2013, I must correct an error. Your report states:

"Grenville Hatton on behalf of Barby Hill Archaeological Project raised the issue of heritage assets outside the limit of the proposed development that were as yet unidentified."

By referrring to the audio recording of the proceedings of the meeting, you will find that what I said was not "heritage assets outside the limit of the proposed development that were as yet unidentified" but "the effect of already recognised heritage assets outside the limit of the proposed development upon the discovery and interpretation of possible heritage aspects within the development area that are as yet unidentified".

I hope that you can now see the significance of this point, which is totally different from what you reported. The project documentation makes no reference to some significant heritage aspects just outside the development area, and in my opinion these aspects (which we have clearly identified in our WR) should be mentioned in the project documentation, because they may have a significant bearing on interpretation of possible heritage within the area.
Apologies if you feel that the note does not accurately reflect the point you made verbally at the Preliminary Meeting. As a summary note of such a meeting, unfortunately we can never guarantee total accuracy.
However, let me reassure you that I have passed this piece of correspondence on to the Examing Authority and he is fully aware of the matter. This will in no way limit your ability to raise the point during the examination through the appropriate stage. I would therefore strongly encourage you to ensure that in writing any written representation that you may wish to submit that you make the point in the way that you highlight below.

24 July 2013
BarbyHill Archaeological Project - Gren Hatton
Enquiry received via email
Query regarding submission of Relevant Representation after the deadline
The deadline for submitting Relevant Representations closed on 20 May 2013, we are unable to accept comments via email as a Relevant Representation. Catthorpe Parish Council is a Statutory Consultee but did not submit a Relevant Representation during the registration period. Therefore, Catthorpe Parish Council will need to contact the ExA in writing requesting to be an interested party once the Examination begins. The day after the Preliminary Meeting closes, we will issue a 'Rule 8' letter notifying interested parties that the Examination has formally begun, enclosing the set Examination timetable. This letter will also advise that Statutory Consultees, who did not submit a Relevant Representation, must contact the ExA requesting to be interested party. Otherwise they will only receive correspondence regarding any alterations to the Examination timetable. This will be the appropriate time to note that Catthorpe Parish Council wish to play an active part in the Examination.

Once the application moves into Examination, you will have the opportunity to submit your comments below as a 'Written Representation'. Please refer to the timetable, which we will issue once the Examination begins, for details of when Written Representations can be submitted.

For further information regarding the Examination period, please view the following external guidance supplied by the Planning Inspectorate:
Advice note 8.5: Participating in the examination.

27 June 2013
Catthorpe Parish Meeting - Ray Fisher
Enquiry received via email
I have received today in the post a notice of a meeting for the Daventry rail freight expansion project with Rugby Radio station. It has come to me as LRF co-ordinator at Northants Police. However I am not sure I should have received it as the forum is a forum and has no legal entity ? I am just checking the notice has gone out to the statutory authorities for their involvement separately.
As you may be aware, Northamptonshire Local Resilience Forum 'NLRF' have been identified under s102(1)(ca)(i) of the Planning Act 2008 (as amended) as an interested party with status of statutory consultee for the above application. As a statutory consultee, the Planning Inspectorate is under obligation to inform all interested parties about any procedural decisions made about the application until the application formally enters the Examination, hence why we have sent you correspondence regarding the DIRFTIII application.
Following the Preliminary Meeting, the Planning Inspectorate will issue a procedural decision known as the 'Rule 8' letter notifying all interested parties including statutory consultees that the Examination has formally opened, enclosing the set Examination timetable. This letter will also provide an opportunity for statutory consultees, who did not submit a Relevant Representation, to contact the ExA requesting to be interested party to be involved in the examination if they wish to; therefore it is for NLRF as a statutory consultee to decide whether you wish, or not to continue being involved in the process of the above application.
As NLRF did not submit a Relevant Representation during the registration period, if you wish to continue to be an interested party you will need to write to the ExA requesting this at any time during the examination.
I can confirm that the Northamptonshire Police and Crime Commissioner have also been indentified as a statutory consultee and they have been corresponded with regarding the above application.

26 June 2013
George Cooper
Enquiry received via meeting
response has attachments
A meeting with with the two local authorities and the two county councils to discuss what their role is during an NSIP application and how they can prepare for Examination
Please see the attached presentation and meeting note

09 May 2013
Daventry District Council - Eamon McDowell
Enquiry received via email
Having considered both s127 and s138 of the Planning Act 2008, it is our view that both provisions only require the Secretary of State to issue a certificate if the DCO includes:-
1. A provision authorising the compulsory acquisition of statutory undertakers? land (S127 (2)), or
2. the acquisition of a right over statutory undertakers? land by the creation of a new right over land (S127 (5)); or
3. authorises the acquisition of land (compulsorily or by agreement) ? and (a) there subsists over the land a relevant right, or (b) there is on, under or over the land relevant apparatus (S138(1)).

On the basis that the application does not intend to compulsorily acquire any of the land or interests of a statutory undertaker, it is our view that there is no need to make an application under s127/s138.
Your summary of the legal position is broadly correct, although you will of course have to advise your clients on these matters, and only a court can give a definitive ruling on the meaning of statutory provisions.

With regards s.127, the circumstances when this section applies are set out s.127(1). What s.127(2) and (5) do is only allow a DCO to include powers authorising the compulsory acquisition of statutory undertakers' land or rights over statutory undertakers' land if certain matters have been met and the SoS issues a certificate to that effect.

Your conclusion that "On the basis that the application does not intend to compulsorily acquire any of the land or interests of a statutory undertaker, it is our view that there is no need to make an application under s127/s138" would not necessarily be correct with regards s.138 because this section applies whether a DCO authorises the acquisition of land compulsorily or by agreement, and there subsists over the land a relevant right or there is on, under or over the land relevant apparatus (see s.138(1)).

With regards s.138, where land is to be acquired and this is proposed to be authorised by the DCO, we assume your client has satisfied itself that there are no relevant rights or relevant apparatus of any statutory undertakers in relation to any part of the application site.

You will note that s.138 also applies, in certain circumstances, to the operators of electronic communications code networks - not just statutory undertakers.

Finally, s.138 does not involve the SoS issuing a certificate but rather, where applicable, consenting to the inclusion of the relevant provision.

16 April 2013
Marrons - Julie Russell
Enquiry received via email
response has attachments
I am the main English Heritage contact for this project - do we need to formally register our interest or are we already identified on the basis of the statement of common ground / difference?
As you correctly state in your email, English Heritage have been identified as a Statutory Party under Schedule 1 of The Infrastructure Planning (Interested Parties) Regulations 2010 and therefore you will continue to receive correspondence regarding the above application until the start of the Examination period.

Once the Examination begins, unless you have already submitted a Relevant Representation, English Heritage will then be asked to confirm whether you want to continue being a Interested Party. If you do not respond at this point, English Heritage will be removed from our distribution list and you will stop receiving information regarding the application. Should you wish to at any point during the Examination to participate, you will need to notify us.

However, we advise engaging in the application process early by submitting a Relevant Representation and confirming you want to be an Interested Party for the whole application. By making a representation at this stage ensures any comments/concerns English Heritage have can be included in the Principal Issues and draft timetable. Please note the Relevant Representation period opened today and you can submit a representation on behalf of English Heritage online here: [attachment 1].

11 April 2013
Tim Allen English Heritage
Enquiry received via meeting
response has attachments
A meeting with the developer to discuss any issues arising following Acceptance and to discuss future project timescales.
Please see meeting note attached.

28 March 2013
Marrons - Morag Thomson
Enquiry received via email
response has attachments
Please find attached the response to Marrons letter dated 19 December 2012

19 December 2012
Morag Thomson Marrons
Enquiry received via email
Response to Marrons e-mail dated 13 December 2012
Thank you for your email of today, I shall provide a full reply as soon as I am able.

In the meantime, I would remind you that we will need to receive an updated shapefile, identifying the proposed DCO application site boundary, in the appropriate format. The previous shapefile provided on the 10 October, submitted before the last DCO application was made to the Secretary of State, only identified the main rail freight terminal and did not show the off-site highway works, which are included within the proposed DCO. Therefore a revised shapefile showing both the main rail freight terminal and all of the off-site highway works is required to enable us to identify the appropriate pre-application consultees.
I have set out below the requirements that the Shapefile needs to comply with. The shapefile should be:

? a Polygon geometry type and consist of one or more polygon features representing the proposed DCO site boundary (including any associated development);

? a single, valid, ESRI Shapefile for each site boundary, consisting of one or each of the following files: *.prj, *.dbf, *.shp*, shx. Please note that these four files are essential and no other files should be contained within the *.zip file;

? in the British National Grid (OSGB1936) format; and

? provided as a *.zip file using the default WinZip settings (i.e. no encryption, normal compression etc.). No other files should be contained within the *.zip file.

Please note that we usually request that the shapefile is provided at least 10 working days before the DCO application is submitted.

17 December 2012
Marrons - Morag Thomson
Enquiry received via email
We are not needing to consult any further because we are not proposing to carry out any works in Leicestershire. A very minor alteration to the junction amendments which caused the concern has obviated the need for the three white lines.

Whilst we do intend to send a scheme update document to our s.42 consultees this is simply for information and not a consultation exercise. We will be relying on our stage 1 and stage 2 consultation exercise as before, having addressed the concern raised in respect of that exercise relating to Leicestershire.

We will be writing to Cambridgeshire, however, since failure to consult them was not an acceptance issue the resubmission need not await their response, if any.

We currently anticipate that our resubmission will be towards the end of next week.
Please find attached a link to a copy of the finalised meeting note and the adequacy of consultation response from Leicestershire County Council for ease of reference.

We have some concerns about your proposed approach to consultation in relying on Phase 1 (where no highway works were put forward) and Phase 2 where your own Consultation Report and the response from Leicestershire County Council (attached above) in relation to the initial application has identified that they were still awaiting details of the highway works, and would note that it appears to be at variance with the approach you outlined and we discussed in the meeting.

In our view, Leicestershire County Council would probably still need to be consulted as a relevant highway authority even if you have amended the detailed drawing to remove proposed highway works in their area because the project is still "...likely to have an impact on the road network..." in their area, given the works on A5, for example. This point is clearly made at section 2 iii) of the meeting note (attached above). The definition of "relevant" in Schedule 1 of the APFP Regulations refers to bodies which have "...responsibility for an area which neighbours that location" (i.e. neighbours the location in which the proposals may or will be sited). On that basis it seems to us that Leicestershire County Council would probably need to be consulted under s.42(1)(a). If not, you would need to explain in your consultation report why you consider that this body does not need to be consulted. In the meeting, Mr Lewis agreed that he would seek to obtain a response from Leicestershire County Council.

Not consulting Cambridgeshire County Council was referred to as a failure to comply with Chapter 2 of Part 5 of the Planning Act 2008 in the non-acceptance letter and noted in the spreadsheet, albeit it was not stated as one of the three reasons for non-acceptance in the letter, as these were the most significant items. In any event, you have previously accepted that Cambridgeshire County Council were not consulted under s.42 at pre-application stage.

If either or both of these bodies were to be formally consulted then arguably they should be given at least 28 days in which to respond. If the application was to be 're-submitted' before the end of that consultation period or receipt of any response(s) (if earlier) then the question arises as to how this would be dealt with in the consultation report.

I look forward to your clarification of how you consider the 'resubmitted' application will be able to meet all the requirements of the Planning Act 2008, relevant Regulations, and CLG Guidance as per the non-acceptance letter, the meeting note, and this email.

13 December 2012
Marrons - Morag Thomson
Enquiry received via email
response has attachments
Please find attached correspondence with Marrons dated 13 December 2012

13 December 2012
Marrons Morag Thomson
Enquiry received via email
It does not the same as my amended version but I am not suggesting that we continue the debate. Please simply note that it is not an agreed note.

My clients are concerned that a further full fee of £4,500 is being requested with the resubmission and I have been instructed to ask you to explain the basis for this (including the regulation which applies) and the reasons why a full fee is being charged again.

Notwithstanding that, and to avoid any possible delay in processing the resubmission, I am arranging to transfer £4,500 to the Inspectorate today since it is our intention to resubmit by the end of next week.
Thank you for your email of today's date.

We note that you do not agree with the entirety of the contents of the meeting note. Nevertheless it is in our judgment an accurate record of the meeting, and we will be
publishing the note on our website in the usual way.

Please can you confirm which day you intend to resubmit the application. We will need to provide all relevant local authorities with advance warning of this for the adequacy of consultation comments as this may be challenging for them over the Christmas and New Year period.

We trust that you will have been able, in the time available to you since you received our non-acceptance decision, to rectify the deficiencies in the application as originally submitted, carry out the necessary consultation and reflect this consultation in the consultation report.

In terms of the application fee, Regulation 5(1) of the Fees Regulations provides that the Secretary of State must charge the applicant a fee in respect of the decision by the Secretary of State under section 55 (acceptance of applications) whether or not to accept the application and Regulation 5(3) provides that "The fee must be paid at the same time that the application is made". The fee payable is a flat rate fee and is set at £4,500 under Regulation 5(2).

13 December 2012
Marrons - Morag Thomson
Enquiry received via email
Confirmation of whether the Planning Inspectorate require a further application fee with the re-submission application.
Further to my previous reply, I am now able to confirm that an application fee will be required for the re-submission.

12 December 2012
Marrons - Laura-Beth Hutton
Enquiry received via meeting
response has attachments
Correspondence submitted by Marrons regarding meeting with Planning Inspectorate 5 December 2012 on non acceptance of the application.
Please see attached correspondence from Marrons for advice given

05 December 2012
Marrons - Morag Thomson
Enquiry received via meeting
response has attachments
To discuss non-acceptance of the DIRFT III application and agree future actions
Please see attached meeting note for advice given

05 December 2012
Morag Thomson
Enquiry received via email
I note from various applications recently accepted that applicants have included in their Book of Reference a Schedule listing ?Statutory Undertakers and Other Like Bodies having or possibly having a right to keep equipment on, in or over the land within the Order Limits?. I note this hasn?t been raised previously in response to the submission of our draft documentation, but please can you confirm whether we will be expected to provide such a schedule within the Book of Reference?
It is our undertsanding that this is not something that we expect to be put in the Book of Reference, but something that applicants have put in of their own accord on the basis of their own legal advice. If such a list is included, however, the reason should be explained in the application documentation.

19 September 2012
Marrons - Laura- Beth Hutton
Enquiry received via email
Under Schedule 13 of the Localism Act 2011, s38 Planning Act 2008, which makes provision for Secretary of State to prescribe the model provisions, is to be omitted. Do you have any further information on when the current model provisions are being revoked?

Can you please confirm whether, if the Model provisions have been revoked by the time we submit our application, we will then (contrary to guidance and the Prescribed Forms and Procedures Regs) no longer need to explain any departures in our draft Order from the model provisions in the Explanatory Memorandum?
s.38 of the Planning Act 2008 (the 2008 Act) is the relevant substantive provision in the primary legislation for this regime dealing with model provisions - in particular, enabling the Secretary of State to prescribe model provisions and requiring that the Commission must have regard to these. Paragraph 6 of Schedule 13 to the Localism Act 2011 (2011 Act), states "Omit s.38 (Secretary of State may prescribe non-compulsory model provisions)". This provision of the 2011 Act, omitting s.38 of the 2008 Act, will come into force on 1 April 2012.

No decision has yet been made by the Government as to whether or not Guidance will be published to deal with model provisions. Any Guidance that might be published with regards model provisions would though be 'non-compulsory' - there would not be any express statutory requirement to have regard to it (compare with for example, at present s.38(2), and s.50(3) of the 2008 Act in relation to pre-application procedure Guidance).

In the event that the Model Provisions Order has been revoked prior to any Guidance being published, applicants will still be free to make use of the wording of those provisions, if they so wish, within the draft DCO they submit with their application, and also use them prior to that as a basis for any proposed draft(s) they prepare at the pre-application stage. Applicants may also still wish to set out in their explanatory memorandum any divergences from the (revoked) model provisions.

22 February 2012
Marrons - Kate Harrison
Enquiry received via email
Where land is potentially subject to Special Parliamentary Procedure but is not being acquired, does it need to be included in Part 4 of the Book of Reference.
The Infrastructure Planning (Applications: Prescribed Forms and Procedure) Regulations 2009 (APFP) Regulation 7(d) requires that Part 4 of the Book of Reference should specify the owner of any Crown interest in the land which is proposed to be used for the purposes of the order for which application is being made; this is irrespective of whether it is proposed to be compulsorily acquired or not. Secondly, Part 4 of the Book of Reference refers specifically to Crown land and not any other categories of land. Thirdly, Special Parliamentary Procedure (SPP) in respect of local authority and statutory undertakers land only applies where it is proposed to compulsorily acquire land or rights over land (Planning Act 2008 s.128(2)) and the condition in PA 2008 s.128(3) is met. Finally, SPP may also apply in certain circumstances to "special category land" as defined in Regulation 2(1) of the APFP Regulations 2009.

19 January 2012
Marrons - Kate Harrison
Enquiry received via email
Can a Development Consent Order remove the requirement for a licence under the Conservation of Habitats and Species Regulations 2010, as it could have a licence under the 1994 Regulations?
The query relates to licenses under Regulation 44 of the Conservation (Natural Habitat, &c) Regulations 1994 ("the 1994 Regulations"). Paragraph 16 of Part 1 of the Schedule to the Infrastructure Planning (Miscellaneous Prescribed Provisions) Regulations 2010 ("the Miscellaneous Provisions Regulations") makes reference to such licences.

The 1994 Regulations were in relation to England and Wales revoked by Regulation 133(3) of the Conservation of Habitats and Species Regulations 2010 ("the 2010 Regulations"); the 2010 Regulations consolidated the 1994 Regulations. Regulation 53 of the 2010 Regulations re-enacts Regulation 44 of hte 1994 Regulations, albeit with modifications. Regulation 44 was revoked, and Regulation 53 came into force, on 1 April 2010. The Miscellaneous Provisions Regulations came into force on 1 March 2010.

Since Regulation 53 of the 2010 Regulations in effect re-enacts Regulation 44 of the 1994 Regulations, and no contrary intention is expressed, we consider that the reference in paragraph 16 of Part 1 of the Schedule to the Infrastructure Planning (Miscellaneous Prescribed Provisions) Regulations 2010 to Regulation 44 should be construed as being a reference to Regulation 53.

02 December 2011
Marrons - Kate Harrison
Enquiry received via meeting
response has attachments
Meeting between IPC, ProLogis and Marrons
Note of meeting between IPC, ProLogis and Marrons attached

18 November 2011
Marrons - Morag Thomson
Enquiry received via email
The foot note to Article 8 of the Model Provisions (Street Works) provides that the Article should not be used in respect of trunk roads. We may be mistaken but cannot see a distinction in the New Roads and Street Works Act 1991 between ordinary roads and trunk roads (unless designated a special road and within s61 of the 1991 Act as a protected street). Can you please advise whether the foot note applies to all trunk roads and if so the provenance for this?
The Department for Transport have confirmed our interpretation of the New Roads and Street Works Act 1991 (the 1991 Act), namely that no distinction is drawn in the 1991 Act between trunk and other roads (unless designated as a special road or within s.61 of the 1991 Act as a protected street). Rather, we understand from the Department that the footnote to Article 8 in the Model Provisions was included to address the operational needs of the Highways Agency (the Agency), as the highway and street authority for trunk roads, rather than for legal reasons.

In summary, we understand that the Agency considers that the logistical complexity of proposed street works to trunk roads, and uncertainty over which statutory undertakers would be involved means that there would be insufficient certainty when an application for development consent is submitted for a suitably worded article, to their satisfaction, to be included in a draft DCO. The Agency therefore considers it preferable for such works to be consented separately by way of an application for a licence under s.50 of the 1991 Act.

However, it seems to us possible that if such operational concerns could be addressed to the satisfaction of the Agency sufficiently early at the pre-application stage then potentially a suitably worded Article could be included in a draft DCO. This may depend (inter alia) on the nature and extent of the proposed works, and/or on the particular trunk road in question. In any event, we would suggest that this is something you or your client may wish to take up with the Agency.

16 September 2011
Marrons - Kate Harrison
Enquiry received via email
We are looking at our draft Development Consent Order and the Model Provisions Regulations and would be grateful of the IPC's guidance on the following:

The foot note to Article 5 of the Model Provisions (Street Works) provides that the Article should not be used in respect of trunk roads. We may be mistaken but cannot see a distinction in the New Roads and Street Works Act 1991 between ordinary roads and trunk roads (unless designated a special road and within s61 of the 1991 Act as a protected street). Can you please advise whether the foot note applies to all trunk roads and if so the provenance for this?
We have now received some further clarification from the relevant Government Department in relation to point 1 raised in your email of July 11th.

The Department have confirmed our interpretation of the New Roads and Street Works Act 1991 (the 1991 Act), namely that no distinction is drawn in the 1991 Act between trunk and other roads (unless designated as a special road or within s.61 of the 1991 Act as a protected street). Rather, we understand from the Department that the footnote to Article 8 in the Model Provisions was included to address the operational needs of the Highways Agency (the Agency), as the highway and street authority for trunk roads, rather than for legal reasons.

In summary, we understand that the Agency considers that the logistical complexity of proposed street works to trunk roads, and uncertainty over which statutory undertakers would be involved means that there would be insufficient certainty when an application for development consent is submitted for a suitably worded article, to their satisfaction, to be included in a draft DCO. The Agency therefore considers it preferable for such works to be consented separately by way of an application for a licence under s.50 of the 1991 Act.

However, it seems to us possible that if such operational concerns could be addressed to the satisfaction of the Agency sufficiently early at the pre-application stage then potentially a suitably worded Article could be included in a draft DCO. This may depend (inter alia) on the nature and extent of the proposed works, and/or on the particular trunk road in question. In any event, we would suggest that this is something you or your client may wish to take up with the Agency.

16 September 2011
Marrons LLP - kate Harrison
Enquiry received via email
The IPC has advised that the Model Provisions are to be revoked in due course. Do you have an idea of the timescale for this happening?
The IPC does not currently have a date for when the Model Provisions are going to be revoked. The intention is for DCLG to publish Guidance at the same time as any revocation of the Model Provisions, and we have not seen a draft copy of this Guidance. This suggests that the revocation may not be imminent.

09 September 2011
Marrons - Kate Harrison
Enquiry received via email
We are looking at our draft Development Consent Order and the Model Provisions Regulations and would be grateful of the IPC's guidance on the following.

1) The foot note to Article 5 of the Model Provisions (Street Works) provides that the Article should not be used in respect of trunk roads. We may be mistaken but cannot see a distinction in the New Roads and Street Works Act 1991 between ordinary roads and trunk roads (unless designated a special road and within s61 of the 1991 Act as a protected street). Can you please advise whether the foot note applies to all trunk roads and if so the provenance for this?

2) We have been looking at the model provisions for railways to see if any may be relevant to our draft Order. Article 12 of those provisions (Application of the 1991 Act) identifies major transport works by reference to s86(3) of the 1991 Act. However, s86(3) of the 1991 Act is about major highway works and it is s91(2) of the 1991 Act that defines major transport works. So that we can understand the relevance and effect of this article, can you please clarify whether it is the intention of the model provisions to change the definition of the term major transport works and if not, whether it is the term or definition under the 1991 Act that should prevail?

3) i) If it is proposed as part of a development consent to stop-up a private street, does the private right of way need to be acquired/compulsorily purchased in addition to incorporating the provisions of article 11 (Stopping up) of the Model Provisions? and ii) Would it make any difference whether or not an alternative private street is proposed?

4) We have a copy of the IPC's letter dated 25 May 2011 which is published on your website under the Ipswich Rail Chord application documents. Can you please provide us with a copy of the draft Order to which the IPC's comments relate and the letters dated 13 and 04 May which are referred to, so that we can take the IPC's views on board when considering the drafting of our draft Order?
As you will be aware, we have already replied to point 4 in your email by way of our email and letter dated 4th August 2011.
In relation to the other three points in your email, firstly we would note that the Model Provisions are not mandatory but advisory, and as such they should not applied rigidly, and secondly that the Model Provisions are due to be revoked in due course. We would also refer you to s.120(5) of the Planning Act 2008, and in particular s.120(5)(a) which allows an order granting development consent to "apply, modify, or exclude a statutory provision which relates to any matter for which provision may be made in the order". Where it is proposed to follow this approach or otherwise depart from the Model Provisions then this should be fully explained in your Explanatory Memorandum.

In relation to your specific queries we would reply as follows:-

1. We presume that you are actually referring to article 8 (street works) rather than article 5 of the Model Provisions. In any event, we would agree with the interpretation of the New Roads and Street Works Act 1991 (the 1991 Act) set out in your email. With regards the footnote, as you will be aware the Model Provisions were drafted by central Government, and we are therefore making enquires of the relevant Departments to ascertain the provenance of this wording. We will provide further s.51 advice on this point just as soon as we are able to clarify this matter.

2. You will note from the definition of 'major highway works' in s.86(3) of the 1991 Act that these mean "..works....executed by a highway authority.." and that under s.91(2) 'major transport works' means "..substantial works required for the purpose of a transport undertaking...". A 'transport undertaking' is defined in s.91(1)(b) as meaning (inter alia) a railway undertaking of which the activities, or some of the activities, are carried out under statutory authority.

In the case of a DCO authorising the construction of a railway it is likely that such major highway works would be carried out by the developer, generally a 'transport undertaking', authorised by the DCO rather than by a highway authority. Article 12 of the Railway Model Provisions provides for such works to be authorised by a DCO by in effect modifying the 1991 Act so as to treat 'major highway works' as if they were 'major transport works' being carried out by the developer. If Article 12 from the Railway Model Provisions was to be included unmodified in your draft DCO you would though need to be satisfied that your client is a 'transport undertaking' as defined in s.91(1)(b) of the 1991 Act.

3. If it is proposed under a draft DCO to stop-up a private street, then yes the private right of way might need to be compulsorily acquired if the agreement of the owners and occupiers of the land had not been obtained by the time the application for development consent is submitted or if such agreement might not be forthcoming during the examination of the application. In those circumstances it would be necessary to include compulsory acquisition provisions in the draft DCO in addition to incorporating the provisions of either article 9 or 11 (stopping up) of the general or railway Model Provisions, and for the relevant application documents relating to compulsory acquisition to be submitted with the application.

If an alternative private street is proposed, then yes this may potentially make a difference. For example, if the substitution of an alternative private street for that proposed to be stopped-up is agreed with the owners and occupiers of the land prior to the application being submitted, then compulsory acquisition powers may not need to be included in the draft DCO.

In any event, a full explanation as to why particular model provisions have been included in, excluded from or modified in the draft DCO should be given in your Explanatory Memorandum.

12 August 2011
Kate Harrison
Enquiry received via meeting
response has attachments
Meeting to discuss:
? Any known transitional arrangements to MIPU
? IPC comments on draft scoping report
? Addition of DIRFT 2 link (to be explained)
? Consideration of Alternatives
? S.42 consultee list
? Consideration of applicant's suggested method of consultation under s.42
? Approach to parameters plans and form of masterplan
? Consideration of applicant's draft SOCC
? Meetings with LPA
Overall Timetable
Follow the link to the meeting notes
[attachment 1]

29 June 2011
Ruby Radio Station Partnership (ProLogis) - anon.
Enquiry received via post
response has attachments
Request explanation why DIRFT Phase 3 is to be handled by the IPC as an NSIP under the 2008 Planning Act. DIRFT Phases 1 and 2 were handled by ordinary planning procedures. There is no explanation why DIRFT Phase 3 is being handled in a different way from Phases 1 and 2.
The Nationally Significant Infrastructure Project (NSIP) regime, under PA 2008, came into force on 1 April 2010. When DIRFT 1 and 2 were consented the PA 2008 was not yet in force, hence them being dealt with under the Town and Country Planning Act 1990 regime by the relevant local planning authority.

The PA 2008 sets out in sections 14 and subsequent sections 15 - 30 the different categories of development that can be considered under this regime. These include proposed rail freight interchanges under section 26. It is for an applicant to decide to their own satisfaction that a proposal can be considered under the NSIP route having taken their own legal advice upon which they can rely.

Once an application for development consent is formally submitted, the IPC undertakes an acceptance process as set out in section 55 of the PA 2008. The IPC has 28 days to decide whether or not an application can be accepted and then progress on to the subsequent examination stage. As part of this acceptance process the IPC must, amongst other matters, determine whether it is an application for an order granting development consent. The PA 2008 in section 31 states that consent is required for development to the extent that the development is or forms part of a nationally significant infrastructure project. It is at this stage that the IPC will reach a formal conclusion on whether an application can or cannot be considered under the PA 2008 regime.

For further information on your specific query I would encourage you to contact the promoter of the proposed DIRFT scheme directly - contact details of their team can be found on the project page of IPC's website [attachment 1]

13 June 2011
CPRE Warwickshire - Mark Sullivan
Enquiry received via email
response has attachments
Whether section 106 agreements have a place in the IPC regime and, if so, who initiates and negotiates them and when.
Paragraphs 25-26 of IPC Guidance Note 2 pick up on this issue [attachment 1]

In summary, s.174 of the Planning Act 2008 effectively amends s106 of the TCPA 1990. Development consent obligations can be entered into in connection with an order granting development consent for an NSIP. Such s.174 obligations do not however form part of the draft order. IPC advise that promoters should at least agree the heads of terms of any proposed s.174 obligations with the relevant local authority before an application is submitted. Ideally, a fully drafted agreement should be included with the DCO application. The earlier any obligations can be produced and agreed the more robust the LIR is likely to be.

25 May 2011
Ciaran Power
Enquiry received via email
response has attachments
Can IPC confirm which Secretary of State will deal with this type [Rail Freight Interchange] of NSIP.
For DIRFT III proposals the relevant Secretary of State would be the Secretary of State for Transport. The basis for IPC stating that when the Secretary of State is the decision-maker this will be the relevant Secretary of State is paragraphs 18 and 19 of the DCLG Major Infrastructure Planning Reform: Work plan published in December 2010. This can be found on the DCLG website: [attachment 1]

05 April 2011
Morag Thomson
Enquiry received via email
response has attachments
I understand the LPA's are required to submit an Local Impact Report (LIR). Would Warwickshire County Council be expected to do this as the development in Northamptonshire but abuts Warwickshire? I am particularly interested in what exactly an LIR should incorporate and what are the deadlines for submitting these.
Our "Advice Note One: Local Impact Reports" is available through our website. It provides background information about LIRs as well as more information about content and timetables for LIRs. Please find a link below. Unfortunately the IPC does not produce more prescriptive guidance or advice given the diversity of projects we deal with.

[attachment 1]

In response to your particular questions, by virtue of the Planning Act 2008 sections 60(2)(a), 102(5), 102(7) and 102(8)(a) Warwickshire County Council would be eligible to submit a Local Impact Report as the DIRFT III proposal would be in the neighbouring relevant authority. Preparing a LIR is not a requirement but by virtue of the Planning Act 2008 Section 104(2)(b) the Commissioner, or the Secretary of State as appropriate, must have regard to any LIR produced in deciding applications.

With regard to deadlines for any LIR for the DIRFT proposals, an indicative timetable would only be proposed when an application had been formally submitted and if that application were accepted to proceed to examination stage. CLG guidance suggests a period of 6 weeks following the Preliminary Meeting would be an appropriate amount of time in which to submit the LIR.

[attachment 2]

We advise that authorities start preparing the LIR as soon as they are able to and not wait for the examination invitation. There could also be the need to consider an authority's scheme of delegation in the timescales; it is possible to make representations at the Preliminary Meeting if an authority feels it requires more time. Where several authorities are involved it is possible to consider a joint LIR submission and we strongly encourage early discussions between all relevant authorities on this matter.

21 March 2011
Warwickshire County Council - Ciaran Power
Enquiry received via post
response has attachments
With regard to the meeting held on 15 February 2011 between Prologis Development, Marrons and the IPC, a number of Technical Questions were asked by Morag Thomson of Marrons to the IPC.
See meeting note

15 February 2011
Marrons - Morag Thomson
Enquiry received via meeting
response has attachments
Meeting between the IPC, Marrons and Prologis Developments Limited:
Please see attached meeting note:

15 February 2011
DIRFT Development Team
Enquiry received via email
Attached to the email was a comprehensive list of the first draft application documents. The applicant asked for any comments on these proposed documents. Including a query about Reg 5(2)(o) and which of the documents stated in the list should be Works Plans and which ?other plans??
The IPC stated that at this pre-application stage of the process we are unable to comment on whether your proposed list of DCO application documents includes the correct documentation, nor  under which specific Regulation any particular document(s) should be submitted.  The applicant was advised to be aware that the IPC is unable to give advice upon which applicants (and others) can rely. The onus is on the applicant to ensure that they comply with inter alia the Planning Act 2008 and the Infrastructure Planning (Applications: Prescribed Forms and Procedure) Regulations 2009 (the APFP Regulations) in terms of submitting the correct documentation.
 
As noted below, the pre-application consultation process may, for example, result in the need for additional information to be submitted which may not be currently apparent.  Only when the final documents have been submitted with the DCO application can the IPC formally decide if the correct documents have been submitted, and whether or not the application can be accepted in accordance with s.55 of the Planning Act 2008.

In response to the specific query:-
 
Regulation 5(2)(j) of the APFP Regulations sets out what a works plan should show.  Works plan must be submitted with every DCO application. Guidance on the works plan is provided in para. 22 of the 'CLG Guidance ? Planning Act 2008:  Application Form Guidance' (the CLG Guidance).  This states that 'The purpose of the (works) plan is to set out the proposed positioning of the development and works at the location or locations in question.  The applicant may also set out other information on this plan if it so wishes'.   
 
Regulation 5(2)(o) of the APFP Regulations refers to 'any other plans, drawings and sections necessary to describe the proposal for which development consent is sought..'.  Regulation 5(2)(o) sets out a list of those matters that these plans, drawings and sections are to show, for example details of design, external appearance  and preferred layout of buildings or structures. If such documents exist and are '....necessary to describe the proposal for which development consent is sought.....' then they must be submitted pursuant to Regulation 5(2)(o). Paragraph 44 of the CLG Guidance sets out specific guidance on those documents that must be submitted pursuant to Regulation 5(2)(o)
 
Regulation 5(2)(q) of the APFP Regulations refers to ?any other documents considered necessary to support the application'. Para. 45 of the CLG Guidance provides guidance on when such documents would need to be submitted.
 
An applicant may decide to submit additional documentation to accompany their DCO application, which is not explicitly required by Regulations, or by relevant NPSs. These additional documents may, for example, include documents resulting from pre-application consultation and publicity, such as those suggested or asked for by respondents, which the applicant wishes to include. It is for the applicant to decide whether or not to submit such documents. Para. 46 of the CLG Guidance provides guidance on the circumstances in which applicants may wish to submit such documents

27 October 2010
Marrons - Kate Phillips
Enquiry received via meeting
response has attachments
Meeting with the IPC, the applicant and Local Authorities to discuss the Planning Act 2008.
[attachment 1]

09 August 2010
DIRFT 3 DIRFT 3
Enquiry received via meeting
response has attachments
A meeting held at the IPC offices to discuss both the legal issues pertaining to proposed DIRFT 3 scheme and the Overall Timetable.
Follow the link for the meeting notes:
[attachment 1]

03 August 2010
Marrons - DIRFT 3 DIRFT 3
Enquiry received via phone
Does the IPC have jurisdiction to accept applications under s73 TCPA 1990 for variation of conditions when the development concerned benefits from an extant planning permission but is also a nationally significant infrastructure project?
The IPC cannot give advice on the TCPA regime; those are matters for the relevant local planning authority and the applicant. The question of whether an application can be submitted to the IPC if it falls within the definition of an NSIP would be determined by considering s31 of the PA 2008 and the relevant definition of NSIPs.

07 July 2010
Marrons LLP - anon.