M1 Junction 10a Grade Separation – Luton

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.

Enquiry received via post
response has attachments
Letter from Keith Dove (Luton Borough Council) attached
Reply from the Planning Inspectorate attached.

30 April 2013
Luton Borough Council - Keith Dove
Enquiry received via phone
Telephone conversation on 11 October 2012 regarding the continuous need for the application documents to be made available at the local deposit document venues for the proposed M1 Junction 10a Grade Separation Scheme in Luton.
We can confirm that other than where required, i.e. in accordance with Regulation 8(g) and (h) of the Infrastructure Planning (Applications: Prescribed Forms and Procedures) Regulations 2009) which you met), there is no legal requirement for you as the applicant to make the application documents available throughout the whole of the examination process. However, in the interests of good customer service and ensuring all parties have an opportunity to easily access the documents, we would strongly recommend you continue to make the application documents publicly available to at least, one of the venues listed in your section 56 notice.

We appreciate that it is somewhat difficult to maintain such documents where they may have been taken by a member of the public and not returned however as there is no legal requirement for you to place them on deposit, there is subsequently no legal requirement for you to regularly make visits to the venues and maintain them. Therefore, it may be more manageable if you replace documents as and when/if you are notified of them being missing.

During our conversation, you indicated you would remove Stockwood Park Golf Centre and Luton Borough Council offices from the list of venues but will continue to make these documents available for public inspection at Harpenden Library, Luton Central Library and Wigmore Library.

In addition to the application documents, we will also be placing written representations and any other project documents as necessary at the three venues above and will give notice of this when issuing details of the preliminary meeting in accordance with Rule 6 of the Infrastructure Planning (Examination Procedure) Rules 2010.

12 October 2012
Mr Aldridge Luton Borough Council
Enquiry received via email
response has attachments
Prior to submission of Luton's M1 J10a application, we received the attached letter from PINS dated 7 June and providing comments on drafts of the development consent order and explanatory memorandum.

We thought it helpful to explain how these comments were subsequently addressed in the DCO and EM which were submitted with the application, and accordingly have prepared the attached response for this purpose.

10 October 2012
Bircham Dyson Bell - Tom Henderson
Enquiry received via email
We wish to raise a couple of points in relation to representations received by PINS on the M1 J10a scheme.

Firstly, we note that regulation 3(5) of the Infrastructure Planning (Examination Procedure) Rules 2010 provides that relevant representations must be made available "as soon as practicable" after receipt by PINS. In our view it would be practicable for Luton to be provided with the representations now, so that we can begin to consider them. Note that under the comparable procedure for Transport and Works Act orders, applicants are sent representations as and when they come in (see rule 22(1) of the Transport and Works (Applications and Objections Procedure) (England and Wales) Rules 2006). On that basis, could we ask for all representations received thus far to be forwarded, and any received up to Friday of this week to be forwarded as and when received?

Secondly, we're aware that some third parties have submitted representations in support of the scheme, but by letter instead of using the registration form on PINS' website. We are aware that to become an "interested party" in respect of the application, a person must register and complete the form. But in the absence of a registration form being filled out, our view is that PINS should still have regard to any correspondence received from third parties about the scheme, and publish it on the website in accordance with the policy of openness.
Those submissions can then be brought to the attention of the Examining Inspector, and taken into account in the decision-making process as appropriate. This would be consistent with section 104(2)(d) of the Planning Act 2008, which states that the Secretary of State can take into account "any matters [he] considers important and relevant".
Thank you for your email of 17 September 2012 at 5.25pm in which you raise a couple of points about representations received and request that all representations received so far be forwarded to you, and any received up to Friday of this week to also be forwarded as and when received.

With regards your first point. If we were to forward any relevant representations (or other representations received that have not been made on the prescribed form) to you (on behalf of the applicant) alone, this would not in our view be in accordance with Rule 3(5) of the Infrastructure Planning (Examination Procedure) Rules. Rule 3(5) requires that relevant representations and other documents must be made available 'in accordance with Rule 21' (our italics).

Whilst we note the provisions that apply in relation to Transport and Works Act applications, Rule 21 provides (inter alia) that relevant representations must be made available to all interested parties and others by way of being published on a website. Since all applications for development consent are dealt with in an open examination process, and given the status of interested parties in that process, we would query whether the approach you propose would be in accordance with public law principles of fairness, and natural justice.

With regards your second point that the Planning Inspectorate (PINS) should still have regard to any correspondence received from third parties about the scheme that have not been made on the prescribed form. In our view, it is the Examining Authority (ExA), in examining and making a recommendation on an application, and/or the relevant Secretary of State (SoS) in making his/her decision on an application, that might wish to have regard to such representations rather than PINS, although whether they wished to do so would be a matter for the particular ExA/relevant SoS concerned in each case.

With regards the decision making powers of the SoS, we note that both s.104(2)(d) and s.105(2)(c) of the Planning Act 2008 (the 2008 Act) state that in deciding an application the SoS must have regard to 'any other matters which the Secretary of State thinks are both important and relevant to the Secretary of State's decision', and other representations received that have not been made on the prescribed form could include such matters.

With regards publication, I would note that we publish as soon as practicable representations received that are not relevant representations, and make these available on the project page of the Planning Inspectorate pages of the Planning Portal website.

20 September 2012
Tom Henderson
Enquiry received via email
Requesting advice regarding the correct procedures that LBC should be following for this stage of the the process where the Planning Inspectorate is requesting an ?adequacy of consultation representation? about whether LBC (as developer) has complied, in relation to the proposed application, with its duties under sections 42, 47 and 48 of PA 2008 relating to consultation and publicity.
Thank you for your email requesting advice regarding the correct procedures that your council should be following for this stage of the pre-application process where we have formally written to you requesting an?adequacy of consultation representation? about whether LBC (as developer) has complied, in relation to the proposed application, with its duties under sections 42, 47 and 48 of PA 2008 relating to consultation and publicity.

In your email you state that such consultations to the Local Authority would generally be directed to the Council's Chief Executive, rather than the Local Planning Authority. Therefore, I would be grateful if you could urgently confirm the name, physical address and email address for the officer to whom the request for an adequacy of consultation representation (under section 55(5) of the Planning Act 2008) should be sent.

10 July 2012
Luton Borough Council - Wendy Rousell
Enquiry received via email
Bircham Dyson Bell LLP, on behalf of their clients, enquired as to arrangements for applications for s.131 certificates.

The response was by email.
Thank you for your email enquiry regarding applications for a s.131 certificate under the Planning Act 2008.

As indicated by the National Planning Casework Unit, the Planning Inspectorate will be involved in the processing of s.131/132 certificate applications as part of the DCO application process. We therefore suggest that any application for a s.131 certificate is addressed to the relevant Secretary of State, c/o The Planning Inspectorate (National Infrastructure Directorate).

15 June 2012
Bircham Dyson Bell - Tom Henderson
Enquiry received via email
response has attachments
The promoter for the proposal, currently at the pre-application stage, requested information about fees charged by the IPC.

The IPC's response was by email.
You requested information on when fees would need to be paid by an applicant. Please see the advice as follows.

Pre-application stage:

There are no set fees for the pre-application process. If you sought our authorisation to obtain information about interests in land (s52 of the PA 2008) or authorisation to gain rights of entry for land (s53 of the PA 2008), however, the IPC must charge a fee of £1,000 in relation to each request under section 52 and 53.

Further information on making section 52 or section 53 requests can be found in our Advice Note 4: Section 52, and Advice Note 5: Section 53

[attachment 1]

Acceptance stage:

When an application is submitted to the IPC, £4,500 is payable. The fee must be paid at the same time that the application is made. The IPC has 28 days in which to decide whether to accept the application for examination (see section 55 of the PA 2008). This is a set fee regardless of whether or not an application is accepted for examination.

Pre-examination stage:

This is the period when members of the public and organisations have an opportunity to register to become an interested party. There is no statutory timescale for this stage. If an application is accepted for examination the applicant must publicise this and set a period of at least 28 days in which people can register with the IPC (see section 56 of PA 2008). Once that period is over, the applicant has 10 days to certify to the IPC that it has complied with section 56. Following receipt of certification, an Examining Authority is appointed. The Examining Authority (ExA) can comprise of one, three or five Commissioners. It is for the Chair of the IPC to decide how many and which Commissioners are appointed. The Fees for the pre-examination period will depend on the number of Commissioners appointed as follows:

£13,000 for single Commissioner
£30,000 for a panel of three
£43,000 for a panel of more than three.

The decision concerning the allocation of Commissioners per project, is made by the Chair of the Commission after an application has been accepted. This decision will reflect the IPC's expectation about how complex or controversial the case is. The IPC will notify the applicant of the appointment and the fee is payable within 28 days of this notification (see Infrastructure Planning (Examination Procedure) Rules 2010).

Examination stage:

The examination of an application can last up to 6 months. The fees of examination depend on how many Commissioners have been appointed and the number of working days it lasts. The fees are as follows:
- 1 Commissioner - £1,230 per working day
- 3 Commissioners - £2,680 per working day
- 5 Commissioners - £4,080 per working day

There is an initial payment based on the estimated number of days of examination and a final payment. Where the applicant does not provide a venue for a hearing the Commission may charge a fee in respect of the venue costs.

Further details of the fee structure is set out in The Infrastructure Planning Commission (Fees) Regulations 2010

[attachment 2]

The Infrastructure Planning (Fees) Regulations 2010: Guidance provides non-statutory guidance to aid interpretation of the Infrastructure Planning (Fees) Regulations 2010 and provide examples of how the fees work in practice

[attachment 3]

02 February 2012
Michael Kilroy
Enquiry received via email
response has attachments
IPC's comments on the technical aspects of the draft Development Consent Order and Explanatory Memorandum, sent from the promoter to the IPC on 16 December 2011.
Please see attachment.

13 January 2012
Antony Aldridge
Enquiry received via email
Email enquiry from the promoter, seeking advice on consultation and whether their approach is reasonable if the scheme layout is amended.
The following advice was given:

Under section 55(3)(e) of the Planning Act 2008, the Commission may only accept an application if the applicant has complied with Chapter 2 of Part 5 of the Act (sections 41 to 50).

Under section 49(2) of the the Act, an applicant must, when deciding whether to make an application in the same terms as the proposed application, have regard to any relevant responses received as result of consultation and publicity under sections 42, 47 and 48.

Under section 50(3) of the Act, the applicant is required to have regard to any guidance about the pre-application procedure issued by the Secretary of State. Paragraph 78 of CLG?s "Guidance on Pre-Application Consultation" (September 2009) states:

?Where a proposed application changes to such a degree that the legitimacy of the consultation may be in question, promoters should consult the community again on the new options. In such circumstances promoters should supply consultees with sufficient information to enable them to fully understand the nature of the change (but not necessarily the full suite of consultation documents) and allow at least 28 days for consultees to respond.?

Consultation or publicity undertaken outside sections 42, 47 or 48 cannot be relied on to demonstrate compliance with those sections. You may wish to consider whether the changes to the proposal require anything to be done to comply with sections 42, 47 or 48. For example, the new plan you provided indicates that there is a new road or accessway to be built to the west of the relocated new northern roundabout. You may wish to consider whether, as a result of this new road or accessway, or as a result of any other changes to the scheme, there are now any additional s42 parties.

In addition to ensuring compliance with the statutory requirements and guidance for the purpose of acceptance, you may wish to consider other potential benefits that may flow from undertaking additional consultation or publicity now, such as avoiding delays later in the process.

You will need to detail all of the consultation and publicity you have undertaken in your s37(3)(c) consultation report. IPC Guidance Note 1 states that the consultation report should draw together:

- An account of the statutory consultation, publicity, deadlines set and community consultation activities undertaken by the applicant at the pre-application stage under s42, s47 and s48.

- A summary of the relevant responses to the separate strands of consultation

- The account taken of responses in developing the application from proposed to final form, as required by s49(2).

- Any steps taken by the applicant to comply with relevant consultation provisions in the EIA Regulations.

16 December 2011
Antony Aldridge
Enquiry received via phone
Colin Wilkinson from Central Bedfordshire Council called seeking information on the proposed M1 Junction 10a Grade Separation project in Luton.
The IPC explained how to find information about projects on the IPC website, and advised that at the pre-application stage, the project was led by the developer.

We explained that the developer was required to undertake pre-application consultation and have regard to responses received. We directed Mr Wilkinson to the the project team for further information.

06 December 2011
Central Bedfordshire Council - Colin Wilkinson
Enquiry received via email
response has attachments
Further email response from the IPC to the promoter, following a project meeting held on 12 October 2011 between the IPC , Luton Borough Council and URS Scott Wilson, in regard to expected submission date for the application.
In order to avoid potential problems during the process of examining an application we advise that applicants share draft documents with us for technical comment. In particular developers may find it valuable to submit draft copies of the Development Consent Order (DCO), the accompanying Explanatory Memorandum, works and land plans, the draft consultation report and any plans that help understand provisions and requirements within the draft DCO. Given the time required to consider such documents, we advise in the IPC Guidance Note 1, that developers provide these well in advance of submitting an application and certainly not less than 6 weeks beforehand.

[attachment 1]

We can then provide advice on the production of your application documents, offer comments on technical/drafting aspects of the draft DCO without prejudice to its eventual decision. However, for clarity we are not able to comment on the merits of any of the documents. We also advise that the draft order should also be made available to other parties who may have useful comments to make on the operation of the order. It would be advisable to build time into your timetable to do this.

I also should advise that it is the responsibility of developers (not the IPC) to ensure that the draft order applied for would provide you with all the necessary authorisations to implement your scheme. Therefore developers are strongly advised to engage a person with the necessary legal expertise to draft their order.

Advice about the preparation and submission of your draft Development Consent Order (DCO) is contained in IPC Advice Note 13 [attachment 2]

Whilst reviewing some the documentation you have already submitted I have noticed that the list of statutory consultees who you consulted under s42 and s43 of the Planning Act (PA2008) does not include Cambridgeshire County Council, Buckinghamshire County Council or Hertfordshire County Council. These were identified as consultees for the purpose of our EIA scoping consultation (EIA regulations, regulation 8), and I just wish to bring it to your attention as it is your responsibility to ensure your pre-application consultation fully accords with the requirements of the PA 2008, and regulations and guidance.

This particular project has Luton Borough Council taking on a dual role. The PA 2008 sets out separate responsibilities for developers and for local authorities, including for the latter consultee under section 43 and interested party under section 102. For transparency purposes please could you provide further clarity on your internal arrangements such as relevant reporting structures for officers and members, and other relevant roles and procedures for carrying out this dual role. A diagram to illustrate this would be useful.

17 November 2011
URS Scott Wilson - Simon Betts
Enquiry received via email
response has attachments
Email response from the IPC to URS Scott Wilson in regard to issues raised from the introductory project meeting held on 12 October 2011, and a further email from URS Scott Wilson dated 21 October 2011.
Please find below our response to the action points that arose from our introductory Project Meeting on 12 October 2011 and your email of 21 October 2011.

Advice on including a "controlled motorway" in the DCO

At our Introductory Project Meeting you sought advice on including, in an application for development consent, land within the boundary of a "controlled motorway". Variable speed limit zones on motorways are designated by regulations made under section 17 of the Road Traffic Regulation Act 1984. Section 120 of the Planning Act 2008 enables an order granting development consent to make provision relating to matters relating to, or ancillary to, the development for which consent is granted, and to apply, modify or exclude statutory provisions. A non-exhaustive list of relevant matters that fall within section 120 is set out in Schedule 5 of the Planning Act 2008 and includes the designation and transfer of trunk roads and special roads. In general terms therefore it would appear that a DCO may make provision for changes in motorway status. You should however seek your own legal advice as to how the relevant DCO articles should be drafted and whether (bearing in mind the individual circumstances of this application) the application or modification of any regulations made under section 17 of the Road Traffic Regulation Act 1984 is necessary or expedient.

Advice on Secretary of State (SoS) Timescales

At the meeting you also sought advice on the expected timescales and how soon the DCO is likely to be issued after a decision by the SoS to grant development consent. Under current timescales the Examining Authority has three months to make its recommendation (assuming it is not able to make a decision itself), and that the SoS has a further three months to make its decision. The publication of the Localism Bill is expected to set out the position under the new regime. However, to date we no update on this and it remains the latest position.

Advice on the SOCC and EIA Regulation 10(b)

In your email of 21 October 2011 providing information about how your published Statement of Community Consultation (SoCC) complies with Regulation 10 of the Infrastructure Planning (Environmental Impact Assessment) Regulations 2009. It will be important for you to repeat this information in your Consultation Report. At acceptance stage it will be for the acceptance Commissioner to consider compliance with all of the pre-application requirements.

You requested the following documents at the project meeting:

IPC application checklist - please click on the link below to the IPC website

[attachment 1]

IPC electronic application index - attached.

IPC information on venue requirements for the Pre-liminary Meeting and any Examination Hearings is attached. Please note that this is informal generic advice and that once the Examining Authority is appointed the Commissioner(s) may deviate from this. Progressing to Examination stage is, of course subject to the application being accepted under s55 of the Planning Act 2008.

04 November 2011
URS Scott Wilson - Simon Betts
Enquiry received via meeting
response has attachments
Introduction to scheme and discussion of pre-application and examination processes.
Please see attached Meeting notes.

12 October 2011
Luton Borough Council - Michael Kilroy
Enquiry received via meeting
response has attachments
Introduction to the IPC and its procedures
See the attached presentation

12 October 2011
Michael Kilroy