High Speed 2 – Determining Schedule 17 Applications for Plans and Specifications

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This article addresses the key issues facing local authorities in determining Schedule 17 applications for plans and specifications arising from the development of HS2. In particular, it focuses on guidance relating to pre-application discussions, preparing the application, building/construction works, and matters ancillary to the development, highlighting valuable lessons from Phase One.

The High Speed Rail (HS2) continues to court controversy with the recent announcement by the Government of the cancellation of the planned eastern leg of HS2 to Leeds. Not surprisingly, this has been met with a lot of frustration and anger by those in the north of England who have supported the proposals from the outset. Nevertheless, the project continues to progress at some speed in Phases 1 and 2a. Many pre-applications’ discussions with local authorities are at an advanced stage, and a substantial number of Schedule 17 submissions are either being submitted, being determined or at appeal.

If you are among the authorities impacted by the scheme, then you will be heavily involved in the pre-application discussions and the determination of the applications.

Having been involved from the outset of the project, through the parliamentary process, the design stage and now the construction stage, some valuable lessons have been learnt and are worth sharing from Phase One. The author is aware that similar guidance has been prepared and further guidance is under preparation or being consulted upon for Phase 2a. For the purposes of this article, reference is largely to Phase One documents, but which will no doubt set the standards for the rest of the route.

Based on our experience, we have put together guidance on the Schedule 17 Process for dealing with Plans and Specifications applications that can pave the way for constructive dialogue, negotiations and determinations. We intend to follow this up in due course on the Schedule 17 process for lorry route consents.

Background

The High Speed Rail (London to West Midlands) Act 2017 grants deemed planning permission for HS2 Phase One of the route, but some of the detailed design and construction elements are subject to further approval. Schedule 17 to the Act puts in place a process for the approval of certain matters relating to the design and construction of the railway. It requires that the nominated undertaker (HS2 Ltd) seeks approval for matters of construction and design from the appropriate planning authority.

The process is similar to, and yet very different from, the regular planning process for determining planning applications under the Town and Country Planning Act 1990. Schedule 17 submissions are not the same as planning applications – planning permission for the proposed work has already been granted by the High Speed Rail Act.

Pre-Application Discussions

The Main Works Contractors have been holding (and will be holding for Schedule 2a and 2b) large numbers of pre application meetings with local authority officers and professionals with different expertise. These are usually said to be confidential and are designed to discuss all the aspects of the forthcoming formal Schedule 17 submission with a view to addressing all the issues as far as possible so that when the actual application comes in, it can be determined within the 8 weeks statutory period.

What works well?

  • It is important to meet regularly and to co-ordinate efforts and approaches with neighbouring authorities from the outset. This ensures necessary and effective mitigation is secured, consistency in approach and positive outcomes.
  • From the outset, keeping a Design Log/Issues Log which contains the following:
    • List each element of the proposals which are Scheduled Works, and which will be subject to the consent process
    • List other elements of the proposals that are not Scheduled Works under the Act but are ancillary works, or temporary works so that all aspects of the proposals are clearly identified, relevant statutory position identified and understood – proceeding on misunderstandings or assumptions can be very difficult and the earlier all this is sorted out the better
    • Mitigation proposed with each element
    • Council response to each of the above
    • Dates of meetings
    • HS2 response to council concerns/proposals/changes sought and
    • Next steps
  • Ensuring you have all the right people at these meetings, which may well include planner, landscape architect, ecologist, heritage officer, environmental health officer, engineer, drainage team member, as well external organisations representations such as Environmental Agency, English Heritage etc.
  • Follow up meetings should use these to guide and chart the progress of the meeting and the negotiations. As you settle and agree designs and issues, these can be ticked off on the Log showing all concerned the progress, or lack of it, being made. In our experience, not all contractors use these but these have proven critical in mapping the journey on these discussions and progress made, and is also an audit trail of all the relevant documents.
  • Minutes of these meetings are important for all stakeholders, and their importance is realised as the project progresses – in addition to the Log.
  • The Log is also a very useful tool for reporting to members and community groups on the pre-application discussions in due course.
  • Programming into your project plan regular reporting to members, in confidence, who very often have good knowledge from the local community. This can be useful as the negotiations intensify, and both amendments and better/more effective mitigation are sought.
  • Community engagement – whilst the pre-applications discussions are confidential, Phase 1 has shown all stakeholders that it is of critical importance to keep the community informed and engaged throughout the process. Whilst HS2 does not renumerate local authorities for any community engagement work, experience has shown this has been handled best by all stakeholders presenting together to community focus groups, action groups, parish councils and wider community. A community that is engaged and part of the process tends to engage constructively and this reduces the risk of challenges to decisions later on. Such an approach avoids delays once the applications come in and issues are raised afresh, and the confidentiality issue is dealt with by agreeing with the contractors those elements that need wider input throughout the pre-application stage and which can be shared.

Schedule 17 Applications for Plans and Specifications

In the determination of these applications, LPAs which are Qualifying Authorities under the Act and have signed up to Planning Memorandum should note paragraph 7.2.1 of the Planning Memorandum which states:

HS2 is an infrastructure project of national importance. The qualifying authority shall accordingly have regard to construction, cost and programme implications, and shall not seek to impose any unreasonably stringent requirements on the requests for approval ……plans or specifications…. Which might frustrate or delay the project….”

Paragraphs 7.7.1 and 7.7.2 are also worth noting here:

“7.7.1 Where an authority refuses approval of a request for approval, in addition to specifying the grounds under the Planning Conditions Schedule for its decisions, it shall state clearly and precisely the full reasons for its decision.

7.7.2 Where the authority’s decision in relation to the determination of plans and specifications has been reached on the ground that…the development ought to be and could reasonably be carried out elsewhere within the relevant limited, the authority shall include an explanation fo why and how it considers the modifications should be made.”

Each authority will have prepared reports and resolved how such applications are to be determined, whether under delegated powers or by reporting to planning committees, and it is important to do this as early as possible.

Building Works

Schedule 17 paragraph 2 deals with building works and a local planning authority that is a Qualifying Authority can only refuse to approve plans or specifications relating to building works on the grounds that:

  • The design or external appearance of the building works ought to be modified –
    1. To preserve the local environment or local amenity,
    2. To prevent or reduce prejudicial effects on road safety or on the free flow of traffic, or
  • To preserve a site of archaeological or historic interest or nature conservation value,

And is reasonably capable of being so modified or

  • The development ought to, and could reasonably, be carried out elsewhere within the development’s permitted limits.

If the LPA is not a Qualifying Authority, then it can only refuse the application on the grounds that:

  • The design or external appearance of the building works ought to be modified to preserve the local environment or local amenity and is reasonably capable of being so modified, or
  • The development ought to, and could reasonably, be carried out elsewhere within the development’s permitted limits.[1]

The importance of understanding the limitations on the LPA’s ability to determine and condition such applications cannot be stated enough. If the LPA is of the view that certain designs of the application should be modified, then its relevant officers will need to set out clearly why the proposal as submitted is not acceptable, the harm it may cause or why the mitigation is not sufficient and give, at the very least, an indication of how the design can be modified. Further conditions can only be imposed for reasons set out in paragraph (a) above.

Importantly, in the Court of Appeal judgment in R (on the application of Hillingdon London Borough Council)  v Secretary of State for Transport July 2020[2] it was held that Schedule 17 imposes the powers and obligations upon local authorities to perform an assessment of impact and possible mitigation and modification measures under Schedule 17, and that this can be exercised exclusively by the local authority and that the contractor “cannot take it upon itself to conduct some non-statutory investigation into impact.”  Secondly, and of equal importance, it held that the LPA is under no duty to process a request for approval from the applicant unless it is accompanied by sufficient and adequate relevant evidence and information to enable the authority to perform its statutory duty. Crucially, in this case, HS2 Ltd had not provided the Council with any information about the archaeological potential of the development proposed and therefore the Council was unable to carry out its duty to assess the impacts of the proposals.  There has been some discussion by Inspectors dealing with appeals and the Courts on the issue of additional information sought by LPAs in the context of Schedule 17 applications, taking into account the revised Statutory Guidance and Planning Forum Note 17 (March 2021).

Paragraph 2 of PFN 17 states:

“Planning authorities must only address relevant considerations when making a determination under Schedule 17. Therefore any information requested should be relevant to the limited specified grounds of refusal.”

Paragraph 5 states:

“Information requested by a planning authority should be relevant to the application and necessary to enable the authority to understand the impacts of the proposal that are relevant to the statutory grounds for determination.”

The PFN also states in relation to the Court of Appeal decision in the Hillingdon Case of 2020 that “the effect of the Judgement is not to allow planning authorities to have by default all the information they would have for a decision under the Town and Country Planning Act. The Judgement is clear that authorities should be provided with adequate and sufficient information to enable them to fulfil their duties under Schedule 17. In the application of this it should be borne in mind that Schedule 17 requests for approval are not fresh applications for planning permission but are the approval of details pursuant to the conditions granted deemed planning permission under the Act.”

The Annex to the PFN17 then sets out the type of additional information that could be appropriate to Schedule 17 decisions “beyond that specified in Planning Forum Notes.”

Therefore, PFN17 makes it plain that a LPA is entitled to seek information beyond what is set out in Planning Forum Notes 1 (HS2 Phase One Planning Forum: Content of Submissions and Standard Templates), 3 (HS2 Phase One Planning Forum: Written Statements and Design & Access Statements) and 6 (HS2 Phase One Planning Forum: Lorry Route Approvals) if it will enable the LPA to determine the application and the experts working on these applications should be very familiar with the Statutory Guidance and the PFNs.[3]

Other Construction works

Schedule 17 paragraph 3 deals with construction works of the following:

  1. Road vehicle park
  2. Earthworks
  3. Sight, noise or dust screens
  4. Transformers, telecommunications masts or pedestrian accesses to railway lines
  5. Fences or walls
  6. Lighting equipment

Sub paragraph (6) of Section 3 sets out the very specific grounds of refusal for each of the categories of construction works and common misconception is that the general powers of refusal contained in Section 2 are applicable to these works, but that is not the case.  Qualifying Authority can only refuse to approve plans or specifications relating to these works on the ground that:

Construction Works/Development Possible grounds for refusal or approval
Road Vehicle Park (a)To preserve the local environment or local amenity,

(b)To prevent or reduce prejudicial effects on road safety or on the free flow of traffic, or

(c)To preserve a site of archaeological or historic interest or nature conservation value.

That development ought to, and could reasonably, be carried out elsewhere within the development’s permitted limits

Earthworks and slight, noise or dust screens The design or external appearance of the works ought to and could reasonably, be modified –

  1. To preserve the local environment or local amenity,
  2. To prevent or reduce prejudicial effects on road safety or on the free flow of traffic, or
  3. To preserve a site of archaeological or historic interest or nature conservation value.

If the works are not Scheduled works, then that the works ought to and could reasonably be carried out elsewhere within the development’s permitted limits i.e. within the Act limits.

Transformers, telecommunications masts or pedestrian accesses to railway lines The design or external appearance of the works ought to and could reasonably, be modified to preserve the local environment or local amenity.

That the works ought to and could reasonably be carried out elsewhere within the development’s permitted limits i.e. within the Act limits.

Fences and walls (except for sight, noise and dust screens) The location of the fences and walls only ought to and could reasonably be carried out elsewhere within the development’s permitted limits i.e. Act limits.  The design and height of the fences and walls are not for approval.
Artificial lighting equipment The design of the equipment, with respect to the emission of light ought to and could reasonably, be modified to preserve the local environment or local amenity.

If the works are not part of the Scheduled works, then that the development ought to and could reasonably be carried out elsewhere within the development’s permitted limits i.e. within the Act limits.

 

Once again, conditions can only be attached on the grounds set out for each kind of development/works and is again quite restrictive.

In the Planning Inspector’s Decision on Land Adjacent to the West Coast Main Line (network Rail Lines) located between the A400 Hampstead Bridge and Granby Terrace Bridge, north west of Euston Station Appeal Ref APP/HS2/6, the Inspector found that the parapet walls are a “wall” for the purposes of Section 3 of the Act, and not part of the earthworks. As such, the LPA was unable to consider the parapet walls as part of the earthworks and unable to impose a condition that sought additional details because under the Act, with walls, the consideration is limited to the location of the wall and nothing further.

Matters Ancillary to Development

Section 4 of Schedule 17 requires the Qualifying Authority’s approval for the arrangements by which the ancillary matters will be carried out. The ancillary matters are set out in Section 4(2) as meaning:

  • Handling of re-useable spoil or topsoil
  • Storage sites for construction materials, spoil or topsoil
  • Construction camps
  • Works screening
  • Artificial lighting
  • Dust suppression
  • Road mud control measures

Works that fall within this section can only be refused or approved on the ground that the arrangements relate to development which, for the purposes of regulating the matter in question, ought to and can reasonably be considered in conjunction with other development which has deemed planning permission under section 20(1) and which is to be carried out in the authority’s area or on the following grounds for the different types of works:

Handling of re-useable spoil or topsoil Arrangements ought to be modified to ensure that the spoil or topsoil remains in good condition, and are reasonably capable of being so modified
Storage sites for construction materials, spoil or topsoil;

Construction camps;

Works screening

The arrangements ought to be modified –

i.              To preserve the local environment, local amenity or a site of archaeological or historic interest or nature conservation value or

ii.             To prevent or reduce prejudicial effects on road safety or on the free flow of traffic in the local area and are reasonably capable of being so modified.

Artificial lighting;

Dust suppression

The arrangements ought to be modified to preserve the local environment or local amenity and are reasonably capable of being so modified.
Road mud control measures The arrangements ought to be modified:

(a)To preserve the local environment or local amenity,

(b)To prevent or reduce prejudicial effects on road safety or on the free flow of traffic in the local area

And are reasonably capable of being so modified.

 

When discussions are being held on these matters, a co-ordinated effort by the planners and highways officers is critical to ensuring that all the issues are addressed, and a consistent response is provided to the operators. In our experience, having the highways officers attending Sch 17 Pre -application discussions has been important in ensuring that the wider impacts are understood, discussed and solutions found.

Further, when these applications are received, a sound approach is to:

  1. Carry out a thorough check of all the documents received at the outset to ensure everything that has been listed has been received; if not and material information is missing, then the applicant should be notified by a formal letter immediately. If it is considered that the missing information is of such importance that the relevant 8 weeks period should not commence until these are received, this should be clearly set out in the letter.
  2. Plan the 8 weeks programme from the start.
  3. Utilise the Design Log/Issues Log from the pre application meetings (or create one if there has not been any pre-application meetings) and to list out the different elements, the relevant sections under Schedule 17 that they sit under, Scheduled Works and non- Scheduled Works and which grounds for approval or refusal are applicable to each element.
  4. Carry out the statutory consultation and any other consultation that the authority has resolved to carry out.
  5. To programme the meetings with Members, Planning Committees as appropriate.
  6. To circulate the report in good time so that any further matters can be dealt with and the report updated if necessary.
  7. To share any proposed conditions in advance where possible.
  8. Where necessary, agree any extensions to the period for determination with the applicant.

Ifath Nawaz, is the Senior Consultant Solicitor for Planning and Environment and has extensive experience of project management and legal advisor on the HS2 Project on behalf of a number of local authorities on Phase One. To discuss any of the issues raised in this article you can contact her on Ifath.nawaz@buckles-law.co.uk.

[1] Paragraph 2(6) Schedule 17 High Speed Rail (London- West Midlands) Act 2017

[2] HS2 Phase One Planning Forum planning appeal decisions – GOV.UK (www.gov.uk)

[3] HS2 Phase One Planning Forum notes for local authorities – GOV.UK (www.gov.uk) and HS2 Phase 2a Planning Forum notes for local authorities – GOV.UK (www.gov.uk)