Oxford-Cambridge Expressway – The Legal Basis for Avoiding a Plan, an SEA and Consultation, but it Can’t Last

Why has the government not not conducted an SEA for the Oxford Cambridge Expressway?


Government plans to build an Oxford-Cambridge motorway over some of the UK’s most biodiverse nature reserves break EU laws and should be put on hold, according to a cross-party group of MEPs.

Up to a million homes could be built in the planned conurbation link-up which would carve across some of the UK’s richest floodplain habitats such as the Otmoor Basin and Bernwood forest. [not in the latest option B which rejected the Otmoor Route, and the Bernwood Forest is not floodplain, but anyway Gaurdian]

Local people say they have not been consulted about the project and the Berks, Bucks, Oxon Wildlife Trust (BBOWT) have already launched a legal challenge against Highways England, which lobbied hard for the scheme.

Now, in a letter to the transport secretary, Chris Grayling, the 11 MEPs say: “Ploughing ahead with this expressway project, without first conducting an open and thorough public consultation, sends very worrying signals about whether, despite the commitments it has made, the government will maintain European-wide environmental standards in practice [after Brexit].”

The answer surely is down to the Supreme Court judgement on HS2 in 2014.

Its a quite simple issue legally.  A Strategic Environmental Assessment is needed for the schemes as whether it was

“plan or programme” which “sets the framework for development consent” and was “required by administrative provisions” within the meaning of articles 2-3 of Directive 2001/42/EC (“the SEA Directive”).

The court accepted that it was a project not a plan or programme.  That HS2 did not set the framework for future development consent (like a land use plan does for example) and was governed by a .political or regulatory. process (a hybrid bill) not an administrative one.  So it didn’t fall under the directive and only an EIA at final hybrid bill stage was needed.

The HS2 style process seems to have become the default  at DOT.  They want to avoid the need for ‘early consultation’ on ‘reasonable alternative options’ which the SEA route requires.  The DOT is not good on consultation and they are worse at options.  If they ever plan a road they never want the wider transport package tested as it would show their under investment in public transport, even if the road is still needed.

In taking the ‘No SEA, its a project not a plan’ route however it means rigorously separating the expressway planning from any other planning in the corridor.   The great vice of infrastructure planning in England, planning transport seperately from land use.

This creates a problem for the DOT as we know have the ‘Oxford-Cambridge Arc’ .  This weeks name. It was for a million homes but could be increased as they have now enlarged the study area  to include North Northants and South Bucks (most of the England’s Economic Heartland area minus Swindon and Herts. It should be noted that around 300k of this is already in development plans at least at preferred options stage so the actual net additional housing that needs to be planned for to 2050  is around 1.1-1.2 million.)

At the time of the budget the government published its response to the National Infrastructure Commissions Report on the arc a year ago.

The government supports the National Infrastructure Commission’s ambition to build up to one million high quality homes by 2050 to maximise the economic growth of the Arc. This ambition will require a step change in housing delivery, including engagement on how this can be accommodated through vibrant new and expanded settlements. The government has demonstrated its commitment to investment to support this level of ambition, including in relation to proposed new road and rail links which could best achieve this vision. The government supports the Commission’s finding that in order to deliver the full economic potential of the Arc, there needs to be an integrated  approach to the planning and delivery of infrastructure, homes and business growth. This is why the government has invited local authorities from across the Arc to
bring forward and commit to ambitious proposals for transformational housing and economic growth, including for new settlements. With the right interventions and investment, we believe
there is a transformational opportunity to amplify the Arc’s position as a world-leading economic place and support the government’s Industrial Strategy aim to boost the productivity and earning
power of people across the UK. To achieve this the government has designated the Oxford Cambridge Arc as a key economic priority and will consider ways of maximising growth opportunities in the Arc.

But so far it has been a classic case of these not being integrating with the DOT determined to plough the No SEA route.  However if it is clear that the expressway is being planning not on its own (like HS2) but as part of a wider ‘programme’.  The funding (£3.5 billion) for the expressway has been committed but no formal decision yet in legal terms of the project or its final route. The government says it has carried out ‘ extensive engagement with local communities and environmental groups in
our early planning for the Expressway and East West Rail’ but this has not extended below key stakeholder level (e.g. local government) and putting up a website and email.   Proper consultation on route options for the western section wont begin until Autumn 2019.

So what is the plan for the arc now.  Here’s the Budget 2018 timetable.

•  Consult in early 2019 on route options for the East West Rail Central Section (Bedford to Cambridge)
• Publish an ambitious, corridor-wide Joint Vision Statement to 2050 with local partners by Spring 2019
• Explore options for delivering a pan-Arc spatial vision, underpinned by a local natural capital plan, to co-ordinate investment in housing, infrastructure and the environment to support delivery of transformational growth across the Arc
• Consult on route options for the Expressway in late 2019 and then announce a decision on a preferred route. We will continue to work closely with local partners on the development of route options for the Expressway

Note how each of these are discrete, no clear integration between the transport and land use elements.  The  vision statement in 2019 is aspatial, the later ‘spatial vision’ has no timetable – it will this that will do the coordinating.  The expressway western section route options ploughs its own furlough in Autumn next year but decision later when not known.

If the government wants a ‘spatial vision’ to to ‘co-ordinate investment in housing, infrastructure and the environment’ then to be meaningful it would have to ‘set the framework for development consents’ and so would be subject to the SEA directive whether statutory or not.  The government still hasn’t decided what route this would take.  A vision is not necessarily a plan, but a vision that says here not there, this many houses here and this many houses there coordinated with infrastructure is a plan.  Such a plan whether a statutory land use plan or not would have to be conducted by an administrative process and so would have to be SEA compliant including ‘early public consultation’.

There may be a conflict here between the MHCLG, saying we need some kind of plan and the DOT desperate to avoid SEA, by going down the HS2 political route.  The fallout is uncertainty for plans for housing not knowing where infra will go, as we saw at the AVLP.

As a result opponents have seized on the lack of an SEA as a potential blocker

The Campaign to Protect Rural England said the proposal is “completely unacceptable” and its head of strategic plans and devolution Paul Miner said: “Rather than taking a ‘growth at all costs’ approach, it is imperative that a strategic environmental assessment is conducted.”

He added: “We need much stronger commitments to protecting and improving the unique and precious rural landscapes in the arc.”

One option is a national policy statement route,  As the NIC recommended and its chairman Sir John Armitt hints strongly at here

“The growth arc is in desperate need of new homes and improved transport links.

“These things won’t happen without continued and concerted effort from government and [the Budget] measures, while welcome, will not achieve that on their own.”

And EEP’s Martin Tugwell calls for

One year on from the National Infrastructure Commission’s final report, what is it that England’s Economic Heartland is looking for from this year’s Budget?

My time dealing with planning applications in the past has taught me that private sector investors are looking for confidence before making a decision. Time and again the call I’ve heard is for clarity on the ambition and certainty that planned investment in infrastructure and services will be delivered when we say it’ll be.  And in truth our residents and communities likewise look for that confidence – sceptical that investment often comes after the event, not in time for it.

The scale of economic potential identified by the National Infrastructure Commission is a long-term project.  What we need is a framework that can engender confidence – for both communities and investors.

That is why we believe what is needed is a National Policy Statement for the Heartland.

Until now used to focus on a single topic – like energy – there is no reason why we cannot use the legislative framework that exists and apply it to a geographical area.

It would be a clear statement of intent by Westminster that the UK’s commitment to the Heartland is long-term.  Even better it would be a simple and effective way of ‘joining up’ investment in strategic infrastructure.

At a stroke we would have a quick and efficient way of aligning investment decisions on transport, with that on digital infrastructure with that on power and water; ensuring that investment in infrastructure and services is aligned to deliver our shared ambition – realising the potential of the Heartland to be the UK’s equivalent of Silicon Valley.

Since the idea was originally discussed at the start of the year I’ve been really encouraged by the positive reaction, so much so that we’re developing it to the point where we can have a further, detailed, conversation with Government.

This year’s Budget is an opportunity for Government to build on this idea and make a clear statement of intent that its support for the Heartland is long-term.

There are a number of problems with the NPS route.  They cant be used for housing other than ‘associated development’ .  It is doubtful they could pass that in the current parliament.

The NPS route would ease land assembly by allowing CPO when development consent orders were applied for for individual schemes, but the legislation doesn’t envisage this being through a permission in principle type route on agreement of a locally led development corporation masterplan.  Again bespoke legislation is needed.

The NPS would put all the burden of consultation on the state.  The government is not good at geographically specific consultation.  It would rather local government take all the Nimby flack.

An NPS being a political decision would not need SEA.

The government clearly havn’t got its head around what form the ‘pan arc spatial vision’ will take.  Its a regional plan.  Lets call a spade a spade.  There is no longer a statutory framework for regional planning.  The government is loathe to admit it made a cock up abolishing it in 2011.

What are the options?  There could be a ‘pan arc’ Joint spatial plan. even if only a few policies, with a lower tier local plans being joint county wide plans.  But this would require unanimous agreement.  Unless the government legislates for this and joint planning committees as compulsory (with majority voting powers) it wont happen.  There could be a joint Spatial Development Strategy, as in London, but this would require a combined authority which when you mix unitaries and two tiers is highly complicated.  Note an SDS does not have to be ‘sound’ an anomaly as the legislation was pre the reform of local plans.

In other words there is no way out of the need for legislation.  So be patient till after the collapse of Brexit.

Then a ‘hybrid’ mechanism, joint statutory regional JSPs (with government and LEP seats at joint committees), with SDS scope (i.e. including Environment and Infrastructure )  backed up by Government (equivalence to NPS) following EIP.  Practically it would be the same as old style conference preparing a draft RPG and submitting to the Sos for agreement, but nobody say that to avoid ministers embarrassment.  Then when the JSP is confirmed as an NPS when a LP and/or LLDC Masterplan is approved it would automatically trigger a DCO,  permission in principle and accompanying land assembly.  This would be done through a few clauses added to three existing pieces of legislation and at the same time and in an integrated manner as legislation for the Letwin review.   The aim should be for a ‘single process single decision’ on large scale schemes rather than multiple seperate processes on local plans, Development Coproration Masterplans, CPOs etc.    As a hybrid rather than a purely political process SEA would be required.    There is no off the shelf workable model.  Roll on the post peoples vote 2 Planning and Housing Act 2019.

For campaigners though this will be a double edges sword.  Once you open up the process to EIP the first thing the HBF will say is you have expanded the ‘corridor’ by 3/4 people, so we need 300,000 more homes.  Plus pro rata increase in land constrained growth.  The clumsy process effectively enabled the government to reduce the housing target per capita in the budget, dropping off London Overspill in effect.  If as it will the London Plan EIP says London cannot wholly meet it needs within its own area (as neither can Herts or Slough) then all of these issues open up.  So roll on a proper housing needs assessment linked to the employment targets for the corridor as a basis for a spatial plan.

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