Reconciling infrastructure and heritage
Infrastructure schemes often affect the historic environment, frequently to its detriment. Occasionally, the requirements of new infrastructure and the significance of the built historic environment combine to the benefit of both, with spectacular results. Think of St Pancras or King’s Cross stations, for example.
This article looks briefly at the ways in which heritage considerations are dealt with under the main ways in which infrastructure schemes, such as roads, railways, energy schemes and airports, are authorised.
In the vast majority of cases, the effects of an infrastructure project on the historic environment will be a matter for the environmental impact assessment (EIA) process. Under this the effects, both negative and positive, can be identified and assessed. However, the effect of a project on the historic environment, while important, will usually not be determinative. In many cases it will be trumped by the benefits of the infrastructure scheme, provided that due consideration has been given to the historic environment, and that any intervention is reasonable and proportionate.
Infrastructure projects are generally consented in one of four main ways: by Act of Parliament; by development consent order; by Transport and Works Act order; and under the conventional planning system. Heritage considerations are relevant whichever process is used, but how they are taken into account and how works affecting the historic environment are regulated differ under each process.
 Act of Parliament
In a handful of cases, very large and usually linear schemes are authorised by Act of Parliament. The first phase of HS2 has now been authorised by the High Speed Rail (London to West Midlands) Act 2017, following in the footsteps of the Crossrail Act 2008 and HS1, which was authorised by the Channel Tunnel Rail Link Act 1996. All these schemes had or will have substantial effects on the historic environment.
These acts deal with the historic environment in much the same way.
To take HS2 Phase 1 as the most recent example:
- The act authorises the promoter to carry out the necessary works, including to listed buildings and scheduled monuments (including demolition).
- Accordingly, the act dis-applies the need to obtain listed building consent or scheduled monument consent (there is no longer a need to obtain conservation area consent), or to meet various requirements that would otherwise apply to such heritage assets, where this would be inconsistent with the works authorised by the act.
- The secretary of state has powers to dis-apply the dis-applications where he considers that appropriate.
- The effects of the scheme on the historic environment were considered extensively in the HS2 Phase 1 Environmental Statement under the heading of ‘cultural heritage’. The secretary of state has given numerous commitments as regards heritage and the historic environment in the so-called Environmental Minimum Requirements (see Annex 3, Heritage Memorandum).
The main way in which the largest infrastructure schemes are now authorised is by the secretary of state making a development consent order (DCO) under the 2008 Act. Fifty-nine DCOs have been made so far (May 2017), covering different types of infrastructure, with more in the energy sector than any other.
The DCO regime was put in place to address growing concerns that the conventional planning system was too slow and cumbersome, in too many cases, to deal with large infrastructure developments. Many large infrastructure schemes became bogged down in lengthy delays and long public inquiries, in some cases not assisted by uncertainty about relevant government policy. Even when planning permission was finally obtained, there was often still a need to obtain numerous other consents and powers, including compulsory purchase powers, under other processes.
The 2008 Act cut through this by providing for the authorisation of infrastructure schemes in the transport, energy, water, waste and waste water sectors above a statutory threshold set out in the act (so-called ‘nationally significant infrastructure projects’, although not all of them are) in the form of a DCO. The DCO will usually give a promoter powers to build and operate the scheme, compulsory purchase powers to acquire land, and most of the other powers needed to construct and use the infrastructure. There is no public inquiry but instead a series of hearings which take place within a fixed six-month examination period that largely consists of written representations.
As regards the historic environment, the authorisation given by the DCO obviates completely the need to obtain planning permission, listed building consent, scheduled monument consent and numerous other consents.
With no requirement to obtain planning permission, the statutory tests in sections 66 and 72 of the Planning (Listed Buildings and Conservation Areas) Act 1990 requiring special regard to be had to listed buildings and conservation areas are not engaged, but there are equivalent tests in regulations made under the 2008 Act. The effects of the scheme on the historic environment should still be dealt with in an environmental statement. They will be highly relevant to the recommendation of the examining authority and the decision of the secretary of state.
Further, there will often still be detailed control over interventions in the historic environment, by way of requirements set out in the DCO itself – requirements being the DCO equivalent of planning conditions. Like planning conditions, requirements are enforceable by the local planning authority, not the secretary of state, with some DCO requirements providing for approvals to be deemed to have been given if applications are not decided within a certain time.
 Transport and Works Act order
Some types of infrastructure, particularly railways not operated by Network Rail, light-rail systems, tram systems and infrastructure involving waterways, including flood-defence works, can be authorised by an order made under the Transport and Works Act 1992, commonly called Transport and Works Act orders (TWAOs). Unlike the DCO regime, which must be used for infrastructure prescribed by legislation to fall within it (unless an Act of Parliament is obtained), a developer can opt to use the TWAO process or not. Many do, particularly where compulsory purchase powers are needed.
The TWAO regime, again unlike the DCO regime, does not displace the need to obtain planning permission, listed building consent or scheduled monument consent. However, the secretary of state has specific power to direct that planning permission be granted for the scheme that is the subject of the TWAO if the developer so requests (a so-called ‘deemed planning permission’). It is common practice to do this and rare for the secretary of state to grant one without the other.
Listed building consents still need to be obtained by application to the local planning authority in the usual way and scheduled monument consents by application to the secretary of state. However, under the Transport and Works Applications (Listed Buildings, Conservation Areas and Scheduled Monuments Procedure) Regulations 1992, the procedure for their determination is modified where the works in question relate to a TWAO application.
In particular, under the 1992 Regulations, applications for listed building consent made within 10 weeks following the relevant TWAO application are automatically referred to the secretary of state. If made later than that and undetermined by the local planning authority, the secretary of state may direct that the application is referred to him for determination. An appeal against a refusal of listed building consent by the local planning authority (or non-determination) would bring the matter before the secretary of state in any event.
By these various means, it is highly likely that any listed building consent or scheduled monument application relating to a TWAO scheme will come before the same inquiry (technically concurrent inquiries) as the TWAO/ deemed planning permission application, if the timescales permit.
 Conventional planning system
Many infrastructure schemes (and particularly social infrastructure schemes such as schools and hospitals) are consented under the conventional planning system by application to the local planning authority in the usual way. Accordingly, listed building consent and scheduled monument consent will need to be applied for in the usual way as well.
For all of the advantages of the DCO and TWAO processes (the former being brought in to deal with the shortcomings of the conventional planning system and the latter as an alternative to obtaining Acts of Parliament), decision making at the local level under the conventional planning system still has many advantages.
If all goes well, it is likely to deliver the relevant consents much more quickly and with far less expense. But if the local planning authority does not favour the scheme, or if landowners are unwilling to cooperate, or if there are numerous local planning authorities to deal with, it is likely to be a different story. Since most developments are not infrastructure schemes, most developers have no choice but to use the conventional planning system and to prevail on the local planning authority to use its own compulsory purchase powers if needed to assemble the land.
With there being around 500,000 listed buildings, almost 10,000 conservation areas and almost 20,000 scheduled monuments in England, few infrastructure schemes will have no impact on the historic environment. A decision will often need to be made to sacrifice heritage for infrastructure where the national interest requires, irreplaceable though heritage may be, in view of the pressure to deliver infrastructure and the economic growth on which it depends.
This article originally appeared in IHBC's Context 149, May 2017. It was written by Mark Challis, a partner in Bircham Dyson Bell’s government and infrastructure team, which specialises in obtaining consents for infrastructure and many other kinds of development.
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