Highways Agency (HA) to become Highways England (HE) – Access Restrictions Eased under License, Powers of Direction Abolished

Much excitement and confusion amongst those long suffering Civil Servants at the Highways Agency when the much touted Infrastructure Act finally went through, confirming the end of the Executive Agency concerned with the Strategic Road Network. From now on Highways England is to be an ‘arms length’ organisation which will operate in a similar manner to that other UK ‘not for profit’ monolith; Network Rail.

This article provides a bit more detail on the critical planning elements associated with the change, in particular powers of direction and approach to new accesses onto the SRN.

First a Bit of Background… 

The newly formed HE is still a bit of an unknown quantity, however the format of the business is thus:

The Secretary of State (HE) must produce a Road Investment Strategy – you can find the current one here:  https://www.gov.uk/government/collections/road-investment-strategy

Route Strategies will assist in informing this, containing more detail on demands and pressures by Route Section: https://www.gov.uk/government/publications/route-based-strategies-evidence-reports

The new company will be regulated by the Office of Rail Regulation (yep - that is going to be fun - incidentally the Office of Rail Regulation is to be renamed the Office of Rail and Road thereby avoiding any costly rebranding of their logo…) and also monitored by a watchdog, at this moment in time – the snappily titled ‘Strategic Road Network Monitor’ combined with Passenger Focus (who spokespeople are always prevalent when there is a rail fare rise – though I am sure they do lots of great other things).

Powers of Direction

The critical change (in terms of planning) is that the new HE will not have powers of direction, instead they are on a par with any other statutory consultee, such as the highway authority or Environment Agency. This means that HE cannot direct refusal on behalf of the Secretary of State, instead they can lodge an objection to a proposal.

The form of the response also needs to be set out as described in the license (see link below) relevant extract:

5.34: ‘Where the Licence holder is consulted by a local planning authority in light of its responsibilities as a statutory consultee under the Town & Country Planning (development management procedure) (England) Order 2010, and where the Licence holder chooses to comment on an application, it must make clear which of its comments are:

a. Information: intended to provide a general context the decision of the local planning authority; or

b. Formal recommendations: where, should the local planning authority be minded to disagree with a recommendation of the Licence holder, the Licence holder will put its recommendation to the Secretary of State to take a view.

In the event that the Licence holder makes a formal recommendation as described in 5.34(b), it must inform the Secretary of State at the earliest opportunity, ahead of any decision by the local planning authority, unless the Secretary of State waives this right. This information is in addition to any requirements made through the development management regime.’

This represents an interesting bit of inadvertent, or maybe very clever, arm-twisting. Essentially if HE wants to continue to object to a development despite LPA concerns then they will have to go straight to the Secretary of State, prior to any decision. The unintended (or otherwise) consequence of this is that whoever makes that decision needs to be in a very strong position, simply not being 100% satisfied with the minutiae is not going to go down well.

This is not to say that HE will not be able to delay applications if insufficient information is provided or they are not satisfied with modelling/design (think the EA with river modelling) and it is unlikely that any LPA will go against HE in most cases, however it does seem unlikely that HE will want to be seen as holding up the process unnecessarily.

New accesses

The relevant text is shown below and some people are going to be very happy…

The Licence holder must, in making decisions under section 175B of the Highways Act about permission for any new connections to its network:

‘Unless otherwise directed by the Secretary of State, consider granting permission in light of the nature of the road in question and the consequences of the new connection, having particular regard to:

i.    In the case of sections of the network designed for high speed traffic, with partially or comprehensively limited access, there should be a presumption against connection, except where it can be provided safely and where there is a demonstrable benefit to the economy;

ii.    On all other sections of the network there should be a presumption in favour of connection, except where a clear case can be made to prohibit connection on the basis of safety or economic impacts.’ [RCA emphasis]

Some of you will be cracking open the champagne at this point as gaining access to the SRN for major sites has been nigh-on impossible in the past. In particular, on A Roads, the ‘presumption in favour’ could be expected to open up sites that were hither-to emphatically refused.

The up-shot of this may well be that HE decide that some A Roads are simply not worth keeping and I do anticipate some judicious off-loading of troublesome sections to local highway authorities over the coming years.

The other issue that arises is the argument that if new connections are now considered acceptable on networks considered to be of ‘national’ significance then presumably protected local A Roads are by inference - fair game. The Shire authorities are notorious for their protection of local primary routes from new accesses, a system that has always been a bit questionable in my view – some of the bypasses constructed in the 80’s have never really reached anything near the predicted traffic volumes but represent good solid pieces of infrastructure that aren’t being used to full potential.

Anyway – it is clear that if you have viable sites in good locations but connection has been an issue in the past, then from the 1st of April the situation is looking better. The access would still have to be designed to a high standard and proven safe and you need to get a good economic argument together but the path should be smoother…   Speaking of which…

Making growth happen

It is probably fair to say that HA experiences vary, with some people happy with the relationship and others finding the existing Agency obstructive. In terms of the future HE, the ‘Making Growth Happen’ section (page 22 of the Strategic Business Plan- see link below), contains lots of positive words around building relationships with Local Enterprise Partnerships and the development of a ‘Strategic Economic Growth Plan’ which will seek to:

•    Better understand the economic development landscape in which the network will operate;

•    Actively target investment that will create or safeguard jobs or support housing growth;

•    Forge new and stronger partnerships to unlock future growth;

•    Work to utilise the Growth and Housing Fund in the RIS, and develop new ways to pool public and private sector funding streams to deliver work on the network;

•    Work with the freight and logistics sectors and other frequent and extensive users of the network to better understand their needs and help them achieve their business objectives;

•    Place greater emphasis on schemes that deliver economic growth in the way we assess investment priorities.

So - in addition to getting strategic improvements in any Route Strategy, those with large sites may wish to try and muscle in on this document and cosy up to the LEP.

Those of you who are eagle eyed will have taken a deep breath after reading bullet point four (go on – read it again) previously the HA as an Executive Agency of Government couldn’t collect improvement funds directly. HE is the same as a highway authority which means they can now request and collect funds themselves, this makes it potentially much easier for the HE to gain S106 or perhaps even CIL funds, which will make for very interesting times…

Despite the overall positivity of this section – it is disappointing that there aren’t any Key Performance Indicators proposed against this particular part of the business plan. The current Highways Agency does have some KPIs already with respect to response times on planning applications and it is understood that DCLG also monitor the HA performance with respect to sites of over 1000 dwellings – so perhaps these will be carried over.

Have a holding direction in place?

In terms of sites with holding direction on today, it is anticipated that these would still be valid beyond the April 1st deadline until they are due to expire (they are after all a direction made on behalf of the Secretary of State) but once these expire then HE will need to submit a response to the LPA with respect to any continuing objection, (in line with the above guidance). HE will also need to be more in tune with general planning policy, in particular the NPPF and Planning Practice Guidance as they no longer have ‘god-like’ status.

Summary points

•    No more holding directions or directions for refusal;

•    Access to the network is going to be much less onerous;

•    Still able to object in the manner of the EA or any other highway authority, particularly if they aren’t satisfied with information provided;

•    However, given that disagreement with the LPA or complaints to regulators may result in embarrassment and possible escalation to the Secretary of State, responses could be swifter and less onerous;

•    New status means the HE can collect funds directly and hints are already being dropped in the Strategic Business Plan.

This article was written by Sarah Loynes our Associate Director