NEWCASTLE-UNDER-LYME BOROUGH COUNCIL

EXECUTIVE MANAGEMENT TEAM’S

REPORT TO PLANNING COMMITTEE

05 November 2019

Report Title:	Delegated Authority to Determine Applications Pursuant to Schedule 17 of the High Speed Rail (West Midlands – Crewe) Bill (act following its assent

Submitted by:	Executive Management Team

Portfolios:	Leader of the Council – Corporate and Service Improvement, People and Partnerships

Ward(s) affected:	Whitmore, Maer and Madeley

Purpose of the Report To seek the agreement of the Council to the proposed revision to the Scheme of Delegation to the Head of Development Management to ensure the expedient determination of applications submitted pursuant to Schedule 17 of the High Speed Rail (West Midlands-Crewe) Bill.
Recommendation To amend the Scheme of Delegation to the Head of Development Management, as set out in Part 3 of the Council’s Constitution, to insert the following application type within the list of delegated application types set out in Appendix 4 Item 10 of the Constitution. “To determine all application pursuant to Schedule 17 of the High Speed Rail (West Midlands-Crewe) Bill” (act following its assent). And that this is exercised by “Executive Director (Commercial Development and Economic Growth)”
Reasons 1. As applications pursuant to Schedule 17 of the High Speed Rail (West Midlands-Crewe) Bill are not planning applications, that they are not identified within the Scheme of Delegation as being dealt with through the Council’s Planning team. 2. To ensure that the applications pursuant to Schedule 17 of the High Speed Rail (West Midlands-Crewe) Bill can be dealt with under delegated authority.

1.	Background
1.1	High Speed Rail (West Midlands – Crewe) Bill (The Bill) will grant planning permission for the construction of a high speed railway between West Midlands to Crewe being the second phase of the proposal. This is pursuant to High Speed Rail (London to West Midlands) Act 2017 (The Act) which grants the planning permission for the construction of a high speed railway between London and the West Midlands.
1.2	The Act requires the nominated undertaker (the party or parties who will construct the railway) to obtain the further approval of the Local Planning Authorities along the route for certain matters relating to the design and construction of the railway. Approval is required for plans and specifications; matters ancillary to development; road transport; and for bringing into use.
1.3	The provisions and the procedure for obtaining further approvals are set out in the Schedules to the Act; Schedule 17 (Conditions of Deemed Consent) refers specifically to the approval of details reserved by the conditions attached to the deemed planning permission.
1.4	Local Planning Authorities have been offered a choice of a wider or narrower range of control over the approval of details. Authorities who desired to exercise the wider range of control must first become a Qualifying Authority and give satisfactory undertakings concerning the handling of planning matters; these are set out in the HS2 Planning Memorandum which sets out the rules of conduct and the administrative arrangements that both the Qualifying Authority and the nominated undertaker will adhere to during the construction of the railway.
1.5	The Council resolved to become a Qualifying Authority on 24th July 2019. The Planning Memorandum has been signed by the deadline of 25th October 2019 and the Council will become a Qualifying Authority when the High Speed Rail (West Midlands – Crewe) (Qualifying Authorities) Order 2017 comes into effect following assent of the Bill.
1.6	A Qualifying Authority is responsible for issuing approvals in respect of details of the design and appearance of key structures and other elements of the scheme, but that responsibility does not extend to the principle of the construction which is permitted by the Act itself. Structures and features that the appropriate Qualifying Authority will be able to consider details for include:
o Buildings and vehicle parks o Terracing o Cuttings o Embankments and other earthworks o Fences and walls o Telecommunication masts o Power take-off compounds o Artificial lighting o Bridges and viaducts o Borrow pits and waste disposal sites
1.7	A Qualifying Authority can only refuse to approve plans or specifications or impose conditions on the specific grounds set out in Schedule 17, these are :- i) That the design or external appearance of the works ought to be modified, and is reasonably capable of being so modified, a) to preserve the local environment or local amenity; b) to prevent or reduce prejudicial effects on road safety or the free flow of traffic in the local area; or c) to preserve a site of archaeological interest or nature conservation value, ii) That the development ought to, and could reasonably be carried out elsewhere on land within the development’s permitted limits, (i.e. on the land identified within The Act to which the planning permission granted has effect).
2.	Issues
2.1	By agreeing to become a Qualifying Authority the Council has accepted obligations concerning the process and the timeliness with which it will determine applications submitted under Schedule 17 of the Bill.
2.2	It will be expected to determine these applications within the eight week period prescribed in the Act, this begins on the day the application is received by the Council. This differs from applications submitted under the Town & Country Planning Act where the statutory eight week period only begins after the application is accepted as a valid application by the Council.
2.3	It is necessary to ensure the Council has in place a decision making process that will ensure the timely determination of these applications.
2.4	If the Council fails to determine an application within the prescribed period, the application will be deemed to have been refused and the applicant may then appeal to the Secretary of State who will then determine the application.
2.5	If a Qualifying Authority repeatedly fails to expedite requests for approval or seriously fails to act in accordance with the Planning Memorandum the Secretary of State may order that an authority shall cease to have the powers of a Qualifying Authority.
3.	Proposal
It is therefore recommended that the Scheme of Delegation be amended to include within the list of applications where the determination is delegated to the Head of Development Management, the following additional category of application namely :- “Applications pursuant to Schedule 17 of the High Speed Rail (West Midlands - Crewe) Act 2019 when it has gained assent.”
4.	Reasons for Proposed Solution It is essential the Council has in place an appropriate process to ensure Schedule 17 applications can be determined in a timely manner before applications are received. The inclusion of this category of application within the current scheme of delegation will allow for such applications to be determined timely and expediently.
5.	Options Considered
5.1	The following alternative options have been identified and rejected for the reasons as set out below.
Option 1
5.2	To not include Schedule 17 applications within the scheme of delegation to the Head of Development Management. This is not recommended.
5.3	If an application can only be determined at a meeting of the Planning Committee, the 4 weekly cycle for meetings will increase the risk an application may not be determined within the prescribed statutory timescale. This would then result in an appeal process for non-determination which would add to the burden on Council resources.
5.4	If the Council should repeatedly fail to determine applications within time or otherwise seriously fail to act in accordance with the Planning Memorandum, the Secretary of State may order that the Council authority shall cease to have the powers of a Qualifying Authority.
Option 2
5.5	Include the Schedule 17 applications within the scheme of delegation and treat it as if it were a planning application with the same call-in provisions. This is not recommended.
5.6	The uncertainty of an application being called-in or not along linked with the 4 weekly cycle for meetings will increase the risk an application may not be determined within the prescribed statutory timescale. This would then result in an appeal process for non-determination which would add to the burden on Council resources.
5.7	Again, if the Council should repeatedly fail to determine applications within time or otherwise seriously fail to act in accordance with the Planning Memorandum, the Secretary of State may order that the Council authority shall cease to have the powers of a Qualifying Authority.
Option 3
5.8	To invoke other constitutional change to establish a process whereby Councillors will convene as and when required to determine an application submitted under Schedule 17. This is not recommended.
5.9	This would increase the burden on Councillors. It is not recommended at this time given the number of applications or the frequency of submissions is not clear, the full impact cannot therefore be assessed.
6.	Legal and Statutory Implications
The proposed amendment to the scheme of delegation requires the approval of full council and will enable the expedient and expeditious determination of applications submitted relating to the HS2 railway. This will reduce the risk associated with persistent non-fulfilment of the obligations set out within the Planning Memorandum which could result in the removal of the Council’s status as a Qualifying Authority and the consequent loss of the opportunity to influence the final design of railway works.
7.	Equality Impact Assessment
N/A
8.	Financial and Resource Implications
HS2 will pose a new burden for Council services. A Service Level Agreement will be negotiated with HS2 Ltd to ensure that the Council is fully reimbursed for the additional work generated through the consents and approvals process.
9.	Major Risks
If the Council fails to determine an application within the prescribed period, the application will be deemed to have been refused and the applicant may then appeal to the Secretary of State who will then determine the application.
If a Qualifying Authority repeatedly fails to expedite requests for approval or seriously fails to act in accordance with the Planning Memorandum the Secretary of State may order that an authority shall cease to have the powers of a Qualifying Authority. 1
10.	Sustainability and Climate Change Implications N/A
11.	Key Decision Information N/A
12.	Earlier Cabinet/Committee Resolutions
The Council resolved to become a Qualifying Authority on 24th July 2019.
13.	List of Appendices
None.
14.	Background Papers
Report to Council dated 24th July 2019 where it was agreed to become a Qualifying Authority.