Decision details

To support the application as being made by Gloucestershire County Council (GCC) as they apply for a correction order for the M5 Junction 10 Development Consent Order (DCO).

It is not considered that an agreement under section 101 of the Local Government Act 1972 would be required in respect of the DCO corrections which can in principle be made by the Secretary of State, provided that both Tewkesbury and Cheltenham are happy with those changes and the issuing of a supporting letter, in accordance with the relevant provisions of the Constitution. A copy of this letter is appended to this decision.

The DCO for the M5 Junction 10 was recently approved by the Secretary of State. This DCO includes a mechanism where the applicant has to seek approval for various aspects of the project; these items are called “Requirements”. The original draft of the DCO submitted into examination by GCC proposed that the county planning authority (GCC), would be the approving body for these Requirements. This approach aligned with all previous examples of a county led highways DCO. However, at the request of National Highways and in consultation with representatives of the Department for Transport, the DCO was amended so that the Secretary of State would be the approving body for these Requirements. However, the confirmed DCO has changed the approving body to the “Relevant Planning Authority” (in this case being Cheltenham and Tewkesbury). This was unexpected both by the relevant local planning authorities (Cheltenham and Tewkesbury), GCC and National Highways. A table summarising the wording of the original DCO submitted into examination by GCC and the wording issued by the Secretary of State is summarised on the comparison table appended to this decision.

The Relevant Planning Authority is defined as whoever is the Local Planning Authority for the land in question and has the relevant legislative competence under the Town and Country Planning Act 1990.

Officers have been engaging with both GCC and National Highways as all parties wish to have the most effective and clear decision-making route for the M5 Junction 10 project and consider the DCO as it stands holds some ambiguity. It is important that the Relevant Planning Authority hold the appropriate legislative competence under the Town and Country Planning Act 1990 for matters related to highways, both Cheltenham and Tewkesbury lack the appropriate in-house expertise to administer these specific elements of the DCO. Currently the DCO does not provide clarity, as it is uncertain which Requirements are to be determined by the county planning authority (GCC) or the local planning authorities (in this case being Cheltenham and Tewkesbury).

This decision is to support the application by GCC for a correction order pursuant to section 119 Planning Act 2008 to M5 Junction 10 DCO. The corrections in the main relate to changing the approval body from “relevant planning authority” to “county planning authority” for the approval of various plans, documents, and amendments, such as environmental management plans, landscaping plans and other associated details which require subsequent sign off. Enforcement powers would remain with the relevant planning authority being Tewkesbury and Cheltenham under the Planning Act 2008 provisions, as the act states that it is only the relevant planning authority that have enforcement powers, unless the Secretary of State chooses to disapply those requirements under the DCO itself, in accordance with their powers under Section 120 of the Planning Act 2008.

The enforcement of any breaches would remain the responsibility of Cheltenham and Tewkesbury as these are not being varied or amended by the DCO or the proposed corrections, unless the Councils wanted to use their powers under section 101 of the Local Government Act 1972 to delegate these functions to GCC. This decision is not proposing to do this.

In terms of allocation of responsibilities under the DCO, the legislation and associated guidance prescribes that the body to whom the applicant will need to apply for the discharge of each Requirement must be named in the DCO. For some Requirements this will typically be the relevant planning authority for the area(s) within which the development is situated, sometimes taking into account the views of a named statutory body. In other cases, it may be a statutory body directly, or the Secretary of State. So, the Secretary of State does have power to provide within the DCO that the county planning authority will be responsible for the approval of certain Requirements of the scheme. It should be noted that having the county planning authority as the approval body aligns with an extensive precedent, as every single previous highways DCO which was brought forward by a county council had the county council as the approval body. The examples in which this has been shown are:

1. The Lancashire County Council (Torrisholme to the M6 Link (A683 Completion of Heysham to M6 Link Road)) Order 2013 had as the relevant applicable approval authority, Lancashire County Council being the local highway authority.

2. The M1 Junction 10a (Grade Separation) Order 2013 had as the relevant applicable approval authority, Central Bedfordshire Council and Luton Borough Council both being the local highway authorities for that area.

3. The Central Bedfordshire Council (Woodside Link Houghton Regis) Development Consent Order 2014, had as the relevant applicable approval authority, Central Bedfordshire Council and Luton Borough Council both being the local highway authorities for that area.

4. The Cornwall Council (A30 Temple to Higher Carblake Improvement) Order 2015 had as the relevant applicable approach authority Cornwall Council being the local highway authority.

5. The Norfolk County Council (Norwich Northern Distributor Road (A1067 to A47(T))) Order 2015, had as the relevant applicable approval authority the Norfolk County Council being the local highway authority.

6. The Northumberland County Council (A1 – South East Northumberland Link Road (Morpeth Northern Bypass)) Development Consent Order 2015, has as the relevant applicable approval authority the Northumberland County Council, being the local highway authority.

7. The Lake Lothing (Lowestoft) Third Crossing Order 2020 had as the relevant applicable approval authority Suffolk County Council being the local highway authority.

8. The Great Yarmouth Third River Crossing Development Consent Order 2020 had as the relevant applicable approval authority Norfolk County Council being the local highway authority.

GCC have proposed a correction to the DCO that changes the definitions, so that the county planning authority can sign-off the Requirements. This will make the DCO sign-off requirements much clearer and will also help expedite approval of the DCO, by making it simpler to ensure resources are in the right place, at the right time.

To not support the correction order as presented, however this would retain the level of ambiguity and would not contribute to expediating the work needed to sign off the various Requirements of the scheme.