RE MIDLAND METRO (BIRMINGHAM CITY CENTRE
LAND ACQUISITION AND VARIATION) ORDER
CENTRO’S OPENING SUBMISIONS
Introduction
1. There are before this inquiry two applications, namely (i) for an order under
the Transport and Works Act 1992 (“the TWAO”) and (ii) that planning
permission, so far as it is needed, be deemed to be granted for the
development proposed to be authorised by the TWAO1. This follows the
earlier grant of powers – the Midland Metro (Birmingham City Centre
Extension etc) Order 2005 (“the 2005 Order”) – for the full Birmingham City
Centre Extension (“BCCE”) from Snow Hill to Fiveways. The BCCE is being
delivered in phases, with the first phase to Stephenson Street under
construction.
2. It is convenient to think of the TWAO having two main functions; first, to
provide statutory authority (with associated powers) for a comparatively
modest variation to the previously approved tram route – to take account of
the redevelopment of Paradise Circus (“PC”); second, to revive compulsory
acquisition powers to ensure land assembly can be achieved for that part of the
BCCE which already enjoys statutory authority (and planning permission). In
rough geographical terms, the first of these TWAO elements – the variation
powers – starts some 80m west of Hill Street and finishes on Broad Street at a
point some 60m west of PC; the second is in two sections, namely (i) along
Stephenson Street, Pinfold Street and some 110m along Paradise Street and
(ii) along Broad Street from a point 60m west of PC and running west for
another 110m.
3. The PC Redevelopment has outline planning permission and is a joint venture
between Birmingham City Council (“BCC”) and Argent; it will remove the
current gyratory system at PC. BCC has been granted compulsory purchase
powers to secure land assembly for the redevelopment and an associated
traffic order. The variation powers in the TWAO will allow the redevelopment
to be appropriately and sustainably served in terms of public transport; that
linkage with BCCE was an express consideration in the consenting process for
1
Section 90(2A) of the 1990 Act
the PC Redevelopment. As Mr Adams explains2, the PC developers are
contributing, pursuant to a section 106 agreement, to the Variation scheme.
4. No objector to the TWAO remains other than Objector 11, Victoria Square
House (“VSH”). VSH’s property lies well to the east of the new powers
sought in the TWAO. It appears VSH acquired the freehold of the property at
the end of January 20143.
5. Centro has already been granted powers and consents etc which include:
a. Statutory power to build the tram on the alignment permitted under the
2005 Order. As noted, the TWAO seeks statutory authority only for the
minor variation to take account of the new development at PC – the
easternmost extent of those variation powers lies some 80 m west of
the junction of Hill Street with Paradise Street;
b. Deemed planning permission for development under the 2005 Order4.
That deemed permission has been implemented5. Under the TWAO,
new deemed planning permission is sought in so far as it does not
already exist6. Pursuant to the 2005 deemed planning permission,
Centro has also secured detailed consent, including for the area of
Pinfold Street7.
c. Various listed building consents (“LBC”)8 were granted in 2005,
including consent to fix overhead electrification brackets to VSH.
These have lapsed. Where and as necessary, fresh applications will be
made to Birmingham City Council (“BCC”).
d. Compulsory purchase powers, including in respect of VSH, were
similarly granted in 2005. These too have lapsed. The TWAO seeks to
re-new such powers, in so far as the land/interest required remains the
2
Adams Proof paragraph 5.25 and section 7
Letter of 5th February 2014 from MMS withdrawing objection of previous freeholder of VSH
property
4 Ellingham Exhibits 1 and 2
5 Confirmed by letter from Birmingham City Council dated 21 st June 2010 – Adams Exhibit 4
6 MMD 4.5J
7 Ellingham Exhibit 3
8 Adams Exhibit 3
3
2
same and seeks new powers where the alignment change around
Paradise Circus (“PCR”) so requires.
e. Building agreements, re fixing of the catenary system etc to the
building, were entered into with previous freeholders, including with
the then freeholders of the property purchased by VSH in 20149.
6. And;
a. As noted, BCC has granted consent for the PC Redevelopment, having
had express regard to the ability of the BCCE, with the variation, to
serve that development.
b. The alignment of Midland Metro along the 2005 route is expressly
supported by the development plan, with the proposals map10 showing,
inter alia, the route running along Stephenson Street and up Pinfold
Street past VSH’s property.
7. This Opening seeks to follow the matters raised by the Secretary of State as
being matters about which he wishes to be informed (“the SofM”). This
Opening does not, for the most part, seek to anticipate – at least not to any
great extent - the evidence to be called. Mr Adams produces, as an aide
memoire, a Table11 summarising where the various matters are covered in the
evidence from Centro; that Table encapsulates the position when proofs were
finalised and does not, for example, include cross-reference to Rebuttal
Proofs.
SofM 1 – The objectives of the TWA Order in the context of the proposed Centenary
Square Extension (“CSQ” and “CSQE”) of the Midland Metro Light Rapid Transit
System
8. The objectives of the TWAO are variously identified, including in section 4 of
the Centro Statement of Case and the Concise Statement of Aims12; these have
regard to the changes at PCR and identify the aims of the variation proposal.
9
Adams Exhibits 14 and 15
Ellingham Exhibit 6
11 Adams proof Table 12.1 at page 25
12 MMD/0.1 and MMD/3.4
10
3
BCC supports and endorses the ability of the promoted scheme to achieve the
relevant aims and objectives13
SofM 2 – The need and justification for renewing the compulsory acquisition powers
for the CSQE previously conferred by the Midland Metro (Birmingham City Centre
Extension etc) Order 2005 (“the 2005 Order”) and for varying the tramway alignment
authorised by the 2005 Order
9. The need and justification for the BCCE have been clearly established over
the years and accepted by, amongst others, the SofS and BCC. The rationale
underlying the PC Redevelopment and its inter-relationship with the BCCE
has emerged more recently but still over a period of years; it too has been
accepted by, amongst others, BCC. The 2005 alignment and route,
incorporating the proposed minor variation, represents the appropriate case to
progress.
10. This will be covered primarily by Messrs Adams, Chadwick and Ellingham.
SofM 3 – The alternative alignment options in Paradise Circus considered by Centro
Preliminary
11. In circumstances where the BCCE route and alignment have been endorsed
and granted powers, the issue of variation arises only in so far as a limited
deviation from that line is sought in the immediate vicinity of PC. The revival
of compulsory acquisition powers does not alter this.
Alternative alignment options in PC
12. These have been clearly set out and considered, including in the ES supporting
the TWAO. In so far as these matters are capable of serious challenge, Messrs
Adams, Chadwick and Ellingham will deal with them, supported, on
engineering matters by Mr Last.
Alternatives as raised by VSH
13
BCC letter of 20.x.14 at page 3 – SUPP/1
4
13. VSH acquired the property in January 2014, in the full knowledge of the
TWAO proposal. Neither it, nor the previous freeholders, raised any issue of
alternatives in their original objections to the TWAO. Indeed, the first clear
glimpse of VSH’s objection is gleaned from its Statement of Case which
asserts there are at least two variants in addition to that authorised under the
2005 Order (as proposed to be varied by the TWAO), namely (i) along
Navigation Street and Suffolk Street Queensway and (ii) along Navigation
Street, Hill Street and Paradise Street. Even ignoring engineering
considerations, these alternatives perform materially less well overall than that
within the TWAO. BCC concurs, stating14:
[BCC] ..is aware of the objection by VSH Nominee 1 Limited and VSH
Nominee 2 Limited and does not support the view that there are more
suitable alternative routes. I refer you to our current and emerging
Development Plan where the associated plans clearly demonstrate the
Council’s support for the 205 Order alignment along Pinfold Street
and through Victoria Square. The City Council would strongly oppose
these alternative routes should they be taken forward.
14. Centro’s witnesses have set out their responses, and will answer questions, on
this in so far as the issue lies within their area of expertise.
SofM 4 – The extent to which the objectives of the TWA Order are consistent with
national, regional and local transportation policies, the National Planning Policy
Framework (“the NPPF”) and local planning policies
Preliminary
15. It is difficult to envisage how this proposal could be anything other than
compliant with the relevant policy matrix. Indeed, this is not only Centro’s
view but one which has been endorsed by others including central and local
Government. Centro further notes the clear, and independent, view recently
expressed by BCC; BCC’s support for adherence to the 2005 alignment in the
area of Pinfold Street and its accord with the present and emerging
development plan has been noted above. As regards the variation to
accommodate the PC Redevelopment, BCC states15:
14
15
SUPP/1
ibid
5
Centro’s proposals to amend the alignment of the 2005 Order for the
extension at Paradise Circus were developed in close co-operation
with the City Council and offer the benefits of cost saving and a
significant reduction in construction disruption due to the combination
of the Metro works with the Paradise Circus Redevelopment (PCR)
highway works. As you know this joint working and desire to integrate
the two very important projects was reflected in the Council’s
determination of the outline planning approval for the PCR
development. I refer you specifically to the Council’s Planning
Committee Report dated 20 December 2012. The PCR development
and associated highway works are progressing well and the developer
has now satisfactorily discharged the first batch of planning
conditions, with the intention for enabling works starting in January
2015.
16. The policy matrix is dealt with in the evidence of Centro’s witnesses,
particularly Messrs Adams and Ellingham. It is not necessary to go further in
Opening, other than to flag a couple of points in respect of the approach to
national and development plan policy.
National and regional policy
17. The content of Government policy is not an appropriate subject for discussion
and review at a pubic inquiry; the inquiry’s role is, rather, to apply such
policy16. Self-evidently, no policy can transmute an immaterial consideration
into a material one, or vice versa. The policy-maker is not bound slavishly to
follow his/her/its own policy – but any departure from such policy must be
justified by clear and cogent reasons17.
Development plan
18. Section 38(6) of the 2004 Act provides:
If regard is to be had to the development plan for the purpose of any
determination to be made under the planning Acts the determination
must be made in accordance with the plan unless material
considerations indicate otherwise.
16
17
Bushell v SoSE [1980] 2 All ER 608 HL
Gransden v SoSE [1986] JPL 519, at 521; upheld at [1997] JPL 365
6
Whilst it would appear that section 38(6) is not strictly engaged here (see
Annex hereto), the development plan remains a most material consideration.
In practice, the approach set out in that section still falls to be applied.
19. The NPPF took immediate effect and provides:
211. For the purposes of decision-taking, the policies in the Local Plan
… should not be considered out-of-date simply because they were
adopted prior to the publication of this Framework.
212. However, the policies contained in this Framework are material
considerations which local planning authorities should take into
account from the day of its publication. The Framework must also be
taken into account in the preparation of plans.
213. Plans may therefore need to be revised to take into account the
policies in this Framework. This should be progressed as quickly as
possible, either through a partial review or by preparing a new plan.
214. For 12 months from the day of publication, decision-takers may
continue to give full weight to relevant policies adopted since 2004
even if there is a limited degree of conflict with this Framework.
215. In other cases and following this 12-month period, due weight
should be given to other relevant policies in existing plans according
to the degree of consistency with this framework (the closer the
policies in the plan to the policies in this Framework, the greater the
weight they may be give).
20. Here, subject to the modest variation, the proposal is wholly compliant with
the present and emerging development plan; and the variation represents an
other material consideration which is wholly supported by BCC.
21. The courts have confirmed18 that, in the context of the old section 54A of the
Town and Country Planning Act 1990 (and, by parity of logic, one presumes,
section 38(6) of the 2004 Act), it is necessary to read the development plan as
a whole. It must also be read in the context of subsequent policy and
legislative intervention. As a matter of common sense, and legal approach, the
courts have recognised that development of any scale may well conflict with
some plan policies; indeed, there may well be tensions between different
policies. In such circumstances, the correct approach is to identify the
18
R v Rochdale MBC ex p Milne 31st July 2000 at paragraphs 48 to 49; R (Cummins) v Camden
LBC [2001] EWHC 1116 (Admin) at paras 163 et seq
7
dominant policy or theme. On any reasonable analysis, that overall dominant
theme or policy matrix here is that relating to bringing forward the BCCE. The
test is whether, having regard to that, the proposal accords with that plan as a
whole; thus any conflict or tension with other policies does not preclude such
overall accord. In any event, the various material considerations here militate
decisively in favour or the order being made and planning permission deemed
granted.
SofM 5 – The likely environmental impacts of constructing and operating the revised
tram alignment
22. It is neither necessary nor helpful to anticipate the evidence on these matters at
this stage. It is sufficient to refer to the ES and the evidence generally.
23. By way of aside, Centro notes that VSH has specified no noise and vibration
objection and has not adduced any evidence on this aspect. Yet the VSH timeestimate posits a need to call Mr Monk Steel – instead of taking his evidence
as a written statement – and proposes two hours cross-examination for him. It
would clearly be helpful were VSH to identify precisely what its case might be
in this respect.
SofM 6 – The measures proposed by Centro to mitigate any adverse impacts of the
proposals in the TWA Order, including any measures to avoid, reduce or remedy any
major or significant adverse environmental impacts of the proposals; and whether any
adverse environmental impacts would remain after the proposed mitigation
24. This is dealt with in the ES and summarised by Mr Ellingham.
SofM 7 – The adequacy of the Environmental Statement submitted with the
application for the TWA Order, having regard to the requirements of the Transport
and Works (Applications and Objections Procedure) (England and Wales) Rules 2006
and whether the statutory provisions have been complied with.
25. The ES is fit for purpose; Centro notes that no request for Further Information
has been made by the SofS. It should be noted that the SofS here gave a
8
Scoping Opinion19 and the ES thus needed only to include the information
specified in that Opinion20.
26. It is far from clear whether the one remaining objector advances any
suggestion that, in order for the ES to constitute an environmental statement,
additional information is required. Even were such a case now to be advanced
and were the SofS then, contrary to Centro’s primary case, to conclude that
such additional information was indeed required, the SofS would then be
under a duty so to indicate and to afford Centro sufficient time to respond by
producing the additional information21.
SofM 8 – To the extent that objections made by owners and occupiers of land that
would be affected by the proposals in the TWA Order have not been withdrawn, the
likely impact of those proposals on the property interests concerned
27. Centro has had some difficulty fully understanding whence spring VSH’s
concerns.
28. In so far as possible Cento has sought to set out its position in the proofs
(including rebuttal) of its witnesses.
SofM 9 – Whether the tests in paragraphs 16 to 23 of ODPM Circular 06/2004, which
gives guidance on the making of compulsory purchase orders, are satisfied; in
particular, whether there is a compelling case in the public interest for conferring on
Centro powers compulsorily to acquire an use land for the purposes of the CSQE and
whether there are likely to be any impediments to the implementation of the powers in
the TWA Order
29. I make the following points - figures in brackets refer to the relevant
paragraph number in the Circular:
a. Centro is required to justify its compulsory acquisition proposals but
has discretion how best to do that (16).
19
By letter dated 14.v.13 - ES at 2C – MMD/
Rule 11(3) T & W (Applications and Objections Procedure) (E & W) Rules 2006
21 Ibid Rule 17
20
9
b. By whatever route a compelling case in the public interest must be
shown (17).
c. The SofS must be able to take a balanced view between Centro’s
intentions and the concerns of those whose land or interest is to be
acquired (18).
d. Centro must be able to show a clear idea of how it intends to use the
land and that the necessary resources are likely to be available to
achieve the end within a reasonable timescale. The public benefit must
outweigh any private loss (19).
e. Centro needs to provide as much information as possible about the
resource implications of implementing the scheme (20).
f. The timing of funding’s being available – including to cover any blight
- is also relevant (21).
g. Centro needs to show a reasonable prospect of the scheme’s going
ahead, including that it is unlikely to be blocked by any impediments –
in addition to funding/financial these include physical and legal factors
such as need for other consent(s), permission(s) or licence(s) and any
accommodation or remedial works (22 and 23).
30. In Centro’s submission, its evidence satisfies all these points.
SofM 10 – Having regard to section 25 of the TWA, whether the relevant Crown
authority has agreed to the compulsory acquisition of interests in, and/or the
application of provisions in the TWA Order in relation to, Crown Land identified in
the book of reference
31. The Book of reference erroneously indicates acquisition of a small amount of
land from the SofS for Business, Innovation and Skills22. Centro has no need
to acquire any land or rights from the SofS and is putting forward a modest
amendment to the TWAO to deal with this point.
22
See Adams Proof Appendix B for full explanation.
10
SofM 11 – Centro’s proposals for funding the cost of CSQE
32. Mr Adams explains this in his evidence23.
SofM 12 – the conditions proposed to be attached to the deemed planning permission
for the revised tramway alignment, if given, and in particular whether those
conditions satisfy the six tests referred to in Planning Practice Guidance, Use of
Conditions (Section ID:21a)
33. Centro has identified draft conditions in its application for deemed planning
permission24. These will no doubt be subject to further discussion as
appropriate during the inquiry, probably in a dedicated planning-condition
session.
SofM 13 – The purpose and effect of any substantive changes proposed by Centro to
the TWA Order since the application was made, and whether anyone whose interests
are likely to be affected by such changes have [sic] been notified
34. See under SofM 10 above. With this exception, no substantive change is
proposed.
[SofM 14 – Any other matters which may be considered relevant]
35. There is at present nothing Centro need mention under this head.
Conclusion
36. Centro commends this scheme to the Inspector and to the SofS.
23
24
Adams Proof section 5
MMD/4.5J
11
Francis Taylor Building
Temple
ANDREW NEWCOMBE QC
19th November 2014
12
ANNEX - INITIAL LEGAL SUBMISSIONS
Preliminary
1. This Annex sketches various points of law for the avoidance of doubt. In so
far as appropriate or necessary, it will be updated.
Section 38(6) of the Planning and Compulsory Purchase Act 2004 (“Section 38(6)”)
2. Section 38(6) requires that, in so far as regard is to be had to the development
plan, any determination to be made under the planning Acts must be made in
accordance with the plan unless material considerations indicate otherwise.
3. The courts have held25 that section 38(6) is not engaged when considering an
applications under section 37 of the Electricity Act 1989 (consent for a
electricity lines) and section 90(2) of the 1990 Act (deemed planning consent
therefore). By parity of reasoning it would appear that the same approach
would apply here under section 90(2A). But, in practice, that approach
remains a most material consideration and should, in Centro’s submission, be
followed.
The Planning (Listed Buildings etc) Act 1990 (“the LB Act”)
4. Notwithstanding any scope for parallel arguments re whether sections 66(1)
and 72 of the LB Act are engaged Centro submits that matters should be
considered on the basis of their applying with full force.
25
Samuel Smith v SofS [2012] EWHC 46 (Admin)