London Gateway Logistics and Commercial Centre Order

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Messrs Berwin Leighton Paisner
Adelaide House
London Bridge
London
EC4R 9HA

Ellis Harvey
Head of TWA Orders Unit
Zone 9/2
Southside
105 Victoria Street
London
SW1E 6DT

Direct line: 020 7944 4506
Fax: 020 7944 2479

transportandworksact@dft.gsi.gov.uk

Web site: www.dft.gov.uk

Our Ref: TWA/02/APP/2

Your Ref: IRT/10793/9

20 July 2005

Dear Sirs,

Transport And Works Act 1992

Town and Country Planning Act 1990

Applications for the Proposed London Gateway Logistics and Commercial Centre Order and for Deemed Planning Permission

1. I am directed by the Secretary of State for Transport ("the Secretary of State") to say that consideration has been given to the report of the Inspector, Mr David Ward BSc(Hons) CEng MICE FIHT, concerning the applications made by your clients, The Peninsular and Oriental Steam Navigation Company ("P&O") and Shell UK Limited for:

  • the London Gateway Logistics and Commercial Centre Order ("the Order") to be made under section 1 of the Transport and Works Act 1992 ("the TWA"); and
  • a direction as to deemed planning permission for the development provided for in the Order, to be issued under section 90(2A) of the Town and Country Planning Act 1990.

2. The Inspector held a public local inquiry into these applications between 25 February and 5 September 2003. Concurrently with that inquiry he held public local inquiries into:-

  • your clients' appeal to the First Secretary of State under the Town and Country Planning Act 1990 against non-determination of their application for outline planning permission ("the OPA") for redevelopment of the former Shell Haven oil refinery at Stanford-le-Hope, Essex as a logistics and commercial centre; and
  • the application by P&O to the Secretary of State for a Harbour Empowerment Order ("the HEO") under the Harbours Act 1964 for a new container port and Ro-Ro terminal adjacent to the logistics and commercial centre.

Separate letters are being issued today setting out the views which the First Secretary of State and the Secretary of State are minded to take on, respectively, the OPA and the proposed HEO.

3. The Order would, if made, authorise the provision of rail access to the proposed London Gateway logistics and commercial centre from Network Rail's London/Tilbury/Southend line via the existing Thames Haven branch line. The proposals in the Order comprise new track within the logistics and commercial centre, linked to the branch line, to serve the proposed industrial and warehouse units on the site, including a common user siding; a new track ("the western loop") between the north-western corner of the commercial centre and the branch line; and works to upgrade the branch line, including realignment of the line to the south of Stanford-le-Hope and a new rail bridge over Mucking Creek. The Order, as applied for, also included powers of compulsory acquisition over land required for the proposed works.

4. Schedule 1 to the draft Order provided that, if the HEO were made, the works to be authorised by the Order would not include the upgrading of the Thames Haven branch line. This was because powers for those works were included also in the HEO for the purposes of providing rail access to the new port.

5. A copy of the Inspector's report of the inquiry is enclosed. The Inspector's conclusions on the Order, the OPA and the HEO are set out in Volume 1 of the report. His overall conclusions and recommendations on each of those applications are set out in Chapter 15 of Volume 1.

Inspector's recommendations on the Order and deemed planning permission

6. The Inspector recommended that the Order be made with the modifications set out in Appendix 3 to Volume 1 of his report, and that deemed planning permission be granted subject to the conditions set out in that Appendix. His recommended Order modifications include the removal of powers to construct the proposed western loop, as shown coloured red on the plan attached to this letter.

Summary of the Secretary of State's minded views

7. For the reasons given in this letter, the Secretary of State is minded to make the Order, subject to modifications, and to direct that planning permission be deemed to be granted, subject to conditions. The Order modifications which he is minded to make include, in addition to those recommended by the Inspector:-

i. the removal of powers to construct the railway within the Refinery Expansion Lands (along the line shown coloured blue on the attached plan), with associated modification to the limits of deviation in the Order; and

ii. the deletion of the powers to upgrade the branch line which are contained in the proposed HEO, again with associated modification to the limits of deviation. This is because, as explained in the separate letter referred to in paragraph 2 above, the Secretary of State is minded to make the HEO (paragraph 4 above refers).

The proposed Order modifications and the planning conditions are discussed later in this letter.

8. In the separate letter relating to the OPA referred to at paragraph 2 above, the First Secretary of State is minded to grant planning permission for the logistics and commercial centre, subject to the securing of an acceptable package of road improvements.

9. For the reasons explained more fully later in this letter, the Secretary of State considers that he is not yet in a position to determine your clients' applications for the Order and deemed planning permission. This is, in summary, because:

  • as the railway works proposed in the Order would only be required if the logistics and commercial centre were to proceed, it would be inappropriate to grant statutory powers for those works in advance of the OPA for the centre being determined;
  • the modifications to the Order which he is minded to make would, in his opinion, make a substantial change in the proposals. He is therefore obliged under section 13(4) of the TWA to give any person who is likely to affected by the modifications an opportunity to make representations which he must consider before deciding whether to make the Order; and
  • he requires further information on various matters described later in this letter before he can reach a properly informed decision. In particular, he considers it necessary to establish precisely what modifications would be required to the Order, the accompanying plans and the proposed planning conditions in consequence of the principal changes referred to at paragraph 7 above.

10. The arrangements for making representations on the matters discussed in this letter, and for providing the further information required by the Secretary of State, are described at the end of this letter. All responses to this letter should be made no later than 31 August 2005. The Secretary of State will consider any such responses before determining these applications.

Secretary of State's consideration

11. Careful consideration has been given to all the arguments put forward by or on behalf of the parties. The Secretary of State's consideration of the Inspector's report is set out in the following paragraphs. References to numbers in brackets are to paragraphs of Volume 1 of the report.

The objectives of, and need for, the proposals in the Order; and relevant policy considerations

12. In summary, the Inspector reported that:-

  • the railway works which were the subject of the Order, and the related request for deemed planning permission, had been presented as an integral part of the OPA proposals for a logistics and commercial centre (4.15). They would not proceed unless the OPA development likewise proceeded (15.2.32);
  • the objectives of the proposed railway network were to serve the logistics and commercial centre so that as many occupiers as may wish to could make access direct to the network via private sidings or by means of a common user siding (15.1.11);
  • there was little present evidence of demand for rail linked premises on the OPA development, nor did your clients propose to make rail connection available on a speculative basis. The need for the Order therefore arose from the infrastructure required to fulfil Government policy aspirations to increase the amount of freight carried by rail, rather than from any rigorous assessment of the likely demand for rail freight access to the centre. A significant degree of rail connectivity could be achieved by the existing Thames Haven branch line. The powers in the Order would allow penetration of rail sidings into the centre and maximum flexibility in the provision of rail connections (4.16, 15.1.12, 15.1.30);
  • whilst no projections had been made of the likely rail share for goods transport to and from the OPA development, for planning purposes a range of up to 10% had been assumed. At the higher level, there would be a need to run up to 4 trains a day to and from the site. There was no contention that it would not be possible to accommodate these on the national rail network (15.2.25).

13. The Inspector was satisfied that the Order proposals would accord with national, regional and local policies aimed at promoting the sustainable distribution of goods and the integration of distribution development and rail infrastructure. Government policy set out the benefits of moving freight by rail, in particular its contribution to congestion relief and environmental improvements, notably in the reduction of emissions (3.49-3.51;15.1.12).

14. The Inspector considered, however, that the proposed western loop, which would pass through the Green Belt, would constitute inappropriate development for the purposes of national Green Belt policy. There would therefore need to be very exceptional circumstances applying if the grant of planning permission were to be justified. But in view of the indeterminate need for the rail link, and because the OPA site could in any event be accessed in part by rail from the existing branch line, the Inspector did not consider that there were very special circumstances to justify making an exception to the normal presumption against inappropriate development in the Green Belt. He therefore concluded that this part of the Order scheme should not be permitted (3.52-3.56; 15.1.13).

15. The Secretary of State agrees with the Inspector that, for the most part, the proposals in the Order can be justified by the need to provide for sustainable transport choices for freight. Whilst he recognises that there is little present evidence of demand for rail linked premises on the OPA development, the Secretary of State acknowledges that your clients wish to achieve a significant use of rail transport to and from the site as an integral part of the OPA proposals. He is therefore satisfied in principle that, subject to consideration of responses to this letter, it would be appropriate to confer powers in the Order to enable the potential for rail access to the logistics and commercial centre to be realised.

16. With regard to the proposed western loop, which would pass through the Green Belt, the Secretary of State agrees with the Inspector that this would be inappropriate development which could only be justified by very special circumstances, in accordance with national policy as set out in Planning Policy Guidance Note No. 2. He agrees further that, for the reasons given by the Inspector in his conclusions, there is insufficient justification for making an exception to the normal presumption against inappropriate development in the Green Belt. The Secretary of State therefore intends to exclude that part of the proposed works from the scope of the Order and deemed planning permission. As a consequence, he will need to establish precisely what changes are required to the Order and related plans as a consequence of this exclusion, and in turn to review the recommended planning conditions. These matters are addressed further later in this letter.

17. The Secretary of State also considers that there are sound planning policy reasons for excluding from the Order and deemed planning permission that adjoining part of the railway which would pass through the Refinery Expansion Lands. This issue is dealt with further in paragraphs 23 and 24 below, relating to 'other environmental impacts'.

The likely effects of the proposals on the environment; and proposed mitigation measures

Air quality

18. The Inspector's conclusion in respect of all the London Gateway developments was that, on the evidence submitted, there were no grounds for rejecting any of them either singly or in combination on grounds of harm to air quality (7.10). He was, in particular, satisfied that increased numbers of trains would not affect the air quality for the dwellings adjacent to the Thames Haven branch line and that suitable control mechanisms were available in the event of there being a specific problem associated with diesel engine operations (7.8, 7.9). The Secretary of State agrees with the Inspector's assessment.

Noise and vibration

19. The Inspector accepted the conclusion of the Statement of Common Ground between Thurrock Council and your clients that the predicted impacts of noise from construction activity would be acceptable (7.11). With regard to operational railway noise, whilst the Inspector considered that it would be reasonable to provide for noise mitigation measures if the HEO were approved (7.26) he made no similar recommendation in the context of the TWA Order proposals. In respect of vibration, he was satisfied that the impact of future individual train movements would not increase markedly as a result of the Order proposals (7.27).

20. The Secretary of State is satisfied, having regard to the Inspector's conclusions, that there are unlikely to be unacceptable adverse noise or vibration impacts arising directly from the railway works provided for in the Order, as proposed to be modified (paragraph 7 above refers). In coming to this view, he has borne in mind that the number of trains serving the OPA site is likely to be relatively low, perhaps no more than 4 a day.

Landscape and visual effects

21. The Inspector accepted that the proposals in the Order would not present a major landscape problem and he did not consider that the visual amenities of the Green Belt would be injured by them (8.36, 8.37). The Secretary of State agrees with this assessment.

Nature conservation

22. The Inspector considered that the Order proposals would have no direct effects on sites protected under the Habitats and Birds Directives. Due to the relatively small amount of land affected by the proposals in the Order they would also, in his opinion, not be likely to have a significant effect on the nearby Special Protection Areas (SPAs). This view was supported by English Nature (11.20). He noted that, in any event, your clients had proposed a number of mitigation measures to offset the impacts which the proposed works could cause by disturbance and the loss of the marsh used by wintering water fowl from the SPAs (11.21). There would, furthermore, be no significant effect on any other designated sites (11.23). Taking into account your clients' Ecological and Mitigation Management Plan he concluded that there was no sound reason to reject the Order on nature conservation grounds alone (11.25, 11.88). The Secretary of State agrees with the Inspector's conclusions on these matters.

Other environmental impacts

23. The Inspector identified no other unacceptable adverse environmental impacts arising from the Order proposals, save that in his judgement development of the Refinery Expansion Lands ("REL") would be inconsistent with national policy set out in PPG 7 that the countryside should be protected for its own sake (3.32-3.42; 15.1.33 - 15.1.37).

24. The Secretary of State notes that the Inspector's proposal for removing the western loop from the scope of the Order would still leave powers to construct approximately 400 metres of railway within the REL as designated in the adopted Thurrock UDP 1996. Although the Inspector has not specifically recommended excluding this stretch of railway from the Order, it appears to the Secretary of State that to leave this part of the railway line within the Scheduled Works in the Order would be inconsistent with the Inspector's recommendation for an OPA condition to prevent construction of the logistics and commercial centre within the REL (13.1.48). Indeed, it appears to the Secretary of State that if development of the REL for the purposes of the centre is not to be permitted, as indicated in the letter issued today on behalf of the First Secretary of State, the powers for this part of the railway would be otiose. He is therefore minded to further modify the Order so as to exclude any rail development from the REL.

Environmental statement (ES)

25. In the Inspector's view, the ES submitted with the Order application, supplemented by the further information provided by your clients after the pre-inquiry meeting, formed the environmental information required by the TWA procedure Rules. He noted that the ES specified the measures proposed to mitigate the predicted adverse environmental impacts, to be implemented by way of planning conditions (1.15-1.16).

26. The Secretary of State is satisfied, subject to his consideration of any responses to this letter, that the updated ES provides sufficient information to enable the likely significant environmental impacts of the Order proposals to be assessed. He has taken the updated ES into account in coming to the views set out above. The proposed planning conditions are discussed below.

Proposed planning conditions

27. The Inspector reported that planning conditions for the proposals in the Order had been agreed between your clients and Thurrock Council during the inquiry. Subject to some drafting amendments he considered that the proposed conditions were necessary and met the tests in DOE Circular 11/95 (13.1.61). The conditions recommended by the Inspector are set out in Appendix 3 to Volume 1 of the report.

28. As regards the duration of the deemed planning permission applied for by your clients, the Inspector considered it improbable that the proposed rail scheme would be implemented within five years of permission being granted because significant works would be required to the OPA site before functional development could be brought into use. In the circumstances he was satisfied that it would be reasonable to grant permission having an extended time limit and not to require it to be reviewed after the normal five years (13.1.62, 15.1.27). The Inspector's recommended conditions 2 and 3 as set out in Appendix 3 would allow 15 years for your clients to apply for the approval of reserved matters and 25 years for commencement of the development. However, paragraph 15.1.28 of the Inspector's report contradicts this by saying that, in view of the reduction in the time limit for the compulsory acquisition powers required by your clients and the rate of development expected on the OPA site, his view was that those time limits should be 10 and 15 years respectively.

29. Subject to the proposed changes set out in the following paragraphs, the Secretary of State is minded to agree in principle that the proposed conditions in Appendix 3 to the report are reasonable and appropriate. He is minded to conclude also that, subject to the following qualifications, the proposed conditions would ensure that the likely adverse impacts of the Order proposals could be adequately mitigated.

30. With regard to the Inspector's proposed condition 1, which was previously part of the general introduction to the conditions agreed between your clients and the local planning authority, the Secretary of State considers that it is unnecessary to state that the conditions in Appendix 3 would not apply to retained oil refinery facilities. This must be the case anyway, as the deemed planning permission can only relate to development authorised by the Order and not to any established facilities and uses which are outside the powers of the Order.

31. The Secretary of State is not persuaded by the evidence before him that the proposed time limits in the Inspector's recommended conditions 2 and 3 would be either reasonable or appropriate. In his view, any time limits in excess of 5 years for submitting details and commencing development require very special justification if they are not to create unnecessary uncertainty and set an undesirable precedent. He accepts in this case that some variation of the normal time limits can be justified, since the provision of rail facilities at the logistics and commercial centre is unlikely to be required until much of the centre has been brought into use. He considers, however, that he would not be justified in allowing more than 10 years either for your clients to seek approval to reserved matters or to commence development as that would unacceptably prolong the uncertainty over implementation of the rail scheme and would suggest that the granting of statutory powers for the railway scheme is premature at this stage. He therefore considers that if the rail scheme has not been commenced within 10 years of the Order being made, the proposals should be the subject of a fresh planning application so that they can be properly re-assessed in the light of the circumstances then prevailing.

32. The Secretary of State is also minded to impose an additional condition (not included in Appendix 3 to the report) which would require that no new railway works shall take place until details of the siting of such works have been submitted to and approved by the local planning authority. Bearing in mind the very wide limits of deviation provided for in the Order, he considers it appropriate that this matter should be reserved for consideration by the local planning authority as and when specific proposals for constructing new track in the logistics and commercial centre are prepared.

33. It appears further to the Secretary of State that some of the conditions in Appendix 3 may need to be amended as a consequence of the proposed removal of powers from the Order referred to in paragraph 7 above. In particular, any of the proposed conditions which would be relevant only to the western loop or to the upgrading of the Thames Haven branch line would be unnecessary if the Order were made with the modifications proposed. For example, conditions 19a and 20 in Appendix 3 seem to fall into this category. Therefore, before determining the application for deemed planning permission, the Secretary of State invites your clients and the local planning authority to consider and make representations to him on this matter.

Case for compulsory acquisition powers

34. The Inspector reported that, as far as the necessity for compulsory acquisition was concerned, there were no outstanding objections apart from the issue of consent raised by Network Rail. He said that no party had questioned the necessity for acquisition (15.1.19). In relation to Network Rail's objection, he recommended that the Order should be modified as requested by them (14.2.26).

35. The Inspector considered that the duration of the compulsory acquisition powers in the Order should relate to the timescale of implementation of the logistics and commercial centre, which was envisaged to take over a decade. He considered that it would be inappropriate for land to be compulsorily acquired before it was needed (15.1.20). Although the filled up Order which the Inspector recommended be made (15.3.3) provided a 15 year time limit for the compulsory acquisition powers in the Order, he noted elsewhere (at 15.1.27) that your clients now only required those powers to exist for 10 years.

36. The Secretary of State notes that although the Inspector says at 15.1.19 of his report that no party questioned the necessity for acquisition, at 14.2.5 he reports that Network Rail considered that your clients had no need to acquire their property; and at 14.5.1 he reports that Cory Environmental Ltd had objected to the compulsory purchase provisions of the Order in regard to their property at Mucking. The Secretary of State notes further that Network Rail suggested a number of amendments to the Order to safeguard their interests. However, in view of his proposal to remove from the Order any powers to upgrade the Thames Haven Branch line, it appears to the Secretary of State that neither the modifications proposed by Network Rail nor the objection by Cory Environmental would any longer be relevant to his consideration of the Order if the upgrade of the branch line were excluded from it and the limits of deviation were modified accordingly. These matters would, however, be relevant to his consideration of the HEO.

37. Furthermore, the Secretary of State is unclear as to the justification for any remaining compulsory acquisition powers. Having regard to the plots of land deleted from the Order by your clients (as set out at 14.2.2) and to the powers which he is minded to remove from the Order, as referred to earlier in this letter, the only plots of land which would appear to remain subject to compulsory acquisition under the Order, if made, are plots 29, 30 and 31. He notes that your clients explained in inquiry document APP/0/67 that these plots were needed for the railway works and to divert or protect plant and equipment owned by three undertakers (BPA pipelines, Calor Gas Ltd and BT). However, on the basis of the evidence before the Secretary of State, it has not been established to his satisfaction that the acquisition of those plots is required specifically for the proposed railway works, as opposed to being required more generally for the purposes of the logistics and commercial centre. Furthermore, he also requires information from your clients on the justification for the size of those plots, two of which (29 and 31) extend for some distance beyond the limits of deviation for the proposed railway works. He wishes to be informed further on these matters to enable him to consider fully both whether the compulsory acquisition powers would be ancillary to the construction or operation of a railway for the purposes of section 1 of the TWA and whether there is a compelling case in the public interest for granting those powers. He needs to satisfy himself on both these points even if no outstanding objections remain to the compulsory acquisition of any of those plots.

38. Subject to his consideration of representations on these matters, the Secretary of State is minded to agree with the Inspector that the duration of any compulsory acquisition powers conferred by the Order should reflect the timescale for implementing development of the OPA. He accepts that in the exceptional circumstances of the Order proposals a time limit of 10 years would be appropriate.

Order modifications

39. The Inspector concluded that the Order should be made in the form of the draft filled up Order (inquiry document CD/657), but subject to the modifications set out in Part B of Appendix 3 to Volume 1 of the report (15.3.3). The proposed modifications were those referred to at paragraphs 34 and 36 above for safeguarding the interests of Network Rail; the deletion of article 43 which would make the Secretary of State, rather than magistrates courts, responsible for determining appeals under the Control of Pollution Act 1974 relating to construction sites; and the removal of powers for the western loop.

40. As explained in paragraph 36 above, the Secretary of State considers that the modifications for the protection of Network Rail are not relevant to his consideration of the Order as a consequence of his proposal to exclude from the Order powers to upgrade the branch line. He agrees with the Inspector that article 43 should be deleted because, in the circumstances of the Order proposals, he is not satisfied that there are compelling reasons for altering the normal arrangements for consideration of appeals under the 1974 Act by magistrates courts. For the reasons set out in paragraph 16 he agrees also with the Inspector that powers for the western loop should be deleted. In addition to the foregoing modifications, for the reasons given in paragraphs 17 and 24 he is minded to exclude powers for railway works within the Refinery Expansion Lands.

41. The Secretary of State considers that in order to give effect to these modifications a number of further amendments to the draft filled up Order are likely to be needed, in addition to providing revised descriptions in Schedule 1 of the works to be authorised and deleting article 43. For example, it appears to him that the provisions relating to the construction of bridges over highways (article 15) and the temporary use of land for construction or maintenance of works (articles 24 and 25) may not be relevant if the railway works are confined to the site of the logistics and commercial centre. He is, therefore, inviting your clients to submit details of any further changes to the Order which would be required as a consequence of reducing the extent of the works proposed to be authorised. This should include consideration of the changes which would be required if the Secretary of State were to conclude that the Order should not confer any compulsory acquisition powers.

42. As indicated earlier in this letter, as a consequence of the proposed removal of some works powers from the Order your clients are asked to prepare new plans to show the location of the works remaining to be authorised and the limits of deviation for those works. They should also prepare new plans showing any land over which they continue to seek powers of compulsory acquisition or use under the Order, supported by a book of reference. Any such plans and book of reference should conform with the requirements of the Transport and Works (Applications and Objections Procedure) (England and Wales) Rules 2000 which applied to those documents at the time of the Order application.

43. Having regard to section 13(4) of the TWA, the Secretary of State considers that the changes which he is minded to make to the Order would, taken together, amount to a substantial change in the proposals submitted by your clients and considered at the inquiry. He is therefore obliged under section 13(4) of the TWA to give any person who is likely to affected by the modifications an opportunity to make representations which he must consider before deciding whether to make the Order.

44. In addition to the above issues relating to the Order, there are a number of [minor] drafting points which the Secretary of State is taking up separately with you, without prejudice to his eventual decision.

Next Steps

45. In accordance with section 13(4)(b) of the TWA, the Secretary of State invites your clients and those to whom a copy of this letter is being sent to make representations to him about the Order modifications which he is minded to make and about the other matters referred to in this letter on which he requires more information before he determines the application. He also invites your clients to submit with their representations and to make available for public inspection the draft Order revised in the light of this letter, accompanied by the relevant plans, book of reference and proposed planning conditions.

46. Any representations made in response to this letter should be sent to:

Peter Savage
TWA Orders Unit
Zone 9/02
Southside
105 Victoria Street
London
SW1E 6DT

to arrive no later than 31 August 2005.

47. The Secretary of State will give an opportunity for the recipients of this letter to consider and comment on any representations which he receives in response to it. He will consider all representations made in response to this letter and subsequently before he decides your clients' applications for the Order and deemed planning permission.

Costs

48. The Inspector reported (at 14.2.27, 28) that an application for costs had been made by Network Rail in respect of their objection to the proposed compulsory acquisition powers in the Order. For the reasons explained in paragraph 36 above the Secretary of State intends to consider this costs application in the context of his decision on the HEO.

Distribution

49. Copies of this letter are being sent to all those who appeared at the inquiry and to English, Welsh & Scottish Railway Limited. Copies of the Inspector's Report are being provided with copies of the letter issued today on behalf of the First Secretary of State.

Yours faithfully,

Ellis Harvey