Merseytram (Liverpool City Centre to Kirkby) Order

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Messrs Bircham Dyson Bell
Solicitors and Parliamentary Agents
50 Broadway
Westminster
London SW1H OBL

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

Direct line: 020 7944 3293
Fax: 020 7944 2479
E-mail: transportandworksact@dft.gsi.gov.uk
Web site: www.dft.gov.uk/

Our Ref: TWA/03/APP/9

Your Ref: RJO/B024910

21 December 2004

Dear Sirs,

Transport and Works Act 1992

Town and Country Planning Act 1990

Applications for the proposed Merseytram (Liverpool city centre to  Kirkby 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 C J Tipping MA(Cantab), concerning the applications made by your clients, the Merseyside Passenger Transport Executive ("Merseytravel"), for:

the Merseytram (Liverpool City Centre to Kirkby) Order ("the Order") to be made under sections 1 and 3 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 20 April and 10 June 2004. Concurrently with that inquiry he held a public local inquiry into your clients' related applications for listed building and conservation area consents under the Planning (Listed Buildings and Conservation Areas) Act 1990. A separate decision letter on those applications is today being issued on behalf of the First Secretary of State.

3. The Order, if made, would authorise the construction and operation of a tramway from Liverpool City Centre to Kirkby, including a 750 vehicle Park and Ride facility and an Operations and Control Centre to the north of the A580 East Lancashire Road at Gillmoss in Croxteth. The tramway (referred to as "Line 1") would run from a terminus at the King's Waterfront via Liverpool city centre and Croxteth to a terminus adjacent to the bus station in the town centre of Kirkby. It would be a dual track system 18.2 kilometres in length, over 97% of which would be segregated from other traffic and would include 30 tram stops each of which would be 60 metres in length. The proposed Order would also, among other things, confer on Merseytravel powers to acquire compulsorily land and rights required for the scheme, to alter and stop up streets, to place tramway equipment in streets and to regulate traffic.

4. A copy of the Inspector's report of the inquiry is enclosed. His conclusions are set out in section 8 of his report.

Summary of the Inspector's recommendations

5. The Inspector recommended in section 9 of his report that the Order be made with the modifications proposed by your clients during the inquiry, and that deemed planning permission be granted subject to conditions.

Summary of the Secretary of State's decisions

6. For the reasons given in this letter, the Secretary of State has decided to make the Order, subject to modifications, and to direct that planning permission be deemed to be granted, subject to the conditions set out in the attached Annex. The proposed Order modifications and planning conditions are discussed later in this letter.

7. In the separate decision letter referred to at paragraph 2 above, the First Secretary of State has decided to grant the related listed building consents and conservation area consents subject to conditions.

Secretary of State's consideration

8. 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. The relevant paragraph numbers of the report are enclosed in brackets.

9. The issues dealt with in the following paragraphs generally follow the order in which the Inspector has dealt with them in his conclusions, save that matters relating to the economic appraisal and funding prospects are dealt with together at paragraphs 51 to 56 below.

Consistency with national, regional and local planning and transport policies (8.12 - 8.17)

10. The Inspector considered that not only was the proposed scheme consistent with transport and planning policy at all levels, but it was an express instrument of implementation of policy at least up to regional level. He noted that Line 1 was included in the Regional Planning Guidance for the North West (RPG 13) as a committed scheme of regional significance. Furthermore, the scheme was consistent with adopted and emerging local planning policies both in Liverpool and Knowsley and it was a key component in the Local Transport Plan for Merseyside. The Inspector concluded that the proposals were consistent with national, regional and local planning and transport policies.

11. The Secretary of State agrees with the Inspector that the scheme is supported by transport and planning policies at the national, regional and local levels.

Anticipated transportation, regeneration and socio-economic benefits of the scheme (8.18 - 8.41)

12. The Inspector considered that Line 1 represented a significant step towards achieving a central aim of the Local Transport Plan, that is, the "Single Integrated Public Transport Network". He was satisfied that it would serve a different catchment area and transport corridor to the existing rail link between Kirkby and central Liverpool. It would integrate with buses at Kirkby, Liverpool City Centre and intermediate points, with trains at Lime Street and Moorfields Stations, and with riverside connections such as the Mersey Ferry. It would give residents of Kirkby an extended range of travel options by public transport and, in Liverpool, it would greatly enhance the integration of the waterfront with the cultural and commercial centre. The Inspector attached considerable weight to the improvement which the tram would provide in terms of accessibility for the disabled and elderly and he was satisfied that the tram would be likely to provide a more reliable service than the bus. He accepted also that car users would be more likely to transfer to the tram than to a bus, especially as congestion increased.

13. The Inspector noted that Line 1 would run through some of the most deprived areas of the United Kingdom and would serve a significant number of important development sites. He considered that the scheme was likely to raise and improve the profile of Merseyside, encouraging inward investment and making a significant contribution to maintaining the momentum of regeneration. He did not accept that the likely level of job losses at the Gilmoss Bus Depot would be significant or that it would place in jeopardy the regeneration or socio-economic benefits that would flow from the construction of Line 1.

14. The Secretary of State agrees with the Inspector that, for the reasons given in the report, this scheme would be likely to bring important transportation, regeneration and socio-economic benefits. He accepts that it would integrate well with other modes of transport and would do much to encourage car users to switch to public transport. He agrees also that it would provide important support to the regeneration process in Merseyside, and he notes in this regard the strong support of local commerce and industry.

Main alternatives considered (8.42 - 8.56)

15. As regards the proposed mode of transport for serving the Line 1 corridor, the Inspector considered that the tram scored markedly better than the alternatives. Although the bus priority option promoted by some objectors would be cheaper to provide, he concluded that this would cause unacceptable levels of congestion because of the conflict between the number of buses to which priority would need to be given and other traffic. With regard to the alternative routes put forward by objectors, the Inspector was satisfied that Merseytravel had undertaken a full investigation of the alternatives. He accepted that the chosen route and stops, and the sites proposed for the Operations and Control Centre and Park and Ride facility, were likely to represent the best available. In his opinion, none of the alternatives warranted further investigation.

16. The Secretary of State agrees with the Inspector that no better alternative to Merseytravel's proposals for Line 1 has been advanced.

Case for compulsory acquisition powers for the scheme (8.57 - 8.61)

17. The Inspector considered that all the compulsory purchase powers sought by Merseytravel were necessary for implementation of the scheme and that there was a compelling case in the public interest for giving Merseytravel those powers, which would be lawful and proportionate. He was satisfied that the proposed compulsory acquisitions would not be premature.

18. The Secretary of State agrees with the Inspector that there is a compelling case in the public interest for giving the proposed compulsory acquisition powers, which would outweigh the private loss to those whose property would be acquired.

Likely impact of the scheme on traffic (8.62 - 8.89)

19. The Inspector accepted Merseytravel's case that the allocation of road space to the tram could be achieved without significant adverse impact on other road users. He noted that the amount of road space to be allocated to the tram was small and that implementing the scheme would provide an opportunity for improving provision for other road users, including pedestrians and cyclists. Taking into account the likely benefits for bus operators resulting from the City Centre Movement Strategy and from construction of the new bus facility in the Paradise Street Development Area, he concluded that there would be no significant adverse impact on buses from tram operations. Whilst there would be some inevitable disruption to traffic, including buses, during construction of the scheme, the Inspector considered that the Code of Construction Practice ("CoCP") and the proposed Highways Agreement would ensure that disruption was kept to a minimum.

20. The Inspector recognised that Merseytravel's proposals for closing and diverting streets and regulating traffic would be bound to have some adverse impact upon access to and servicing of premises. Nevertheless, he agreed with Merseytravel that segregation of the tram from other traffic must be maximised to ensure a reliable service, and that any reduction in the high degree of segregation proposed would be undesirable. He was satisfied that the impacts of street closure and diversion had been fully investigated, that the best possible access and servicing to properties had been provided, that few persons would be disadvantaged, and in no case would the impact be unacceptable. More specifically, he concluded that the proposed traffic regulation measures for St John's Lane, as modified at the inquiry, should be accepted.

21. The Inspector was also persuaded that the power in article 46(2) of the draft Order to enable Merseytravel to introduce traffic regulation measures additional to those specified in Schedule 9 was justified, given the likelihood that some modification to traffic arrangements would be necessary during detailed design and implementation of the project. He noted that Merseytravel's proposed modifications to article 26, designed to ensure the tramway was constructed and maintained to a safe standard, were awaiting resolution in the context of other TWA applications.

22. The Secretary of State agrees with the Inspector's conclusions on the likely impacts of the scheme on traffic. He is satisfied that, whilst some disruption to traffic is inevitable from a scheme of this size and nature, Merseytravel have taken great care to ensure that any such disruption is minimised and that none of the impacts will be unacceptable. He accepts also that the traffic regulation measures specified in Schedule 9 are likely to need some later adjustment as a consequence of the major developments in the city centre and elsewhere which are currently being planned. He has accordingly concluded that the flexibility afforded by article 46(2) is justified in the circumstances of this particular case.

23. The Secretary of State has considered Merseytravel's proposed additions to article 26 which would, among other things, impose on them a duty in constructing and operating Line 1 to keep the street safe for other users. While he is satisfied with the general approach of these provisions, he considers that they are not wholly consistent with the judgment in the litigation referred to in Merseytravel's evidence (Roe-v-Sheffield City Council and others Court of Appeal 2002/0098 ). In his opinion, the effect of that judgment is that tramway undertakers and street authorities are jointly liable for maintaining safety in the circumstances where a tramway is laid in a street. It appears to him, however, that the proposed article 26(4)(b) is designed to limit the extent of Merseytravel's liability in a way which would be inconsistent with the concept of shared liability adopted by the court. The Secretary of State has, therefore, decided to delete the proposed article 26(4)(b) from the Order.

24. The Secretary of State considers further that Merseytravel's obligations under article 26 should not be limited to the taking of physical measures. For the purposes of fulfilling these obligations Merseytravel could, for example, use powers in the Order to regulate traffic movements in the vicinity of the tramway. He will, accordingly, delete the word "physical" from the draft article 26(4). The Secretary of State also regards the proposed article 26(5) as unnecessary and intends to delete it. This provision would expressly require courts to have regard to the defences set out in article 14(4) and (5) in any action relating to Merseytravel's obligations under article 26. He considers that the principle of those defences is implicit in the way the duty of care prescribed by article 26 is defined.

Likely impact on local residents, businesses and the environment of constructing and operating the scheme (8.90 - 8.132)

Noise, vibration and dust (8.90-8.96)

25. The Inspector accepted that, during construction, the works were likely to give rise to some adverse impacts by reason of dust, noise and vibration. However, having regard to the CoCP and proposed planning conditions, which contained measures to mitigate these impacts, he concluded that there would be no unacceptably adverse impacts arising during the construction period. In regard to impacts during operation of the tram, the Inspector saw no argued challenge to Merseytravel's evidence that noise levels from tram operations would generally be below existing levels of noise generated by traffic, and that no adverse impact from vibration was predicted as a result of tram operations. He was satisfied that there would be no unacceptable adverse impacts from operational noise or vibration, such as would lead him to conclude that the scheme should not proceed.

26. The Secretary of State agrees with the Inspector, for the reasons given in the report, that there would be no unacceptable impacts from noise, vibration or dust, either during construction or operation of the scheme.

Effects on built environment, including use of buildings for attachment of equipment and proposed demolition of property (8.97-8.104)

27. The Inspector noted that, given the scale of Line 1, it would result in the demolition of relatively few buildings, none of which he considered was of townscape significance. With regard to the fixing of overhead line equipment, he was satisfied that all reasonable steps would be taken to minimise the impact. Overall, he concluded that the impact of the scheme on the built environment would be small and that in some locations it would provide opportunities for townscape improvement. The Secretary of State agrees with this conclusion.

Effect on access to property (8.105-8.112)

28. The Inspector considered the effects of the scheme on access to a number of properties where individual concerns had been raised. However, in each case he concluded that there would be no unacceptable impact on access to property. The Secretary of State agrees with the Inspector's conclusions on this matter.

Visual impact of scheme on landscape and townscape, having regard to effects on setting of listed buildings, on conservation areas and to nomination of City Centre as a World Heritage Site (8.113-8.115)

29. The Inspector noted that Liverpool's bid for World Heritage Site ("WHS") status was announced in the course of writing his report. Having considered the Assistant Inspector's report on the impact of the scheme on listed buildings and conservation areas in Liverpool city centre, the Inspector concluded that, subject to continuing careful assessment of design detail, the scheme would preserve and perhaps enhance the character and appearance of the WHS and the conservation areas.

30. He noted that, elsewhere, the main impact upon landscape would be the loss of up to 800 trees. However, he concluded that Merseytravel's two-for-one replacement policy using semi-mature trees would ensure that any adverse impact would be short-term, and that the long-term effect of the re-planting policy was likely to be neutral.

31. The Secretary of State agrees with the Inspector, for the reasons given, that the scheme would not have any unacceptable visual impacts on the landscape and townscape.

Effects on flora and fauna (8.116-8.119) and loss of open space (8.126-8.128; 8.139)

32. The Inspector noted that the scheme would not affect any sites of ecological value and that no impacts on protected species had been identified. However, he noted that further surveys would be conducted before works began and that if any protected species were identified any necessary guidance and/or licence would be sought. With regard to the loss of green or open space, he noted that no land was to be provided in exchange for the areas lost, but he concluded that, overall, the loss was insignificant. The largest open space affected was the central reservation in Muirhead Avenue, but he considered that its visual amenity would largely be maintained by the planting of replacement trees.

33. The Secretary of State agrees with the Inspector that the scheme should give rise to no significant impacts upon flora and fauna or upon the provision of open space. He notes that no impacts upon protected species have been identified but that further surveys will be undertaken before works commence. In addition, he understands that since the inquiry closed Liverpool City Council and Knowsley Metropolitan Borough Council have approved for appropriation the open space in their possession needed for Line 1. Merseytravel subsequently requested the removal of all open space from the scope of the compulsory acquisition powers in the Order. With this modification, the Order, once made, will not need to be subject to Special Parliamentary Procedure.

Effects on water resources, contaminated land and air quality (8.120-8.122)

34. The Inspector noted that protection of the water environment would be regulated under the CoCP and he concluded that there would be no significant adverse impact upon water resources. With regard to contaminated land and its treatment, he considered that the CoCP and the planning conditions would give appropriate and adequate control. As to air quality, the Inspector considered that reduction in traffic on some sections of the tram route would reduce exhaust emissions, though in some cases at the cost of transferring it elsewhere. Overall, some improvement in air quality could be expected, but not to any major extent.

35. The Secretary of State agrees with the Inspector that the CoCP and planning conditions will give appropriate protection to the water environment and contaminated land, and that the scheme should lead to some improvement in air quality.

Impact on public health and security (8.123-8.125)

36. The Inspector noted Merseytravel's unchallenged evidence that there would be slight negative impacts on public health during construction but overall benefits thereafter. Whilst there were public concerns about security on public transport in Merseyside, he concluded that the proposed security arrangements for the Park and Ride facility and the tram were likely to contribute significantly to improved public safety. The Secretary of State agrees with the Inspector's conclusions on both these matters.

Whether proposed works in the Green Belt in the vicinity of Croxteth Brook would be inappropriate development within the terms of PPG2 on Green Belts (8.129-8.132)

37. The Inspector considered that the scheme was unlikely to have a significant impact on the openness of the Green Belt or to conflict with its purposes, and he therefore concluded that it would not be inappropriate development in the Green Belt. He further considered that, if he were wrong in this conclusion, there were sufficient special circumstances to outweigh any harm to the Green Belt. The scheme would bring clear public benefits, it was supported by local policies and, if Kirkby was to be linked to Liverpool by a tram, the route would have to cross two short sections of Green Belt.

38. The Secretary of State agrees with the Inspector that there is good reason for concluding that the scheme does not constitute inappropriate development within the Green Belt; and that, even if that were not the case, there are very special circumstances that would justify making an exception to normal Green Belt policy. He therefore sees no reason on Green Belt policy grounds for disallowing the scheme.

Measures proposed for mitigating the adverse impacts of the scheme (8.133 - 8.146)

Code of Construction Practice and Design Guide (8.133-8.137)

39. The Inspector considered that the CoCP and the Design Guide and specification provided an appropriate framework within which the detailed design of the scheme could be worked up and its implementation achieved. The Secretary of State agrees.

Compensatory measures for affected residents and businesses (8.138)

40. The Inspector noted that, apart from discretionary hardship payments for displaced street traders, no special compensatory measures were planned, but he accepted that no further such measures were required. The Secretary of State agrees with the Inspector and is satisfied that the Order makes adequate provision for compensation of those affected by the scheme.

Measures to avoid, reduce or remedy any major adverse effects of scheme (8.140-8.144) or any other adverse environmental impacts (8.145) and what residual impacts would remain (8.146)

41. The Inspector identified the adverse impacts that he thought might be considered major. These were tree loss, impact upon townscape and noise and vibration. In each case, for reasons previously given, he considered that the proposed mitigation measures were appropriate and adequate. He was also satisfied that the comprehensive range of mitigation measures proposed would adequately address all other significant adverse environmental effects of the scheme. Whilst it was not possible to prevent some adverse effects remaining - such as from noise and diverted traffic and from the effects on the landscape and townscape from felling trees and installing overhead line equipment - he considered that these impacts would be no worse than moderate.

42. The Secretary of State is satisfied, for the reasons given earlier, that none of the above matters would give rise to major adverse effects once the proposed mitigation measures are in place. For the purposes of section 14(3AA) of the TWA, the Secretary of State considers that the main measures to avoid, reduce and, if possible, remedy any major adverse environmental effects are those set out in the Implementation Agreement, the CoCP, the Schedule of Environmental Mitigation Measures and the planning conditions. The Secretary of State agrees with the Inspector that any residual adverse effects that would remain after mitigation would be within acceptable levels.

The conditions proposed to be applied to deemed planning permission for the scheme (8.147-8.148; 8.190)

43. The Inspector considered that all the conditions proposed by Merseytravel and agreed by the local planning authorities were necessary, relevant, enforceable and reasonable. He considered, however, that some were unnecessarily complex and might be confusing. He therefore proposed some drafting changes in the interests of simplicity and precision. Subject to these modifications, he was satisfied that all the conditions should be imposed.

44. The Secretary of State agrees that planning conditions along the lines of those submitted by Merseytravel to the inquiry are necessary and justified for the purposes of this scheme and that they meet the tests set out in DOE Circular 11/95. He also agrees with the Inspector that some of the wording of the proposed conditions needs refining, although not necessarily in exactly the form recommended by the Inspector at paragraph 8.190 of his report. This is dealt with further at paragraph 69 below.

Adequacy of the Environmental Statement and whether the statutory requirements have been complied with (8.149 - 8.150)

45. The Inspector found no fault with the multi-volume Environmental Statement ("ES") submitted by Merseytravel. He concluded that they had complied with the Transport and Works (Applications and Objections Procedure) (England and Wales) Rules 2000, together with Directives 85/337/EEC and 97/11/EC.

46. The Secretary of State agrees with the Inspector on the adequacy of the ES. He is satisfied that the ES, together with the evidence adduced at the inquiry, provides him with sufficient information to assess the likely environmental impacts of the Order proposals; and he confirms that, in coming to his decisions, he has complied with the requirements of paragraphs (a) to (c) of section 14(3A) of the TWA.

Proposed arrangements for protecting the interests of statutory undertakers (8.151 - 8.158)

47. The Inspector considered that the Order provided extensive protection for statutory undertakers and he noted that there was no objection in principle to these provisions. As a result of close co-operation between Merseytravel and the statutory undertakers, agreement had been reached with most of them. In respect of the objections of Manweb, United Utilities Water and National Grid Transco which had not been settled by the close of the inquiry, he did not regard the remaining issues as being of great significance, such as would warrant recommending material changes to the Order, or that it should not be made at all.

48. The Secretary of State agrees with the Inspector's conclusions on this matter. Since the close of the inquiry, Merseytravel have completed an agreement with the National Grid Company and have requested the inclusion of this undertaker within the scope of the protective provisions contained in Schedule 11 to the Order. Although agreements with Manweb and United Utilities Water have yet to be completed, both undertakers have agreed to be included within the scope of Schedule 11. The Secretary of State will modify the Order accordingly.

The timescale for implementing the scheme (8.159 - 8.166)

49. The Inspector noted the concerns expressed by objectors about the feasibility of completing construction of Line 1 by September 2007 - after which date the rectification agreement between Merseytravel and Liverpool City Council would require suspension of work in the city centre. In his view, having regard to the advanced state of contract negotiation and the care taken to exclude construction problems, there were good prospects of Line 1 being built according to Merseytravel's schedule. He was satisfied also that the Line 1 scheme and the timescale for implementing it were compatible with the urban regeneration proposals along the route, both topographically and chronologically.

50. The Secretary of State agrees with the Inspector, for the reasons given, that Merseytravel's timescale for implementing Line 1 is feasible and that its implementation would be compatible with regeneration projects along the route.

Merseytravel's funding proposals, including the economic appraisal of the scheme and whether the provision of public funding would contravene EU legislation (8.4 - 8.9; 8.167 - 8.176)

51. The Inspector noted that there was little or no reasoned challenge to the data used by Merseytravel to create the economic model from which their financial predictions were drawn. He considered that their economic appraisal, which had been subjected to sensitivity tests, risk assessment and anti-optimism bias, was thorough and conducted fully in accordance with Government guidance. On balance, he concluded that the economic case for Line 1 was positive and robust.

52. In assessing the funding prospects for Line 1, the Inspector had regard to the provisional approval of the scheme for Government funding of up to £170 million, given on 10 December 2002 and re-affirmed in the settlement letter of 18 December 2003; the provisional grant of £15 million for the scheme by the North West Development Agency; the £25 million contribution earmarked by the European Regional Development Fund; and the likely availability of funds from other local development agencies and developers to meet the remaining construction costs. On this basis he concluded that the scheme was reasonably capable of attracting the necessary funds.

53. Although recognising that legal issues were not for him to determine, the Inspector considered the legal submissions from objectors and Merseytravel respectively on whether public funding of the scheme would contravene EU or domestic law. In the absence of any cogent argument to the contrary, he agreed with the conclusion of Merseytravel's submissions that the provision of public funding for Line 1 did not constitute state aid and would not be in breach of domestic or EU legislation.

54. The Secretary of State wishes to make clear that his consideration of a TWA Order application on the one hand and a request for funds on the other are subject to separate approval processes. A decision to grant statutory powers for a scheme by way of a TWA Order does not, therefore, confer any funding approval nor does it imply that public funding will necessarily be forthcoming. It is given without prejudice to any subsequent funding decision, which would require a detailed appraisal of whether a scheme represents good value for money having regard to available resources and relative spending priorities at the time.

55. The Secretary of State would, nevertheless, wish to be assured before making a TWA Order that a scheme is capable of attracting sufficient funding, so as to satisfy himself that there is a reasonable prospect of the powers in the Order being implemented. In regard to Line 1, he has noted the sources of funding from which Merseytravel expect to secure funding for the scheme and the Inspector's assessment. In all the circumstances, and without prejudice to his subsequent consideration of a fully detailed case for funding approval, the Secretary of State is satisfied that the proposals are reasonably capable of attracting the necessary funding.

56. The Secretary of State has noted the claim made by some objectors that giving public funds for this scheme would contravene domestic or EU law. Since he is not presently making a funding decision, he does not regard this point of law as being one that he is required to come to a view on for the purposes of deciding the present applications. To the extent that he should be satisfied that there is a reasonable prospect of the scheme being funded, he is satisfied from the evidence submitted to the inquiry and from the absence of any court judgment supporting the objectors' case that there is unlikely to be any impediment on these grounds to implementation of Line 1.

Issues relating to the Order (8.177 - 8.184)

Provisions relating to attachment of overhead line and other equipment to buildings (8.177 - 8.179)

57. The Inspector was satisfied that the arrangements under article 19 of the Order relating to the attachment of equipment to buildings provided sufficient protection for the owners of buildings affected. He considered that the requirement for an owner to give a minimum of 56 days' notice for the temporary removal of such equipment for the purposes of reconstructing or repairing a building struck a reasonable balance between the owner's interests and Merseytravel's need to ensure that the operation of Line 1 would not be disrupted. He considered also that the power sought by Merseytravel in article 49 of the Order to make byelaws regulating the maintenance of buildings to which equipment had been attached was an appropriate way to ensure the safe maintenance of buildings fronting on Line 1. Since any byelaws would require confirmation by the Secretary of State, he saw no real risk that the owners affected would be subjected to unreasonable or oppressive requirements.

58. The Secretary of State agrees with the Inspector that these powers are appropriate and reasonable in this particular case. With regard to the proposal to control through byelaws the way buildings along the route are maintained, he is satisfied that, in the particular circumstances arising, these powers are justified in the public interest to ensure the safe operation of the tram system. He wishes to make clear, however, that this does not mean that he is at the same time endorsing the draft code of maintenance practice submitted by Merseytravel to the inquiry. Should Merseytravel in due course make byelaws on this subject, the Secretary of State will want to consider carefully the acceptability of any obligations imposed by the byelaws on owners and occupiers of buildings affected when deciding whether to confirm them.

Proposed penalty fares scheme (8.180 - 8.181)

59. The Inspector noted that the proposed Order provisions had been modified to provide for an initial penalty fare of £10 and for any variation to be subject to approval by the Secretary of State. He noted that the Order would also give the Secretary of State the power to suspend the operation of the scheme. He considered that the penalty fares provisions as modified were appropriate. The Secretary of State agrees with this view.

Modifications to the Order (8.182 - 8.184)

60. The Inspector noted that, with one exception, there were no express objections to the Order modifications submitted to the inquiry, and that none of the modifications would increase the extent of the land proposed to be compulsorily acquired. The exception was the proposed modification in respect of the closure of St John's Lane, which had raised three objections. However, he considered that this modification was acceptable and was not a substantial change. Furthermore, he was satisfied that, since it had been advertised during the inquiry, there was no need to invite further representations. The Secretary of State agrees that the modifications to the Order proposed by Merseytravel before and during the inquiry are not such as to warrant giving a further opportunity for representations to be made, and he is satisfied that they do not amount to a substantial change in the proposals for the purposes of section 13(4) of the TWA.

Railway Paths Limited (8.186)

61. The Inspector considered that Merseytravel's unilateral deed of undertaking provided Railways Paths Limited with sufficient protection against any liability arising from its responsibilities for the Broadway overbridge and its contractual obligations to the Secretary of State and to BRB (Residuary) Limited. The Secretary of State agrees.

Inspector's overall conclusions and recommendations (8.191 - 9.3)

62. The Inspector concluded, overall, that Line 1 would generally meet the objectives identified by Merseytravel and would bring clear transportation, regenerative and socio-economic benefits. The scheme would, in his view, provide a high-quality and reliable public transport service which would integrate well with the existing transport network, improve the accessibility of deprived areas and important health, retail and cultural facilities, and raise the profile and image of Merseyside. He considered that the adverse impacts of the scheme on residents, businesses and the environment would be limited and would be largely offset by the environmental mitigation measures which had been agreed with the local authorities. The scheme had also attracted a significant volume of support, including from the relevant local authorities. The Inspector concluded that, overall, the benefits which Line 1 would bring to the citizens of Merseyside would substantially outweigh the disbenefits.

63. The Inspector accordingly recommended that the Order be made, as modified in the draft dated 9 June 2004, and that planning permission be granted for development within the limits provided for in the Order, subject to the conditions set out in paragraph 8.190 of his report.

The Secretary of State's overall conclusions on the Order

64. Having considered the Inspector's report, the Secretary of State agrees with the Inspector that this scheme would bring transportation, regeneration and socio-economic benefits for the area. He agrees that the scheme is capable of providing a high quality, reliable and well-integrated public transport service which would considerably improve the accessibility of the areas it is designed to serve and help to alleviate the effects of traffic growth as economic regeneration proceeds. He further accepts that the scheme would be likely to boost regeneration efforts and reduce social exclusion in an area of Merseyside which suffers from particularly high levels of deprivation. The Secretary of State shares the Inspector's judgement that these benefits outweigh by a considerable margin the limited adverse impacts of the scheme on local people and the environment, which would be brought within acceptable levels by Merseytravel's proposed mitigation measures.

65. The Secretary of State has concluded also that, subject to the further modifications discussed below, the powers in the Order sought by Merseytravel are reasonable, appropriate and justified in the public interest. Accordingly the Secretary of State has decided to make the Order as recommended by the Inspector, but subject also to the modifications described below, and to direct that planning permission be deemed to be granted, subject to the conditions set out in the Annex.

66. With regard to section 5(6) of the TWA, the Secretary of State is satisfied that in every instance where the Order will authorise the extinguishment of a public right of way over land, either an alternative right of way has been or will be provided or the provision of an alternative right of way is not required.

67. The modifications to the Order which the Secretary of State intends to make, in addition to those recommended by the Inspector, are as follows:

  • article 4 (application of the New Roads and Street Works Act 1991) will be modified at the request of Merseytravel to provide that sections 56A, 58A, 73A to 73C and 78A of, and Schedule 3A to, the 1991 Act shall not apply to works carried out under the Order. The Secretary of State is satisfied that the powers in those provisions for street authorities to control the carrying out of works in the street are unnecessary having regard to the controls and safeguards in the Order and the Implementation Agreement which would apply to such works;
  • article 14 (construction and maintenance of new, altered or diverted streets) will be modified to extend the defence provisions in paragraph (4) to cover actions in respect of loss as well as actions in respect of damage;
  • article 19 (attachment of equipment to buildings) will be modified to make clear that the right of the owner of an affected building to require the temporary removal of equipment where the building is to be reconstructed applies also where it is to be demolished, for example, as part of a redevelopment scheme;
  • article 26 (mode of construction and operation of tram system) will be modified in the ways described at paragraphs 23 and 24 above, for the reasons given in those paragraphs;
  • article 28 (power to acquire land) will be modified at the request of Merseytravel to exclude from compulsory acquisition land which is open space (paragraph 33 above refers);
  • in paragraph 2(7) of Schedule 10 (provisions relating to statutory undertakers, etc.) the words "as revised and re-issued from time to time" in relation to the Code of Practice on Diversionary Works are to be deleted as it is not considered appropriate to provide for the effect of a statutory instrument to be variable as a result of changes to non-statutory measures such as a code of practice. Paragraph 36 of Schedule 11 is to be amended in the same way;
  • paragraph 1 of Schedule 11 (for protection of electricity, gas, water and sewerage undertakers) is to be amended to include within the definition of "specified undertaker" the undertakers referred to in paragraph 48 above; and
  • various minor drafting amendments which do not materially alter the effect of the Order.

The Secretary of State is satisfied that these additional modifications would not make a substantial change in the proposals before him for approval, such as would require him to give a further opportunity for representations to be made under section 13(4) of the TWA.

Planning Direction and Conditions

68. For the reasons given in this letter the Secretary of State has decided to issue a direction that planning permission shall be deemed to be granted for the development for which provision is made in the Order, subject to the conditions set out in the Annex to this letter. The letter conveying the planning direction will issue shortly, at the same time as the Order is made. This will follow publication of a notice of the determination in the London Gazette.

69. The conditions generally follow those recommended by the Inspector, subject to some additional refinements. These are mostly minor drafting changes to improve the clarity of the conditions. The only significant change is to the requirement in Condition 19 that, where contamination is encountered during construction which had not previously been identified, the element of development concerned should be suspended. In the interests of retaining an appropriate degree of flexibility, an exception to that requirement has been inserted which would allow that part of the development to continue to the extent that it would not disturb the newly identified contamination. This is consistent with the form of this condition as previously agreed between Merseytravel and the local planning authorities.

Notice under section 14 of the TWA

70. A notice of the Secretary of State's determination given pursuant to section 14(1)(a) of the TWA is enclosed.

Challenge to decisions

71. The circumstances in which the Secretary of State's decisions may be challenged are set out in the note enclosed with this letter.

Distribution

72. Copies of this letter, the section 14(1)(a) notice and the Inspector's conclusions and recommendations are being sent to those who appeared at the inquiry. Copies of this letter and the section 14(1)(a) notice are being sent to others who made representations about the Order application but who did not appear at the inquiry.

Yours faithfully,

Ellis Harvey
Head of TWA Orders Unit

ANNEX

CONDITIONS WHICH THE SECRETARY OF STATE INTENDS TO ATTACH TO THE DEEMED PLANNING PERMISSION

In these conditions, unless the context otherwise requires: -

"building" means any structure or erection, or any permanent gate, fence, wall or other means of enclosure, above the surface of the ground, but does not include any plant or machinery;

"the City Centre Design Specification" means the Merseytram City Centre Design Specification Line 1 prepared by Liverpool City Council and Merseytravel and dated 6 May 2004;

"the development" means the works authorised by the Order;

"the Environmental Statement" means the environmental statement accompanying the application for the Order submitted on 16 October 2003.

"the local planning authority" means Liverpool City Council in relation to any part of the development within its area and Knowsley Metropolitan Council in relation to any part of the development within its area;

"the Order" means the Merseytram (Liverpool City Centre to Kirkby) Order 200X;

"the relevant limits" means the limits within which, under the deemed planning permission to which these conditions relate, the development may be carried out; and

"retained tree" means an existing tree which is to be retained in accordance with the details submitted to and approved by the local planning authority under condition 6 below;

and reference to numbered works are references to the works set out in Schedule 1 to the Order.

Time Limits

1. The development hereby permitted shall be begun before the expiration of 5 years from the date that the Order comes into force.

Reason: To ensure that the development is commenced within a reasonable period of time.

Contaminated land

2. Development shall not begin until a scheme to deal with contamination on any land within the relevant limits likely to cause significant harm to persons, pollution of controlled waters or the environment has been submitted to and approved by the local planning authority.

The above scheme shall include an investigation and assessment report, prepared by a specialist consultant approved by the local planning authority, to identify the extent of any contamination and the remedial measures to be taken to render the land fit for the intended purpose, together with a management plan which sets out long term measures with respect to contaminants remaining on the site.

Any remedial measures approved by the local planning authority shall be implemented in accordance with the principles set out in the Code of Construction Practice, referred to in the Environmental Statement, before development commences or within such other period as may be agreed by that authority.

Reason: To ensure that any necessary site investigation and remedial action is undertaken in relation to contaminated land.

Siting, design and external appearance

3. Approval of the siting, design and external appearance within the relevant limits of the following elements of the development shall be obtained from the local planning authority before each element is commenced:

  • the alignment of the tram track;
  • each of the tram stops;
  • any bridges or viaducts;
  • any permanent fences, walls or other barriers, including bunds;
  • property boundary treatments where permanently altered;
  • poles and brackets etc. required to support the overhead line system;
  • electricity sub-stations, transformers and ancillary equipment;
  • lighting equipment;
  • any terracing, cuttings, embankments or other earth works;
  • the Park and Ride site at Gillmoss;
  • the Operations and Control Centre at Gillmoss;
  • any other ancillary buildings or structures;
  • full details of how any building, structure or site shall be restored or made good where it adjoins a building or structure to be demolished or altered, and a timetable of works to restore and make good.

Reason: To enable reasonable and proper control to be exercised over aspects of the details of the development.

Design Specification

4. That part of the development to which the City Centre Design Specification relates shall be designed and constructed in accordance with that Design Specification, unless otherwise agreed by the local planning authority.

Reason: To ensure high quality design and to safeguard amenity, especially in the Conservation Areas.

Materials

5. Details of the materials to be used in any external surface of any element of the development above ground level shall be submitted to and approved by the local planning authority before that element of the development is commenced.

Reason: To ensure satisfactory external appearance in the interests of visual amenity.

Tree Survey

6. Before any works on the development hereby permitted commence, the following details of all trees within the relevant limits having a stem diameter of 50mm or greater shall be submitted to and approved by the local planning authority:

  • their location, species, girth, stem diameter, crown spread and assessment of condition;
  • existing and proposed ground levels at the base of the trees where nearby changes of level or excavations are proposed;
  • the trees to be removed and those to be retained in conjunction with the proposed development, which shall be clearly marked on a plan; and
  • (d) for any retained tree, details of any proposed pruning, lopping or topping.

The positions and details of fencing or hoardings, prohibited areas and physical means of protecting the retained trees during the construction period shall be submitted to and approved by the local planning authority prior to the commencement of each element of the works. The fencing and hoardings shall be erected at the distances from each tree as set out in BS5837:1991-"Guide for Trees in relation to construction", unless otherwise agreed with the local planning authority. All tree protection measures shall be implemented and remain in place throughout the construction period of that element of the works.

Reason: In the interests of the visual amenity of the area and to ensure adequate protection of existing trees.

Retained Trees

7. Until the expiration of 5 years from the commencement of operation of the tram system authorised by the Order, no retained tree shall be felled, uprooted or destroyed, nor shall any retained tree be topped or lopped other than in accordance with the approved plans and particulars, without the approval of the local planning authority. If any retained tree is removed, uprooted or dies within that same period, another tree shall be planted at the same place and that tree shall be of such size and species, and shall be planted at such time, as may be specified in writing by the local planning authority.

Reason: In the interests of the visual amenity of the area.

Landscaping Scheme

8. No landscaping works or related development shall take place until a scheme for landscaping associated with the authorised works has been submitted to and approved by the local planning authority. The scheme for landscaping shall be formulated with a view to providing habitats for birds and other fauna wherever practicable, and shall include:

  • proposed finished ground levels;
  • vehicle and pedestrian access, parking and circulation areas;
  • hard surfacing materials and layouts;
  • minor artefacts and structures such as street furniture, play equipment, refuse bins, storage units, cycle racks, signs and lighting;
  • existing and proposed functional services above and below ground such as drainage, power and communications cables; pipelines, indicating all lines, manholes and supports etc.;
  • retained historic landscape features and proposals for their restoration, where relevant, including Grant Gardens;
  • the exact location and species of all existing planting to be retained;
  • schedules and plans of proposed planting noting species, sizes and proposed numbers/densities;
  • written specifications and cultivation plans for the establishment of new trees, planting and grassed areas;
  • implementation timetables.

Reason: In order to provide a suitable setting for the proposed development in the interests of visual amenity and to protect and enhance fauna.

Replacement Trees

9. The landscaping scheme which is required to be submitted for approval by the local planning authority under condition 8 above shall include:-

  • provision for the planting of two semi-mature replacement trees for each tree that is to be removed, provided that where the local planning authority agrees that semi-mature trees are inappropriate or cannot be achieved in a particular location it may approve smaller tree stock or alternative planting measures, and
  • details of the species, specification and location of the proposed replacement trees, the locations to be as close as possible to the positions from which trees are to be removed.

Reason: In the interests of the visual amenity of the area and to ensure the continuity or amenity afforded by existing trees.

Implementation and maintenance of landscaping

10. All hard and soft landscaping works shall be carried out in accordance with the approved landscaping scheme, its implementation timetables and all relevant British Standards and Codes of Practice.

Any tree or shrub planted as part of the approved landscaping scheme that, within 5 years of the date of planting, is removed, dies or, in the opinion of the local planning authority, becomes seriously damaged or diseased shall be replaced in the next planting season with specimens of the same species and size unless the local planning authority consents to any variation.

All tree works shall be carried out by a qualified tree surgeon in accordance with BS3998:1989 - Recommendations for Tree Work, and shall not be undertaken between 1 March and 31 July each year, unless otherwise agreed by the local planning authority.

Reason: To ensure the provision, establishment and maintenance of a reasonable standard of landscape in accordance with the approved schemes.

Replacement Habitats

11. Before the commencement of Work No.18 in the vicinity of Knowsley and Croxteth Brooks, details of any habitats to be removed and the proposed ecological mitigation or compensation measures and their timetable and maintenance, together with details of any impact on those water courses, shall be submitted to and approved by the local planning authority and implemented in accordance with the approved timetable.

Reason: To ensure adequate mitigation is provided and maintained.

Highways access

12. Prior approval of the siting, design and layout within the relevant limits of any new permanent means of access to a highway to be used by vehicular traffic, or of any permanent alteration to an existing means of access to a highway used by vehicular traffic, shall be obtained from the local planning authority before that element of the development is commenced.

Reason: To ensure highway safety.

Prevention of water pollution

13. In carrying out the development, all reasonable steps shall be taken to prevent the pollution of watercourses and groundwater, including by the following methods:

  • no contaminated material, or polluting construction or demolition material or refuse shall be deposited within the relevant limits;
  • no rainwater contaminated with silt of soil from ground disturbed during construction works shall be permitted to drain to any surface watercourse or water sewer without sufficient prior settlement;
  • no foul drainage or contaminated surface water run-off shall be discharged into any bore-hole, well, spring soak-away or watercourse, including dry ditches connected to a watercourse;
  • all surface water drainage from impermeable parking areas, new roadways and hard-standings for vehicles comprised in the development shall be passed through an oil receptor or other drainage system suitable for the site being drained before being discharged into any watercourse, surface water sewer or soak-away system;
  • prior approval of the construction details of any storage facilities for oils, fuels or chemicals shall be obtained from the local planning authority before that element of the development is commenced.

Reason: To ensure that all reasonable steps are taken to prevent the pollution of groundwaters during and after the construction process.

Archaeology

14. No development within or immediately adjacent to an area which, in the opinion of the local planning authority, is of known or suspected archaeological importance, shall commence until a scheme to deal with any archaeological remains on the site has been submitted to and approved by the local planning authority.

The scheme shall identify areas where open excavation and/or a watching brief are required and also the appropriate measures to be taken during and after construction should any significant archaeological remains be found. The scheme shall also require that any archaeological works on the site be carried out by a qualified investigation body acceptable to the local planning authority.

Reason: To ensure adequate protection and recording of archaeological remains.

Old Dock Archaeology

15. No development shall take place along Canning Place, or within 20m of the junction of Canning Place and Strand Street until:

  • a programme of archaeological work has investigated the location, nature, extent and survival of that part of Old Dock directly affected by the development, in accordance with a written scheme, including an evaluation and excavation programme, which has been submitted to and approved by the local planning authority;
  • details of an engineering solution and method statement showing the location and nature of any structures proposed by the development which will affect Old Dock have been submitted to and approved by the local planning authority. The development shall thereafter be carried out in accordance with the approved details to secure the preservation of Old Dock in situ, provided that this is compatible with the engineering requirements of the development.

Reason: To ensure adequate protection and recording of archaeological remains.

Protection of Princes Dock Wall

16. Before the temporary use of the land as a construction work site at Princes Dock commences, details of the position, design and method of protecting the listed gate and dock wall on the Bath Street frontage shall be submitted to and approved by the local planning authority.

Reason: To safeguard the listed structure.

Bat Survey

17. No development shall take place until the results of a survey and monitoring to establish the presence or otherwise of bats in any trees or structures to be removed within the relevant limits, together with any programme of mitigation measures, have been submitted to and approved by the local planning authority. Any such survey, monitoring or mitigation measures shall be undertaken and prepared in consultation with English Nature and the Department for Environment, Food and Rural Affairs.

Reason: To ensure that any bats that may be found are suitably protected.

Water Vole Survey

18. No development shall take place until the results of a survey and monitoring to establish the presence or otherwise of water voles on any land adjacent to or in the vicinity of any watercourse within the relevant limits, together with any programme of mitigation measures, have been submitted to and approved by the local planning authority. Any such survey, monitoring or mitigation measures shall be undertaken and prepared in consultation with English Nature and the Department for the Environment, Food and Rural Affairs.

Reason: To ensure that any water vole habitat that may be found is suitably protected.

Contamination encountered during construction

19. If at any time while the development is being carried out any contamination is encountered which was not identified and dealt with under the terms of Condition 2, that element of the development shall not proceed (except to the extent that it would not disturb that contamination) until an assessment of the contamination and a scheme and timetable to contain, treat or remove it have been submitted to and approved by the local planning authority.

Reason: To ensure that appropriate remedial action is taken in relation to contamination encountered in land in the course of construction in the interests of safety and amenity.

Construction noise and hours of operation

20. Construction works shall not take place outside the hours of 0800-1800 Monday to Friday and 0800 to 1300 on Saturdays ("the normal working hours") unless otherwise agreed by the local planning authority.

During the normal working hours the maximum noise levels generated by construction plant and equipment, measured 1.0m from the façade of any occupied dwelling or other building occupied for residential or office uses, shall not exceed the following limits:

0800-1800 hrs Monday to Friday:- 75dBL Aeq,10hr

0800-1300 hrs Saturday: - 75dBL Aeq,5hr

During the normal working hours the maximum noise levels resulting from any construction operation, measured 1.0m from the façade of any school, college or other teaching facility, shall not exceed the following limits:

At any time - 65dBL Aeq,1hr

Peak noise level - 70dBL Aeq,1min

Reason: To protect local amenity.

Operational noise

21. The tram system shall be designed and constructed to avoid, where practicable, noise arising from wheel squeal. Noise monitoring shall take place at 6 monthly intervals for 3 years following commencement of public operation of the tram system at locations to be agreed with the local planning authority, to establish whether or not the trigger levels for the Noise Insulation (Railways and Other Guided Transport Systems) Regulations 1996 are exceeded. Where monitoring indicates that these trigger levels are exceeded, or where peak noise levels attributed to the tram system exceed 82dBLAmax free field (slow time weighting), other than where this level is exceeded due to other sources, insulation in accordance with the Regulations shall be made available to the occupiers of properties affected by the noise.

Reason: To protect local amenity.

War memorial

22. The War Memorial at present sited within the depot of Glenvale Transport Limited at Gillmoss shall be relocated with appropriate landscaping to a site in the vicinity to which the public has access. Details of the siting and landscaping shall be submitted to and approved by the local planning authority before any development in that area commences.

Reason: To conserve the war memorial and its setting.

Scheme of environmental mitigation measures

23. Where the siting of any part of the development is to deviate materially from the centre line shown for the development within the relevant limits, a scheme of environmental mitigation measures shall be submitted to and approved by the local planning authority. This approval shall not be withheld nor conditions imposed unless the local planning authority considers that the scheme is inadequate to mitigate any environmental impact arising from the proposed deviation not taken into account in the Environmental Statement.

Reason: To ensure the mitigation of additional environmental impacts arising from deviation from the centre lines shown for the development within the relevant limits.

Environmental mitigation measures

24. The development shall be carried out in accordance with a Schedule of Environmental Mitigation Measures which shall be submitted to and approved by the local planning authority.

Reason: To ensure that the mitigation of environmental impacts is undertaken.

Disabled Parking

25. In conjunction with the local planning authority and the local highway authority, provision shall be made, prior to their removal, for the permanent replacement of the 27 on-street disabled parking spaces currently on Whitechapel and Stanley Street, Liverpool.

Reason: To secure appropriate replacement disabled parking.

Approval under these conditions

26. Where the approval, agreement or consent of the local planning authority is required under any of the above conditions, it shall be given in writing.

Reason: To provide for certainty in the approvals process.

Implementation

27. With respect to any condition set out above that requires the approval of the local planning authority, the works or matters thereby approved shall be carried out in accordance with the approved details unless otherwise approved in writing by the local planning authority.

Reason: To ensure that development takes place in accordance with approved details unless the local planning authority agrees otherwise.

END