Proposed Leigh Busway Order - Provisional View Letter

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

Ellis Harvey
Head of TWA Orders Unit
Zone 3/11
Great Minster House
76 Marsham Street
London SW1P 4DR

Direct line: 020 7944 3293
Fax: 020 7944 2479
Email: transportandworksact@dft.gsi.gov.uk
Web site: www.dft.gov.uk

Our Ref: TWA /3/1/195
Your Ref: PHT/B008253

13 October 2003

Dear Sirs,

Transport and Works Act 1992
Town and Country Planning Act 1990

Applications for the Proposed Greater Manchester (Leigh Busway) Order and Deemed Planning Permission

I am directed by the Secretary of State for Transport to say that consideration has been given to the report of the Inspector, Mr David Woodrow MA(Cantab.), DipTP, CEng, MICE, MIHT, FRTPI, FCMI, FRSA, who held a public local inquiry between 10 September and 8 October 2002 into applications made by your clients, the Greater Manchester Passenger Transport Executive ("GMPTE"), on 31 January 2002 for:

(a) the Greater Manchester (Leigh Busway) Order ("the Order") to be made under sections 1 and 5 of the Transport and Works Act 1992 ("the TWA"); and

(b) a direction as to deemed planning permission ("the planning direction") to be given under section 90(2A) of the Town and Country Planning Act 1990.

2. The Order, if made, would authorise the construction and operation of a 7 kilometre twin-track guided busway between Leigh, Tyldesley, and Ellenbrook, using the trackbed of an abandoned railway, and a 400 metre busway spur to the Higher Folds housing estate. It would also authorise on-road bus-priority measures between Leigh bus station and the start of the guided busway and the compulsory acquisition of land and rights over land for the purposes of the proposed works. The guided busway would include six bus stops, three with park and ride facilities, and a public transport interchange at Tyldesley. A recreational route for walkers, cyclists, and over much of its length, equestrians, would be constructed beside both the main busway and the spur. The busway would form part of the GMPTE's proposed Quality Bus Corridor ("QBC") between Leigh and Manchester. The planning direction, if given, would give deemed planning permission for the development provided for in the Order.

3. A copy of the Inspector's report of the inquiry is enclosed. His conclusions are set out in section 9 of the report and his recommendations are in section 10. References in this letter to paragraph numbers (in brackets) are references to paragraphs in the Inspector's report.

Summary of Inspector's recommendations

4. The Inspector recommended that both the Order and the planning direction should be made, subject to the modifications detailed in Appendix 3 to the report.

Summary of Secretary of State's provisional views

5. For the reasons explained in this letter, the Secretary of State considers that he is not yet in a position to come to a final view on the Inspector's recommendations. This is because he requires more information on two particular matters before he can make a properly informed decision on these applications. This letter invites the submission of further evidence on those matters, whereupon other interested parties will be given the opportunity to comment on such further evidence before a decision is taken.

6. The two matters in question are dealt with more fully in this letter. In summary they relate to -

(a) the need for a detailed assessment of the impact of the proposed busway on habitats of the Great Crested Newt ("GCN") and for the identification of specific mitigation measures; and

(b) the implications of the Inspector's recommendation that equestrian facilities be extended along the whole length of the proposed recreational route.

The arrangements for submitting further evidence and for making representations on these matters are explained at the end of this letter.

7. Notwithstanding the above, the Secretary of State considers that it would be helpful to your clients and other interested parties if he were at this stage to set out his provisional views on the Inspector's conclusions, to the extent that he can reasonably do so from the information available and without prejudice to his consideration of any further evidence and representations that may be submitted.

Secretary of State's consideration

Objectives of and justification for the Order proposals (9.2)

8. The Inspector was satisfied that the objectives of the proposals - that is, to establish a high grade public transport route providing an attractive alternative to the use of the private car, to reduce social exclusion and to improve the economic prospects of the area and of its residents - were sound and in accordance with policy at all levels (9.2.1,9). As for alternative ways of meeting those objectives, he said that the range of schemes studied was sufficient to show that the present scheme would have very substantial advantages in comparison with rail-based schemes and that the road based alternatives all failed to achieve the full range of objectives that would be achieved by the full QBC scheme (9.2.6). He was satisfied, further, that overall a very substantial additional value would be created (for the whole QBC scheme) by the construction of the busway (9.2.7). He accordingly concluded that there was a need for the scheme, that it would perform satisfactorily in relation to the objectives and that it was robust economically (9.2.9).

9. On the basis of the information currently before him, the Secretary of State agrees in principle with the Inspector's assessment of the need and justification for the Order proposals, including the economic case for the QBC scheme, for the reasons given in the report. He will, however, wish to consider whether any evidence he receives about the issues referred to in paragraph 6 above would cause him to take a different view on the Inspector's conclusions on these matters before determining these applications.

Compulsory acquisition (9.3)

10. The Inspector noted that the amount of land covered by the proposed compulsory purchase was limited, since the trackbed of the former railway was being acquired by agreement. The land proposed to be acquired compulsorily was mainly required for necessary ancillary work such as drainage works and to allow for properly dimensioned approaches to crossings of the busway (9.3.1). Having considered all the evidence, he concluded that there was a compelling case that the proposed powers of compulsory acquisition were necessary, in the public interest, in respect of all of the land and rights to which the Order would apply them, subject to the amendments in Appendix 3 to the report (9.3.9).

11. The Secretary of State agrees with the Inspector that the compulsory acquisition powers sought by the GMPTE, subject to the amendments referred to by the Inspector, would be necessary to enable the busway scheme to proceed. To the extent that he is satisfied about the need and justification for the scheme, his provisional view is that it would be in the public interest to confer those powers and that there is a reasonable prospect of funds being secured to meet the costs of implementing the scheme. He recognises, however, that if the Secretary of State for Environment, Food and Rural Affairs were to refuse to license activities that would disturb the GCN or damage its habitat in connection with the construction and operation of the busway (once the information referred to at (a) in paragraph 6 above has been provided) implementation of the scheme would be blocked. At this stage, therefore, he cannot conclude whether there is a reasonable prospect of the scheme going ahead and, consequently, whether he would be justified in granting the compulsory acquisition powers sought in the Order application.

Statutory undertakers (9.4)

12. The Inspector noted that by the close of the inquiry all of the objections by the statutory undertakers had been resolved and withdrawn, but that there remained a representation from United Utilities about which the GMPTE had offered a draft agreement. He concluded that, subject to that being resolved, the proposed arrangements for protecting the interests of statutory undertakers were satisfactory. (9.4.1)

13. The Secretary of State understands that the GMPTE has reached an agreement with United Utilities on the latter's points of concern but that this agreement has yet to be executed. Subject to that and to his consideration of any representations from statutory undertakers about the Inspector's proposal referred to at (b) in paragraph 6 above, he agrees that the protective arrangements for statutory undertakers are satisfactory.

Impact on local residents and business (9.5)

14. The Inspector recognised that construction of the busway would inevitably introduce some noise, vibration, pollution and visual intrusion into the area. Although he had no reason to suppose that the normal methods of control over noise, pollution and working hours would be ineffective, he considered that the effect would be sufficient to cause significant disturbance, especially to more sensitive people, in an area that was at present relatively quiet (9.5.1.1). He considered that in operation the busway would generate noise levels that would be acceptably low from the point of view of their impact on nearby properties; but he observed that the noise levels and the visual intrusion of the busway would change these aspects of the present character of the recreation route for the worse (9.5.1.5 and 6). The initial visual impact of the busway would, in his view, be substantial but would decline as the landscaping matured (9.5.1.9). He concluded that the visual effect of introducing the busway would be acceptable in the context of the intended role of the route but much less acceptable to those who valued its present character (9.5.1.10).

15. The Inspector considered that the busway scheme would add substantially to the recreational usefulness of the land in and adjacent to the corridor and that the scheme would not cause a significant loss of recreational land (9.5.2.2 and 3). As far as equestrian recreation was concerned, his view was that the scheme would have detrimental effects for which it would be entirely proper for the GMPTE to provide some compensatory facilities (9.5.2.4). For this reason he recommended that the Order and planning direction be modified so as to extend the equestrian facilities to cover the length of the new recreation route between Astley Street, Tyldesley and Newearth Road (9.5.2.5). In relation to the use of open space, the Inspector noted that the Order proposals did not give rise to a statutory need for exchange land to be provided. He said, however, that the GMPTE's offer to dedicate four parcels of land voluntarily as public open space should be accepted (9.5.2.6).

16. The Inspector considered that the three proposed park and ride sites would relieve the potential problem of parking in adjacent residential streets and that they would overall have beneficial effects which would outweigh their disadvantages (9.5.4.2).

17. As for the safety of pedestrians, the Inspector considered that the guided busway would be a safer system than on-road bus services (9.5.5.1), but said that at the detailed design stage the GMPTE should consider providing signal-controlled crossings at the few points where the main recreation route would cross the busway other than by way of a signal-controlled crossing at a public road (9.5.5.4). Similarly he concluded that the GMPTE should give further consideration to the provision of crossing facilities for equestrians as a matter of detailed design (9.5.5.5). With regard to the impact on vehicular traffic, he did not consider that the signal-controlled junctions would be likely to increase local congestion or to present accident risks in themselves (9.5.5.7).

18. In relation to impacts on businesses, the Inspector did not consider that the changes caused by the proposed busway would result in an adverse effect upon local liveries (9.5.6.1). He agreed with the GMPTE view that the general effect on local business was likely to be beneficial, but that within this general effect there could be losers as well as winners (9.5.6.2).

19. The Inspector's general conclusion as to the impact of the construction and operation of the proposed works on the local residents and business was that in no case would this be unacceptable, subject to the extension of equestrian facilities referred to at paragraph 15 above. He noted, however, that there were areas of detriment which needed to be weighed against the benefits of the scheme. (9.5.7)

20. The Secretary of State agrees with the Inspector's assessment that none of the impacts of this proposed works on residents or businesses - except in relation to equestrian recreation - would be unacceptable. In relation to provision for equestrians, however, he is unable on the basis of the evidence before him to come to a view on whether an extension of equestrian facilities eastwards from Astley Street to Newearth Road, as recommended by the Inspector, would be acceptable and, if so, whether it should be regarded as a necessary mitigation measure. This is because the environmental impacts of such an extension have not been fully assessed and because those who might be affected by this modification have not been given an opportunity to express their views on it. The Secretary of State will need information on these matters before he can come to a view on whether the benefits of extending equestrian facilities in the way recommended would outweigh any disadvantages of such an extension. If so, he would then wish to consider whether it would be appropriate to require this extension to be provided in order to offset the detrimental effects of the proposed busway on equestrian recreation that were accepted by the GMPTE (8.4.7).

21. The Secretary of State has noted the Inspector's comments about the GMPTE's offer voluntarily to provide additional recreation space and about the provision of crossing facilities for pedestrians and equestrians. On the basis of the evidence before him, he agrees with the Inspector that the provision of additional space is not in this instance a statutory requirement and that the provision of additional crossing facilities should not be made the subject of a condition on the planning direction (should he decide to give it).

Environmental impact and mitigation measures (9.6 and 7)

22. The Inspector was satisfied with the adequacy of the environmental statement ("ES"). He considered that the ES, together with supplementary information put before the inquiry, was sufficient to establish what was necessary to be established at this stage about the likely environmental impacts of the scheme and appropriate mitigatory measures (2.1.2, 9.6.1.2).

23. With regard to ecological impacts, the Inspector recognised that the importance of the busway corridor as a wildlife habitat was substantial, but in his opinion the scheme should have no unacceptable effect on the most important habitats, that is those for the GCN at Ponds W15 and W52. This was because, during construction, the Code of Construction Practice would ensure that wildlife would be protected and, in his view, the proposed programme of fencing, trapping and relocation should resolve the problem for the GCN (9.6.2.2, 3 and 9.6.3.1). Once the scheme had been completed, he considered that, where the structure of the busway was left without infill material so as to create "toad tunnels", the busway would form no more of a wildlife barrier than a traditional railway or plateway (9.6.2.5). Similarly he said that the effect of the recreation route on continuity of the habitat would be negligible (9.6.2.7).

24. The Inspector concluded that the permanent loss of wildlife habitat would not be significant as a proportion of the whole, that the proposed landscaping should produce a wider variety of habitat in the corridor and that provided crossing arrangements were designed on the principles stated by the GMPTE there should be no substantial barrier effect (9.6.2.8). However, he noted that further survey work was proposed by the GMPTE in respect of bats, amphibians and water voles. He did not agree with the objectors who considered that this work should have been carried out at an earlier stage and should extend to other species. He considered that that the further survey work proposed would be sufficient and correctly timed for its purpose (9.6.3.2).

25. Overall, in the Inspector's opinion the scheme would have little environmental impact except in the field of ecology and the character of the route, though the annoyance caused by the construction work would inevitably be significant temporarily (9.6.9.1). As for the character of the recreation route he accepted that it would be changed significantly by the scheme, but he regarded this change as inevitable if wider use of the route was to be achieved (9.6.9.2). On this basis, he concluded that the scheme would in general be acceptable, but that the adverse ecological effects would need to be weighed against the benefits of the scheme (9.6.9.3).

26. The Inspector considered that the principles of the intended mitigation in relation to ecology were clear and adequate (9.7.1.1). More generally, he concluded that the proposed measures of mitigation would be sufficient to counter the adverse effects of the proposals to an acceptable degree, subject to comparison of the remaining adverse effects with the benefits of the scheme (9.7.4.1).

27. The Secretary of State agrees with the Inspector - except in relation to the impact of the scheme on the GCN - that the ES and the supplementary information are adequate for the purposes of determining these applications and that the environmental impact of the scheme and the proposed mitigation measures would be acceptable. He does not, however, agree either that the ecological impacts of the scheme in relation to the GCN have been adequately assessed or, consequently, that appropriate mitigation measures for those impacts have been identified.

28. In relation to the GCN, the ES indicates that construction of the proposed busway would directly affect one habitat (pond "W15") and that at this location and in the vicinity of pond "W52" the terrestrial habitat of the GCN would also be affected. In their evidence to the inquiry, the GMPTE acknowledged that it would be necessary for additional GCN surveys to be carried out and for appropriate mitigation measures to be designed before an application could be made to the Secretary of State for Environment, Food and Rural Affairs for a licence under the Conservation (Natural Habitats &c.) Regulations 1994 ("the 1994 Regulations") (4.5.6.10).

29. In these circumstances, the Secretary of State considers that it would not be appropriate for him to determine the Order application at this stage, for the following reasons:-

The ES and the inquiry evidence do not provide sufficient information for him to assess the impact and significance of the scheme on the GCN, a protected species under the 1994 Regulations. Nor can he assess the adequacy of any measures designed to mitigate the adverse effects of the scheme on the GCN, as required by section 14(3AA) of the TWA, when such measures have yet to be worked up in detail. This information is essential to enable him to make a properly informed decision on whether or not it would be in the public interest to authorise the proposed busway.
For the Secretary of State to come to a decision in the absence of complete information about a significant environmental impact issue would run counter to case law such as R-v-Cornwall County Council ex parte Hardy [2001] JPL 786; R-v-Rochdale Metropolitan Borough Council ex parte Tew and others [1999] 33 PLR 74; and R-v-Rochdale Metropolitan Borough Council ex parte Milne [2001] JPL 470.

If the Secretary of State were to decide at this stage to authorise the scheme by way of making the Order and granting deemed planning permission, that could be held to be prejudicial to the consideration of a subsequent licence application under the 1994 Regulations. To avoid this situation, established TWA practice has been for any related licence applications that are known to be required to be applied for and dealt with concurrently. This also avoids the risk of an Order being made but a licence under the 1994 Regulations subsequently being refused, which would mean that the powers in the Order could not be exercised. The Secretary of State would not wish to grant powers in a TWA Order if there were a risk that those powers could not be exercised.

This practice is in line with the Government's published policy on compulsory purchase powers, as set out in ODPM Circular 02/2003, which makes clear that an acquiring authority needs to be able to show, as part of demonstrating that there is a reasonable prospect of a scheme going ahead, that it is unlikely to be blocked by any impediments to implementation, such as the need for another consent or licence.

30. The Secretary of State considers, therefore, that it will be necessary for the GMPTE to carry out the additional surveys of GCN habitats referred to at the inquiry, to design appropriate mitigation measures, and to apply for a licence under the 1994 Regulations, before he can reach a view on the acceptability or otherwise of the impact of the scheme on the GCN. It appears to him that the position of other species is different in that no bat roost sites have been found that would be damaged or destroyed for the purposes of constructing the busway and that appropriate mitigation works are capable of preventing harm to the water voles and their habitat (9.6.3.1 and 2). Bearing in mind, however, the Inspector's view that the GMPTE's proposed re-survey work was essential (9.6.2.1), the Secretary of State considers that it would be advisable for the additional survey of bats and water voles to be carried out at the same time as the GCN survey in order to produce an up-to-date assessment of the likely impacts of the scheme on these species. If the further bat survey identified roosts that would be affected by the busway a licence under the 1994 Regulations would be required, which would have to be applied for before the Order application could be determined.

Green Belt (9.8)

31. The Inspector recognised that the busway would bring greater activity to the part of the Green Belt through which it would pass and would require the carrying out of physical development within it. In assessing the acceptability of the scheme in terms of national Green Belt policy (as set out in PPG2), he summarised the purposes of including land in Green Belts as being to prevent development of an urbanising nature within such designated areas (9.8.2). In his view, linear infrastructure such as the proposed busway was not inherently urbanising. He considered that the designation of a Green Belt around an urban area must envisage that necessary linear infrastructure would cross it, as no urban area could prosper without it. He therefore considered that it would be illogical to consider necessary linear infrastructure to be inappropriate development in the terms of PPG2 and inherently unacceptable without very special justificatory circumstances (9.8.3). He regarded the busway as necessary linear infrastructure, so far as its principles were concerned (9.8.4).

32. Looking at the specific effects of the proposals on the Green Belt, the Inspector noted that the design would introduce no significant upstanding structures into the Green Belt; the lowering of the presently prominent embankments would increase openness; the busway services and the recreational route would improve the accessibility of open countryside and outdoor recreation for the urban population; and the landscaping would improve the landscape along the corridor. (9.8.4) With regard to the park-and-ride site at Tyldesley in the Green Belt he considered that, whilst the busway could function without it, its omission would reduce the service to the public and risk adjacent residential streets being used by long-stay parkers. He considered that no other site would be functionally satisfactory and that the benefit to the locality and to the scheme would outweigh the detriment to the Green Belt, having due regard to relevant objectives and policies (9.8.5).

33. The Inspector considered that the busway would not significantly increase the risk of urban development being permitted on parts of the Green Belt adjacent to it. If, nevertheless, the busway were to be viewed as "inappropriate" development in the terms of PPG2 he considered that the necessary very special justificatory circumstances existed. Overall, he concluded that the proposals contained in the Order were acceptable in terms of Green Belt objectives and policies (9.8.6).

34. The Secretary of State agrees with the Inspector's assessment of the specific effects of these proposals on the Green Belt, as at 9.8.4-5 of his report, and with his overall conclusion that the proposals are acceptable in terms of Green Belt objectives and policies. In reaching this overall view, the Secretary of State has had regard to the tests set out in PPG2 for deciding whether the proposed development should be regarded as appropriate or inappropriate development in the Green Belt.

35. The Secretary of State notes that PPG2 does not expressly provide that necessary linear infrastructure should be regarded as appropriate (or not inappropriate) development in the Green Belt. Nevertheless, having regard to the objectives and policies in PPG2 as a whole, and in particular paragraphs 3.12, 3.13 and 3.15 of that guidance, the Secretary of State is satisfied that the particular busway development proposed here could reasonably be regarded as appropriate within the Green Belt. This is because, for the reasons given by the Inspector, the proposals would not detract from, and in some locations would increase, openness; they would not appear to conflict with the purposes of including land in the Green Belt; they would in many respects make a positive contribution towards fulfilling the objectives of Green Belt; and they would not be visually detrimental.

36. Furthermore, the Secretary of State agrees with the Inspector that, in any event, very special circumstances exist to justify this busway development in the Green Belt (subject, that is, to satisfactory resolution of the issues referred to at paragraph 6 of this letter). It would provide substantial benefits to the public in the vicinity of the corridor it would serve by improving accessibility, providing an alternative to car travel and promoting urban regeneration; it accords with relevant transport objectives and policies at all levels; and none of the alternatives considered by the GMPTE and others would both produce similar benefits to this scheme and cause less harm to the Green Belt.

37. In regard to the park-and-ride site at Tyldesley, the Secretary of State notes that the Inspector has had regard to the five tests set out in paragraph 3.17 of PPG2 (as introduced by the March 2001 version of PPG13) for assessing whether such development in the Green Belt is appropriate. He agrees with the Inspector that this proposed park-and-ride site meets those tests and he is further satisfied that the development would not be visually detrimental. The Secretary of State considers that, in any event, the benefit of this facility to local residents if the busway were to proceed, both in terms of reducing the risk of parking in adjacent residential streets and improving accessibility, would constitute very special circumstances to justify the development.

Cumulative impacts (9.9)

38. The Inspector did not consider that the addition of the effects of the other developments associated with the QBC (which were not the subject of these applications) would add anything, in the locality of the Order land, to the impacts already identified as arising from the Order. He, therefore, concluded that the concept of cumulative impact did not seem to add anything significant in this instance, in relation specifically to works and developments (9.9.2). In relation to the impact of the QBC as a whole on existing bus services, his view was that the QBC should not cause harm overall to users of public transport in the area, though there would probably be losers as well as gainers (9.9.3).

39. Subject to his consideration of any further evidence submitted in relation to the issues referred to at paragraph 6 above, the Secretary of State agrees with the Inspector's conclusion on this matter.

Issues concerning the Order (9.10 and 11)

40. The Inspector recommended a number of mostly minor modifications to the Order as detailed in Appendix 3 to the Report (9.11.1 and 4). More significantly, in relation to article 19 of the Order which would make any obstruction of a person constructing works under the Order an offence, the Inspector concluded that a case was not made out for extra legal powers beyond those applying to the generality of construction projects. He therefore recommended that article 19 should be omitted (9.11.2). He concluded also that no modifications to the Order were justified with regard to the provision disapplying section 89(1) of the Transport Act 2000 (9.10.1), with regard to the five year limit on the compulsory acquisition powers (9.11.3), or with regard to compensation arrangements (9.11.5).

41. Except in relation to the proposed obstruction offence in article 19, and subject to satisfactory resolution of the issues referred to at paragraph 6 of this letter, the Secretary of State agrees with all of the Inspector's conclusions on these issues. In relation to article 19, the Secretary of State is satisfied that, if he were to decide to authorise the busway, it would be appropriate to retain this provision in the Order. He considers that this would be a reasonable provision to ensure that the GMPTE could exercise its lawful right to construct the busway - that is, if the Order were made. He does not agree with the argument that creation of this obstruction offence would be incompatible with the European Convention on Human Rights.

42. It should not, however, be assumed from the above that the Secretary of State is otherwise content with the drafting of the proposed Order. There are a number of drafting points which he is taking up separately with you, without prejudice to his eventual decision.

Use by bus operators of the proposed busway (9.12)

43. Having considered the GMPTE's proposed arrangements for the intended Quality Partnership Scheme and for the licensing of operators entitled to use the busway, the Inspector concluded that as a method for the procurement of services and the selection of operators this combination seemed sufficient (9.12.2). The Secretary of State agrees with the Inspector's conclusion on the principles of the proposed licensing arrangements.

Proposed planning conditions (9.13)

44. The Inspector said that in his view all of the conditions proposed were necessary, relevant and reasonable (9.13.1). Having considered all the representations made about the adequacy of the conditions, he recommended that regard should be had by the GMPTE and the local planning authorities to the comments of the Environment Agency about the need for protective metal fencing at certain locations and about the form and contents of the environmental mitigation scheme (9.13.8 and 9). He concluded also that condition 13 about the mitigation scheme should be extended to require that the construction and post-project monitoring of the works should comply with the scheme for mitigation (9.13.9).

45. Subject to his consideration of any representations that are made on the issues referred to at paragraph 6 above, and without prejudice to his decision on whether to give a planning direction, the Secretary of State offers the following provisional views on the planning conditions proposed by the GMPTE. It is of course open to your clients or the local planning authorities (or any other party) to offer any further comments in the light of these provisional views:-

i. it appears to the Secretary of State that condition 1 is unnecessary, bearing in mind the only reason for it given by the GMPTE is "for the avoidance of doubt". The condition appears, in any event, to be so unclear in meaning and effect as to be unenforceable;

ii. in relation to condition 2, the Secretary of State is not convinced (having regard to the advice given in paragraph 61 of and Appendix B to DOE Circular 11/95) that it would be acceptable to specify in this condition a time limit for completion of any development that he might in due course permit, as this would be difficult to enforce and is not, as claimed, a requirement of section 91 of the Town and Country Planning Act 1990;

iii. with regard to condition 5, clarification is invited as to whether the siting of all the listed items has been established/agreed and therefore does not need to be made a reserved matter;

iv. condition 8(e) does not appear to make sense in isolation, unless it was intended to be an additional item under condition 8(a); and

v. the Secretary of State is not persuaded that the modification to condition 13 recommended by the Inspector is necessary, should he decide to give the planning direction, as it appears to him that compliance with any mitigation scheme approved by the local planning authority would be secured by condition 10.

The Inspector's overall conclusions and recommendations

46. Putting all the relevant considerations into the balance - which, in summary, were the substantial benefits to the public of the proposed busway; the environmental impact of the scheme, which would be beneficial in some respects and harmful in others; and the proposed mitigation work which would be subject to further refinement - the Inspector concluded that the benefits of the scheme would outweigh its disbenefits. He accordingly recommended that the Order and the planning direction should be made, subject to the modifications contained in Appendix 3 to the report (9.14.1 and 2). He also concluded that other, more detailed points highlighted in his conclusions should be drawn to the attention of the bodies indicated (9.14.3).

The Secretary of State's position on the Inspector's recommendations

47. For the reasons explained in this letter, the Secretary of State is not yet able to form any view on the overall acceptability or otherwise of the Order proposals because he considers that he does not yet have sufficient information on the matters referred to in paragraph 6 above to enable him to carry out a proper balancing of the advantages and disadvantages of these proposals. The significance of those matters for the Secretary of State's decision is such that he is unable to indicate whether or not he is minded to accept the Inspector's overall conclusions and recommendations, as to do so would be likely to prejudice his assessment of any evidence submitted in response to this letter. He will wish to assess the implications of any new evidence or representations that he receives in response to this letter before determining these applications.

Next Steps

48. The GMPTE is now invited to carry out the further surveys of the GCN, bats and water voles referred to at the inquiry and to work up appropriate mitigation measures, in consultation as necessary with the local planning authority, English Nature and the Department for Environment, Food and Rural Affairs. In relation to the proposed extension of equestrian facilities recommended by the Inspector, the GMPTE is invited also to consider whether this modification would require changes to the Order or to the request for a planning direction and to carry out an assessment of the environmental impacts of such additional works.

49. Once the information on these matters has been assembled, the GMPTE is asked to make appropriate arrangements for making the new evidence available to interested parties, in particular by way of -

• publishing a notice in a local newspaper circulating in the area of the proposed works;
• serving a copy of the new evidence on all those who appeared at the inquiry;
• depositing a copy of the new evidence for inspection at a suitable place or places in the vicinity of the proposed works;
• providing copies of the new evidence to any person who requests it; and
• serving two copies of the evidence on the Secretary of State at the above address.

In publicising the new evidence, the GMPTE should advise that anyone who wishes to make representations about it to the Secretary of State should do so in writing within 28 days of the date when the local newspaper notice is published. The Secretary of State will decide in the light of any representations received about the new evidence, or about this letter, how to take forward his consideration of these applications, including whether it would be appropriate to re-open the public inquiry.

50. The GMPTE is invited also to apply to the Secretary of State for Environment, Food and Rural Affairs for any licence under the 1994 Regulations that would be required for the purposes of the works in the Order before, or at the same time as, the new evidence is made available to the public. This would enable any such application to be considered and determined concurrently with the Order application.

Distribution

51. Copies of this letter are being sent to all persons who appeared at the inquiry with a copy of the Inspector's conclusions and recommendations.

Yours faithfully,

Ellis Harvey
Head of TWA Orders Unit