... your village ... your voice...
|
|
|
|
|
Public Inquiry
CLOSING SUBMISSIONS ON BEHALF |
|
|
Introduction
|
1. After the hearing of the evidence in this case there is nothing of any significance which I would wish to alter in my opening submission. I submit that the thrust of everything which I wrote there continues to hold good. I therefore continue to rely on it here. 2. I also rely on the Highways Agency's evidence and its responses to objectors together with matters which were established in cross examination of the objectors. 3. I do not wish to make any further submissions of law in relation to the legal framework. 4. I would, however, like to add a few submissions on evidential matters in connection with paragraph 17 of my opening submission.
5.
6. In paragraph 17 I argued that, if the condition of expediency applied, it was plainly expedient (having taken into consideration relevant requirements) to reorganise the system to delete from it section 10 orders when there was no proposal to construct the by-passes which were the subject of those orders. 7. I maintain that submission but say a little more about the relevant requirements which must be taken into consideration. The relevant requirements are the requirements of local and national planning, including the requirements of agriculture. 8. In paragraph 44 of my opening submission I argued that there was no need for the by-pass orders and that retaining orders which served no purpose was simply bad planning, unnecessarily sterilising land to protect routes for roads which had no reasonable prospect of being built. Hence no doubt was it said in A New Deal for Trunk Roads (D14) that "schemes not taken forward in the targeted programme of improvements will be dropped and route protection lifted where it is clear that they are either not an appropriate solution to the underlying problem or there is no prospect of the schemes being taken forward in the foreseeable future. " 9. Mr Williams accepted that the principle which underlay the above statement was indeed that it was bad planning to tie up land in respect of schemes which were not an appropriate solution to the underlying problem or which had no prospect of being taken forward in the foreseeable future. 10. That principle must clearly be a basic requirement of both local and national planning. 11. Exactly the same point may be made in a slightly different way by stating that it is a basic requirement of local and national planning to avoid unnecessary blight. 12. Thus. the justification given for the Government's withdrawal of schemes from the road programme as it was then (at an earlier date to the operative withdrawals in this case) on 26th November 1996 was that such withdrawal was "to remove uncertainty and the damaging effect of blight on individuals and neighbourhoods" (D22), as cited by Mr Hornagold (and not challenged) at paragraph 4.2 of his proof. 13. So, if in this case you were to conclude that the by-pass schemes did not have a prospect of being taken forward In the foreseeable future, you would be entirely justified in thinking that the requirements of local and national planning, once taken into account. would point towards the conclusion that it was expedient for the revocation orders to be made. This would be for the purpose of re-organising the system to delete from it the section 10 orders here. On the evidence you should be abundantly satisfied that the right conclusion is that the by-pass schemes do not have prospects of being taken forward in the foreseeable future. I will return to that point in due course. 14. In section 10(2) agriculture merits a specific mention as being included in the requirements of local and national planning. The requirements of agriculture include a requirement not to be blighted. Ms Derry's elegant phrase that "the blight was in the fields and not in the villages" comes to mind here. The Highways Agency does not accept that there is no statutory blight in the villages and Mr Faulkner told the inquiry that the villages in fact suffered a "major problem" of planning blight. However. it is plain that there is "blight in the fields". Mr Evans also recognised the existence of blight in the statutory sense (when he recognised that there was "blight on both sides of the argument"). Moreover, the A65 Bypass Study Stage 2 Final Assessment (OBJ) 1/0/8 (at page 24) specifically shows that blight notices have in fact been served in respect of 2 farm units. So blight is a real concern in this case and not just an abstraction. I would submit that you could be left in no doubt that, taking into account the requirements of agriculture, the expedient course would be the making of the revocation orders.
15.
I set out in some detail in my opening submission why it
was that the Government's decision in 1998 to withdraw the Gargrave and
Hellifield and Long Preston by-passes 16. Mr Williams accepted on behalf of the County Council that the Government's decision in 1998 to withdraw the Gargrave and Hellifield and Long Preston by-passes from the national road programme was indeed a matter of Government policy. Thus the views of the trunk road authority and the local highway authority on this important point are at one. 17. The suggestion made to Mr Hornagold in cross examination that no inquiry was held in 1998 was factually correct but entirely beside the point. It would be absurd to think that at that stage the Government would have had to have held separate local inquiries for each scheme within the review in order to decide how to proceed. Such a way of proceeding would have squarely fallen within what was considered inappropriate by Lord Diplock in Bushell; involving, as it would, "investigation by individual inspectors on whatever material happened to be presented to them at local inquiries held throughout the country". 18. The suggestion also made that no NATA assessments had been undertaken as part of the review was potentially wrong in principle and actually wrong on the facts. It was potentially wrong in principle because it is not for a local inquiry to form a judgment on the adequacy of the assessment which informed national policy; if that was the suggestion behind the question it was therefore in error. It was in any case wrong in fact because NATA assessments were undertaken generally and specifically in relation to both the Gargrave and the Hellifield and Long Preston by-passes. The relevant ASTs are now each before the inquiry (IN6 and Wigglesworth Parish Meeting. A2). They clearly show that the safety case (a matter which seems of some particular concern to the County Council) was evaluated as part of the assessment. NATA assessments were undertaken for the Gargrave and Long Preston bypasses and were not overlooked as stated in the summary of Mr Ian Evans. 19. Thus the decision in this case must be made on the basis that it is not the Government's policy to build the Gargrave and Hellifield and Long Preston by-passes. 20. It is also Government policy to pursue a programme of de-trunking to restrict the network to a core one of roads of national significance rather than those of regional or local significance. The references are given in my opening submission. As this is Government policy it too is not open to challenge here. 21. The Government's view of the A65 is that it is not of national significance and should be de-trunked. Again the reference is in my opening submission. 22. That process will have to be carried forward by the making of a formal order(s) under section 10(2) of the Highways Act 1980 with an inquiry if necessary if objections are made. It is thus not the role of this inquiry to deal with de-trunking of the A65. I nevertheless did not object to Mrs Jones asking Mr Hornagold questions on this particular matter as fairness requires a reasonable degree of latitude to be extended to unrepresented objectors. Mr Hornagold made it entirely plain that he did not agree with Mrs Jones's views as to the status of the A65 and, insofar as it is necessary for me to make a submission on the matter, he explained well why it was a road to be regarded as serving no more than a regional or local function. 23. In this general connection, I would invite you to record that Mr Williams's evidence was that the County Council's position on the principle of the de-trunking of the A65 remains today as it was expressed in the 2001-2006 LTP – namely, that it accepts the de-trunking in principle, subject to appropriate funding. 24. I mention also in the context of de-trunking the following points which I raised in opening. 25. First, the revocation orders here would be pursued whether or not it was intended to de-trunk the A65 (see rebuttals. passim). That has not been challenged and should therefore be accepted. I do not need to repeat here the reference I made in paragraph 32 of my opening to paragraph 7.5 of A New Deal for Trunk Roads – D14. 26. Secondly, I stated in opening (paragraph 33) that it should not be thought that, in 1998, schemes were withdrawn from the national road programme because they were on roads which the Government thereafter intended to de-trunk. On the contrary, if schemes on routes to be de-trunked were selected for the TPI, the Government indicated that those schemes would be taken forward by the Highways Agency – see A New Deal for Trunk Roads – D14 – at pages 23 and 106. Mr Williams accepted the correctness of this. 27. Some of the objectors appeared a little disconcerted by the fact that my oral submission to the inquiry was that it was not a legal necessity for a revocation order to be pursued before a de-trunking order here. The legal submission is correct. What the objectors say (also correctly) is that in the original explanatory statement for these proposals it what said that revocation was necessary before de-trunking could be carried forward. At most this shows that the view I have taken may be different from that taken by someone else earlier. If so, so what? This point simply does not lead anywhere at all. No-one claims that anything turns on it. 28. I said in opening that objections to the revocation orders on the basis of the merits of the schemes enabled by the by-pass orders (which most objections were to a greater or lesser extent) were essentially founded on a disagreement with Government policy. In effect, such objections say that the by-passes should be built. They are either not relevant to this inquiry or, at least (being very generous), of limited weight. I see no reason to alter that assessment in the light of the evidence at the inquiry. 29. 1 then went on in my opening submission to make some general observations given the nature of the objections. 30. First, I stated that no-one (in which I included myself and the Highways Agency) would dispute that building the by-passes would bring benefits to the residents of Gargrave and Hellifield and Long Preston in terms of the traffic relief this would provide. Mr Hornagold fully and fairly acknowledged those benefits in evidence. They are not in dispute. But they are not the point. Not revoking the orders does not mean that the benefits will flow and, notwithstanding the benefits, it is not Government policy to build the by-passes. 31. Secondly, I stated that building the by-passes would have environmental disadvantages and would entail considerable costs. I do not believe that point to have been seriously in dispute either. 32. Thirdly, I stated that the decision whether or not to build a by-pass involves a complex balance of many different matters, benefits and disbenefits, as well as the economic case for it. The detailed work which assessed the by-passes when the by-pass orders were made in the early 1990's, and which would have addressed that balance by reference to the standards and methodologies of the times, is now out-of-date. It cannot simply be said that the overall case for the by-passes remains now as it once was, even if (as may be the case) some aspects of the case might not have changed. Again, it would seem to me that there has not really been any convincing case made against that proposition. 33. Fourthly, I stated that, by way of an example of that last point, it should not be forgotten that when Babtie Group, on behalf of North Yorkshire County Council, looked in 2002 at the schemes promoted in the by-pass orders they concluded: "Based on the assessment undertaken it would appear that the original HA schemes are no longer appropriate for the route. The environmental and economic assessment illustrated in the NA TA Appraisal Summary Tables (AST) shows the schemes provide relatively little benefit for the level of anticipated expenditure. The future role of the route as a de-trunked road would also suggest that the original design concept is no longer valid making the original scheme(s) no longer appropriate. Whilst the HA schemes remain as sound engineering designs they can no longer be considered as the favoured by-pass options. " (A65 Bypass Study Stage 2 Final Assessment – (OBJ) 1/0/8 – executive summary, page 5). 34.1 went on to add that, whilst the Highways Agency could take comfort from the enduring soundness of its engineering designs. Babtie's conclusions were very cold comfort indeed to those who maintained that the by-passes remained the right solution today. I would add to this now as follows. Babtie advised that matters should be advanced by looking at a package of measures which should include only minimum length schemes, developed as lower standard, low cost routes. They set out in a flow chart, which formed figure 3 of their Stage 2 Final Assessment, where things led to if the Highways Agency schemes were not considered. In that eventuality the outcome of the flow chart was revocation of the line orders. Babtie were thus saying that the logical conclusion of the course they were advising the County Council to take was the very conclusion which the County Council now resist. In line with their recommendations, Jacobs Babtie (as they had then become) produced the North Yorkshire County Council A65 Village Relief Study OBJ 1/0/9 in 2004, which looked at by-pass options which included only minimum length schemes. The County Council then. in 2005, asked Jacobs Babtie to look again at a COBA analysis which included the Highways Agency by-passes. This COBA analysis appears to show better economic results for the Highways Agency schemes than previously. However, there is nothing to indicate that Jacobs Babtie have ever resiled from the overall conclusions of their Stage 2 Final Assessment. Moreover. the new economic analysis can only be one part of the overall picture when one is considering a road scheme. There has simply not been, as Mr Williams has always acknowledged, any environmental assessment of the Highways Agency schemes to modern day standards. Ultimately the new COBA analysis does not matter anyway because of the point I make in the next paragraph. 35. Fifthly, I stated that, to tie back into the fundamental point. it was the Government's policy not to build the by-passes. It was for this inquiry to proceed on that basis. It was not the role of this inquiry to assess a present day case for the by-passes even if it had all the up-to-date information to do so, which it had not, although it does now (as above) have some more up to date economic analysis. Further, this inquiry does not have a roving brief to consider how problems on the A65 affecting Gargrave, Hellifield and Long Preston should be addressed. 36. The role of this inquiry remains as I described it in opening, to decide whether the revocation orders should be made in the light of government policy. 37. Before I turn to the case for the revocation orders, I should say a few words about the issue of need. The way in which the objections have been put has revealed a heavy reliance on the notion that the Highways Agency by-passes are needed in order to provide traffic relief to the communities affected. Even if this contention is correct, it does not advance the case much. I say "even if' to take account of the important qualification I make in paragraph 39 below.
38.
It is important to recognise that the ultimate question
which faces any decision-maker is not whether a by-pass is needed, it is
whether it should be built. To say that a by-pass is needed is to say no
more than that there is a good case for it in terms of the traffic
relief it would bring to the communities which would be by-passed. That
is not to say that the by-pass should be built because that is a
completely different question which has to look at the case for the
scheme in question with all the other schemes which are competing for
what, on any view, is a limited amount of funding. The 39. It must also be recognised that to say that a village needs a by-pass is not the same as saying that a particular by-pass scheme, is needed. In this case the County Council do not say that traffic relief can be brought to Gargrave, Hellifield and Long Preston only by the Highways Agency by-passes. They say that other by-pass schemes (which have been pursued on their behalf in some detail by Jacobs Babtie) might do the job and that it is unclear in overall terms which are the most appropriate options. So the County Council's evidence is effectively that it is possible that the Highways Agency's by-passes are the appropriate solution but it is equally possible that other solutions might be also. 40. I said in opening that the case for revocation was clear. There is simply no need for the by-pass orders. Retaining orders which serve no purpose is simply bad planning. unnecessarily sterilising land to protect routes for roads which have no reasonable prospect of being built. Hence no doubt was it said in A New Deal for Trunk Roads (D14) that "schemes not taken forward in the targeted programme of improvements will be dropped and route protection lifted where it is clear that they are either not an appropriate solution to the underlying problem or there is no prospect of the schemes being taken forward in the foreseeable future." 41. The benefits which flow from revocation are the obverse of this particular coin. They are (as I itemised them in opening): (i) the introduction of an element of finality to the schemes contained in the by-pass orders for all to see (the formulation specifically recognised in the Studley decision letter – (D26) - by the Secretaries of State at paragraph 10, notwithstanding the inspector's doubts on the matter); (ii) the removal of statutory blight (as recognised in some of the recent statements in support of the revocation orders); (iii) the removal from the Highways Agency of the burden of property management (and the risk of loss of value of that property) at public expense. 42. No challenge has been mounted by the County Council either to the existence of these benefits or the scale of them. 43. Mr Evans makes the general point that the benefits seem pretty small beer compared with the benefits which would accrue if the by-pass were built. (Incidentally, in making this point he answers one of his own questions, which is what the inquiry can debate if government policy that the by-passes are not to be built is not to be questioned. It can certainly debate the scale of the benefits flowing from revocation, but its scope is not limited to that). Mr Evans's argument is plausible but does not withstand close scrutiny. If the revocation orders are made the benefits that they will bring, whatever they are, will assuredly be realised. On the other hand, not making the revocation orders would not of itself bring about the benefits which would accrue to residents if the by-passes were to be built. At best, it would simply allow the possibility of the by-passes being built at some indeterminate time in the future. 44. Mr Evans has also argued that not much weight can be attached to the removal of planning uncertainty in the case of the Hellifield and Long Preston by-pass because there is not much development which could have taken place anyway (and which could have been affected by the uncertainty) given the agricultural land through which this by-pass line runs. I would say in response to this that the Secretaries of State in the Studley decision letter gave weight to the very fact of the introduction of an element of finality to the scheme. If that was the case there, it should be the case here no matter what development might otherwise have taken place in the absence of the by-pass orders. The next point is not an answer to the objector's point as such but it is an argument that the objector cannot have it both ways. If Mr Evans is correct that there is little chance of any development taking place on the by-pass line, that must give rise to a corresponding reduction in the weight which one would attach to the argument that the line should be protected to guard against development impeding it. 45. As to blight, I remind the inquiry as to what I have already said in paragraph 14 above. 46. As to the loss on property acquired, document IN3 shows that the sums involved have been far from insignificant. Further, remote management of property, as Mr Hornagold explained, runs the inherent risk of inefficiency. All costs involved are at public expense. 47. In opening I posed the question as to what the material case against revocation really consisted of. 48. I answered my own question by saying that what it really consisted of was that the by-passes might possibly still be built and that the route protection which the by-pass orders offered should not be lost through revocation. In short, there should be a safeguarding against a possibility. I submit that that remains an entirely accurate way of encapsulating the case against revocation. 49. The Highways Agency says that the chances that the by-passes will be built cannot be put any higher than a possibility. There is no real disagreement about this. The County Council do not put the case that the by-passes will be built any higher than a possibility. They could hardly do otherwise when they can offer no evidence to contradict the position which the Highways Agency put before the inquiry which is that current Government policy is not to build the by-passes and there is no indication that the Government intends to change that policy. Likewise, the County Council could hardly put the case that the by-passes will be built higher than a possibility when they have taken the by-passes out of their Local Transport Plan for 2006-2011. 50. Mr Evans says that when he uses the word possibility in connection with the prospects for the Hellifield and Long Preston by-pass he does not mean a small chance. Nevertheless, he does not put the chances as high as probability. 51. In truth, the highest the by-passes' chances of being built are to be put is possibility. The only matter which opens the door even to possibility is the fact that a change of mind on the part of the Government cannot be excluded. On present policy there is no possibility of the by-passes being built. Policy would have to change. Neither can the by-passes presently be built under the LTP route of the County Council because the LTP does not include the by-passes. 52. There is also a double helping of possibility because, whilst the Highways Agency by-passes might be the right solution to the traffic problems of Gargrave, Hellifield and Long Preston, other solutions might also be appropriate (because different b)-passes might be the right solution). So the objection case is really one where what is said is that the effect of revocation is that it might possibly stop being built what is only one possible solution to traffic problems in the villages. That is no basis on which to sterilise land through orders continuing in force. 53. No respectable system of safeguarding land would contemplate safeguarding on this basis. Craven District Council's evidence shows this very clearly. The Council, who are the planning authority for the area of the by-passes, regard it as their responsibility to safeguard land for highway improvement schemes in appropriate circumstances (IN5). Given the status of the by-passes when the plan was adopted in 1999, the Council did not regard their responsibility to safeguard as being engaged. The by-passes were not in the national road programme and it was unlikely that they could be implemented in the LTP period to 2006. Today the situation remains that the by-passes are outside the national road programme and they are not in the LTP to 2011 either. Craven ask for the by-pass lines to be safeguarded in circumstances where, as a planning authority, they would not safeguard. The District Council's case is inconsistent with their own policy whilst their own policy shows clearly that schemes whose prospects are as slender as these should not give rise to safeguarding land. 54. I said in opening that the substantive issue really must come down to route protection because the by-passes could not be built anyway simply on the basis of the present by-pass orders. Fresh compulsory purchase orders would be needed as the present ones have lapsed. One could also all too easily imagine, I said, an objector to a new CPO arguing that there is no compelling case in the public interest for building the by-passes because the by-pass orders are based on out-dated assessments, not least the lack of an environmental assessment passing modem day muster. Mr Williams confirmed that the by-pass orders would not be sufficient to allow the by-passes to built and that there was no environmental assessment to the standard presently required. He went further and indicated that, if the County Council were to build the by-passes, they would need to go through a whole new set of processes. Thus it certainly does all boil down to the question of route protection. 55. The main thrust of what I say is to argue that the route sought to be protected does not have a sufficient, or any prospect, of implementation in the foreseeable future to warrant protection by continuation of, the orders. There are 2 other points about the objective of route protection itself which, however, deserve to be made. The first is the weight which should attach to that objective in the circumstances of the case, as opposed to the strength of the route for which that objective is said to be desirable. I here make again the point I made in paragraph 44 above (about the extent to which there is a threat of development to the land which forms the physical resource for the route). The second is that the by-pass orders are not the only mechanism for achieving route protection. Craven District Council could achieve that route protection through their local planning process if they so choose. They retain that freedom and can respond to change as they prepare their LDF. If they do not think route protection appropriate in principle by that method then no-one else should think it is appropriate by any other method. 56. I return to the main theme. I said in opening that it would not do to argue that route protection should be maintained to safeguard against a possibility and that the proper test was whether there was a reasonable prospect of the by-passes being built in the foreseeable future. My submission then was that there was no such prospect. I maintain that submission as I maintain the submission that the history of the case shows, in truth, that the by-passes are further away from being built now than ever they were. 57. I said in opening that it was no answer to say that the Government might change its mind. All that the cross examination of Mr Hornagold really amounted to was that the Government might change its mind and that the schemes could come into the TPI at some unspecified point in the future or that it might otherwise decide that the by-passes should be built. It is possible that the Government might change its mind, notwithstanding that it has not changed its mind since 1998 over a period approaching 8 years. One could say that it was possible that the Government might change its mind in just about any case one could care to think of. However, there is no evidence that the Government intends to change its policy in relation to building the by-passes in this case or that there is any prospect of that. There is no reason to think that an inspector's report in this case which recommended that the orders should not be made would lead the Government to reconsider its policy decision that the by-passes are not to be built. It is even less of a case to say that a future Government might take a different view. That is to heap speculation on speculation. As the inspector recognised in the Studley case (report (D25), paragraph 86), he had to "take account of current Government policy and consider the implications of the Revocation Orders in that context only." 58. There is no scope for playing about with words in this case. To say that it is possible at some indeterminate future time that there might be a change of policy is not to show that a scheme has prospects of being taken forward in the foreseeable future. It does not in any way alter that conclusion if it is pointed out that the TPI operates over a 10 year period. 59. As for the County Council building the by-passes on the by-pass order lines, I said in opening that this was simply not something which there was any evidence would happen. I said I was leaving aside any potential technicalities here and simply concentrating on the practicalities. I identified the potential technicalities as relating to the fact that section 10 of the Highways Act – which authorises the line orders – is a power given to the Minister alone. It may perhaps be more accurate to say now that the potential technicalities and practicalities actually merge together because the County Council's evidence is that they would have to put a whole new set of processes in place anyway if they were to build the by-passes. 60. I then went through the chronology of matters indicating how route protection was maintained whilst studies were carried out to assess the inclusion of the schemes within the first LTP. That chronology has been explored in evidence with Mr Williams and is accurate as set out in my opening. I do not need to rehearse it here. 61.I argued (paragraph 53) that the necessary implication of the policy found in paragraph 7.5 of A New Deal for Trunk Roads (D14) was that, if and when it became tolerably clear that schemes would not be taken forward as part of the local transport plan, there could be no continuing basis for maintaining route protection and that that position has been reached here. I maintain those submissions. 62. The "bottom line" is that North Yorkshire County Council's Local Transport Plan 2006-2011 (OBJ) 1/0/11 does not include either the Gargrave or the Hellifield and Long Preston by-passes. Mr Williams candidly recognises in his evidence (paragraph 6.6) that were the County Council "to include any of the A65 Schemes in their programme it is likely that this would require the removal of one or more of the major schemes currently in the programme." In other words, I said in opening, the County Council had prioritised other schemes ahead of the Gargrave and Hellifield and Long Preston by-passes and there was no mechanism in the Local Transport Plan 2006-2011 to advance the construction of the by-passes. That remains the position on the evidence although Mr Williams says that the reason for this state of affairs is that the by-passes were not included because they could not be implemented within the timeframe of the plan. It is a little surprising that Mr Williams seemed under cross examination to downplay lack of funding as the reason for the non-appearance of the by-passes in the LTP given what he said in paragraph 6.5 of his proof ("highly unlikely that funding for any of the A65 bypass schemes (including the shorter options) would be made available to the County Council"). That is, however, simply a detail. The by-pass schemes are not in the LTP for whatever reason and there is therefore no local highway authority mechanism for their delivery. 63. I submit that for LTP purposes the extent of the foreseeable future should be no more than the timeframe of the plan. Foreseeability in this context should be defined by reference to the periods to which the plans themselves work. 64. As I said in opening, what it comes down to is that the County Council have no current plans to build the by-passes whilst the Government currently plans not to. 65. In those circumstances there is no prospect of the by-passes being taken forward in the foreseeable future and it is no real basis to object to the revocation orders on the grounds that something might nevertheless turn up to allow the by-passes to be built. 66. Accordingly, the Highways Agency respectfully asks that your recommendation is that the orders are made as drafted.
Kings
Chambers |
