Closed call for evidence

Review of transport infrastructure legislation: definitions for highway and railway Nationally Significant Infrastructure Projects in the Planning Act 2008

Published 7 March 2024

Applies to England

Executive summary

On 4 October 2023, the Prime Minister announced plans to transform British transport. The Network North command paper outlined plans for reinvesting the £36 billion saved from HS2 beyond Birmingham in the roads, buses, and railways people use every day.  

To support the delivery of Network North and seek more effective delivery of future transport projects, the government committed to review transport infrastructure legislation to ensure that it supports proportionate processes for consenting road and rail projects.

Major road and rail transport projects use a number of different regimes for securing planning and consenting approvals depending on their size, scale and likely impacts.

The Planning Act 2008 sets out the definition for highways and railway projects that are considered as Nationally Significant Infrastructure Projects and must be consented via a development consent order.

This call for evidence seeks views on whether the current definitions for highways and railway projects in the Planning Act 2008 will result in future transport projects being able to access consenting processes that are proportionate to the project.

Background

The government is committed to delivering the infrastructure projects this country needs to achieve net zero and deliver the transport connectivity which supports economic growth and levelling up across the UK. The government is working to ensure it tackles congestion and overcrowding by modernising transport infrastructure even more quickly in the future. As a result, it needs to ensure the requisite consenting processes are effective and resilient. 

Major road and rail transport projects use a number of different regimes for securing planning and consenting approvals depending on their size, scale, and likely impacts.

The Planning Act in section 22 sets out the definition for highways projects that will be considered as Nationally Significant Infrastructure Projects and therefore require a development consent order. Highway projects that fall outside of the Planning Act definition will typically require consent under the Highways Act 1980 regime.

The Planning Act in section 25 sets out the definition for railway projects that will be considered as Nationally Significant Infrastructure Projects and therefore require a development consent order. Railway projects that fall outside of the Planning Act definitions will typically require consent under the Transport and Works Act 1992 regime.

Work is already underway across government to get Great Britain building again, as announced in November 2023, and to implement the Nationally Significant Infrastructure Project (NSIP) action plan, launched in February 2023. The action plan sets out reforms to the NSIP regime, the consenting process created by the Planning Act 2008, that will ensure the system can support our future infrastructure needs by becoming better, faster, greener, fairer and more resilient.

As part of the Network North commitments, the government recently announced a review of transport infrastructure legislation to ensure that infrastructure planning systems are supporting proportionate processes for consenting road and rail projects. This is to include reviews of the Transport and Works Act, the Highways Act 1980, and thresholds within the Planning Act 2008 to ensure systems are up to date and ready to meet the demands of modern infrastructure delivery.

The government has commenced work to review the Highways Act and Transport and Works Act regimes to ensure that they are up to date and provide proportionate processes. The coordination of this work will be crucial to enabling the government to fully understand the dependencies and therefore identify opportunities to reduce the excessive or unnecessary burdens on stakeholders.

This call for evidence is looking to understand if the definitions of highways and railways in the Planning Act 2008 capture appropriate projects and would allow future projects to access consenting processes that are proportionate to the project. The government is seeking views on whether there are changes to the definitions that could enable certain road and rail projects to be consented under a more proportionate regime to the size, scale and/or likely impacts of a project.

Purpose of call for evidence

The definitions in the Planning Act 2008 for highways and railways have not been reviewed since 2013. At that time, the review sought to restrict the act’s ambit to developments which could appropriately be considered nationally significant and to avoid capturing developments which were not.

Since 2013, over 40 railway or highway-related projects have now passed through or are in the pre-application stages of the Planning Act 2008. With each project, the government is gathering more experience of the application of the definitions.

Investment and economic growth can be hampered by lengthy and disproportionate processes. Developers can be faced with excessive burdens in trying to deliver small, less complex or discrete but still important transport infrastructure improvements.

Enabling transport projects to access proportionate consenting processes would reduce or remove excessive burdens and developers are likely to benefit from time and cost savings. This could enable wider economic benefits to be realised earlier and quicker contributing to economic growth both locally and nationally. 

The government wants to ensure that transport infrastructure legislation is fit for purpose and that the definitions in the Planning Act 2008 enable road and rail projects to be consented as quickly as possible via the most proportionate route for that project.

Roads – Section 22, Planning Act 2008

The text for section 22 of the Planning Act 2008 is provided in this section of this document.

The current definition for highway-related projects in section 22 sets out 3 categories of highway-related development: construction, alteration and improvement.

For construction and alteration of highways located wholly in England and where the Secretary of State (or National Highways) is or will be the highway authority, the definition sets out a size threshold (area of development) related to the classification and speed limit of the road. The definition sets out the way that the area of development should be calculated.

For highway improvement projects located wholly in England and where the Secretary of State or National Highways is the highway authority, the definition states that where the improvement is likely to have a significant effect on the environment the project would require a development consent order.

Changing the definitions in section 22 could have a range of effects.

For example, amending the definition of ‘area of development’ to only include the land on which the highway is to be constructed or the part of the highway that is to be altered would result in some projects being determined under the Highways Act 1980 instead of the Nationally Significant Infrastructure Projects regime.

Similarly increasing the relevant limit of hectares for the different classifications of roads could mean that some projects would move into the Highways Act 1980 regime.

Amending the definition of the highway authority could extend the requirement for a development consent order to projects proposed on roads for which the Secretary of State for Transport or National Highways is not the highways authority.

This call for evidence specifically relates to definitions that apply to England. No changes are proposed or requested to sections 22(2)(a), (3)(a) and (5)(a) in which the text reads ‘wholly in England.’

These questions are included here so you can read them in context. See the Ways to respond section of the GOV.UK home page for this call for evidence for an online response form and other ways to respond.

Question 1 – Do you agree or disagree that the current definition for highway projects that must be consented via a development consent order should be changed?

The core definitions that determine if the construction or alteration of a highway that is wholly in England and where the Secretary of State (or National Highways) would be the highways authority would require a development consent order are:

• the construction or alteration of a motorway where the area of development is 15 hectares or larger
• the construction or alteration of a highway other than a motorway where the speed limit for any class of vehicle is expected to be 50mph or greater and the area of development is 12.5 hectares or larger
• the construction or alteration of any other highway and the area of development is 7.5 hectares or larger

Question 2 – Do you agree or disagree that:

a. Size limits in relation to the construction or alteration of a motorway should be higher than 15 hectares?
b. Size limits in relation to the construction or alteration of a highway other than a motorway, where the speed limit for any class of vehicle is expected to be 50 miles per hour or greater should be higher than 12.5 hectares?
c. Size limits in relation to the construction or alteration of any other highways should be higher than 7.5 hectares?

Please explain your reasoning and provide suggestions for what any revised size limits should be.

Question 3 – What, if any, alternative criteria for defining highways projects that must be consented via a development consent order do you think should be used?

Question 4 – Do you agree or disagree that the changes you have suggested to the definitions would result in cost and time savings? If so, please provide evidence.

Question 5 – If changes were proposed that led to a greater number of highways projects being progressed under the Highways Act regime, what, if any, changes do you think would be required to the Highways Act 1980 to accommodate this?

Question 6 – If changes were proposed that led to a greater number of highways projects being progressed under the Highways Act regime, what, if any, unintended consequences, including consideration of resource implications and environmental impacts, might result from this?

Rail – section 25, Planning Act 2008

The text for section 25 of the Planning Act 2008 is provided in this section of this document.

The current definition for railway projects in section 25 sets out 2 categories of railway development: construction and alteration.

Where the railway is wholly located in England and will be or is part of a network operated by an approved operator, the definition sets out a series of metrics in respect of continuous length of track and the status of the land works take place on.

Amending the definitions or other parts of section 25 could have a range of effects. For example, seeking to increase the continuous length of track threshold would result in some projects being determined under the Transport and Works Act regime instead of the Planning Act 2008.

Amending the conditions that define an approved operator could extend the requirement for a development consent order over railway projects being promoted by organisations other than Network Rail.

This call for evidence specifically relates to definitions that apply to England. No changes are proposed or requested to sections 25(1)(a) and (2)(a) in which the text reads ‘wholly in England.’

These questions are included here so you can read them in context. See the Ways to respond section of the GOV.UK home page for this call for evidence for an online response form and other ways to respond.

Question 7 – Do you agree or disagree that the current definition for railway projects to be consented via a development consent order in the Planning Act 2008 should be changed?

Question 8 – Do you agree or disagree that:

a. the continuous length of track to be constructed should be longer than 2 kilometres?
b. the continuous length of track to be altered should be longer than 2 kilometres?

Please explain your reasoning and provide revised wording where possible.

Question 9 – What, if any, alternative criteria for defining railway projects that must be consented via a development consent order under the Planning Act 2008 do you think should be used?

Question 10 – Do you agree that the changes you have suggested to the definitions would result in cost and time savings? If so, by how much?

Question 11 – If changes were proposed that led to a greater number of railway projects being progressed under the Transport and Works Act regime, what, if any, changes do you think would be required to the Transport and Works Act to accommodate this?

Question 12 – If changes were proposed that led to a greater number of railway projects being progressed under the Transport and Works Act regime, what, if any, unintended consequences, including consideration of resource implications and environmental impacts, might result from this?

Planning Act 2008 – section 35

The text for section 35 of the Planning Act 2008 is provided in this section of this document.

Section 35 of the Planning Act 2008 provides a route for projects that do not fit the definitions in the act but that seek to apply for a direction from the Secretary of State to be treated as development for which development consent is required. Section 35 sets out the criteria a project would need to satisfy in order to apply to be considered as a project of national significance.

The ‘section 35 route’ appears relatively infrequently used for transport projects. Where a section 35 route has been sought and granted for road and rail projects, the applicant would have fallen outside of the Planning Act 2008 definitions.

Question 13 – What view, if any, do you have on the future use of section 35 provisions for projects in the field of transport that could inform the definitions for:

a. highway-related projects that will require a development consent order?
b. railway projects that will require a development consent order?

Wider transport context

The government has committed to reviewing transport infrastructure legislation with a focus on road and rail projects.

In the wider transport sector, the Planning Act 2008 also provides definitions for strategic rail freight interchanges, ports and airports. This call for evidence is focusing on the definitions for road and rail in the Planning Act 2008.

Question 14 – If you have any other comments about the definitions of transport projects in the Planning Act 2008 not already covered by the questions in this call for evidence, please let us know.

How to respond

See the Ways to respond section of the GOV.UK home page for this call for evidence to find out how you can respond.

The consultation period began on 7 March 2024 and will run until 5 April 2024. Please ensure that your response reaches us before the closing date.

What will happen next

A summary of responses, including the next steps, will be published on GOV.UK. Paper copies will be available on request.

If you have questions about this call for evidence please contact:

Planning Policy, Housing and Transport 
Department for Transport 
Floor 1, Great Minister House 
33 Horseferry Road x
London 
SW1P 4DR

Full list of questions

These questions are included here so you can see an overview of what we are asking. See the Ways to respond section of the GOV.UK home page for this call for evidence for an online response form and other ways to respond.

Question 1 – Do you agree or disagree that the current definition for highway projects that must be consented via a development consent order should be changed?

Question 2 – Do you agree or disagree that:

a. size limits in relation to the construction or alteration of a motorway should be higher than 15 hectares?
b. size limits in relation to the construction or alteration of a highway other than a motorway, where the speed limit for any class of vehicle is expected to be 50 miles per hour or greater should be higher than 12.5 hectares?
c. size limits in relation to the construction or alteration of any other highways should be higher than 7.5 hectares?

Please explain your reasoning and provide suggestions for what any revised size limits should be.

Question 3 – What, if any, alternative criteria for defining highways projects that must be consented via a development consent order do you think should be used?

Question 4 – Do you agree or disagree that the changes you have suggested to the definitions would result in cost and time savings? If so, please provide evidence.

Question 5 – If changes were proposed that led to a greater number of highways projects being progressed under the Highways Act regime, what, if any, changes do you think would be required to the Highways Act 1980 to accommodate this?

Question 6 – If changes were proposed that led to a greater number of highways projects being progressed under the Highways Act regime, what, if any, unintended consequences, including consideration of resource implications and environmental impacts might result from this?

Question 7 – Do you agree or disagree that the current definition for railway projects to be consented via a development consent order in the Planning Act 2008 should be changed?

Question 8 – Do you agree or disagree that:

a. the continuous length of track to be constructed should be longer than 2 kilometres?
b. the continuous length of track to be altered should be longer than 2 kilometres?

Please explain your reasoning and provide revised wording where possible.

Question 9 – What, if any, alternative criteria for defining railway projects that must be consented via a development consent order under the Planning Act 2008 do you think should be used?

Question 10 – Do you agree that the changes you have suggested to the definitions would result in cost and time savings? If so, by how much?

Question 11 – If changes were proposed that led to a greater number of railway projects being progressed under the Transport and Works Act regime, what, if any, changes do you think would be required to the Transport and Works Act to accommodate this?

Question 12 – If changes were proposed that led to a greater number of railway projects being progressed under the Transport and Works Act regime, what, if any, unintended consequences, including consideration of resource implications and environmental impacts might result from this?

Question 13 – What view, if any, do you have on the future use of section 35 provisions for projects in the field of transport that could inform the definitions for:

a. highway-related projects that will require a development consent order?
b. railway projects that will require a development consent order?

Question 14 – If you have any other comments about the definitions of transport projects in the Planning Act 2008 not already covered by the questions in this call for evidence, please let us know.

Text from Planning Act 2008: section 22 Highways

(1) Highway-related development is within section 14(1)(h) only if the development is — 

(a) construction of a highway in a case within subsection (2), 

(b) alteration of a highway in a case within subsection (3), or 

(c) improvement of a highway in a case within subsection (5). 

(2) Construction of a highway is within this subsection only if— 

(a)the highway will (when constructed) be wholly in England, 

(b) the Secretary of State  [or a strategic highways company] will be the highway authority for the highway, and 

(c) the area of development is greater than the relevant limit set out in subsection (4). 

(3) Alteration of a highway is within this subsection only if— 

(a) the highway is wholly in England, 

(b) the Secretary of State  [or a strategic highways company] is the highway authority for the highway, and 

(c) the area of development is greater than the relevant limit set out in subsection (4). 

(4) For the purposes of subsections (2)(c) and (3)(c) the relevant limit — 

(a) in relation to the construction or alteration of a motorway, is 15 hectares, 

(b) in relation to the construction or alteration of a highway, other than a motorway, where the speed limit for any class of vehicle is expected to be 50 miles per hour or greater, is 12.5 hectares, and 

(c) in relation to the construction or alteration of any other highway is 7.5 hectares. 

(5) Improvement of a highway is within this subsection only if— 

(a) the highway is wholly in England, 

(b) the Secretary of State  [or a strategic highways company] is the highway authority for the highway, and 

(c) the improvement is likely to have a significant effect on the environment. 

(6) Highway-related development does not fall within section 14(1)(h) if— 

(a) an order mentioned in section 33(4) has been made in relation to the development before 1 March 2010, 

(b) a further order is needed in relation to the development, and 

(c) not more than 7 years have elapsed since the making of the earlier order. 

(7) Alteration of a highway is not within section 14(1)(h) if 

(a) planning permission has been granted for a development, 

(b) the alteration is necessary as a result of the development, and 

(c) the developer has asked for the alteration to be made to the highway. 

(8) Alteration of a highway is not within section 14(1)(h) if— 

(a) an order mentioned in section 33(4) has been made in relation to local highway works, 

(b) the alteration is necessary as a result of the local highway works, and 

(c) the local highway authority responsible for the local highway works has asked for the alteration to be made to the highway. 

(9) In this section— 

• “area of development” — 

(a) in relation to construction of a highway, means the land on which the highway is to be constructed and any adjoining land expected to be used in connection with its construction; 

(b) in relation to alteration of a highway, means the land on which the part of the highway to be altered is situated and any adjoining land expected to be used in connection with its alteration; 

• “local highway authority” has the meaning given by section 329(1) of the Highways Act 1980; 
• “local highway works” means works carried out by or on behalf of a local highway authority in relation to a highway for which it is the highway authority (and the local highway authority is referred to in this section as “responsible” for those works); 
• “motorway” means a highway which is a special road in accordance with section 16 of the Highways Act 1980. 
• “strategic highways company” means a company for the time being appointed under Part 1 of the Infrastructure Act 2015. 

Text from Planning Act 2008 section 25 Railways

(1) Construction of a railway is within section 14(1)(k) only if— 

(a) the railway will (when constructed) be wholly in England, 

(b) the railway will (when constructed) be part of a network operated by an approved operator, 

(ba) the railway will (when constructed) include a stretch of track that— 

(i) is a continuous length of more than 2 kilometres, and 

(ii) is not on land that was operational land of a railway undertaker immediately before the construction work began or is on land that was acquired at an earlier date for the purpose of constructing the railway, and 

(c) the construction of the railway is not permitted development. 

(2) Alteration of a railway is within section 14(1)(k) only if— 

(a) the part of the railway to be altered is wholly in England, 

(b) the railway is part of a network operated by an approved operator, 

the alteration of the railway will include laying a stretch of track that— 

(i) is a continuous length of more than 2 kilometres, and 

(ii) is not on land that was operational land of a railway undertaker immediately before the alteration work began or is on land that was acquired at an earlier date for the purpose of the alteration, and 

(c) the alteration of the railway is not permitted development. 

(2A) Construction or alteration of a railway is not within section 14(1)(k) to the extent that it takes place on the operational land of a railway undertaker unless that land was acquired for the purpose of the construction or alteration. 

(3) Construction or alteration of a railway is not within section 14(1)(k) to the extent that the railway forms part (or will when constructed form part) of a rail freight interchange. 

(4) “Approved operator” means a person who meets the conditions in subsections (5) and (6). 

(5) The condition is that the person must be— 

(a) a person who is authorised to be the operator of a network by a licence granted under section 8 of the Railways Act 1993 (c. 43) (licences for operation of railway assets), or 

(b) a wholly-owned subsidiary of a company which is such a person. 

(6) The condition is that the person is designated, or is of a description designated, in an order made by the Secretary of State. 

(7) In this section— 

• “network” has the meaning given by section 83(1) of the Railways Act 1993 (c. 43); 
• “operational land” has the same meaning as in the TCPA 1990; 
• ‘permitted development’ means development in relation to which planning permission is granted by article 3 of the Town and Country Planning (General Permitted Development) Order 1995; 
• “railway undertaker” has the same meaning as in Part 17 of Schedule 2 to the Town and Country Planning (General Permitted Development) Order 1995; 
• “wholly-owned subsidiary” has the same meaning as in the Companies Act 2006 (c. 46) (see section 1159 of that Act). 

(8) In the definition of “permitted development” in subsection (7), the reference] to the Town and Country Planning (General Permitted Development) Order 1995 is to that Order as it has effect immediately before the day on which this section comes fully into force. 

Text from Planning Act 2008: section 35  

1) The Secretary of State may give a direction for development to be treated as development for which development consent is required. 

This is subject to the following provisions of this section and section 35ZA. 

(2) The Secretary of State may give a direction under subsection (1) only if— 

(a) the development is or forms part of— 

(i) a project (or proposed project) in the field of energy, transport, water, waste water or waste, or 

(ii) a business or commercial project (or proposed project) of a prescribed description, 

(b) the development will (when completed) be wholly in one or more of the areas specified in subsection (3), and 

(c) the Secretary of State thinks the project (or proposed project) is of national significance, either by itself or when considered with— 

(i) in a case within paragraph (a)(i), one or more other projects (or proposed projects) in the same field; 

(ii) in a case within paragraph (a)(ii), one or more other business or commercial projects (or proposed projects) of a description prescribed under paragraph (a)(ii). 

(3) The areas are— 

(a) England or waters adjacent to England up to the seaward limits of the territorial sea; 

(b) in the case of a project for the carrying out of works in the field of energy, a Renewable Energy Zone, except any part of a Renewable Energy Zone in relation to which the Scottish Ministers have functions. 

(4) The Secretary of State may give a direction under subsection (1) only with the consent of the Mayor of London if— 

(a) all or part of the development is or will be in Greater London, and 

(b) the development is or forms part of a business or commercial project (or proposed project) of a description prescribed under subsection (2)(a)(ii). 

(5) Regulations under subsection (2)(a)(ii) may not prescribe a description of project which includes the construction of one or more dwellings.

Freedom of information

Information provided in response to this call for evidence, including personal information, may be subject to publication or disclosure in accordance with the Freedom of Information Act 2000 (FOIA) or the Environmental Information Regulations 2004.

If you want information that you provide to be treated as confidential, please be aware that, under the FOIA, there is a statutory code of practice with which public authorities must comply and which deals, amongst other things, with obligations of confidence.

In view of this it would be helpful if you could explain to us why you regard the information you have provided as confidential. If we receive a request for disclosure of the information, we will take full account of your explanation, but we cannot give an assurance that confidentiality can be maintained in all circumstances. An automatic confidentiality disclaimer generated by your IT system will not, of itself, be regarded as binding on the department.

The department will process your personal data in accordance with the Data Protection Act (DPA) and in the majority of circumstances this will mean that your personal data will not be disclosed to third parties.

Data protection

The Department for Transport (DfT) is carrying out this call for evidence to understand if the definitions of highways and railways in the Planning Act 2008 capture appropriate projects and would allow future projects to access consenting processes that are proportionate to the project.

View our DfT online form and survey privacy notice for more information on how your personal data is processed in relation to this survey.

In addition to the information outlined in the privacy notices, we are asking for the name and type of your organisation.

Consultation principles

This call for evidence is being conducted in line with the government’s consultation principles.

If you have any comments about the process, contact:

Consultation Co-ordinator
Department for Transport
Zone 1/29 Great Minster House
London SW1P 4DR

Email consultation@dft.gsi.gov.uk.