DfT decision letter 30.03.09

Ellis Harvey Head of TWA Orders Unit Department for Transport Zone 9/09, Southside 105 Victoria Street London SW1E 6DT

Bircham Dyson Bell LLP Solicitors and Parliamentary Agents 50 Broadway Westminster London SW1H 0BL

Enquiries: 020 7944 4506 Fax: 020 7944 9637 E-Mail: transportandworksact@dft.gsi.gov.uk Web Site: www.dft.gov.uk Our Ref: TWA/07/APP/01 Your Ref: RJO/B026797 30 March 2009

Dear Sirs, TRANSPORT AND WORKS ACT 1992 TOWN AND COUNTRY PLANNING ACT 1990 APPLICATIONS FOR THE PROPOSED NOTTINGHAM EXPRESS TRANSIT SYSTEM ORDER AND FOR DEEMED PLANNING PERMISSION 1. I am directed by the Secretary of State for Transport to say that consideration has been given to the reports of the Inspector, Mr Robert M Barker BEng(Hons) CEng MICE FIHT, concerning the applications made by your clients, Nottingham City Council and The Nottinghamshire County Council ("the promoters"), for : a. the Nottingham Express Transit System Order (“the Order”) to be made under sections 1, 3 and 5 of the Transport and Works Act 1992 (“the TWA”); and b. a direction as to deemed planning permission for the development provided for in the Order, to be issued under section 90(2A) of the Town and Country Planning Act 1990.

2. The Inspector held a public local inquiry into these applications between 6 November and 21 December 2007 and on 9 and 10 October 2008.

3. The Order, if made, would authorise the promoters to construct and operate two extensions to the existing Nottingham Express Transit system ("NET Line One"). The extensions (known collectively as "NET Phase Two") would run from Nottingham city centre to Clifton via Wilford and from the city centre to Chilwell via the Queen's Medical Centre and Beeston. For those purposes the proposed Order would, among other things, authorise the acquisition and use of land compulsorily or by agreement, interference with and alteration of rights of way and imposition of traffic regulation measures. It also includes provisions relating to the continued operation and maintenance of NET Line One. 4. Enclosed with this letter are copies of the Inspector’s main report, dated 15 August 2008, and of his supplementary report, dated 18 December 2008. His conclusions are set out in section 7 of the main report and in section 7 of his supplementary report. His recommendations are set out at section 8 of his supplementary report.

Summary of the Inspector’s recommendations 5. The Inspector recommended that the Order be made, with the modifications in inquiry document NET.A39, and that deemed planning permission be granted for the development proposed in the Order, subject to the conditions set out in Appendix C to his main report.

Summary of the Secretary of State’s decisions 6. For the reasons given in this letter, the Secretary of State has decided to make the Order, with modifications, and to direct that planning permission be deemed to be granted, subject to the conditions set out in Annex 1 to this letter.

Linked applications and decisions 7. Concurrently with the inquiry into the TWA Order held in November and December 2007, the Inspector held an inquiry into your clients’ related applications to the Secretary of State for Communities and Local Government (“SoS/CLG”) for listed building and conservation area consents under the Planning (Listed Buildings and Conservation Areas) Act 1990. The SoS/CLG has decided to grant these consents subject to conditions, as set out in a separate letter issued today by the Government Office for the West Midlands. The Inspector also held an inquiry, in October 2008, into one of the applications made by your clients for exchange land certificates, as referred to in paragraph 47 below, in relation to areas of open space that are to be compulsorily acquired for the purposes of NET Phase 2. The SoS/CLG has decided to give the requested exchange land certificates, as set out in a letter issued today by the Government Office for London.

Post-inquiry representations and re-opening of inquiry 8. The Secretary of State has considered the written representations sent to him since the inquiry initially closed on 21 December 2007. With the exception of those referred to at paragraph 9 below, he takes the view that nothing in the representations constitutes new evidence, or raises a new issue, which needs to be referred to the parties to the inquiry before he proceeds to a decision. They do not cause him to take a different view of the matters before him than he would otherwise have taken based on the evidence before the inquiry.

9. Among the representations received following the initial closure of the inquiry, three contained evidence about the presence of birds at the proposed Clifton park and ride site which had not been available at the time of the inquiry and which had not been taken into account by the Inspector. The Secretary of State considered that these letters contained significant new environmental information which required further investigation. The inquiry was accordingly re-opened on 9 October 2008 so that the likely impact of the scheme on the bird species recorded at Clifton and their habitat could be considered before a decision was made. This issue is addressed at paragraphs 40-44 below.

Secretary of State’s consideration 10. Careful consideration has been given to all the arguments put forward by, or on behalf of, the parties. The Secretary of State’s consideration of the Inspector’s reports is set out in the following paragraphs, which include a summary of the Inspector’s conclusions on each main issue. References to numbers in brackets are to relevant paragraphs of the

reports, with those prefixed by “SUP” referring to paragraphs in the Inspector’s supplementary report.

Aims and objectives of, and the need for, the scheme 11. The Inspector noted that peak hour traffic congestion in Greater Nottingham restrained existing road-based public transport and had negative implications for the local economy, for local accessibility and for social exclusion in some of the City's more deprived wards. Planned significant growth in the number of households and in the economy of Greater Nottingham was threatened by the growing imbalance between existing transport capacity and forecast demand growth (7.2). The Inspector was satisfied that the NET Phase Two proposals, by their segregated nature, would offer significant enhanced public transport capacity, thereby addressing that imbalance (7.7).

12. The Inspector reported that there was evidence from NET Line One and elsewhere that tram systems acted as catalysts for redevelopment and regeneration, and he noted that NET Phase Two would directly serve and assist significant development sites (7.47.5). Furthermore, given its connection to NET Line One and heavy rail services and the prospects for integration with bus services, the Inspector considered that the scheme would make significant contributions towards the aim of providing an integrated public transport service (7.8). He noted also the argument, not countered at inquiry, that the scheme would generate the sort of environmentally friendly travel patterns demonstrated

by NET Line One which would lead to reduced vehicle emissions and lower pollution levels (7.9). In summary, the Inspector was satisfied that the identified aims and objectives of the project underpinned the need for it. In his view, there was a compelling need for the scheme in the public interest (7.10, 7.223).

13. The Secretary of State agrees with the Inspector, for the reasons the Inspector gives, that a compelling need for NET Phase Two has been demonstrated. He therefore considers that the other matters which are addressed below, including the local impacts of the scheme, need to be considered in this light.

Consistency with national, regional and local planning, transport and environmental policies 14. The Inspector found considerable policy support at national level for sustainable modes of travel, including rail-based systems, in the 2004 Transport White Paper and the Ten Year Plan for Transport (7.11). He also considered that the proposals accorded with policy themes in national planning policy guidance (7.12). More focused support for NET Phase Two could be identified at the regional level, where light rail was specifically supported as part of an integrated transport network in Regional Spatial Strategy 8 and the emerging Draft Regional Spatial Strategy. The scheme also sat well with proposals for regional growth set out in the Draft Regional Spatial Strategy (7.15-7.17).

15. At the local level, the Inspector said that the scheme accorded with the principles of, and attracted policy support in, the Joint Structure Plan, the City of Nottingham Local Plan and the Greater Nottingham Local Transport Plan. Local policy support was also to be found in the Rushcliffe Borough Non-Statutory Replacement Local Plan and in the Broxstowe Local Plan (7.18-7.19).

16. The Inspector was for these reasons satisfied that the scheme complied with a wide raft of adopted policies from national through to local level and accorded with the appropriate statutory development plans (7.21, 7.223). The Secretary of State agrees with the Inspector’s assessment that the scheme finds support from policy at all levels.

Transportation, regeneration, environmental and socio-economic benefits 17. The Inspector saw no reason why the evidence from NET Line One of travellers moving from car to tram and of a reduction of traffic should not be replicated by NET Phase Two. The scheme would link significant residential areas with existing and proposed business and employment areas, with the City Centre and with major health, leisure and education destinations, providing a fast and reliable public transport system that would be integrated with other public transport modes. The experience of NET Line One did not support the view of some objectors that the scheme would have a negative effect on local bus services. The Inspector concluded that the scheme would provide significant transportation benefits (7.22-7.25).

18. The Inspector was satisfied that the scheme would assist in the regeneration of Nottingham Southside and Beeston town centre, and would support the expansion of employment centres such as BioCity Nottingham (7.27). He noted that the scheme would result in a reduction of CO² emissions which, although relatively small in global terms, was, in his view, a worthwhile environmental benefit that accorded with climate change policy (7.29 - 7.31).

19. The Inspector accepted the validity of the promoters' job creation estimates, which indicated a range of between some 4,000 and 8,000 additional jobs resulting from NET Phase Two. Despite criticism by some objectors of the promoters’ financial modelling, he was satisfied that the promoters’ economic analysis had rigorously followed Government rules and that the calculated benefit cost ratio of greater than 2 was robust. The Inspector concluded that there was an excellent economic case for the scheme and that, in terms of public sector investment, it would offer very good value for money (7.32 - 7.39, 7.225).

20. The Secretary of State agrees with the Inspector, for the reasons the Inspector gives, that the scheme would provide substantial transportation, regeneration, environmental and socio-economic benefits. Furthermore, from the evidence available, he agrees with the Inspector on the robustness of the promoters’ economic appraisal. This is, however, without prejudice to his subsequent consideration of whether to provide public funding for the scheme (paragraph 61 below refers).

Main alternatives 21. The Inspector considered that any alternative bus-based system would suffer from journey time and reliability problems in the city centre and would not provide good integration with heavy rail or NET Line One. He concluded that bus-based options would not provide the benefits of NET Phase Two (7.40-7.42). The Inspector also considered that heavy rail alternatives, with much lower frequency and lack of penetration and accessibility, would not meet the wider objectives that NET Phase Two would provide (7.43-7.44).

22. The Inspector addressed the various alternative route options for the Chilwell and Clifton lines favoured by some objectors. In each case he found that there were

disadvantages compared with the promoted routes, for example, in terms of tram service reliability or economic performance (7.45-7.58; 7.219-7.221). He concluded that none of the suggested alternatives to the scheme would come close to delivering the objectives and benefits of NET Phase Two (7.224). The Secretary of State agrees with the Inspector, for the reasons the Inspector gives, that no better alternative to the submitted proposals has been put forward.

The case for compulsory purchase powers 23. The Inspector was satisfied that the Order would authorise acquisition of no more land than was necessary, that no land was proposed to be acquired ahead of time and that the scheme was unlikely to be blocked by any impediment to implementation. He concluded that, having regard to the benefits of the scheme and to ODPM Circular 06/2004, there was a compelling case for the compulsory acquisition of the land in the public interest which justified interfering with the human rights of those with an interest in that land (7.597.63). The Secretary of State agrees with the Inspector, for the reasons he gives, that the criteria for giving compulsory purchase powers, as set out in ODPM Circular 06/2004, are met.

Likely traffic impact of constructing and operating the scheme 24. The Inspector was, in general terms, content that the impact of construction works would be managed satisfactorily through the Code of Construction Practice ("CoCP"). He considered that in areas such as Chilwell where there were particular concerns about disruption, the measures to be implemented adequately provided for public transport, traffic flow, parking and pedestrian needs in a safe and controlled manner. He was further satisfied that the impact from the reconstruction of Wilford Toll Bridge on local school children would be dealt with by the provision of a temporary bus service. The Inspector took the view that the key to the satisfactory management of construction impacts would be full and transparent liaison with affected parties and the local population. He recommended strongly that, in the Chilwell/Beeston retail areas and in Wilford, local liaison groups should be set up at least 3 months before works began in those areas, as envisaged in the CoCP (7.64-7.69; 7.84).

25. The Inspector was satisfied that the operational impact of the tram on other public transport services, principally buses, would be relatively minor. He saw no reason to doubt the conclusions of the comprehensive transport assessment of the scheme that negative impacts on the road network would be modest and that in the majority of locations trams could be accommodated with positive or neutral impact. Taking into account associated infrastructure improvements and proposed traffic management measures in areas of concern to objectors, and the safety record of NET Line One, the Inspector concluded that NET Phase Two would not have unacceptably harmful effects on the free and safe flow of traffic and pedestrians (7.70-7.81, 7.228).

26. The Inspector was satisfied that the provision of alternative rights of way for those that would be affected by the scheme was not required because adequate alternatives already existed. He also considered that the temporary stopping up of streets under the Order was necessary to allow safe and effective building construction to take place (7.82-7.84).

27. The Inspector was satisfied that the proposed traffic regulation provisions in the Order were appropriate and justifiable, subject to the promoters’ proposed modification of

Schedule 10 to the Order to exempt hearses and official wedding cars from the ban on vehicular access to Beeston Parish Church via Styring Street (6.118). As regards the promoters’ other traffic management measures, the Inspector considered that, when weighed against the benefits of the scheme, these would not have an unacceptably harmful impact on the surrounding road network (7.85-7.90).

28. The Secretary of State agrees with the Inspector, for the reasons the Inspector gives, that the likely traffic impact of the scheme would be manageable and acceptable. For the purposes of section 5(6) of the TWA he is satisfied that, where the Order would extinguish any public right of way over land, either an alternative right of way is to be provided or no alternative is required. With regard to traffic regulation measures, the Secretary of State agrees that allowing access to Beeston Parish Church via Styring Street for a limited number of vehicles is justified, but considers that it would be difficult in practice to operate an exemption for hearses and wedding cars in the way proposed by the promoters. He therefore intends to modify the Order as described in paragraph 68 below.

Likely impact of the scheme on local residents, businesses and the environment Noise, vibration and dust 29. The Inspector recognised that these effects were a source of major concern to many objectors both during the construction and operational phases. He was, however, satisfied that the impact of construction works would be limited by the enforcement of the CoCP. As regards Sandby Court flats, where works would be very close to the building, the Inspector recommended that the promoters enter into early discussions with residents and give early consideration to paying for temporary accommodation under section 28 of the Land Compensation Act 1973. He concluded that, in all the circumstances, the noise, vibration and dust effects during construction would not have an unacceptably harmful effect on the living conditions of local residents (7.91-7.96, 7.227).

30. With regard to effects during operation, the Inspector was satisfied that the promoters’ assessment of noise had been carried out correctly and in a manner appropriate to a light rail scheme. He considered that objectors’ criticisms of the noise assessment principles used by the promoters were unfounded. He noted that the promoters’ Noise and Vibration Policy (“NVP”) included commitments to monitor noise levels at least annually and to provide mitigation measures such as secondary glazing and noise barriers where appropriate; it also set ambitious noise targets at levels considerably lower than those in noise insulation Regulations. The NVP would be enforced through planning condition 14 (7.97-7.103, 7.215, 7.229).

31. The Inspector noted that there were no locations where the predicted tram noise levels would exceed the statutory noise insulation limits. Even in streets with houses close to the proposed tramway, there should not be unreasonable disturbance. He was further satisfied that the promoters’ commitment (through planning condition 15) to carry out engineering works at the Noel Street crossing on NET Line One would address the problem of track noise at that location so that it would not be exacerbated by the increased tram movement as a result of NET Phase Two. The Inspector recommended, though, that six-monthly noise monitoring be implemented at Sandby Court, given the age of residents and the proximity to the tramway. As regards the effects of vibration, the Inspector accepted the technical analysis that no structural impacts on dwellings were anticipated.

Taking all these factors into account, the Inspector concluded that operational noise and

vibration would not have an unacceptably harmful effect on living conditions of occupants (7.104-7.111, 7.208, 7.230).

32. The Secretary of State agrees with the Inspector’s conclusions and recommendations on the effects of noise, vibration and dust. He is satisfied that, with mitigation, these impacts would not be unacceptably harmful, and they do not outweigh the benefits of NET Phase Two. Air quality and flood risk 33. The Inspector considered that the scheme would provide small but significant operational benefits in terms of air quality, with a significantly smaller carbon footprint than buses or private cars. He was satisfied that current levels of flood risk would not be worsened, including in the Wilford and Cator Lane areas which particularly concerned objectors. However, he recommended that the promoters should carry out a thorough technical assessment on the desirability of including an impermeable membrane in the track formation in areas of acknowledged flood risk in order to control seepage (7.1127.118, 7.231). The Secretary of State agrees with the Inspector’s assessment of these impacts.

Built environment and demolition of properties 34. The Inspector was satisfied that the scheme would in the main sit comfortably in the built environment, but he considered that the concerns of objectors as to how the scheme would fit into sensitive locations should be addressed carefully. He noted that planning condition 3 would give the local planning authority the opportunity to influence the detailed design of the scheme (7.119 - 7.121).

35. The Inspector noted that, as a result of significant discussions in working up the scheme design, the number of representations about property demolition was limited.

With regard to the sheltered housing at Neville Sadler Court, he noted that the promoters would comply with the reasonable requirement that residents should not be forced to leave before the new replacement block of flats was completed. He recommended that detailed planning approval for the replacement block be progressed as a matter of urgency (7.1227.123).

36. The Inspector endorsed the proposal to demolish the Wilkinson’s store at Beeston (rather than the Argos store) since its retention would prejudice the future redevelopment of the town centre by leaving the tramway in a less than ideal location in terms of establishing a high quality pedestrian and retail environment. He considered that the loss of the store had to be balanced against the public benefit of the alignment proposed by the promoters. The Inspector was also satisfied that the property demolition proposals at the Abbey Street/Gregory Street junction would be the optimal solution (7.124-7.126, 7.2027.207). The Secretary of State agrees with the Inspector’s conclusions on the above issues.

Access to property 37. The Inspector noted that some temporary interference with access to a range of properties during the construction phase was unavoidable but that this would be managed and controlled through the CoCP. In his view, this underscored the need for early proactive

discussion with affected parties through the CoCP local liaison groups. The Inspector also recommended that the promoters should investigate as a matter of urgency the introduction of a residents’ parking scheme in the Lower Road/Fletcher Road area.

Overall, he was satisfied that the scheme would not have an unacceptably harmful effect on rights of access to property (7.127-7.133, 7.228). The Secretary of State agrees with the Inspector that the likely impacts on access are acceptable and manageable.

Landscape, townscape and archaeological remains 38. The Inspector noted that several objectors had concerns about the scheme's likely impact on landscape, particularly regarding the loss of trees in sensitive areas. He was, however, satisfied that in those areas every effort would be made to reinforce the local character of the landscape with replanting and noted that planning condition 5 would give local planning authorities control over landscaping schemes (7.134-7.136). The Inspector considered that archaeological impact would be minimised through a range of mitigation measures should archaeological deposits be encountered. This was addressed by planning condition 11 (7.138-7.139). The Secretary of State agrees with the Inspector’s assessment of these impacts. With regard to impacts of the scheme on listed buildings and conservation areas, these are dealt with in the separate decision letter referred to at paragraph 7 above.

Flora and fauna 39. The Inspector recognised that, overall, there would be significant residual ecological and nature conservation impacts from construction of NET Phase Two, mostly associated with the Clifton/Wilford route. However, a number of route-wide mitigation measures which had been integrated into the scheme and some site-specific measures would minimise ecological impacts. There would be a net increase in suitable replacement habitats and overall only small losses from Sites of Importance for Nature Conservation. Appropriate measures would be taken, if necessary, to deal with bats, water voles and slow worms and the Inspector was satisfied that there would not be any significant effect on protected species. He noted also that there would be a net increase in trees following construction of the tramway and the integrity of existing planting schemes would be maintained (7.1407.147).

40. Taking into account all the ecological mitigation measures, including the long term effects of tree and habitat replacement, the Inspector concluded in his main report that on balance the adverse effects of the scheme would not outweigh the significant public benefits and need for the scheme which he had identified in that report (7.148-7.149, 7.232). The Inspector nevertheless accepted in his supplementary report that the overall balance between residual harm and the wider public benefits would be changed in the light of the evidence submitted to the re-opened inquiry about the impact on birds of the proposed Clifton park and ride site (SUP 7.26).

41. The Inspector noted in this regard that it was common ground that no part of the Clifton park and ride site nor land in the surrounding area carried any protective designation. He reported also that it was not disputed that in coming to a decision on the use of this land some weight must be given to the presence of “European protected species” (SUP 7.2-7.5).

42. The Inspector accepted that the development of the park and ride site would result in some limited disturbance to wintering Golden Plover and Northern Lapwing by encroachment into part of the field upon which they had been recently observed. However he concluded that the disturbance was not likely to be significant given the balance of the field that would remain after construction, the presence of the landscaping shelter belt and the availability of other significant areas of suitable local habitat. He considered also that the development of the park and ride site would not be likely to cause significant disturbance or harm to Corn Bunting. In the absence of significant adverse effects on birds species and their habitats, the Inspector was satisfied that no further mitigation measures would be necessary (SUP 7.13-7.25).

43. From the evidence presented to the re-opened inquiry the Inspector concluded that there would only be a marginal increase in residual harm. When taken with all the other harm identified in his main report, he was satisfied that this would not outweigh the significant wider public benefits of NET Phase Two (SUP 7.26-7.29).

44. The Secretary of State agrees with the Inspector’s judgement on the balance of public interest between the adverse ecological impacts of the scheme and its benefits, for the reasons the Inspector gives. He agrees in particular that the new environmental information considered at the re-opened inquiry does not significantly alter that balance.

He should, however, clarify that the birds referred to above, although protected under the Wildlife and Countryside Act 1981, are not “European protected species” for the purposes of the Conservation (Natural Habitats, &c.) Regulations 1994 and the protection measures in those Regulations.

Green Belt – park and ride sites 45. The Inspector was satisfied that the appropriate comprehensive assessments of potential park and ride sites required by paragraphs 3.17-3.20 of PPG2 had been carried out. Consequently, he concluded that the proposed sites would not be inappropriate development in the Green Belt. Furthermore, he did not agree with objectors that the development of those sites would be a precedent leading to further development in the adjacent Green Belt (7.151). The Secretary of State agrees that the NET Phase Two park and ride sites would not be inappropriate development in the Green Belt for the reasons given by the Inspector.

Open Space 46. The Inspector noted that the promoters had carried out a detailed open space appraisal and, in accordance with PPG17, proposed to provide replacement areas for the open spaces needed for the scheme (at Chilwell Greenway, Wilford Power Station and Wilford Embankment). He was satisfied that the promoters’ open space appraisal met the requirements of PPG17 and that the areas of replacement land would be sufficiently convenient, of equivalent quality and appropriate size. However, a final conclusion on that matter was dependent on the outcome of the promoters’ exchange land certificate application in relation to the open spaces at Chilwell Greenway and Wilford Embankment (7.152-7.155).

47. The Secretary of State agrees with the Inspector’s conclusions on this matter. In addition, he notes that following the initial closure of the inquiry the promoters and Broxtowe Borough Council have entered into an agreement for the voluntary transfer to

the promoters of open space at Chilwell Greenway in exchange for replacement land (at Inham Road) which is to be acquired under the Order. No exchange land certificate is therefore required in that regard. He notes also that in a letter issued today the Secretary of State for Communities and Local Government has decided to give the exchange land certificates applied for by the promoters in relation to the Wilford Embankment open space (referred to in the Inspector’s supplementary report) and the Wilford Power Station open space. In all the circumstances, the Secretary of State is satisfied that the overall impact of the scheme on open space is acceptable and that it is appropriate to include in the Order powers for the promoters to acquire compulsorily the open space land at Wilford Embankment and Wilford Power Station required for the scheme.

Mitigation of adverse impacts Code of Construction Practice 48. The Inspector noted that the CoCP, which had been agreed with all three local planning authorities, would establish measures to be undertaken by the contractor to minimise the impact of construction and to ensure site safety and environmental best practice. He was satisfied that concerns about enforceability had been addressed by incorporating some of its provisions in the planning conditions (7.156-7.160).

Provisions for protection of statutory undertakers and highway authorities 49. The Inspector noted that, at the close of the inquiry, no statutory undertaker sought to argue that the provisions in the Order to protect their interests were insufficient. Similarly, none of the affected highway authorities objected to the Order (7.161-7.162, 7.193-7.195).

Measures to avoid, reduce or remedy environmental impacts 50. The Inspector was satisfied that the major adverse environmental impacts of NET Phase Two would be reduced by the CoCP, the proposed noise barriers and the NVP, the ecological measures referred to in paragraph 39 above, and the replacement open space proposals. The Inspector considered also that the overall package of mitigation measures would be adequate to address any other significant adverse environmental impacts (7.1637.168).

Residual adverse impacts 51. The Inspector identified a number of adverse environmental impacts that would still remain after the proposed mitigation measures had been put in place. These included significant ecological impacts on various Sites of Importance for Nature Conservation, moderate or substantial operational noise impacts in some locations, and moderate to substantial long term negative visual impacts at certain locations. The Inspector considered that the remaining adverse impacts had to be weighed against the compelling case for the scheme in the public interest that he had identified in his report (7.170–7.175).

52. The Secretary of State agrees with the Inspector’s assessment of the promoters’ mitigation proposals and of the adverse impacts which would remain after mitigation. He is satisfied that the residual adverse impacts of the scheme are substantially outweighed by the public benefits it would bring. For the purposes of section 14(3AA) of the TWA, the Secretary of State considers that the main measures to avoid, reduce and, if possible,

remedy any major adverse environmental effects are those referred to at paragraph 50 above and the attached planning conditions.

Adequacy of the Environmental Statement 53. The Inspector was satisfied (in his main report) that the Environmental Statement (“ES”) had properly considered the likely significant environmental effects that might arise.

The ES complied with European and UK Directives and the views of those consulted about the scheme had been included within the environmental impact assessment. The Inspector accordingly concluded that the ES was adequate (7.176-7.182).

54. Having considered the challenge to the adequacy of the ES by objectors at the reopened inquiry, the Inspector was satisfied that the promoters had sound and legitimate reasons not to undertake a winter bird survey in the area of the Clifton park and ride site when the environmental impact assessment was in preparation in 2002/3. This was because at that time there were no records of large populations of any over-wintering bird species in that area (SUP 7.7–7.12).

55. The Secretary of State agrees with the Inspector that the ES complies with the relevant legal requirements and was not flawed by the absence of a winter bird survey of the Clifton park and ride site. Furthermore, he is satisfied that the ES, taken together with the environmental information submitted to the inquiry (including the re-opened inquiry), provides him with sufficient information to assess the likely environmental impacts of the proposals. He confirms that, in reaching his decisions, he has complied with the requirements of paragraphs (a) to (c) of section 14(3A) of the TWA about the consideration of the ES. Planning conditions 56. The Inspector reported that the planning conditions set out in Appendix C to his report reflected discussions at the inquiry and had been agreed by officers of the three relevant local planning authorities. Having considered these conditions against the advice in DOE Circular 11/95, “The Use of Conditions in Planning Permissions”, the Inspector concluded that they were all necessary and met the tests set down in that Circular (7.185-7.187).

57. Subject to some minor drafting amendments which do not alter the effect of the proposed conditions, the Secretary of State agrees with the Inspector that the planning conditions set out in Appendix C to his report are appropriate and should be attached to the direction as to deemed planning permission. The conditions which the Secretary of State intends to impose are set out in Annex 1 to this letter.

Provisions in the Order about attaching equipment to buildings 58. The Inspector noted that for NET Phase Two the promoters had applied for rights to attach overhead line equipment (“OLE”) to buildings because with NET Line One the requirement to seek building owners’ consents had not been straightforward. He accepted that the entitlement to require the removal of OLE in certain circumstances which formed part of the consensual regime for NET Line One should not be extended to NET Phase Two. The Inspector noted further that the proposed power to make byelaws regulating the maintenance of the facades of all buildings fronting onto NET Line One and NET Phase Two (whether or not OLE was attached to them) would enable a system of safe working

within a defined hazard zone to be put in place. In all the circumstances, he concluded that these provisions would be acceptable (7.188-7.195).

59. The Secretary of State agrees with the Inspector that in the circumstances of this scheme the provisions in the Order relating to OLE (at articles 19, 34 and 53(2)) are appropriate and justified in order to facilitate the effective implementation of the scheme and the safe operation of the tramway. This is, however, subject to the amendments to article 53 described at paragraph 68 below.

Funding 60. The Inspector noted that NET Phase Two had been approved for entry into the Department for Transport’s Local Authority Major Schemes Programme on the basis of a government contribution of 75% towards the project cost and a 25% local contribution. He considered that the County Council’s commitment and ability to meet its 20% of the local contribution was relatively unchallenged and clear. He recognised that the City Council’s preferred funding option for its 80% share of the local contribution through the introduction of its proposed Workplace Parking Levy (“WPL”) was a contentious local issue. In the light of the evidence, the Inspector was satisfied that the scheme would be reasonably capable of attracting the necessary funding (7.196 – 7.199; 7.235).

61. The Secretary of State wishes to make clear that his decision to make the TWA Order is entirely without prejudice to any subsequent decisions on whether to make funding available for NET Phase Two and on whether to confirm the City Council’s WPL scheme.

The funding decision and the decision on the WPL scheme will be subject to their own separate appraisal processes, and those decisions will accordingly be taken on their own respective merits. From the point of view of deciding whether to make a TWA Order giving powers for a scheme, the Secretary of State is concerned to establish that there is a reasonable prospect of funds becoming available and, hence, of the scheme being implemented. He does not expect applicants to have the required funds in place before he determines a TWA application. In this case, he agrees with the Inspector that, from the evidence available, the scheme is reasonably capable of attracting the necessary funding.

Changes to the draft Order 62. The Inspector was satisfied that none of the (relatively minor) modifications that the promoters had proposed to the Order, as set out in document NET.A39, represented a substantial change to the project for the purposes of section 13(4) of the TWA. Since the changes had for the most part been made to respond to objections or other concerns, the Inspector concluded that they should be included in the Order (7.200–7.201).

63. The Secretary of State agrees with the Inspector that the proposed changes do not amount to a substantial change in the proposals and should be included in the Order. The further changes that he proposes to make to the Order, and the reasons for those changes, are explained at paragraph 68 below.

Provision for cyclists 64. The Inspector considered that the safety and design concerns of the cycle campaign group “Pedals” could be addressed at the detailed design stage. He therefore welcomed the promoters’ offer to re-establish the Greater Nottingham Light Rapid Transit Advisory

Committee (“the GNLRTAC”) and to invite “Pedals” to join (7.216-7.218). The Secretary of State agrees that GNLRTAC should be re-established and notes that this is one of the Order amendments proposed by the promoters.

The Inspector’s overall conclusions 65. The Inspector concluded overall that the wide-ranging regeneration, transportation and socio-economic benefits of providing NET Phase Two would clearly outweigh the adverse effects of the proposal on the local environment, including the ecological impacts and the effect of noise on living conditions (7.237, SUP 7.62). He accordingly recommended that the Order be made with the modifications referred to in paragraph 3.299 of the main report as set out in inquiry document NET.A39 and that deemed planning permission be granted for the development proposed in the Order, subject to the conditions set out in Appendix C to the main report (SUP 8.1).

Secretary of State’s overall conclusions and decisions 66. For the reasons given in this letter, the Secretary of State considers that there is a compelling case for authorising NET Phase Two. He is satisfied that the scheme is needed to tackle traffic congestion in Greater Nottingham and that it would bring very clear transportation, regeneration and socio-economic benefits. He recognises that implementation of the scheme would inevitably have some negative impacts on those living and working in the areas affected by it and on some ecologically sensitive sites.

However, he considers that the comprehensive range of mitigation measures proposed by the promoters would reduce those impacts to an acceptable minimum. Overall, he considers that the benefits of the scheme significantly outweigh its adverse impacts. He is therefore satisfied that it would be in the public interest to make the Order and to grant the deemed planning permission applied for.

67. Accordingly, the Secretary of State has decided to make the Order as recommended by the Inspector, but subject also to the modifications described below, and to direct that planning permission be deemed to be granted, subject to the conditions set out in Annex 1.

68. The modifications to the Order which the Secretary of State intends to make are as follows:• • • • •

to exclude the Chilwell Greenway open space from the compulsory acquisition powers in the Order as a consequence of the agreement referred to at paragraph 47 above; to clarify that byelaws (under article 53) about the maintenance of order on streets or regulating works to buildings fronting the tramway may only be made for the purpose of ensuring the safe operation and use of the tramway; to require that any byelaws made under the Order must be confirmed by the Secretary of State in line with the Secretary of State’s current policy on the introduction of byelaws for local transport systems; to authorise the compulsory acquisition of an additional plot of land required to facilitate highway works at the proposed Clifton park and ride site; the owners of the land have agreed to its acquisition; to provide that the exemption permitting access to Beeston Parish Church via Styring Street, referred to in paragraph 28 above, should be for vehicles authorised

•

by the traffic authority, rather than specifically for hearses and official wedding cars; and to make miscellaneous minor drafting amendments which do not affect the substance of the Order.

The Secretary of State considers that these modifications will not make a substantial change in the proposals.

69. The letter conveying the planning direction will issue shortly, at the same time as the Order is made, following publication of a notice of the determination in the London Gazette.

Notice under section 14 of the TWA 70. This letter constitutes the Secretary of State’s notice of his determination to make the Order, with modifications, for the purposes of section 14(1)(a) and section 14(2) of the TWA. Your clients are required to publish newspaper notices of the determination in accordance with section 14(4) of the TWA. Challenge to decisions 71. The circumstances in which the Secretary of State’s decisions may be challenged are set out in the note attached at Annex 2 to this letter.

Distribution 72. Copies of this letter and the Inspector’s conclusions and recommendations are being sent to those who appeared at the inquiry.

Yours faithfully,

Ellis Harvey Head of TWA Orders Unit

ANNEX 1

CONDITIONS WHICH THE SECRETARY OF STATE INTENDS TO ATTACH TO THE DEEMED PLANNING PERMISSION In these conditions, unless the context otherwise requires— “building” means any structure or erection, or any permanent gate, fence, wall or other means of enclosure, above the surface of the ground, but does not include any plant or machinery; “the development” means the works authorised by the Order; “the Environmental Statement” means the documents of that description submitted with the application for the Order on 26 April 2007; “the local planning authority” means Nottingham City Council in relation to any part of the development within its area, Broxtowe Borough Council in relation to any part of the development within its area and Rushcliffe Borough Council in relation to any part of the development within its area; “NET Line One” means the tramway system authorised by, and constructed and operated under, the powers contained in the Greater Nottingham Light Rapid Transit Act 1994; “the Noise and Vibration Policy” means the noise and vibration policy relating to the operation of the development, submitted to the Inquiry as NET.P7/H; “the Order” means the Nottingham Express Transit System Order 2009; “part” means a defined part, section or stage of the development, the extent of which has been submitted to and approved in writing by the local planning authority; “the planning direction drawings” means the drawings of that description submitted with the application for the Order on 26 April 2007, as amended by public inquiry document NET.A20/3; “the relevant limits” means the limits within which, under the deemed planning permission to which these conditions relate, the development may be carried out; “retained tree” means an existing tree within the relevant limits other than a tree identified for removal in accordance with the details approved under Condition 7 below; “the Schedule of Environmental Mitigation Measures” means the public inquiry document, NET.P6/U; and

“the Urban and Landscape Design Statement” means the Urban and Landscape Design Statement for Nottingham Express Transit (NET) Phase Two Development, comprising Volume 4 of the Environmental Statement, and references to “numbered works” are references to the Works set out in Schedule 1 to the Order.

Time limits 1.

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

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

Contaminated land 2.

No part of the development shall be commenced until a scheme to deal with contamination of any land likely to cause significant harm to persons, pollution of controlled waters or the environment, and being within the relevant limits and the part concerned, has been submitted to and approved by the local planning authority.

The scheme shall include an investigation and assessment report which shall identify the extent of any such contamination and the remediation measures to be taken to render the land fit for the intended purpose, together with a management plan setting out any long term measures with respect to contaminants remaining on the site.

The remediation measures identified in any scheme so approved shall be carried out in accordance with the principles set out in the Code of Construction Practice, which is Annex C to the Environmental Statement, before the part of the development to which the scheme relates has been commenced, or within such other period as the local planning authority may agree.

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

Detailed design approval 3.

No part of the development shall be commenced until details of the layout, scale and external appearance of the following elements of the development within that part have been submitted to and approved by the local planning authority: (a) each of the tram stops; (b) any bridges or viaducts;

(c) any permanent fences, walls or other barriers (including bunds); (d) property boundary treatments, where permanently altered; (e) poles, brackets and all other equipment supporting the overhead line equipment; (f) electricity sub-stations, transformers and ancillary equipment; (g) lighting equipment; (h) any terracing, cuttings, embankments or other earth works; (i) the Park and Ride sites; (j) hard surfaced areas to be used by vehicles or pedestrians; (k) any other ancillary buildings or structures; and (l) full details of how any building, structure or site is to be restored or made good where it adjoins a building or structure which is to be demolished or altered.

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

Design statement 4. Unless otherwise agreed by the local planning authority, the development shall be designed and constructed substantially in accordance with Sections One and Two of the Urban and Landscape Design Statement and with due regard to Sections Three and Four of that Statement.

Reason: To ensure high quality design and to safeguard amenity, especially in conservation areas.

Landscaping and Ecological Mitigation 5.

Before any landscaping or related works commence in any part of the development, a landscaping scheme shall be submitted to and approved by the local planning authority. This shall include details of: (a) proposed finished ground levels and any ditches, drains and other water areas to be created; (b) location, species, plant sizes and densities for any proposed planting; (c) existing plant material to be translocated from other locations within the relevant limits;

(d) cultivation, soils and composts to be imported and any other relevant operations to ensure plant establishment; and (e) the management regimes to be implemented to ensure that created habitats are maintained as intended.

Reason: To ensure that appropriate landscaping and ecological mitigation is provided.

Landscaping Maintenance 6.

Any tree or shrub planted as part of an approved landscaping scheme that, within a period of five years after planting, is removed, dies or becomes, in the opinion of the local planning authority, seriously damaged or diseased, shall be replaced in the first available planting season with a specimen of the same species and size as that originally planted, unless otherwise approved by the local planning authority.

Reason: To ensure that landscaping is properly maintained.

Tree survey 7.

Before any works commence which may affect trees in any part of the development, the following details in relation to all trees within the relevant limits in that part likely to be affected, having a stem diameter of 100mm or greater, shall be submitted to and approved by the local planning authority: (a) their location, species, girth, stem diameter, crown spread, assessment of condition and whether they are covered by any tree preservation order; (b) existing and proposed ground levels at the base of retained trees where nearby changes of level or excavations are proposed; (c) the trees to be removed or pruned, looped or topped in conjunction with the proposed development clearly marked on a plan; and (d) all fencing, hoardings or other means of protecting retained trees during the construction period.

Where practicable, the fencing and hoardings shall be erected at the distances from each tree to be retained as set out in BS5837: 2005 ‘Trees in relation to Construction’. All protection measures shall be implemented and remain in place throughout the construction period of that part of the development.

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

Retained trees 8. Until the expiration of 5 years from the commencement of operation of the tramway authorised by the Order no retained tree shall be felled, uprooted or destroyed, nor shall any retained tree be topped or lopped, save to the extent approved under Condition 7, without the approval of the local planning authority. If any retained tree is removed, uprooted or dies within that same period, another tree shall be planted at the same place and that tree shall be of such size and species, and shall be planted at such time, as may be specified in writing by the local planning authority.

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

Bat Check Survey 9. No development shall take place until the results of a survey and monitoring to establish the presence or otherwise of bats in any trees or structures to be removed or altered externally within the relevant limits, together with any programme of mitigation measures, have been submitted to and approved by the local planning authority. Any such survey, monitoring or mitigation measures shall be undertaken and prepared in consultation with Natural England and the Department for Environment, Food and Rural Affairs.

Reason: To ensure adequate protection and mitigation is provided for any bats that may be found.

Prevention of water pollution 10.

In carrying out the development, all reasonable steps shall be taken to prevent the pollution of watercourses and groundwater, including by the following methods:— (a) no contaminated material, or polluting construction or demolition material or refuse shall be deposited within the relevant limits; (b) no rainwater contaminated with silt or soil from ground disturbed during construction works shall be permitted to drain to any surface watercourse or water sewer without sufficient prior settlement; (c) no foul drainage or contaminated surface water run-off shall be discharged into any bore-hole, well, spring soak-away or watercourse, including dry ditches connected to a watercourse; (d) all surface water drainage from impermeable parking areas, new roadways and hardstandings for vehicles comprised in the development shall be passed through an oil interceptor or other appropriate device before being discharged into any watercourse, surface water sewer or soak-away system; and

(e) prior approval of the construction details of any storage facilities for oils, fuels or chemicals shall be obtained from the local planning authority before that element of the development is commenced.

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

Archaeology 11.

No part of the development within or immediately adjacent to an area which is identified in Tables 11.1 to 11.3 of the Environmental Statement as being of medium or high archaeological potential shall commence until a scheme to deal with any archaeological remains on the land covered by that part has been submitted to and approved by the local planning authority.

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

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

Contamination encountered during construction 12.

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

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

Construction Hours of Work 13.

Normal construction hours of work shall be 0800 to 1800 Monday to Friday and 0800 to 1300 on Saturdays, unless otherwise agreed by the local planning authority. In addition, on weekdays, there will be a start up period from 0730 to 0800 and a shut down period from 1800 to 1830. During these periods, activity may take place on site, provided that this does not cause disturbance to nearby residents, Reason: To protect local amenity.

Operational Noise and Vibration 14.

The tramway forming part of the development shall be designed and operated so that airborne noise and vibration arising from the running of trams is dealt with in accordance with the provisions of the Noise and Vibration Policy at all times, unless otherwise approved by the local planning authority.

Reason: To protect local amenity.

15.

The tramway forming part of the development shall not be operated for fare-paying services until the local planning authority has certified that such steps have been taken as are reasonably practicable to reduce the noise arising from the passage of a tram over the rail crossing situated at the junction of Noel Street with Terrace Street on NET Line One to a level below that existing at the date of the Order coming into force.

Reason: To ensure that the operation of trams accessing the Wilkinson Street depot from the development does not adversely affect the amenity of residents in the vicinity of the Noel Street crossing by increased noise..

Environmental mitigation measures 16.

The development shall be carried out in accordance with the mitigation measures set out in the Schedule of Environmental Mitigation Measures, unless otherwise approved by the local planning authority. Where the siting of any of the works set out in Schedule 1 to the Order is proposed to deviate materially from the centre line and vertical alignment of that work shown on the Works and Land Plans referred to in the Order, a scheme of additional and/or different environmental mitigation measures shall be submitted to and approved by the local planning authority. This approval shall not be withheld nor conditions imposed unless the local planning authority considers that the scheme is inadequate to mitigate any significant environmental impact arising from the proposed deviation not taken into account in the Environmental Statement.

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

Residential development at Neville Sadler Court 17.

The residential development of part of Neville Sadler Court shall be located as shown on planning direction drawing 31, but shall not be commenced until details of the siting, vehicular access, layout, scale, appearance and landscaping of the development, including any necessary noise mitigation measures, have been submitted to and approved by the local planning authority.

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

Nottingham Station Bridge 18. The tramway bridge at Nottingham Station, forming part of Works Nos. 10, 10A and 10B and all related structures, shall be designed and constructed in accordance with the design shown on the planning direction drawings nos. 36 and 37, unless otherwise approved by the local planning authority. The bridge, including any maintenance walkways, shall be no wider than 16200 mm and shall have no less clearance above the platform canopies than is shown in Sections 7 and 8 on those drawings.

Reason: To ensure an appropriate design, to minimise adverse impacts on the listed building and the conservation area.

Wilford Toll Bridge 19.

The alterations to Wilford Toll Bridge, to carry the tramway, cycleway and footway, shall be designed and constructed in accordance with the design shown on the planning direction drawing no. 38, unless otherwise approved by the local planning authority. Alterations to the listed building shall be no greater than those shown on planning direction drawing 38.

Reason: To ensure an appropriate design, to minimise adverse impacts on the listed building.

Bardills roundabout and Toton Lane highway improvements 20.

The park and ride site at Toton Lane shall not be brought into use until the local planning authority has certified that the works to the A52 Bardills roundabout, and the widening and realignment of Toton Lane between the roundabout and the entrance to the park & ride site that the local planning authority (in consultation with the highway authorities) considers necessary to secure sufficient highway network capacity, have been completed to its satisfaction and brought into use.

Reason: To ensure that the junction of the A52 with Toton Lane works effectively when the park and ride site is operational.

Approval under these conditions 21.

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

Reason: To provide certainty in the approvals process.

Implementation 22.

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

Reason: To ensure that any development carried out complies with requisite approvals, and to provide flexibility for the local planning authority to agree amendments to details previously approved.

END

ANNEX 2 RIGHT TO CHALLENGE ORDERS MADE UNDER THE TWA

Any person who is aggrieved by the making of the Order may challenge its validity, or the validity of any provision in it, on the ground that – • •

it is not within the powers of the TWA, or any requirement imposed by or under the TWA or the Tribunals and Inquiries Act 1992 has not been complied with.

Any such challenge may be made, by application to the High Court, within the period of 42 days from the day on which notice of this determination is published in the London Gazette as required by section 14(1)(b) of the TWA. This notice is expected to be published within three working days of the date of this decision letter.

CHALLENGES TO DEEMED PLANNING PERMISSION GIVEN IN CONNECTION WITH A TWA ORDER There is no statutory right to challenge the validity of the Secretary of State’s direction that planning permission shall be deemed to be granted for development for which provision is included in the Order. Any person who is aggrieved by the giving of the direction may, however, seek permission of the High Court to challenge the decision by judicial review.

A person who thinks they may have grounds for challenging the decision to make the Order or the decision to give the direction as to deemed planning permission is advised to seek legal advice before taking any action.