Instruments drawn to the special attention of the House
Town and Country Planning (Border Facilities and Infrastructure) (EU Exit) (England) Special Development Order 2020 (SI 2020/928)
Date laid: 3 September 2020
Parliamentary procedure: negative
This Order grants temporary planning permission for the development of border facilities and infrastructure on inland sites in England that will be needed where ports do not have enough capacity to carry out new controls of goods imported from the EU from 1 January 2021. With fewer than four months until the end of the Transition Period, the Government say that this Order is an important component of the preparations for the new border arrangements.
The instrument is drawn to the special attention of the House on the ground that it gives rise to issues of public policy likely to be of interest to the House.
1.The Ministry of Housing, Communities and Local Government (MHCLG) has laid this Order with an Explanatory Memorandum. The purpose of the instrument is to grant temporary planning permission for the development of border facilities and infrastructure on inland sites in England that will be needed where ports do not have enough capacity to process all the vehicles, including lorries, which will enter or leave Great Britain after the end of the Transition Period (TP) on 31 December 2020. The Secretary of State for Housing, Communities and Local Government (“the Secretary of State”) has written to the Committee about the Order. We are publishing his letter at Appendix 1.
What this instrument does
2.MHCLG explains that from 1 January 2021, the UK will introduce new controls for all goods imported from the EU into Great Britain, requiring new border facilities for carrying out the necessary checks, such as customs compliance, transit and sanitary and phytosanitary checks. The changes will be needed irrespective of whether an agreement is reached on the new relationship between the UK and the EU. While port operators would usually provide the necessary infrastructure, MHCLG says that there is limited space at some ports and the pandemic may have affected the ability of port operators to provide the infrastructure by the end of the year. Where there is limited space at ports, the Government have committed to providing new inland sites where the checks and other border processes can take place.
Use of a Special Development Order
3.The development of border infrastructure involves a material change in the use of land and therefore requires planning permission. In this case, MHCLG has used a Special Development Order (SDO) under the Town and Country Planning Act 1990 to grant temporary planning permission. According to MHCLG, SDOs are designed for handling planning proposals of national significance and allow permission to be granted urgently, while also providing effective mechanisms to ensure development is appropriate. Previous instruments1 used the same legislative route in 2019 to grant planning permission for border infrastructure that could have become necessary if the UK had left the EU without a Transition Period.
Location of the new sites
4.MHCLG says that the Government are currently working with port operators to understand their capacity to accommodate and deliver the required infrastructure from January 2021. The Government are also assessing the exact number and location of new inland sites that will be needed. MHCLG says that these sites will be either close to ports with relevant EU trade or with access to the strategic road network serving those ports, and that final decisions on these sites will be made once the Government have established how much of the new infrastructure will be delivered at ports. With fewer than four months until the end of the TP, we asked MHCLG about the state of preparations and when it expected the final decisions on sites to be made. MHCLG responded that:
“The Government has been engaging with the port operators to understand their infrastructure requirements and what support the Government could provide to ensure any required infrastructure is in place for the end of the transition period. The Border Operating Model,2 which was published on 13 July, provides further details on how the Great Britain / European Union border will work and the actions that traders and hauliers need to take. The Government has also set out the measures it will put in place to support port operators to be ready. These consist of providing inland sites where port operators have clearly demonstrated no capacity to accommodate the required infrastructure at port or a financial mechanism to support those port operators with capacity to build at port.
Government is in the process of finalising requirements with ports to enable further decisions to be made very shortly on any additional sites that may be required, to ensure delivery by January and July 2021 in line with the phased approach set out in the Border Operating Model.
It is for border departments to come forward with proposals for specific sites and MHCLG will be making the decisions whether they fit the requirements of the Special Development Order. We understand, and you may also be aware, that departments have acquired potential sites in Ashford, Kent and in Warrington: commercial discussions are ongoing on others. MHCLG has not received any submission seeking the Secretary of State’s approval to develop of a specific site.”
Approval of new infrastructure developments
5.Any developments under this Order will have to be approved by the Secretary of State and will have to meet a number of conditions: the development can only be carried out by or on behalf of defined border departments; the development must end by 31 December 2025; and all reinstatement works must be completed by 31 December 2026. The border departments specified in the Order are HM Revenue and Customs, the Department for Business, Energy and Industrial Strategy, the Department forEnvironment, Food and Rural Affairs and the Department for Transport. Developments will not be permitted if they would have significant effects on the environment or would take place on land within sensitive areas such as protected environmental habitats, National Parks, Areas of Outstanding Natural Beauty and European (Protected) sites. Proposals for development will need to set out how the construction of the new facilities and their operation will be managed.
6.We asked MHCLG about the reinstatement work and what would happen if the facilities and infrastructure were still required after 2025. MHCLG explained that the Order is:
“a temporary measure until the new long-term border arrangements are agreed and in place. Should a specific facility be needed for any longer period then a border department can seek to secure this by making a subsequent planning application.
The Special Development Order requires the cessation of the use, and removal of all buildings, for which permission is granted on a site and the restoration of the site to its condition before such development commenced except as specified in a reinstatement plan approved by MHCLG. Reinstatement plans must be submitted on or before 30 June 2025 and all work must have been completed by 31 December 2026.
Subject to the specific facilities provided, all temporary structures, plant or machinery brought onto a specific site must be removed unless, having considered a reinstatement plan, the Secretary of State for Housing Communities and Local Government agrees in writing that they may remain. Without pre-empting future decisions, examples of works that might be exempted from removal could include improvements to the land such as improved drainage, safer access or action to enhance biodiversity.”
Local engagement
7.Developments will only be permitted if there has been “substantive local engagement”. The Order specifies those who must be given an opportunity to comment on the proposed development, such as owners, residents and occupiers of the site and on access routes to the site, the relevant parish council, the local planning, highway, police and fire authorities, and the statutory environmental bodies. A report on engagement with these parties, and their views, must be included in the department’s submission to the Secretary of State.
8.MHCLG says that the Order does not affect the commercial rights of the landowner or existing occupiers: the use of any specific site will be negotiated with the landowner by a third-party mediator, who will act for the relevant border department, on market-rate terms and will not disrupt any existing business operations without compensation.
9.We asked for further information about the impact of potential local objections on the approval of development proposals. MHCLG said that:
“MHCLG is the decision-maker. Any submission seeking the Secretary of State’s approval to use a specific site must include: a report summarising the methods used; the information provided to, and outcomes of, engagement with the engagement parties specified in the Special Development Order. These parties include those that are likely to be affected by the development and that live or run businesses adjacent to a site or along its access road. Those invited to make representation must have had no less than 14 days to do so; copies of the main representations received must be provided to MHCLG.
MHCLG will consider and reach a view on whether there has been adequate local engagement by a border department, based on the information provided in the report accompanying any submission.
Any decisions on a request to approve the use and development of a specific site will be made following independent assessments by qualified town planners in the Ministry and independent scrutiny by Ministers who are not the promoter of the facilities will take decisions without pre-determination. There is no presumption that site specific proposals will be approved. In making decisions MHCLG will consider the planning merits any proposal, including any representations received.”
Conclusion
10.This Order grants temporary planning permission for the development of border facilities and infrastructure on inland sites in England that will be needed where ports do not have enough capacity to carry out new controls of goods imported from the EU from 1 January 2021. With fewer than four months until the end of the Transition Period, the Government say that this Order is an important component of the preparations for the new border arrangements. The instrument is drawn to the special attention of the House on the ground that it gives rise to issues of public policy likely to be of interest to the House.
1 Town and Country Planning (North Weald Airfield) (EU Exit) Special Development Order 2019 (SI 2019/1228), Town and Country Planning (Waterbrook Ashford) (EU Exit) Special Development Order 2019 (2019/1230) and Town and Country Planning (Car Park D Ebbsfleet International Station) (EU Exit) Special Development Order 2019 (SI 2019/1231); see 61st Report, Session 2017-19 (HL 422).
2 Cabinet Office, The Border Operating Model (13 July 2020): https://www.gov.uk/government/publications/the-border-operating-model [accessed 10 September 2020].