Reason for the decision
The Application for the Lower Thames Crossing was submitted by National Highways to the Planning Inspectorate under section 37(2) of the Planning Act (PA) 2008 on 31st October 2022. The project constitutes a Nationally Significant Infrastructure Project (NSIP) under Sections 14 and 22 of the Planning Act 2008 and would provide a second strategic road network dual carriageway crossing of the Thames estuary east of Greater London.
As a host authority, KCC have a statutory duty to participate in the Development Consent Order (DCO) Process. KCC fully support Lower Thames Crossing. Whilst National Highways are the scheme promoter and will deliver the project, KCC is required to enter into multiple contracts with the promoter to enable the works to progress.
In addition, KCC has requested a number of additional requirements of National Highways. In order to secure these requested funds, KCC need to enter into a Side Agreement with National Highways.
Background
KCC has fully contributed to the examination process to date. In the context of supporting the scheme, KCC has worked with National Highways to reduce concerns regarding the scheme proposals, and where mitigation is required, requesting additions to the Section 106 (s106) Agreement. Where a request is, in the opinion of National Highways, does not meet the threshold to be required under planning for a s106, agreements to provide additional funding, resource or other measures must be secured by a Side Agreement.
The most recent draft Side Agreement was only provided to KCC in November 2023. KCC was disappointed that this did not contain several of the requests previously made to National Highways. The outcome of this is that there are still multiple clauses that could be added between now and the end of the examination period. The key additional requirement to be added to the Side Agreement relates to compensation for Shorne Woods Country Park.
Whilst the DCO, Section 106 and Side Agreement (if approval is given) will provide authority for much of the foreseeable future contracts, consents, and agreements required for Lower Thames Crossing; given the scale of the project, it is deemed prudent to consider the possibility that future agreements between National Highways and KCC will be required.
The DCO, as currently drafted, requires KCC to make decisions and provided approvals and consents within 28 working days. Many of these consents fall within already delegated powers and established processes, however, where this is not the case, this is not long enough to make additional Decisions. As such, this report recommends delegated authority is provided to the Director of Growth Environment and Transport.
Options (other options considered but discarded)
There are no viable alternatives to a Side Agreement where the terms of the Side Agreement could be included as such the alternatives are to either 1) enter into a Side Agreement or 2) not enter into a side agreement.
As the final terms of the Side Agreement have not yet been provided by National Highways, authority to enter into the decision is recommended. This will allow for KCC to enter into the Agreement within the required timescales, following full financial and legal review of the final draft. Should the terms presented not be acceptable to KCC, the Corporate Director of Growth Environment and Transport will choose not to enter into the agreement.
By not entering into an agreement, KCC requests, as put forward within the examination process will not be secured. This means that some KCC concerns will not be addressed by National Highways and as a result the scheme will not realise the full benefits to Kent residents.
How the proposed decision supports Framing Kent’s Future 2022-2026: (https://www.kent.gov.uk/about-the-council/strategies-and-policies/corporate-policies/our-council-strategy)
The Lower Thames Crossing fully supports the priorities of Framing Kent’s Future, namely Levelling up Kent and providing infrastructure for communities. KCC’s support for the project is stated in its statutory Local Transport Plan 4 (LTP4), where the new Crossing is also part of the long-term transport policy aim of bifurcation. This splitting of traffic to/from the Channel portals along the M20/A20 and M2/A2 corridors will help to release capacity and therefore relieve pressure on the M20, especially in times of disruption to cross-Channel services.
How the proposed decision supports: Securing Kent’s Future: democracy.kent.gov.uk/documents/s121235/Securing Kents Future - Budget Recovery Strategy.pdf
This decision will be taken with Securing Kent’s Future in mind. This scheme is promoted by National Highways. Should the Secretary of State consent to the scheme, the funding for the scheme will be provided by National Highways. KCC is not providing any capital funding to deliver the scheme. National Highways are providing additional funding to cover the additional resource burden associated with this project through the S106 Agreement, for which a decision is not required. Any additional clauses to be added will be subject to financial scrutiny and only be net positive financial contributions to KCC.
Decision type: Key
Decision status: Implemented
Notice of proposed decision first published: 13/12/2023
This decision will be taken under urgency procedures.
Reason for urgency:
This decision must be made within the timescales of the Development Consent Order process which will conclude on 20th December 2023. This is to enable Kent County Council (KCC) to receive funding provided by National Highways for mitigations and interventions requested by KCC throughout the examination process. An initial draft Side Agreement was only provided to KCC on 14 November and updated on 28th November 2023.
This timetable did not allow sufficient time to report to Members of the Environmnet and Transport Cabinet Committee at their meeting on 15 November and it could not be deferred to the next meeting on 11 January 2024 due to the requirement by the Examining Authority for all signed legal agreement to be submitted by the 20th December.
Decision due: 18 Dec 2023 by Cabinet Member for Highways and Transport
Reason: This decision will be taken under the urgency procedure
Lead member: Cabinet Member for Highways and Transport
Lead director: Simon Jones
Department: Growth, Environment & Transport
Contact: Abigail Roscoe, Assistant Project Manager Email: Abigail.roscoe@kent.gov.uk or 03000 414093.
Consultees
Public consultation or planned:
National Highways have undertaken multiple consultations prior to the Lower Thames Crossing examination process. Additional consultation by KCC is not required to decide whether to enter into a Side Agreement.
Cabinet Committee:
No recommendations from Cabinet Committee have been received. This decision must be made within the timescales of the Development Consent Order process which will conclude on 20th December 2023. There is not sufficient time to fully consult Environment and Transport Cabinet Committee.
Financial implications: KCC is not providing any capital funding to deliver the scheme. The legal costs associated with the review and implementation of the Side Agreement are covered by a Planning Performance Agreement between KCC and National Highways. KCC will ensure that any officer costs working directly to deliver schemes specifically associated with the Side Agreement will be covered by the funding provided by that agreement. Additional KCC resource required for the extra officer workload associated with design approvals will be secured through a Section 106 agreement, for which a decision is not required as the authority to enter into Section 106 agreements is already part of the Officer Scheme of Delegations.
Legal implications: Full legal review and oversight of the Side Agreement has been undertaken.
Equalities implications: Equalities implications: A full Health and Equalities Impact Assessment has been produced by National Highways for this project. This assessment is published on the Planning Inspectorate Website (Application Document Ref: TR010032/APP/7.10). Data Protection implications: A DPIA is not required for this decision.