Ordsall Chord

[lejog]

I see it a little differently, Whitby's lawyers challenged the High Court judge's decision on 5 points of Planning law and Listed Buildings law relating to the decisions of the Planning Inspector (along with SoS a "decision maker") and the Secretary of State, which were summed up by Lord Justice Lindblom as:

The single main issue, as I see it, is whether the decisions in this case were unlawful either because they were not taken consistently with the decision-maker's statutory duties relating to listed buildings and conservation areas or because the Secretaries of State misunderstood or misapplied relevant national policy and guidance.

After discussing the facts of the case the judge considered each of the points in detail and concluded that both the Planning Inspector and the Secretary of State acted legally in all cases.

The inspector's "Overall Conclusions", which were accepted by the Secretary of State for Transport in paragraph 16 of his decision letter, flowed from the assessment he had already set out. In my view they too demonstrate an entirely lawful approach, in accordance with the Listed Buildings Act duties and with government policy in the NPPF and the guidance in the PPS5 Practice Guide. The inspector adhered to the approach confirmed by the Court of Appeal in Barnwell Manor, subsequently re-affirmed in Jones v Mordue, and to the relevant policy and guidance........

....... Mr Drabble's (Whitby's lawyer) argument falls a long way short of establishing any error of law in the decisions made by the Secretaries of State in this case. The requirements of sections 16, 66 and 72 of the Listed Buildings Act were fully and lawfully met. Relevant policy for heritage assets in the NPPF and the guidance in paragraph 91 of the PPS5 Practice Guide were properly construed and lawfully applied.

Conclusion

It is for those reasons that I would dismiss these appeals.

Lord Justice Hamblen

I agree.

Lord Justice Simon

I also agree.

 

[LNW-GW Joint]

So that's that then, no doubt at great cost to all concerned.
Do we know when Network Rail are going to start "altering" the heritage assets?

 

[GRALISTAIR]

So that's that then, no doubt at great cost to all concerned.
Do we know when Network Rail are going to start "altering" the heritage assets?

Not soon enough in my opinion. Let's get it done.

 

[HowardGWR]

relating to the decisions of the Planning Inspector (aka the decision maker) and the Secretary of State

In my view, Lejog, the Inspector is not a decision maker. Only the two SoS's are that, in respect to the recommendations from a Planning Inquiry. The Inspector merely recommends decisions that should be made.

 

[lejog]

In my view, Lejog, the Inspector is not a decision maker. Only the two SoS's are that, in respect to the recommendations from a Planning Inquiry. The Inspector merely recommends decisions that should be made.

It is clear from the quote that the judge in using the term "decision maker" to distinguish from the Secretaries of State who are referred to directly in the same sentence. In reading the paragraph in context with Whitby's detailed arguments, I now understand the judge meant both the Planning Inspector and the SoS when referring to the "decision-maker". I've edited my post appropriately.

Four of Whitby's five legal arguments were against the inspector, so the judge's summary is nonsense if the inspector is not a decision maker. Please read paras 5-7 of the judgement.
--- old post above --- --- new post below ---

Not soon enough in my opinion. Let's get it done.

I see no mention of witholding the right to appeal to the Supreme Court in the judgement, whether that is significant or not I don't know.

 

[WatcherZero]

Paragraph 3, the decision makers are defined as the secretary of state when making the TWAO and the secretary of the department of communities and local government when he approved 10 demolition orders for listed buildings.

 

[snowball]

The Inspector can only make recommendations to the Secretaries of State.

 

[DaveNewcastle]

. . . .

I see no mention of witholding the right to appeal to the Supreme Court in the judgement, whether that is significant or not I don't know.

I referred to the relevant procedure on here about 6 weeks ago.

There is,technically, an opportunity for the complainant to apply to the SC, but as there is no outstanding issue for the SC to engage with, and as the threshold for consideration has been raised, then there is no prospect of any outcome which had an adverse impact on the development.

 

[snowball]

Paragraph 3, the decision makers are defined as the secretary of state when making the TWAO and the secretary of the department of communities and local government when he approved 10 demolition orders for listed buildings.

Most of them can hardly be called demolition orders.

171. The ten applications for listed building consent comprise:

Stephenson’s Bridge:
Applications Ref PP 02872266 (MCC), PP 02873779 (SCC)
172. The proposed works would comprise fabric repairs and reinstatement of approximately half the length of the northern parapet foll owing the removal of the Girder Bridge. Salt and mineral deposits would be removed from underneath the arches. Track would be re laid in its approximate original location.

1830 Viaduct and Water Street Bridge
Application Ref PP 02872540 (MCC)
173. The proposed works would include the removal of a section of the parapet and platform at the top of the cattle ramp to accommodate the new chord structure; the removal of infill material above the brick vaults and the insertion of pile structures through the brick piers to carry the new concrete saddle slab. The MOSI tracks would be terminated and new fencing and buffers provided. Repairs would be carried out to masonry.

Girder Bridge
Applications Ref PP 02872342 (MCC), PP 02873772 (SCC)
174. The iron beam and deck would be demolished, leaving only the iron pier on its stone base in mid stream. The brick and stone abutment on the Manchester side would be demolished but the Salford abutment would be retained and repaired.

Zig Zag Viaduct
Application Ref PP 02872719 (MCC)
175. The works would comprise the partial demolition of the western end of the viaduct, including the abutment of the Girder Bridge, and the rebuilding to a different plan profile to accommodate the base of the network arch. Strengthening work and fabric repairs would be carried out to the remaining masonry structure and to the iron bridge over Water Street. Tracks would be re laid on top of the viaduct where curtailed by the new chord.

Castlefield Viaduct
Applications Ref PP 02873756 (MCC), PP 02873784 (SCC)
176. On the Manchester side, the proposed widening of the viaduct would involve loss of existing parapets, the encasing of existing vaults with new concrete structures, and the clearance of existing structures, including Hobson’s Café. The formation of two new bridges over Water Street would entail the demolition of the Cast Iron Bridge. The remainder of the viaduct and the 1845 Brick Bridge over the river would receive comprehensive masonry repairs and vegetation removal.

Southern Railway Viaduct
Application Ref PP -0 2873790 (SCC)
177. The proposed works would be confined to strengthening works and fabric repairs.

Central Railway Viaduct
Application Ref PP 02873795 (SCC)
178. As well as strengthening works and fabric repairs, the proposed works would include erection of OLE and signalling equipment and relocation of tracks.

179. Of these proposals, only the last two are considered not to be harmful to the significance of the listed building, so that the building would in each case effectively be preserved. Hence these proposals can be taken to comply with NPPF guidance and with SUDP policy ST15.

180. The other proposals, although including useful fabric repair and reinstatement, would all involve some harm to the significance of the listed buildings. The harm would be substantial in the cases of partial or total demolition, and less than substantial otherwise, as acknowledged at Matter 5(a) above.

 

[WatcherZero]

Last two paragaphs of your quote

179. Of these proposals, only the last two are considered not to be harmful to the significance of the listed building, so that the building would in each case effectively be preserved. Hence these proposals can be taken to comply with NPPF guidance and with SUDP policy ST15.

180. The other proposals, although including useful fabric repair and reinstatement, would all involve some harm to the significance of the listed buildings. The harm would be substantial in the cases of partial or total demolition, and less than substantial otherwise, as acknowledged at Matter 5(a) above.

Even the strengthening works would involve altering listed structures, taking them apart to strengthen then return to original appearance and so require consent.

 

[anorack 1]

Does anybody know, how much more the Chord will cost. Since Whitby's two failed appeals?

 

[HowardGWR]

Does anybody know, how much more the Chord will cost. Since Whitby's two failed appeals?

I can't see how the two things are related. I note that NR was represented at the hearings, but I imagine those costs would be found from NR's legal budget, not the Ordsall budget. I have wondered whether those legal costs are recoverable from Whitby (or his financing body, namely we taxpayers ), as NR was not being sued by him (The SoSs were) and being represented seems to have been NR's choice. I don't really know what they were doing there.

 

[najaB]

I can't see how the two things are related.

Inflation.

 

[Joseph_Locke]

I can't see how the two things are related.

The additional costs incurred by the contractor JV whilst not progressing with an optimum programme.

The NR costs resulting from extending the programme.

The consequential delay to (and cost inflation of) Oxford Road, Piccadilly 15 &16, Manchester remodelling, etc.

 

[SodTheDrummer]

I can't see how the two things are related. I note that NR was represented at the hearings, but I imagine those costs would be found from NR's legal budget, not the Ordsall budget. I have wondered whether those legal costs are recoverable from Whitby (or his financing body, namely we taxpayers ), as NR was not being sued by him (The SoSs were) and being represented seems to have been NR's choice. I don't really know what they were doing there.

NR's budget is NR's budget. Yeah it might come out of a different cost centre, but at the end of the day it's us (taxpayers) funding the cost for Whitby's ego trip. Whilst he's had the benefit of a protective costs order. Wouldn't imagine NR had any such benefit...

 

[furnessvale]

I can't see how the two things are related. I note that NR was represented at the hearings, but I imagine those costs would be found from NR's legal budget, not the Ordsall budget. I have wondered whether those legal costs are recoverable from Whitby (or his financing body, namely we taxpayers ), as NR was not being sued by him (The SoSs were) and being represented seems to have been NR's choice. I don't really know what they were doing there.

It is widely reported that Whiby was granted a Protection of Costs Order which limited his Liability to £5000 meaning all the rest comes from YOU and ME.

 

[HowardGWR]

Yes, thank you, I knew that; that's what I meant. It was my way of expressing it. I suppose I should have used the modern 'aka' instead of 'or' but I am old fashioned.

 

[Xenophon PCDGS]

I suppose I should have used the modern 'aka' instead of 'or' but I am old fashioned.

You most certainly should not have used the "aka" term. Good English when correctly spoken or written. has no need of such as those.

I very much doubt if there are many website members who are as old-fashioned as I...

 

[furnessvale]

Yes, thank you, I knew that; that's what I meant. It was my way of expressing it. I suppose I should have used the modern 'aka' instead of 'or' but I am old fashioned.

I think I see what you mean.

In answer to that, I don't think there is a public purse from which Network Rail can recover its costs therefore, in the next 12 months there will be one less station receiving a minor refurbishment to cover those costs.

We can only hope it is the station Whitby uses, and the hole in the roof is right where Whitby stands waiting for his train on a rainy day!

 

[kevconnor]

That would be the one in Dubai, where he currently resides.

 

[Philip Phlopp]

That would be the one in Dubai, where he currently resides.

Ah well, the hope is for sun burn then. I'm surprised he's still getting work, or that such a character has decided Dubai is the place for his sort of dissension.

 

[Xenophon PCDGS]

It is widely reported that Whiby was granted a Protection of Costs Order which limited his Liability to £5000 meaning all the rest comes from YOU and ME.

Does that Protection of Costs Order apply to any UK national, irrespective of where they reside?

 

[DaveNewcastle]

An order to protect a litigant from excessive costs is one of a range of measures which fall under the general heading of Costs Management. There are several purposes to which Cost Management is directed; these can include the control of costs in personal injury, in employment disputes, and in bringing a Judicial Review of public interest.
I'm not aware that either the nationality of the litigant nor their domicile nor their status as an individual, corporate body, charity or government agency, would be factors in deciding a direction to protect costs.

But to be clear, "that Protection of Costs order" was only granted to that one litigant.

 

[HowardGWR]

The additional costs incurred by the contractor JV whilst not progressing with an optimum programme.

The NR costs resulting from extending the programme.

The consequential delay to (and cost inflation of) Oxford Road, Piccadilly 15 &16, Manchester remodelling, etc.

I see your point, but the Inquiry process drags on (regardless whether someone starts litigating, like Whitby) and should be planned contractually, so that no extra costs results as a consequence of that dragging on, except for possible cost inflation.

In other words, contracts with suppliers should be drawn up to contain an exception clause to enable a variable start date, or they should not be drawn up until that risk is passed.

On cost inflation, I thought we were supposed be experiencing deflation at the mo.

 

[edwin_m]

I see your point, but the Inquiry process drags on (regardless whether someone starts litigating, like Whitby) and should be planned contractually, so that no extra costs results as a consequence of that dragging on, except for possible cost inflation.

In other words, contracts with suppliers should be drawn up to contain an exception clause to enable a variable start date, or they should not be drawn up until that risk is passed.

That would effectively be trying to push a risk onto a contractor that they can't control, so they would just add a bit chunk onto the price to cover the possibility that they can't start on the planned date and their workforce is sat around costing money and doing nothing. Far better for NR to keep the risk in house, so that the contractor only gets that payment if that situation actually arises. Probably better still is some kind of risk share arrangement so both parties have an incentive to find something useful for the workforce to do in the meantime.

On cost inflation, I thought we were supposed be experiencing deflation at the mo.

I think this is more to do with the costs of construction going up by more than general inflation and forecast to continue doing so. Even if you do all the calculations in "real terms" (deflated by retail price index) the costs are higher if something is done further into the future.

 

[hwl]

That would effectively be trying to push a risk onto a contractor that they can't control, so they would just add a bit chunk onto the price to cover the possibility that they can't start on the planned date and their workforce is sat around costing money and doing nothing. Far better for NR to keep the risk in house, so that the contractor only gets that payment if that situation actually arises. Probably better still is some kind of risk share arrangement so both parties have an incentive to find something useful for the workforce to do in the meantime.



I think this is more to do with the costs of construction going up by more than general inflation and forecast to continue doing so. Even if you do all the calculations in "real terms" (deflated by retail price index) the costs are higher if something is done further into the future.

Agree on contract risk front.

The deflation is coming from lower energy costs which feed through into lower manufactured goods costs and lower food/farming input costs.
Construction costs (exc rebar Steel) have been inflating quite rapidly over number of years particularly due to wage pressures wth no signs of change.

 

[najaB]

In other words, contracts with suppliers should be drawn up to contain an exception clause to enable a variable start date, or they should not be drawn up until that risk is passed.

What's in it for the contractors to accept these terms - other than a higher overall contract price?

On cost inflation, I thought we were supposed be experiencing deflation at the mo.

Retail prices of the things we buy on a day-to-day basis, yes. Construction materials, rails, S&C and S&T equipment, not so much.

 

[LNW-GW Joint]

What's in it for the contractors to accept these terms - other than a higher overall contract price?
Retail prices of the things we buy on a day-to-day basis, yes. Construction materials, rails, S&C and S&T equipment, not so much.

You'd think anything steel-based would be nice and cheap just now.
If not, why not?

 

[HowardGWR]

I made it clear (I thought) that if a contract containing exclusion clauses would prove too expensive, then don't finalise on tender decisions until one has certainty about the project. Getting planning permission (or TWA) plus possible LBC, is essential before spending sums on development. NR has taken a risk with this project, after Whitby went to JR, and it could have all gone horribly t*ts up.

 

[Philip Phlopp]

You'd think anything steel-based would be nice and cheap just now.
If not, why not?

Different steel products and different alloys, manufactured or processed differently. The stuff the Chinese are tending to dump is reinforcing bar and to cold rolled structural steel, not rail or tubular stock, the only place where dirt cheap steel could knock down prices is in gauge clearance works on bridges, and the structural steel used for electrification masts/portals, but in both cases, the steel cost of the project is pence in the pound or a bit less.