A12 widening scheme: junctions 19 to 25 (Boreham to Marks Tey)

Specialist CPO & Blight solicitors advising clients affected by the A12 widening scheme.

Holmes & Hills Solicitors is currently advising and representing a number of property and land owners who are affected by the A12 Chelmsford to A120 Widening scheme, a project of Highways England.

The proposed scheme involves widening the existing A12 to three lanes in each direction, in those stretches where there are currently two lanes only. This would mainly involve online widening of the carriageway, with offline highway created between junctions 22 and 23 (Rivenhall End Bypass) and between junctions 24 and 25 (Kelvedon to Marks Tey). This would be accompanied by junction improvements (junctions 19 and 25), construction of new junctions catering for traffic movements both north and southbound (junctions 21, 22 and 24), and removal of existing junctions (junctions 20a, 20b and 23).

The scope of the proposed work could affect land and property owners in close proximity to the A12 between junctions 19 to 25. As such owners may find themselves subject to a compulsory purchase order or blight notice.

Blighted properties

Property and land becomes blighted when it is likely that all or part of a property or piece of land is likely to be the subject of a Compulsory Purchase Order (CPO). Due to the nature of projects that lead to compulsory purchases it is often widely known what properties will be affected by a project such as the A12 widening a material time before compulsory purchases are made. Such properties therefore lose value and will often become unsaleable long before Compulsory Purchase Orders are issued.

To provide for this situation and to save property owners having to wait to be issued with a Compulsory Purchase Order before being able to sell or release value from the property or land, owners can serve a Blight Notice on the authority likely to issue the CPO at some future date. Issuing a Blight Notice on the respective public authority (this being Highways England in the instance of the A12 Chelmsford to A120 Widening Scheme project) allows property owners to deal with matters according to their timescale as opposed to being at the mercy of the processes and timescales of the public authority, which can often be years.

Property and land owners affected

Holmes & Hills Solicitors is currently advising a number of property and land owners likely or potentially affected by the preferred announced by Highways England. Some of these property and land owners have received correspondence from Highways England inviting a Blight Notice.

Holmes & Hills’ service to these clients includes advising on whether their property will be blighted and advising on negotiations and settlement in relation to consideration to be paid for property and land to be purchased by Highways England.  

Property and land not to be purchased but to be blighted

In some instances there will be a case to be made where property or land is unlikely to be subject to any future Compulsory Purchase Order but is likely to be blighted by the development to take place, owing to its proximity to the proposed development. This is a complex area and there will be many property and land owners that would feel their property is blighted but where it would not be.

Where part of a property or piece of land is likely to be subject to a future purchase order, it is likely to be the case that the owner will be able to make a claim for Blight relating to the property and land they will retain.

Negotiation and settlement

Issues of Blight and compulsory purchases are surrounded by complex legal issues and there is likely to be material negotiation and representation required in order to achieve the most favourable financial settlement for a property and land owner.

A12 widening scheme planning updates

23rd October 2020 update

A12 Preferred Route Announcement (PRA)

In October 2019 Highways England announced its preferred route for the first section of the widening scheme from junctions 19 (Boreham interchange) to junction 23 (Kelvedon South) of the A12. In late 2019 a public consultation was held on four potential routes between junctions 23 and 25 (Marks Tey). Those routes were to be considered further if the joint Braintree District and Colchester Borough Council Garden Community was given the “green light”.

However, in May 2020 a Planning Inspector made a recommendation that the Garden Village be removed from Braintree and Colchester’s joint Local Plan. As a result, Highways England have ruled out all of the 2019 consultation routes and have now reverted to its preferred route following an earlier 2017 consultation.

A further consultation is now planned to take place in 2021 concerning detailed designs for the original preferred route from 2017. Further information can be found here: https://highwaysengland.co.uk/our-work/east/a12-chelmsford-to-a120-widening-scheme/.

Following the consultation of the new preferred route planned for 2021 and due to this A12 project being a “Nationally Significant Infrastructure Project”, Highways England will seek a Development Consent Order (‘DCO’). The DCO will likely involve a public hearing and ultimately require approval from the Secretary of State for Transport before a DCO is made. If made, a DCO may follow as early as autumn/winter 2021, but more likely 2022, with Highways England stating an intention to start constructions works in 2023 or 2024.

29th September 2022 update

A12 Chelmsford to A120 widening scheme DCO application accepted

A national proposal to widen the A12 between junctions 19 (Chelmsford) and 25 (A120 interchange) has taken a step closer to delivery following the decision by the Planning Inspectorate on 22 September 2022 to accept the relevant application for Development Consent Order (DCO) for examination.

The DCO application affects this busy section of the A12, which is an important strategic vehicle route for both freight and commuters, linking - as it does - Ipswich to London, the M25 and beyond. The £1b plus scheme aims to improve safety for road users, reduce traffic congestion, remove long distance traffic from local roads, increase the capacity of the local road network allowing it to keep up with projected local economic and residential growth and deliver improvements for walkers, cyclists, horse riders and public transport users.

DCOs were first introduced in 2008 as a means for developers to obtain permission to construct and maintain developments categorised as Nationally Significant Infrastructure Projects (NSIPs). These include energy, transport, water and waste projects, together with some major road improvement proposals, such as the A12 widening scheme. The aim is that a single approved DCO will provide all necessary authority for the NSIP to which it relates and means promoters no longer need to seek a raft of separate consents (planning, compulsory purchase, highways etc) for any given scheme.

If granted, this DCO will confer powers on the applicant – National Highways – to compulsorily acquire land and rights, stop up and divert highways and use land temporarily and permanently for the purposes of the widening scheme. It will also authorise the alteration and diversion of a high-pressure gas main.

This DCO will temporarily or permanently affect a total of 836ha of land in the vicinity of this section of the A12; landowners may already be aware that their property is affected as a result of the various consultation and land surveying exercises undertaken by National Highways to date. Compensation will be payable in due course to qualifying claimants whose interests are affected by the confirmed scheme.

Whilst formal acceptance of the DCO application for Examination represents a major milestone for the promoter, interested third parties are nonetheless still able to have their say in the Examination and as such there is an opportunity for such parties to shape the detail of the DCO insofar as it affects their interests before its final confirmation.

Applications to register as an Interested Party can be made during the relevant representation period which closes on 4 November 2022. Once formally registered, an Interested Party can submit written representations to the Examination and can also request the opportunity to speak at the Examination. Registered Interested Parties will also be kept up to date with the progress of the DCO application from time to time.

The Examination will be held in public within six months of the acceptance of the DCO application, with the Examination Inspectors’ recommendation and Secretary of States’ decision following within prescribed time limits.  National Highways plan to start work in 2023-2024 with completion anticipated in 2027-2028.

24th January 2023 update

The application was accepted in September 2022 and the Planning Inspectorate has been appointed as Examining Authority to assess the application and make recommendations to the Secretary of State as to the acceptability of the proposal.

Those affected by the proposal had the opportunity to register themselves last Autumn as ‘Interested Party’ with a right to participate in the examination.

Following the recent preliminary meeting, the examination timetable has now been set which imposes the deadlines by which further information from either the Applicant or Interested Parties must be supplied to the Examining Authority; failure to submit relevant information by the specified deadline will mean the Examining Authority is under no obligation to take that information into account.

The timetable, which can be viewed in full at https://infrastructure.planninginspectorate.gov.uk/, sets out all procedural details for the examination. Those who have registered as Interested Parties should be contacted directly by the Examining Authority in any event but it is noteworthy that:

  • Requests by ‘Affected Persons’ (ie those identified as having an interest in land which is subject to compulsory acquisition) to be heard at a Compulsory Acquisition Hearing must be submitted by Monday 30 January 2023; Compulsory Acquisition hearings, if required, are scheduled to take place on 1/ 3 March 2023, during the w/c 24 April and 27/28 June 2023.
  • Requests by Interested Parties to be heard at any further open floor hearing must be submitted to the Examining Authority by Monday 30 January 2023. Further open floor hearings may be held during w/c 24 April and 27/8 June 2023.
  • ‘Interested Parties’ are requested to submit written representations (expanding upon their original Relevant Representations and supported by data/methodology/assumptions where appropriate) by Monday 13 February 2023. Where any written representation exceeds 1500 words a summary must be provided.
  • Statutory Parties and Local Authorities need to confirm to the Examining Authority any wish to be treated as an Interested Party by Monday 30 January 2023.
  • The Examining Authority has published a first set of written questions for the Applicant and other Statutory Parties to address by Monday 13 February 2023 in relation to a wide range of topics including climate change, compulsory acquisition, the gas pipeline diversion, health, land use, materials and waste, noise and vibration etc. The Applicant has been asked to provide an update on the position of ongoing negotiations for acquisition by agreement as part of its response.
October 2023 update

On the 12th October 2023 the Examining Authority issued a Recommendation Report to the Secretary of State. That Report followed various hearings over April, May, June and July 2023 and following the submission and review of over 1,200 documents. The Secretary of State now has three months to issue a decision on the scheme (i.e. whether to allow it or not) and that decision is due 12th January 2024.

If consent is granted, construction will begin in 2024 and the road is expected to be open to traffic in 2027/28.

Both the decision letter and the Recommendation Report should be published not later than the 12th January 2024 and we will provide a further update once the decision is known.

11th January 2024 update

The National Highways proposal to widen the A12 between Junctions 19 and 25 (The A12 Scheme) was the subject of a public examination which took place between March and July 2023; The Examining Authority issued its Recommendation Report to the Secretary of State in October 2023, and a Government decision regarding the A12 Scheme is therefore anticipated anytime from 12 January 2024. National Highways anticipate that if the proposal is confirmed, the A12 Scheme will deliver improved safety for road users, reduce traffic congestion, increase the future capacity of the road network, remove long distance traffic from local roads and introduce improvements for walkers, cyclists, horse riders and public transport users by providing them with better connections and safer, more enjoyable journeys.

If successful, a Development Consent Order (A12 DCO) will be issued which will authorise National Highways to construct and use the A12 Scheme. This A12 DCO will confer powers of compulsory acquisition on National Highways as well as the power to stop up and divert existing highways and public rights of way. Around 836 hectares of land is required for the A12 Scheme; owners and occupiers of the land affected by the A12 Scheme will already have received formal notices and correspondence from the promoters to put them on notice of these proposals. Some landowners have participated in the examination; others may have already started negotiations with National Highways regarding the sale of their interests.

As and when the A12 DCO is confirmed, affected landowners can expect National Highways to start the process of land assembly in earnest through the formal exercise of their powers of compulsory acquisition.

Subject to any legal challenge which may be pursued against the grant of the A12 DCO, it will not be possible for affected landowners to resist the compulsory acquisition of their interests; National Highways will have the right to acquire their property and the landowner will instead have a financial claim for compensation. The quantum of this claim will be governed by a set of rules and principles known as’ The Compensation Code’, the aim of which is to put landowners into a position of equivalence, ie they should be no better or worse off than if the A12 DCO with its compulsory purchase powers had not been confirmed.

Broadly, owner-occupiers should expect to receive a compensation package based on:

  • the market value of their title interest (unaffected by the impact of the underlying Scheme),
  • compensation for severance or injurious affection where part only of a property is acquired,
  • statutory loss payments (if available),
  • disturbance (to reimburse those costs incurred directly in consequence of the dispossession such as valuation fees, removal costs etc,
  • conveyancing costs,
  • reasonable professional costs in settling the compensation claim.

There are specific principles which govern the position for lawful occupiers, business premises etc.

12th January 2024 update

A12 Development Consent Order made

The Secretary of State has, today 12th Janaury 2024, confirmed the A12 Chelmsford to A120 Widening Development Consent Order 2024 (‘the DCO’)

A copy of the Order, and the Recommendation Report, are available from the Planning Inspectorate website.

Subject to any Judicial Review the Order comes into force on 9 February 2024.

22nd February 2024 update

A12 Development Consent Order – legal review period to close shortly

It is understood that the period for legal challenge of the recently confirmed A12 Chelmsford to A120 Widening Scheme Development Consent Order is due to expire in the coming days. If no challenges have been lodged during this period, then it is anticipated that landowners affected by the proposals will start to receive further correspondence and information from National Highways as they move to initiate the process of land assembly ahead of the commencement of construction.

7th March 2024 update

A12 widening Development Consent Order: legal challenge lodged

Plans to widen the A12 (Chelmsford to A120) have suffered a set back; the £1.2bn scheme promoter, National Highways, has confirmed that a legal challenge to the Secretary of State for Transport’s decision to grant development consent for this scheme has been lodged.

No details are available as to the complainant, nor the grounds of challenge, but the legality of the decision to grant development consent for this scheme will now have to be tested by the Courts to determine whether the Secretary of State acted lawfully in its decision making process.

National Highways has confirmed that there will be delay to the start date of the planned road widening scheme, whilst the legal issues are addressed by the Courts. This may include delay to the exercise by National Highways of its powers of compulsory acquisition in relation to this scheme.

Philip Davie, National Highways project director for the scheme, said "We stand by our plans and remain confident that our proposals to improve the A12 will increase safety, reduce congestion, and futureproof the road for economic growth in the East of England. We cannot confirm when we can start to deliver these vital improvements until the legal challenge is resolved."

Details of the challenge can be found in our article A12 widening Development Consent Order: legal challenge update

29th April 2024

A12 widening Development Consent Order: legal challenge FURTHER update

Following our earlier article Holmes & Hills LLP have now seen a copy of the response to the Judicial Review application. We further report as follows.

  • Both the Secretary of State for Transport (SoS) and National Highways have resisted the claim – both instructed Kings Counsel to prepare their “Summary Grounds of Resistance”.
  • The SoS assert that “each of the grounds of land is unarguable and the [SoS] respectfully invites the Court to refuse permission for the Claimant to pursue [a Judicial Review]”.
  • National Highways invite the Court to be “cautious before granting permission to… grounds of claim which have already been lost and/or which the Court has already considered to be unarguable”; this being a reference to 3x challenges on materially similar grounds but concerning improvement works to the A47 which have been refused by the High Court and Court of Appeal.
  • Both the SoS and National Highways assert it would not be appropriate to Stay (i.e. delay) this Judicial Review application regarding the A12 simply because an application to the Supreme Court has been made in respect of another scheme [the A47].
  • Both the SoS and National Highways assert that the claim should be designated a “Significant Planning Court Claim” – the effect of which is, simply, to apply an expedited procedure and bring the Court decision forward to its earliest possible date. National Highways assert that a Stay would “would delay a much needed Scheme [i.e. the A12 widening] from progressing thereby potentially causing unjustified cost to the public purse”.
  • National Highways make the case that, even if there is any technical error (which it denies), then it is likely that the decision would be the same - i.e. to make the Development Consent Order – and so ask that the Court decline to quash/allow the Judicial Review on this basis. The law behind this is s31(2A) of the Senior Courts Act which requires the High Court, if it appears to be highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred, to refuse relief (i.e. not quash the decision under challenge and send it back for re-determination). Readers should note that the High Court has a discretion to disregard this statutory requirement - i.e. that it must refuse relief – for reasons of exceptional public interest.
  • It is not known whether the Claimant has, or will, exercise a right of Reply – the formal right to do so only becoming effective recently [6 April 2024] and subject to prescribed, and strict, rules.

As before, Holmes and Hills LLP will continue to monitor the situation and provide updates directly to affected clients and via our website as appropriate.

Holmes & Hills’ Planning and Development Team, which is one of the largest teams of specialist Planning Law solicitors in East Anglia, has a wealth of experience representing property owners in submitting Blight Notices on public authorities and representing them in negotiations and settlement surrounding compulsory purchases. Please contact Mike Harman, Mel Francis or Catherine Hibbert if you have land affected by the A12 Scheme and need advice on your entitlement to compensation, the scope of your claim and your next steps.

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