Time for scrutiny

Even if the emergency aspect is disregarded, it was only a matter of time before the Class Q schemes at Wellinditch, Benton Road, Congham and Rudgate bridges, as well as Wiggenhall and Queensbury Tunnel, achieved unlawful status due to expiration of the maximum permitted retention period.

The HRE Group took the view that such a situation was unsustainable for a state body as it eroded trust and confidence. If National Highways was ever to be regarded as an appropriate custodian of the Historical Railways Estate, these schemes would need to be regularised so a line could be drawn under them. So the Group engaged with the relevant LPAs in an effort to move things forward.

The Borough Council of King’s Lynn & West Norfolk and Selby District Council both responded positively, contacting NH to understand the circumstances around the Congham and Rudgate schemes, and why the infills had not been removed. Vigorous lobbying to obtain written consent for retention without stakeholder/consultee scrutiny proved fruitless and National Highways had to concede to submitting retrospective planning applications, doing so after the specified deadline in both cases.

NH curried favour with Congham Parish Council (CPC) in the hope of receiving its support for the application there, issuing an apology for the previous lack of dialogue and acknowledging that mistakes had been made. But CPC objected anyway. Permission for the infilling was unanimously refused by the Borough Council’s planning committee on 2 October 2023, with an Enforcement Notice subsequently issued requiring the bridge’s return to its previous state. However, this was overturned on appeal to the Planning Inspectorate - the matter being described as “finely balanced” - and the structure will remain buried, as explained here.

At the time of writing, determination of the Rudgate application is overdue. The scheme involved a highly-skewed masonry arch bridge from the 1840s, unnecessary development in the Green Belt and the unauthorised felling of protected trees. Heritage consultees have expressed their reservations and advocated a better outcome for the structure.

Maldon District Council gave retrospective written consent for the Wellinditch infilling without a planning application, contrary to Government guidance on Class Q. There’s been no meaningful engagement from Redbridge District Council about the Benton Road scheme and it’s likely that this will stand as unauthorised development.

BCKLWN proactively took enforcement action regarding the Wiggenhall demolition, but pragmatically decided to drop the case when National Highways failed to make a retrospective planning application by the time stipulated. It’s not clear what could have been done if planning permission had been sought and refused, given that the abutments had gone. Again, the matter will remain unauthorised.

As well as significant challenges, Queensbury Tunnel offers a unique opportunity to deliver an ambitious and iconic active travel route, delivering social benefits as well as improving local connectivity. Stakeholders are working out what can be achieved and it’s clear that Bradford Council is not currently willing to muddy the waters by confronting National Highways over its unwarranted and provocative actions at No.2 Shaft.

Lessons learned

In terms of putting wrongs right, the picture remains mixed. What’s been clearly revealed though is a troubling culture within National Highways whereby it felt empowered to misinterpret the law for its own convenience, short-circuiting safeguards put in place by legislators to ensure appropriate control over development. Self-interests were deemed more important than the protection of our nation’s heritage and consultation with invested communities. It presumably thought nobody would care, but has since been dispelled of that notion.

Whilst the procedural changes implemented by NH as a result of the backlash are welcome and extensive - and should prevent the worst excesses of its previous regime - the cultural shortcomings persist, particularly in relation to its ongoing exaggeration of risk and misrepresentation of evidence. Plain vanilla truth is an alien concept to NH, as is possibly the case with many big public bodies. Engrained mindsets and a sense of entitlement are not reset through the imposition of theoretical written processes.

It’s perhaps worth highlighting National Highways’ own statements to the public inquiry into Congham bridge. “Safety or load-carrying capacity was not the main motivation for the infilling scheme”, it made clear in closing argument. It was “predominantly a maintenance/durability driven scheme.” The Inspector reaffirmed this, stating that “The works were not carried out principally (if at all) for reasons of safety”.

So if safety was not a factor and hence there was no emergency, why was Class Q invoked at Congham? According to the company’s barrister, National Highways had formed “a mistaken view about the scope and applicability of Class Q in this case.” The Inspector went a little further, describing its use as “rather misguided”, though she was “not satisfied” that NH “deliberately set out to break the law”.

We’ll never know what she would have concluded if Congham bridge had been amongst the structures covered by the 29 Class Q letters mailed-out en masse on the same September day in 2020. NH knew what it was doing: Class Q is simple, concise legislation, from which an errant interpretation is not easily reached. It’s obviously not framed to cover the prevention of an emergency that might arise in 50 years’ time if an asset is not diligently managed. That’s just an advert for routine maintenance.

It’s fair to presume that it would take a ‘genuine’ emergency for National Highways to go down this road again. However grudgingly, it has committed - by default - to seek planning permission for future infill schemes (subject to any contrary view expressed by an LPA), albeit noting that the initial motivation for Class Q’s wider exploitation - the potential for two dozen infill schemes every year - has evaporated along with its huge anticipated budget increase.

Much of this episode should make us feel uncomfortable. Perhaps the essential takeaway is that we can’t just assume public bodies will do the right thing, reflecting our broader social values, interests and policies. There’s a compelling need for oversight and that was lacking until National Highways’ misjudged imposition of the Great Musgrave scheme - empowered by Class Q - caused the whole house of cards to fall down around it.