Safeguarding directions for major infrastructure schemes

An infrastructure safeguarding direction is an instruction from the Secretary of State to local planning authorities, telling them to consult the promoter of a major scheme before granting permission on land the scheme may need, and to refuse or condition anything that would prejudice it. Directions of this kind are made under article 31 of the Town and Country Planning (Development Management Procedure) (England) Order 2015, and they sit outside the development plan entirely. Your site can be unconstrained in the local plan and effectively undevelopable because of one.

Safeguarding is not a designation you will find by reading policy. It is a procedural restriction, and it bites on applications rather than on allocations.

How a safeguarding direction works in practice

The direction identifies an area by plan, usually a corridor with limits of land required for the works plus a margin for construction compounds, worksites and temporary access. Within that area the local planning authority must consult the promoter on applications of specified descriptions.

The promoter then responds in one of three ways. It raises no objection, which means the application proceeds normally. It objects, in which case the authority is generally directed to refuse or to not grant permission without the Secretary of State's agreement. Or it responds with conditions, typically requiring the development to be built in a way that does not obstruct the scheme, or limiting its life.

Two points about the mechanism matter commercially. The promoter is not the decision-maker, so its objection is not a refusal in itself, but the direction removes the authority's discretion to disregard it. And the direction can be amended as the scheme's design develops, so an area safeguarded in one iteration may be released in the next, or extended.

Safeguarding is separate from compulsory purchase and from the consenting route for the scheme itself. A railway or energy project may be authorised by a development consent order under the Planning Act 2008, by a hybrid Act, or by a Transport and Works Act order, and safeguarding usually runs ahead of any of them.

Checking whether a site is affected

This is where acquisitions go wrong. A standard local land charges search and the usual conveyancing enquiries will not reliably reveal a safeguarding direction, because it is not a charge on the land and is not recorded in the register in the way a tree preservation order or an enforcement notice would be.

Four checks are worth making before exchange.

• Ask the local planning authority directly, in writing, whether the site falls within any safeguarding direction or consultation area, and ask for the plan.
• Check the promoter's own published safeguarding maps, which are usually available for named schemes.
• Ask the promoter whether the site is within its current land requirement, including temporary construction land.
• Check the planning history of adjoining sites, because a nearby refusal or a condition referencing the scheme is a strong signal.

Safeguarding areas also come in other forms that use the same machinery: aerodrome and technical site safeguarding, military explosives storage areas, mineral safeguarding areas in local plans, and water and waste infrastructure protection. They work differently in detail, so establish which regime applies rather than treating all safeguarding as one thing.

The lesson is the same as the one in our note on historic environment record searches. The standard search package is not a constraints survey, and the things that stop a scheme are usually the things nobody asked a direct question about.

What the promoter is actually consulted on

The promoter's concern is narrow. It wants to avoid paying more for land later, to avoid structures that complicate construction, and to keep its options open on alignment and on worksites.

So the objections follow a pattern. New buildings within the permanent land requirement are resisted outright. Development within the temporary construction land is resisted or limited in duration. Deep foundations, piling, basements and tunnelling within the safeguarded limits attract objection even where the surface use is unaffected, because they constrain the scheme's own engineering. Utilities diversions matter too, since a new connection crossing the alignment becomes the promoter's problem, which is a reason to get the Utilities Assessment done early on any site near a safeguarded corridor.

Changes of use with no building work are often acceptable. Hard standing, parking and open storage frequently are. The promoter is protecting its ability to build, not preventing all activity.

Development that can still proceed

A safeguarding direction is not a prohibition, and schemes do get consented inside safeguarded areas.

The approaches that work are these. Design to keep permanent structures outside the safeguarded limits, even at the cost of a less efficient layout. Accept a condition limiting the life of the development to a defined period or until the scheme requires the land. Offer a scheme that can be removed, such as modular buildings or open uses. Phase the development so that the part within the corridor is delivered last, by which time the alignment may be fixed. Or negotiate directly with the promoter on a layout it can live with, which is usually quicker than arguing through the authority.

Temporary and interim uses are the pragmatic answer on land held for years. Promoters often prefer a site in active interim use to a vacant one, because vacancy brings fly tipping and security costs, and some will agree to interim leases on their own holdings.

Blight, compensation and acquisition

Where safeguarding makes land unsaleable, the statutory blight provisions in Part VI of the Town and Country Planning Act 1990 may help. Schedule 13 lists the categories of blighted land, and land safeguarded by a direction for a public scheme can fall within them.

A qualifying owner may serve a blight notice requiring the appropriate authority to acquire the interest. Eligibility is restricted: the categories cover owner-occupiers of dwellings, and owner-occupiers of other property below a rateable value limit, together with some agricultural units. A large commercial landowner usually falls outside, which is a frequent surprise.

Several major schemes also operate discretionary purchase arrangements outside the statutory scheme, with their own eligibility rules and boundaries. Those arrangements change, so check the promoter's current published scheme rather than relying on what applied to a neighbour three years ago. Compensation on eventual acquisition follows the compulsory purchase compensation code, and the government's published guidance on the compulsory purchase process is the starting point.

Take proper advice before serving a blight notice. The procedure has deadlines and a counter-notice route, and a notice served by an ineligible claimant achieves nothing while giving away your position.

Engaging with the promoter early

The single most useful action on a site near a safeguarded route is a direct conversation with the promoter's land or planning team before the design is fixed.

What you want from it is the current land requirement plan, an indication of the programme, and a view on whether the proposal as drawn would attract an objection. Promoters answer these questions because an early answer costs them less than a contested application. A written response, even an informal one, is worth having for the Planning Statement, because an application that says the promoter has been consulted and does not object removes the authority's main reason for hesitation.

The honest uncertainty is timing. Major schemes slip, and land safeguarded for a project that is years from construction can stay encumbered for a decade. That is a commercial risk to price rather than a planning problem to solve, and it is why interim-use consents and option structures are more common around safeguarded corridors than outright development.

This is general guidance rather than legal advice. Check the position with your local planning authority, the scheme promoter or a qualified professional before relying on it.

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