SF/EH/2080/14
Official Sensitive
M4 Corridor around Newport ~ Outcomes of draft Plan Process
To:
1. Jeff Collins
2. Minister for
Economy, Science
and Transport
From:
Martin Bates
IDD Transport
Cathays Park
Cardiff
Tele 02920 826360
Date:
cc
PS First Minister
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First Minister)
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Jeff Collins
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11 July 2014
M4 Corridor around Newport
Outcomes of draft Plan Process
Issue
1. This submission provides the conclusions of the M4 Corridor around Newport draft
Plan development, assessment and consultation.
Timing
2. A response on the adoption of the Plan is required to inform the Cabinet meeting
on 14 July 2014.
Recommendation
3. You are asked to agree to:

the Statement of Information at doc 1, which should be published at the same
time as the public announcement on the M4 Corridor around Newport;

adopt the draft Plan for the M4 Corridor around Newport;

the inclusion of the Ministerial foreword at doc 2 in a public summary report
entitled “The Plan”;

the publication of The Plan, at doc 3, and The Plan - Strategic Environmental
Assessment Post Adoption Statement, at doc 4, in accordance with the Post
Adoption Procedures set out at Regulation 16 in Part 4 of the SEA
Regulations;
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
SF/EH/2080/14
the publication of the following new reports which inform the draft Plan
decision making process;
o The Plan - Consultation Participation Report, at doc 5A and 5B
o The Plan - Strategic Appraisal of Alternatives Considered during
Consultation, at doc 7
o The Plan - Equality Impact Assessment, at doc 9
o The Plan - Health Impact Assessment, at doc 10
Background
4. The Statement of Information at doc 1 contains the facts and analyses relating to
the submission that may be published in accordance with the Welsh Government’s
Code of Practice. This statement should be read in conjunction with the following
information, which is considered exempt from publication under the “Code of
Practice on Access to Information.
5. Public consultation on the draft Plan, was carried out in accordance with the
Environmental Assessment of Plans and Programmes (Wales) Regulations 2004
(SI 2004 No 1656) (“the SEA Regulations”), and closed on 16 December 2013.
Consultation documents are available on www.M4Newport.com.
6. If adopted, the draft Plan would lead to:

A new 3-lane section of motorway between Magor and Castleton to the south of
Newport,

Reclassification of the existing M4 between these sections,

A link between the M4, M48 and B4245,

Cycling and walking friendly infrastructure.
Advice
7. If the draft Plan is adopted, a subsequent separate submission will be provided to
you to inform your decision making on whether the 2006 Preferred Route (which
is still protected for planning purposes) should be modified (taking into account
comments received during the draft Plan Consultation) and whether to start
contractor procurement.
8. An announcement on the outcome of the draft Plan is planned before summer
recess.
9. The results of the consultation, as summarised in this submission, inform decision
making on whether to adopt the draft Plan.
10. All reports which inform the decision making on the draft Plan are listed in the
“Statement of Information” at document one.
11. The First Minister has agreed to the publication of the draft Plan Strategic Habitats
Regulations Assessment (doc 11) which will be published, following the public
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announcement on the M4 Corridor around Newport planned before the summer
recess.
12. The two reports noted below were published as part of the consultation
documents;
 Strategic Environmental Assessment – Environmental Report, at doc 12; and
 Consideration of the options in relation to the Habitats Regulations, at doc 13
Results of Consultation
13. The responses to the draft Plan public consultation (as required by SEA
Regulations) have provided no compelling reasons why the draft Plan should not
be adopted as ‘the Plan’.
14. Detailed analysis has been undertaken in the Consultation Participation Report
(doc 5) with Executive Summary (doc 6) and forms part of the evidence in
determining whether to adopt the draft Plan. The key points of analysis of
consultation responses are:

The Black Route attracts the most comments of support, whilst the
(‘Reasonable Alternative’) Red Route attracts more comments of opposition
than the others.

Most respondents express a preference for the Black Route option over the two
reasonable alternatives and Do Minimum scenario.

More respondents express opposition than support for each option, but it is
important to note that reported numbers may have been influenced by
responses submitted as a result of interest groups’ initiatives, which is reflected
in the geographical spread of such responses.
15. If the draft Plan is adopted, consultation results will be published in the
‘Consultation Participation Report’, following the public announcement on the M4
Corridor around Newport planned before the summer recess.
Alternatives to the Preferred Strategy
16. Various alternatives were proposed during the consultation. These alternatives
have been assessed as part of the consultation process. The outcome of that
assessment is set out in the ‘Strategic Assessment of Alternatives Considered
During Consultation Report’ (doc 7), with Executive Summary (doc 8) which also
forms a key part of the evidence for you to consider when determining whether to
adopt the draft Plan.
17. The conclusion from the assessment of the alternative proposals set out in the
’Strategic Assessment of Alternatives Considered During Consultation Report’ is
that no alternative, including the ‘Blue Route’ improvement of existing roads south
of Newport, constituted a ‘Reasonable Alternative’ to the draft Plan.
18. If the draft Plan is adopted, the ’Strategic Assessment of Alternatives Considered
During Consultation Report’ will be published following the public announcement
on the M4 Corridor around Newport planned before the summer recess.
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Strategic Habitats Regulations Assessment (SHRA)
19. Due to the presence of European protected sites a SHRA was required and has
been produced (doc 13).
20. The SHRA concluded that, with mitigation measures, the draft Plan will not
adversely affect the integrity of European Sites.
21. Natural Resources Wales letter of 9 July 2014 confirmed that they concurred in
principle with the conclusions reached in the SHRA issued on 8July. Their
response identified some minor points that shall be considered prior to final
publication of the report. The minor points do not affect the conclusions of the
SHRA
22. The First Minister, acting on behalf of Welsh Ministers as the Competent Authority
under regulation 61 of the Conservation of Habitats and Species Regulations 2010
considered the SHRA and associated advice and noted that it can be concluded,
beyond reasonable scientific doubt, that the draft Plan will not adversely affect the
integrity of any European Sites.
Newport Docks / Associated British Ports (ABP)
23. ABP and Newport Harbour Commissioners are key stakeholders and currently
have reservations regarding the impact of the proposals.
24. Early indications are that the impact of the draft Plan on current and future Newport
docks operations would not be of major negative significance. Officials have
recently met the organisations and further meetings are planned to agree
accommodation works and compensation.
25. It should be noted that if ABP, or Newport Harbour Commissioners, maintain
objections to a Compulsory Purchase Order (CPO) at Public Local Inquiry then
Special Assembly Procedures would be required with representations going to the
UK Minister responsible for ports and docks. This is a potential risk of up to a
years delay to programme and positive dialogue is required to manage this risk.
Decision on the draft Plan
26. You are advised that the SEA process has shown that the draft Plan published in
September 2013, would have fewer negative environmental effects by promoting
improvements in air quality for longer, avoiding a major landfill site and being
located further away from the residential area at Dyffryn and the Grade 1 listed
Newport Transporter Bridge; whilst meeting the Plan objectives more positively
than the other Reasonable Alternatives. This process and the preparation of ‘The
Plan’ took into account consultees’ opinions, including submitted alternatives, and
the conclusions of the SEA Environmental Report, Strategic Habitats Regulations
Assessment, Health Impact Assessment, Equality Impact Assessment and
Consultation Participation Report.
27. After taking account of the Environmental Report and the responses to the draft
Plan consultation and its associated assessments you may determine whether to
adopt the draft Plan. Your attention is also drawn to the Strategic Environmental
Assessment: Post –Adoption Statement for details of the project teams’
recommendations on how environmental considerations should be integrated into
the draft Plan, how the SEA Environmental Report and the results of and
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responses to consultation on the draft Plan should be taken into account, the
proposed reasons for adoption of the draft Plan in light of the reasonable
alternatives and proposed measures to monitor any significant environmental
effects of implementation of the draft Plan.
28. Any decision must be taken in a procedurally sound manner having regard to all
material considerations including the findings of the recent consultation, with
reasons being given and with an absence of any predetermination or apparent bias
by the decision maker. It is critical that Welsh Government do not act in a way or
say anything that would call into question the statutory process or imply that the
outcome of the consultation on the draft Plan has been prejudged.
29. If the draft Plan is adopted it is also essential that the Post Adoption procedures
set out at Regulation 16 in Part 4 of the SEA Regulations are complied with. These
require, as soon as reasonably practicable after the adoption of a plan, the
responsible authority shall publish;
 Strategic Environmental Assessment: Post –Adoption Statement; and
 ‘The Plan’ document
30. ‘The Plan’ document is to contain a Ministerial foreword by you (doc 2)
31. Legal advice from Counsel is that publication can be withheld until the public
announcement on the M4 Corridor around Newport planned before the summer
recess.
Environment and Sustainability Committee
32. It is noted that this Committee is scrutinising the draft Plan proposals and answers
to various queries have previously been provided by you. The Committee have
stated they will report their findings before recess.
Powers
33. The Welsh Ministers are subject to the requirements of the Environmental
Assessment of Plans and Programmes (Wales) Regulations 2004, which require
that plans or programmes to which the Regulations apply cannot be adopted, or
submitted for adoption, unless they have been subjected to environmental
assessment under the Regulations. The Welsh Ministers must comply with the
requirements of the Regulations in deciding whether to adopt the draft plan.
34. The Welsh Ministers may create new highways pursuant to section 24 of the
Highways Act 1980 and may make an order under section 10 of the Act that the
highway shall be a trunk road for which they are to be the highway authority.
Legal Advice
35. The Environmental Assessment of Plans and Programmes (Wales) Regulations
2004 (SI 2004 No 1656) (‘the SEA Regulations’) require an environmental
assessment to be carried out for certain plans and programmes that are likely to
have significant environmental effects. It has been ascertained that the draft plan is
a plan for the purposes of the SEA Regulations. When an environmental
assessment is required, it must be carried out during the preparation of a relevant
plan or programme and before its adoption. Regulation 12(2) requires that an
environmental report identify, describe and evaluate the likely significant effects on
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the environment of the draft plan or programme and of reasonable alternatives to
the plan or programme, with reasonable alternatives being selected by reference to
the objectives and geographical scope of the plan or programme.
36. A pre-action protocol letter was received in December 2013 from solicitors acting
for Friends of the Earth England Wales and Northern Ireland and Gwent Wildlife
Trust. It sought to challenge the strategic environmental assessment and the
consultation carried out in respect of it. Following advice from counsel, officials
sent a reply to that letter on 17 December 2013 indicating that it was not
considered that any of the arguments had merit and that, furthermore, any action
would be premature, since no decision as to the adoption of a plan had been taken
by the Welsh Ministers. In the event, no proceedings were commenced, although
the likelihood of proceedings being issued against the Welsh Ministers at some
stage in the process remains very high. The two letters of 4th and 20th December
2013 from solicitors acting for Friends of the Earth are attached as docs 14 A and
B.
37. Specialist legal advice has been sought from counsel on compliance with the SEA
Regulations. A summary of issues and levels of risk is presented in doc 15. A copy
of Counsel’s detailed opinion is annexed to this Submission as doc 16
38. It will be noted that Counsel has concluded that there is a real risk that a court
would hold that the Welsh Ministers had failed to comply with the requirement,
imposed by the SEA Regulations that the Environmental Report state an outline of
the reasons for selecting the reasonable alternatives dealt with in it. In saying so,
he has also advised that there is, as yet, not a great deal of case law on the SEA
Directive or the SEA Regulations. In particular, there is little by way of guidance
from the courts as to how they apply in a case where the plan or programme
consists of a new road. He advises that, whilst there are reasonable legal
arguments that the draft Plan does provide an outline of the reasons, if a legal
challenge was brought on this alleged ground there is a real risk that it would be
successful. The Project Team have advised lawyers that, notwithstanding the
absence of an express outline of reasons they are confident that the reader would
be able to discern an outline of the reasons from the Environmental Report and the
WelTAG documents
39. In relation to other potential areas of challenge, Counsel advised that it is unlikely
that a Court would find there was a duty on the Welsh Ministers to consult on the
June 2013 WelTAG report. He advises in relation to any challenge based on the
alleged failures within the draft plan to identify reasonable alternatives (including
alternatives with less environmental harm, the Blue Route and public transport
alternatives) that the law provides a substantial area of discretion on the Welsh
Ministers in relation to the extent of the enquiries into the reasonable alternatives
and it is for the Welsh Ministers, not the Courts, to decide what is a reasonable
alternative to the draft Plan. This decision-making is only susceptible to judicial
review on public law grounds (such as unreasonableness, failure to take into
account relevant factors or accounting irrelevant factors). Counsel considers it is
unlikely that a potential challenge on those grounds would succeed
40. In relation to Friends of the Earth’s contention that up-to-date transport studies and
Welsh Government policies have not been considered as part of the draft plan and
that there is no basis for downgrading the impact of the Black Route, the project
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team have considered these allegations in detail and are satisfied that there is no
merit in the arguments put forward.
41. Counsel has advised that in the event of a successful legal challenge on one or
more of the above grounds, it is likely that the Court would quash the Welsh
Minister’s decision on the adoption of the plan. If that were the case, in order to
proceed with this project the Welsh Ministers would be required to prepare and
carry out a new consultation on a revised draft Plan which complied with all the
relevant requirements.
42. Legal Services have advised the First Minister under SF/FM/2282/14 on a decision
to approve an SHRA in respect of the draft Plan. It was noted that specialist
Counsel advice was that if a challenge is brought to any decision to adopt the draft
Plan based on the failure of the SHRA to comply with the Habitats Regulations,
there is a real risk that such a challenge would be successful. In percentage terms,
Counsel considers the risk of successful challenge to be at 45%. This risk is
identified in more detail in SF/FM/2282/14.
Next Steps
43. Should a decision be taken to adopt the draft Plan, the next step would be for
Cabinet to note the paper “Conclusions of the M4 Corridor around Newport
Consultation and the Proposed Way Forward - I&D (13-14)9, to note the Minister’s
decision to adopt the draft Plan and to consider a paper on funding the
implementation of the draft Plan.
44. A separate submission would be submitted recommending modifications to the
2006 Preferred Route to take into consideration consultation responses and to
seek agreement to start procurement for an ‘Early Contractor Involvement’ (ECI)
team to develop the scheme proposals.
45. Dates for key next steps are :
Minister for EST agrees to modification of the 2006 Preferred
Route and decides to start the contractor procurement process.
15th July 2014
Public announcement regarding the M4 Corridor around Newport.
Before recess
Award ECI (Early Contractor Involvement) Contract.
Publication of Scheme draft Orders, Environmental Impact
Assessment and Habitats Regulations Assessment.
Public Local Inquiry.
Winter
2015/2016
Spring 2016
Winter
2016/2017
Start of Construction.
Spring 2018
Completion of Motorway Construction.
Autumn 2021
Completion of work associated with reclassification of existing
motorway.
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Finance Requirements and Governance Implications
46. A Cabinet Sub-Committee for Infrastructure and Delivery paper - Update on
Financing and Delivery Options for a New M4 (I&D (13-14)04) (submitted under
SF/JH/2091/14) – set out the proposed finance and delivery method for a scheme,
if one were to be progressed following a decision to adopt a Plan.
47. As set out in that paper, a funding package comprising of Welsh Government
capital and public borrowing is recommended.
48. That Feb 2014 paper referred to a cost estimate of £940m exc. VAT. Following the
previous sub-committee, work is continuing to seek opportunities to reduce costs in
line with the targets agreed and the consequential use of borrowing powers.
49. If progressed, scheme proposals would be ‘value engineered’ to review scope and
seek opportunities to minimise cost.
50. There are no issues of regularity or propriety, and no novel or contentious issues.
There are no state aid issues.
51. There are no additional financial implications as a result of this submission. This
submission raises no issues of regularity or propriety nor are the proposals novel
or contentious. The Corporate Finance unit have cleared this submission under
EST/CF/14/ 385
Research and / or Statistics
52. The advice does not contain any relevant research or statistics.
Press and Publicity Arrangements
53. The proposed M4 Corridor around Newport, whose main element is a new section
of motorway between Magor and Castleton, to the south of Newport is
controversial in the eyes of some stakeholders. They may, in due course, wish to
raise with you the issue of your decision and they may seek to outline their views in
the Welsh media.
54. The responsible authority, the Welsh Ministers are required under the SEA
Regulations to publicise their decision on the Plan.
55. Press office shall be notified of the decision on “the Plan” as part of the SEA
process. A communication strategy has been prepared for instigation if the Plan is
adopted.
56. It is proposed that the decision report setting out this decision on the Plan should
be made public at the same time as the decision on the M4 Corridor around
Newport draft Plan. There will be no public announcement of this decision prior to
that.
Statutory Consideration & Policy compliance
57. This is not a policy submission.
58. I have considered the advice set out within this Submission and I can confirm that I
have given due regard to children’s rights (UNCRC).
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Accompanying Documents
Document 1 – Statement of Information
Document 2 – Foreword to M4 Corridor around Newport – The Plan
Document 3 – M4 Corridor around Newport – The Plan
Document 4 – M4 Corridor around Newport – The Plan - Strategic Environmental
Assessment: Post –Adoption Statement
Document 5A – M4 Corridor around Newport – The Plan - Consultation Participation
Report (excluding Appendices)
Document 5B – M4 Corridor around Newport – The Plan - Consultation Participation
Report – Appendices only
Document 6 – Executive Summary of M4 Corridor around Newport – The Plan Consultation Participation Report
Document 7 – M4 Corridor around Newport – the Plan - Strategic Appraisal of
Alternatives Considered During Consultation
Document 8 - Executive Summary of M4 Corridor around Newport – The Plan Strategic Appraisal of Alternatives Considered During Consultation
Document 9 – M4 Corridor around Newport – The Plan - Equality Impact Assessment
Document 10 – M4 Corridor around Newport – The Plan - Health Impact Assessment
Document 11 - M4 Corridor around Newport – draft Plan - Strategic Habitats
Regulations Assessment
Document 12 – M4 Corridor around Newport – Strategic Environmental Assessment Environmental Report
Document 13 - M4 Corridor around Newport – Consideration of the options in relation
to the Habitats Regulations
Document 14 - Letters from solicitors acting for Friends of the Earth
Document 15 - Summary of Legal Advice
Document 16 – Counsel’s Opinion
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Document 1
STATEMENT OF INFORMATION
The Minister for Economy, Science and Transport has been asked to note the findings
of the draft Plan Consultation in relation to the M4 Corridor around Newport, whose
main element is a new section of motorway between Magor and Castleton to the south
of Newport. The draft Plan Consultation documents were published on the 23
September with a closing date for responses of 16 December 2013. All reports were
made available on www.m4newport.com with earlier reports relating to M4 Corridor
Enhancement Measures available on www.m4cem.com
The Minister, after carefully considering the responses to the draft Plan consultation
including the submitted alternatives, Strategic Environmental, Strategic Habitats
Regulations, Health Impact and Equality Impact assessments, has agreed to adopt the
draft Plan.
The Plan consists of;
 A new 3-lane section of motorway between Magor and Castleton to the south of
Newport;
 The reclassification of the existing M4 between Magor and Castleton as a ’trunk
road;
 A link road between the M4, M48 and the B4245; and
 Cycling and walking friendly infrastructure
In accordance with the Post Adoption Procedures set out at Regulation 16 in Part 4 of
the SEA Regulations the Welsh Government as the responsible authority has published:
i)
M4 Corridor around Newport – The Plan - Strategic Environmental
Assessment: Post –Adoption Statement; and
ii)
M4 Corridor around Newport - The Plan
These two documents can be accessed at www.m4newport.com, together with the
following documents which also informed the decision making process:
iii)
M4 Corridor around Newport – The Plan - Consultation Participation Report
iv)
M4 Corridor around Newport – The Plan - Strategic Appraisal of
Alternatives Considered During Consultation.
v)
M4 Corridor around Newport – Strategic Environmental Assessment Environmental Report
vi)
M4 Corridor around Newport – Consideration of the options in relation to
the Habitats Regulations
vii)
M4 Corridor around Newport – draft Plan - Strategic Habitat Regulations
Assessment.
viii)
M4 Corridor around Newport – The Plan Equality Impact Assessment.
ix)
M4 Corridor around Newport – The Plan Health Impact Assessment.
The next stage of progressing the M4 Corridor around Newport is the development of
the Plan as a project(s) taking into account the responses received to the consultation.
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