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The Planning Bill: Local Democracy or Lights Out?

Tue 01 Jul 2008

There are some areas of policy which ministers seem to find particularly troublesome - not least amongst them planning.  The Government’s latest effort to reform the planning system may not have attracted the vehement opposition engendered by 42-day detention - certainly no MP has yet left Parliament to fight a by-election on the issue – but getting the Planning Bill onto the statute book is proving an uncomfortable experience for ministers. 

Let us begin on a positive note.  Most of the Bill’s critics accept that the creation of a single development consent regime for major infrastructure projects is a step forward.  Currently a single project may require consent under numerous different regimes.  A proposal to develop a major port may need to seek consent to dredge the harbour under the Harbours Act 1964, a Transport and Works Act Order for railway upgrades to the land and compulsory purchase applications to allow land acquisition.  BAA had to lodge 37 applications for the Heathrow Terminal 5 works under 7 different pieces of legislation. 

For the most part (Friends of the Earth is an exception) critics also acknowledge the need to speed up the planning system so as to meet the considerable challenges facing the UK – the need for example, to replace a third of our electricity generation capacity in the next 20 years.  It is also generally acknowledged that the length of the Heathrow Terminal 5 inquiry which took up 524 days over five years was unacceptable.  Ministers are understandably keen to ensure that the planning system supports their efforts in keeping the lights on as oil and other energy supplies become scarcer.  Shadow planning minister Jacqui Lait accepted the need for reform when speaking in the Third Reading debate -“ We agree that the system needs to be sped up.  We agree on the single consent regime.”

What Lait and many of the Bill’s other critics object to is that in speeding up the system, ministers are adopting a framework which reduces the influence of local opinion.  The focus of complaint is that the vehicle intended to deliver speedier decisions on major infrastructure projects – the Infrastructure Planning Commission (“IPC”) – will be remote and unaccountable, an unwelcome addition to the “quangocracy”.  Labour rebel John McDonnell suggested that the Bill effectively “out-sources” democratic decision-making.  Underlying the reform proposals is a presumption in favour of development and so opponents are fearful that the IPC will simply rubber stamp schemes which come before it.

Ministers argue that a “democratic” element is preserved in that national statements setting out the policy framework within which the IPC will make its decisions will be determined by the Government following public consultation, including consideration in Parliament.  These national policy statements will play a key role in shaping the direction of planning for major infrastructure projects.  Conservative MP David Curry has suggested that the IPC’s role is reduced simply to “organis[ing] … the mechanism of finalising a decision that has been foreshadowed in the national policy statement”.  Some MPs’ focus on the IPC’s supposed democratic deficit rather misses the point that it is the national policy statements which really count.

Ministers have unsurprisingly been at pains to emphasise the IPC’s independence as the final arbiter, pointing to the fact that it will need to consider whether the adverse impact of a proposed development outweighs its benefits.  That may sound a significant power, but it does rather beg the question what criteria the IPC are to apply in deciding whether the disadvantages outweigh the advantages.  Decisions against schemes which heavily rely on the argument that the adverse impact outweighs the positive are likely to prove susceptible to challenge in the courts.

The desire to speed up the decision-making process has influenced the Government’s approach in devising the IPC’s procedural rules.  Whereas previously this type of application will have attracted a full blown inquiry, the IPC will generally seek to resolve the 45 or so anticipated applications per year on the basis of written representations by parties.  A hearing will only take place if the IPC believes it is necessary in order for there to be an adequate examination of the issues.  Even if a hearing takes place, an objector’s right to test a promoter’s case is unlikely to be as painstaking.  Whilst the Bill’s procedural provisions for the operation of the IPC in an inquiry do not rule out cross-examination of the evidence, the expectation is that the approach will generally be less intensive.  Some local objectors are likely to feel that decisions are being railroaded.  That may, however, be the price that needs to be paid to ensure that the UK’s energy supply is secured and the lights do not go out.

The Bill also seeks to enhance local authorities’ capacity to provide infrastructure.  Ministers believe that the gain in value of a piece of land following a grant of planning permission can be exploited for this purpose.  The Bill allows for regulations to be made to enable local councils to apply a community infrastructure levy (“CIL”) on development.  Much of the detail is at best sketchy, but the intention is for local planning authorities to set their own tariffs.  The rate at which CIL is set will be critical to its success – if set too high, some development will become unviable.  The relationship between CIL and planning obligations is also important – too great an overlap and CIL becomes a very unattractive tax on development.

By no means all of the Government’s critics have been appeased by the concessions announced by ministers as the Bill was proceeding through the Commons (most notably that the operation of the IPC would be reviewed after 2 years) and we can expect the Bill to face a rough ride in the House of Lords.  Ministers will certainly hope that the new regime will endure and that they will not need to develop further policies on major infrastructure projects for some time to come.

Author: Richard Bull, Parliamentary, Planning and Public Law Solicitor.

Article appeared in Inside Housing published 1st July 2008.