Transcript THE PLANNING AND COMPULSORY PURCHASE BILL

MAJOR INFRASTRUCTURE
PROJECTS
CARDIFF 17 SEPTEMBER 2007
ANTHONY PORTEN QC
INTRODUCTION
The White Paper “Planning for a Sustainable Future” was
published in May 2007: it proposes a new system for making
decisions on nationally significant infrastructure projects, by:
–
producing national policy statements, and
–
creating an Infrastructure Planning Commission (‘IPC’) to
examine and take decisions on such projects.
The IPC:
- What’s new?
- The proposals
- Critique
- Will it happen?
HISTORY

Town and Country Planning Act 1968

s.61 “The Minister may constitute a Planning
Inquiry Commission to inquire into and report
on any matter referred to them under s.62 …”

s.62 “ .. matters may be referred to the (PIC) on
.. the following grounds .. (a) there are
considerations of national or regional
importance which are relevant .. and require
determination..”
The procedure was not used.
HISTORY ctd
The 1980s saw a number of long Inquiries:

1981 – 1983
Stansted
258 days
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1983 – 1985
Sizewell B
340 days
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1988 – 1989
Hinckley Point
182 days
1986: The House of Commons Environment
Committee recommended that the PIC should be
‘reactivated’.
HISTORY ctd

Town and Country Planning Act 1990
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s.101 “The Secretary of State may constitute a
Planning Inquiry Commission to inquire into and
report on any matter referred to them under
subsection (2) in the circumstances mentioned
in subsection (3) ..”

s. 101(3) “.. that there are considerations of
national or regional importance .. which are
relevant .. and require determination ..” etc
The PIC procedure has never been used.
T5 1993 - 2001

T5 brief statistics:
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1993/95 – applications submitted (37
applications, under 7 different statutory
provisions).
1995 – 1999 Inquiry (46 months, 524 days)
Inspector’s Report – 18 months
Decision - 11 months after receipt of report.
7 years+ from date of applications to date of
decision.
The government blamed the lawyers; the
Inspector blamed the lack of, and the changes
in, government policy.
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HISTORY ctd

July 2001- SoS DTLG&R (Stephen Byers), in
responding to a Parliamentary question, stated
that reforms were proposed by which approval
in principle of major infrastructure projects
(need and location) would be a matter for
Parliament.

2002 – Select Committee on Procedure.
SELECT COMMITTEE 2002
Evidence of the T5 Inspector, Roy Vandermeer QC:
“The primary problem was policy, both national and local.
I am sure the Government is well aware of the second
point, both in terms of Terminal 5 and generally, as their
Green Paper proposals demonstrate. We had a policy
document that was published in 1985—that is some ten
years before the inquiry—and within a matter of months, I
think, before the inquiry, a junior minister described the
airport policy as "yellow around the edges". It was very
difficult after that to stop people considering aspects of
policy when you have an out of date document or an old
document and some doubt cast upon it by a member of
the then Government. My deputy and myself rather came
to the view, after considering this, that had we had a
statement of policy that at least made wholly clear that it
was up to date, and current policy to meet the needs of
air demand ... we might have saved some 6 to 9 months
for that alone.”
HISTORY ctd

July 2002 “Sustainable Communities –
Delivering through Planning” –
abandoned the proposal that Parliament
would determine the need for and
location of particular projects.

T & C P (Major Infrastructure Projects
Inquiries Procedure) (England) Rules 2002
HISTORY ctd
Planning and Compulsory Purchase Act
2004 [s.44] inserted ss.76A and 76B into
the 1990 Act.
 Powers to call in MIP applications plus
related applications and appoint “Lead
Inspector”.
 T&CP (MIP IP) (England) Rules 2005
 Ss.76A/B and the 2005 Rules do not
apply to Wales.

HISTORY ctd
Circular 07/2005:

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“This Circular explains the new procedures for
handling major infrastructure project inquiries ..
The new procedures evolve from the package to
further streamline the processing of major
infrastructure projects through the planning
system announced by the Secretary of State on
18 July 2002. In summary the package included
… up-to-date statements of government policy
..” etc. etc.
RECENT HISTORY
December 2006:

Kate Barker’s Report ‘Review of Land Use
Planning’ included a headline recommendation
that a new system should be introduced for
dealing with major infrastructure projects.

Rod Eddington’s Transport Study similarly
recommended (radical) reforms to the process
of planning for major transport infrastructure.
PROBLEMS and CHALLENGES
The White Paper identifies the problems as:
a) Too long to deliver decisions
b) Difficult for organisations and persons to be heard
c) Government policy is “sometimes unclear”
d) Promoters do not prepare applications properly
e) Too many different and overlapping consent regimes
f) Inquiry process slow and inefficient
g) Decision making process is complex
f) The role of ministers is not understood.
DIFFERENT REGIMES (e)

Since the 1980/90s there have been moves to
formulate national policy and/or processes for
some specifics: e.g. The Air Transport White
Paper; the MIP Inquiries Procedure Rules; the
(draft) Electricity Generating Stations and
Overhead Lines (Inquiries Procedure) Rules
2007.

The WP proposes to replace present multiple
consent regimes with a new, holistic system
covering all key MIPs.
THE TROUBLEMAKERS (f)
Although the White Paper accepts the need for
National Policies to direct MIPs, the old enemy is
not forgotten: it seeks to ensure that hearings
are ‘less adversarial’ and gives a special mention
to ‘professional advocates who currently
dominate the process’
[para 2.14]
SOLUTIONS

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National Policy Statements
Help promoters to prepare applications
Create an Independent Infrastructure
Planning Commission
Streamline/Rationalise consent regimes
Improve public participation (and kill the
lawyers)
Explore devolving decisions on smaller
projects to local authorities.
THE BENEFITS
1. Make the system more responsive to long
term challenges, and
2. More streamlined, efficient and predictable
3. Clearly defined opportunities for public
consultation
4. Improve transparency and accountability
5. Ensure decisions are taken at the right level
PREPARING APPLICATIONS
- THE PROPOSALS
Promoters of nationally significant infrastructure
projects will be required to:
Prepare applications to a defined standard before the IPC would
agree to consider them;
 Consult the public and, in particular, affected land owners and
local communities on their proposals before submitting an
application to the commission;
 Engage with the affected local authority or authorities on their
proposals from early in the project development process;
 Consult other public bodies, such as statutory environmental
and heritage bodies, regional directors of public health, and
relevant highway authorities, depending on the nature of their
project, on their proposals before submitting an application.
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AND FURTHER …
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Where the promoter is required to consult an organisation, that
organisation should give its views promptly, with a limit on the
time that statutory consultees have to respond when consulted;
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The IPC would issue written guidance on the application process,
procedural requirements and consultation;
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The IPC would also advise promoters at the pre-application
stage on whether the proposed project falls within its remit, the
application process, procedural requirements, and consultation;
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There would be rules to maintain propriety, and ensure that the
IPC did not, in engaging with any party, prejudice its
independence or impartiality; and

The IPC would refuse to consider applications for projects which
were not within its remit, and send back applications which had
either not been adequately prepared or not been adequately
consulted on.
THE IPC

The IPC will “be run by a Chair” [para.5.56]

Commissioners will be appointed for their
individual expertise, experience, ability and
diversity of background.
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The IPC may require 20 to 30 commissioners
(including two or three Welsh appointments).
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Terms of appointment will be for up to eight
years, to ensure security of tenure.
SUITABLE CASES FOR
TREATMENT
IPC will deal with –
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Development consent applications for nationally
significant transport, water, wastewater, and
waste infrastructure in England, and energy
infrastructure in England and Wales.
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There will be threshold triggers – not yet
decided.
WALES I
The government intends that
National Policy Statements for air
transport and for energy will be for
the whole of GB or the UK as
appropriate.
 Planning decisions on airports will
be taken by the Devolved
Administration
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WALES II
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Planning decisions on energy MIPs in Wales will
be taken by the IPC, within the context of GB/UK
wide National Policy Statements, but with an
increased role for WAG:
a) at the consultation stage
b) in the decision: two or three of the Commissioners
will have been appointed on the advice of Welsh
Ministers and one of those will be on the deciding
panel (10.5)
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Consent for new/extended reservoirs (Severn
Trent Water) will be determined by Welsh
Ministers (10.7)
COSTS and FEES
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To set up the IPC - £4m
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To run the IPC – £8.8m a year
Applicants will pay more in charges than
currently BUT
 These costs will more than offset by savings
elsewhere BECAUSE
 Most of the evidence will be written, and
 Commissioners themselves will test the evidence
and parties will not be employing professional
advocates.
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IPC POWERS [Para 5.18]
The Government proposes to:

rationalise the different development consent
regimes and create, as far as possible, a unified,
single consent regime with a harmonised set of
requirements and procedures; and
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authorise the IPC, under this revised regime, to
grant consents, confer powers and amend
legislation, necessary to implement nationally
significant infrastructure projects.
AUTHORISATIONS I
“The authorisations could include”:
1) permission to carry out works needed to
construct infrastructure projects;
2) deemed planning permission;
3) compulsory purchase of land;
4) powers to amend, apply or disapply local and
public legislation governing infrastructure such
as railways or ports;
5) powers to stop up or divert highways or other
rights of way or navigating rights, both
temporarily and permanently;
AUTHORISATIONS II
6)
permission to construct associated
infrastructure and access land in order to do
this (eg bridges, pipelines, overhead power lines
and wayleaves);
7)
listed building consent, conservation area
consent, and scheduled monument consent;
8)
9)
hazardous substances consent;
creation of new rights over land, including rights
of way, navigating rights and easements;
AUTHORISATIONS III
10)
powers to lop or fell trees; and
powers to authorise any other matters ancillary
to the construction and operation of works
which can presently be authorised by ministerial
orders.
11)
DEALING WITH APPLICATIONS
IPC will appoint a panel of three to five
members, who will take a hands-on role
and be responsible for all aspects of the
examination of an application. In
deciding to approve the application and
grant permission “the panel would
operate collectively”
TAKING THE DECISION
Where a proposed development is
consistent with a national policy
statement the IPC will assume that the
need for the development has been
established.
The Inquiry will not cover this ground
again, but the IPC will go on to consider
whether relevant adverse local
consequences outweigh the identified
national interest.
THE PROCEDURE - SUMMARY
Panel appointed. Then, if the application is accepted:
 Consultation begins (5.27)
 Inquisitorial examination – evidence in writing (5.30)
 Discretion to conduct or invite cross-examination of
witnesses (5.32)
 ‘Open floor stage’ interested parties can have their say within a defined time limit (5.34)
 Decision stage: by the panel, without reference to
Ministers (5.39)
 Statutory time limit of 9 months: 6 for examination, 3 for
the decision (5.36)
RELEVANT ADVERSE
CONSEQUENCES
Relevant adverse consequences will be defined
as those incompatible with relevant EC and
domestic law. IPC’s considerations will include
e.g.
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Human Rights legislation
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EC Habitats and Birds Directives
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Processes, such as EIA REgs
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Environmental Standards, such as EC air
quality standards
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Qualitative factors, such as AONBs, National
Parks etc
LEGAL CHALLENGE
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The new legislation will include the opportunity
to challenge a decision by the IPC or the process
of reaching it.
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The grounds will be illegality, procedural
impropriety or irrationality.
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The time limit will be 6 weeks.
CRITIQUE
The aim of speeding up decisions on
MIPs will be generally welcomed.
 This suggests the IPC will be set up and
may perform where the PIC did not.
 However, the White Paper is long on
objectives but rather short on detail.
 There are matters in relation to the IPC
which need more thought, explanation
and detail before a real assessment can
be made.
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CONSULTATION
Will the public be allowed a greater
or lesser contribution that under the
present system?
 What will the form of the promised
“open floor” debates?
 Is direct questioning an effective
replacement for cross-examination?
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TIMING
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Government wants the IPC in place by April 2009.
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The White Paper proposes a statutory time limit of 9
months for the IPC to make decisions, which includes 3
months only for the decision stage (compare the record of
SoSs and the Assembly Government) – question: is this
realistic and what are the sanctions (none).
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No timescale for the production of National Policy
Statements: application may precede NPS or, in due
course, argue that NPS is out of date (NPSs intended to
cover 10-25 year time span).
THE BALANCE
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If ‘adverse local consequences’ are
limited to those which are
‘incompatible with relevant EC and
domestic law’’ (para 5.41) ..
Do they really allow scope for the
local public to raise objections on
the merits?
COMMISSIONERS
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To be appointed for their expertise in a
variety of fields.
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Who will they be (who will want the job?)
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Panels of 3 or 5: how will they decide
‘collectively’ - (majority decisions – e.g.
economist, engineer and planner say yes;
conservationist and ecologist say no)?
PLANNING GAIN
The IPC will specify conditions, such
as mitigation measures (para. 5.49)
 Nothing about planning
agreements.
 How will IPC deal with planning
gain, off-site works, financial
contributions etc?
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COMPULSORY PURCHASE
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IPC will be able to authorise the compulsory
purchase of land.
Nothing in the WP about prior attempts to
negotiate or the funding of compensation etc.
Who - to whom the authority will be given: who
will be promoting and confirming?
When - at what stage will the use of CPO powers
be authorised: if only after grant of permission,
will acquiring authority have to ‘start again’ and
satisfy the test of compelling public interest: will
there be a need for further Inquiry or will the IPC
have applied all necessary CPO tests in making
its decision?
CONCLUSIONS
There is a need for a speedier process for
deciding on MIPs.
 The IPC may therefore be created and
may fare better than the PIC.
 There remain tensions:
- planning v. politics (e.g. Manchester
Casino decision)
- speed v. public participation
 Is the devil in the detail?
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