Transcript WASTE LAW 2006: THE NEVER

Obstacles to
Infrastructure Planning?
A view from practice
William Upton
Barrister, 6 Pump Court
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The starting proposition is said to be that
the current complexity of environmental
legislation can cause unnecessary delay
and cost to important infrastructure
development and economic growth.
(This rather minimises the benefits and
purpose behind the legislation)
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This is not a new issue, and it is worth exploring
how far this has been addressed in the last 5
years
By its origins, philosophy and principles, planning
law is concerned with the regulation of the
private use of land in the interests of the
community as a whole.
But, this is not always about striking a balance,
there are some overriding designations
National Infrastructure Plan:
the Treasury’s shopping list
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Roads
Rail
Airports
Ports
Electricity
Gas
Communications (phone, internet, broadcasting etc)
Flood Risk Management
Waste
How far has “infrastructure planning”
been put in a different category ?
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Material considerations remain similar
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Processes have been changed
Planning permission:
material considerations would be …
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Overlooking/loss of privacy
Loss of light or
overshadowing
Parking
Highway safety
Traffic
Noise
Effect on listed buildings
and conservation area
Layout and density of
building
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Design, appearance and
materials
Disabled persons' access
Nature conservation
Proposals in the
Development Plan
Previous planning
decisions (including
appeal decisions)
Government policy
[SOURCE: PLANNINGPORTAL.GOV.UK]
Assessments required:
draft National Networks NSIP list
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Environmental Impact Assessment,
Habitats Regulations Assessment,
Alternatives,
Good design,
Climate change adaptation,
Pollution control,
Nuisance,
Safety,
Security and health
Assessments required:
- Generic impacts (Chap.5)
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air quality
biodiversity and
conservation
waste
aviation and defence
coastal change
nuisances (e.g. dust)
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flood risk
historic environment
landscape and visual
land use (inc. the
Green Belt)
noise and vibration
impacts on transport
networks and
water quality.
Why not use the Local plan ?
could be … (NPPF 14)
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LPAs should positively seek opportunities to meet
the development needs of their area;
Local Plans should meet objectively assessed
needs, with sufficient flexibility to adapt to rapid
change, unless:
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any adverse impacts of doing so would significantly
and demonstrably outweigh the benefits, when
assessed against the policies in this Framework
taken as a whole; or
specific policies in this Framework indicate
development should be restricted [fn 9].
Fn.9 to NPPF para 14 sets out the restrictions:
For example, those policies relating to sites
protected under the Birds and Habitats Directives
(see paragraph 119) and/or designated as Sites
of Special Scientific Interest; land designated as
Green Belt, Local Green Space, an Area of
Outstanding Natural Beauty, Heritage Coast or
within a National Park (or the Broads Authority);
designated heritage assets; and locations at risk
of flooding or coastal erosion.
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The limits to positive encouragement
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“Yes, if …” approach
Using “a positive,
pragmatic and
proactive manner, with
the aim of resolving
any elements in the
Plan which are not
legally compliant or
sound.”
BUT, has to defer to:
 Mitigation Hierarchy
(NPPF 118)
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Avoid
Minimise/ Mitigate
Compensate
SSSIs ?
Birds and Habitats
Directives ?
How far has “infrastructure planning”
been put in a different category ?
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Not just seeking planning permission, and
supporting infrastructure, and applying the
dev plan & national policy
Need is established at the national level,
Planning Act 2008 & other legislation
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Nationally Significant Infrastructure Project
(NSIP)
Hybrid Bills (eg. Channel Tunnel Rail Link Act,
HS2 Bill etc)
For example,
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Thames Tideway Tunnel (ongoing)
Should we be doing this at all? And is this
the only way to do it ? DECIDED
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NSIP ‘Wastewater’, and its own SEA
If it is to be this project, what should it
look like, where should it go in detail, and
whose land needs to be acquired ?
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DCO process for a single order, and its EIA
Inquisitorial process, not adversarial
2014 Review of NSIP process itself:
Consultation on measures to:
 improve pre-application phase, and make
consultation requirements proportionate;
 improve the pre-examination and examination
phase;
 make changes to Development Consent Orders
after consent is granted;
 streamline consents; and
 improve engagement with local communities,
local authorities and statutory consultees.
The scrutiny by the courts
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R (Gate) v SoS Transport & Lancashire CC [2013]
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Dual carriageway link road to M6
NSIP category definition upheld
Consultation criticised
Other NSPs are material considerations
Limited alternative routes assessment, &
further nature conservation surveys allowed
Warning about likely exercise of Court
discretion against relief
The Courts continue to adapt as well
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Tesco v Dundee [2012]
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interpretation of planning policy is a matter of
law, but the application of planning policy is a
matter of judgment
Procedural changes:
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Cost capping and Aarhus Convention claims
Judicial review time limit now 6 weeks
Dedicated Admin Ct lead judge
JR consultation in general
But, even so,
More planning change a’coming in:
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National Infrastructure Plan 2013 (“NIP”)
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Treasury’s document, 3rd edition
Autumn Statement (Dec 2013) repeats
every infrastructure announcement in the
NIP
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The 'Top 40' list of projects and programmes
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All are expected to be NSIP, if they can be …
& will make a positive decision more likely (?)
National Infrastructure Plan 2013
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the government will introduce
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a specialist planning court with set deadlines
to handle planning judicial reviews (Jan 2014)
ensure that 'minor procedural claims are dealt
with proportionately'
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appeals can 'leapfrog' the Court of Appeal
directly to the Supreme Court in a wider range
of cases.
National Infrastructure Plan 2013
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Consultation will follow on the proposals for:
 a statutory requirement to have a Local Plan in
place
 Rule that where a planning authority has failed
to discharge a condition on time, it will be
treated as having been approved
 planning authorities will have to provide more
justification for imposing conditions
 raising the threshold for 'special measures'
from 30% of decisions made on time to 40%
“Obstacles” ?
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used to be known as requirements ?
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Rule of Law and accountability
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Regulatory systems ?
Enforcement?
role of the lawyer:
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Work with the tools we are given
Aims of the client vary:
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promote; support; oppose; delay; avoid etc
What if special interest, or separate jurisdiction ?
Have our expectations of
the process changed ?
In 1958, the Franks Report said this:
“The intention of the legislature in providing for an inquiry
or hearing in certain circumstances appears to have been
twofold:
to ensure that the interests of the citizen closely affected
should be protected by the grant to them of a statutory
right to be heard in support of their objections and
to ensure that thereby the Minister should be better
informed about the facts of the case.”
Obstacles to
Infrastructure Planning?
A view from practice
William Upton
Barrister, 6 Pump Court