MAJOR INFRASTRUCTURE PROJECTS

1. MAJOR INFRASTRUCTURE PROJECTS CARDIFF 17 SEPTEMBER 2007 ANTHONY PORTEN QC

2. 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?

3. 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.

4. HISTORY ctd The 1980s saw a number of long Inquiries: • 1981 – 1983 Stansted 258 days • 1983 – 1985 Sizewell B 340 days • 1988 – 1989 Hinckley Point 182 days 1986: The House of Commons Environment Committee recommended that the PIC should be ‘reactivated’.

5. HISTORY ctd • Town and Country Planning Act 1990 • 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.

6. T5 1993 - 2001 • T5 brief statistics: • 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.

7. 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.

8. 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 meetthe needs of air demand ... we might have saved some 6 to 9 months for that alone.”

9. 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

10. 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.

11. HISTORY ctd Circular 07/2005: • “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.

12. 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.

13. 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.

14. 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.

15. 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]

16. SOLUTIONS • 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.

17. THE BENEFITS • Make the system more responsive to long term challenges, and • More streamlined, efficient and predictable • Clearly defined opportunities for public consultation • Improve transparency and accountability • Ensure decisions are taken at the right level

18. 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.

19. AND FURTHER … • 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; • The IPC would issue written guidance on the application process, procedural requirements and consultation; • 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; • 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.

20. 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. • The IPC may require 20 to 30 commissioners (including two or three Welsh appointments). • Terms of appointment will be for up to eight years, to ensure security of tenure.

21. SUITABLE CASES FOR TREATMENT IPC will deal with – • Development consent applications for nationally significant transport, water, wastewater, and waste infrastructure in England, and energy infrastructure in England and Wales. • There will be threshold triggers – not yet decided.

22. 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

23. WALES II • 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) • Consent for new/extended reservoirs (Severn Trent Water) will be determined by Welsh Ministers (10.7)

24. COSTS and FEES • To set up the IPC - £4m • 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.

25. 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 • authorise the IPC, under this revised regime, to grant consents, confer powers and amend legislation, necessary to implement nationally significant infrastructure projects.

26. AUTHORISATIONS I “The authorisations could include”: • permission to carry out works needed to construct infrastructure projects; • deemed planning permission; • compulsory purchase of land; • powers to amend, apply or disapply local and public legislation governing infrastructure such as railways or ports; • powers to stop up or divert highways or other rights of way or navigating rights, both temporarily and permanently;

27. 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)hazardous substances consent; 9)creation of new rights over land, including rights of way, navigating rights and easements;

28. AUTHORISATIONS III 10)powers to lop or fell trees; and 11) powers to authorise any other matters ancillary to the construction and operation of works which can presently be authorised by ministerial orders.

29. 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”

30. 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.

31. 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)

32. 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. • Human Rights legislation • EC Habitats and Birds Directives • Processes, such as EIA REgs • Environmental Standards, such as EC air quality standards • Qualitative factors, such as AONBs, National Parks etc

33. LEGAL CHALLENGE • The new legislation will include the opportunity to challenge a decision by the IPC or the process of reaching it. • The grounds will be illegality, procedural impropriety or irrationality. • The time limit will be 6 weeks.

34. 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.

35. 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?

36. TIMING • Government wants the IPC in place by April 2009. • 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). • 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).

37. THE BALANCE • 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?

38. COMMISSIONERS • To be appointed for their expertise in a variety of fields. • Who will they be (who will want the job?) • 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)?

39. 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?

40. COMPULSORY PURCHASE • 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?

41. 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?