Obstacles to Infrastructure Planning? A view from practice

1. Obstacles to Infrastructure Planning?A view from practice William Upton Barrister, 6 Pump Court

2. 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)

3. 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

4. National Infrastructure Plan:the Treasury’s shopping list • Roads • Rail • Airports • Ports • Electricity • Gas • Communications (phone, internet, broadcasting etc) • Flood Risk Management • Waste

5. How far has “infrastructure planning” been put in a different category ? • Material considerations remain similar • Processes have been changed

6. Planning permission:material considerations would be … • 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 • 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]

7. Assessments required: draft National Networks NSIP list • Environmental Impact Assessment, • Habitats Regulations Assessment, • Alternatives, • Good design, • Climate change adaptation, • Pollution control, • Nuisance, • Safety, • Security and health

8. Assessments required: - Generic impacts (Chap.5) • air quality • biodiversity and conservation • waste • aviation and defence • coastal change • nuisances (e.g. dust) • flood risk • historic environment • landscape and visual • land use (inc. the Green Belt) • noise and vibration • impacts on transport networks and • water quality.

9. Why not use the Local plan ?could be … (NPPF 14) • 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: • 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].

10. 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.

11. The limits to positive encouragement • “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) • Avoid • Minimise/ Mitigate • Compensate • SSSIs ? • Birds and Habitats Directives ?

12. How far has “infrastructure planning” been put in a different category ? • 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 • Nationally Significant Infrastructure Project (NSIP) • Hybrid Bills (eg. Channel Tunnel Rail Link Act, HS2 Bill etc)

13. For example, • Thames Tideway Tunnel (ongoing) • Should we be doing this at all? And is this the only way to do it ? DECIDED • 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 ? • DCO process for a single order, and its EIA • Inquisitorial process, not adversarial

14. 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.

15. The scrutiny by the courts • R (Gate) v SoS Transport & Lancashire CC [2013] • 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

16. The Courts continue to adapt as well • Tesco v Dundee [2012] • interpretation of planning policy is a matter of law, but the application of planning policy is a matter of judgment • Procedural changes: • Cost capping and Aarhus Convention claims • Judicial review time limit now 6 weeks • Dedicated Admin Ct lead judge • JR consultation in general

17. But, even so,More planning change a’coming in: • National Infrastructure Plan 2013 (“NIP”) • Treasury’s document, 3rd edition • Autumn Statement (Dec 2013) repeats every infrastructure announcement in the NIP • The 'Top 40' list of projects and programmes • All are expected to be NSIP, if they can be … • & will make a positive decision more likely (?)

18. National Infrastructure Plan 2013 • the government will introduce • a specialist planning court with set deadlines to handle planning judicial reviews (Jan 2014) • ensure that 'minor procedural claims are dealt with proportionately' • appeals can 'leapfrog' the Court of Appeal directly to the Supreme Court in a wider range of cases.

19. National Infrastructure Plan 2013 • 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%

20. “Obstacles” ? • used to be known as requirements ? • Rule of Law and accountability • Regulatory systems ? • Enforcement? • role of the lawyer: • Work with the tools we are given • Aims of the client vary: • promote; support; oppose; delay; avoid etc • What if special interest, or separate jurisdiction ?

21. 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.”

22. Obstacles to Infrastructure Planning?A view from practice William Upton Barrister, 6 Pump Court