Developing a planned future

For over a decade the government has expressed concern about the length of time which it takes to gain approval for major infrastructure projects. Invariably these days there is reference to the six years plus that it took to decide whether to build a fifth terminal at Heathrow, but the White Paper Planning for a Sustainable Future refers among other cases to Dibden Bay (a major new port facility) which took over three years and the London International Freight Terminal which took more than two years.

There is no general agreement as to the reason why these cases take so long, but there is a wide measure of agreement that if they could be decided in a shorter period, this would be a good thing. If the new facility is going to be provided, the sooner it is provided, the better. It is probably this recognition which has led to the proposals for change contained in the new White Paper receiving, thus far, such a fair wind.

White Paper

The White Paper identifies essentially four reasons for delay:

(1) the lack of clear government policy against which to assess the proposal;

(2) poorly prepared applications;

(3) too many different and overlapping consent regimes; and

(4) time consuming cross-examination by barristers at public inquiries.

As regards (2), the remedy for poorly prepared applications is to prepare applications properly. The White Paper says that they should be prepared to a defined standard without further elaboration. It also emphasises the importance of proper consultation. It is unlikely that there are many really significant time-saving changes to be made in this field.As regards reasons (1), (3) and (4), the government propose a new consent regime. This represents radical change.

In future, major development proposals would be determined in the light of National Policy Statements (NPS). Thus there could be an NPS on energy policy or railways or ports or airports. Others might be more project specific, for example in respect of a new road or railway. An NPS would generally look forward 10 to 25 years in terms of demand and capacity but also take into account longer term impacts of climate change on the location of infrastructure.

They would be revised at least every five years. There would be quite an elaborate system of consultation in respect of an NPS, and the more site specific it was, the greater would be the consultation required. (It should be noted that in the White Paper there is reiterated emphasis on the importance of consultation at all stages). It is envisaged that parliament would be involved in the process, which would give the NPS when it emerged added legitimacy.

Major project decision-making

The actual decision on major projects would not be made by ministers, but by a panel made up of members of a newly constituted planning commission. The comparison offered is of the competition commission. Members would have expertise in: national and local government, community engagement, planning, law, engineering, economics, business, security, environment, heritage and health as well as particular specialist expertise (perhaps a nuclear scientist). It is expected that they would consider 10 major projects per year, as well as a large number of less complex cases (such as permissions for new power lines).

The consideration of projects would be chiefly on paper. There would be some limited oral hearings but it would be the commissioners asking the questions.

The commissioners would be subject to a statutory time limit of six months for consideration of a proposal and three months for its determination, although these periods could be extended on request.

If the commissioners find that the proposal is consistent with the NPS, they would assume the need for the development and consequently a high level of national interest. It would be possible nonetheless for the commissioners to decide that the adverse local consequences of the proposed development were sufficient to outweigh national policy identified in the NPS.

It seems as if relevant adverse consequence would be subject to a statutory definition. The idea seems to be of failure to meet a test imposed, for example, by the Birds Directive or an air quality standard imposed generally by government.

The proposal enshrined in the White Paper that government policy should be clearer is a laudable one. It seems however that the government may be over optimistic about the formulation of such policies. Thus, for example, it is becoming increasingly difficult to formulate policy which provides both for economic growth and also for reducing carbon emissions. A policy which does address these issues but which is incoherent would be subject to challenge in the courts. Under the existing regime such challenges to the adoption of policy are becoming common, and the recent success in the courts by Greenpeace in demonstrating that the government's consultation on nuclear policy was flawed will encourage others. Specific provision for legal challenge in the new arrangements will provide further encouragement. For its part, the government will be tempted to be less specific '“ to use the fudge that is often articulated as policy '“ but then the guidance will lack the required clarity and leave scope for argument about individual projects.

Local objections

Scope for argument about individual projects is just what the White Paper does not want. Its idea is to hit local objections so hard with national policy that there will be little left to say once the application is made.

But again even with a clear '“ perhaps even a site specific NPS '“ there will be problems. To acquire property by compulsion without affording an objector a right to an oral hearing would be a new departure in English law and is likely to give rise to complaints under Article 6 of the European Convention. He will not be altogether appeased by being told that his written responses to consultation have been taken into account (and rejected) at all stages of the process. Moreover, he will be able to point to the better protections which he enjoys when a project has not been identified as being of national importance and therefore not subject to the new procedures. Further, environmental assessment of a project (as required under European law) does not envisage that there is a category of impacts that cannot be relevant to the decision. So on the face of it, it must always be possible for an objector to say, for example that however strong the national need for a runway extension, it does not justify knocking down a Norman church. And if this be right the commissioners should weigh all the adverse consequences against all the benefits. And of course once they start weighing detriments they need to weigh benefits also '“ what is the weight, derived from an NPS, of a high level of national interest? Can there be degrees of high level of national interest?

Planning Commission

Although potentially the use of a Planning Commission could lead to a better quality of decision than at present, there are a number of objections. First, it will be under huge pressure to produce its decisions on time. It took the government 11 months to consider the inspector's report in the case of Heathrow's Terminal 5; it is hard to think that nine months is sufficient to consider the entirety of objections to a major new project from start to finish, even with policy clearly determined in advance. Second, there must be some doubt whether candidates of sufficient stature will be found to act as commissioners. Finally and most important, the proposal is undemocratic. Hitherto, the view has always been taken that a decision whether to build, for example, a fifth terminal at Heathrow is a decision to be made by democratically-elected bodies or by persons accountable to them. In that way, said Lord Hoffmann in R (Alconbury Developments Ltd) v Secretary of State for the Environment [2001] UKHL 23, the democratic principle is preserved. If they do not like a decision that has been made, the electorate can get rid of the decision-maker. The decision-maker makes his decision knowing that he may be called to account. The White Paper suggests, implausibly, that under the current regime wider political factors not directly related to the development are not relevant to the decision; clearly they would not be relevant to a decision of a planning commission. The White Paper does say that the Commission would ultimately be responsible to parliament, but this appears to be in respect of the way it took decisions, not as to the decisions themselves.

Elsewhere the White Paper emphasises that commissioners would be appointed on a basis that would ensure that they had sufficient security of tenure to avoid any risk that their decisions might be influenced by fear of dismissal.

Legal challenge

Removing lawyers and cross-examination will undoubtedly shorten the process, even if it is likely to lead to a greater incidence of legal challenge to decisions. (One benefit of the Terminal 5 process is often overlooked, namely that despite the controversy the application engendered and its high profile, there were no legal challenges to the ultimate decision). But it will significantly weaken the process. It is far easier to assert something '“ or to seek to hide something '“ in a written document if you know you are not going to be cross-examined by a barrister upon it. And every barrister will remember the case where a previously unknown fact emerged in cross-examination that proved to be of crucial significance; or where a witness was destroyed. These things happen in planning inquiries as well as in murder trials. Although the commission would have discretion to conduct cross-examination itself (presumably by counsel appointed for the purpose) or even to invite cross-examination by others, there would not be much scope for this within the timescale it will be set.

Ultimately, the question is one of democratic legitimacy. If people think that a decision has been made which is seriously adverse to their interests and that their objections have not been given a fair crack of the whip, they may have to acquiesce in that decision but they will not accept it. A system which produced many such decisions would not endure. As it is, there must be some considerable doubt as to whether proposals as radical as the government's will make it on to the Statute Book.