Memorandum from The National Trust
1. The National Trust welcomes the decision of the Procedure Committee to conduct an inquiry into the Government's proposals for a review of the way in which major infrastructure projects are handled by the land use planning system. We have a particular interest in the proposals for major infrastructure projects as a significant landowner and because of our unique powers to declare land inalienable.
SUMMARY
2. The National Trust remains unconvinced of the merits of the Government's proposals to use Parliamentary procedures to approve the principle of major development. We welcome measures to improve the local inquiry process and to provide clear statements of national policy. The Parliamentary proposals, however, singularly fail to recognise the importance of the planning process in securing public acceptance for, sometimes controversial, land use change and development, and are much too widely drawn. We see scope for them resulting in greater public anxiety and, ultimately, protest and rejection of development proposals on the ground as the main issues of principle have been determined prior to local inquiry. This would damage public confidence in the planning system more generally. As they stand the proposals also provide for only limited consultation periods on major development projects which will further fuel public concern. The proposals also fail to recognise the limited capacity of Parliament to manage the process or the need for a wider perspective on alternative mechanisms for injecting a national perspective into infrastructure decisions. Finally, the Trust is concerned that the proposals should not alter existing arrangements which make sure that the acquisition of inalienable National Trust land is considered on behalf of the nation only after all facts, including the results of an inquiry, are available.
3. We urge the Committee to address these concerns insofar as it is possible through strengthening the procedures and capacity of the Parliamentary stages of the process.
KEY ISSUES
4. We have sought to address the key issues of interest to the Committee:
PUBLIC CONFIDENCE IN THE PROCESS
5. The Trust is concerned that the Government's proposals will inspire less public confidence than most existing methods for determining this form of development proposal. The case for major change is unproven. It appears driven by concerns triggered by one or two causes ceĞle"bres (notably Terminal 5) whereas in reality only 12 public inquiries into major development have lasted more than three months since 1984. It also suggests a fundamental failure to recognise the value of the planning process in securing public acceptance of the process of land use change and development. The range of potential development projects that might use the proposed new procedures is also unfeasibly wide and there is no evidence that normal planning procedures are dealing unsatisfactorily with the majority of projects in Annex C.
6. We also seriously question whether the new procedures will achieve their stated objectives to "minimise delay and uncertainty for everyone involved, whilst increasing opportunities for public involvement in the process. " In contrast we see less effective scope for public involvement and the serious risk of further delay and uncertainty. In effect the proposals pass over an important part of the role currently played by an Inspector to Parliament. The public will expect Parliament to discharge its duties with the same degree of even-handedness and the lack of effective community involvement in the decision making process will inevitably cause friction and, ultimately, protest and rejection of proposals by local communities on the ground. This will heighten uncertainty and create unpredictable delay. The concern over Parliament's role and capacity has been exacerbated by Ministers' saying on the one hand that decisions will be whipped while on the other they will be subject to a free vote. Use of the whip for determining major infrastructure projects would, in our view, be wholly unacceptable.
7. The Trust believes that it will be essential to any new procedures that a local inquiry can properly examine major development projects and that, as a minimum, an inquiry Inspector can ask the Secretary of State to reconsider the principle of development in the light of evidence received.
RIGHTS OF DEVELOPERS AND OBJECTORS AND IMPACT OF HUMAN RIGHTS LEGISLATION
8. The Trust recognises the case for providing a clear national lead on development projects of national significance. The preparation of a national policy statement or White Paper, including through Parliamentary debate, provides a better means of doing this than using Parliamentary processes to decide on the principle of developments.
9. By being involved in the preparation of national policy Parliament could provide a national steer and indicate a preferred way forward without precluding legitimate debate at public inquiry. Indeed, if an Inspector was prohibited from considering the issues of principle then it is difficult to see how the Secretary of State could be in a position to exercise the proposed residuary discretion to "retain the flexibility to decide, in the light of the Inspector's report and recommendations whether or not a project should proceed". This would invite a parallel process of submissions to the Secretary of State outside the inquiry for the purpose of persuading the Secretary of State to exercise the residuary discretion. We would also be concerned that detailed issues regarding need and location would have to be addressed at the Parliamentary stage if the process is to be consistent with the European Convention on Human Rights and that this would make the process cumbersome and inefficient.
PARLIAMENT'S ROLE IN DETERMINING LOCATION
10. The process of preparing a national policy statement might include a Parliamentary debate but Parliament is singularly ill equipped and insufficiently resourced to provide the detailed scrutiny required to approve matters of principle over major development or to prescribe detailed routes or locations. Parliament's role should address need and objectives rather than seek to identify particular locations or solutions. Parliament's decision should not be irrevocable and for the reasons identified above there needs to be scope for an inquiry Inspector to ask the Secretary of State to re-consider a proposal in the light of evidence received.
ATTACHING CONDITIONS
11. The Trust recognises the important role to be played by a national policy statement and/or Parliamentary process in providing a platform for more detailed inquiry. It should establishing economic, social and environmental criteria that need to be met by any development and a time frame within which it should be brought forward. It would not be appropriate, however, for a Parliamentary process to attach the kind of detailed conditions associated with individual planning permissions.
DISTINGUISHING DETAIL AND PRINCIPLE
12. The Parliamentary process would find it difficult in practice to distinguish detail and principle or to draw clear boundaries between the role of Parliament and that of a local inquiry. The role of a national process should be to ensure full and effective public debate to establish both a national need (or otherwise) and the desired objectives sought from development but not specify a location or route. The process of policy development should include an explicit analysis of whether demand management measures might be the most appropriate way of meeting the desired objectives and be subject to the process of Strategic Environmental Assessment.
TIMINGS
13. The Trust considers a period of 60 days to consider both the principle and detailed location of major infrastructure projects to be wholly unrealistic and the 42 day period of public consultation much too short. We consider a three month period of consultation to be a minimum requirement and one that is consistent with other Government procedure on consultation arrangements.
14. There is growing recognition of the need for Parliament as a whole to develop new arrangements for maintaining public confidence and increasing its accountability across many issues. The Government's proposals risk pushing the procedures in an adverse direction and further undermining confidence in the Parliamentary decision making process more generally. Ultimately, this could be a false economy as the lack of public acceptability of development proposals results in further and unpredictable delay later on in the process.
OBTAINING SPECIALIST ADVICE
15. There would need to be a step change in the capacity of Parliament to scrutinise major developments, seek expert advice and secure effective community input if the process is to be effective and inspire confidence. The Parliamentary Office of Science and Technology has already highlighted some of the key issues in its report on the Government's proposals. We would encourage the Committee to consider wider ranging alternatives to those in the Government's consultation paper that might better ensure effective interaction between "experts" and the public and between the "science" and "values" involved. The Royal Commission on Environmental Pollution's work on environmental standards and the Parliamentary Office of Science and Technology's 2001 report on improving public dialogue provide possible alternative ways forward.
FREQUENCY OF USE
16. Ministers have indicated that they expect only a few projects to be handled under the new procedures each year but the range of projects eligible to be considered is unfeasibly large and could involve Parliament in determining dozens of development proposals. This would stretch its resources beyond breaking point. We would wish to see a drastic reduction in the range of development projects considered to be genuinely of "national" importance—crude oil refineries, chemical installations, quarries and opencast mines, chemical or petroleum installations, new runways and runway extensions, overhead power lines, renewable energy plants, tramways, petroleum or gas extraction should all be excluded along with generic exemption for Crown development ambiguously defined as being of "national significance".
INALIENABLE LAND AND SPECIAL PARLIAMENTARY PROCEDURES
17. The Trust manages inalienable land on behalf of the nation and has the power to resolve that other land that becomes vested in it can also be declared inalienable. The special protection afforded to this land by Parliament is implemented by virtue of section 18 of the Acquisition of Land Act 1981. This requires that the making or confirmation of a compulsory purchase order is subject to Special Parliamentary Procedure under the Statutory Orders (Special Procedure) Act 1945 if the order makes provision for the acquisition of inalienable land of the Trust, or rights over land, and the Trust objects.
18. The Trust views this as essential protection for the assets it holds for charitable purposes "for the benefit of the nation". Indeed land is often given by donors precisely because of these powers. The system allows for inalienable land to be compulsorily acquired but ensures this can happen only after the most careful scrutiny.
19. It is essential, in our view that the proposals for major infrastructure projects do not impact on the provisions for Special Parliamentary Procedures in relation to inalienable land. We are concerned that there is no mention of these Procedures in the consultation paper or any indication that the potential impact has been considered and urge that the Committee gives consideration to this issue. While Parliament might consider the need and objectives for a major development—whether through a debate on a national policy statement or in relation to specific proposals—the proper time for considering possible acquisition of inalienable land held by the Trust should remain as the period following public inquiry and a reasoned decision of the Secretary of State. This is when all the facts are available, including the views of the Inspector.
20. We are particularly concerned that the consultation paper proposes to repeal Section 9 of the Transport and Works Act 1992 and replace it with procedures that would apply to a very much wider range of proposals. We would strongly and publicly resist a parallel extension of Section 12(2) of the 1992 Act. This would preclude the Trust from opposing the proposals of an Order deemed to be of national significance and result in judgements over the need to acquire inalienable land being taken at an inappropriate time before all the necessary information was available.
March 2002
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