Memorandum from Friends of the Earth
INTRODUCTION
Friends of the Earth England, Wales and Northern Ireland welcomes the opportunity to provide evidence to the Committee on the Government's proposed reforms to the procedures for processing major infrastructure projects (MIPs).[1] Friends of the Earth is an NGO with 200,000 supporters and local campaigning groups in 240 communities. We are a member of Friends of the Earth International, which has member groups in 57 different countries. Having participated in planning inquiries of local, regional and national significance, Friends of the Earth has considerable experience of the public inquiry system, particularly for major infrastructure projects including Sizewell B, the Nirex RCF and Heathrow Terminal 5 (T5).
The Committee's Press Notice sets out a wide range of questions concerning the principles and detailed procedures of the Government's proposed reform package. We have chosen to respond by raising a number of specific areas of concern including:
— The current state of the MIPs inquiry process.
— The publics rights to participate in the decision-making process.
— The principle of parliamentary approval.
— Key principles for the process of MIPs decision making.
In addition to this memorandum we have attached two annexes. The first includes provisional legal advice on the procedural aspects of the parliamentary approval of such projects. The second annex addresses the specific causes for the duration of the Terminal 5 inquiry.
SUMMARY
Friends of the Earth is committed to a planning system which is fair, transparent and democratic for all participants and enshrines the objectives of sustainable development. We are concerned that the Government's proposals for MIPs fail to deliver this vision for the following specific reasons:
— The Consultation paper is based on a false set of assumptions about the scale and nature of the problems facing the process of major projects decision making.
— The Government's proposals will lead to a loss of existing civil rights and in particular the right to be heard on issues of principle, need and location at a local planning inquiry.
— The parliamentary approval of site specific proposals may not provide the best form of impartial, expert scrutiny for controversial new projects and may be in breach of important environmental regulation including the EU Habitats Directive.[2]
1. THE CURRENT MIPS DECISION-MAKING PROCESS
1.1 Friends of the Earth is concerned that the Government's proposals are not based on a considered view of the defects of the current system and therefore propose radical structural changes to what are largely managerial and resource based deficiencies.
1.2 Friends of the Earth is concerned that the experience of Heathrow Terminal 5 has been used to drive changes to the process of MIPs decision making which are neither administratively sound nor fair in terms of public involvement. Annex 2 sets out a case chronology and brief analysis of the time taken by participants to give their evidence at the T5 inquiry. The conclusion of this analysis is that the hearing of public objections was not a dominant factor in the duration in the Inquiry process. Friends of the Earth would welcome the opportunity to give oral evidence on the Terminal 5 inquiry process in order to explore the complex issues which surrounded its duration. We are particularly concerned to correct the misrepresentation of the process by Government ministers and explore the following issues:
— What were the real causes of "delay" in the process?
— Is it possible to distinguish between those legitimate "delays" that result from unforeseen circumstances and the sources of avoidable administrative delay?
1.3 It is important to stress that the Government has produced no evidence to suggest that existing rights of local objectors to discuss the location of a particular development are a significant factor in the duration of a major infrastructure project inquiry. Instead issues such as the management of the inquiry (note), the lack of coherent national policy frameworks and ministerial delay are of more significance. In any event the Terminal 5 inquiry was so unrepresentative of the generality of major infrastructure inquiries as not to be a sound basis for the reform of the system.
1.4 It is not clear that the duration of the majority of major infrastructure project inquiries has been a significant problem in recent years. The Government's own analysis contained within "Modernising Planning-progress report" concluded, "The processing of major infrastructure projects through the planning system has always presented a challenge. . . . As Modernising Planning pointed out, there are very few projects of this scale: only 10 projects in the last 15 years had a public inquiry that lasted more than three months". Modernising planning-progress report, paragraph 40. The nature of these projects, (including the NIREX Inquiry, duration 66 days, and the MoD Otterburn training area, duration 83 days), was often extremely controversial. All these Inquiries raised issues of national significance and deserved detailed scrutiny to establish if they were genuinely in the public interest.
1.5 Indeed public involvement is vitally important and should be seen as a positive part of the scrutiny of major new projects. Experience shows that detailed public scrutiny leads to the avoidance of projects that are unsound and the improvement of those that go ahead. Prime examples of this are the Hinkley C reactor and the Nirex RCF proposals. The Hinkley C reactor Inquiry took place at a time when UK policy on nuclear reactors was in a state of flux. At the close of the Inquiry the Government's position on the funding of nuclear power had significantly changed and ultimately the project did not go ahead. The Nirex RCF proposal was challenged, by a detailed scientific case drawn together by the objectors. This case was accepted. It is better for a project to be scrutinised in order that mistakes can be avoided, rather than a policy of undue haste be adopted simply to push projects through. Friends of the Earth firmly believes that decision-making on major projects should be made on the basis of the best available information and be subject to public scrutiny and debate.
1.6 Friends of the Earth believes that the current system of public inquiries does require reform particularly to make them more accessible to the non-experts. These changes do not, however, necessarily imply structural reform but instead changes to the resourcing and culture of the inquiry process. These issues are discussed in more detail in section 4.
2. PUBLIC INVOLVEMENT IN THE DECISION-MAKING PROCESS
2.1 Friends of the Earth is concerned that the Government's proposals in relation to major infrastructure projects will significantly reduce public involvement in the process. The right to challenge the principle, need and location of a development at a local public inquiry will be removed. These issues would be taken 'as read' and there would be "need to preclude the Inspector from recommending against the principle of the projects, as set out by parliamentary approval".[3]
2.2 The parliamentary stage would therefore restrict local public inquiries to the consideration of "precise alignment and layout of the proposal, land take, mitigation measures, conditions and legal agreements".[4] In short local people would have no opportunity at the inquiry to discuss issues of any real significance or to test any of the evidence relating to the location of the project. This not only removes a legitimate level of scrutiny (See paragraph 1.5 above) but will also be deeply unpopular with the public and will add to the impression that decision-making is being centralised. It will, for example, be difficult to explain to a lay person that they can no longer can give a verbal view at inquiry as to the principle of locating a major infrastructure project in their community. Notwithstanding the provisions of the Human Rights Act (1998) it is our view that such a system would be at odds with the principles of natural justice. The Government's proposals are therefore likely to engineer conflict and resentment into the process to the detriment of the legitimacy of the system and with the additional costs and uncertainty that sustained public protest will bring for all parties.
2.3 The Government's assertion that there are new opportunities for the public to be involved in the decision-making process for MIPs is disingenuous. The consultation paper suggests that individuals and communities can be involved in the preparation of national policy and regional guidance and therefore shape the policy context of the decision-making process of major projects. The ability of any individual to have access to national policy reviews is so limited as to be meaningless. Such reviews are not publicised to the general public and traditionally rely on consultation with a small group of interested parties from industry, government and the NGO sector. How individuals would know about or be able to comment on such reviews is not made clear.
2.4 The current regional guidance process can also be difficult to access for lay people. The current system for examining policy at regional level is by invitation only and input from individuals who do not have a direct property interest is extremely rare. Given these difficulties it is simply unreasonable for Government to suggest that the public will have enhanced rights of involvement in the policy context for major infrastructure projects.
2.5 The right to lobby your MP during the parliamentary stage is a real opportunity to be heard. But this is not the same as being able to give detailed evidence directly to a planning inspector and to test that evidence in cross-examination. It is our understanding that even if Parliament were to decide to scrutinise specific proposals through the select committee system an individual will still have no absolute right to be heard but instead could only be invited to participate. Even if a member of the public were to be invited to give evidence they would have no right to cross-examine witnesses.
2.6 In any event offering a layer of democratic scrutiny through Parliament does not compensate in any way for the loss of rights to participate in public inquiries which have a full and open remit. Individual civil rights such as the right to be heard and cross-examine evidence on the location of new development is substantively different from the notion of democratic accountability. These two aspects of governance should be complementary and cannot be traded off against each other.
3. THE ROLE OF PARLIAMENT
3.1 Parliament is not necessarily best placed to consider the detailed impact of site specific infrastructure projects. We note that the House of Commons Environment Committee looked into whether Parliamentary scrutiny of major developments could be achieved through a Select Committee. Although the suggestion was "superficially attractive",[5] it concluded against it since it would distract MPs from what the Committee considered were more important tasks.
3.2 Parliament must of course be free to set general policy and Friends of the Earth would welcome coherent Government statements on important issues such as the future of aviation. Deciding the detailed development consent of a major infrastructure project is an entirely different matter. Government has stated that Parliament will only consider issues of principle but these issues are intimately related to the nature of the environmental impacts of an individual proposal, an issue discussed in more detail in relation to the legal opinion set out in annex 1.
3.3 The consultation paper has made clear that Environmental Impact Assessment would be required before Parliament could give development consent. Parliamentarians would have to consider all such detail before reaching a conclusion. This implies a significant new burden of detailed technical analysis for parliamentarians. Most worrying of all, Lord Falconer made clear in his evidence to the Transport Local Government and Regions Select Committee that in some cases such decisions would be whipped. "I would imagine that in some cases it will be whipped business, yes, but Parliament is still able to scrutinise it" (paragraph 64 of Lord Falconer's uncorrected evidence to the select committee on 18th December 2001). Such a view cannot give the public confidence that Parliament will provide an independent and impartial tribunal at which their views and concerns can be fairly represented.
3.4 Even if whipping is not enforced it is not clear how parliament would find a mechanism which could recreate the expert and impartial consideration of evidence currently provided by a planning inspector through the public inquiry process.
3.5 Friends of the Earth believes that the essence of these difficulties surrounds the site specific nature of the Government's MIPs proposals. Parliament should play a general policy making function on MIPs so long as this does not prejudge the outcome of a local public inquiry which must be left to deal with precise locations.
3.6 In addition to these general concerns over parliamentary procedures, Friends of the Earth has obtained a provisional legal opinion which raises a number of important reservations on the procedural aspects of the Government's proposals including:
— The compatibility of the proposals with the provisions of the EU Habitats Directive.
— The legality of whipping decisions.
— The reduction in the public's rights to participate.
— The failure of the proposals to automatically deliver substantial reductions in the duration of the decision-making process.
3.7 This opinion was written for the internal use of our organisation and we would be grateful if you would treat this in confidence[6]. The full opinion is attached at Annex 1.
4. THE FUNDAMENTAL PRINCIPLES OF THE MIPS DECISION MAKING PROCESS
4.1 Friends of the Earth believes that the consideration of MIPs should have three fundamental components:
1: Parliamentary approval of national policy frameworks for MIPs.
2: Local public inquiries to decide on site specific locations in the context of the above policy.
3: Final decision by the Secretary of State.
NATIONAL POLICY
4.2 It is essential that the Government should prepare up-to-date statements of national policy before major infrastructure projects are considered. These should form the context within which a final planning decision is taken.[7] Such policy should not be site specific. It should be subject to parliamentary approval through a select committee examination. This process would need to address:
— The need for expert examination of the implications of new infrastructure projects for sustainable development (See RCEP Report "Environmental Planning", recommendations in relation to demand management and environment protection and in particular paragraphs 8.49 and 8.50).
— The need for full and meaningful public debate and participation including a right to be heard at select committee.
PUBLIC INQUIRIES
4.3 The terms of reference of the public inquiry should allow consideration of alternative sites and not be limited by Parliament. The inspector should rule on the extent to which debate on need can be limited by the contents of the parliamentary decision. Efforts should be made to make inquiries more accessible to the public. Such measure should include:
— Planning advocacy service.
— The provision of basic resources for third party groups.
— Free access to information.
— Flexible location and timing of sittings.
— Greater prior negotiation on issues of common ground.
4.4 Further efforts should be made to increase the efficiency of planning inquiries by :
— Increasing administrative resources.
— Binding timescales on the length of sittings and preparation of reports.
THE SECRETARY OF STATE
4.5 The final decision should remain with the Secretary of State who should be required to provide detailed reasons for their final judgement.
4.6 This framework has the merit of building on the best aspects of the existing system. It focuses on clear national policy statements and robust and inclusive rights for the public to question site specific proposals. Managerial reform along with a clear policy view from parliament should increase the efficiency of the process without compromising the positive benefits of public involvement.
CONCLUSION
Friends of the Earth welcomes any attempt to improve the efficiency of MIPs planning process. However this should not be done by limiting participation especially of small groups or ordinary members of the public. In fact, we believe that greater attention should be paid to promoting public participation within an open and transparent decision making framework. This is vital if the process is to command public confidence and achieve the goals of sustainable development.
1 New Parliamentary Procedures for Processing Major Infrastructure Projects (DTLR, 2001). Back
2 The Habitats Directive-EC Council Directive on the Conservation of Wild Birds (Directive 79/409/EEC). Back
3 Paragraph 21 New Parliamentary Procedures for Processing Major Infrastructure Projects (DTLR, 2001). Back
4 Paragraph 21 New Parliamentary Procedures for Processing Major Infrastructure Projects (DTLR, 2001). Back
5 House of Commons Environment Committee 1985-86 "Planning: appeals call-in and major public inquiries" Volume 1[154]. Back
6 NOTE: The opinion is now in the public domain and is attached (Q 191). Back
7 This view is endorsed in the CPRE Report "Parliamentary Procedures for Major Infrastructure Projects" Nov 2001 p16-21. Back
| 
