House of Commons - Transport, Local Government and the Regions

Select Committee on Transport, Local Government and the Regions Thirteenth Report

Major Infrastructure Projects

134. Large scale infrastructure projects are generally complex and often need to be approved under a variety of statutory regimes. Nearly all of the authorisation processes involve a public inquiry. The rules of public inquiries provide rights of hearing to the principal parties and to other persons at the inspector's discretion, such that everyone is allowed to put forward their point of view. In general, the inquiry system commands wide public confidence and respect.

135. In July 2001 the Government announced 'a package of measures to speed up planning decisions on major projects in order to minimise delays and uncertainty for everyone involved, while increasing opportunities for public involvement in the process'. The package included a proposal that there should be new procedures to enable Parliament to approve a project in principle before detailed examination at a subsequent public inquiry. In December 2001 the Government published, in association with the Green Paper, a consultation paper, entitled major infrastructure projects: delivering fundamental change; New Parliamentary Procedures for Processing Major Infrastructure Projects, which claims that the proposals "will not reduce people's involvement in the process."[86]

136. It is widely agreed that the total time taken at present from the initial proposal to the final authorisation of major infrastructure projects can be too long. However, witnesses were concerned that the Government had placed too much emphasis on attempts to reduce the length of time taken by the public inquiry when, with one or two exceptions, this was not a major cause of delay. The proposals do address other, and more serious problems, including streamlining pre-construction phases of road projects and reducing the length of time the Department takes to process the inspector's report after a public inquiry. Unfortunately they do not mention, let alone confront what is, in our experience, a major source of delay, namely the reluctance of Ministers (of all Governments) to bring forward proposals or announce decisions for fear of the electoral consequences.

137. The Government's announcements seemed to have been timed to coincide with the decision about Heathrow Terminal 5, as if the long delay was typical; the evidence which we received indicated that Terminal 5 was quite exceptional.

The Government_s proposals

138. The proposals in the Government's Consultation Paper include:

uptodate statements of Government policy before Major Infrastructure Projects are considered in the planning system;

a mechanism for deciding which projects are to be treated as Major Infrastructure Projects;

a new procedure which would give Parliament the opportunity to approve projects in principle prior to consideration of detailed issues at public inquiry;

amended public inquiry procedures; and

reductions in delays at other stages of the process.

We consider each of these proposals below.

National Policy Statements

139. The Green Paper proposes that the Government publish uptodate statements of Government policy (national policy statements) which set out the context for new infrastructure projects. Such statements will not only very usefully set out Government policy, but will also save time at any subsequent inquiry itself because it will be unnecessary to determine what Government policy is. The individual national policy statements should be related to the National Spatial Strategy.

140. The submissions to the Committee in general supported the proposal. We were told that they should be brought forward in good time. Given their significance it will be of the utmost importance that they should be put out to consultation, as proposed, and considered by Parliament on a substantive motion.

141. We strongly support the proposal to introduce National Policy Statements. They should be the subject of public consultation after which they should be debated by Parliament on an amendable, substantive motion. If they are prepared well in advance of projects coming forward, they will be a major step forward. The policy statements could take a variety of forms:

in some situations they would indicate a need to make provision within a region, leaving the regional guidance to indicate a suitable site for the particular facility;

in others, they would need to indicate a range of options or a precise location or route corridor.

The policy statements should relate to the National Spatial Strategy.

Identification of Major Infrastructure Projects

142. Annex C of the major infrastructure projects Consultation Paper defines the projects proposed for major infrastructure project status. Many of the submissions to the Committee expressed concern about the list in the Annex. The Local Government Information Unit suggested that the categories proposed in the Major Infrastructure Projects Paper "were far too wide."

143. In the new Town and Country Planning (Major Infrastructure Inquiries Procedure) (England) Rules 2002[87] (MIP inquiry rules), the Schedule appended to the rules contains a list of projects similar but not identical to that in Annex C of the Major Infrastructure Projects paper. The Circular accompanying the rules explains that Major Infrastructure Projects _may be of national significance or be major regional or sub regional projects_.[88] The new rules will give rise to many projects a year being declared Major Infrastructure Projects for planning purposes.[89]

144. We recommend that the Secretary of State have the power to designate projects as Major Infrastructure Projects by the new Parliamentary process, but emphasise that he should only select Major Infrastructure Projects of truly national significance for authorisation. We are concerned that both the list of potential Major Infrastructure Projects in Annex C of the Government's paper,[90] and the list contained in the Town and Country Planning (Major Infrastructure Inquiries Procedure) (England) Rules 2002 are far too broad.

The proposed Parliamentary procedures.

145. The Government also proposes that there should be a new parliamentary mechanism for considering any Major Infrastructure Project which the Secretary of States brings forward. Parliament would consider it in principle, and agree the need for it and its location. Thereafter, the Government proposes that there should be a public inquiry, but its remit will be restricted to detailed issues of its implementation on the ground. The Consultation Paper states:

These issues would include, for example, the precise alignment and layout of the proposal, landtake, mitigation measures, conditions and legal agreements. It follows that there would be need to be provision to preclude the Inspector from recommending against the principle of the project.[91]

146. Major Infrastructure Projects: delivering a fundamental change suggests that after designation of the project as a Major Infrastructure Project the Secretary of State would lay details of the application before each House of Parliament. There would then be a period of 42 days for objections to be made. The Secretary of State would not be able to lay a draft Order proper until a period of 60 sitting days had elapsed. The two periods 42 and 60 days would run concurrently. When he appeared before us Lord Falconer, the then Minister of Planning and Housing, had realised that the timetable was too tight, and acknowledged that parliamentary scrutiny would need to be longer.[92]

147. The Government has stated that it is for Parliament to decide how it should consider an The Major Infrastructure Project, and the Procedure Committee is also examining the proposals. In oral evidence, Lord Falconer suggested that parliamentary consideration take the form of a select committee inquiry. He thought that this would be more an investigative than a quasi-judicial hearing: "it would be more like a select committee hearing than a sort of semi-court case that private bills have frequently become".[93] The select committee would decide who to call to give evidence, and there would be no right to appear before it.[94] The select committee's role would be advisory: it would report to the House which would come to a decision. A similar procedure would be followed in the House of Lords.

148. An alternative, which the CBI alluded to and which we consider below, would be an extension of the Transport and Works Act to cover all Major Infrastructure Projects selected by the Secretary of State for the new Parliamentary procedure.[95]

149. Under the Government's proposals, after Parliamentary consideration, the project would go to a public inquiry. According to The Major Infrastructure Projects paper the Inspector conducting the inquiry would be required to take as read the principle of, need for, and location of the project and focus on the detailed issues of implementation on the ground. The Inspector would be precluded from recommending against the principle of the project. But the Consultation Paper adds that the decisionmaking process needs to cater for the possibility that problems may be identified that cannot be rectified through the imposition of conditions and casts doubt on the wisdom of proceeding with the project as proposed.[96]

ASSESSMENT OF PARLIAMENTARY PROPOSALS

Will the parliamentary process speed up decision-making?

150. The main purpose of the proposals is to minimise delay and uncertainty. But there is no guarantee that that will be achieved. Lord Falconer admitted to the Committee that it was _obviously very difficult to say if there would be any time-savings._[97] As he acknowledged Parliament might take a Parliamentary session to examine a major project.[98] We asked for examples of where the new procedures would have saved a considerable amount of time over the old. The only one he gave was the public inquiry into plans for a fifth terminal at Heathrow Airport. Despite being pressed, he gave no other examples.

151. The Government admitted in Major Infrastructure Projects: delivering a fundamental change that "There have been only a few projects in the last 15 years where inquiries have lasted more than 3 months". It adds that the "longest planning inquiries have lasted years". In addition to Heathrow Terminal 5, the Paper mentions Stansted Airport, Manchester Airport Second Runway and the East London River Crossing. Stansted took place in 1981-3 and lasted 258 days, Manchester, took place in 1995 and lasted 101 days, and the East London River Crossing took place in 1985-6 and lasted 194 days. It is unlikely that the new parliamentary procedure would be any quicker. Moreover, many major road inquiries take no more than 40 or 50 days.

Will the parliamentary process guarantee a fair hearing to the affected parties

152. While it is envisaged that the new procedures will take the form of an investigative select committee inquiry, Parliament will be acting in a quasi-judicial role because it will decide on the principle of the project and its location. In effect Parliament will be granting outline planning approval to the project on a particular site. Several submissions raised concerns that the parliamentary process would not be as fair to those affected by the proposals as the current public inquiry system. The main concerns are:

there would be no right for affected parties to appear before the Committee; and

informal or formal whipping would be inevitable.

These restrictions could well mean that people would have fewer rights in relation to projects that have a major effect on their property and rights than in relation to lesser developments. There is also some question as to whether the procedures would be consistent with the Human Rights Act.

153. We put to the Minister the difficulty of restricting witnesses at an investigatory, or Select Committee, hearing when considering issues such as 'need_ and _location_. He said:

"A judgement would have to be made by the committee about who they heard from, just as the public inquiry makes that judgement, but it is perfectly able to identify what a representative body of objectors consist of."[99]

While a select committee will have to make a judgement and only hear selected parties, at planning inquiries it is the practice that all parties are given a hearing.

154. Witnesses were concerned that the only right that those affected parties, who were not called by the select committee, would have would be the right to lobby their MP. As Friends of the Earth said, 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."[100]

155. The environmental impact assessment procedure requires wide consultation on the Environmental Statement. The public concerned have to be given a reasonable opportunity to express an opinion before consent is granted. Professor Grant said that when handling major projects, Parliament will need to observe the minimum obligations of procedural fairness. He added: "It would be difficult for example to reconcile the discipline of party political whipping of the Parliamentary process with the requirements of the EU directive for open-minded consideration of the environmental impact assessment information."[101]

156. The Minister stated that "it would be inappropriate for there to be whipping."[102] While there might not be formal whipping, the influence of party discipline will be extremely hard to avoid: the Whips are likely to decide who sits on the Committee, and many members are unlikely to take decisions which they think the party would oppose.[103]

157. Under the Private Bill Procedure there was technically minimal Government involvement: bills were promoted by organisations outside Parliament; the convention was that there was no whipping at any stage; a backbench Member had to act on behalf of the promoters; and Government intervention was limited to a formal statement at second reading as to whether the Government had major objections. Even so, in our experience the Government's influence was brought to bear. This is much more likely to be the case with the proposed new procedures when the select committee will be examining a project brought forward by the Secretary of State.

158. Although the terms of reference for the subsequent inquiry, following Parliamentary approval, would be restricted, the requirement to provide a fair hearing would make it very hard for an Inspector to avoid duplication, particularly about the location of a project. This would not only lead to delay but also to further uncertainty in relation to meeting the requirements of environmental assessment and the Human Rights Act 1998, especially where landowning rights are concerned.[104]

The parliamentary process and the Report of the Joint Committee on the Private Bill Procedure 1987-8

159. In 1987-8, Parliament considered its role in relation to schemes similar to Major Infrastructure Projects in the Joint Committee on the Private Bill Procedure. It found that the private bill procedures were unacceptable to petitioners for a variety of reasons: for instance, they found it difficult and expensive to come to Westminster; Parliament was an intimidating forum compared to a local inquiry; and they believed that planning inspectors had the necessary expertise to make fair decisions. MPs disliked the process because it was time-consuming and they lacked the expert skills to consider the matters in the Bill. There was also increasing pressure on MPs considering works bills to visit the site of the proposed project and take evidence there. The Joint Committee concluded that it was not appropriate for private bill committees to continue to consider major works projects. While the Government is not seeking to recreate private bills, the procedures which it is proposing will lead to many of the problems which the Joint Committee identified.

160. In the case of _works_ bills, the Joint Committee concluded that while it was right that Parliament should express an opinion on them, even when the final decision is one for the Minister, authorisation should in future be through nonparliamentary procedures involving, where necessary, a public inquiry.[105] This recommendation led to the Transport and Works Act 1992.

CONCLUSIONS AND RECOMMENDATIONS ON PARLIAMENTARY PROPOSALS

161. Based on the evidence received, there is unlikely to be any time saving by adopting the proposed parliamentary process. The Government has continued to stress the length of time taken by the public inquiry to consider Heathrow Terminal 5; this was wholly exceptional.

162. If the Government were to go ahead with its Parliamentary proposals, the public would also lose confidence in the inquiry system since long established rights of hearing would be restricted. It will be very difficult for Parliament to give a fair consideration to Major Infrastructure Projects as required by the Human Rights Act. Even if there is no formal whipping of MPs by party managers, the influence of party discipline would be extremely difficult to avoid.

163. Giving Parliament the power to decide on the principle, need for and location of a Major Infrastructure Project would lead to unavoidable duplication later at a public inquiry and the increased likelihood of legal challenge.

164. It is not appropriate for MPs to be asked to consider the issues raised in Major Infrastructure Projects given the likely length of hearings and the probable need to sit part of the time away from the House. If implemented the proposal would constitute a retrograde step and would be counter to the report of the Joint Committee on Private Bills of Session 1987-8, which was approved and implemented by both Houses. Worse, the partial consideration suggested would add a further highly undesirable complication that would almost certainly increase the likelihood of delay, thus defeating the main object of the proposal.

165. When it _approves_ Major Infrastructure Projects, Parliament should do no more than it currently does under section 9 of the Transport and Works Act for schemes of national significance. We therefore recommend that the scope of the Transport & Works Act be extended so that certain Major Infrastructure Projects may be selected by the Secretary of State to fall within an appropriately amended section 9 of the Act.

166. Under our proposal, as with other Transport and Works projects, after completion of the Parliamentary stage the project would be scrutinised at public inquiry. At the inquiry the Inspector would be guided by a National Policy Statement and the approvals of both Houses of Parliament. These would be weighty material considerations for the Inspector to take into account. There would also be further guidance from the Secretary of State who will have issued a statement of the matters which should be considered at the inquiry. Nevertheless, the public inquiry would be the forum to consider all aspects of the proposed development.

Improvements to the public inquiry process

167. The Consultation Paper announced the Government's intention to improve the public inquiry process. The improvements are to include: strengthening the powers of inspectors, stricter time-tabling and more clearly focused terms of reference.[106]

168. After the publication of the Major Infrastructure Projects Consultation Paper, the Government published in May 2002 the Town and Country Planning (Major Infrastructure Inquiries Procedure) (England) Rules 2002.[107] These only relate to planning applications and not to the proposed Parliamentary procedure, but there is no reason why they, or similar rules, should not be made to apply to the other statutory regimes within which Major Infrastructure Projects fall. The new rules provide a framework that will increase the efficiency of inquiries and help to minimise delay.

169. We welcome the Government's proposals for making public inquiries more efficient, and emphasise the need to keep the Major Infrastructure Projects inquiry rules under review and update them when necessary.

PERIOD BETWEEN THE SUBMISSION OF THE INSPECTOR_S REPORT AND THE SECRETARY OF STATE_S DECISION.

170. We have been concerned at the sometimes lengthy delays between the submission of an Inspector_s report and the announcement of the Secretary of State_s decision which the Committee highlighted in its report on the Planning Inspectorate.[108] We welcome the formation of the DTLR's Planning Central Casework Division to handle the Secretary of State_s calledin and recovered appeals, and Lord Falconer's statement that he envisages that within two years the Division will halve the time it takes for decisions to be announced.[109] In the past the announcement of decisions has on occasion been delayed for political convenience. In this context we note that both the new MIP and the 2000[110] inquiry rules require the Secretary of State to notify his decision _as soon as practicable_ after taking it.[111] We recommend that this rule be amended so that the Secretary of State is required also to take the decision itself as soon as practicable to ensure that decisions are made when required for the efficient operation of the planning system.

Delays at other stages in the process

171. While the Major Infrastructure Projects Consultation Paper concentrates on reducing the time taken up with what is currently the public inquiry stage of the authorisation process, we have noted with concern serious delays at other stages. The Paper itself mentions that by streamlining the preconstruction phase of a road scheme, and the use of better procurement techniques, 3 to 5 years could be cut off the 10 years it now takes to start work on such projects.[112] By comparison with some of the relatively small savings that can be obtained by improvements to the current inquiry process, it is clear from the example given that very considerable time savings can be made by improvements elsewhere. We recommend that the Government conducts a thorough formal review, and reports upon both the pre application and post regulatory approval stages of all aspects of Major Infrastructure Projects.

General conclusions on Major Infrastructure Projects

172. In combination the recommendations which we have made relating to national policy statements, Parliamentary procedures, public inquiries and the decision taking stage, will bring about the required improvement in procedures while at the same time providing a fair hearing for affected parties and retaining public confidence in the inquiry system. Of no less importance is the need for Ministers not to postpone taking decisions for political reasons after an Inspector's report has been received.

86 New Parliamentary Procedures for Processing Major Infrastructure Projects, (MIP paper) DTLR, December 2001, para 7. Back

87 SI 2002, No.1223 Back

88 DTLR Circular 02/2002. Planning inquiries into major infrastructure projects: procedures. Para. 5. Back

89 The Rules only apply to planning , listed building and conservation area consent applications. Back

90 See MIP paper, paras. 1617. Back

91 MIP paper, para 21. Back

92 Q953, Q958. Back

93 Q951. Back