Memorandum submitted by Campaign to Protect Rural England (PB 1)



Memorandum of Evidence by the Campaign To Protect Rural England (CPRE) to the House of Commons Public Bill Committee

6 December 2007




1. CPRE welcomes the opportunity to submit evidence to the Public Bill Committee on the Planning Bill. The benefits of good planning have been a central interest of CPRE since our formation in 1926. We were closely involved in the establishment of the system in 1947 and subsequent revisions, particularly the 1991 and 2004 Acts. A major focus of our work around the Planning & Compulsory Purchase Act 2004 was around procedure rules for inquiries into major infrastructure projects. This submission has a similar focus in relation to the proposals contained in the Planning Bill, although we have concerns about all aspects of the Bill.


2. CPRE is the leading voluntary organisation engaged in both shaping and engaging with the land use planning system at all levels. Our network of local branches in every county and our regional groups participate in the planning process on a daily basis, and we have a long history of involvement with nationally significant infrastructure projects. We appear at more public inquiries, Local Development Framework Examinations and Regional Spatial Strategy Examinations-in-Public than any other organisation, and monitor an estimated 200,000 planning applications a year.


3. We have taken input from our branches and our Honorary Standing Counsel. We are also campaigning jointly on the Planning Bill as part of the Making Planning Better coalition, consisting of environmental organisations that together are supported by more than 5 million people. 31,000 of the 32,100 responses to the Planning White Paper consultation came from supporters of coalition organisations. CPRE is alarmed by the dismissive attitude of the Government response to these public concerns about the proposals for nationally significant infrastructure, with only two pages of the response summarising general responses from the public, and over 60 pages to detailed responses from organisations and some members of the public.




4. While we have concerns about all aspects of the Bill, this evidence to the Committee revolves around three themes:


The proposals for National Policy Statements (NPS) on nationally significant infrastructure, which CPRE welcomes in principle. We are concerned that the Bill should ensure that these policies meaningfully contribute to, and are rigorously assessed against, sustainable development objectives in existing Planning Policy Statements (PPSs). We also believe that NPSs should generally avoid detailed consideration of specific sites if they are to be produced efficiently.

More prompt decision-making on major projects, CPRE believes, can be best achieved through the use of existing agencies within Government, rather than setting up a new Infrastructure Planning Commission (IPC) to decide such projects. We are concerned that this would be an unnecessary additional burden on the taxpayer and not deliver any significant benefits.

CPRE firmly believes that the Government should not introduce any further reforms to public inquiry procedures for nationally significant infrastructure projects until new rules introduced in 2005 have been properly evaluated. If new rules are introduced, these should be produced as secondary legislation by the Lord Chancellor rather than as primary legislation within the Planning Bill. It is essential that, whatever approach is chosen, the rules set clear criteria for when cross-examination of promoters by third parties can take place, rather than give complete discretion to the IPC or another examining body.


National Policy Statements (PART 2)


5. CPRE has long supported the principle of National Policy Statements (NPS). We also recognise that the Bill, unlike the White Paper, goes some way to addressing environmental concerns in stating that a Sustainability Appraisal (SA) will be carried out for all NPSs (Clauses 5[3] and 6[3]), and that Ministers will be duty-bound to pursue sustainable development in preparing them (Clause 9).


6. CPRE is concerned that the commitment to SA, whilst welcome, is insufficiently specific on what will happen in practice. We believe that the Bill must state that any SA is carried out fully in accordance with the EC Directive (2001/42/EC) on Strategic Environmental Assessment (SEA). There are a number of lessons that have been learnt from recent practice in carrying out SAs at the regional level[1]. We therefore recommend that the Bill should also require Government departments to state how they have addressed issues identified by the SA/SEA process, especially where action to avoid unsustainable actions and trends has not been taken; and for SAs for NPSs to be independently scrutinised by either the Sustainable Development Commission or jointly by the Environment Agency and Natural England.


7. CPRE is concerned about NPSs becoming the primary consideration in decision-making (clause 94). It is vital that they are not accorded greater weight than existing PPSs and guidance notes (PPGs), particularly PPG2 on Green Belts and PPS7 on nationally designated landscapes. In its analysis of consultation responses, the Government merely states that NPSs 'will integrate all relevant environmental, social and economic policy'. As all PPSs and PPGs are intended to help achieve sustainable development, CPRE believes that there is a strong case for highlighting the need to have regard to PPSs and PPGs in Clause 9 on the sustainable development duty on Ministers, and in Clause 94 on considerations in decision-making.


8. The Ministerial Statement also stated a desire by the Government to incorporate the 2003 Air Transport White Paper into the NPS on aviation. This is taken forward by Clause 11(1). CPRE understands that the Department for Transport would like to avoid re-opening debate on Air Transport White Paper policies. We believe such a debate is sorely needed, given that that White Paper was not subjected to SA or SEA, and its expansionist approach to aviation contradicts the UK's international commitments to tackle climate change. Accordingly we would call for Clause 11(1) to be either deleted or amended to state that such statements should not be adopted as NPSs until they have complied with the requirements for appraisal and consultation set out in Clauses 5 and 7 of the Bill.


9. Individual NPSs may designate specific sites for infrastructure development (clause 5[5][d]). CPRE would recommend that this sub-clause is deleted as it could both overload the policy-making process and require a lengthier period of cross-examination at the application stage, as limited or no cross examination is proposed at the NPS stage. CPRE accepts that the NPS stage should not normally need a detailed process of cross-examination. This is well established in the examination in public process for Regional Spatial Strategies and, prior to 2004, for Structure Plans. We believe that there is a strong argument for a similar examination in public process for NPSs. This could be inserted into the Bill using clauses similar to Sections 7-10 of the Planning & Compulsory Purchase Act 2004.


10. The Bill leaves the details of Parliamentary scrutiny to Parliament. The Ministerial Statement accompanying the Planning Bill suggests that the Select Committees for the Departments sponsoring the infrastructure in question (namely BERR, DEFRA and DfT) would take the lead in scrutiny. CPRE believes that the Select Committees have a valuable role to play, and we urge that the CLG Select Committee should also bring its knowledge and experience of planning to bear. In particular, we would urge the Committees to use their investigations to highlight areas that may need subsequent testing or cross-examination at a public inquiry, especially in the event of NPSs designating specific sites. CPRE believes that some form of cross-examination is vital to ensure proper consideration of major proposals. Yet the Bill proposes that this would only happen at the discretion of the IPC (see below).


11. We do not believe that Select Committee inquiries can be expected to fulfil adequately the cross-examination and inquisitorial roles that examinations in public of regional planning policies and public inquiries into individual projects currently play. This reinforces our call for a public examination of NPSs and a carefully framed process of cross-examination at inquiries (more on the second point below).


The role of the Infrastructure Planning Commission (PART 5, CHAPTER 3 AND PART 6, CHAPTERS 5 TO 7)


12. CPRE does not support the proposal in the Bill to take decision-making on nationally significant infrastructure projects away from elected politicians directly accountable to Parliament and the electorate and give these to the proposed IPC. Clause 94 sets out a number of factors that the decision-maker can take into account in making a final decision other than NPSs, including the 'adverse impact' of a proposal as well as domestic and international law. Leaving jurisdiction on the definition of 'adverse impact' to an unelected commission would be an open invitation for judicial reviews of IPC decisions.


13. We believe that the Government has begun to realise that this proposal is unworkable. Clauses 98-100 of the Bill provide the Secretary of State with a reserve power of call-in, not envisaged in the White Paper. We welcome this but believe that it would be simpler to define clearly a single Secretary of State, rather than the proposed IPC or more than one Secretary of State as often happens at present, as the responsible decision maker in all cases. At the very least, the call-in power should be much wider-ranging. This would complement the single 'development consent' regime proposed for nationally significant projects in Part 7 of the Bill, which CPRE believes is a sensible reform. Alongside this, the statutory time limit of 3 months for a Ministerial decision, proposed in clause 100 (5) of the Bill, could deliver significant savings on the current average of 81/2 months[2] taken from report to decision stage for nationally significant infrastructure projects.


14. CPRE believes that nationally significant projects can be processed more quickly through the planning system than at present. We believe the best way to do this is to secure a modest increase in the funding for relevant Government departments and for the Planning Inspectorate, which already have extensive organisational experience of decisions on such schemes. The proposed IPC will, by contrast, be a significant additional drain on the taxpayer. The Government's own Impact Assessment for the Planning Bill found that the annual cost of the IPC would, at 9.3 million, outstrip the savings in administration for Government bodies by more than ten times. This is in addition to the IPC's one-off start up costs, identified by the Government as 5 million[3].


15. The Impact Assessment (pp.13-17) claims that 300 million per year will be saved by 'society' and promoters. Closer analysis shows that these savings would not come from the involvement of the IPC itself, but from shorter timescales within the planning process. We believe such time savings could be achieved simply through having clear national policies, embodied in NPSs, alongside stricter rules on decision making by Ministers set down in legislation. It is also proposed in Clause 45 to give the IPC a role in providing assistance for applicants. We are concerned about the propriety of such arrangements. There are a number of Government bodies already in existence that could provide such assistance, including the Planning Inspectorate, Planning Advisory Service and the Advisory Team for Large Applications (ATLAS). The use of these existing organisations would have the advantage of ensuring that bodies discrete from the decision maker provided advice to applicants. CPRE therefore contends that a new body is not necessary for this purpose.


16. A further concern with the proposed IPC relates to costs but more fundamentally to relations between central and local government. This is the remit of the IPC in relation to the quantity of projects it will consider. CPRE believes the number of 'nationally significant infrastructure projects' must be kept as low as possible, in keeping with the established principle of the planning system being led by policies and decisions at the local level. The Government initially expected the IPC to consider around 10 major infrastructure projects per year, as well as a larger number of less complex cases. Accordingly, the IPC would need between 20 and 30 commissioners[4].


17. The Government now forecasts that there will be, on average, 46 nationally significant infrastructure projects per annum. Accordingly, a need is now identified for 35 IPC commissioners or board members, alongside a staff of 75[5]. This suggests that the Government has not properly considered the scope of its proposals, and that there is likely to be significant cost overruns when the proposed new regime is introduced. Moreover, it suggests a further extension of central control and micromanagement of the planning process, contrary to the Government's stated aim of devolving more power to local communities.


18. In view of the above, CPRE believes strongly that sub-clauses 3, 4 and 5 of Clause 13, which allow the Secretary of State to add new types of 'nationally significant infrastructure' to those proposed in subclause 1 without primary legislation, should be deleted.


Public inquiries and examination of nationally significant infrastructure projects (PART 6, CHAPTER 4)


19. CPRE's primary concern in relation to the Bill proposals for inquiries is that the IPC will have the discretion to decide whether cross-examination of evidence will take place as indicated in clause 85. We recognise that Clause 85 also addresses some of the concerns we expressed in responding to the Planning White Paper, in including provision for oral hearings that will always be held in public. We welcome the recognition of the importance of transparency in the decision-making process. Clauses 85 (4) and 88 also state that the IPC's powers in relation to hearings will be subject to any rules that the Lord Chancellor may make.


20. CPRE believes that the existing Town & Country Planning (Major Infrastructure Project Inquiry Procedure) (England) Rules 2005[6] sufficiently integrate the requirement for a fair public hearing and cross-examination of evidence by organisations deemed to have standing, with the need to expedite decision-making. We believe that these rules should be thoroughly evaluated before new inquiry procedures are considered. We fear that leaving decisions on cross-examination of major parties to the discretion of the IPC would seriously undermine public confidence in the planning system and considerably increase the chance of judicial reviews of decisions.


21. We also believe, were it deemed necessary to reform the 2005 procedures in the light of any evaluation, that the involvement of the Lord Chancellor and the consultation envisaged in Clause 88 (1) should take place before new rules are adopted, and that the rules suggested in Clause 88 could address the issue of cross-examination. We would therefore contend that subclauses 4 and 7 of Clause 85, allowing the IPC to control cross-examination, are unnecessary and inappropriate for primary legislation and should be removed.


22. We recognise that limits to scrutiny and cross-examination may be appropriate in some non-contentious cases. The 2005 rules cited above already allow for this. CPRE believes that trying to avoid or limit scrutiny at public inquiries for major cases, however, could have serious environmental consequences and will prove to be a false economy.


23. First, cross-examination of the evidence of promoters has played a vital role in highlighting flaws in the detail of environmentally damaging proposals. This is highlighted by the Dibden Bay container port proposal that would have irreparably damaged an internationally important wildlife site. Second, the proposal may actually be unlawful in view of the UK's obligations under Article 6(1) of the European Convention on Human Rights. CPRE would like to see a detailed response from the Government on this point. Third, limiting the scope of inquiries may not save as much time as is claimed. The Government's Impact Assessment, based on 18 recent cases where there were public inquiries, states that the average length of the examination stage for a nationally significant project is currently 19 weeks, significantly shorter than for either the report stage or decision by central Government. The Government's evidence may be distorting the true picture, as not all 'nationally significant' projects undergo inquiries. Analysis of information on recent cases involving 'nationally significant' infrastructure within the meaning of Clause 13 of the Bill, shows that the average inquiry period was actually only 13 weeks[7].


24. There is also evidence to suggest that, where some degree of cross-examination has taken place at inquiry, there is reduced scope for judicial review of the final decision. The Heathrow Terminal 5 inquiry is often cited as an example of the slowness of the planning system. We believe that the comprehensive cross-examination that took place during that inquiry was an important factor in preventing a subsequent legal challenge to the final decision[8].


25. The IPC will also have wide-ranging powers to control the examination of major projects. Clauses 79 (3) (b) and 85 (8) (b) allow the IPC to disregard any evidence that relates to the merits of policy contained within a National Policy Statement. This appears to be in conflict with the UK's obligations on public involvement contained within Article 6 of the Aarhus Convention. CPRE also believes that, particularly in cases where NPSs designate specific sites for development, it will be impossible to untie questions of national need from the various criteria outlined in Clause 94 of the Bill that allow the decision-maker to decide an application other than in accordance with the relevant NPS. We would therefore suggest that the two sub-clauses referred to above are substantially amended or removed.


Town and Country Planning reforms (PART 9, CHAPTER 2)


26. CPRE broadly welcomes the reforms to existing planning regimes proposed in Chapter 2. We are concerned that the 'Community Infrastructure Levy' proposed in Part 10 should work in accordance with development plan policies; derive benefit for localities less able to attract development as well as those that do; and that it should not adversely affect the resources going into rural affordable housing through existing Section 106 agreements. Clause 160 allows the Secretary of State to determine appeals procedures in line with published criteria. We suggest that this sensible reform could also be considered in relation to the examination of nationally significant infrastructure projects.


January 2008

[1] See CPRE, FOE and WWF-UK, How Green is my Region?, 2007.

[2] The figure on the time taken by Ministers to make decisions after an inspector's report is taken from analysis of information presented by the Planning Inspectorate to the CBI Major Infrastructure Projects Conference, London 30 October 2007, relating to 74 inquiries since 1999 into nationally significant infrastructure projects.

[3] CLG 2007, Planning Bill - Impact Assessment, p.8.

[4] Planning White Paper, paragraph 5.57.

[5] CLG 2007, p.30.

[6] SI 2005/2115.

[7] CLG 2007, p.17; Planning Inspectorate 2007, op. cit.

[8] Journal of Planning and Environment Law October 2007, p.1420.