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Memorandum submitted by the
Law Society of (NPS 60)
1. The Law
Society is the representative body of over 100,000 solicitors in
2. Our concern is for good law, and that means in this context having clear comprehensible policy. The Infrastructure Planning Commission (IPC) is required to decide applications in accordance with the relevant National Policy Statement (NPS) unless that would be unlawful or adverse impact would outweigh benefits. The NPSs are therefore crucial. They are written by the Secretary of State. As the IPC is an appointed body, with no electoral accountability, the only opportunity for input from a democratically elected body is now. Many say there is a democratic deficit in this system and we agree with that. Parliament and this Select Committee are the only real opportunity for democratic involvement in this decision making process. That is the background to our evidence and we hope that the Select Committee will approach its task with this in mind.
3. The new system is quite contrary to the way we normally do things in this country, and we suspect that much of the general public has not engaged with the NPSs and their decisive nature. The ad hoc discussions of the members of our Committee with clients and consultants support this conclusion. This concerns us and heightens the role of the Select Committee as we see a risk of serious public concern when it comes to the construction of the projects. Will there be a repeat of the protests we saw at Twyford Down, the Newbury By-pass and Batheaston By-pass in the 1990s? Those schemes went through a consenting process with far more public involvement than the new system and of course a public inquiry.
4. These energy NPSs fall into three categories. First the overarching NPS (EN-1). Then the nuclear NPS (EN-6) which is site specific. Then the non-site specific NPSs (EN 2 - EN5). We will concentrate on EN-1 and EN-6.
5.
5.1. We found it difficult to see any actual policy in EN-1. It is largely argument, background and information. There is a place for that, but we do think that it would be helpful for actual policy to be highlighted in some way. Otherwise it becomes difficult to separate policy from explanation. We find it difficult to believe that every word of the NPS is policy and that every word has to be followed by the IPC.
We see however that later in EN-6 (para 3.1.1) it is claimed that EN-1 part 4 sets out policy on how the assessment of applications should take place. We had read those sections as background and guidance. Indeed to take an example, section 4.30 on environmental assessment of water quality and resources does no more than set out the obvious. But surely it for the IPC to decide how to assess applications, in accordance with the law.
5.2. The NPSs are meant to be statements of policy. However the drafts seek to explain quite a lot of law, and then compound the difficulty by not actually stating that that is what they are doing. The problem with this is that the explanations may not be correct and the law will inevitably move on. There is a recent practical example of this difficulty in the Government's long standing policy circular on planning conditions[1]. This says that conditions should not require section 106 agreements. That is a statement of law, but it is being interpreted as policy, thus stopping innovative solutions to new problems on large development sites.
These explanations are often unnecessary and simply lengthen the document.
5.3. The NPSs state that they may be a material consideration in application for planning permission in the non-IPC regime. This is undoubtedly true. However the Government goes on to say that the policies in the NPSs should apply to non-IPC cases wherever practicable. This suggests that NPSs should trump all planning policies, carefully worked out in local development frameworks, drafted by local councils and exposed to public scrutiny and rigorous testing in independent examinations by the Planning Inspectorate. There may be specific policies that ought to be applied in this way but those ought to be called out specifically. Similar considerations apply to applications to be determined by the Marine Management Organisation (when up and running).
5.4. The nuclear NPS (EN-6) identifies ten suitable sites and says that all ten sites are needed. In practice therefore the locations are chosen. If it would be unlawful to grant consent for any of them the IPC cannot do so; that is accepted by the Government and the Planning Act 2008 says this. In practice however, it is rarely unlawful to grant a consent. Planning just does not operate that way. The main exception to this is the Habitats Directive. So assuming compliance with that Directive, the sites can only be rejected if adverse effects outweigh benefits.
This puts onto the IPC a huge weight of responsibility. If they reject a site, the country will not have enough generating capacity on the Government's need figures. The decision on numbers and siting will effectively have been taken if this NPS comes into effect. That is the result of a site specific NPS and the new legislative framework.
It is not for the Law Society to have a view on whether those numbers and sites are correct. Others will submit evidence on those issues. But we draw attention to this issue because the combined effect of EN-6 as a site specific NPS and the legislative framework is almost to determine that these power stations can be built in these locations and we think it is important that the Select Committee and Parliament understand the position as they consider these NPSs.
5.5. There is considerable repetition of existing policies. We are not sure what this achieves, or why it is done. The NPSs are paramount and the law sets out how the IPC is to approach its task. What is being achieved by the repetition? EN-1 para 4.1.2 does not really help.
5.6 The new system and these policies are in broad terms good news for promoters. They make it much harder for those who would oppose the schemes however. But that decision has been taken by the passing of the Planning Act 2008.
January 2010
[1] Circular 11/95 |