Memorandum submitted by Timothy Corner QC, Planning and Environment Bar Association (NPS 93)

 

1. This submission is made on behalf of the Planning and Environment Bar Association ("PEBA"). Our members are barristers specialising in the fields of planning, environment, highways, rating, and other matters relating to local government.

 

2. In representing its members PEBA liaises with Government departments and agencies, organisations such as the National Planning Forum and other professional bodies. PEBA has frequent contact with the Planning Inspectorate and PEBA representatives have met officials of the Infrastructure Planning Commission ("IPC") to discuss the procedures the IPC will follow when dealing with applications for development consent.

 

3. PEBA made representations to the Government and opposition parties about the Planning Bill. When the Planning Bill was before the House of Lords, a representative of PEBA met the responsible Minister, as well as peers leading for other parties, to discuss the Bill's procedural provisions.

 

4. PEBA supports the Government's aim in creating a single consent process for nationally significant infrastructure projects, which is to ensure that applications for such projects are processed expeditiously. We see National Policy Statements ("NPSs") as an important part of the structure. They aim to set a framework of general national policy, leaving the IPC's examination to focus on the specifics of a project.

 

5. However, while the consent procedures for major projects should not be delayed unnecessarily, speed should not be at the expense of proper examination. Projects of sufficient importance to come before the IPC will nearly always be of substantial complexity. Consideration of the acceptability of a project in the location proposed will require detailed scrutiny, if its acceptability is to be properly assessed. That may well mean oral questioning of the experts who have given their views on relevant aspects, for example flooding, noise, landscape, and impact on heritage assets.

 

6. PEBA is grateful for the opportunity to give evidence before the Energy and Climate Change Committee on the draft NPSs relating to Energy.

 

7. We do not seek to comment on the general policies in the draft NPSs, for example relating to the need for new nuclear power. We restrict our comments to the reference to specific sites in EN6.

 

8. EN6 identifies a number of sites as "potentially suitable" for development of a nuclear power station. EN6 also deals with alternatives. It is stated[1] that the Government has concluded that none of the three locations considered by Atkins is a credible site for the deployment of new nuclear power stations by the end of 2025.

 

9. NPSs will be crucial to the IPC's determination of applications for development consent. The effect of section 104 of the Planning Act 2008 ("the 2008 Act") is that applications must be decided in accordance with any relevant NPS save in certain exceptional cases.

 

10. Section 104(9) states that the fact that an NPS identifies a location as potentially suitable for a development does not prevent one of the exceptional cases applying. However, the effect of identification of a site in an NPS as potentially suitable, or its exclusion as a possible alternative, will be to set up a strong presumption, which it will be hard to shift before the IPC.

 

11. That makes it vital that there is an appropriate and robust process for the identification of sites within NPSs as potentially suitable, or their exclusion as alternatives.

 

12. That means, to begin with, a process of consultation, in relation to each site being considered, which is appropriate to the characteristics of the site, and to the size and importance of the project. Interested persons must have the chance to make a considered response in sufficient time to influence decision making. That requires adequate notice of any consultation exercise to be given, and the possible proposals to be explained in sufficient detail. We do not comment on the process that has been followed in relation to any particular site mentioned in EN6, but we note that there have been criticisms in some cases.

 

13. Further, so far as we are aware there has been no opportunity for questioning of the experts responsible for the judgments on which conclusions in EN6 are based, by supporters of sites or objectors to them.

 

14. In those circumstances, it will be vital for the IPC to scrutinise any applications for development consent that are made to it with the utmost care, ensuring that where necessary experts are questioned, whether by the IPC itself or by the parties. Further, in applying section 104 of the 2008 Act and deciding whether any of the exceptional cases set out in the section applies, the IPC will need to take account of the extent to which there was informed consultation and debate about the site's merits in the process leading to the publication of the relevant NPS.

 

 

January 2010



[1] See page 16