3 Changes to the Planning Act 2008
and Parliamentary scrutiny
19. The Government has made several changes to the
draft NPSs with the stated aim of improving democratic accountability
for planning decisions. It has introduced a new ratification procedure;
it has revisited the Appraisals of Sustainability; and it has
announced major changes in the consent process set out in the
Planning Act 2008, which will be taken forward in the Localism
Bill. This section examines the changes to the Planning Act, the
new ratification procedure and outstanding issues relating to
the Appraisals of Sustainability.
Revised Appraisal of Sustainability
20. The Government cited the perceived weaknesses
in the first Appraisals of Sustainability as the reason for re-consulting
on all the draft National Policy Statements. The Minister told
us that "It was pointed out to us that the Appraisal of Sustainability
was not as clear and as forceful as it needed to be. We agreed
with that representation, and, as that was in the overarching
national policy statement on energy, we decided it was sensible
to re-consult on all of them".[30]
21. The Appraisals of Sustainability are intended
to fulfil the requirements of the EU Strategic Environmental Assessment
Directive (SEA Directive).[31]
According to Friends of the Earth, non-compliance with the Directive
potentially leaves the NPSs "open to legal challenge on designation".[32]
22. The AoSs indicate that the energy NPSs should
speed up transition to a low-carbon economy; that they will contribute
positively to economic competitiveness and security of supply;
but that Nationally Significant Infrastructure Projects (NSIPs)
will have some negative effects on biodiversity, landscape and
heritage. There may also be cumulative negative effects on water
quality and health at the regional level.[33]
23. The original AoSs compared the effect of implementing
established policies within the framework of an NPS against a
business as usual scenario. The previous Committee reported that
the section comparing NPSs to "reasonable alternatives",
as required by the Strategic Environmental Assessment Directive,
did not give proper consideration of alternatives.[34]
Article 5(1) of the SEA Directive states that:
Where an environmental assessment is required under
Article 3(1), an environmental report shall be prepared in which
the likely significant effects on the environment of implementing
the plan or programme, and reasonable alternatives taking into
account the objectives and the geographical scope of the plan
or programme, are identified, described and evaluated.[35]
24. The revised AoSs include consideration of a wider
range of alternatives in order to compare the likely environmental,
social and economic effects (positive and negative) of the revised
draft NPSs with other options. This includes strategic alternatives
for the overall goals of energy policyto maintain safe,
secure and affordable energy supplies, together with moving to
a low-carbon economy and reducing carbon emissions by at least
80% by 2050. Alternatives include placing a greater emphasis on
greenhouse gases mitigation or adopting a different approach to
putting transmission and distribution lines underground, or "undergrounding".
The AoSs do not reassess the overall policy objective, but the
balance of contributing objectives for reaching the overall goal.
The Government makes the case for the plans set out in EN-1 to
EN-6 on the grounds that the alternatives would perform less well
against one or more of the criteria of affordability, security
of supply and climate change mitigation.[36]
25. According to the AoS for the revised draft EN-1,
placing more emphasis on low-cost energy would be likely to have
an adverse effect on energy security (through increased imports
and less diversity of supply); increase carbon emissions; have
a worse effect on the built and natural environment; but have
beneficial effects on the economy and human health in the short
term (as more income is made available for other spending).[37]
Placing more emphasis on CO2 reduction would have a
positive effect on the environment and may compare favourably
from a human health and well-being and economic perspective, but
this alternative would be difficult to achieve through the planning
system without risking security of supply.[38]
Placing more emphasis on reducing other environmental impacts
would be beneficial for the natural and built environment, but
present risks to energy security.[39]
26. Evidence submitted to the Committee by the RSPB
suggested that "contrary to European Commission guidance
on the application of SEA, alternatives to the NPS policies are
not addressed in the same way and to an equivalent level of detail".[40]
They argued that the handling of alternatives contravenes the
Government's own guidance and that "the appraisals deal with
alternatives in such a brief and cursory way that they repeatedly
fail to give meaningful information about their likely impacts
on the environment".[41]
27. When we raised this point with the Minister,
he replied that:
The approach that we take to consultation is very
often that the Government express a preference, and a desired
way forward [...] but then we will often set out the other alternatives
and why we believe our chosen way is a better way of achieving
that. Consultation on one option doesn't sound to me much like
a consultation, however, so there clearly have to be other options
within it.[42]
28. We welcome the improvements that have been
made to the Appraisals of Sustainability since the publication
of the first draft NPSs, but we note the continuing dissatisfaction
in some quarters. We recommend that to avoid charges of non-compliance
in the future, the Government publish guidelines on how, in carrying
out Appraisals of Sustainability for future NPSs, it intends to
ensure fulfilment of the requirements of the Strategic Environmental
Assessment Directive. It should then consult separately on this
statement of principles and practice. For the present, we consider
that the Appraisals of Sustainability will pass muster.
Designating the National Policy
Statements
29. Before they can be used to decide planning applications,
the NPSs must be "designated" by the Secretary of State.
The Planning Act 2008 requires NPSs to undergo parliamentary scrutiny
before they are designated, but the Coalition has proposed a further
step in the Localism Bill that each NPS should be "ratified"
by Parliament.
30. Following the results of the first consultation,
on 15 July the Minister of State, Department of Energy and Climate
Change told the House in a Written Ministerial Statement that
the Government would hold a further consultation on the draft
energy NPSs.[43] On 18
October, the Secretary of State announced that consultation and
laid the revised draft NPSs before the House.[44]
He specified that the relevant period for scrutiny under Section
9(6) of the Planning Act 2008 would end on 31 January 2011.
Standing Order No. 152H (Planning: National Policy Statements)
stipulates that the designated or appointed Committee must report
to the House at least 39 days before the end of the relevant period,
in this case Thursday 23 December. However, in order to allow
us to complete our scrutiny of the revised draft NPSs, the House
agreed a motion that the designated date should be the fourteenth
day before the expiry of the relevant period.[45]
We are grateful for the Government's co-operation in enabling
the House to grant us this added time.
31. The Government accepted our predecessors' recommendation
that the revised draft NPSs be subject to a debate in the main
Chamber. This took place on Wednesday 1 December.[46]
32. Previously, the Government had suggested that
"Committees will have at least four to six weeks after the
end of the three-month public consultation period to complete
their work [
] It means that the interval between the proposal
being laid and the Committee producing its report will not be
less than four months and will usually be longer than that".[47]
Friends of the Earth made this point in their submission to the
Committee.[48] This did
not happen. In the case of the revised draft NPSs, which were
laid before the House on 18 October, the consideration period
is 14 weeks (until the end of the relevant period on 31 January)
and the public consultation is running alongside our scrutiny.
The Localism Bill, which contains amendments to the Planning Act
arrangements which are material to our inquiry, was not published
until 16 December.
33. We recognise that on this occasion a foreshortened
period for scrutiny was acceptable, given that the draft Statements
had been subject to full scrutiny by our predecessor Committee.
However, we reassert the general expectation that the period of
parliamentary scrutiny follows the public consultation period.
The formal ratification procedure
34. The Government has committed itself to providing
an opportunity for the House to vote on each NPS prior to formal
designation in order, as it sees it, to improve the democratic
accountability of the process of deciding on new major infrastructure
projects.[49] The procedure
for ratification is laid out in Section 109 of the Localism Bill
as a set of amendments to the parliamentary requirements under
Section 5(4) of the Planning Act 2008. The Localism Bill was
published on 13 December 2010.
35. Under Section 109 of the Localism Bill, a new
"consideration period" is created. The consideration
period consists of twenty one sitting days of the House. For the
proposed parliamentary requirements to be met, the consideration
period must pass "without the House of Commons resolving
during that period that the statement should not be proceeded
with" or with the statement being "approved by resolution
of the House". According to new Section 9(8) of the Planning
Act, which would be introduced by Section 109(13) of the Localism
Bill, the consideration period cannot take place until after the
end of the relevant period set out in Section 9 of the Planning
Act and after the Secretary of State has laid before Parliament
a statement setting out his response to any resolution or recommendations
made as part of the parliamentary scrutiny. Only after this process
is complete can an NPS be designated by the Secretary of State
for the purpose of informing planning decisions.
36. We welcome the ratification procedure set
out in the Localism Bill for adding a formal stage of parliamentary
ratification before a Statement can be finally designated. We
note, however, that the proposal is for a form of modified negative
resolution procedure. Consequently, there is no guarantee that
the House will vote on each individual National Policy Statement,
although it is always open to the government to ensure a vote,
and, under the new procedures for backbench business a committee
or an individual Member could request one. We are not persuaded
that this entirely fulfils the Minister's assurances to us, though
we can also see the possibility of cases where a full vote on
a relatively minor revision seems excessive. We would expect the
Backbench Business Committee to give a sympathetic hearing to
any request for a debate and vote on an NPS in circumstances where
the government of the day appeared to be trying to avoid one.
THE INFORMAL RATIFICATION PROCEDURE
37. Until the Localism Bill receives Royal Assent,
there will be no statutory requirement for NPSs to be ratified,
but the Government has committed itself to mirroring the process
set out in the Localism Bill in an informal ratification procedure
by making "[
] a commitment not to designate NPSs without
going through an informal ratification process in which it will
consider any votes to be binding".[50]
38. On 16 December, the Secretary of State for Energy
and Climate Change, Rt Hon Chris Huhne MP, announced DECC's consultation
on Electricity Market Reform.[51]
He described a substantial undertaking, which could involve a
number of major changes in energy policy. Friends of the Earth
suggested to us that "perhaps it would be better if the NPS
were ratified at the same time as the Localism Bill is passed".[52]
This could provide coherence to the process and, secondly, ensure
that the NPSs reflect up-to-date energy policy, "rather than
having them ratified in 2011 and being almost immediately out
of date".[53] CPRE
added that "the same is true for the national planning framework,
which is also being consulted on at this stage" and that
"There is an opportunity to tie those things together".[54]
UK Business Council for Sustainable Energy agreed that "if
we are to have a new national planning framework [
] and
a radical rationalisation of planning policy statements, that
all creates a further period of uncertainty. So rationalisation
and ratification of the NPSs become even more critical to delivering
that stable policy framework, particularly in the short term".[55]
39. We believe that although early ratification
of the energy NPSs has some advantages completing the process
in advance of the decisions on electricity market reform, the
passage of the Localism Bill and the determination of the new
planning framework could fail to provide the coherence and certainty
that are part of the fundamental rationale for NPSs in the first
place.
DEBATING AND AMENDING THE NPSS
40. In the debate on 1 December, the Minister told
the House that "We are in the course of a three-month consultation,
which will finish on 24 January. There will quite possibly be
amendments to the NPSs after that, which will be in the final
version put before the House for debate, assessment and a vote".[56]
41. As with delegated legislation, there is no procedure
for the House to amend a draft NPS directly. We and others can
suggest amendments, the Minister may choose whether or not to
incorporate them in a revised Statement, but then (under the proposals
in the Localism Bill) the House will have to accept the Statement
as a whole or reject it as a whole. If the House rejects a Statement
whole, a Minister may come back with a further revision, but it
will not be clear on what specific grounds the Statement was repudiated.
The previous Committee recommended that each NPS "[
]
be subject to a debate in the main Chamber on an amendable motion,
offering the possibility of a vote"or even a series
of votes.[57] The Minister
told the Committee on 30 November that whilst a reasoned amendment
to the motion might be possible, amendment to the text of the
NPSs would not be encouraged:
You'll vote on each of the six NPSs. You will have
a chance to vote individually on them, but my understanding at
this point is that it will be an unamendable motion [
] perhaps
a formal amendment could be accepted by Mr Speaker. But what would
be difficult in the planned structure would be to allow, as in
the Committee stage of a Bill, potentially many hundreds of amendments
to be considered. There cannot be amendment in detail, but if
people choose to put down amendments, it will be up to Mr Speaker
to decide whether to accept them.[58]
42. The Minister also told the House that "On
the question of how the process will move forward, we have assumed
that there will be a debate about the national policy statements
overall and, at the end of the day, votes on the individual statements,
but we do not anticipate the scope for hundreds of amendments
to them".[59]
43. The revised draft NPSs include a large number
of changes from the original drafts. CPRE pointed out that "minor
changes in wording can have major impacts" and stated that
"We are concerned that democratic scrutiny of the revised
draft NPSs has been made more difficult by these changes being
summarised as drafting changes, ostensibly used simply or clarify,
rather than changes in policy, which deserve public scrutiny".[60]
Other witnesses also attested to the importance of points of detail
in the practical effects of the NPSs. Written evidence from RenewableUK
also suggested that "there remain a number of points of detail
that need to be addressed and have not been changed from the original
draft. These points, as detailed in our February 2010 response,
contain detailed policy guidance that has the potential to unravel
the development process".[61]
44. On the question of the form of debate on the
NPSs, the Minister of State told the Committee that "I think
the Committee would have a chance to feed into that structure.
No firm decision has been made. If you thought it would be important
to be able to discuss them individually, I think that the Committee
could make its views known to the Leader of the House".[62]
45. We recognise that the process of amendment and
scrutiny cannot continue indefinitely. Nor do we see it as a practicable
proposition that the body of a National Policy Statement should
be able to be amended line by linethey are not legislation
and are not drafted in legislative language. However, we do think
that the House should be given the opportunity to specify grounds
for rejection of a proposed Statement and if necessary to determine
the majority view on any such grounds. The House must have ample
opportunity to discuss the NPSs in detail. We recommend that
the Government makes sufficient time for a full day's debate on
the revised draft NPSs, centred on EN-1 (with perhaps a four to
six hour debate), but with a business motion providing time for
an individual debate or at least an individual decision on each
of the technology-specific NPSs. We urge the Chair to consider,
where practicable, the scope for consideration of reasoned amendments
on each Statement where these constitute a detailed rather than
principled ground for rejection. We further recommend strongly
that there is provision in a business motion for a separate vote
on each of the six energy NPSs.
THE DECISION-MAKING PROCESS
46. The second major change between the original
and the revised draft NPSs will be in the decision-making process
for individual planning applications. Since the first NPS consultation,
the Government has announced that it will abolish the Infrastructure
Planning Commission (IPC) and replace it with a Major Infrastructure
Planning Unit (MIPU) within the Planning Inspectorate (an executive
agency of DCLG).[63]
47. During the transitional period the IPC will continue
to examine applications and will act as the decision maker where
the relevant NPSs have been designated. If the NPS has not been
designated, the IPC will make a recommendation to the Secretary
of State who will make the decision. For applications under active
consideration by the IPC when it is abolished, transitional provisions
will enable MIPU to continue the examination without interruption.
Applicants will not have to restart the process and the statutory
timetable for decision-taking should match the current regime.
48. MIPU will assess planning applications on the
basis of the NPS policy framework and final decisions will be
taken by the Secretary of State on the basis of recommendations
by the MIPU. According to a circular letter from Sir Michael Pitt,
chairman of the IPC, "the expertise, processes and special
character of the IPC will be retained by creating a Major Infrastructure
Unit as part of a revised Communities and Local Government (CLG)
structure that includes the Planning Inspectorate".[64]
The Minister, Charles Hendry MP, told the Committee that the transition
from IPC to MIPU would not cause any delays in the planning process
and that it would not create significant costs:
In some areas there will be savings from that. In
terms of the work, the recommendation will be carried across the
Department. We believe that, with our existing resources, we can
scrutinise that to make a final decision. At that point, some
of the overheads will be reduced.[65]
49. The Minister suggested that ministerial decision-making
would increase the democratic accountability of the process, as
Ministers could be questioned more effectively by Members and
by Select Committees than the IPC could.[66]
We considered whether the transfer of responsibility for deciding
individual applications from the IPC to the Secretary of State
potentially introduced political considerations in the application
process as Ministers would act in a quasi-judicial capacity in
considering planning applications. However, the Minister insisted
that decisions would not be made on a political basis.[67]
50. The change from decision-making by the IPC to
the Secretary of State seeks to balance impartiality against democratic
accountability and gives the decisive weight to the latter. This
carries clear risks of decisions being either actually motivated
by prejudice or irrelevant considerations or being perceived to
be so. It is important to mitigate this risk. We recommend
that the Localism Bill should set out explicit criteria against
which the Secretary of State may choose to exercise his or her
discretion in deciding a planning application against the advice
of the IPC or MIPU. This decision should rest with the Secretary
of State for Energy and Climate Change. In addition, the
Secretary of State should be required to publish his or her reasons
for going against the advice of the IPC or MIPU.
51. We consider that the transitional period in which
the IPC will decide planning applications for major energy infrastructure,
between the designation of the NPSs and the enactment of the Localism
Bill is undesirable. We conclude that the potential hiatus
between the designation of any NPSs and the transfer of decision-making
powers away from the IPC provides a further reason why the ratification
process should be timed to follow royal assent to the Localism
Bill so that all future planning applications are decided by the
same statutory authority.
30 Q 1 Back
31
Council Directive 2001/42/EC Back
32
Ev 43 Back
33
Department of Energy and Climate Change, Appraisal of Sustainability
for the revised draft Overarching National Policy Statement for
Energy (EN-1): Main Report, October 2010 Back
34
HC (2009-10) 231, para 125 Back
35
Council Directive 2001/42/EC, Article 5(1) Back
36
Department of Energy and Climate Change, Appraisal of Sustainability
for the revised draft Overarching National Policy Statement for
Energy (EN-1): Main Report, October 2010, para 3.8.6 Back
37
Department of Energy and Climate Change, Appraisal of Sustainability
for the revised draft Overarching National Policy Statement for
Energy (EN-1): Main Report, October 2010, Alternative A1 Back
38
Department of Energy and Climate Change, Appraisal of Sustainability
for the revised draft Overarching National Policy Statement for
Energy (EN-1): Main Report, October 2010, Alternative A3 Back
39
Department of Energy and Climate Change, Appraisal of Sustainability
for the revised draft Overarching National Policy Statement for
Energy (EN-1): Main Report, October 2010, Alternative A4 Back
40
Ev 39 Back
41
Ev 39 Back
42
Q 51 Back
43
HC Deb, 15 July 2010, col 40WS Back
44
www.energynpsconsultation.decc.gov.uk Back
45
HC Deb, 8 December 2010, col 490 Back
46
HC (2009-10) 231, para 5 Back
47
HC Deb, 20 May 2009, col 1537-38 Back
48
Ev 43 Back
49
Department of Energy and Climate Change, The Government response
to Parliamentary Scrutiny of the draft National Policy Statements
for Energy Infrastructure, October 2010, para 1.12 Back
50
Department of Energy and Climate Change, The Government response
to Parliamentary Scrutiny of the draft National Policy Statements
for Energy Infrastructure, October 2010, para 4.3 Back
51
HC Deb, 16 December 2010, col 1064 Back
52
Q 125 Back
53
Q 125 Back
54
Q 125 Back
55
Q 166 Back
56
HC Deb, 1 December 2010, col 910 Back
57
HC (2009-10) 231, para 5 Back
58
Qq 2, 4 Back
59
HC Deb, 1 December 2010, col 926 Back
60
Ev 41 Back
61
Ev 47 Back
62
Q 3 Back
63
HC Deb, 29 June 2010, col 35WS Back
64
Norton Rose, Major infrastructure projects under the Coalition
Government, 4 June 2010 Back
65
Q 12 Back
66
Q 9 Back
67
Q 22 Back
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