Growth and Infrastructure Bill

Memorandum submitted by RSPB (GIB 43)



1. The Bill is a missed opportunity to promote a greener economy and an effective regime for strategic planning which is needed to deliver the homes, businesses and high quality natural environment that people need. It is instead a miscellany of proposals intended in large part to promote economic growth and infrastructure through procedural amendments to planning regimes.

2. The Committee has heard evidence from development interests about the costs of the planning system, particularly the transactional costs of development management. However, research commissioned by the RSPB, CPRE and the National Trust has shown that, although there is evidence of the costs of particular impacts of the planning system, there is less research quantifying and valuing the benefits of the planning system ( Inexpensive Progress? A framework for assessing the costs and benefits of planning reform , February 2012).

3. All the proposals in the Bill which affect the planning system must be seen in the context of the wider economic value of planning, as well as its role in promoting social and environmental objectives. Society’s wellbeing depends on a healthy natural environment, and one of the key purposes of the planning system is to protect and enhance this. T he RSPB’s concern for the Bill is to ensure that changes to processes have no adverse consequences for the natural environment, and that legislative proposals maintain an appropriate balance between social, ec onomic and environmental needs.

4. This briefing should be seen in the context of our general concerns with the planning system in the following areas:

i. Resources and skills: The lack of resources and skills in many planning departments, particularly the availability of ecological skills, is a major obstacle to the successful implementation of planning policy.

ii. Duty to cooperate: We query whether the duty to cooperate introduced by the Localism Act 2011 will deliver effective strategic planning in sensitive environmental areas.

iii. Major infrastructure : The Planning Act 2008 regime for major infrastructure is not proceeding smoothly because environmental issues are not being considered adequately in the pre-application stage and there is insufficient quality control on applications.

5. Some of the proposals need more detail before we are able to properly assess their implications, in particular how local planning authorities (LPAs) will be designated as poorly performing (clause 1) and which business and commercial project s will be brought within the Planning Act 2008 regime (clause 21). It is disappointing that this is not yet available.

6. We have particular concerns about the following proposals , which either do not strike the right balance between economic growth and environmental protection, or are simply the wrong solution to an identified problem:

· Limits on power to require information with planning applications (Clause 4)

· Electronic communications code and protected areas (Clause 7)

· Special P arliamentary procedures (Clause 19)

Making planning applications directly to the Secretary of State (Clause 1)

7. The proposal runs counter to the principle of local decision-making, and any ‘special measures’ should be defined so that they only apply as a last report for a very limited time to a very limited number of LPAs. It is disappointing that the consultation paper from the Department of Communities and Local Government has only been published at a late stage, making it difficult to properly assess the implications of the proposal.

8. A number of criteria have been suggested to identify poorly-performing local authorities, including timeliness and the quality of decisions in terms of decisions overturned at appeal. The presence or absence of a recently-adopted local plan could be a further criterion, as this would emphasise the key role of the local plan in the reformed planning system.

9. W e are concerned that there could be a perverse outcome from poor-quality decisions which are rushed through by LPAs in order to avoid designation. Although, in this situation, developers would have the right of appeal against refusals by the LPA, local communities would have no recourse against poor quality approvals.

10. Where planning applications are made directly to the Secretary of State, local communities and third parties such as the RSPB must not be disadvantaged through the curtailment of opportunities to make representations or to request that the application is considered at a public inquiry, which may present the only opportunity for contested evidence to be properly tested.

11. The ultimate objective must be not to give developers choice, but to improve the quality of decision-making by LPAs so that they are taken out of special measures. Support needs to be available to enable this to happen. This links to wider concerns that we have about the skills and resources available to local planning departments, which is unlikely to be solved by legislative change.

12. We also note that t he proposal gives the Secretary of State a wide-ranging power to set designation criteria. Sub-clause (8) gives the Secretary of State discretion over the manner of publication of the designation criteria and any designation of an authority; we believe it would be inappropriate for him to do so by way of statutory guidance, but he should do so by regulations which are laid before Parliament.

Limits on power to require information with planning applications (Clause 4)

13. This clause is intended to overcome the problem that some LPAs will request unnecessary information with planning applications , causing avoidable delay and expense to the developer. The Committee has heard anecdotal evidence from developer interests about this issue. However, this is only part of the story, is the wrong solution, and is likely to lead to further legal challenge about what constitutes a ‘reasonable’ requirement.

14. We note that, at the present time, LPAs must publish a list of information requirements on their website and may only request information that falls within that list (under the Town and Country Planning (Development Management Procedure) (England) Order 2010), and that the new National Planning Policy Framework already states that LPAs should only request supporting information that is relevant, necessary and material to the application in question ’ ( paragraph 193 ) .

15. The Department for Communities and Local Government consulted earlier this year on streamlining information requirements for planning applications. The RSPB comments on about 1,000 planning applications a year, largely applications which require Environmental Impact Assessment. I n our experience , such as with housing developments affecting heathland at Crowthorne (Berkshire) and Talbot Heath (Dorset), it is normally the lack of information , or poor quality information, that causes delays in determining planning applications or re sults in poor quality decisions . This is a particular issue where ecological surveys are required because of the need to carry them out at specific times of year.

16. As a result, the RSPB may be obliged to lodge an objection until the lack of information is resolved. Thus although information overload may be an issue in some cases, the problem is outweighed by the need to have sufficient information to form a view about the development proposal.

17. Our experience puts the developers’ perspective in context, and highlights the fact that it is not the quantity of the information which is important, but getting the right information.

18. In our response to the consultation, while we agreed that LPAs should keep their local information requirements under frequent review, we pointed out that policy and regulatory changes can only ever partially resolve the problem of disproportionate requests for information. The most important change would be to have qualified staff who know what to ask for and then how to assess it.

19. If a regulatory solution is required, the RSPB recommends that this should be to make p re-application scoping mandatory for development which requires Environmental Impact Assessment. This would involve consulting the statutory environmental bodies and the public on the scope of the environmental assessment and therefore what information must be submitted with the planning application; although this is currently considered good practice, a regulatory change may be the only way to encourage the necessary behavioural change. It could probably be achieved by amending the EIA Regulations rather than changing primary legislation.

20. This would deal with most large-scale developments, which are likely to experience the most significant costs. For smaller-scale developments, we suggest that LPAs should be incentivised to hold pre-application discussions on all non-domestic developments as a matter of routine.

21. We note that the Planning Act 2008 regime for Nationally Significant Infrastructure Projects (NSIPs) attempts to deal with these issues by the ‘front-loading’ of work on the information required for applic ations for development consent, but we have concerns over wheth er this is working in practice (see our comments below under clause 21) . For NSIPs affecting European wildlife sites, Defra is working with developers to agree Evidence Plans in advance of submission. This would achieve a similar outcome to the mandatory scoping we propose for EIA projects under the Town and Country Planning Act regime.

Electronic communications code and protected areas (Clause 7)

22. This clause is intended to facilitate the roll-out of superfast broadband in all areas of the UK, including National Parks, the Broads, Areas of Outstanding Natural Beauty (AONBs) and (in Northern Ireland) the countryside generally. The Government has stated that it does not intend to affect Sites of Special Scientific Interest, although has not specifically referred to the equivalent Areas of Special Scientific Interest in Northern Ireland.

23. Although broadband infrastructure such as street cabinets and poles is permitted development in planning terms, there is a ‘prior approval’ process in these protected areas which gives LPAs 56 days to approve the siting and appearance of the development .

24. The Department of Communities and Local Government is currently consulting on the removal of the prior approval requirement in protected areas for a period of 5 years (DCLG Extending permitted development rights for homeowners and businesses – technical consultation , November 2012). The RSPB understands that clause 7 of the Bill relates to England, Wales and Northern Ireland, but that the proposals in the DCLG consultation relate to England only. However, the legislative provisions are complex, and a clear statement by the Government about the territorial scope of this clause, and its relationship with the DCLG consultation and the expected DCMS consultation , would be welcome.

25. The clause does not directly change the prior approval rules, but enables the Secretary of State to disregard the status of these protected areas when making regulations about the electronic communications code. So for example, the duty on public authorities to have regard to the purposes for which National Parks are designated (which includes conserving and enhancing the natural beauty, wildlife and cultural heritage of the area) will not apply to the Secretary of State in this case. Similarly, the duty of public bodies to have regard to the need to conserve the natural beauty and amenity of the countryside in Northern Ireland is disapplied to the Secretary of State in this case.

26. The RSPB supports access to superfast broadband, but the proposal raises an important issue of principle and precedent. It weakens the protection given to some of the UK’s most cherished landscapes, and sets a worrying precedent, not only for other types of communications infrastructure, such as mobile phone masts, but for other types of development as well.

27. The DCLG consultation document states that ‘The Government will be asking the relevant operators to work with local planning authorities to agree good practice so that all parties are aware of how and when roll-out will be delivered in their area, and the principles governing siting and design.’ While a code of practice and good dialogue are welcome, it is still the case that the current regulatory approach in protected areas is to be replaced with a weaker voluntary approach, which in our view is unnecessary.

28. The impact assessment which accompanies the DCLG consultation extols the benefits of superfast broadband, but is strangely silent on the environmental costs. This is all the more strange given the comments in the preceding paragraph:

29. ‘The proposals for householder and business extensions will not apply in protected areas, including National Parks and Areas of Outstanding (sic) Beauty ... There is a need to strike an appropriate balance between deregulating and maintain appropriate protections, particularly in those sensitive areas where tighter controls are needed as development can have a disproportionate impact on the quality and character of the natural and built landscape.’

30. In the RSPB’s view, the current regulations strike this appropriate balance. The Government should seek alternative ways of delivering superfast broadband in protected areas , especially now that the European Commission has given the green light to the UK rural broadband scheme (BIS news release, 20 November 2012) . We call for this clause to be deleted.

Peri odic review of mineral planning permissions (Clause 8)

31. The RSPB partners with Natural England in the Nature After Minerals project, which works with minerals operators and minerals planning authorities to deliver high-quality habitat restoration on minerals sites. Our chief concern is to ensure that there are timely opportunities for productive discussions between minerals operators, mineral planning authorities and N ature A fter M inerals to secure this . The RSPB’s initial view is that this proposal will have limited impact , but asks the Government to give a n assurance that nothing in the proposal would adversely affect the s e discussions .

Special Parliamentary procedures (Clauses 19 and 20)

32. These clauses are intended to deal with the delays created in determining nationally-significant infrastructure projects by the special Parliamentary procedures for dealing with the compulsory purchase of land owned by a local authority or statutory undertaker. In particular, delay has been created for the first such scheme, the Rookery South Resource Recovery Facility , by the need for Parliament to consider all aspects of a petition, whether or not they relate to the compulsory purchase.

33. C lause 20 has the effect that only those provisions of an order which authorise the compulsory purchase of special land could be the subject of petitions and be considered by Parliament. The RSPB considers that the proposal is a proportionate response to this problem.

34. However, clause 19 goes beyond this by repealing the provision for certain types of open land. This effectively removes a layer of statutory protection for these types of land, which is unnecessary and has not been justified by the Government. This is a particular concern for circumstances where open space is required for development but where no exchange land is available or is available only at prohibitive cost. The RSPB therefore calls for this clause to be deleted.

Business and commercial projects (Clause 21)

35. More detail is needed for the thresholds which will be used to bring business and commercial projects within the Planning Act 2008 regime. As with clause 1, the proposal runs counter to the principle of local decision-making, and thresholds should be defined so that only projects of truly national significance are included. Although housing is specifically excluded, many major business and commercial projects include an element of housing (such as the King’s Cross redevelopment and the Olympic Park), and we query how this will work in practice.

36. The Committee has heard evidence about the need for a proper policy framework to determine business and commercial projects under this regime. This could be provided by a National Policy Statement (NPS), although the RSPB is sceptical about the value of most NPSs in their current form. An alternative would be to determine them in accordance with the NPPF and the local plan. The effect of the Planning Act 2008 regime was to bring into one place a number of different consent regimes where the Secretary of State was already the decision-maker (e.g. under the Electricity Act 1989); i.e. regimes that operated, and still operate, outside the Town and Country Planning Act 1990 (TCPA) process, but by contrast, business and commercial projects are currently determined by local planning authorities under the TCPA and are therefore already addressed by policies in the NPPF and potentially in the local plan as well.

37. We also note that the Planning Act 2008 regime may be a fast track to a decision, but not necessarily to approval. Our experience to date with Nationally Significant Infrastructure Projects has raised a number of concerns. A primary purpose - welcomed by the RSPB – of the new process was to front-load the application process to ensure that issues were addressed at the pre-application stage. In practice, the changes made have had the opposite effect. This, combined with the strict limitations on the duration of post-application deliberations, means that the new process risks becoming a fast-track to refusal for complex cases.

November 2012

Prepared 27th November 2012