Planning to fail?

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As the government was fighting off the backbench revolt over plans to lock up terror suspects for 42 days, there was trouble brewing on another front.

It was reported that more than 60 Labour MPs signed up to a motion opposing the Planning Bill over controversial proposals to create an Infrastructure Planning Commission (IPC) to rule on major projects such as motorways and airports. ‘The Planning Bill is an environmental disaster’ was the frank assessment of Friends of the Earth (FoE) on legislation due to be put to a Commons vote as the Gazette went to press.

‘The government wants to fast-track major developments such as airports, roads and power stations through the planning system without considering their impact on climate change and with little regard for local opinion,’ Dr Hugh Ellis, FoE’s head of planning, told the press. For all New Labour’s rhetoric about increasing democratic participation in local planning, its critics complain that, when it comes to the really big projects, it plans to hand over official sign-off to what Labour MP for Selby John Grogan has called a ‘cult of experts’.

‘Our concern is that the Planning Bill considerably reduces the right of local residents to get involved in planning and environmental decision-making,’ argues Phil Michaels, head of legal at FoE.

Under the new system, the government would issue national policy statements (NPSs), some of which would identify major site-specific developments deemed to be in the national interest, including airport runways and new nuclear power stations. ‘When a major project infrastructure comes forward in the future it is going to be decided by the IPC in accordance with the NPS which is going to be close to binding – in other words, they have to apply it unless some very specific exemptions apply,’ argues Michaels.

The government hopes that the streamlining of the process through the IPC will save £300m a year. ‘The problem is that the NPS will have been decided by government without any meaningful engagement in that process,’ Michaels continues. ‘Compare that with regional planning guidance at the moment, where you have an inquiry where members of the public have a right to be heard and to express their views.’

The decision whether to go ahead with a development would be effectively ‘split’, explains David Brock, chairman of the Law Society’s planning and environmental law committee.

‘The political or policy decision is being taken in the NPS, and that will be taken by government ministers and is supposed to be as location-specific as it can, and then the IPC is required to grant the permission for anything that complies with the NPS,’ he says. The two main areas for potential controversy, he predicts, are firstly that the public could feel that they are ‘not being given their day in court and that they are being railroaded through’ and, secondly, a lack of ‘democratic accountability’.

Chancery Lane’s own response to the White Paper concluded with a resounding ‘no’ to the creation of a new decision-taking body, arguing that decisions on infrastructure projects should be taken by the Planning Inspectorate. It went on to say: ‘Some of the suggested reforms are in danger of disenfranchising the public and would be contrary to human rights with inevitable and regular reference to the courts. Indeed, some of the proposals, in a most extreme interpretation, appear to be trying to reduce the power of the courts to intervene, which cannot be tolerated.’

End of public inquiries?

‘The process before the IPC will be conducted in writing and the intention is that you don't have a public inquiry,’ explains Brock. The government sees the Heathrow Terminal 5 inquiry, which took up 524 sitting days and was spread over five years, as ‘the worst thing that could ever possibly happen in planning terms’, he adds. ‘However, I fear that what will result instead will be that ordinary people will feel locked out of the system.’ He predicts ‘the return of Swampy and people in trees’, referring to the 1990s brand of eco-warriors, as campaigners become frustrated with the new regime.

Michaels argues that the ‘participative democratic manner’ in which members of the public can be involved could be a thing of the past. ‘That’s not going to happen. Once it gets to the planning application stage, members of the public aren’t going to have a right to be heard – certainly not in the way that we’ve always understood that.

At the moment what happens is that you can turn up and be there for the whole of the inquiry which takes place orally and involves witness evidence, and you are often able to cross-examine the witnesses for the promoter or developer. What is going to happen is that the hearing will take place on paper – in other words, there is not going to be a hearing at all unless the IPC considers there are questions that need to be dealt with orally, and that is entirely at their discretion.’

‘If you haven’t made your views known at the time the NPS was being formulated, then that was your chance to put your foot in the door,’ comments Pat Thomas, a consultant with London firm Farrer & Co’s commercial property team. ‘You cannot, for example, object to a compulsory purchase order (CPO).’ Controversially, the IPC would be able to authorise CPOs in the case of nationally significant infrastructure projects backed by a NPS.

She believes that the government has proved ‘a little bit Jekyll and Hyde’ when it comes to their view on consultation. ‘It seems to be that it is important to have public consultation and engage communities, but not if it slows everything down,’ she reflects.

In the leading case of Alconbury (R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions [2001]), the law lords overturned a High Court ruling that John Prescott, then environment secretary, could not make both a policy and decisions declaration. In that case Lord Nolan said: ‘To substitute for the secretary of state an independent and impartial body with no central electoral accountability would not only be a recipe for chaos: it would be profoundly undemocratic.’

Duncan Field, a partner in the planning and environment group at City firm SJ Berwin, cites the case as an illustration of ‘how times have changed’. ‘The government has done an about-turn because, having tried to defend the position where the secretary of state takes the decision and then makes policy, they now seem to take the view that the secretary of state should be making policy and an independent body should be making decisions,’ he says.

But, similarly, third-party objectors have also ‘switched views’, he contends. ‘In that case, they were arguing that it was fundamentally unfair and a breach of human rights that the secretary of state should be both policy-maker and decision-maker.’

Field welcomes the advent of the IPC as a logical step: ‘It’s easy to get distracted by the minority of people with an active role in public inquiries, the NGOs and those particularly active locals.’

Pros and cons

Field argues that there is ‘a silent majority’ who feel ‘disenfranchised’ by these developments. ‘What this proposal is trying to achieve is a more inclusive process for the general public. If it’s implemented properly then there should be an opportunity for people to be involved in a non-contentious way when national policy is being framed.’ The bill imposes consultation upon developers that has to be approved in advance – a potentially better process. ‘You might well find that you are reaching out to more people in that process than the rather adversarial approach we have now where – if you have time, money or your sole preoccupation in life is challenging these things – you turn up to the inquiry. Wouldn’t it be nice if we didn’t have an adversarial approach?’

Robbie Owen, head of major projects at Bircham Dyson Bell, also has ‘considerable sympathy with the government’. ‘I think there has been an overreaction by the NGOs, and the government has tried to drive a middle course,’ he says, adding that ministers have made clear that the IPC process does ‘emphatically not’ rule out cross-examination ‘but it does start with the predisposition that there will be a different approach to interrogation of evidence not led by expensive hired hands, and third parties with resources and an interest in stringing it out’.

There has been ‘a bit of barrister-bashing which is quite unfair’ in criticism of the planning process, but he says: ‘We have all been in planning inquiries when, frankly, you have had days’ worth of cross-examination for no real purpose.’ However, he adds, the success of the IPC depends on how well it is resourced to deal with the anticipated 35-40 major applications a year.

As for effective consultation under the proposed regime, Owen says: ‘The whole foundation of this new system is not the IPC but it is the national policy statements. The IPC can only make its decisions against the backdrop of the NPS. The bill to my mind does maintain a reasonable balance between the interest of promoters and the interest of the country for very important national infrastructure going through as well as the interest of those who may be affected by the schemes.’

Unsurprisingly, FoE’s Michaels remains unconvinced. Public participation could be reduced to ‘a karaoke session’, he says. ‘This isn’t proper engagement with plan-making or decision-making,’ he warns.

A fair fight? The Sullivan report:

Mr Justice Sullivan recently concluded that only the ‘very rich or very poor’ could afford to fight environmental schemes imposed by the government or local authorities, and called on the government to make such litigation affordable.

‘When it signed up to the Aarhus Convention nearly a decade ago, the UK undertook to ensure that ordinary members of the public who wished to pursue environmental challenges should have access to procedures that were "fair, equitable and not prohibitively expensive",’ wrote Mr Justice Sullivan in the foreword to his report Ensuring access to environmental justice in England and Wales.

He went on to say that ‘few would dispute’ that procedures in the Administrative Court ‘while by no means perfect’ were ‘fair and equitable’ and ‘capable of being "timely" in really urgent cases’. He added: ‘But who, apart from the very rich or very poor, can afford to use them? For the ordinary citizen neither wealthy nor impecunious, can there be any real doubt that the court’s procedures are prohibitively expensive?’

The current system makes it ‘almost impossible to take environmental court action without the threat of losing your home or exposing your organisation to unacceptable risk’, comments Carol Hatton, solicitor at WWF-UK (Worldwide Fund for Nature), who was on the Sullivan report working party. ‘The present system means that the environment will continue to be the victim and no one can afford to protect it,’ she adds.

The Sullivan report makes a number of recommendations, including more generous use of protective costs orders, developing ‘a partnership approach’ between the Legal Services Commission and NGOs to public funding, and removing the requirement to provide a cross-undertaking in damages when seeking an injunction.

’It is a situation we face in every case we take on,’ says Phil Michaels, head of legal at Friends of the Earth. In 2003 FoE challenged a decision by the Environment Agency to allow a company to scrap US ‘ghost ships’ in Hartlepool. The day before the trial FOE received a schedule of its legal costs of £100,000 (including leading counsel and two junior barristers) for a one-day judicial review which it would have claimed had FOE lost the case. As Michaels says: ‘Even if we have a good case, and even if at the end of the day that case is successful, we’re usually unable to get an injunction to stop the development going ahead because the court requires you to pay up a cross undertaking in damages.’

In summary