Legal Report: Alternatives on hand for speeding major decisions

David Elvin QC, a barrister at Landmark Chambers, Planning, 22 August 2008

Unlike planning policy statements, national policy statements (NPS) will spell out the requirements for projects and their location in detail, making important decisions in principle at an early stage. Objections may be made at the NPS draft stage, but the process will be a national one far removed from participation in the current planning process.

Even where an application is made to the proposed infrastructure planning commission (IPC), the right to make representations will be limited. Where hearings are held, there will only be a right to make representations, not to call evidence or cross-examine other parties. The IPC may make an exception and allow wider participation, but most questions will come from the commissioners.

Doubt cast on community say

They may exclude representations that go to the substance of NPS proposals, including curtailing representations as to the appropriateness of the location where that is specified. How this will work, given the residual right to argue that a project's benefits are outweighed by its disadvantages, is uncertain. The government's claim that communities will get a more effective right to be heard is hard to accept.

The DCLG maintains that a completely new procedure is required to avoid long, costly planning processes that are a recipe for prevarication, such as the Heathrow Terminal 5 inquiry. However, Terminal 5 was hardly a typical case, as the inspector's report recognised: "Inquiries such as this will always be exceptional and must inevitably take time if all those concerned are to be given a fair hearing."

The Competition Commission's recent report on its inquiry into the groceries sector found that the cost and complexity of the planning system is a barrier to retailers seeking to enter the market. If that complexity is an obstacle for commercial organisations, it does not say much for making the system more complex.

There appear to be less drastic and more inclusive responses to the problem of lengthy and complex planning processes. The first response is to streamline policy and simplify procedure, as the DCLG claims to be committed to doing. Planning policy is so unwieldy that it provides a barrier to understanding among both communities and councillors, who rely heavily on officers to steer them through the morass.

Simplification would free up local government planners from spending a disproportionate amount of time on policy issues. Procedure is being simplified to some extent, for example through heritage consents, but the streamlining evident in the Environmental Permitting Regulations 2007 is not mirrored in planning. On the contrary, the system is to be made more complex.

Second, inspectors should be given greater control over inquiry procedure. The right to present evidence and question witnesses at inquiries does not mean that they should be unfocused or lengthy. They should be directed to the key issues. The IPC will be required to exercise strict control over procedures and evidence. Why not build on planning inspectors' experience and give them more power to control the process?

Evidence must be to the point

The parliamentary select committee hearings into the Crossrail Bill - a far larger project than Terminal 5 - showed that procedures can be kept within reasonable limits if evidence is short and focused on essentials. The Lords hearings began in February and the bill became law on 22 July. The largest rail project since the 19th century took a little more than 100 sitting days in both houses. Terminal 5 took 525 sitting days.

Michael Barnes QC, the inspector at the Hinkley C nuclear inquiry in the late 1980s, managed to complete the proceedings in good time by setting reasonable limits to evidence. He succeeded without depriving interested parties of the right to call evidence and ask questions. Why this experience has not been built on by the government is unclear.

Under the planning system, interested parties have the right to attend inquiries, present evidence and ask questions on proposals for new homes or superstores. It is difficult to reconcile these rights with the bill's curtailment of participation in major infrastructure projects that would have far greater impact on the environment and communities.