Archived decisions

Contact: Roger Lawes, ext 6743

1. Summary

1.1 On 17 December 2001 Lord Falconer, the Planning Minister, unveiled draft proposals for fundamental changes to the way in which proposals for major infrastructure projects of national significance are determined. Having decided that there is a clear business case for moving decisions on nationally important projects to Parliament, the proposed new arrangements would have Parliament considering the principle of significant schemes and subsequent public inquiries dealing only with details. The deadline for comments on the proposals is 22 March 2002.

1.2 On 19 December 2001 Mr David Jamieson, the Shipping Minister, announced the publication of a consultation paper outlining the Government's approach to the appraisal of port projects requiring official approval. The deadline for comments on the proposals is 5 April 2002. A response is being prepared for consideration by the Executive Member for Environment.

1.3 This report summarises and considers the main proposals for dealing with major infrastructure projects and recommends a response. A separate report is being prepared on the proposed ports appraisal process.

2. Faster, Fairer Decisions

2.1 The Government's objectives for the new system are to streamline to reduce delay and cost, and safeguard public consultation and involvement.

2.2 The process proposed is for Parliament to determine the principle in support of a specific infrastructure project and then for a Public Inquiry to deal with the detail. Local communities will be involved in the process at three stages:

(i) in the development of Government policy;

(ii) during parliamentary debate on specific proposals; and

(iii) at the local inquiry into the details of an agreed scheme.

The final decision, as now, will continue to rest with the Secretary of State.

2.3 The range of infrastructure projects covered by the proposed new arrangements would be limited, mainly to those of national importance. The Secretary of State would determine a `Major Infrastructure Project'. The consultation document offers alternatives for how this determination could be made, either:

(i) the Secretary of State would have the power to designate any project he considered appropriate; or

(ii) the Secretary of State would have the power to designate projects falling within a prescribed list, the list being set out in legislation (as subsequently amended by Order), or defined in an Order. The consultation document includes, as an Annex, a suggested list which is based on Annex 1 of the 1997 EU Directive on Environmental Impact Assessment (EIA) of Major Projects for which an EIA is required with some notable exceptions (including manufacturing plant and waste incinerators) and some additions (such as additional airport capacity and renewable energy installations).

2.4 The arrangements would apply not only to approvals required under the Town and Country Planning Act 1990 but also the Transport and Works Act 1992, the Highways Act 1980, the Harbours Act 1964 and the Electricity Act 1989.

2.5 Details of the procedures by which Parliament will scrutinise the major projects that are brought before it are still to be decided. They could involve parliamentary debate or scrutiny by select committee. The information that will be required will include both the details of the project and a full EIA. Having received the relevant documentation the Secretary of State would publish public notices, and lay before each House of Parliament a copy of the planning application, EIA, the relevant national policy statement and Regional Planning Guidance, as well as the draft text of a designation order.

2.6 A consultation period 42 days (six weeks) would follow. Within 21 days the developer would be required to submit a statement of the wider economic and other benefits of the project. A summary of all representations would be submitted by the Secretary of State to Parliament no later than 14 days from the end of the consultation period. Within 60 sitting days of the designation order being published a draft Order would be laid before Parliament. The approval of both Houses would be required before the project could proceed to Public Inquiry.

2.7 Parliament having decided the principal need for and location of the proposal the Public Inquiry would be restricted to a discussion of matters of detail. Likewise, the Secretary of State's decision would be on the detail, not principle.

3. County Planning Officer's Comments

3.1 There can be little doubt that changes are needed to the way in which major infrastructure projects of national significance are dealt with. Recent high profile cases, such as the proposed fifth terminal at London Heathrow Airport, have brought into sharp focus the time taken to complete the existing progress. More locally, the current inquiry into the proposal by Associated British Ports at Dibden Bay is scheduled for 54 weeks. One of the issues that contributes to this length is the lack of a national framework within which the proposals should be judged. Properly managed, a view by Parliament on the need for infrastructure projects of national significance could help reduce the time taken to implement schemes or decide on a more appropriate alternative. The proposals in the consultation paper however raise matters of theory and practice.

3.2 In theory these proposals could be effective in reducing the timescale for determining major exceptional projects which are of national significance by:

(i) requiring the Government to provide national policy advice to Parliament which is relevant to the proposal, and being clear about national policy at the outset; and

(ii) reducing the scope of the Public Inquiry to matters of detail and mitigation, provided the strict approach in limiting the scope of the Inquiry is enforced by the Inspector.

However, this presupposes that Government can provide clear and unambiguous advice on the national need for particular projects and that this assessment of need acknowledges that there could be local matters of detail and mitigation that, when explored in detail, could prove significant enough to override national considerations of need.

3.3 Nevertheless, any Public Inquiry even into the details of a significant scheme is likely to take a substantial period of time, not only hearing and examining evidence, but also the time for the Inspector to produce a report and recommendation, and for the Secretary of State to make the decision.

3.4 In addition, as the approach will result in the substantive decision being taken by Parliament, the process needs to ensure not only that Parliament has sufficient detail on which to base a decision in principle - including, for example, the full range of information required under EIA Regulations - but also those affected by the decision have sufficient time and opportunity to make their case. Otherwise there will be legal challenges under Human Rights legislation which could create more delay, so negating any time saving.

3.5 If the intention is to provide certainty and consistency it would be preferable to have a specific list of projects where these procedures may be used. At present the proposed list is an eclectic mix of matters that are truly national in significance, eg installations for the processing of irradiated nuclear fuel, and others that might not even have a significant local impact, eg extension of any runway by more than 100 metres.

3.6 The consultation paper is silent on the process by which Parliament will scrutinise any proposals that eventually come before it. Several methods are suggested, the implication being that there might not necessarily be one established approach. Until there is greater clarity about these parliamentary procedures, there will remain a concern about how the quality and balance of information, including perhaps the contrary views of local communities, will be ensured as both Houses discuss the proposal and a decision taken.

3.7 The parliamentary process assumes that there will be national policy guidance for major infrastructure projects which would be subject to public consultation. However, the consultation document is silent both on the timetable for the production of such guidance and how Government would approach a proposal covering a project for which there was no published national policy. Moreover, no indication is given that Government has given any thought to the need to develop any form of national spatial strategy into which all the specific guidance on individual infrastructure projects will fit in a properly integrated manner taking account of the wider national interest.

3.8 The publication of the Government's suggested appraisal framework for ports - referred to in paragraph 1.2 - is, perhaps, an indication of how guidance on infrastructure projects will emerge, and, more specifically, how proposals will be judged. The significance of such consultation papers must not, therefore, be overlooked.

3.9 There is a contradiction in the proposals concerning the role of Parliament and the Secretary of State. The consultation document records that the final decision on a project would rest with the Secretary of State following a Public Inquiry. However, if the new arrangements are to be effective in reducing the time taken to reach a decision, the decision of Parliament is critical, a fact recognised in the document where it is conceded that the "Secretary of State would only reject a proposal approved by Parliament in exceptional circumstances". Experience suggests that once opponents are aware of the significance of the parliamentary processes, they will utilise every opportunity to influence the process through both Houses.

3.10 Notwithstanding any concerns about the process as a project is considered by Parliament and then at a Public Inquiry, the consultation document is silent on the implications for a project if Parliament fails to confirm an Order. Could the project still proceed to a Public Inquiry: or could non-designation be taken simply as a comment on the project's lack of national significance?

3.11 In practice there are a number of loose ends in the consultation document. No timescale is prescribed for the formal decision by the Secretary of State to publish the designation order which sets the whole process in train. Similarly there is no formal process for applying for designation and no scheme for consultation by the Secretary of State during that consideration. The consultation document records in paragraph 20 that Parliament's approval would not confer planning permission, but paragraph 13 Annex B states Parliament would grant consent in principle.

3.12 Turning to individual schemes, it is neither realistic nor reasonable to expect the public, consultees or local authorities to respond in detail on a major proposal within 42 days. For example in the case of Dibden Bay consultants had to be appointed to advise on a range of matters. Identifying that need, commissioning the work and allowing time for the necessary studies took considerably longer than 42 days. A more relevant period would be three months, which is the period currently allowed by Government for consultation on its own proposals (including this consultant document).

3.13 The decision on the planning aspects of a scheme is often only part of the process. For example, changes in arrangements for compulsory purchase and compensation may be more effective in reducing the time for securing the land for such projects, and so reduce delays in implementing proposals.

3.14 Finally, introducing the new procedures (amended in the light of comments) will require primary legislation that will be brought forward as parliamentary time allows. In the meantime the existing system will continue to operate.

Recommendation

That the Executive Member for Environment be informed that the Secretary of State for Transport, Local Government and the Regions be advised that whereas the County Council, in principle, supports new procedures for speeding up decisions on major infrastructure development of regional and national significance it considers that the:

(i) types of project to be dealt with by Parliament should be restricted to a limited number of genuine national significance identified through the evolution of an integrated national spatial strategy and prescribed in legislation rather than left to the discretion of the Secretary of State;

(ii) parliamentary scrutiny should focus on issues of national need and identifying those local and community matters that, when explored in detail at the subsequent local planning inquiry, might be sufficient to outweigh considerations of national need;

(iii) 42 day period for consultation on the draft designation order is too short for organisations properly to respond to proposals which, by their nature, will have a significant impact, a three month (or 90 day) period would be more appropriate; and

(iv) the necessary parliamentary procedures should be worked up in detail and be the subject of a further round of consultation before parliamentary time is set aside to implement any measures.

6991/RL