Planning Bill

Background to the Bill:
 

Implementing proposals of the planning white paper, the Bill will streamline and improve the planning regime. It includes provisions to introduce a single consents regime for major infrastructure projects and improve the town and country planning system. The Bill also includes a new statutory planning charge to enable councils to capture greater levels of planning gain to support new infrastructure and housing.

The Bill is based on recommendations of two well-respected studies; the Barker and Eddington reviews. It is also important for the implementation of government policy on housing, energy and transport and so had its second reading debate early in the current parliamentary session on December 10, 2007.

The Bill will provide three opportunities for public involvement when a national policy statement is drawn up, before developers submit their planning application they will have to consult, and when the inquiry actually takes place. 

The Bill will also set up a new independent infrastructure planning commission. It will simplify the planning system for minor home improvements.

The Opposition agree that the planning system needs reform, however, some MPs argue that the Bill will increase the democratic deficit of the planning system.  Critics argue that the public have been sidelined so that the government can fast track the implementation of energy and transport projects, which may have a detrimental impact on the environment.

More recently, the government has reached an agreement with some Labour MPs who want to retain a ministerial element to the decision making process. There will be a review of the IPC after two years, at which point ministers may regain some responsibilities.

Summation of Responses:

Campaign to Protect Rural England 

Opposes the Infrastructure Planning Committee and argues that it will not be sufficiently accountable to Parliament and the public to take decisions of national and often international importance 

Believes ministers should continue to make decisions

Welcomes the introduction of National Policy Statements but believes these should not be automatically derived from existing policy statements

Calls for the principles set out in the existing Town & Country Planning (Major Infrastructure Project Inquiry Procedure) (England) Rules 2005 to be carried over to any new procedures

Believes that a limited third party right of appeal in the most contentious and environmentally significant cases could do much to increase the fairness of the planning system and improve the quality of decisions

Construction Products Association

Welcomes the proposals being put forward to speed up the decision making process

Suggests improving the system is important because of the urgent need for major energy projects to ensure we have a long term supply of affordable energy in this country

Believes the Infrastructure Planning Commission must have the final say on planning decisions because any other position would undermine the whole purpose of the new process and would inevitably lead to delays

Supports proposals to exempt mineral operations from the Community Infrastructure Levy

Argues that calculations for estimating the amount of CIL that a new industrial or business development incurs should ‘net off’ any development that is closed or replaced by the new development

Federation of Small Businesses

Argues that the proposals for a new appeal process to a Member Review Body, comprised of a group of elected members of the council, is unfair to small businesses and will act to prevent economic development

Believes the current system of automatic right of appeal to the independent Planning Inspectorate in England & Wales allows an independent assessment that can see past the influences of local politics and the subjective opinions of individuals

Suggests the whole culture of planning is largely negative and for small businesses often the only way they can expand or invest is to get planning permission via an appeal
 

Nuclear Industry Association

 
Believes the Planning Bill is a crucial step in the path towards developing secure supplies of low-carbon energy for the UK

Suggests the current system is slow moving and acts as a real barrier to progress

Argues the Planning Bill will not reduce genuine local engagement in the process to nuclear new build

 
Royal Institution of Chartered Surveyors

Believes if the government fails to improve the planning of infrastructure there will be major risks to much needed investment, especially in the lead up to the 2012 Olympics

Calls for a National Infrastructure Framework in order to provide a horizontally integrated policy for infrastructure as well as a map of current and proposed provision

Is concerned that there will be some tension between the differential planning powers within the devolved assemblies

Proposes a time limit for the Secretary of State to call for a review on each of the national policy statements to help smooth the flow of developments

Supports the UK Sustainability Development Commission’s definition of sustainability and would like to see it applied rigorously to the national policy statements rather than the nebulous terminology currently proposed that could slow down the process.

Suggests the final step of having a dedicated NPS on Flood Defence has been missed

 

Full Responses

Campaign to Protect Rural England

1.The Government’s Planning Bill aims to speed up the planning process for major infrastructure projects such as power stations and roads. CPRE can welcome parts of it as a sensible reform. We support the principle of National Policy Statements (NPSs) and a single consent regime, and have made constructive suggestions on other points.

2. We are also campaigning jointly on the Planning Bill as part of the Better Planning coalition, consisting of environmental organisations that together are supported by more than 5 million people. 31,000 of the 32,100 responses to the Planning White Paper consultation in summer 2007 came from supporters of coalition organisations. These were in response to our shared concerns that the proposals threaten local democracy, communities and the environment.

3. The Government has, to date, shown little willingness to listen or amend its proposals, and has suggested that public concern was based largely on a misunderstanding of its plans. The scrutiny by the House of Commons Public Bill Committee, however, has reinforced rather than removed our concerns.

4. In addition to the proposals for nationally significant infrastructure, CPRE has particular concerns about the proposed reforms to planning gain, regional planning and Local Development Orders (LDOs) respectively. We also believe that the Bill should include a qualified third party right of appeal and a binding requirement for local planning authorities to have policies on enforcement.

The Infrastructure Planning Commission (IPC)

5. The proposed IPC is a new, unelected body independent of Government but whose members will be appointed by the Secretary of State. We are concerned that the IPC will not be sufficiently accountable to Parliament and the public to take decisions of national and often international importance. Ministers should continue to make decisions. The need for this new body has, in our view, not been proven. Evidence given by the Planning Inspectorate highlighted its extensive experience and ability in examining major projects, further undermining the case for the creation of a new body. 

6. Our concerns about the IPC are widely shared. The Labour MP Clive Betts tabled an amendment drafted by CPRE in Committee to remove the IPC’s decision-making powers, and he professed himself unconvinced by the Minister’s response to his amendment. The concerns about the IPC are shared across the political spectrum, as shown by the cross-party support for the amendment in Committee, and contributions from MPs of all parties at Commons Second Reading. The Energy Networks Association (ENA) – an organisation that would be expected to welcome the proposed IPC – stated in oral evidence to the Bill Committee that it lacked confidence in the proposed IPC’s processes, and in whether it would be able to have sufficient levels of resources and expertise. Trevor Blaney, one of the country’s recognised leading planning lawyers, in February 2008 described the IPC as ‘not democratically accountable’.

7. CPRE is also concerned that the proposed IPC could lead to continued centralisation of the planning process, with the Government refusing to remove its discretion to add new types of ‘nationally significant infrastructure’ project (energy, transport, water or waste) to those that will come under the proposed procedure. The Impact Assessment for the Bill suggested that the IPC would deal on average with 46 projects per year, a fourfold increase on the White Paper. In evidence to the Committee, the Local Government Association recorded that it shared this concern, stating that ‘the definition of “nationally significant infrastructure projects” does not have our support at the moment’.

Four myths about the proposed IPC

8. The IPC will make decisions ‘on an independent basis’.  ‘Independence’ appears to be the only argument offered by Ministers as to why the IPC is needed. But the Committee sessions have shown little evidence to suggest that the IPC will have the practical freedom of manoeuvre necessary to ensure independence. Local Government Minister John Healey has admitted that ‘the IPC will… have a narrow, confined and well-specified competence’. Its frame of reference will be largely confined to deciding on applications for projects, with the relevant NPS an overriding factor unless the IPC can prove that the local impacts outweigh the benefits of the scheme. The IPC will not have a duty to judge on whether an individual planning proposal achieves sustainable development.

9. Ministers who take decisions do so in a quasi-judicial fashion. Ministers have argued that they are not accountable on such decisions to Parliament, but to the courts. However, in Commons Committee they were forced to acknowledge that politics cannot be taken out of decisions on nationally significant infrastructure projects. Ministers are not merely held accountable through the Courts or by questions in Parliament, although these are important. They are also accountable to the electorate for the decisions made by the Government, and it seems unlikely that the establishment of an IPC will see voters absolving Ministers of this responsibility.

10. Democratically accountable, rather than independent, decision-making is being encouraged elsewhere in the Bill with the Government’s proposal for Local Member Review Bodies. Yet democratically accountable decision-making is even more crucial in relation to major projects, due to the complexity of the issues involved. Politicians often need courage to make controversial decisions in the face of cautious, and intentionally impartial, advice from civil servants. The narrow remit of the IPC is likely to discourage it from exercising a similar degree of courage. 

11. There is a confusion of roles if a Minister in one department is responsible for policy, overseeing the generation of proposals and ultimately determining these too. This claim did not stand up to scrutiny in Commons Committee, as it became apparent that this ‘confusion of roles’ was only likely to apply to major road and rail schemes. Moreover, the principle of having the same body making policy and decisions is well-established in the planning system –this body is usually a democratically elected local authority. The Government’s attempt to separate policy from decisions could actually lead to more delays as, according to the Bill, the whole process would have to be suspended if the NPS was out of date.

12. It will remove the need for two bodies to go over much of the same ground. Nothing in current planning procedure forces the Government to scrutinise major cases in a ‘separate and sequential’ approach additional to that of inspectors.

13. It’s not just CPRE saying it…

‘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’ – Lord Nolan, Alconbury case, House of Lords, 2001.

‘Accountability for underlying policy is not enough…we should only give up the principle of democratic accountability if there is overwhelming evidence of the need to do so…the evidence for the proposed changes is weak’ – Mike Ash, former ODPM Chief Planner, August 2007, in Planning.  

National Policy Statements (NPSs)

14. We welcome the introduction of NPSs, although these should not be automatically derived from existing policy statements. A particular concern in this regard is the Air Transport White Paper, and we were glad, therefore, that John Healey recognised in Commons Committee that there are legitimate fears about this White Paper being translated into an NPS – it pays scant regard to the environmental impacts of aviation. Our concerns were echoed in Committee evidence given by the Environment Agency and the CBI. The latter stated that ‘the business community would not want previous policies to be designated as NPSs if there was any concern that the debate had moved on or that the previous consultation had not been suitable’.

15. NPSs will form the primary consideration for decisions on major projects. They will also be an important consideration in smaller projects relating to energy, transport, water and waste decided by local authorities. The Committee scrutiny showed that possibly the most significant NPS, on nuclear power, is likely to designate specific sites, and that a number of other NPSs may also do so. A strategic siting assessment would take place as the first step in an NPS on nuclear power.

16. The possibility that decisions on sites for major infrastructure projects could in effect be taken at the NPS stage reinforces the need for the Bill to spell out clearly minimum requirements for public consultation on NPSs. The Planning & Compulsory Purchase Act 2004, for example, clearly defines that Regional Spatial Strategies will be subject to an examination in public and outlines the core principles of this examination. Similar procedures and processes for the production of information and publicity or for consultation should be set out in this legislation.

17. NPSs should reinforce, and not trump, the Government’s established planning objectives of combating climate change and protecting the environment. The UK Business Council for Sustainable Energy backed this concern in their evidence to the Commons Committee, saying that ‘Getting that continuity right the way through is vital, so that if you set a national framework in the Climate Change Bill, it follows through into planning just as it should follow through into other areas of public policy’. We welcome the statement by Jim Fitzpatrick, the Parliamentary Under-Secretary of State for Transport on 29 January that, in specific relation to Green Belt land, an NPS will reflect existing policy, and properly set it out. Equally, though, it is important that the final decision-maker can make judgments based on these policies as well as on the NPS. It would also save the NPS from having to reiterate existing policy. The Bill as currently drafted seems to prevent this.

18. We believe it essential that Strategic Environmental Assessment (SEA) should be required for all NPSs. Worryingly, the Minister stated in his evidence to the Committee that he was ‘not entirely clear’ as to whether this would be the case. The Government also needs to be more explicit that appraisal should be in accordance with the European Directive on SEA. The Environment Agency, in its evidence to the Committee, registered that it shared the concern as to what the Bill’s wording of ‘an appraisal of sustainability’ will actually mean in practice.

Examinations

19. The Government is persisting with a highly prescriptive approach to public inquiry processes which is unlikely to yield significant time savings, but which reduces public rights to participate and removes many aspects of current practice that give confidence in the fairness of the process.

20. The Government has claimed that some third parties have the resources and some interest in stringing out proceedings. CPRE believes that examination of major projects should take place as efficiently and cost-effectively as possible. That is why we believe that the principles set out in the existing Town & Country Planning (Major Infrastructure Project Inquiry Procedure) (England) Rules 2005 should be carried over to any new procedures, as they allow for a focus on selected key issues, timetabling and the rooting out of irrelevant evidence. Reducing public rights to be heard at inquiries, as the Bill instead proposes, will be a false economy. It will save little if any time and could increase the likelihood of legal challenges.

21. The Government places great emphasis on the proposed new duty for developers to consult local communities before submitting a planning application, and intends it as a means to reduce delays later on. CPRE believes that such provisions will only be effective if the public has rights at a later stage to cross-examine promoters on the most contentious issues of the project, so forcing the developer to address these as much as possible before submitting an application. The Planning Inspectorate has recently shown that better prepared applications are the key to a growing efficiency in processing major applications, to the point that the average inquiry period is now only 13 weeks rather than the 19 claimed by the Government in the Planning White Paper. In February 2008, an application for expansion of Teesport in the North East was approved by the Secretary of State after all objections had been withdrawn, so avoiding the need for an inquiry. We perceive a clear link between better preparation by developers and the current rights for local communities to bring them to account at inquiries where necessary – this is an incentive for developers to get their applications right. Nothing we have seen to date suggests that the Government thought of this when drafting the Bill.

22. The Inspectorate also pointed out in their evidence to the Committee that ‘the process must allow for robust testing, so that in the event that any party has been economical with the truth or whatever, it can be exposed. That is the purpose of a robust testing of evidence at cross-examination, whether at a hearing, an inquiry or an independent examination’.

Third Party Rights of Appeal

23. Applicants for planning permission have a full right of appeal against decisions of local authorities. In contrast, affected communities and third parties only have recourse to judicial review, which is expensive and time consuming. CPRE believes that a limited third party right of appeal in the most contentious and environmentally significant cases could do much to increase the fairness of the planning system and improve the quality of decisions. Third party rights of appeal are well-established in Australia and Eire, and have not stopped them from achieving consistently higher levels of economic growth than the UK in recent years.

For more information, please contact Adam Royle, Parliamentary Officer, on 0207 981 2800 or at AdamR@cpre.org.uk or Paul Miner, Senior Planning Campaigner, on 020 7981 2830 or at paulm@cpre.org.uk 
 

Construction Products Association

Background

Problems associated with the planning system are a major source of concern to companies in the construction products industry and they have long been frustrated by the delay in reaching a decision about applications and the inconsistency of the decisions that are reached. This is having an increasing impact on the competitiveness of manufacturing companies and we have a large number of examples of this. The issue is becoming ever more important given the increasing foreign ownership of the major companies in our industry and there is no doubt that the delays and costs associated with the UK planning system are seen as a major adverse influence when it comes to these companies deciding where to make investments in the future.

The Planning Bill does not seek to address all of these concerns and the Pretty/Killian Review of Planning (due to report in October) will address some of these concerns. Two particular issues are important to us in the Planning Bill

Infrastructure Planning Commission

These provisions are intended to speed up the decision making process for large scale infrastructure projects. The Association strongly supports the package of proposals being put forward to address the delays that there have been in the past in reaching a decision on key projects for UK Plc such as Terminal 5 at Heathrow. It is particularly important that these new arrangements are introduced in this legislation because of the urgent need for major energy projects to ensure we have a long term supply of affordable energy in this country. Not only will this have social implications, it will drive industry away to other locations where this can be guaranteed.

Concern has been expressed by some members that giving the IPC total responsibility for deciding on these large infrastructure projects (within a policy framework set by government) is undermining democratic accountability and that the IPC should make recommendations to Ministers rather than be able to make the final decision. This would undermine the whole purpose of the new process and would inevitably lead to delays in the final decision. Any amendments to the Bill to amend the proposals in this way must be opposed

Community Infrastructure Levy

There is still a great deal to be worked out about this proposed Levy and it seems likely that much of the detail will be spelt out in supporting regulations. Two areas concern us:

Mineral operations

The legislation makes provisions for exemptions from the levy. In the case of mineral operations there is a very strong case to support such an exemption.

In particular

• Unlike built development, minerals development does not give rise to the need for additional general infrastructure and we believe that local impacts have been and can continue to be managed satisfactorily by means of Section 106 agreements.

• We are unclear as to how this discretionary measure can be apportioned by mineral planning authorities in a consistent fashion, mineral by mineral, county by county, without creating a complex suite of market distorting mineral tariffs or taxes. How would the CIL deal with mineral operations that straddle county boundaries where the attitude to the levy may be very different?

• The implications for any operator seeking a new permission, but particularly locally operating SMEs, are particularly acute if they are surrounded by competitors who will not be subjected to CIL for many years, as the scope for unnecessary market distortions is very real. Any increase in operating costs which fall indiscriminately on businesses operating in similar market areas has to be a legitimate concern

Industrial development and other business development

Under the philosophy of the CIL, there is no reason why additional development in an area for commercial or industrial use should be treated differently from other forms of new built development that impose additional demands on the infrastructure in an area. The balance of the levy between the different uses is a matter of judgement and the proposals include provision for viability of development to be a real consideration in setting the levy.

Our concern, however, is where a new industrial facility is being developed as a direct replacement for an existing inefficient and environmental unfriendly operation. This is quite common in our industry and is the kind of investment we want to encourage as it inevitably helps improve productivity of UK industry and addresses many of the environmental concerns - improves energy efficiency, reduces carbon and other emissions, and reduces water consumption. Such developments also provide a better working environment for employees, albeit the number of employees may be less than previously – an inevitable consequence of the drive for increased productivity in a highly competitive global economy.

Our proposal is that calculations for estimating the amount of CIL that a new industrial or business development incurs should ‘net off’ any development that is closed or replaced by the new development. In that way you are only imposing a cost on the company of any additional burden they are imposing on the local infrastructure.

For more information, please contact Simon Storer, Communications and External Affairs Director, on 020 7323 3770 or at simon.storer@constructionproducts.org.uk

Federation of Small Businesses

While the FSB welcomes the government’s objective of streamlining major planning and infrastructure projects, we have concerns over clauses 150-154:

Under current planning legislation, if a planning application is refused there is an automatic right of appeal to the independent Planning Inspectorate in England & Wales. This is essentially regarded as fair by both sides. It allows an independent assessment that can see past the influences of local politics and the subjective opinions of individuals.

The FSB is dismayed, on behalf of all small and medium sized businesses, at the proposals within the current Planning Bill, clauses 150 –154 to limit this right of Appeal to the Inspectorate for all applications refused under Delegated Powers. Taken in tandem with government targets (for all but major applications to be considered under delegated powers), this would amount to 90% of all planning applications.

The proposals envisage a new appeal process to a Member Review Body, comprised of a group of elected members of the council. The same council that has refused the application.

The FSB understands and supports all political parties who support the concept of more power being delegated to local level, but this measure will act to prevent economic development as a reaction to local opposition.

But planning is and was designed to be ‘for the common good’ and sometimes decisions have to be made in that spirit, despite the fact that involved individuals, often conscious of the effect on their property values, object to them. With this in mind, it is not at all unusual for local authorities to welcome the opportunity of passing the decision making process to an independent arbiter.

The whole culture of planning is largely negative. Most applications are looked at from the standpoint of ‘how can we stop this’ rather than ‘how can we improve this’. For small businesses often the only way they can expand or invest is to get planning permission via an appeal.   

For more information, please contact Priyen Patel, Policy Advisor, on 020 7592 8118 or at Priyen.Patel@fsb.org.uk

Nuclear Industry Association

The planning bill is a crucial step in the path towards developing secure supplies of low-carbon energy for the UK. Currently there are a wealth of renewable projects being delayed in a slow moving system that acts as a real barrier to progress. This same issue will apply to the development of low-carbon base-load nuclear.
 
The planning bill will not reduce genuine local engagement in the process to nuclear new build. The Sizewell B planning enquiry lasted around 340 days, of which only about 30 were dedicated to local issues; this shows that it was bureaucratic delay – and not local scrutiny – that delayed the process.
 
It is only right that national planning issues should be scrutinised at a national level and local issues at a local level. There should be full parliamentary scrutiny of policy statements; and the democratic process should not be overridden. But for both the energy security and climate security of the UK, the planning process must be reformed.

For more information, please contact Simon James, Communications Manager, on 0207 766 6640 or at simon.james@niauk.org

 

Royal Institution of Chartered Surveyors

Role of the IPC

RICS seeks to remind members of the House of Commons when voting on the Planning Bill that there is a clear need to improve and speed up decision making in regard to major infrastructure. This can deliver greater certainty for those making investment decisions. If the UK Government fails to improve the planning of infrastructure there will be major risks to much needed investment especially in the lead up to the 2012 Olympics.

It is vital that processes are streamlined and not made more bureaucratic.
RICS believes in proactive consultation with the public, the ability for evidence to be presented and cross examined through transparent processes and accountability to the parliament on major decisions.

RICS supports reform of the current system to create the IPC. RICS also supports the need for robust National Policy Statements

RICS believes that amendments moving key functions of the IPC to the Secretary of State will remove the independence of the IPC.
 

Background 
Infrastructure Planning Commission (IPC)

RICS has supported the Royal Town Planning Institute in its assessment and recommendations regarding the IPC, and would like to call particular attention to the following issues.

RICS has long since proposed a National Infrastructure Framework in order to provide a horizontally integrated policy for infrastructure as well as a map of current and proposed provision. This is a significant omission from the Bill and needs to be revised.

The Infrastructure Planning Commission could be responsible for holding the National Infrastructure Framework thereby allowing top down and bottom up views on infrastructure provision to be collated. Without a National Infrastructure Policy Statement, RICS maintains that there will not be sufficient incentives to join up the planning process for major infrastructure across all areas, and importantly across Government Departments.

During Committee Stage in the House of Commons there was a gradual ‘scope creep’ for the National Policy Statements, and thus the work that will be considered by the IPC. It is essential that the thresholds as to what constitutes nationally significant infrastructure must be rigorously maintained in order to avoid over burdening the new system and creating confusion within industry.

The Bill outlines what ‘national’ refers to within the context of the decisions to be made by the Infrastructure Planning Commission. Definitions are helpful, but RICS is concerned that there will be some tension between the differential planning powers within the devolved assemblies.

National Policy Statements

The Bill does not set out any rules to govern how the private sector can interact with those involved in the creation of the national policy statements thereby leaving loopholes that could be exploited by unscrupulous developers.

RICS is concerned that there is no time limit imposed on the Secretary of State to call for a review on each of the national policy statements. Providing a framework for regular monitoring of the national policy statements would provide certainty to industry and help smooth the flow of developments coming forward.

RICS has a wholehearted commitment to the low carbon built environment and would like to support the UK Sustainability Development Commission’s definition of sustainability and to see this applied rigorously to the national policy statements rather than the nebulous terminology currently proposed that could slow down the process.

RICS notes that there is no provision for a National Policy Statement on Flood Defences. RICS feels that this is a significant oversight given the likely impacts of climate change on the UK. Whilst RICS applauds the move to include flood risk assessments for the National Policy Statements we feel that the final step of having a dedicated NPS on Flood Defence has been missed. By leaving flood defence to the regional and local levels it is possible to have the situation where one particularly well defended region moves the problem to a neighbouring region, or potentially nationally significant infrastructure could be destroyed by lack of flood defence.  A dedicated NPS would ensure that the national and strategic implications of flooding were more joined up than they are at present.

For more information, please contact Danielle Yong, Public Affairs Officer, on 020 7695 1754 or at dyong@rics.org