Obstacles to Infrastructure Planning?A view from practice

William UptonBarrister, 6 Pump Court

The starting proposition is said to be that the current complexity of environmental legislation can cause unnecessary delay and cost to important infrastructure development and economic growth.

(This rather minimises the benefits and purpose behind the legislation)

This is not a new issue, and it is worth exploring how far this has been addressed in the last 5 years

By its origins, philosophy and principles, planning law is concerned with the regulation of the private use of land in the interests of the community as a whole.

But, this is not always about striking a balance, there are some overriding designations

National Infrastructure Plan:the Treasury’s shopping list

Roads Rail Airports Ports Electricity Gas Communications (phone, internet, broadcasting etc) Flood Risk Management Waste

How far has “infrastructure planning” been put in a different category ?

Material considerations remain similar

Processes have been changed

Planning permission:material considerations would be …

Overlooking/loss of privacy Loss of light or

overshadowing Parking Highway safety Traffic Noise Effect on listed buildings

and conservation area Layout and density of

building

Design, appearance and materials

Disabled persons' access Nature conservation Proposals in the

Development Plan Previous planning

decisions (including appeal decisions)

Government policy

[SOURCE: PLANNINGPORTAL.GOV.UK]

Assessments required: draft National Networks NSIP list

Environmental Impact Assessment, Habitats Regulations Assessment, Alternatives, Good design, Climate change adaptation, Pollution control, Nuisance, Safety, Security and health

Assessments required: - Generic impacts (Chap.5)

air quality biodiversity and

conservation waste aviation and

defence coastal change nuisances (e.g.

dust)

flood risk historic environment landscape and visual land use (inc. the

Green Belt) noise and vibration impacts on transport

networks and water quality.

Why not use the Local plan ?could be … (NPPF 14)

LPAs should positively seek opportunities to meet the development needs of their area;

Local Plans should meet objectively assessed needs, with sufficient flexibility to adapt to rapid change, unless:

any adverse impacts of doing so would significantly and demonstrably outweigh the benefits, when assessed against the policies in this Framework taken as a whole; or

specific policies in this Framework indicate development should be restricted [fn 9].

Fn.9 to NPPF para 14 sets out the restrictions: For example, those policies relating to sites

protected under the Birds and Habitats Directives (see paragraph 119) and/or designated as Sites of Special Scientific Interest; land designated as Green Belt, Local Green Space, an Area of Outstanding Natural Beauty, Heritage Coast or within a National Park (or the Broads Authority); designated heritage assets; and locations at risk of flooding or coastal erosion.

The limits to positive encouragement

“Yes, if …” approach Using “a positive,

pragmatic and proactive manner, with the aim of resolving any elements in the Plan which are not legally compliant or sound.”

BUT, has to defer to:Mitigation Hierarchy (NPPF 118)

Avoid Minimise/ Mitigate Compensate

SSSIs ?Birds and Habitats Directives ?

How far has “infrastructure planning” been put in a different category ?

Not just seeking planning permission, and supporting infrastructure, and applying the dev plan & national policy

Need is established at the national level, Planning Act 2008 & other legislation

Nationally Significant Infrastructure Project (NSIP)

Hybrid Bills (eg. Channel Tunnel Rail Link Act, HS2 Bill etc)

For example,

Thames Tideway Tunnel (ongoing) Should we be doing this at all? And is this

the only way to do it ? DECIDED NSIP ‘Wastewater’, and its own SEA

If it is to be this project, what should it look like, where should it go in detail, and whose land needs to be acquired ? DCO process for a single order, and its EIA Inquisitorial process, not adversarial

2014 Review of NSIP process itself:

Consultation on measures to:improve pre-application phase, and make consultation requirements proportionate;improve the pre-examination and examination phase;make changes to Development Consent Orders after consent is granted;streamline consents; andimprove engagement with local communities, local authorities and statutory consultees.

The scrutiny by the courts

R (Gate) v SoS Transport & Lancashire CC [2013] Dual carriageway link road to M6 NSIP category definition upheld Consultation criticised Other NSPs are material considerations Limited alternative routes assessment, &

further nature conservation surveys allowed Warning about likely exercise of Court

discretion against relief

The Courts continue to adapt as well

Tesco v Dundee [2012] interpretation of planning policy is a matter of

law, but the application of planning policy is a matter of judgment

Procedural changes: Cost capping and Aarhus Convention claims Judicial review time limit now 6 weeks Dedicated Admin Ct lead judge JR consultation in general

But, even so,More planning change a’coming in:

National Infrastructure Plan 2013 (“NIP”) Treasury’s document, 3rd edition

Autumn Statement (Dec 2013) repeats every infrastructure announcement in the NIP The 'Top 40' list of projects and programmes

All are expected to be NSIP, if they can be … & will make a positive decision more likely (?)

National Infrastructure Plan 2013

the government will introduce a specialist planning court with set

deadlines to handle planning judicial reviews (Jan 2014)

ensure that 'minor procedural claims are dealt with proportionately'

appeals can 'leapfrog' the Court of Appeal directly to the Supreme Court in a wider range of cases.

National Infrastructure Plan 2013

Consultation will follow on the proposals for: a statutory requirement to have a Local Plan in

place Rule that where a planning authority has failed to

discharge a condition on time, it will be treated as having been approved

planning authorities will have to provide more justification for imposing conditions

raising the threshold for 'special measures' from 30% of decisions made on time to 40%

“Obstacles” ?

used to be known as requirements ? Rule of Law and accountability

Regulatory systems ? Enforcement?

role of the lawyer: Work with the tools we are given Aims of the client vary:

promote; support; oppose; delay; avoid etc What if special interest, or separate jurisdiction ?

Have our expectations of the process changed ?

In 1958, the Franks Report said this:

“The intention of the legislature in providing for an inquiry or hearing in certain circumstances appears to have been twofold: to ensure that the interests of the citizen closely affected should be protected by the grant to them of a statutory right to be heard in support of their objections and to ensure that thereby the Minister should be better informed about the facts of the case.”

Obstacles to Infrastructure Planning?A view from practice

William UptonBarrister, 6 Pump Court