The current UK Government is very enthusiastic about growth and large-scale development. It is so enthusiastic that it is promoting a variety of initiatives which will allegedly increase growth and allow more large-scale development to take place, more quickly. The Planning and Infrastructure Bill is one of these initiatives and is just as problematic as the others.
Elements of the Bill
The core document of the Bill is a Guide. As in other government documentation, undefined economic growth is stressed as a route to prosperity. However, there is a constantly side-stepped issue of what is supposed to grow, with what climate, social, and ecological impacts in the process; and where will this alleged growth take place?
If it tends to benefit areas already comparatively prosperous, what is really being achieved? Modest Office for Budget Responsibility projected growth figures for the rest of this parliament are all under 2%, but this does not mean all areas of the country will experience growth.
Growth via infrastructure is problematic. How, for example, can any airport be allowed to expand without wrecking the Government’s climate or air pollution policies? Moreover, the Committee on Climate Change has written that there should be a presumption against new oil or gas installations, but the Cabinet is reported to be arguing about this. Sideways extension of existing fields will be permitted; this goes against the basic goal of radically reducing the use of fossil fuels.
Even worse, there is no serious attempt to distinguish between developments likely to be delivered quickly, with their presumed benefits, or those which are long-term and may not provide benefits this decade, a point made about the Government’s new nuclear power station proposals. Hinkley Point C, after years of construction, may not operate until 2030 and small, modular reactors are not even a proven idea.
Speed as a value?
Current Government proposals about local government reorganisation, planning, and development all tend to stress ‘speed’ of delivery of housing or infrastructure as paramount. However, the construction industry has skills shortages. Constraints on rights to work in the UK and access to visas can obstruct or slow down migrant workers coming to the UK. If we combine ‘speed’ as an alleged Government goal with, for example, exceptional infrastructure costs in the UK at eight times more than in Europe for road and rail, then the Government surely needs to address these questions instead of permitting private sector subsidies to infrastructure builders?
Planning without democracy?
Planning committees will continue to scrutinise planning applications but, certainly in the case of larger developments, will not be able to block them. So, even when the planning committee sees that a planning application is in conflict with existing legislation, apparently the application cannot be rejected.
Moreover, strong emphasis is made throughout the Bill on the power of the Secretary of State to make decisions. Apart from further centralisation as a perennial problem, how is this to occur with severe cuts to Whitehall staffing? And who would implement Secretary of State preferences?
Increasing and standardising the delegation of decisions to council officers seems to be favoured. But is this practical when local government has experienced big cuts in real terms since 2010, with further cuts planned? However, the government also wants to bypass local democracy by more use of “Development Corporations” for developments considered large-scale and complex. Consultation periods and actual consultations will also be attenuated in a number of ways.
A Nature Restoration Fund
A Government which has delayed the Climate and Nature Bill proposes a “Nature Restoration Fund” to be delivered by developers paying a levy. However, the “Environmental Delivery Plans” for each project are to be orchestrated and monitored by Natural England (NE). This raises questions about how NE’s substantial increase in roles and powers will occur. Although an extra £14mn is to be found for NE, the critical local government planning function is already short of funds, planning officers, and ecological specialists. So where is NE going to get its extra skilled staff from?
Reactions to the Planning and Infrastructure Bill
The campaign for the preservation of rural England (CPRE) said, “Big housebuilders dominate UK housing supply, delivering poor-quality, identical homes at a painfully slow pace. Meanwhile, the tired ‘builders and blockers’ rhetoric falsely pits climate and nature against economic growth. More must be done to force the big housebuilders to deliver on their promises and permissions, rather than simply blaming the planning system.”
CPRE has issued a list of ten things it wants to see in the Planning and Infrastructure Bill. None of them appear to have been included. In particular, “keeping people at the heart of planning decisions” and “strengthening environmental protections in infrastructure planning” are clearly not current government priorities.
The Wildlife Trusts were not impressed by the environmental features of the Bill. They want a new “wildbelt” designation to protect areas needed for wildlife restoration, better protection for local wildlife sites, and both nature and energy efficiency improvements in relation to housing.
Friends of the Earth responded to the Bill by questioning potential reductions in the role of elected councillors in the planning process. Council officers seemed likely to gain powers at their expense.
A broad coalition has written to the Government about the implications of the Bill for nature. The organisations involved, such as the National Trust and the RSPB, have a total of about 8 million members. They say that trust between them and the government has been broken, despite earlier constructive discussions on a number of issues.
The coalition for nature views the Bill as weak where it has allowed Rachel Reeves deliberately to prioritise development and growth in opposition to nature concerns.
Human rights and legal perspectives on the Bill
The Government has anticipated environmental objections to its approach to planning and development. It is also sensitive to the possibility of people objecting to development proposals using the European Convention on Human Rights. One of the documents associated with the Planning and Infrastructure Bill is a Memorandum in which the government repeatedly claims that its proposals are compatible with the Convention.
Undermining access to judicial review
Legal criticisms of the Bill have begun to emerge. Herbert Smith Freehills notes, concerning access to judicial review, that the initial decision usually made by a judge about whether to grant a claim for judicial review is now to be performed by an oral permission hearing.
If this hearing rules that the claim is “totally without merit”, the right to appeal to the Court of Appeal is removed, at least in those cases where the High Court is deciding a claim. This can be considered as a removal of the right of access to a court, which might actually lead to legal challenges to the process as questionable.
Compensation proposals may not stop legal challenges
Irwin Mitchell has produced an overview of the Bill. It notes the contentious issue of allowing renewable energy schemes on forestry land specifically for energy storage schemes, with financial compensation to local communities to persuade them to accept pylons and “energy transmission infrastructure”. It appears from this that bodies representing communities cannot prevent individuals or companies who claim there have been adverse effects upon their interests from taking legal action.
Giving permission to take land temporarily for construction may also prompt legal action. Just as changes to the practice of delegation by planning committees are mentioned but unspecified in the Bill, so regulations determined by the secretary of state about size and composition of planning committees are not defined.
Other sources of legal objections
The Secretary of State will be given new powers to ensure future spatial development strategies conform to national policies and priorities. Since the nature of the areas to be covered by new combined authorities, and remaining county and unitary councils, is so varied, there is scope for legal challenges to decisions of new strategic planning authorities.
Worse, Irwin Mitchell notes that the nature restoration levy may be used to disregard the habitat regulations and the Wildlife and Countryside Act. This would make legal challenges likely. Certainly, giving NE compulsory purchase powers concerning environmental delivery plans may meet with resistance.
Another possible invitation to legal action is that responses to planning applications in statutory consultations may offer advice to the decision-maker but not object to the proposal! We can’t see this escaping defeat in the courts.
More generally, objections to the Bill that make use of the European Convention on Human Rights could occur on grounds such as our right to respect for property and for private and family life. Nothing the Government has written will actually prevent this.
Concluding considerations
In its enthusiasm for centralisation, whether in local government, planning, systems of consultation, or elsewhere, the current government appears to be inviting conflict with a wide variety of groups. Under a first-past-the-post system of elections, small majorities in parliamentary seats, council wards, and county divisions may be swept away by the action, or inaction, of the electorate.
Regardless of whether the issue that alienates people is environment-related failings, cuts in benefits, failure to renew schools and hospitals, or undermining democracy through centralising measures in local government, it is all bad news for the Government.
If the Government wants to paint a target on its back and play the victim through what everyone but themselves see as continuing austerity, it can do so. This is unfathomable since successive damaging local election results could contribute to denying Labour a second term in government.
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