This is entry number 220, published on 7 March 2011, of a blog on the Planning Act 2008 infrastructure planning and authorisation regime. Click here for a link to the whole blog.
Today's entry reports on MPs' consideration of Localism Bill amendments relating to infrastructure planning.
On 1 March, the committee of MPs considering the Localism Bill reached the clauses that amend the Planning Act regime. They only took an hour to be considered, but some probing amendments that we had developed in discussion with others and that were tabled by the opposition obtained some useful clarifications and concessions from the government. I am grateful to Jack Dromey MP for arguing the amendments and to Greg Clark, the relevant Minister, for responding to them.
A link to the report of the debate is here (start at column 727 on page 13), but here is a summary.
Keeping the IPC
Before I get to the technical amendments, the Labour MPs on the committee argued bravely for the retention of the IPC, saying that infrastructure would be further deterred, or at least delayed, if decisions were returned to ministers. Ian Mearns used the analogy of the Monetary Policy Committee, the appointed group of 'wise men and women' that sets interest rates, saying that no-one suggested that this power should be returned to the government, and that infrastructure decisions were another area where it was good to avoid 'politicisation'.
Greg Clark made several reassuring statements in response, but at least one of them was a bit misleading. Any claim that giving the government three months to decide applications would not lengthen the process becomes untrue the moment that the first National Policy Statement (NPS) is finalised. That is because the IPC would have to (indeed still might) make a decision no more than nine months after it starts examining an application, whereas the proposed set-up will take up to twelve months.
Greg Clark said 'We will increase [the regime's] dependability and, if we can, increase the speed of decision making, and I can certainly, hand on heart, give [Jack Dromey] the assurance that he asks for on that.' OK, I'm with him so far. Then he said 'the ultimate decision will be taken within the same time frame or sooner by the relevant Secretary of State, rather than by someone unelected. We are absolutely clear about that.' Sorry, no it won't, unless you are just talking about the three month decision period, rather than the whole examination-and-decision period. Finally, Nic Dakin asked 'Is he giving a commitment that the new processes will be as speedy as the processes in the IPC are intended to be? If they are not as speedy and as effective, can he give us a commitment that the Government will review them?', and Greg Clark said 'I can give that commitment'. Well, he'd better get reviewing on the day the first NPS is finalised!
Greg Clark also advanced a new argument for replacing decision-making by the IPC with decision-making by the government: the latter would stand up better to legal challenges. I have heard that before in relation to Parliamentary approval of NPSs, but not in respect of decisions on applications. Jack Dromey thought that Greg Clark's argument was 'optimistic'.
Nick Raynsford said that he had asked government departments if a Secretary of State had ever taken a decision on an application such as this in three months or less to which the answer had been no. He also said that the democratic accountability in the system lay in the development of NPSs - policy-setting would have remained in the realm of democratic accountability.
Incidentally Greg Clark said that applications would be examined by 'a dedicated unit', which suggests that interchangeability between IPC-equivalent examiners and planning inspectors is unlikely.
A pair of amendments sought to change the thresholds for highway and railway projects to become nationally significant from wordy and complex to numerical length-based thresholds, in line with all the other types of project. In reply Greg Clark said that national significance could not be determined by length - a crucial but short road or rail project could still have a national impact on the road or rail network. To which I would reply, that may be so, but the current thresholds are not phrased according to how crucial they are to the national network either. The untangling of railway lines and the addition of new platforms at Reading Station would not have been a nationally significant project and nor would the stalled Thames Gateway Bridge, but a 1.2km diversion of a railway line around a quarry in Derbyshire is.
Another amendment sought to relax the requirement for strict adherence to the rules for applications, by inserting the word 'substantially'. Greg Clark said he would consult the IPC and others on the point but thought that adding 'substantially' would open up a can of legal worms.
Two more amendments would have changed the calculation of deadlines by which stages of the process must be reached. Currently, if the examination period takes five months instead of six, that merely lengthens the recommendation period from three to four months - no time is saved. The amendment would have started the three-month recommendation deadline at the end of the five months that the examination actually took instead. Greg Clark acknowledged the point but noted that if an examination overran, then the amendment would have the opposite effect. Good point - so I hope to see an amendment to the effect that the next stage starts running when the previous stage did finish or should have finished, whichever is the earlier.
In response to an attempt to reinstate notification of all interested parties if a deadline was extended, Greg Clark said that doing so would mean lots of letters when they could be emailed. The amendment didn't say anything about how the notification was carried out so I'm not sure if that addresses the point.
In response to an amendment that would allow flexibility in the offences that could be included in development consent orders rather than the fixed list that has been provided, Greg Clark said that this amounted to a 'Henry VIII clause', a phrase normally reserved for legislation that is able to amend other legislation without recourse to Parliament. I see what he means, although it does not really go that far.
Another amendment sought to clarify that development consent orders can be modified by the decision-maker - they did not have to be accepted or rejected wholesale. Greg Clark said that the government thought that the amendment was unnecessary and that orders could indeed be amended but undertook to consider the issue further.
Another amendment sought to make it clear that 'requirements' (i.e. conditions) would normally be discharged by local authorities and could be appealed against like conditions can be. Again, Greg Clark said that the government thought the amendment unnecessary but that he would consider it further. The government's 'model' requirements are all currently phrased so that the IPC discharges conditions and not the local authority, so it doesn't look unnecessary at the moment.
The last technical amendment sought to introduce a flexible ability to waive parts of the procedure for smaller applications, as is already the case under the Transport and Works Act 1992. Greg Clark undertook to reflect on the amendment.
Finally, an amendment sought to make the transition from IPC to its replacement more conspicuously seamless by saying now that steps done before the IPC abolition would not have to be repeated, and if a Commissioner or panel had been appointed to consider an application, he, she or it would continue. At the moment the Bill leaves it to a later decision on a case-by-case basis, so promoters or would-be promoters will not know what will happen to their project for a year or so.
Greg Clark did at least declare that no step would need to be repeated, so that is something that is in the bag. On continuing Commissioners, he worried about employment issues, although the Bill does already list continuing Commissioners as one possible option.
In summary, Greg Clark made positive noises about the amendments that were designed to streamline the process and vowed to look at them again, potentially bringing in government-drafted ones once the Bill reached its committee stage in the Lords, so a worthwhile exercise.
(Possibly) unintended joke of the day: according to Jack Dromey, when asked why their infrastructure projects took so much less time to be authorised, Greg Clark's counterpart in France had said 'if you drain the marsh, do you consult the frogs?'. Greg Clark said that in the UK, we did wish to consult the frogs (but perhaps he meant les rosbifs).