Lord (Robert) Carnwath of Notting Hill, newest member of the Supreme Court, gave the keynote speech at last Wednesday's inaugural annual dinner of the National Infrastructure Planning Association (NIPA). By all accounts the dinner, held at the former GLC building on the south bank of the Thames in London, was a great success. Unfortunately I couldn't be there, as ironically I was returning from a compulsory acquisition hearing in Immingham, held as part of the examination into an application under the Planning Act 2008.
Handily, however, the Supreme Court website has a copy of Lord Carnwath's speech, which can be found here. He starts by running through the chequered history of infrastructure projects in the UK, starting in 1960 with challenges to the establishment of Stansted as London's third airport.
Fast-forwarding to three days before the speech, he had spurned Downton Abbey and Homeland for a documentary by Evan Davis ('Built in Britain') on infrastructure projects. The premise was that we should reject the traditional view that Britain can't do infrastructure and that this was down, not to the infrastructure authorisation regime, but to the New Engineering Contract (Series 3) Design and Build, or NEC3.
He referred to his first involvement with the Planning Act as the Hillingdon v SoS Transport case that he had decided in 2010 (reported on the blog here). I am now feeling embarrassed that I said the judgment was 'somewhat impenetrable', but last week Lord Carnwath clarified that it was essentially due to the Planning Act 2008 and the Climate Change Act 2008 'not really having caught up with each other'.
He said that it was unrealistic to expect authorisation not to be without conflict between pros and antis. He said that Environmental Impact Assessment was key but that it should be 'an aid to efficient and inclusive decision-making…, not an obstacle-race',
He referred to that day's judgment in the Walton v Scottish Ministers Supreme Court case, about the proposed Aberdeen Western Ring Road, still not able to be built more than seven years after it had been authorised. In that case the decision was that it was appropriate for it to undergo environmental impact assessment (which is done for projects) rather than strategic environmental assessment (which is done for plans). It was also established that the standing of someone able to bring a challenge was not as narrow as might have been thought. The phrase used in conventional planning law is 'a person aggrieved' and in this case Lord Hope said that that did not mean the person had to have a private interest that was affected.
That story and judgment suggests that even if the Planning Act regime produces an efficient decision, the project concerned could still get bogged down in the courts for many years. Despite him saying that judicial review was possible at so many points in the process, one feature of the Act is that it is forbidden between an application being made and a decision being issued, although the watertightness of that provision has yet to be tested. To address this risk he suggested that a specialist court be set up - a Land and Environmental Court of the Upper Tribunal - similar to one that had existed in New South Wales for some time. He suggested that NIPA should join his call.