The Infrastructure Planning Commission

22-May-07

Introduction

The Planning White Paper for England proposed the formation of a Planning Commission to decide major infrastructure proposals. This has subsequently been carried forward in Planning Bill introduced to Parliament in November 2007.

The RTPI has broadly welcomed this proposal. However, attention must now be paid to the detail of such a Commission's operation.

The 8 Point Plan

To assist the government develop a workable remit for major infrastructure policy and its relationship with the work of an independent planning commission, the RTPI proposed an 8 point plan, which was included in it submission on the planning white paper.

1 The commission must be independent from Government but set within a clear national policy framework as established through Parliament by the Government.

2 Any national policy must be consulted upon by the public with real options for change. We have already seen the legal ramifications on not consulting properly with the challenge to the Government's nuclear energy policy exercised by Greenpeace.

3 Establishing a national spatial infrastructure plan will be key to consulting with the public by helping raise capacity for understanding where the major projects will be located and why. It will also be a ‘shop window’, demonstrating to investors that the UK is serious about sustainable infrastructure development.

4 Any decision taken by the Commission must consider the national spatial infrastructure plan, any other relevant planning policy (such as regional policy) and any other material planning consideration (such as effects on nearby homes).

5 As soon as it is clear a decision will have a local impact the Commission must consult the local planning authority.

6 The Commission must not become overly expensive to run or a bottle-neck. RTPI proposes the commission has several ‘core’ commissioners with a wide range of associate commissioners who can be brought in to deal with specific projects as and when they are needed.

7 Commissioners must be professionals with a range of expertise and backgrounds.

8 The commission must be held accountable through regular checks and audits by Government in much the same way as the Bank of England and make an annual report to Parliament, which includes an assessment of the adequacy of the policy framework within which it is working.

Applying the Tests in the Plan

Since the publication of the Planning Bill, the RTPI policy team has examined its clauses to consider whether its tests have been met. The results of this examination are summarised below.

1 The commission must be independent from Government but set within a clear national policy framework as established through Parliament by the Government.

Broadly the Planning Bill achieves this end.

The Bill proposes a consultation process the detail if which is in part to be subsequently prescribed. However, it is clear that local planning authorities must be engaged in respect of any policy statement that makes site specific proposals falling within their area or an adjacent local authority area. Site specific policies must also be appropriately publicised. It apparently remains possible that a policy statement that contained no site specific proposals need not be the subject of any publicity or consultation, unless this is provided for in secondary legislation. There is no formal requirement for the development or testing of options as part of the policy statement consultation process.

Questions:

Should there be an unambiguous statutory requirement for publicity and consultation on all policy statements, whether site specific or not?

Should there be a formal requirement for the consultation stage to involve the proposition and testing of policy options?

The Bill does not propose such a plan. The proposals for National Policy Statements (NPS) for infrastructures in the Planning Bill are a substantial step forward from the current position where there is no systematic outlining of national policy or priorities for infrastructure. The Planning Bill does not require the policies to join up to form a national spatial plan, although as they are developed, the benefits of and indeed necessity for horizontal integration between them are likely to become even more apparent. RTPI research and the experience of nations other than England demonstrate the potential benefits of such a plan and the RTPI will continue to campaign for its development.

This has been delivered upon in part. The Bill does require the Commission to have regard to:
a) any relevant national policy statement
b) any matters prescribed in relation to development of that description; and
c) any other matters which the commission considers are both important and relevant to its decision.

This latter provision in part acts to allay concerns that the Commission would not have sufficient operating discretion to enable it to consider matters not effectively addressed in policy, or weighty issues arising from other policy sources.

It remains a concern to the RTPI that other planning policy including Planning Policy Statements and the development plan are not raised as specifically relevant in the Bill.

It should also be noted that the Bill fails to use the formulation 'other material considerations', which has proceeded through successive Town and Country Planning Acts and has been substantially judicially interpreted. There is a risk that in not using a term that is well known to planning law, the legislation invites a new period of uncertainty as the courts read new meaning into those matters which the commission considers are 'both important and relevant'.

The RTPI is also concerned that the Bill then requires that having considered these factors, a development consent must be decided 'in accordance with any relevant national policy statement', except to the extent that one or more legislated exceptions applies.

There are two issues that arise from this. The first, although apparently minor, is that the use of the term 'in accordance' allows of no sensible variation and is distinct from the broader term in 'in general accordance' which does import moderate flexibility. The second and more significant is that the range of proposed legislated exceptions are also quite restrictive. In summary, these are:

the proposal would lead to breach of an international obligation
the proposal would lead to breach of a domestic legal duty
the proposal would be domestically unlawful
the adverse impacts of the proposal would outweigh its benefits
the proposal meets circumstances described as admitting exceptions to the general direction of a policy statement

The test that will clearly be of most relevance is that of a proposal's impacts outweighing its benefits, or the test of 'net community benefit'. Whilst such a test has clear attractions, it is argued that stakeholders and indeed the commission itself must understand fully how it is intended to apply and operate, before it is used.

One element that critically appears to be missing is a test of 'reasonable mitigation'. It is possible to argue that a proposal should be required in law to demonstrate that reasonable steps (not entailing excessive or disproportionate cost) have been taken to identify and manage its adverse impacts to the fullest reasonable extent (again not entailing excessive or disproportionate cost). In the absence of such a test, there is no guarantee that the concerns that most direct arise from third party communities will be capable of being adequately identified or managed through the new development approval process.

Question:

Should the RTPI seek amendments to:

require Planning Policy Statements to be relevant considerations before the commission
require the development plan to be a relevant consideration before the commission
import the concept of 'other material considerations' as understood in existing planning legislation
broaden the requirement for decisions to be 'in accordance' with policy to 'generally in accordance'
broaden the range of circumstances in which the commission is statutorily entitled to decide other than indicated by policy; and specifically
include a requirement that proposals must meet a reasonable mitigation test?

5 As soon as it is clear a decision will have a local impact the Commission must consult the local planning authority.

The Bill has addressed this test.

The precise details of the appointment, duties and remuneration of the commission are still subject to consideration by the RTPI

7 Commissioners must be professionals with a range of expertise and backgrounds.

This has clearly been the intention of the Bill, but again, the details remain under consideration.

The Bill provides for an annual report, although again, the detail of the relevant clauses and Schedule 1 remain under consideration.

Click here to return to the Planning Bill page
Click here to view the RTPI planning white paper coverage

Author:: Rynd Smith
Publisher:: The Royal Town Planning Institute
Date:: 22-May-07
Categories:: Policy, Practice, Networks & Associations
Sections:: What Planning Does

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