Samuel Hughes: Two cheers for the Planning and Infrastructure Bill? Part One – The Good

Dr Samuel Hughes is Director of Housing at the Centre for Policy Studies.

The Government has published its long-awaited Planning and Infrastructure Bill, a flagship of its efforts to enable more development.

There is broad consensus that Britain’s system for infrastructure consenting is rickety and sclerotic, and that reform is needed. The Bill does some things it shouldn’t, and fails to do many things it should. But overall, it is a positive set of changes, which will leave the country with a somewhat better planning system than it has at the moment.

In this article, I set out some of the highlights from the Bill. (Tomorrow, I will outline some of the limitations.)

Judicial Review

The Bill takes up the proposals made by the barrister Charlie Banner on judicial review. Currently, there are three stages in the infrastructure planning process at which objectors bring legal challenges against projects.

They make abundant use of this, partly because Britain is a signatory of something called the Aarhus Convention, which caps the legal liabilities of environmental campaigners when their lawsuits are found to be baseless.

The Bill proposes consolidating the process so that there is only one stage at which objectors can bring legal challenges. This should mean that, while the Government can still be challenged on decisions that have been made improperly, the opportunities for generating repeated pointless delays are reduced.

Empowering Planning Officers

Currently, most planning applications are judged by professional planning officers, with the officers determining whether the application follows the rules adopted by local councillors in a document called the ‘local plan’.

However, some applications are directly judged by the councillors, or rather by a subset of councillors making up the local ‘planning committee’. There are widespread concerns that planning committees often make erratic and unpredictable decisions, sometimes contravening the policies in the local plan that they themselves adopted.

The Government proposes to reduce the range of applications judged by committees and introduce tighter rules governing those that are. Overall, this is probably a good move, which will make the planning system a little more predictable for applicants. But I would add one caveat.

Applicants generally tend to prefer for their applications to be judged by predictable planning officers rather than unpredictable amateur committees. But there are definitely exceptions. I have seen cases where the planning committee had more common sense than the officers, and permitted obviously sensible applications about which officers were being inflexible and pedantic.

One wonders if scope should be left for applicants to be judged by committee if they so wish, at least in those cases where the decision would currently lie with the committee.

Environmental Regulation

England currently has a notoriously cumbersome system of ‘Habitats Regulations’, which it inherited from the European Union. It was these that were responsible for the notorious ‘bat tunnel’, the £100 million tube in which HS2 proposed to encase part of the railway in order that no bat should collide with a train.

The bat tunnel would have saved (at most) very few bats, far fewer than might have been saved if £100 million had been spent on bat conservation in other ways. But the Habitats Regulation system is not flexible enough to allow this, requiring insanely expensive site-by-site mitigations.

The Bill proposes to reform this. It aims at creating a system in which developers will be able to pay into a fund that compensates any environmental harms they have caused in the most efficient way possible. For example, under the proposed system, HS2 could pay into a fund supporting bat conservation across England, rather than wasting vast sums trying to forestall any bat collision on its railway.

This would obviously be a superior way of managing the environmental impacts of infrastructure development, offering far more cost-effectiveness for our investment in the environment.

It is not yet clear whether the current drafting in the Bill is enough to achieve this; several respected specialists think that it will need to be strengthened through amendments to be workable.

If they are right, we must hope that the Government works with them to achieve this. The Habitats Regulations reforms are probably the most important part of the Bill in respect of impact, so it is vital that they deliver on the Government’s intentions.

National Policy Statements

Government decisions about nationally significant infrastructure are currently made in line with documents called National Policy Statements (NPSs). As new laws are made, NPSs are supposed to be updated, so that the government’s infrastructure plans align with the current legal situation.

Strangely, however, government has fallen behind on doing this, leading to a bizarre situation in which its policy is to propose infrastructure schemes that it has made unlawful. This is one reason why infrastructure schemes get judicially reviewed so much.

The Government proposes to create legal requirements to stop this from happening by updating NPSs more regularly, along with various other changes to improve how NPSs work.

It is somewhat extraordinary that the British state needs to pass a law to achieve this; one might expect that the Government was capable of updating its own policies in line with its own legislation without a law requiring it to do so. But apparently it is not, and given this, a law is better than nothing.

We see here a fascinating snapshot of the tangle of self-imposed rules under which the British state haplessly labours. But the changes proposed in the Bill will probably make the tangle a bit more manageable than it is at the moment.

Tighter Deadlines

The Government proposes to tighten various deadlines for making planning decisions, especially deadlines for the Secretary of State to make decisions and for certain consultation processes. This is all positive, although again there is something quite funny about the Government having to pass laws that it shall meet such-and-such deadlines, rather than just meeting them.

It should also be remembered that many bodies struggle to meet deadlines because they are starved of capacity. Many infrastructure promoters are worried about future delays at the Planning Inspectorate, the central body that judges large infrastructure applications, which is increasingly flooded with applications and appeals.

If the Government is not able to fund the Inspectorate enough that it can make decisions swiftly, it should let infrastructure promoters cover the cost of the Inspectorate in determining applications. Many local authorities practice a version of this already, and there is no reason it could not work at the national level too.

There is, then, a lot to like in the Government’s Bill. But it also has drawbacks and limitations – I will outline these tomorrow.