Official Response to the Planning White Paper Consultation

Transcription

1 Friends of the Earth Official Response to the Planning White Paper Consultation Introduction i. Friends of the Earth believes that the planning process provides one of the most important mechanisms for delivering sustainable development. We have a long standing engagement with the planning reform process and have sought to promote an inclusive and effective system based on a positive vision for sustainable development. Friends of the Earth remains profoundly concerned that the Planning White Paper was prepared without any meaningful debate with the environmental or social sectors. This resulted in much less dialogue and testing than was necessary to produce a sound outcome. The result is a paper which simultaneously advocates the rhetoric of sustainable development and participation while systematically removing the detailed measures necessary to maintain these objectives. ii. This response is divided into three parts: 1. Nationally Significant Infrastructure Projects 2. Town and Country planning issues. 3. Alternative planning reform proposals Friends of the Earth England, Wales and Northern Ireland National Office Underwood Street London N1 7JQ Telephone Fax Website Friends of the Earth Limited Registered in London No Printed on paper made from 100% post-consumer waste

2 Background iii. It is important to recognise that the twin foundations of the Planning White Paper, the Barker and Eddington reports, were not intended to be a comprehensive basis for planning reform. Both reports have two major limitations. First, their terms of reference were extremely narrow; Barker in particular was given the precise focus of how planning could assist in economic growth. No attempt was made to broaden this remit and as a result critical evidence on public legitimacy and sustainable development that was made available to the Barker Team was not considered. iv. Secondly, the quality and breadth of the evidence represented by Barker and Eddington was dubious. Case studies are used selectively and there is an inability to distinguish between what is essentially hearsay and what is verifiable evidence. The failure to distinguish lobbying from hard data has led to major mistakes some of which, such as the analysis of the need test, have been acknowledged by Kate Barker herself. In addition a number of the case studies on MIPs were used in a highly selective and misleading form. These flaws are highlighted in the CPRE publication Deconstructing Barker (2007) 1. v. This flawed analysis leads to measures which, far from increasing the efficiency of the system, will significantly undermine the legitimacy of the planning process. This legitimacy is founded on the existence of important procedural rights to be heard and in particular the right to participate in meaningful local planning inquiries. The proposed limitation of the scope of inquiries for MIPs is a limitation on the right to meaningful participation. Since the current proposals lack any detailed provisions on how people can properly participate in the adoption of national policy it is hard to say whether this will provide any compensation for the proposed decrease in local participation. vi. The narrowness of the reform agenda and weakness of the evidence base is brought into stark relief when we consider what the Planning White Paper ignored. Despite the long-term investigation of the RCEP into the Urban Environment no attempt was made to incorporate their emerging thinking into the Planning White Paper nor to take forward the valuable conclusions of the 2002 RCEP 2 report, many of which were not implemented in the 2004 PCP Act. Despite the fact that the recent publication of the RECP is the most detailed and evidence based analysis of the urban environment for at least a decade the Government has made no attempt in Planning White Paper process to respond to its creative suggestions. (See Friends of the Earth s alternative white paper Planning for the future 3 ) The Key Policy Tests of the Planning White Paper The participation and legitimacy test vii. Friends of the Earth is committed to a planning system which is fair, transparent and democratic for all participants and enshrines the objectives of sustainable development. While the Government is free to set national objectives, the decision making process must provide for any proposals to be fully tested and for community 1 Levett-Therivel Deconstructing Barker. CPRE (2007) 2 Royal Commission on Environmental Pollution: 23 rd Annual report: Environmental Planning (2002) 3 Friends of the Earth: Planning for the future, (2007) 2

3 views to be heard. The Government has committed itself to a participative decision making process both in the UK Sustainable Development Strategy and in the ODPM publication Public Involvement in Planning: the Government's Objectives (2004). This document provides a comprehensive discussion of the issues surrounding participation and particularly its contribution to local empowerment and the development of citizenship. MIPs reform should be tested by principles contained within this document. In particular we should be clear about the vital distinction between consultation, which is essentially about communicating the results of decisions which have already been taken, and participation, which is meant to genuinely include people in the formulation of ideas and the development of proposals. Participation requires a range of operational principles, particularly honesty and responsibility, by all participants. In this context claims of participation on decisions which Government has already substantially decided are dishonest and disempowering. The Sustainable Development test viii. The statutory purpose of planning (Section 39 (2) Planning and Compulsory Purchase Act 2004) is to deliver sustainable development which seeks to integrate social, economic and environmental objectives for the long-term benefits of the whole of society. Strengthening the contribution of planning to this agenda requires strong legal duties on decision makers and a strong political signal from Government that regulation is a vital way of securing these goals. One of the key implications of the sustainable development ideal is that policy development should not be based on the perceived needs of only one sector. The focus of the reform agenda on the needs of business undermines the system s credibility and capability to promote sustainable development. There are no measures in the Planning White Paper that enhance the delivery of sustainable development. The Efficiency test ix. Everyone has an interest in an efficient planning system which delivers timely decisions. Fulfilling this objective requires a clear understanding of what is delay and what are the vital components of the process of decision making. Unnecessary delay due to administrative failure should be effectively dealt with so that greater emphasis can be placed on quality decisions which have fully engaged the local community. It is significant that the Planning White Paper has ignored the most obvious simplification of the local planning system in favour of removing opportunities for community engagement. PART 1 Nationally Significant Infrastructure Projects 1. The following section examines the three key aspects of the new MIPs system. However the White Paper stresses that this is a package of measures which deliver one decision making process. The stages and their impacts are therefore an interlocked process: 3

4 The main elements of the Planning White Paper on major projects (UK wide) are: New National Policy Statements will be drawn up for an array of major developments, predetermining a mixture of national and local issues including need, safety and even location of some proposed projects. These statements will have more weight than any other statement of national, regional or local policy (Paragraph 3.12). A new body known as the Infrastructure Planning Commission (IPC) will decide on major project proposals according to National Statements and will be able to grant consents, confer powers and amend legislation, necessary to implement nationally significant infrastructure projects (Paragraph 5.18). The decision of the IPC will be final with Ministers no longer able to make decisions, removing all direct democratic accountability. The public will lose their right to be heard and to cross-examine witnesses in public inquiries. Instead the IPC will have the discretion to determine whether individuals can give evidence and in what way. The Planning White Paper proposes an open floor session following the examination process: once this process was completed, the commission would organise an open floor stage where interested parties could have their say about the application within a defined period of time, where there was demand for it (Paragraph 5.34). Issues of need, safety or location, as set out in National Policy Statements, would not be open for examination. The inquiry process could be restricted to details of implementation of a particular development only. The status of National Policy Statements 2. National Policy Statements (NPS) will have an unprecedented weight in the decision making process. The conclusion is that NPS should be the primary consideration for the Commission in determining applications for development consent, i.e. that they should have more weight than any other statement of national, regional or local policy (Paragraph 3.12). The implications of this ambition are wide ranging and would appear to lead to an NPS having more weight than a Planning Policy Statement or the Sustainable Development Strategy. The White Paper goes on to say that matters contained in NPS contents need not be addressed again either in the planning application or at the inquiry stage. This would mean that a developer would no longer need to justify either need or location in their application. The scope of the NPS is broad. Paragraph 3.9 gives total discretion to Ministers to determine the final scope but issues of need, appropriate technology, high-level environmental impact and location are all specifically identified in the White Paper as appropriate issues for NPS. 3. Paragraph 3.14 of the Planning White Paper states that the Infrastructure Planning Commission would approve any application for development consent for a nationally significant infrastructure project unless the adverse local consequences outweighed the benefits, including national benefits identified in the NPS. Adverse local consequences, for these purposes, would be those incompatible with relevant European Community and domestic law, including human rights legislation. As far as the Environmental Impact Assessment (EIA) regulations are concerned, it is our view that there is a tension between the very narrow range of factors that can be considered against the contents of 4

5 the NPS, and the very wide range of factors required to be considered at a local level as part of an EIA. 4. It is hard to find a precedent for the NPS set out in the White Paper. These documents can best be described as a kind of super development plan. Their status as the primary, if not only, consideration appears to give NPS greater weight than the conventional status of a development plan. Taken together the enhanced status of a site specific NPS leads to an extraordinarily powerful document which even if not determinative certainly has overwhelming force in the decision making process. 5. While the idea of clearly expressed national policy is desirable the weight envisaged for NPS is disproportionate and likely to prove unworkable for two principle reasons: The need for effective public legitimacy The legal difficulty of making decisions in two stages. 6. The status and scope of NPS requires effective checks and balances to safeguard public legitimacy. It also requires rigorous policy testing since this will no longer take place at public inquiries. However, the Planning White Paper sets out only the vaguest outline of how consultation might take place. While Paragraph 3.22 commits the Government to effective consultation, there is no detail of what this might mean. We are surprised that the Planning White Paper s description of consultation makes no reference to the Aarhus Convention on public participation in decision making, particularly Articles 6 and 7.4 The Convention s requirements of publicity and public participation go well beyond the Cabinet Office Code of Practice on Consultation. Clear procedures for notification, consultation and consideration of the responses need to be established by law. The Convention also recognises the role of non-governmental organisations. Whilst a lengthy list of governmental organisations is contained in the third bullet point of paragraph 3.25, environmental and conservation bodies at the national and local level are not referred to at all. 7. Paragraph 3.25 of the Planning White Paper also suggests that the standard would be the current Cabinet Office Code of Practice on Consultation. This code was developed to guide the conduct of major Government policy reviews such as green and white papers. These current arrangements are for consultation and contain no measures which might actively encourage communities to participate in the shaping of decisions. For example currently information and publicity about white papers is not disseminated locally and many citizens are unaware of the process. There is no formalised mechanism for the meeting of community representatives, groups or individuals. Instead the debate on a white paper is limited to key stakeholders with members of the public having only one route to express their views by responding to the consultation in writing. This is plainly inadequate for the kind of site specific and powerful NPS proposed. 8. Significantly the Cabinet Office s recent consultation 5 on a review of these procedures makes clear in Paragraph 1.12 that consultation is useful only where the policy processes are already underway. It therefore does not invite an open debate on very broad areas of public policy, nor does it empower those who participate with the final decision. The limited scope of the consultative process is not reassuring. Neither is the Cabinet Office s proposal to reduce the 12-week consultation process to 6 weeks (see 4 Planning White Paper, paragraph Effective Consultation Cabinet Office HMSO (2007) 5

6 paragraph 5.17). The Planning White Paper makes no reference to these proposals in its endorsement of the Cabinet Office standards. The idea of a 6-week consultation period for NPS is wholly unacceptable. There is no indication in the Planning White Paper of how the public can properly participate in a national level debate of this nature. Without such details it is impossible to understand whether this will be an effective forum for the expression of community representations. This is critical because NPS decisions will impact directly on people s individual and property rights in ways unlike any other form of national policy. The preparation of National Policy Statements (NPS) 9. Chapter 3 of the Planning White Paper makes clear that the relevant government department will be responsible for preparing NPS. NPS would have a time horizon of 10 to 15 years (paragraph 3.31) and be reviewed every 5 years. Given the weight of NPS three important questions flow from the proposals in addition to issues of public participation discussed above: What level of Parliamentary scrutiny will NPS be subject to? How can the content of NPS be challenged if new evidence on, for example, climate change is produced? Given that a site specific NPS is likely on occasion to engage both property rights and aspects of the Human Rights Act how will the broad issues of the right to a fair hearing be dealt with? 10. The Planning White Paper does not provide clear recommendations for parliamentary process. Paragraph 3.28 suggests that examination by the relevant select committee might be one option. Given the potential for NPS to be site specific the parliamentary process would need to be extremely rigorous involving committees in the full examination of a wide range of evidence including a range of individuals whose rights were affected by the NPS. These would create a demanding and ongoing workload for Parliament. An external examination of NPS by the Planning Inspectorate may allow for a more manageable system. It would not, however, remove the need for a parliamentary debate and vote in order to secure the democratic accountability of the process. 11. The Planning White Paper makes clear that the content of NPS should not be reopened at the public inquiry (paragraph 3.11). This places great pressure on the preparation of NPS to consider all the relevant material issues including detailed scientific research, on for example, nuclear safety. This process is characterised by significant scientific and technological change and development and the question arises as to how NPS can be challenged when it contains out of date science and before it is scheduled for review. The Planning White Paper suggests that new evidence would have to be presented to the Secretary of State and that they would consider whether a review was justified. How they would make this judgement is not made clear. In our view, the Public Inquiry remains the best way of judging the merits of the scientific assessments of technologies and their interaction with a particular location. NPS should not be so detailed as to prescribe particular technologies or places and public inquiries must be free to test the validity of each proposal, guided by national policy but not restricted from exploring detailed impacts. 6

7 NPS, site specificity and the Human Rights Act 12. Paragraph 3.9 of the Planning White Paper makes clear that national policy can make locationally specific decisions on the future of infrastructure. There is an important parallel here with the passage of the 2004 Planning and Compulsory Purchase Act which created a statutory planning framework for the English regions. During this process it was made clear that regional plans (Regional Spatial Strategies) could not be site specific because the preparation of these plans contains no statutory rights to object and be heard (This decision is reflected in Planning Policy Statement 11: Regional Spatial Strategies). 13. A precise definition of what might be a site specific proposal remains uncertain but in practice the identification of, for example, existing nuclear facilities for further development or a reservoir in Oxfordshire, would in our view be clearly a site specific allocation and therefore engage the provisions of Article 6 of the Human Rights Act. Article 6(1) provides that in the determination of his civil rights and obligations everyone is entitled to a fair and public hearing by an independent and impartial tribunal established by law. We acknowledge that since the proposals are currently vaguely drawn and untested it is not possible to give a definitive judgement about Article 6 compliance. However, there are important parallels with the development of case law around the existing planning system. 14. In the case of development consent situations it is assumed (though not explicitly found) that third parties civil rights can be engaged by the granting of planning permission (Adlard, paragraph 14). Although the law is not settled it is already possible to discern some strands of accepted jurisprudence that make the approach being proposed in this consultation a very risky enterprise. Those include: Plan-making can engage civil rights 6 in certain circumstances; In such cases the plan-making processes must be Article 6 compliant; The precise cases in which the plan-making process will engage civil-rights has not been determined and may vary depending on a number of circumstances; In cases where Article 6 rights are engaged the Courts will have particular regard to the question of whether third parties were given a formal right to be heard by way of oral hearing and an opportunity to cross-examine. Those features have been held to be particularly important in findings that aspects of the plan-making system are compliant 7 The inquiry process itself allows for evidence, cross-examination and oral and written representations The exercise by the local authority of a discretionary power to hold a further inquiry is an important part of the process. 15. In certain cases and for certain people the preparation of NPS will engage Article 6(1) rights and it will be necessary for the appropriate authority to ensure that their processes do comply with Article 6(1) without which compliance they will be at serious risk of successful judicial review challenge. The uncertainty created by the absence of a clear right for objectors to be heard in any of the national level policy documents clearly increases this risk. 16. In addition, case law has established that where a planning decision - including a decision on the principle of a development approval - turns on the resolution of purely factual disputes, an affected person is entitled to have that dispute resolved by an 6 Bovis Homes Ltd v. New Forest D C, EWHC 483, 2002 WL , para. 316 (2002) 7 ibid, para

8 independent fact finder able to offer full procedures commensurate with the task, such as come with a planning inquiry before an inspector 8. It appears it is almost inevitable that in the formulation of a national statement of need or strategic assessment that these kind of factual disputes will arise We acknowledge that the lack of comprehensive rights to be heard in relation to current national policy such as planning policy statements (PPS) is justified because no part of these documents can be considered to be development consent themselves. They are high-level, non site-specific documents. The NPS is very different. It can be a site-specific document which clearly forms part of the development consent process. In both form and character it is much closer to the scope of a development plan and therefore much more likely to engage with the provisions of Article 6. The two-stage decision-making approach 18. The Planning White Paper essentially proposes a two stage decision-making process broadly divided into national policy statements (on need, location, and high-level environmental considerations) and local issues which would be explored in a public inquiry. Public inquiries would not be expected to hear detailed oral evidence on issues already agreed in national statements. This two-stage decision-making approach raises a range of important procedural and legal questions. 19. In general terms it is extremely difficult to separate high-level issues of policy including need from detailed localised impacts in the planning decision-making process. This is partly because any matter which is relevant to the detail of the consent must be capable of being relevant to the principle of the consent. It is also because a planning inspector is confronted with the need to weigh the importance of national need over local impacts. This inevitably requires the interrogation of both principles at the same time in order that, for example, the degree to which national imperatives outweigh significant local impacts can be gauged. This is particularly important where local impacts relate to nationally or internationally designated nature conservation sites. 20. In addition many issues, particularly those surrounding safety, can only be properly explored in the full knowledge of local circumstances and the context of a particular place (proximity to human habitation combined with the morbidity profile of the population). Experience suggests that expressions of national policy are often soon superseded either by changes in technology (which might influence the level of demand for new energy projects) or by environmental circumstances. One example of this would be the vulnerability of a number of existing nuclear installations and transport corridors to sealevel rise. As a result, public inquiries must have the opportunity to interrogate the robustness of national policy. 21. The important lesson set out in Jennifer Armstrong's analysis of the Sizewell inquiry 10 was that a major planning proposal such as the Sizewell 1 is effectively part of the policymaking process. From this it follows that a satisfactory and worthwhile investigation can only take place if the details and merits of that policy are open to questioning. When the purpose of a major public inquiry is to inform the government of a range of views on the 8 See, for example, Friends Provident -v- SSE [2001] EWHC Admin 820, 19th October (2001) 9 Independent legal opinion obtained for Friends of the Earth in the matter of the Planning White Paper; August (2007) 10 J Armstrong. Sizewell report: a new approach to major public inquiries. TCPA (1985). 8

9 proposal so as to enable the best decision to be taken, it would be against the public interest to restrict the inquiry to site specific issues alone. (Armstrong 1985) The role of the Habitats Directive 22. It is inevitable that many large scale energy and transport projects will impact upon national and international nature conservation designations. As a result their approval is likely to require appropriate assessment (AA) as well as environmental impact assessment (EIA). The stringent requirements of AA again raise questions over the twostage decision-making process. The Habitats Directive and the Habitats Regulations set up a staged decision-making process which requires consideration, in sequence, of: the impact of the development on the protected site (which plainly requires consideration of points of detail), the need for the development, the potential for mitigating the impact including alternatives, and the scope for compensating for the impact. 23. Step (3) plainly requires consideration when the principle of the proposal is being considered. The effect of these requirements is either that all issues of detail are considered when an in principle decision is made at national level, or all issues of principle must be re-examined in the context of the Public Inquiry. We are particularly concerned at the contradiction between the requirements of AA for the consideration of alternative options if a designated site is affected and the approach recommended in Barker/Eddington where alternatives will be dealt with in national policy statements. It is impossible to see how at this preliminary and high-level moment all the detail will be available to assess the impact on designated sites and to ensure their proper consideration. Environmental Impact Assessment 24. We suggest that this measure is legally dubious in relation to the Environmental Impact Assessment (EIA) Directive. This Directive requires a full understanding of the environmental impacts of Schedule 1 developments. The result of this process, which is designed to understand the complex and cumulative interaction of environmental impacts in relation to a number of sensitive receptors, requires a holistic and complete assessment of a proposed scheme. This assessment contained within the environmental statement would undoubtedly have to discuss issues of need, safety and high level environmental impacts. In addition it is a basic assumption in the EIA Directive that the ultimate decision on both the principle and the detail must be taken by the relevant person at the same time. 25. It is extremely difficult to conceive of a situation whereby a planning inspector could rule that debate about the Environmental Statement, which is fundamental to the determination of the application, could be limited so as not to discuss particular high level elements. This selective approach runs counter to the whole concept of unified Environmental Impact Assessment. It is difficult to conceive how individual objectors wishing to raise issues contained in an Environmental Statement could be prevented 9

10 from doing so in a way that remained fair and reasonable. As a result in practical terms it is simply unworkable to attempt to limit inquiries in the way suggested. So what should NPS deal with? 26. National policy should form the context within which a final planning decision is taken and as such should be fundamental to the debate at planning inquiry. National policy should then help to inform any subsequent inquiry into proposed major infrastructure development. It should exclude site specific matters (which should be dealt with at public inquiry) dealing with general issues of whether such development is necessary in the UK and, if so, the criteria for its provision. Safeguards on the NPS process 27. We believe national policy should not be site specific but restrict itself to general issues of need which would still provide much greater clarity to the process. These documents should be embedded through the Regional Spatial Strategy and Local Development Framework process and fully tested. If the Government is determined to prepare national statements which are site specific then the following minimum safeguards would need to be in place: Issues and options stage where full consideration of alternatives takes place which satisfies Strategic Environmental Assessment. This would require direct participative techniques applied to those communities affected as well as wider opportunities for public response through traditional and e-media. Publication of draft statements. Formal periods of representations and objections (anyone who makes a representation will have a right to be heard as with normal plan making) Examination where representations can be heard (best delivered by Planning Inspectorate) Modifications and final publication. The introduction of the Independent Planning Commission (IPC) 28. Paragraph 5.18 of the Planning White Paper sets out that the IPC will have a far-reaching and unprecedented range of powers, including legislative powers. While there are arguments for rationalising the present system there are likely to be a range of difficulties in holding the IPC to account for its decisions, given that it is an independent commission which is not directly overseen by Ministers. With this in mind, we believe the IPC is one of, if not the, most powerful decision making bodies ever constituted in the UK context to make site specific decisions without direct parliamentary accountability. The power of the IPC is manifest in a number of complex ways but principally we are concerned about two issues: its very wide discretionary power of how and who to involve in any examination of a proposal 10

11 the lack of direct accountability for individual decisions which might involve power over legislation and compulsory purchase orders. 29. Friends of the Earth is not opposed in principle to the establishment of a new body to decide on MIPs. It is worth noting, however, that there is widespread support for the value of the Planning Inspectorate and particularly their perceived fairness and objectivity. The Planning Inspectorate provides for community representation to be heard in a fair and sensitive environment valuing the diversity and expertise which many local people bring to this arena. The limitation of the scope of public inquiries 30. The Planning White Paper contains a wide range of limitations on what evidence and who can appear at public inquiries. As a result of the weight of the NPS Planning White Paper is clear that There should therefore be no need for inquiries on individual applications for development consent to cover issues such as whether there is a case for infrastructure development, what that case is, or the sorts of development most likely to meet the need for additional capacity, since this will already have been addressed in the national policy statement (Paragraph 3.11) 31. In addition strong limitations are placed on who can give evidence and in what format. Wide ranging discretion is afforded to the IPC to decide: If it is necessary to have an oral hearing (See diagram on page 38) Which witnesses to call (Paragraph 5.31 How they should give evidence in person (Paragraph 5.31) Whether witnesses can cross examine (Paragraph 5.32) In addition the Planning White Paper proposes that the majority of evidence, given its likely technical nature, should be given in writing (Paragraph 5.31). The Limitation on what the IPC can consider as material. Box 5.2 of the Planning White Paper sets out a range of considerations which the IPC should take into account in the consideration of new proposals. This list is a significant departure from established practice creating a new form of limitation on what is material. An independent legal opinion obtained for Friends of the Earth in the matter of the Planning White Paper suggests this approach is neither practical nor lawful. The advice goes on to conclude Without going beyond the European and domestic law matters identified in the Planning White Paper, the Infrastructure Planning Commission will not be able to grant a detailed and workable consent. An attempt to limit the matters which the Commission may consider is impractical and legally unworkable. Significantly the advice reaches a similar conclusion in relation to tests proposed by the Planning White Paper to be applied to the consideration of new schemes. The legal opinion concludes As the attempts to limit the relevant considerations are legally and practically unworkable, the tests for determining applications require reconsideration. The most striking omission is the absence of any reference to other national policy, so the Infrastructure Planning Commission would not be able to reject a scheme on 11

12 the grounds of poor design contrary to Planning Policy Statement 1 (as the Secretary of State has recently refused a waste water treatment works at Peacehaven, East Sussex). Removing the right to be heard. 32. One of the critical issues of dispute about the conduct of inquiries is the issue of a right to be heard by local people. It is important to recognise that such a right is being removed in the new regime in the sense of opportunity to appear not solely in gift of the commission. This position is important for legal and moral reasons. 33. The current regime for conducting inquiries is quite different and on the whole sounder. This regime is embodied in the MIPs inquiry rules 2005 (SI ). These embodied some significant reform measures but included a right to be heard. This right is qualified and has been evolved through custom and practice. There is no right enshrined in primary legislation, instead the system operates as follows: Rule 6 of the 2005 Inquiry makes clear that anyone may register to be a major or ordinary participant at an inquiry. Once having registered formally as a participant Rule 15 makes clear that those bodies will have a right to be heard. 34. In short the right is qualified in the sense that an individual must opt in at the beginning. Having once opted in a participant has additional opportunities to exercise the right to be heard. In explaining rule 19 of SI 2115 Circular 07/2005 makes clear that major participants have an entitlement to cross-examine. The rules and guidance also afford discretion to the inspector to hear anyone who has not formally registered in the process but wishes to be heard. Para 44 of the circular makes clear in practice anyone who wishes to appear at an inquiry will usually be allowed to do so 35. The difference between the existing and proposed regime is striking and the implications far reaching. Firstly a right has been removed. Second the replacement, the open floor session, is no more than a repackaging of the existing discretion of planning inspectors to hold less formal roundtable sessions. So a major loss of participative rights is in no way compensated by any of the new measures. As a result it is simply factually incorrect to suggest that the new regime enhances public participation. 36. During the course of stakeholder engagement the suggestion has been floated that a right to be heard might be restored but limited to ten minute slots. This is simply unworkable and provides no opportunity to test evidence or respond to debate. It is hard to see how anything meaningful could be said about a complex application in ten minutes. The Value of public scrutiny in testing evidence 37. Experience shows that detailed public scrutiny leads to both the avoidance of projects that are unsound and to the improvement of those that go ahead. A prime example of this was the Nirex RCF proposal. The Nirex RCF proposal was challenged, in the face of the status quo, by a detailed scientific case drawn together by the objectors. This case was 12

13 accepted and the project did not go ahead. It is better for a project to be scrutinised in order that mistakes can be avoided, rather than a policy of undue haste be adopted simply to push projects through. Friends of the Earth firmly believes that decision-making on major projects should be made on the basis of the best available information and be subject to public scrutiny and debate. 38. Reform could improve the process of major public inquiries but this reform needs to be based on balanced objectives including genuine public participation. There should be urgent consideration of a range of measures including the funding of third parties in inquiries to create greater access and equality. The Government should be aware that a consequence of undermining legitimacy will be much greater direct action as communities abandon a system which is regarded as stacked against them. This scenario was last seen in the 1980s roads programme, resulting in much greater delay and cost, also through the criminal justice system. Article 6 and the legal implications of public inquiries 39. A number of Human Rights Act Article 6 issues are raised by the proposals to limit the evidence heard in public inquiries. The Planning White Paper (Paragraph 3.11) makes clear that the intention would be to create a presumption that there should not be detailed oral evidence at Inquiry on issues dealt with in national statements. We acknowledge that this is not a prohibition but it is a very clear and directive obligation on members of the IPC. However, in practice if a lay person wishes to give evidence on need, safety or highlevel environmental considerations it is difficult to see how this could be prevented. An inspector would have to refuse to hear such evidence and this directly impacts on the individual s rights to a fair hearing. Since it is practically impossible to separate out principle from detail, it follows that it is highly dubious to expect individuals to be silenced when they move away from the draconian limitations on the evidence implied by the recommendations of the Planning White Paper. 40. There is an equally worrying implication that inquiries might be invitation only. This would not satisfy the requirements of natural justice, property rights (particularly in relation to compulsory purchase) or the Human Rights Act. For reasons set out above the examination of Regional Spatial Strategies is only legally safe because it cannot make site specific allocations nor final development consents. The legal opinion obtained for Friends of the Earth in the matter of the Planning White Paper makes a strong case for retention of oral hearings and rights to cross-examination. The advice concludes Consequently, we consider that procedural fairness and quite likely the Human Rights Act 1998 will mean that landowners affected by compulsory purchase will be able to play a full role in examinations. Proper decision making and fairness will require that these people and concerned public authorities are able to call witnesses and cross-examine opposing evidence. This process is not usually particularly long. Whilst the Planning White Paper envisages that the examination stage should usually be no more than six months long, 8 of the 11 example inquiries referred to in the White Paper lasted less than that time. 41. It is open to Government to provide for property rights to have enhanced status at inquiries. While this might reduce the vulnerability of the proposals to legal challenge it raises profound moral and political questions. It allows citizenship to be defined by 13

14 property ownership. It suggests those without property have necessarily less interest in the outcome of decisions. It also ignores the practical workability and legal difficulty of excluding those interested parties who want to give oral evidence and cross-examine. 42. Public participation must be founded on a rights based approach to command any creditability. Any opportunity for participation or even consultation that remains at the complete discretion of the decision maker is not a right for obvious reasons. The idea of a right to be heard in planning decisions is enshrined in section 19 of Planning and Compulsory Purchase Act of 2004 and is a long established idea in planning decision making. The rights based approach is the only option which commands the confidence of the public and has a number of advantages over the Planning White Paper system: It avoids endless challenges to the exercise of discretion by the IPC based on who they will and will not hear evidence from It builds confidence in the public s mind that their voice cannot be simply ignored in the debate It secures compliance for those cases and individuals who may engage Human Rights Act Article 6. The role of the developer in public consultation 43. The Planning White Paper recommends that significant community consultation will be carried out by the developer (Paragraph 4.10). It is entirely unclear in the Planning White Paper what minimum standards will be required in this process. It is also unclear how best placed a development promoter could be, for example, in thoroughly examining alternative development options. While it is helpful to promote dialogue about new development it is important that the process of detailed consultation or participation remains credible in the eyes of the public. The private sector is not best placed to gather and process the responses of the public because they are not an impartial body. Effective and credible consultation must remain in the hands of a respected public body. Part 1 Summary 44. Our concern is that accountability, participation and redress are, as a minimum, maintained at their current level and that taken together they can be seen to systematically provide safeguards to the new powers of the IPC. In practice we believe this would require: A right to be heard at an IPC inquiry A right to be heard into the preparation of site-specific NPS Direct accountability of IPC decisions to ministers. 45. Without these safeguards the system is likely to be both unworkable and illegitimate. In addition, positive measures to secure and promote sustainable development need to be introduced including a duty on the IPC to promote sustainable development. 14

15 46. The devolved administrations must have a full and clear role in any suggested changes to the current planning system. PART 2 TOWN AND COUNTRY PLANNING 47. Chapters 6 to 9 deal with changes to the town and country planning regime for England. The main aspects of concern to Friends of the Earth are: Out-of-town supermarket planning applications will be streamlined by removing the Need Test. Any easing of application requirements for edge-of-town or out-of-town supermarkets will adversely affect town centres. The Planning White Paper proposes a replacement test that promotes competition and consumer choice and does not unduly or disproportionately constrain the market (Paragraph 7.54). These reforms are likely to solely benefit the big dominant supermarkets and will be at the expense of town centre investment and diversity. Greater weight to be afforded to business interests in the decision making process. The right to be consulted on the initial stages of local plan-making will be removed. This stage of plan-making is the most open to the public and allows communities to have a say through the Issues and Options stage and the Preferred Options stage but these statutory opportunities will be revoked (Paragraph 8.13). They will be replaced by a general duty on councils to consult but with discretion on how to exercise this obligation. Public participation in planning, safeguarded by Statements of Community Involvement (SCI) will no longer be required to be independently tested (Paragraph 1.43). The Planning White Paper proposes legislative changes to remove the need for SCIs to be examined against required minimum standards. The Planning White Paper recommends a best practice approach instead. Town centre Policy and the Need test. 48. The Planning White Paper places considerable emphasis on developing a policy which promotes competition and improves consumer choice and it states the Government s intention to be guided by the outcome of the current Competition Commission inquiry into the grocery market. Whilst we acknowledge the importance of this inquiry it is imperative that the Government must balance issues arising from the Competition Commission inquiry against other planning objectives. 49. We accept that planning policies and the decision making process can have a significant impact on local grocery markets. Planners are charged with promoting existing policy on protecting and enhancing the vitality and viability of town centres. This requires them to assess the impact on existing retailers when a new development is proposed. On this basis, planning authorities are of necessity involved in local competition issues. 50. However, the reform of PPS 6 should not be primarily based on competition objectives. PPS 1 states that sustainable development is the core principle underpinning planning (p2). The planning system is primarily designed to deliver sustainable development 15

16 through the integration of four main aims: social progress, effective protection of the environment, prudent use of natural resources and maintenance of high and stable levels of employment and economic growth (PPS1 p2). Recommendations which refer to the planning system should take into account these core aspects and consider social, environmental as well as economic consequences of any policy change. Recommendations made to the Government, for example from the Competition Commission, on planning that are drawn from a narrow economic perspective are therefore necessarily deficient. 51. In particular, policy change which favours a resurgence in out of town retail development would generate more car based journeys, and cut across other policy commitments on climate change, including the Planning White Paper s aim through local authorities.. to make it easier for individual citizens to contribute to tackling climate change through the choices they make about where to live, and the goods and services they use. (Planning White Paper paragraph 7.2 p104) There would also be social consequences were local retail to decline further forcing those without cars to spend more of their income on transport to shop for food at out-of-town stores. When smaller stores close non-car owners over 25% of households in the UK 11 - suffer disproportionately as well as poorer households, if no alternative large supermarket is accessible on foot. This can add 23% to the average shopping bill of a low income family Retail planning policy should be able to deliver quality places where people can live and shop. The following recommendations are key to this delivery: 1. Retain the need test 53. The need test is an essential part of the town centre first policy enshrined in PPS6. The policy was introduced in 1996 to boost economic development in town centres and has resulted in a partial reversal of the decline of town centres seen in the 1980s. Research for the BCSC 13 showed that town centre retail developments rose from a low of 14% in 1994 to about 30% in 2002 and predicted that this would now be over 40% taking into account completions up to 2005 and developments in the pipeline. This was largely attributed to the revision to Planning Policy Guidance 6 (PPG6) in The Government has recently confirmed the success of these policies in the Planning White Paper (Para 7.51). 54. The line of thinking in the Planning White Paper has to a large extent drawn on the analysis presented in the Barker review of Land Use Planning. 55. While recognising the importance of town centre policy and the role of the sequential and impact tests within it, Barker called for the need test to be removed as part of the planning application process (Recommendation 4, pp32). The main arguments given are the following: the market, not local planning authorities is better placed to assess the nature and scale of demand; 11 National Statistics Living in Britain. (2001) 12 Going hungry: the struggle to eat healthily on a low income, NCH (2004) 13 BCSC Future of Retail Property: In Town or Out of Town? (2007) 16

17 assessment of need results in more limited choice and higher prices of goods in stores as it restricts the expansion of stores beyond the town centre that could enter the market without harming the town centre itself ; perverse effects can result if for example existing businesses in out of town centres may expand incrementally if need is demonstrated and there is no impact on the town centre while prospective local entrants fail at any one time to demonstrate sufficient need for a one-off increase of space (sections p29). 56. The Competition Commission has subsequently identified the need test as a potential barrier to entry where an area has no identified need for additional grocery retail floor space or where the need is for less space than would be accounted for by a single large grocery store. It suggests that one of these scenarios exists in more than 50% of local planning areas covered by the Competition Commission survey We make the following points in response: Barker s recommendations are aimed at making the planning system more responsive to economic factors; however, as noted above overarching government policy charges the planning system with integrating economic, social and environmental factors in delivering sustainable development; so social need and environmental impact as well as economic benefits are vital considerations for planning authorities and ones which market applicants alone cannot be left to judge. The Barker report also makes some flawed assumptions about how removing the need test would aid retail productivity; to our knowledge there is no research evidence that makes this direct link between retail productivity in the UK and the planning regime nor is any offered in the Barker report. Previously the Competition Commission concluded in its Emerging Thinking report 15 that there was no evidence that the tests introduced in PPG6/PPS6 have led to a barrier to entry to the product market for grocery retailing nor that the need test alone is constraining the construction of larger supermarkets (sections 154 & 155 p55). The Barker report appears to exaggerate the impact of the need test on restricting development. The report claim that the need test results in more limited choice and higher prices of goods in stores is not supported by evidence, nor is the similar claim made in the Planning White Paper that the need test can have the unintended effect of restricting competition and limiting consumer choice. The Competition Commission s more recent observations that in some areas there is not enough need to justify a large grocery store suggests that in those areas need could be met by a smaller store or a number of smaller stores a scenario which we believe would improve rather than restrict consumer choice. The need test currently only applies to development brought forward outside the important tests of the development plan, which will have been drawn up with community participation. As such it applies purely to speculative edge and out-of-town locations. The Competition Commission s Emerging Thinking report s findings indicate that it is such applications which are not in accordance with local development plans that cause some of the reported delays in the planning system because of failure by applicants to consult adequately with the relevant planning authorities. 14 Competition Commission, Groceries Market Inquiry, Working Paper on barriers to entry. (2007). 15 Competition Commission, Groceries Market Inquiry, Emerging Thinking: (2006). 17