So finally we put the Planning Bill to bed, but not with any blessing. It remains one of the most undemocratic pieces of legislation from this authoritarian government.
However, let’s do the good bits first. It brings in National Policy Statements (NPS) to try and end the lengthy debates at planning inquiries like those for Heathrow Terminal 5 and Sizewell. These have
taken up weeks and months of time arguing about national policy.
It brings in what is called a single consent regime which pulls together all the different bits of other Acts which have planning powers. A complex planning application will now only need one consent, not one for each aspect of the plan.
Errr – that’s it!
What is bad about it?
The NPS will not have a substantive vote in Parliament to approve it. That means it lacks democratic legitimacy. It means that any organisation can refer an NPS to the courts. The whole point of these
statements is to speed up the planning system – m’learned friends don’t usually do things quickly.
Once an NPS is in place, then the second undemocratic proposal comes
into play. The Infrastructure Planning Commission will have to decide
on new nuclear power stations, road, airports and many other big
developments under the terms of the NPS. They are an unelected and
unaccountable body, chosen by ministers. We have already said that
anyone who applies to become a commissioner can expect a swift P45 from
us. It may be worth noting that the Chairman will be paid more than the
The government’s argument for this second undemocratic lock is that
ministers will have a conflict of interest in making the final planning
decision if the NPS is theirs. We agree. But the solution
is to give the NPS democratic legitimacy – not to take democratic
legitimacy away from Ministers who were elected to make these tough
The British public regard the Ministerial decision as final and,
however unhappily, accept it. It is technically a quasi-judicial
decision, but the perception is that it is the final opportunity for
the voices of the people to be heard.
We will ensure a substantive vote in Parliament on the NPS and a final Ministerial decision on each application.
We will expand the expertise and skills of the Planning Inspectorate so
they can return to their traditional role, admired in so many other
countries, of holding the planning inquiries and making recommendations
The other bit of trickery that the government has got up to is to curb
the right to be heard during an inquiry. Right to be heard is a
euphemism for cross-examination. One of the criticisms of planning
inquiries has been that too much time is taken up by
cross-examination. There are other ways of dealing with this, rather
than take away a right of British people which has its roots in
We can establish a system of pre-inquiry hearing where the issues that
are agreed can be eliminated from the inquiry and only the issues where
there is disagreement will be heard.
We will also establish a system where no planning application will be
lodged until the applicant has not just consulted about it, but has
resolved as many issues as possible.
Both of these straightforward measures would reduce the time taken at
planning inquiries which is, legitimately, the principle criticism of
the planning system as it has developed over recent years.
The other major proposal in the Planning Bill is the introduction of
the Community Infrastructure Levy, which in current economic
circumstances is a bit of a sick joke.
Originally the government wanted to introduce a tax on planning gain,
but ostensibly they withdrew that idea to be replaced by CIL which was
proposed by the industry and professions. It was to be a
contribution, distinct from S106 agreements, towards the infrastructure
implications of any development. However the Bill retained several
concepts of the Planning Gain Supplement – not least it failed to
repeal the relevant Act from 2007. Suspicious minds could construe the
CIL as set up to fail so they could revert to plan A.
Their Lordships achieved a number of concessions, but the repeal of PGS
Act was only a request to the Treasury, not an instruction. In
addition, the Levy was not to be debated in their Lordships’ House
which indicates that the government considers CIL to be a tax.
The construction industry and associated professions have a great deal
of work still to do on the detailed regulations so that CIL does not
cripple any economic recovery when once we can perceive it emerging.
All in all a thoroughly bad piece of legislation which, hopefully, we
will be able to replace with something which will be more democratic,
more workable and more easily able to deliver the infrastructure which
has been so neglected since 1997 and which it so badly needs.