Obstacles to infrastructure planning a view from practice
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Obstacles to Infrastructure Planning? A view from practice. William Upton Barrister, 6 Pump Court. The starting proposition is said to be that the current complexity of environmental legislation can cause unnecessary delay and cost to important infrastructure development and economic growth.

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Obstacles to Infrastructure Planning? A view from practice

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Obstacles to Infrastructure Planning?A view from practice

William Upton

Barrister, 6 Pump Court

  • The starting proposition is said to be that the current complexity of environmental legislation can cause unnecessary delay and cost to important infrastructure development and economic growth.

  • (This rather minimises the benefits and purpose behind the legislation)

  • This is not a new issue, and it is worth exploring how far this has been addressed in the last 5 years

  • By its origins, philosophy and principles, planning law is concerned with the regulation of the private use of land in the interests of the community as a whole.

  • But, this is not always about striking a balance, there are some overriding designations

National Infrastructure Plan:the Treasury’s shopping list

  • Roads

  • Rail

  • Airports

  • Ports

  • Electricity

  • Gas

  • Communications (phone, internet, broadcasting etc)

  • Flood Risk Management

  • Waste

How far has “infrastructure planning” been put in a different category ?

  • Material considerations remain similar

  • Processes have been changed

Planning permission:material considerations would be …

  • Overlooking/loss of privacy

  • Loss of light or overshadowing

  • Parking

  • Highway safety

  • Traffic

  • Noise

  • Effect on listed buildings and conservation area

  • Layout and density of building

  • Design, appearance and materials

  • Disabled persons' access

  • Nature conservation

  • Proposals in the Development Plan

  • Previous planning decisions (including appeal decisions)

  • Government policy


Assessments required: draft National Networks NSIP list

  • Environmental Impact Assessment,

  • Habitats Regulations Assessment,

  • Alternatives,

  • Good design,

  • Climate change adaptation,

  • Pollution control,

  • Nuisance,

  • Safety,

  • Security and health

Assessments required: - Generic impacts (Chap.5)

  • air quality

  • biodiversity and conservation

  • waste

  • aviation and defence

  • coastal change

  • nuisances (e.g. dust)

  • flood risk

  • historic environment

  • landscape and visual

  • land use (inc. the Green Belt)

  • noise and vibration

  • impacts on transport networks and

  • water quality.

Why not use the Local plan ?could be … (NPPF 14)

  • LPAs should positively seek opportunities to meet the development needs of their area;

  • Local Plans should meet objectively assessed needs, with sufficient flexibility to adapt to rapid change, unless:

    • any adverse impacts of doing so would significantly and demonstrably outweigh the benefits, when assessed against the policies in this Framework taken as a whole; or

    • specific policies in this Framework indicate development should be restricted [fn 9].

  • Fn.9 to NPPF para 14 sets out the restrictions:

    For example, those policies relating to sites protected under the Birds and Habitats Directives (see paragraph 119) and/or designated as Sites of Special Scientific Interest; land designated as Green Belt, Local Green Space, an Area of Outstanding Natural Beauty, Heritage Coast or within a National Park (or the Broads Authority); designated heritage assets; and locations at risk of flooding or coastal erosion.

The limits to positive encouragement

  • “Yes, if …” approach

  • Using “a positive, pragmatic and proactive manner, with the aim of resolving any elements in the Plan which are not legally compliant or sound.”

BUT, has to defer to:

  • Mitigation Hierarchy (NPPF 118)

    • Avoid

    • Minimise/ Mitigate

    • Compensate

  • SSSIs ?

  • Birds and Habitats Directives ?

How far has “infrastructure planning” been put in a different category ?

  • Not just seeking planning permission, and supporting infrastructure, and applying the dev plan & national policy

  • Need is established at the national level,

  • Planning Act 2008 & other legislation

    • Nationally Significant Infrastructure Project (NSIP)

    • Hybrid Bills (eg. Channel Tunnel Rail Link Act, HS2 Bill etc)

For example,

  • Thames Tideway Tunnel (ongoing)

  • Should we be doing this at all? And is this the only way to do it ? DECIDED

    • NSIP ‘Wastewater’, and its own SEA

  • If it is to be this project, what should it look like, where should it go in detail, and whose land needs to be acquired ?

    • DCO process for a single order, and its EIA

    • Inquisitorial process, not adversarial

2014 Review of NSIP process itself:

Consultation on measures to:

  • improve pre-application phase, and make consultation requirements proportionate;

  • improve the pre-examination and examination phase;

  • make changes to Development Consent Orders after consent is granted;

  • streamline consents; and

  • improve engagement with local communities, local authorities and statutory consultees.

The scrutiny by the courts

  • R (Gate) v SoS Transport & Lancashire CC [2013]

    • Dual carriageway link road to M6

    • NSIP category definition upheld

    • Consultation criticised

    • Other NSPs are material considerations

    • Limited alternative routes assessment, & further nature conservation surveys allowed

    • Warning about likely exercise of Court discretion against relief

The Courts continue to adapt as well

  • Tesco v Dundee [2012]

    • interpretation of planning policy is a matter of law, but the application of planning policy is a matter of judgment

  • Procedural changes:

    • Cost capping and Aarhus Convention claims

    • Judicial review time limit now 6 weeks

    • Dedicated Admin Ct lead judge

    • JR consultation in general

But, even so,More planning change a’coming in:

  • National Infrastructure Plan 2013 (“NIP”)

    • Treasury’s document, 3rd edition

  • Autumn Statement (Dec 2013) repeats every infrastructure announcement in the NIP

    • The 'Top 40' list of projects and programmes

      • All are expected to be NSIP, if they can be …

      • & will make a positive decision more likely (?)

National Infrastructure Plan 2013

  • the government will introduce

    • a specialist planning court with set deadlines to handle planning judicial reviews (Jan 2014)

    • ensure that 'minor procedural claims are dealt with proportionately'

    • appeals can 'leapfrog' the Court of Appeal directly to the Supreme Court in a wider range of cases.

National Infrastructure Plan 2013

  • Consultation will follow on the proposals for:

  • a statutory requirement to have a Local Plan in place

  • Rule that where a planning authority has failed to discharge a condition on time, it will be treated as having been approved

  • planning authorities will have to provide more justification for imposing conditions

  • raising the threshold for 'special measures' from 30% of decisions made on time to 40%

“Obstacles” ?

  • used to be known as requirements ?

    • Rule of Law and accountability

      • Regulatory systems ?

      • Enforcement?

  • role of the lawyer:

    • Work with the tools we are given

    • Aims of the client vary:

      • promote; support; oppose; delay; avoid etc

      • What if special interest, or separate jurisdiction ?

Have our expectations of the process changed ?

In 1958, the Franks Report said this:

“The intention of the legislature in providing for an inquiry or hearing in certain circumstances appears to have been twofold:

  • to ensure that the interests of the citizen closely affected should be protected by the grant to them of a statutory right to be heard in support of their objections and

  • to ensure that thereby the Minister should be better informed about the facts of the case.”

Obstacles to Infrastructure Planning?A view from practice

William Upton

Barrister, 6 Pump Court

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