Burning Pylon logo

Revolt Newsletter 118

02/04/2002

Text version


Revolt News 118   Text version

PLANNING RESPONSES TO DTLR

Responses were made last month to government (DTLR) planning consultations:
1. Major infrastructure projects;
2. Compulsory purchase and compensation;
3. Planning Green Paper.

The responses are appended below.

DTLR consultation: major infrastructure projects 22.3.02 response from Professor M J O'Carroll

1. Relevant experience.

Major infrastructure project approval processes in which I have played a prominent role:

(a) the second Yorkshire 400 kV overhead power line, applied for in 1991 and consented 1998 but with some associated wayleaves still being reconsidered in 2002. The process involved some 8,000 formal objections, six months of public inquiries in 1992, further public inquiries in 1995, wayleave hearings from 1994 to 2002 and additional planning approvals for accesses from public highways from 1998 to 2002;

(b) the Scotland - Northern Ireland electricity interconnector, fragmented between three government departments, which led to public inquiries being postponed for six months while the Environmental Impact Assessments were adjusted to meet the requirements of the relevant European Directive to assess the impact of the whole project.

2. Main principles

2.1 I agree that processes are too lengthy and expensive, especially for objectors from the affected public, who are then affected by the processes as well as the project. This does not mean rushing approvals through, as a fair and balanced consideration is bound to take time in preparation, hearing, assessment and decision.

2.2 In the spirit of the European Directive 97/11/EC the assessment should consider the whole project, including indirect and secondary effects and alternative solutions. This may mean bringing together related sub-projects which would fall to different government departments, and bringing together specific developments and their infrastructure implications (e.g. a large new power station and its transmission line implications).

2.3 I agree there is a need to balance the two imperatives, as indicated in paragraph 27 with regard to Parliamentary procedures, but which also have a wider manifestation:
(a) hearing the case of those affected and
(b) serving the national interest for a modern infrastructure.

2.4 A key word in 2.2 is "balance". One should not over-ride the other. There is a risk of confusion here of what is being balanced: proposers v. objectors; local v. national interest; local interest v. parliamentary approval. I do not think parliament can balance everything if it does not consider the local impact as fully as the national interest. There is an implication in the proposals that an over-riding presumption will be made in favour of parliamentary approval regardless of the final balance of argument. An improvement might be to allow a graded scale for parliamentary assessment.

2.5 Considerations will be helped by both clarity and quality of government policy. Present public inquiries have to take government policy, where it can be discerned, as a pre-requisite and not for debate. In approving specific projects, parliament may be similarly bound. Parliament cannot sensibly determine government policy on a project by project basis. The proposals therefore do not relieve government of its role of determining the wider policy framework.

2.6 Major infrastructure projects can be David and Goliath affairs. The developer has the advantage of time and resource, so that a proposal comes forward with months or years of preparation. It is in the national interest to have a sound decision based on fair consideration. Objectors from the affected community need time to organise, access to independent expertise and information, and resources to research and present a case.

2.7 Blunders and corruption carry their own risks, in the era of Enron, Balfour Beatty and the Ilisu Dam, so that haste might ultimately be more expensive than taking time for fair and thorough proceedings.

2.8 The underlying problem with times for approving major projects lies in the inherent conflict between those (often individuals but also local communities) suffering damage and those (big business but also the nation as a whole) standing to gain. Reducing that conflict is a potentially powerful factor for reducing the time and cost of approval and acceptance. Fairer compensation, to all affected including neighbouring landowners, and internalising externalities into the cost of the project, are tools for reducing the conflict.

3. More specific comments

3.1 (paras 7, 28) The three stages (national policy statement, parliamentary debate, public inquiry) will each need to be done well. 42 days is far too short for objections to parliament, and would be so unfair in contrast to the time and resource of the developer's preparation that the decision would be injured.

3.2 (paras 10, 11, 17, 18) Presumably SoS for DTLR would designate projects. There is a danger of SoS being judge in his own cause, especially if a project is promoted by him (para 17). The same applies to the final decision, and raises the question of further appeal. I am in favour of using a list and criteria for designation. There is already a list in EU Directive 97/11/EC for Environmental Impact Assessment. Local authorities should also have some influence in designation. It would be wrong for SoS to have the power to avoid fair procedures especially on projects he is promoting. Guidelines are needed.

3.3 (paras 19, 20, 21) It will reduce the scope and time of public inquiries if questions of principle, need and (broad) location can be pre-determined. However, parliament will not be in a position to do so fairly and finally. Parliament's declaration should be provisional and graded and not totally over-riding. For example, the national need may be graded from very strong to very weak, in the context of a government policy framework. It would then be more acceptable to limit the public (local) inquiry to local "detailed" matters and the impact, thereby achieving the reduction in time, while allowing the inspector to consider the impact against the graded parliamentary assessment of national need, without precluding him from recommending against the proposal. The inspector should have options to recommend a review of the scale or location of a project when the impact might outweigh the need. The dilemma is recognised in para 22, but as worded it is inconsistent with para 21 which precludes the inspector from recommending against the principle.

4. Recommendations

4.1 A 3-stage process (government policy statement, parliamentary debate and public local inquiry) would be helpful with difficult major projects. The government policy statement should set a broad policy framework with clarity and quality.

4.2 Projects should be considered whole, in the sense of EU Directive 97/11/EC, and not fragmented. This may mean collecting related projects together.

4.3 There should be criteria, guidelines and a list of major projects for the designation of projects for parliamentary consideration. Local authorities should have an input. SoS should be able to call in a project but should not be able unilaterally to exclude a project from designation especially if he is promoting the project.

4.4 In the interests of fairness and good decision making, objectors should have much longer than 42 days to respond to a designated project, perhaps 42 weeks. There should be support for local objectors to organise, form and present their case, including access to independent information and expertise.

4.5 Parliament should not in its preliminary stage "approve" projects even in principle. Instead parliament should assess the principle, need and location for the project in the context of government policy, and should do so on a graded scale rather than as an absolute declaration.

4.6 SoS should be able to direct a public local inquiry to exclude consideration of principle, need and (broad) location, but should not preclude the inspector from recommending against the development. The inspector should balance the impact against the parliamentary assessment of principle, national need and location.

4.7 In order to reduce conflict, time and cost, compensation systems should be made fairer and should extend to neighbouring affected parties, and externalities should be internalised in project evaluation.

MJOC 22.3.02

DTLR consultation: compulsory purchase and compensation 27.3.02 response from Professor M J O'Carroll

1. Relevant experience.

Approval processes involving compulsory powers in which I have played a prominent role:
(a) the second Yorkshire 400 kV overhead power line, applied for in 1991 and consented 1998 but with some associated wayleaves still being reconsidered in 2002. The process involved some 8,000 formal objections, six months of public inquiries in 1992, further public inquiries in 1995, wayleave hearings from 1994 to 2002, additional planning approvals for accesses from public highways from 1998 to 2002 and CPO inquiries from 1992 to 2000;
(b) the Scotland - Northern Ireland electricity interconnector, fragmented between three government departments, which led to public inquiries being postponed for six months while the Environmental Impact Assessments were adjusted to meet the requirements of the relevant European Directive to assess the impact of the whole project.

2. Comments and recommendations

2.1 "Simpler, fairer and quicker" would be good. This does not mean rushing, as a fair and balanced consideration is bound to take time in preparation, hearing, assessment and decision.

2.2 Statements of principle as the basis for compensation would be helpful.

2.3 Unified inquiry rules would be helpful.

2.4 Consistency of principle and procedure for compulsory powers and compulsory purchase would be helpful, including compulsory powers derived from the Electricity Act and dealt with by DTI. The review should be extended to achieve that, with reference to Chapter 8 of the CPPRAG Final Report and the work of the Law Commission.

2.5 Compulsory powers enjoyed by commercial companies, e.g. who hold electricity licences, should be considered in the light of their commercial interest as distinct from a public function. Compensation should then reflect commercial rates and commercial negotiation; compulsory powers should not be allowed to suppress compensation rates and should only be used in the event of unreasonable intransigence obstructing the public interest. There is a need to revise rates of compensation for power lines which are out of step with commercial rates for telecoms masts.

2.6 Landowners in North Yorkshire have expressed a lack of confidence in the Lands Tribunal. It fails to make fair commercial rates for power lines compared with telecoms masts. Its brief should be changed to reflect 2.5 above.

2.7 Commensurate compensation should be extended to those damaged by a development, even if their land is not subject to compulsory purchase, thereby helping to internalise indirect costs.

MJOC 26.3.02

DTLR consultation: planning 18.3.02 response from Professor M J O'Carroll

1. General

The proposals for change ("simpler, fairer and quicker") are welcome. This is an opportunity for the government not only to make the system more efficient bit also to steer it strategically.

In the main, I share the views of CPRE and Country Guardian. It is important that "quicker" does not force through business and political interests at the expense of fairness. I have responded separately on major infrastructure projects and compulsory purchase.

2. Framework for devolution

As with devolved management more generally, the whole top-down and bottom-up cascade is important. The key is a framework for decisions at appropriate levels. Regions differ in their coherence and attitude to regional government, so the recommendations may suit some regions more than others. Regional Spatial Strategies (RSSs) determined by Regional Planning Bodies (RPBs) may be appropriate if they are not too prescriptive in diverse regions.

Paragraph 4.42 suggests the RSS "will address the broad location of major development proposals". "Address" could be fair, "impose" would not be. For example, the north east has some coherence through its relative isolation, yet it is internally diverse. It would be wrong for the RPB (i.e. "Newcastle"), under financial and political pressure from national government and strongly influenced by the Government Office, to impose large wind farms in or near the Pennine AONB or the Cheviot National Park, leaving local government merely to find the exact location. Likewise, it would be wrong for "Newcastle" to impose upon, say, Teesside, a smaller distinct urban area.

3. Internalising externalities

The review is an opportunity to improve fairness by taking steps towards internalising externalities, as envisaged in principle for environmental impacts but not achieved in practice. Full unilateral internalisation may injure national economic competitiveness, but some steps could be taken.

Fairness may not always be achievable, as developments serving the perceived national interest may rob local people and their descendants of their heritage and landscape. Perhaps Wales offers an example, where reservoir schemes, second homes and now wind farms have had broad impacts. While the benefits have also to be considered, the local benefits of windfarms are few, as even the intermittent electricity must be supplemented by a continuous source.

It would be helpful, and to the government's credit, to acknowledge the inherent limits to fairness which arise from the conflict between local and national interests, and to take steps to alleviate that unfairness. It would be possible to improve compensation, not just to landowners, but to affected people and whole communities.

MJOC 27.3.02

Mike O'Carroll