By Professor Stephen Glaister, director of the RAC Foundation.
The Coalition government has, quite rightly, made strong commitments to delivering new, high quality infrastructure and to doing that soon.
This includes roads and railways. The Secretary of State for Transport is in the process of announcing a number of important decisions. There are number of rail schemes contained in “the biggest rail investment programme for a century” in addition to High Speed Rail; a number of new national and local road schemes; not to mention the development of a national roads strategy and the announcement of the outcome of the “feasibility study” of new funding and ownership models for national roads.
Yet there is no stated policy context for these decisions: by what criteria is the Secretary of State deciding to allocate the desperately scarce publicly funded capital between the competing possibilities? The government has committed to producing a series of National Policy Statements (NPS, see the explanatory note below) which would have helped, but we have been promised the one on roads and railways (“surface networks”) for years and it seems to have sunk without trace.
On more than one recent occasion the Secretary of State for Transport has shown no knowledge of or interest in the concept of a National Policy Statement—although he was keen to outline his choices of specific nationally significant road and rail schemes. This can only be taken as evidence that officials and the Department for Transport as a whole now see announcing projects as a higher priority than developing a national policy context. He did not seem keen on the idea of any kind of strategic review.
For schemes of national significance delays caused by the planning process is one of the fundamental obstacles faced by both this government and its predecessor (the other being funding—how it is going to be paid for).
The planning approval for Heathrow T5 took years (it saw the longest public inquiry in British history) because a debate about a specific scheme became hijacked by a dispute about high level national policy. Similar things have happened with inquiries into road, rail and port schemes. In the attempt to rationalise this and speed things up the Labour government passed the Planning Act 2008.
Under this Act the government publishes for general consultation a statement of national policy in a particular area. After the public have had a say it will, after revision, be submitted for approval by Parliament. Once approved, if a specific application for a “nationally significant infrastructure project” is consistent with its relevant NPS, the policy underlying the project cannot be an issue when the application is examined. And there are clearly defined time limits within which a decision must be reached.
This system was adopted by the Coalition government: the only major change being to transfer responsibility for final decision from an Infrastructure Planning Commission (which was wound up) back to ministers.
The government has designated six NPSs on energy, one on ports and one on waste water. One on hazardous waste is promised soon. It has probably attempted several drafts of an NPS on roads and railways but it has never published one.
It is a characteristic of large road and rail schemes that they tend to require significant financial contributions from the Exchequer (from you and me). Parliament and the general public deserve to know ministers’ views on what problems they are trying to solve with our money and how they think the particular schemes they are promoting will help.
There are other interests. The government is—rightly—keen on attracting private funds to invest in transport infrastructure: for instance in major rail freight terminals and the A14 road improvement scheme. But why would a private enterprise risk wasting endless time and money on promoting a scheme in the knowledge that it might fall foul of some unannounced national planning policy and without the assurance on timely decisions that the NPS system is designed to provide?
Maybe this does not matter: there are (sometimes cumbersome) parliamentary procedures available for railways. The surface transport planning process has not yet ground to a complete halt, though the going may become harder when large and controversial schemes come up for decision.
This integrated transport policy seems destined to go the way of all previous attempts. We will muddle through as we always have. But, surely, this is a becoming a great missed opportunity?
An explanatory note on the Planning Act 2008 by Ian McCulloch, Bircham Dyson Bell LLP
The Planning Act 2008 introduced a new regime for authorising nationally significant infrastructure projects (NSIPs), as defined by the Act.
National Policy Statements
A central element of this new regime is the concept of National Policy Statements (NPSs). An NPS is a statement by the relevant Secretary of State setting out Government policy in relation to one or more specified descriptions of development in the fields of energy, transport, water, waste water and waste.
An NPS may specify the amount, type or size of development which is appropriate nationally or for a specified area; the criteria to be applied in deciding whether a location is suitable; the relative weight to be given to such criteria; the identification of one or more locations as suitable (or unsuitable) for specified development; the identification of one or more statutory undertakers as appropriate persons to carry out such development; and the circumstances in which it is appropriate to mitigate the impact of specified development.
The idea is that, if a specific application for an NSIP is consistent with its relevant NPS, the policy underlying the project cannot be an issue when the application is examined.
From an applicant’s/developer’s perspective, it is therefore desirable to have an NPS in place providing policy support for the specific proposal. More generally, the existence of NPSs should be facilitating the whole agenda for infrastructure development and implementation.
The previous Government indicated its intention to produce 12 NPSs across a range of industry sectors. The Coalition Government has designated eight NPSs – six on energy, one on ports and one on waste water – and a ninth awaits designation – hazardous waste, which we could expect to see soon. The NPSs not yet made are for water supply, for roads and railways (the so-called National Networks NPS) and for airports (which presumably now has to await the outcome of the Davies review into capacity in the south east of England).
Consultation on NPSs and Parliamentary Scrutiny
The Secretary of State must carry out public consultation in relation to each NPS and must have regard to responses to such consultation. In preparing an NPS the Secretary of State must have regard to the objective of contributing to the achievement of sustainable development. Draft NPSs are subject to formal sustainability appraisals.
NPSs are also subject to a form of parliamentary scrutiny. The SoS is obliged to lay a draft NPS before Parliament. In the House of Commons, either an ad hoc Committee or the relevant Select Committee will call for evidence, scrutinise the draft NPS and publish a report on it. In the House of Lords, an NPS is debated in a Grand Committee and also on the floor of the House, if called for.
The Government must consider representations made during the consultation, any committee recommendations and any resolutions of either House of Parliament. It must then lay before Parliament a statement setting out the Government’s response to the resolution/recommendations before amending the NPS and must also allow the Commons 21 days to have a chance to disapprove of the NPS before designating it if no such disapproval is forthcoming.
Process for Development Consent Orders
When an application for a Development Consent Order (DCO) is submitted to the Planning Inspectorate (PINS), PINS has 28 days to accept or reject the application. PINS may reject an application if, for example, it considers the content not to be of a satisfactory standard or if it considers that the pre-application consultation has not been adequate.
When an application has been accepted, it must then be publicised. A period of not less than 28 days is allowed for initial representations to be made by third parties. Then, after a period of evaluation by PINS, a Preliminary Meeting is held where PINS’ proposed timetable for the examination stage is discussed (which will include an opportunity for further representations to be submitted).
The examination stage takes the form of a mixture of written representations and short, topic-based, hearings. There is no public inquiry of the kind that is held under other procedures.
PINS is under a duty to complete the examination of an application within six months of the preliminary meeting. PINS is also under a duty to make a recommendation to the Secretary of State within three months of the end of the examination of the application. These periods may be extended by the Secretary of State but this has not yet proved necessary. Once a recommendation has been received by the Secretary of State, it must be decided within three months. This date may also be extended by the Secretary of State but this has not yet happened either. These periods are set out in sections 98 and 107 of the Act itself.
The only period for which there is no statutory time limit is the period between acceptance of an application and the holding of the Preliminary Meeting.
In practice, the way this is working out is:
- Application to acceptance: 28 days (say one month)
- Acceptance to Preliminary Meeting: say 3 months
- Examination stage: 6 months
- Report to Secretary of State: 3 months
- Decision by Secretary of State: 3 months.
This totals 16 months, which, for a complex or controversial scheme, is short compared with the likely period under the procedures that would have applied previously.
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