Opinion: Planning bill

"The planning bill is undemocratic, marginalises community voices and does nothing to tackle climate change".

The planning bill has reached a critical stage in its progress into law and so far the government has not been willing to compromise on its contents. But in trying to speed up our creaking planning system, the government appears to have thrown out the baby with the bathwater. The planning bill is undemocratic, marginalises community voices and does nothing to tackle climate change.

The climate change amendment vote in the report stage debate was lost by a very small margin. This is not a complicated argument - we simply must start thinking about climate change when building major infrastructure projects. For some the argument is even clearer – we need to stop building carbon-intensive developments such as roads, airports and inefficient coal-fired power stations, and start building more renewable energy schemes and improving our rail infrastructure.

The majority of the planning bill is focused on creating a new, faster system for the approval of major infrastructure such as roads, rail, waste and energy. But people’s right to a democratic say in major planning projects, and the biggest challenge we all face – climate change – seem to have got lost along the way.

Considering climate change will not slow down the system. So why has the government done it? The answer is that ministers believe promoting economic growth means giving a free run to developers. The Infrastructure Planning Commission proposed under the bill could approve projects without the well-deserved political backlash that would happen if the secretary of state were still making those decisions.

Friends of the Earth believe that decision-making around major infrastructure projects should be made more efficient - but not at the expense of proper scrutiny, accountability and public engagement. The current proposals risk undermining public confidence in the system, with a knock-on effect of more delay and uncertainty. This is not political point-scoring, but a profoundly constitutional issue.

Under the existing system major infrastructure is dealt with by a number of consent regimes. In planning it is governed by the 2005 major infrastructure inquiry rules, which allow anyone registered as a major participant to attend a public hearing, give evidence and call and cross-examine witnesses. There are other important rights for people affected by compulsory purchase orders, or where highways are involved. Decisions are ultimately taken by an elected secretary of state.

The new system removes these rights and safeguards. The presumption is that the new Infrastructure Planning Commission will work through written representations and not public hearings. Unelected, unaccountable commissioners will decide whether anyone can cross examine, which witnesses are heard, and whether there will be a public hearing for each planning decision. The public retains only one right – to attend an open floor session - where they cannot ask questions or cross examine.

Government has made much of the need to remove cross examination from the process by focusing on its shortcomings, but it is an indispensible way of testing expert evidence. What the promoters of the bill appear to overlook is that 'expert' testimony is often, in practice, simply an advocacy statement on behalf of one side or another. Only by giving people the chance to question can the public test whether it stands up to scrutiny – and in relation to hazardous waste or a nuclear power station, this expert testimony will be far from trivial.

The new system raises profound legal issues, particularly in relation to compulsory purchase orders and the Human Rights Act. The Infrastructure Planning Commission’s unprecedented powers over wide-ranging legislation, and the complete lack of any democratic accountability, add a new dimension to these questions. How can the Commission’s decisions be accepted as legitimate when voters cannot hold them to account?

All planning decisions are ultimately political. They are, in the end, value judgments. The public accepts these judgments when made by democratically elected politicians, but not when they are made arbitrarily by 'experts'.

Government has argued that the Commission will have to report to parliament, but this only provides a check on the IPC’s overall operation - it does nothing to secure the accountability of individual decisions. Government has also countered that the new duty on developers to organise public consultations for their applications provides important new opportunities for public engagement.

This is where the bill needs an important reality check. Of course early public engagement is vital, but who would have confidence in a process run by the developer, who can hardly be considered impartial? Local authorities or the Commission itself should be charged with organising consultation in a way which is fair and transparent. Without this we are likely to see more direct action on the scale of the 1980s road building programme, or a plethora of schemes taken to judicial review - as the only ways for the public to fight back against controversial planning decisions.

We hope the government will reflect on these issues before the bill passes into law. The planning process is a vital part of our national life - it should be fully accountable and accessible to those who will be most affected by it.

Hugh Ellis is planning campaigner for Friends of the Earth

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