Planning Bill in Lords: a moment of truth for Labour

Labour’s controversial Planning Bill, which is aimed at speeding up the planning process for big projects such as airports and nuclear power stations, is likely to transform the role of lawyers in the planning process.

The bill, which could still be picked apart by the House of Lords, has met with a mixed response from UK planning lawyers.

Under the terms of the bill, which was drawn up to introduce a new system for the evaluation of major infrastructure projects, planning decisions will be taken by a new non-elected Infrastructure Planning Commission (IPC) and will be based on national policy statements drawn up in advance by the Secretary of State – a process that has sparked concerns among some lawyers.

Barrister Richard Harwood of 39 Essex Street told The Lawyer: “The legal concern is how hearings will be conducted. Will promoters and objectors be able to present their case orally?

“You need to hear experts live and they need to be questioned thoroughly on their evidence. The fact that there are severe restrictions on the ability to cross-­examine is a concern.”

Lovells head of planning Mike Gallimore also sees the proposed decision-making process as far from ideal.

“It’s clear that the Government has had the desire to curtail debate and shut legal representation out of the inquiry process,” he said.

For Robbie Owen, head of planning at Bircham Dyson Bell, the bill offers the prospect of more work for lawyers, although he believes that the role for ­barristers would change as a result of the new legislation.

“Clearly there will be a ­different role for barristers – less inquiry-type work,” he said. “There will still be a valuable role on the overall strategy ;for ;planning ­barristers and solicitors. The prospects for lawyers are looking encouraging – a lot of promoters will be needing guidance through the new scheme.”

The ;Government ­succeeded in quashing a backbench rebellion on the House of Commons’ third reading of the bill at the end of June, passing it by a ­margin of 43 votes via ­concessions to hostile MPs.

That said, Harwood feels the bill might falter in its ­second reading in the House of Lords, which is scheduled for next Tuesday (15 July).
“There isn’t a Government majority in the Lords,” he said. “The approach of peers to party lines is more relaxed [than in the Commons]. The Government will have a testing time.”

While the bill would allow major projects to pass the planning stage at greater speed, Friends of the Earth (FoE) legal adviser Phil Michaels said this could have a detrimental effect on environmental considerations.

“There’s still a huge amount to play for,” he insisted. “The Government’s tried to make some concessions, but it’s basically papering over the cracks. In particular [there are still] big issues over the lack of democratic accountability and climate change.”

FoE supported amendments to the bill that would have ensured national policy statements and that the IPC would take climate change into consideration when ­ruling ;on ;new ;airport ­runways or power plants.

But Michaels claimed that the Government rejected these ;amendments ;on ­“spurious grounds”, adding: “There’s a lack of join-up here between a government that’s setting long-term ­carbon budgets under the Climate [Change] Bill and setting up major infrastructure projects under the ­Planning Bill. It’s a failure of vision and leadership.”

Proponents of the bill argue that reducing the right of stakeholders to be
heard will stop projects of national significance being stonewalled on the grounds of nimbyism, while also avoiding the attendant costs.

However, Harwood said this is rarely an issue, adding: “The process at the moment can run quickly – complaints have been around Terminal 5 and Sizewell. That’s just two projects in 20 years on which there was no clear government policy on the matter.”

Gallimore at Lovells said that, with a “pre-inquiry process, an inspector being willing to intervene and the right to cross-examination”, such ;problems ;could be avoided.