Author: Lewis Townsend

The Planning & Infrastructure Bill is expected to be published next week. So what might be in it?

First up are changes to the Nationally Significant Infrastructure Projects (NSIP) process, first brought in under the Brown Labour government (with slight changes under the Coalition).

• A requirement to update National Policy Statements (NPSs) every five years with a streamlined process (disapplying parliamentary scrutiny requirements) to amend NPSs for smaller changes outside these reviews
• Simpler consultation process with statutory consultees required to try and resolve differences
  Power for Secretary of State to be able to switch proposals from the national NSIP process to other planning processes (town and country planning and Transport Works Act)
• The power for Secretary of State to be able to vary NSIP process for some proposals

The NSIP process is getting slower so looking at this is understandable. Responsibility really lies with central government given they own this system – ministers are still struggling to make their decisions on infrastructure – eg see just this week with another delayed decision after the proposal is passed from the Planning Inspectorate to a government department.

The Bill could give wide powers to Ministers to vary NSIP process for particular types of schemes or even specific ones. It’s important these powers have safeguards so they don’t override genuine issues about development or allow Ministers to favour individual projects for short-term political reasons.

Reviewing NPSs more frequently is sensible. But NPSs also need to take account of the UK’s legal commitment to the 2050 net zero target and the advice from the Climate Change Committee on how to meet carbon budgets, particularly as these really ratchet down on emissions into the 2030s.

Also worth looking at how NPSs link up better with spatial planning, eg SSEP. Going forward, they’ll also need to take account of the Land Use Framework being developed by govt (ideally backed by a national spatial plan to ensure nature, climate, economic and housing objectives are integrated).

The next main area are the pretty loose ideas of allowing developers to opt out of on-site obligations to protect nature by paying into a Nature Restoration Fund:

• Developers’ obligations under nature protection laws would be changed so that, rather than on-site mitigation of impacts, they could pay into a national Nature Restoration Fund
• The nature restoration fund would pay for action “at a strategic level” to compensate for the impacts of development and would pay for actions in a Delivery Plan
• The Bill is likely to give the Secretary of State powers to nominate a Delivery Body to produce the Delivery Plan and deliver the actions in it. The Delivery Plan would be set at the largest spatial scale appropriate to the issues it is addressing
• The government working paper on development and restoration promised to retain biodiversity net gain duties on developers, but there has been rumours that this could also be changed

The MHCLG working paper on this was pretty vague on how this might work so the Bill is likely to be powers for Ministers to set this up later through secondary legislation.

If the Bill does not limit what kinds of places or affected species are covered by payments to the Nature Restoration Fund it could upend the whole “mitigation hierarchy” approach we currently have to protect nature.

It’s important that safeguards are set out in the Bill itself as primary legislation and Ministers aren’t given carte blanche to set up this new approach through secondary legislation that is not subject to full parliamentary scrutiny.

The spending review threatens Defra ELMS funding and other nature funding. It’s vital that if the new Nature Restoration Fund is set up, its funding is guaranteed to be additional rather than replacing other government funds (for instance something similar to the “additionality” requirements on National Lottery funding).

Next area are changes to reduce the role of planning committees of councillors (who already only decide on 3% of applications).

The Bill is likely to set out a national scheme of delegation setting out which planning applications would be allowed to go to planning committees of councillors and which should be dealt with just by officers.

• This could either by giving the minister the power to set out a scheme of delegation through regulations (secondary legislation) or, less likely, set out on the face on the Bill
• The working paper from MHCLG set out three options for this scheme of delegation – one where only planning applications not complying with the local plan could go to a planning committee; one where it would only go to planning committee if officers recommended it for approval and it was a departure from the local plan (or was a council led development); and one where only those developments that met a nationally set list of criteria would be allowed to go to councillors
• The Bill would also mandate training for councillors on planning committees and rules on dedicated strategic planning committees for the most significant developments

These changes will also take place at the same time as local government reorganisation. This means that many areas will lose local district councils (responsible for planning) to be replaced by unitary county councils. The change risks making the planning system more distant and more opaque than it already is (clunky pdfs on the planning portal don’t help).

Any organisation will refer up decisions on the most controversial and significant issues affecting them. It would be strange if councils lose democratic accountability on important planning decisions, potentially damaging trust and confidence in how decisions are made.

Finally, the Bill is also likely to include stronger compulsory purchase powers (which should help with new towns), requirement for visions in local plans (which is nice), brownfield passports (sort of thing think tanks push but no-one really knows what it means…), changes to the process for schemes under the Transport and Works Act framework and implementing bill reductions and community payments for those affected by new pylons.

Looking at the Government’s planning reform in the round, there is the kernal of a new more effective planning system emerging in the medium-term (mostly outside this Bill) with digital tools, better data, a return to a strategic planning level and new towns (if given old school real powers rather than Thames Gateway-style mess). But in the short-term the Planning & Infrastructure Bills risks letting developers off the hook on responsibility for the impacts of their development, and could continue the trend towards car dependent developments on a few fields next to or close to existing development.