I have just got back from giving evidence on behalf of the Law Society about the energy National Policy Statements to this Commons Select Committee. We were invited to make a submission and give oral evidence as the committee wanted to hear from planning lawyers.
The Select Committee was very concerned about the risk of judicial review of the NPSs and about what we had said about democratic deficit. I suppose with hindsight that telling Parliamentarians in our evidence that the system they have enacted contains a democratic deficit was always going to ruffle a few feathers, but the Committee accepted the point that the IPC has minimal democratic accountability. An important test of a system which deals with disputes, such as courts and the planning system, is whether the loser comes away content with the decision. Maybe they are reluctantly content, but do they accept it? The danger with this system it seems to me is that people may not accept the decisions, especially where we have been used to such decisions being taken after a full hearing and where the IPC has to follow the NPS, itself decided at very high level. This is a particular issue where the NPS specifies the locations. We don't really want a rerun of the Twyford Down, Newbury Bypass and Batheaston Bypass protests, with activists dug into tunnels and living up trees. The Select Committee seemed to follow that point well. The issue for them, I said, is that they are the body which provides the maximum amount of democratic input and so they have a major and serious task, weighing the evidence.
As is well known, the IPC is to take its decisions in accordance with the NPS unless adverse effects outweigh the advantages. With a site specific NPS, one is bound to ask whether the IPC is really going to come to a decision to refuse on that ground, especially one which says we need 10 sites and only puts forward 10. Again the Select Committee took that point on board.
There is another interesting issue in the energy NPSs, is that they say their policies are to apply to developments which go through the conventional planning system. Whilst it must be right that they are material, and for example planning applications for roads which access a nationally significant infrastructure project should be decided having regard to the NPS there is a greater implication. An application for 49MW wind farm in an area opposed to wind farms must be considered against the Government's up-to-date policy in the NPS. We'd written that the local planning policies are "trumped". I was called to justify that (possibly emotive) word and was asked whether the DCLG Chief Planner's letter to all local authorities of 9th November 2009 contradicted our assertion. Quite the contrary - it makes the very same point. Paragraphs 15 and 16 require LPAs to update their plans to take account of NPSs, and says that if they do not the NPSs will be a material consideration in decisions of the Secretary of State on appeal or call-in.
Finally - the possibility of Judicial Review concerned the Select Committee. It's not possible to rule it out and these are controversial matters which tend to attract JR. We discussed the problem explained in my earlier post - Nuclear NPS - Is there a Problem? . One member asked whether the Government could deal with the problem by going back to reconsult now. Good point really, and unpalatable though it sounds, it strikes me as being better than waiting for a JR which on the rules in the Act cannot be commenced until the NPS is adopted and published.
I am grateful to the Select Committee for the chance to put these views and for listening to them with care and courtesy. I have to say it is a privilege to participate in the democratic process in this way.
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