Royal Commission on Environmental Pollution

Please find enclosed some papers, which 1 hope are helpful to the Commission in its study of environmental planning.

The Council for National Parks is the national charity that works to protect and enhance the National Parks of England and Wales and areas that merit National Park status, and promote understanding and quiet enjoyment of them for the benefit of all.

Please do get in touch if you would like any more information on any of the enclosed.

5 August 1999

Dear Ms Aitken

CONSULTATION PAPER ON STREAMLINING THE PROCESSING OF MAJOR PROJECTS THROUGH THE PLANNING SYSTEM

The Council for National Parks (CNP) welcomes the opportunity to respond to this consultation paper. CNP is the national charity that works to protect and enhance the National Parks of England and Wales, and areas that merit National Park status, and promote understanding and quiet enjoyment of them for the benefit of all. CNP is grateful to the Department for allowing these comments to be submitted a few days after the consultation deadline.

CNP monitors all planning applications submitted in National Parks (about 6,000 per year) and, also those submitted outside the Parks that are judged to have a significant effect on the special qualities or statutory purposes of the Park. CNP comments on and becomes involved in planning applications that are judged to be nationally significant or those that could create a precedent The above consultation paper is therefore of some interest to CNP and to National Parks.

General comments

The objective of the paper - to reduce the timespan of some major public inquiries - is worthy of support. However, it is essential to ensure that any alterations to procedures for the processing of major projects through the planning system does not mean that opportunities for people to voice an opinion, to test the evidence and to reach a sound decision are compromised. Public participation and involvement are a crucial part of the decision-making process for major projects. The land-use planning system is founded on the principle of regulating the use and development of land in the public interest. The public has an equally legitimate interest in all proposals - major or less major - that affect them.

Specific comments

Para 7 - Criteria

It would be helpful if the Department could give some clearer criteria as to what constitutes a 'major project of national significance'. In para 8, the paper gives the "key" test: "implications of more than regional significance". Thus the test is impact driven. That would not have caught, say, the proposed major developments by the Ministry of Defence at the Otterburn Training Area (OTA) in the Northumberland National Park, which have only local impacts (nor, indeed, arguably, the NIREX project at Sellafield). CNP believes that the test should also catch projects where: (1) there will only ever be one (or very few) of this development nationally, (2) it would have a significant local impact wherever built, (3) however, that impact will not be the same at all possible alternative locations. That would catch major developments such as those at the OTA/NIREX etc. It would mean proper consideration of alternatives rather than the way done at the OTA Public Inquiry.

Para 14 - "normal" planning processes

An important consideration is that "normal" planning processes are daunting enough for local people who are unfamiliar with dealing with the planning system. However, they are a great deal more accessible than "special" processes, such as the Transport and Works Act 1992 or a Harbour Revision Order. CNP suggests that where appropriate, major proposals are considered within "normal" planning processes. This is for two reasons:

• The public is likely to have greater experience and knowledge of "normal" planning processes therefore facilitating greater and more meaningful public involvement in the decision-making process and arguably higher quality decisions;
• A "normal" planning process is also likely to be more familiar to planning authorities and officials therefore making the decision-making process more likely. to be speedy.

CNP supports the idea that national policy should be clear before major projects are considered within the planning system. Absence of specific national policy or the lack of clear, unambiguous policy is in CNP's view a main culprit of lengthy major public inquires. The Government is right therefore to strive to develop a comprehensive and modem national policy framework. However, CNP does not believe that this requires the time consuming evolution and development of a new tier of planning policy: the proposed national policy statements. The fault lies in the existing national policy framework of PPGs, in which there are notable gaps for several key areas in which further major proposals are expected (ports, airports and radioactive waste management spring immediately to mind). CNP believes that the Government should invest in ensuring that this existing national policy framework of planning policy guidance notes is up to date and comprehensive in its coverage. This would have the significant advantage of being an existing system that has in-built public consultation.

It is important to remember that there will be some instances where a public inquiry into a site specific proposal will provide a vital and transparent way of informing the development of a national planning policy framework. It is quite right that such issues should be properly debated if no consultation has taken place prior to their consideration at an inquiry. It can be very difficult to draw a clear line between national policy and site specific issues (as the consultation paper recognises in Annex B, para 12) and any attempts to stifle public debate and involvement would prejudice public participation in decision-making.

Paras 17/18 - statements of national policies

CNP is very concerned about the notion of issues being "settled" by national statements (such that there is no discussion at a public inquiry). This could have led to, for example, overseas training being ruled out prior to the OTA inquiry. The extent of the fear depends upon how one reads the first sentence of para 18: "public consultation on the issues to be covered". If that means only consultation on the range of matters (rather than the substance of those matters), then that is worrying. If, however, the consultation would be on the substance as well, then that is acceptable. Thus, a national consultation on military training generally followed by a site specific inquiry would be acceptable (although even that is slightly risky because the wider policy questions would be decided without any information on the actual impact of alternatives.

Para 19 - Parliamentary processes

CNP is very concerned about the proposed greater use of Parliamentary processes, as this would bypass the public involvement and participation purposes for which inquiries cater. Removing decisions on major projects from a public and transparent arena to the more closed sphere of Parliamentary processes would in CNP's view be a retrograde step in the Governments desire to modernise the planning system. Parliamentary debates are unlikely to deliver the necessary .expertise and discussion to be found at a public inquiry and CNP has serious doubts as to the appropriateness of such a proposal for major inquiries. Such a move would also seem to be at odds with the Government's desire to encourage community involvement in decision making.

Para 26 - improving public inquiry procedures

CNP welcomes the Government's recognition that public inquiries can help to ensure that decision-making is open and fair and seen to be so.

Para 30 - timetables

For inquiries into major projects the establishment of a timetable for inquiry proceedings by the Secretary of State in consultation with the parties at the pre-inquiry meeting is to be welcomed. CNP believes that it should be made clear that there will be exceptional circumstances where cross-examination yields new or substantially flawed evidence and where it would be essential to the decision-making process for the timetable to be amended accordingly.

Para 32 - the form of the inquiry

CNP notes that the Government is questioning whether it "may be more constructive to adopt, in whole or in part, more informal and less adversarial approaches to considering the issues so that the process is more in the nature of a dialogue than a confrontation".

Para 33

The consultation suggests an option whereby the Secretary of State specifies that different issues in a particular case might be handled in different ways, for example by written representations, an inquiry or by a Panel of Inspectors. This would seem to be a cumbersome method that could result in unnecessary administrative complexities.

Para 34 - round table sessions

CNP believes that the suggestion of using round table sessions to explore areas where early joint agreement could be sought merits further examination. This is a good example of a way to reduce the length of time of inquiries without adversely affecting public participation.

Para 38 - an independent body

CNP believes that the independent body that the Department is suggesting already exists in the Planning Inspectorate. The Inspectorate is independent and widely respected and has the qualifications and experience required to oversee and manage major inquiries and its services should continue to be called upon, through the help of mediators and other constructive devices that may be introduced.

Para 41 - tackling the volume of paper

CNP agrees with the statement that "the sheer quantity of paper submitted to a major inquiry puts a burden on all concerned". For example, in the Otterburn public inquiry, well over a million pieces of paper were submitted to the Inspector. The Internet is a good way to reduce paper usage and volume but care must be taken to ensure that this is not at the expense of public access, as most people do not have or cannot afford access to the Internet.

Para 42 - reducing reading of proofs

CNP supports the suggestion that the Inspector should determine whether evidence should be read out loud and that the presumption would normally be against doing so.

In view of CNP's experience of major inquiries, we suggest that explicit guidance could be provided to Inspectors to discourage witnesses expanding summary reading into several hours' worth of inquiry time. It should therefore be left to the Inspector's discretion as to whether or not this would be helpful to the inquiry process overall.

Para 43 - limiting cross-examination

CNP would support a move towards cross-examining law lawyers acting for the Inspector rather than for the parties as this would help eliminate time-consuming adversarial conflict in favour of an inquisitorial approach. However, it would also still allow for a rigorous questioning of the witnesses - if the Inspector sees a need for it.

While it is true that "cross-examination can also take up a substantial proportion of inquiry time" it is also true that it is a vital tool in challenging evidence and in testing the robustness of inquiry arguments. Based on CNP's experience during two recent public inquiries, CNP recommends that the Department issues Inspectors with guidance indicating the type of circumstance that might justify cross-examination by a third party. For example, these might include:

• A particular local knowledge or expertise in an area of relevance to the inquiry (e.g. a local naturalist with intimate and unique knowledge of how a breeding bird population might be affected by a particular development).
• Where a third party has a substantial interest in the specified area (e.g. at the Spaunton Quarry public inquiry CNP viewed this case as a major test of National Park mineral planning policy and held a different view to that of the LPA). Without the opportunity to test the applicants case under cross-examination by a third party, the case would have remained largely unchallenged and the Secretary of State would have called-in an application without providing third parties with an opportunity to test the applicant's arguments.
• Where the area to be affected is of national importance (e.g. at the Otterburn public inquiry involving the Ministry of Defence a large part of the Northumberland National Park would have been adversely affected).

However, a "counsel to the inquiry" cannot replace cross examination by parties for all cases. Sometimes, only cross examination backed up with thorough research can make progress on these things.

From a natural justice point of view, where a major application generates substantial controversy (i.e. many local people expressing concern about a particular development) then they ought to have a voice at the inquiry table. In these instances inquiry guidance should make it clear that joint cases should be presented to ensure that the same considerations are not duplicated.

Paras 49, 50, 51 - major participants

CNP does not support the concept of introducing 'major participants', as this is potentially divisive and could prevent access on the basis of arbitrary criteria. To an extent "major participants" are defined when the Secretary of State decides who is required to submit a statement of case under rule 6(6) of the Town and Country Planning (inquiries Procedure) Rules 1992.

Annex A - the need for change

The consultation paper does not provide any information on how the inquiries went for the 10 projects that have been agreed to be national in scale in the last ten years. Such information would seem to be a pre-requisite when looking at how such inquiries could be improved in the future.

Annex B, para 12 - the Planning Inquiry Commission

Reviving the Planning Inquiry Commission is an option that merits close consideration. While it is true that it is difficult to distinguish between site-specific issues and issues of general policy, it is also true that there would be benefit in these being looked at by an independent body because of the inextricable linkages between the two. For example, the Otterburn public inquiry into military training in the Northumberland National Park would have benefited greatly if this had been preceded by an independent strategic analysis of military training. Similarly the application into the dismantling of Trawsfynydd nuclear power station in the Snowdonia National Park would benefit if this were to be preceded by an independent inquiry into national policy on decommissioning of nuclear power stations. CNP urges the Department to look again at the potential merits of this option.

CNP hopes that these comments are helpful. Please do get in touch if you would like clarification of any of the above or any further information

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