Plan of battle

New planning legislation had rarely been considered since the original 1947 Planning Act, until New Labour introduced two highly controversial pieces of legislation. The 2004 act is still undergoing teething troubles in its implementation, and the current planning bill has encountered opposition from a wide range of interest groups and professional bodies.

It was inevitable, in the light of the Barker and the Eddington reports, that the government would feel compelled to clear what it described as blockages in the planning system. These blockages, it was said, were inhibiting the delivery of the vital infrastructure that Britain would require to maintain its economic competitiveness in a fast developing world.

A primary concern was the need to secure stable power generation amid increasing turmoil in areas that supply our energy. Additionally, the building of infrastructure, such as airports and motorways, which can give rise to opposition from those living near them, was identified as essential to improving long-term economic growth.

And yet the Planning Bill was always going to have a rocky road. It is seeking to arrive at speedier decisions at the level of the specific project by establishing an Infrastructure Planning Commission (IPC) to deal with the broad spectrum of consents and authorisations that are needed to deliver major projects. To that extent, the project authorisations will be “de-politicised”. It is therefore not surprising that difficulties have arisen in the House of Commons, prompted by concerns among lobby groups such as Friends of the Earth, that local communities will have less chance of influencing the consenting processes through the IPC.

That may be part of the government's intention, as this is one of the key sources of delay in delivering infrastructure. That said, the government intends to balance “public accountability” with the creation of effective consenting procedures.

It is not only lobby groups that have expressed concerns. Several legal experts and judges also fear that the IPC process is likely to result in a dramatic increase in court challenges based on breaches of human rights and environmental legislation, at European as well as at local level. Lord Nolan, in the 2001 Alconbury case, stated that ”to substitute for the secretary of state an independent and impartial body (the IPC) with no central electoral accountability would not only be a recipe for chaos: it would be profoundly undemocratic”.

This government will have its courage and resolve tested to the limit by the planning bill

In addition to the IPC, the bill proposes a community infrastructure levy on developments to finance infrastructure. This would raise money from developers to pay for facilities needed as a consequence of development, such as schools and hospitals.

The levy is modelled most closely on the Milton Keynes infrastructure tariff, whereby developers pay a flat-rate sum based on the number of homes or amount of floor space they want to develop.

Eversheds negotiated one of the first schemes to which this tax applied, and although the tariff appears to be working in Milton Keynes and the cost certainty that this type of arrangement provides is largely welcomed in the development industry, the prevailing circumstances in there may not be applicable elsewhere.

The tariff was introduced into clearly defined expansion areas made up of predominantly greenfield land, owned by a relatively small number of landowners. Land values and development costs were relatively consistent and, with the development proposed being a large-scale urban expansion, the infrastructure needed was also relatively easy to identify and cost. The presence of a delivery vehicle that developers trust and that has the ability to forward-fund certain pieces of infrastructure is also crucial.

This government, facing the political challenges it does, will have its courage and resolve tested to the limit by the Planning Bill, tainted as it is by accusations of a democratic deficit.

However, the desperate underlying need to unlock the infrastructure demands of the whole community remains fundamental to our competitiveness and maintaining our way of life. To put it simply, doing nothing is not an option.