For too long it has been too hard to build in Britain. We’ve got the fewest homes per capita of any large Western European country, HS2 is the most expensive railway in the world and Hinkley Point C will be the most expensive nuclear power plant ever constructed. We’re starting to see the consequences of this failure to build. Our homes are the smallest, oldest and most expensive in Western Europe. Our transport system suffers from bottlenecks and delays, with far fewer cities having mass transit than other countries, and our energy prices are some of the highest in the world. All of this is making Britons poorer.
The Labour Government has rightly seen the disastrous effects of our failure to build and was elected with a large mandate to fix these problems. Yesterday, Labour published their new Planning and Infrastructure Bill, which hopes to get Britain building again. The Bill will speed up building and reduce uncertainty over planning permission, which is welcome news. But it should be seen as an evolutionary, not revolutionary change. The Bill tweaks our current system for the better, but does not do the wholesale change that would fully unleash the building Britain desperately needs.
Take their plans for nature restoration funds. This is an improvement over the current system of site by site mitigations that have forced insane outcomes like the £121m HS2 bat tunnel to protect about 300 bats, or Hinkley Point C’s fish disco that uses 288 speakers to deter fish from swimming into coolant intakes. Just a fraction of the money spent on these interventions would do a lot more for nature and protected species if put into a fund that could restore habitats across the country. At least, that’s the view of the founder of the Bat Conservation and Research Unit, Dan Whitby, who told the i: ‘If I had even a tenth [of the £100m bat tunnel] I would spend it on conservation work that’s 100 times more valuable.’
The new Bill makes progress on this by bringing in Environmental Delivery Plans (EDP), which would allow strategic compensation for environmental impacts. But the issue is that the Habitats Regulations that led to the bat tunnel still apply, and if the EDP can’t positively demonstrate an overall improvement for impacted species, then it won’t be enough and we’re back to square one. Likewise, only features covered by EDPs are exempt from Habs Regs, which means a developer could pay into a strategic pot for one area like water impact but still have to comply with the Habs Regs on another area with the costly site by site mitigations, adding another level of paperwork.
A better solution would be an additional power for the Secretary of State to be able to disapply the Habitats Regulations in cases where they are convinced that following them would require extremely poor value for money mitigations – like the bat tunnels and fish discos. In return, the developer would make strategic compensation through the nature restoration fund. That’s the only way the Government can fully deliver on its rhetoric of ending the absurd bat tunnels and fish discos.
Another example of step-by-step improvements without the ultimately necessary overhaul relates to legal challenges.
Increasingly, large infrastructure projects can go through the planning system and get approval from a minister only to face a legal challenge at the end by campaigners. There were eight judicial reviews brought from 2010-2014. In the last five years, this swelled to 23 affecting infrastructure projects, which adds delays, cost and uncertainty.
Right now, legal challengers get three attempts at overturning the approval of an infrastructure project. Each of these stages extends the duration of a judicial review claim by several weeks minimum and several months in some cases. Taken together, the ‘three bites of the cherry’ can easily mean a year-long delay. All this delay adds extra costs to key infrastructure projects. National Highways estimates that these legal challenges cost between £66–£121 million per road project in extra legal fees and delays.
The Bill will reduce the three bites of the cherry to one, based on the recommendations in the Banner Review. This will speed up the response to legal challenges, saving time and money. Unfortunately, it won’t solve two underlying issues: the amount of defensive paperwork created to fend off the legal challenges in the first place, and the cost caps that protect serial litigators.
It will still be the case that projects will have to create tens of thousands of pages of environmental impact assessments to ward off the single bite of the cherry. Likewise, environmental judicial reviews will continue to be unlike other legal challenges, because losing litigators are protected in how much of the winner’s legal costs they have to pay by the Aarhus Convention. That means that serial litigants can continue to lose cases and delay projects and only have to pay a very small amount of the winner’s legal costs. The prospect of defensive paperwork and continued legal challenges will still have a chilling effect on major infrastructure projects, unless we start treating these legal challenges like any other judicial review and remove the cost caps that enable serial litigators to avoid paying the full costs of their delaying lawfare.
Among many other clauses, the Bill also makes improvements without total reform of the Transport and Works Act, which authorises local transport projects like trams. The Bill reduces the likelihood of applications going to public inquiry by requiring the objection to be serious enough to merit the delay to the project. It also reduces the number of people who can bring an inquiry to people who would have their property acquired by compulsory purchase. This will speed up the planning system for new trams. However, it still forces local projects to go through national hoops rather than fully devolving the powers to metro mayors to approve projects that they were elected on.
Ultimately, the Planning and Infrastructure Bill will help Britain build more homes, more clean sources of power and more new transport links. But it won’t go all the way to solving the big issues that the Government has rightly highlighted.
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