From the 18th to the early 20th centuries, Britain had the best transport infrastructure in the world. Some 1,100 companies laid out over 20,000 miles of tolled roads (‘turnpikes’), giving Britain the best road network in Europe. Some 400 miles of canals, also dug by private companies, linked up Britain’s natural river system to create a national system of freight transport. In the 19th century, private investors built 20,000 miles of railways, again the world’s foremost system. In the 1860s, London acquired by far the world’s first underground railway system, whose brand name, the ‘Metropolitan’, became the very name of ‘metro’ systems in most of the world’s languages. Around the turn of the 20th century, local councils laid out a superb system of trams.
Britain was also a leader for energy infrastructure. Until the 1920s, Britain produced more energy per person than any other country. Until the 1960s, it produced more than any other country except the United States. As late as the 1960s, Britain’s approach to energy was pathbreaking: Britain built the world’s first nuclear power station and, in 1965, we had more nuclear power stations than the rest of the world combined. These achievements played a great role in Britain’s early industrialisation, by which the British people became the first in the world to escape from poverty.
One of the things that made this possible was Britain’s swift and vigorous regulatory regime. Infrastructure promoters approached Parliament with their proposals, which were rapidly processed by a special committee. If they were approved, the promoters received the powers they needed – typically compulsory purchase – to deliver the project. The regime seems to have been remarkably swift and inexpensive, far surpassing the comparable systems on the Continent.
Today, Britain has lost this leadership, and now trails its international comparators. Even before Russia’s invasion of Ukraine, electricity prices in Britain were twice those in France and thrice those in the United States. Less than a fifth of British cities with populations of over 200,000 have tram, light rail or metro systems, compared to four fifths in France and even more in Germany. These failures have sapped productivity and contributed to the deindustrialisation of Britain, especially in the North.
One of the main causes of this is the complexity, risk, delay and expense of the infrastructure planning system, contrasting sharply with the swiftness and agility of the Georgian and Victorian arrangements. The most spectacular cases of this are well known. Plans for the Lower Thames Crossing have been in preparation since the late 2000s, and the current application was submitted four years ago. It is still under consideration, and the decision date has recently been pushed back to 2025. The total cost is approaching £300 million, more than it cost the Norwegians to actually build the longest underwater tunnel on earth. The application for the Portishead Branch Line currently comes to 79,187 pages. If printed and laid out end-to-end, that is four-and-a-half times longer than the Portishead Branch Line would be. It took three years for the Government to approve this application, after which it proceeded to pull the line’s funding.
These are only the most extreme examples of a more general problem. And the general problem is getting worse. While 20% of Nationally Significant Infrastructure Projects (NSIPs) were delayed between 2012 and 2016, 43% were delayed between 2017 and 2022. The average process took 17 months in 2012 and 22 months by 2020. The average number of documents required in an application has been increasing, from 381 in 2012 to 1,143 in 2020. Judicial reviews have been becoming more common, and they are increasingly likely to be successful. Before 2020, NSIP decisions were judicially reviewed 16 times, and only one challenge was successful. Since 2021, there have been seven legal challenges, of which four succeeded. So far, Labour do not seem to have speeded up the process: in fact, Britain Remade recently found that the rate at which decisions are delayed has slightly risen since the General Election.
In a paper published today by the Centre for Policy Studies, we have outlined how the Government could unblock this system. Many of the changes could be made without primary legislation and in some cases with surprisingly little controversy. For example, the standard kind of consent order for energy infrastructure (called a development consent order, or DCO) often includes rules on maximum capacity outputs. This means that the DCO not only prescribes where the infrastructure should be, how much space it may use, and so on, but also the maximum quantity of power that it may produce. This has some bizarre effects. Suppose that a wind farm could be made more efficient through installing better modern turbines, and suppose that this improvement had no environmental effects. The DCO under which the wind farm had been built would still block this from happening, and the farm would have to go through a new process to get permission, with much cost and delay. This is clearly a perverse result: the Government should simply amend the relevant National Policy Statement to ensure that DCOs allow for increases in capacity if it can be certified that there will be no negative environmental impacts.
Other changes are more complex. Many commentators have noticed the increasing number of judicial reviews, whereby the Government is challenged for the lawfulness of its decision-making. This is not because the Civil Service has taken an increasingly cowboy approach to due process. It arises partly from a proliferation of vague, poorly defined statutory duties, which make it difficult for the Government to tick every procedural box even when it sedulously tries to do so. Two conspicuous examples of this are consultation and legitimate expectations requirements, both of which have been established through bodies of complicated and dubiously consistent case law. In its forthcoming Planning and Infrastructure Bill, the Government should include provisions clarifying these. It should also establish an official body that can certify that they have been discharged, such as exists in France.
It is an ancient principle of English civil law that the wrongful party pays the legal costs of the wronged one. One of the reasons for the rise in judicial reviews is that this principle has been heavily curtailed in recent years by new interpretations of the Aarhus Convention. This means that if an infrastructure promoter is vexatiously sued, it has to bear nearly all of its own legal costs for defending itself. The upshot of this is that anti-development groups have almost no incentive not to throw in some legal challenges, even if they know they will almost certainly lose: it costs them little and generates huge cost and delay for the promoters. This situation is unjust and massively expensive, and the Government should legislate to reform it. This will probably not require leaving the Convention, although if it does, we should do so.
The British people tend to experience high infrastructure costs as rather like the weather, arising mysteriously from forces beyond our control. This is mistaken. Until the late twentieth century, Britain’s infrastructure costs were not notably worse than those of its peers. Some of the regulatory problems that have driven them up can be fixed by the Government at will, and others can be added to legislation that the Government will be passing anyway. Labour have been elected with a huge majority on a pro-building mandate. These are some of the lowest hanging fruit they can pick.
You can read the full report, ‘Accelerating Infrastructure: How to get Britain building more, faster’, here.
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