Examination of Witnesses (Questions 160-179)
MR NEIL SINDEN, MR TONY BURTON, DR HUGH ELLIS AND MR MARK SULLIVAN
TUESDAY 2 JULY 2002
160. Proofs are deemed as read. You have now to lodge them 14 or 21 days before the inquiry, so that is history.
(Mr Sinden) Too often still we have reports from our local activists that much of the time spent at inquiries is taken up by that. There is an issue of making the existing system more fair in terms of the role third parties have to play. We were disappointed, given the headline support that was given to the need to promote effective public engagement in the planning process that accompanied the publication of the Planning Green Paper and its supporting documents, not to see more commitment from the government to promoting a fairer, more balanced public inquiry process to facilitate that public engagement.
(Mr Sullivan) Transport 2000 would stress the difference between the inquiry held into a project promoted by a private developer or in some cases a nationalised industry where the minister did not initiate the scheme and that which is promoted by a minister. The trunk road inquiry, promoted under the Highways Act in England and Wales 1980, is fundamentally unfair because the minister both promotes and decides. That issue is not live now because the government is not building trunk road schemes on any scale, but it could easily come back. While the Town and Country Planning Act, particularly the call-in inquiry, does have the characteristics that Hugh Ellis talked about, I fear that we could easily get back to a situation where the trunk road or motorway inquiry reappears, in which case all the old problems of unfairness would come out again, so it would be good to see that tackled. We have made proposals for that and for bringing that into the town and country planning system.
161. I was going to ask the National Trust because your interest is in properties or estates which are specific and the impact upon your properties or estates rather than the more general interest of the Council for the Protection of Rural England or Transport 2000 or Friends of the Earth. What is your particular response?
(Mr Burton) We are involved in our own development of, in some cases, 600 or 700 houses, so we are part of the process on all sides. The key issue here is the one that people generally will and we will abide by the decision, even if we do not agree with it because of a trust in the quality of the process. The reason there is a trust in the quality of the process is because we do not feel that the rules of the game have already been stitched up. The examples of where you go through a due process and there is a bad taste in the mouth at the end of the process are where people feel the decisions have already been made before they came to the table, whether on major housing allocations, on major infrastructure developments such as road schemes or the dangers of these proposals, of these decisions having already been made. We would come to the table and we would know that the issues we wanted to discuss we had not had the opportunity to discuss in relation to the impact on our properties, properties which in many cases have been declared inalienable for ever. That is an over-arching principle for our land which we hold dear and which these proposals run the risk of cutting across.
162. You have talked about a stitch up, rules of the game, unfairnesses and fairnesses. If there was a government promoted scheme and the government had a very large majority and the minister took the decision, you would not be too happy?
(Mr Burton) I think that puts it well. However strong the promises about the decisions not being whipped, if the government's view is clear then the process is inevitably one that will not command public confidence.
163. What is your assessment of the amendments which the government has recently made to the rules governing procedure at public inquiries into major infrastructure projects? Do you think these amendments will improve the quality of decision making at public inquiries into major infrastructure projects?
(Dr Ellis) I think it is fair to say that we are in two minds. There are some positive proposals focusing on mediation, on the way that expert evidence perhaps can be established before the inquiry starts and a whole series of procedural moves which seem to be eminently sensible. There are reservations. If I could outline three quickly, first of all, this is a strange set of rules. It is part of a package which the government attempts to adopt. One of the things that certainly I felt strongly about reading these rules is that it is almost as if they are written in the expectation that the parliamentary stage may not happen. It is very important in these rules that the decision of Parliament needs to be communicated clearly to the inspector and the inquiry in order to limit debate, which is the critical issue in the Red Book. A decision will essentially constrain a local inquiry's debate. The rules themselves seem very confused about quite how that will happen, creating both the opportunity for the Secretary of State to limit debate and at the same time saying that an inspector has the opportunity to broaden that debate. This seems contradictory and confusing. The one point that Friends of the Earth in particular is concerned about is the limit of the right to cross-examination. Traditionally, obviously, the inspector has wide discretion to constrain or take away evidence which is contradictory or irrelevant and those rules seem to be sensible, but there is a new rule which essentially says that cross-examination can be limited simply to uphold a timetable. That would exclude some of the most important kinds of evidence, particularly in the NIREX disposal case, where unforeseen evidence comes before an inquiry potentially of vital significance to its outcome, highly complex, scientific evidence. We have a grave concern that quality is being sacrificed here to the timetable. The timetable is important but this seems to us to be an overly draconian rule. There is a mixture and a confusion in the new rules, some positive aspects, some certainly not so.
(Mr Sullivan) There are only two concerns about the rules. We are doubtful whether they will work fairly. One is that these rules were not published in draft before they were debated through the House. While I think Sir Iain Glidewell said he had been able to comment on the draft, they certainly did not go out for consultation to organisations beforehand and one regrets, if the Council on Tribunals was involved, they did not consult. The rules are worrying because of the reasons Hugh Ellis gives. The second thing that concerns us is the way in which the Inspectorate has always had a very measured, successful way of handling inquiries. They know that inquiries tend to run on longer than you think. The average inquiry might last one to four days, sometimes eight. I have been at many of them as a planner. It is a pity that the Inspectorate has not stood up to the Minister and said, "We would like to decide how to run them and not be given targets and told to do things faster." I feel there is a risk of quality declining in England from the way the Inspectorate is being told to introduce a lot of rules that some of the inspectors are not that happy with. I have been at inquiries where inspectors almost wish they did not have the new rules in their hands. We would be concerned about some of the benefits of the inquiry system being lost by trying to speed things up and do things to timetables.
164. Can I pass now to matters relating to statements of government policy? As you know, the government has indicated that it will publish statements of national policy in relation to infrastructure planning in advance of the submission of proposals for specific infrastructure projects to Parliament. Can I ask our witnesses what level of detail would you expect to see in these policy statements, because this is clearly fundamental to some of the points that Mr Sullivan has mentioned. In respect of the Channel Tunnel Link, you indicated that before any firm proposals came forward a great deal of preliminary work had been undertaken. Did I understand your evidence correctly?
(Mr Sullivan) The Channel Tunnel Rail Link definitely, yes.
165. What level of detail would you expect to see in these policy statements that the government makes to Parliament?
(Mr Burton) The process of arriving at those national policy statements is one that needs to look at the issues in the round. The level of scrutiny that is given to some of the key questions about need and alternatives is far too weak. We need a more robust, better resourced and more participative process for arriving at that policy statement. We would see Parliament as having a role in that. In order to arrive at those decisions, we would expect to see a range of geographical options being explored as part of the process of arriving at a particular suite of policy proposals. Where we would start to get more worried is where we saw a national policy statement prescribing in precise terms the location on a detailed map of any individual development or infrastructure scheme. We think that would take the process much too far and prejudge the kind of consideration that a more effective, improved inquiry process should have, so a strategic, geographical steer, a better policy process so there is much more confidence in the conclusions of the policy process, but not a detailed prescription of site or location.
(Dr Ellis) I think it is very difficult to find the right boundary to draw. In discussions before this, we were having an open and honest debate about where that boundary could be drawn. My only input on this as a planner is to say that thundering in the opposite direction of this definition problem is the way that we organise the development control stage of these major infrastructure projects and that does help us to some degree define where the boundary is drawn. The moment you draw a site specific boundary, you enter into a rash of environment impact assessment regulations that flow from that site specific boundary. That means that the parliamentary stage could not go that far in prescribing that level of detail. To some degree, that is a negative definition. Where the boundary lies beyond that is extraordinarily difficult to determine precisely.
(Mr Sinden) We would only add the importance of the process of preparing the policy statement involving an effective appraisal of the broader environmental impacts of the schemes or infrastructure proposals under consideration. We would like to see the application of strategic environmental assessment principles to that process, including, for example, the consideration of demand management issues to do with levels of need and how need might be met in alternative ways to the provision of more infrastructure and a full, proper appraisal of not just the environmental but the economic and social impacts of alternative strategic options. That should be set out very clearly and explicitly within the policy statement and should, we believe, also be subject to full public consultation. We have one example of a policy statement of this kind in the circular on prisons that was issued a few years back which was subject to no public consultation whatsoever and, as far as we can tell, no environmental appraisal of the impacts of the strategic planning context for new prisons. We would not want to see a repeat of that process or of that kind of content in a national policy statement.
(Mr Sullivan) The interesting example we have is that the Commons Transport Committee has just completed an examination of the policies underlying the ten year transport plan and come out with examination of whether it is feasible, what faults in its assumptions existed and made quite a serious, critical examination. If one could build on that as an example on an annual or biennial basis in reviewing transport policy, you do have a role for Parliament there. If I can throw in one example taking us away from airports, there is much discussion about the idea of building high speed, new railways in Britain and examination of the policy of that, its benefits, costs and the problems it would bring up might be something that Parliament could look at. That may be more of the sort of thing a departmental committee would commission in any case but I give that as an example of where examining policy would be worthwhile very early on.
166. You say that in the overall consideration at this stage of a major infrastructure project there are matters relating to vibration and noise. You talked about a high speed train; immediately noise and vibration spring to my mind. Do you think these are issues that would be considered and assessed at this stage or at a later stage, at the detailed stage of a public inquiry?
(Mr Sullivan) No. There are certain points of principle in those examples of impacts that would be worthy of examination at policy level before anybody committed themselves to drawing up a project. There is quite a lot of research work done on that subject from abroad. I did a report on this in 1989 for the CPRE based on the then being proposed new railways, some of which are now open, when the Channel Tunnel Rail Link was being prepared. Those sorts of examinations are those where Parliament with development specialist advice could well perform a useful role.
167. If you believe that Parliament is to have a role in examining these policy statements, what is the best mechanism by which it is to be achieved? What sort of timescale should be imposed or is desirable, and if that mechanism is to be the Select Committee, as Mr Sullivan appeared to suggest but certainly it has been suggested by Friends of the Earth, what right of access should the public have to that Select Committee in terms of the presentation of evidence and the right to be heard, and what sort of filter might usefully be imposed to at least try and limit the number of submissions that the Select Committee might hear?
(Dr Ellis) There are perhaps two or three fundamental principles. If we do test this through the Select Committee process there has to be an absolute right to be heard. That right to be heard essentially has to mirror, in order for there to be no withdrawal of civil rights in this process, the rights of the existing public inquiry, which is essentially the right, having duly made one's objection, to appear in front of that committee. The second principle is that currently those civil rights extend to cross-examination. It seems to me quite difficult to see how cross-examination might work in a Select Committee but none the less that is again a fundamental principle.
168. Could I come in here? We are talking about national policy, not the actual detail of an individual who may or may not be affected by this major infrastructure project. We are talking about the examination of national policy statements.
(Dr Ellis) What was in my mind, and this is obviously a crucial distinction, is what the Red Book describes as the kind of decision that would be taken, which includes an element of site specific determination. If we are talking about more general scrutiny then those rights are not established at the moment in general policy making and therefore there are more options, more flexibility, I guess, in terms of how Select Committees might approach that. I certainly think that if we are moving towards, as Tony has suggested, being geographically specific in terms of regions, the rights that local people have to represent their views on what will become fundamentally important policy statements should be there. One comparison is worth making. At present there are wholly inadequate mechanisms for examining regional policy which kind of has a parallel in terms of the scale where it is by examination in public and there is no right to be heard. If we are going to have proper public scrutiny clearly there must be very robust mechanisms for people to access itas robust as possible.
(Mr Burton) This is in our view part of the wider challenge that Parliament faces in engaging with the public, of which this is potentially a very live and useful example of a wider issue of principle which I know the Parliamentary Office of Science and Technology has highlighted and others have highlighted the need to bring together the expert view and the public view, the science and the facts with the values and feelings. Parliament is not well equipped to do that at the moment. Select Committees are not well equipped to do that at the moment. The process would have to be a much better resourced one. Not everyone can physically sit down and speak in front of a committee. That would clearly be impossible at policy level, but you would have to have absolute confidence that the techniques that were being deployed to ensure that as wide as possible a cross-section of views was as effective as possible, and at the moment the convention of Select Committees inviting evidence and if you happen to hear about it and you have a chance to get involved are partial. They only take you some way down that road.
169. What about the CPRE? Clearly you have a very critical role here.
(Mr Sinden) We would echo what has already been said on this. We would emphasise perhaps the importance of resourcing the system effectively. I am not aware from my experience of Select Committees that many of them have had the access to a broad range of expert advice on the issues that they have examined in order for them to play the kind of scrutiny role that I would envisage them playing in relation to national policy statements. That is not to undermine the value of the work that Select Committees do in the inquiries that they undertake on an ad hoc basis, but we are all envisaging here a process that would be much more demanding in terms of the breadth of issues that need to be considered, the depth of consideration of those issues and, as Tony has indicated, the importance not just of gathering scientific and factual evidence and information to enable effective scrutiny of emerging policy statements but also public views, public concerns, public feelings, public attitudes, which bodies like CPRE, Friends of the Earth and other organisations seek to represent in their engagement in the current committee proceedings. I am sure we would be seeking to represent those views and those very significant elements that need to be taken into account in decisions on policy statements in any new procedures that are put in place.
170. Is it not legitimate for the Government to say, "We know that we need a new airport in the West Midlands", which is my part of the world, "and therefore we are recommending that in a policy statement. There will be a new large scale airport in the West Midlands." I am taking that just as an example. Take another point if you wish when you respond. The point I am going to make is that ultimately those kinds of decisions will end up being whipped through the House of Commons because the Government will take the view about what is good in terms of policy development and ultimately will probably whip Members through the Commons. What are your comments on that?
(Mr Burton) We would come back to the initial point about the need for public confidence in the process which arrived at that decision and clear evidence that alternatives are being considered, the need to be identified and that an effective cross-section of people and views has been addressed so that the Government was not just coming out of a vacuum with that view without any clear justification and rationale for it.
171. How do you legitimise the decision though unless you have a vote in the House of Commons?
(Mr Burton) If you are talking at the level of an airport, question mark new one/existing one, capacity, region and all sorts of issues like that, that is not site specific. That is something which would be taken forward in a policy statement, would hopefully be taken forward as Regional Planning Guidance was also being considered so it could be considered alongside other land use impacts, and then would be legitimised when individual proposals were found to be appropriate and fit into that framework. The methods of legitimacy are already there. The Government is doing that without getting parliamentary votes on a whole range of issues.
172. That is an argument that we can talk about for a long time.
(Mr Burton) The problem we face is that too many of those decisions are appearing to come out of an inadequate process and out of a process which we do not feel we have an opportunity to either be party to or indeed engage with and therefore we do not think they are legitimate in the way that they are coming forward at the moment.
173. These are transport matters, so I have got to ask Mr Sullivan to come in.
(Mr Sullivan) I smile because I was in fact at the Regional Planning Guidance for the West Midlands sessions last week and in fact appeared in the discussion on airports, particularly Birmingham Airport. I do not see really in the case of regional airports that it is likely that Parliament would be in a position of either passing an approval or certainly passing a private Bill to create a new airport. One would need an enormous number of procedures for consultation and debate in the region before one reached that level, so I cannot quite see how that process could occur. If you did reach that as set out in the Red Book that Lord Falconer proposed, then it seems to me that it would produce an element of unfairness because people would not really have their say and, as to the test of are the Government or the promoters of the proposals being tested adequately, would that test be passed? I doubt it. I see much more important is the long term approach which leads people to gradually build consensus on transport policies and projects and if projects come up which are unpopular then they do not get very far and people think of something else. That would be my comment.
174. This question relates not to policy but to the actual projects themselves and I think it is the core problem that we have to deal with as a committee. I have my own views and I have read the views again, having heard the evidence of Roy Vandermeer. The question really is, and it is the core of our problem, that in respect of these proposals how much detail would Parliament need to get into to make the decision on principle? Is it possible to evaluate the issues of principle involved in a major infrastructure proposal separately from the issues of detail?
(Dr Ellis) Perhaps I could begin and, with all the force I can muster on behalf of all us, say "no, it is not possible to separate detail from principle". It is almost the first and most fundamental component of planning decision making, that decisions are taken in relation to all material considerations, are taken in the round, are taken in a position of best possible knowledge. It seems to me that the evidence that Roy Vandermeer gave was devastatingly effective in demonstrating that in any particular case, whether that be Dibden Bay at the moment, it is impossible to give an approval as a development consent, which is what the Red Book is asking for, at parliamentary stage for a container port without being able to understand that that container port impacts on four SSSIs or a marine conservation area or other complex issues. As a matter of plain common sense and policy making it is impossible to break down that division between detail and principle in the way that we consider planning decisions. I would go beyond that and say that not only is it impossible to separate them in terms of good decision making; it seems to me that it is likely to make the process unlawful as well. After all, in terms of public law principles what Parliament is being asked to do, I would suggest, is set aside a set of material considerations in its general position. If it is to create a decision in principle without investigating all aspects of detail and be specific, it is specifically to exclude mitigationI think that is correct in terms of the Red Bookand then it is being asked to set aside important material considerations vital to a normal decision. Over and above that issue of public law principles which I think would be a great controversy if these proposals were taken forward, it relates also to aspects of European legislation, particularly the EU Habitats Directive. The Habitats Directive it seems to me supports the common sense analysis when it says that in considering applications and issues of impact on designated sites, and after all most major infrastructure projects will impact on a designated nature conservation site, or are likely to, the issue of need, impact and mitigation must all be considered at the same time in the same legal moment through the same process. I would also suggest that the Environmental Impact Assessment Directive supports that view. It seems to me that these proposals have this enormous iceberg which they have struck, not just in terms of common sense decision making but also in terms of legal frameworks that they cannot overcome. It leads you to this conclusion, that in order to overcome these problems Parliament must indeed consider all of these issues in order for it to be within public law principles and within these other legal frameworks I have discussed. In other words, Parliament must not exclude issues of mitigation but it must all be dealt with thoroughly through the parliamentary stage. Having done that, we seem to have recreated the whole process in the parliamentary context.
Chairman: Before John Burnett comes again can I ask you another question because I think to an extent one or two of your colleagues might like to come in and it really is very much interwoven with what John Burnett has just asked. You have, am I right in saying, registered your opposition to prior parliamentary decision on the location as well as the principle of specific major infrastructure projects? Is there any value therefore in Parliament being asked to take a decision on the principle of a project without considering the location because to an extent what you have just said impacts on the question that I have just asked? Are there any aspects of a major infrastructure project proposal which might be appropriate for Parliament to decide upon in principle rather than taking the account of detail because where is the separation between the principle and the detail, and is the principle going to be impacted upon by the detail?
175. As a supplementary to that question, you raise Dibden Bay. Interestingly enough, the Minister, when we questioned him and I put to him Dibden Bay, said that that sort of decision would be on the cusp of whether the new procedures would apply or not. Is there not a distinction here? The question as to whether there should be a container port at Dibden Bay is first of all predicated on whether there is a strategic need for another container port. That does strike me as something that could be considered as a matter of policy quite separate from the issues as to whether it needs to be in Dibden Bay. The inquiry as it now is unfolding is spending a considerable amount of time testing the first question as to whether there is a strategic need for another port.
(Dr Ellis) To some degree we have laid out in all our comments that Parliament does have this role in looking at broad policy. The nub of it is where we draw this line. It seems to me to be perfectly honest that once you have said that this entity of the decision has to rest either completely with Parliament or completely with the public inquiry, then it seems to me certainly that it should properly rest (as it does at the moment) inside the public inquiry because the public inquiry has well established positive aspects. The issue about what policy scrutiny there should be can be covered.
176. It seriously does not legitimise the Regional Planning Guidance? This is what you are saying? I was interested in your comments earlier. We all know we have a system at the moment where Regional Planning Guidance is dealt with by a series of professionals at regional level and is scuttled through the system without actually making any fundamental decisions about the future of regions. What we have to do then is potentially look at the process that takes the tough decisions at that level and says, "We will be having a major infrastructure project in that region and there may be five sites. Go away and sort it out." That is what you are saying, is it not? Ultimately how are you going to transform the system other than by using that regional structure?
(Mr Burton) That is essentially whether, particularly on road infrastructure, the system is legitimate or not. There is a process there which is beginning to ask those questions and locate them to the real world which does not apply to all the other infrastructure projects.
177. The point I am making is that it does not seem to be legitimised at the moment through any democratic structure, does it, because it is generally a decision to Regional Planning Guidance that is considered by the housing and transport planning officials and then it is booted back to the Minister who stamps it?
(Mr Burton) Yes, and if it gets down to the site specific it will feel that the decisions have been made without them having had a fair say; there is no question about the situation at the moment.
(Mr Sullivan) On Regional Planning Guidance exactly what has been said is correct. After all, it is a process which is non-statutory. There is a lowest common denominator element. There is a way in which every authority will put into Regional Planning Guidance what it wants and will support the other authorities' proposals as well, so you get a wish list of projects which cannot actually be implemented. The West Midlands Regional Planning Guidance Examinations has just been going through this last week On airports, though, I think you have to remember, leaving the South East aside, that airports are on the whole commercial companies who are trying to pinch traffic from other people and many of them are therefore trying to grow to make more profit. Then to go and try and use compulsory purchase powers to buy land to become larger commercially is a questionable thing. I think Birmingham Airport last week did have to admit that it was really engaged in growing its business at the expense of others. On airports there is a problem there. Can I say something, Chairman, about the position of Parliament because in a sense you can either have Parliament in at the beginning or at the end. If I can give you two examples from recent times, Central Railway, the first version, Parliament came in very early on and really voted it down because it was a poor schemeand I still think that is one of the best uses of parliamentary powersto prevent something going too far because you did know in Parliament a lot about it and everybody wrote lots of letters about it; they were objecting and there was enough detail to see that it was not welcome. That was the positive bit. At the other end, right at the end of the Okehampton Bypass and the wrangles that went on for many years it was brought to Parliament under SPP. Then, although the Committee supported a rejection of the scheme, Parliament then voted it through really because in a sense it was too late to change; we were far too far down the line. Bringing Parliament in at the end of a long debate when it has been very contentious and has not been resolved is probably not going to lead to a good conclusion. Parliament in past decades has played a role in preserving the environment by rejecting major infrastructure projects in certain cases, particularly reservoirs, and this is in days gone by. The late Angus Maude told me that he managed to defeat the Farndale Reservoir in Yorkshire and now I think in North Yorks National Park, but he did not quite manage to defeat Rutland Water which has been built. There was a period when Parliament did tackle amenity matters quite effectively.
178. I want to get just one clear statement on the record from you, Dr Ellis. You made a pretty compelling response to my question about the principle and detail and I want to hear from your colleagues that your colleagues agree wholeheartedly with the thrust and detail of your response to me.
(Mr Burton) That you cannot distinguish principle and detail?
(Mr Burton) Absolutely.
(Mr Sinden) We strongly agree.
(Mr Sullivan) Yes.