Removing consultation from major infrastructure planning is undemocratic – Inside track

This post is by Maria Lee, professor of law at UCL.

Much concerned and angry attention has, quite rightly, been paid to Part 3 of the Planning and Infrastructure Bill, for what the Office for Environmental Protection (OEP) soberly refers to as its “proposed reductions in legal protections for the environment”.

Less time has been spent on Part 1, even though it deals with major infrastructure development, big physical projects with significant impacts on people, place and nature. These will be with us for a very long time, shaping places for generations rather than years, sitting in our landscape, creating path dependencies. Decisions on infrastructure mediate between conflicting interests, and between economic, social and environmental values. They are unavoidably political decisions, in the sense that they shape our world and are not simply technical. As such, it should not be controversial to argue for democratic decision making.

Part 1 amends the Planning Act 2008, which deals with Nationally Significant Infrastructure Projects (NSIPs): large energy, water, waste, transport and some commercial and business developments. The secretary of state takes decisions on consent for NSIPs. By comparison with planning processes for less complex and impactful developments, NSIP applications are subject to a challenging time limit of only six months between the acceptance of applications and Planning Inspectorate recommendations to the secretary of state. This means much of the business of getting things right, including consultation, is done before the application.

The government’s target is to grant consent for 150 NSIP consents this parliament, compared with 130 since the system started operating in 2010. One of the ways this is to be done is by “reducing the burdensome consultation process”. It is very difficult to imagine good outcomes for people or nature without adequate consultation on major infrastructure. Government amendments to the bill, however, quite simply remove all existing statutory obligations on applicants to engage in pre-application consultation, whether with the public and civil society or with statutory bodies.

This is no small technical issue. The removal of the right to be consulted matters, for at least three reasons.

Planning depends on democracy
First, because we’re in danger of forgetting planning’s dependence on democratic legitimacy. Good engagement in planning is challenging, and democracy certainly doesn’t happen just because of a legal obligation to consult. Careful attention needs to be paid to avoiding the flaws of statutory consultation. So we could be hopeful about the assertion that, as statutory obligations are removed, better engagement will emerge. But there has been no public discussion of how this will happen. The bill does require the secretary of state to “issue guidance to assist applicants, setting out what the Secretary of State considers to be best practice”, and applicants must provide local authorities with information. The guidance could engage meaningfully with participation, many NSIP promoters will understand the advantages of voluntary early consultation, and local authorities could be given the resources (time, money, skills and influence) to engage local communities.

Even in the unlikely event that these three things hold, pre-application participation will no longer be a legally enforceable right. It will be at the discretion of those with power. Legal rights to be consulted are not adequate in themselves but, in this case, they provide space (outside the gruelling six month examination) for citizens and civil society to engage, however inconvenient that might be.

The government can’t know all the answers
Second, adequate consultation acknowledges that the government may not have all the answers, may not know who holds relevant knowledge and may not know what citizens need or value. There was no adequate consultation on the provisions of Part 3 before the bill was introduced to parliament. Drafters and policy makers had no opportunity to learn from experts and citizens about the likely impacts of the bill’s provisions on nature. A range of perspectives, on what works and what matters, would have enriched the knowledge available to decision makers, enabling a better bill. Importantly, open processes enable the environmental perspective into a space likely to be dominated by economic (growth) voices.

How people are treated matters
And third, the way people are treated affects the way we understand and behave in the world. Given especially our profound economic inequalities and dangerous political divisions, it is difficult to imagine that we can make just and effective decisions on major infrastructure without embedding people in the exercise. We can emphasise speed over process, but we cannot wish the politics of planning away. Costs and benefits are distributed, some values and ways of seeing the world are reinforced, winners and losers are created. This applies in respect of renewable energy as much as roads. We don’t need to give either local communities or green groups a veto to engage with, and learn from, what they want from and for their places.

Democracy is complex, consultation is not always effective, and the balance between process and outputs can be subtle. So these can be difficult calls. There is no indication here, however, that anybody has drawn a carefully considered balance.

More broadly, this is, sadly, an unsurprising move in the context of larger, cross party, post-Brexit shifts in environmental law. These amendments are the latest iteration of several years of legislating for executive power, of mistrust of legally established process, and perhaps even of a mistrust of people.

The politics of planning cannot be wished away. That was clear many years before climate-sceptic Reform declared ‘war’ on net zero and took control of councils and mayoralties, as well as a parliamentary constituency, in May’s elections. Councillors and mayors may not have the legal powers to prevent energy decarbonisation projects or airports. But they are responding to the politics of these decisions, and so should we.