The Law Society is lobbying Parliament over the Government’s approach to the planning processes for major infrastructure projects such as nuclear power plants.

The chair of the Law Society’s Planning & Environmental Law Committee will appear before the Energy and Climate Change Committee on 3 February. The Law Society has submitted written evidence setting out its serious concerns about the framework provided in the draft National Policy Statements (NPSs) for the determination of applications for major infrastructure.

The Law Society’s Planning & Environmental Law Committee has identified difficulties which may undermine the objective of speeding up decision making on major infrastructure projects.

The decisions of the Infrastructure Planning Commission [IPC] must be taken in accordance with the NPSs unless that would be unlawful or the adverse impacts outweigh the benefits.

The Law Society has always made it clear that it believes this creates a democratic deficit, because this body is not accountable directly to the public.

The Law Society does not have a view on the merits of nuclear power generation, but the Society has concerns about the Government’s adoption of a site specific approach in the draft NPS for nuclear power generation.

The Government has identified ten suitable sites for a new generation of nuclear power stations and states that all ten are needed.

Given that the NPS must be followed, this means that once a location has been identified as appropriate for that type of development and the NPS adopted, there will be little opportunity for the local community or other objectors to challenge the suitability of the site for nuclear development.

That could only be done on the ground of unlawfulness or that the adverse impacts outweigh the benefits.

The Society has a number of other concerns regarding the NPSs:

o The NPSs are policy statements but they are being used to interpret the law

o There is considerable repetition of existing planning policies, but it is unclear why or what this achieves.

o The draft NPSs state that they should apply to the determination of applications for planning permission outside the IPC regime, seemingly overriding all other planning policies such as local authorities’ development frameworks which have undergone public consultation and examination before a planning inspector

David Brock chairman of the Law Society Planning and Environmental Law Committee said: “Because of the democratic deficit in the process the Select Committee and Parliament have a serious duty.

“They are the only democratic input into the process for determining our energy infrastructure and particularly the number and location of nuclear power stations.

“The Society agrees that the decision making process needs to be speeded up, and the new system is undoubtedly quicker from submission to consent.

“It should be an improvement for those applying for consent. But past delays have often been due to a lack of Government policy (clear or not) and the new system is faster by not starting the clock until much later in the process.

“The danger with it however is that people will feel disenfranchised by a largely paper system with no public inquiry.

“In reality, few members of the public seem to appreciate the need to engage in the NPS process and when a development consent application is submitted that will be rather late to change things.

“The ‘Parliamentary requirements’ fall short of endorsement of a NPS by Parliament – the Secretary of State is only required to respond to any resolution or recommendations from a Committee of either House – and will struggle to fill the democratic deficit.

“There is a real risk of judicial review against the Government before the NPS has even been put in place on the grounds of the inadequacy of the public consultation on the draft policy on nuclear power stations.

“The Government’s 2006 Energy Review was successfully derailed by Greenpeace on the grounds that the consultation had been misleading and seriously flawed – it could happen again.”

The Planning Act has provided a new procedure to challenge a NPS by means of judicial review, for those who can afford it.

The Law Society believes that there will be High Court challenges to decisions of the IPC as the principal means available to objectors.

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