The government claims a new planning regime is needed to enable nationally important infrastructure to be built, but the Planning Bill is meeting fierce resistance in the Lords. Roger Milne examines the issues that have galvanised opposition

This week, the House of Lords is due to complete its detailed scrutiny of the government's controversial planning legislation. But there is still no sign that the administration has won over the critics of its proposals for a new Infrastructure Planning Commission (IPC), which would determine key projects such as power stations, overhead lines, major new gas pipelines and storage schemes and water treatment plants.
Peers from both the Conservatives and the Liberal Democrats are insisting on greater parliamentary and ministerial accountability. They want the IPC to have an advisory role, with final decisions left to secretaries of state. Baroness Andrews, the minister from Communities and Local Government piloting the bill through the Upper Chamber, has argued long and hard that this would negate the whole point of establishing the IPC and the proposed new system of National Policy Statements (NPSs).
She told the Lords: "Why should an investor come to Britain in an environment where we can only guarantee indefinite delays, circular processes, general obscurity about where the debate will be held and an inability to take the decision without going back to the minister, which is sometimes the slowest part of the process?"
That rhetoric has cut little ice. So far her arguments have not persuaded peers. Lord Dixon-Smith, for the Conservatives, was adamant that what is on offer represents a democratic deficit.
"Development in whatever form is rarely site-specific. Most developments can be established on a variety of sites. Up until now that decision has rightly been political. It is a political decision, whether it is taken by local politicians sitting on local planning authorities, or by the secretary of state on call-in if the application is of sufficient national significance, is of sufficient exception to existing planning policy or is an appeal," he said.
The peer argued: "The very fact that the final decision is taken by an elected politician gives strength and integrity to the existing planning process. However, the bill removes that and in doing so diminishes the strength and integrity of the existing system."
As well as these fundamental objections to the planned new regime, there are other issues that have posed problems for parliamentarians. One is the relationship of the IPC with the yet-to-be-established Maritime Management Organisation (MMO), which is the new planning organisation offshore under the government's Marine Bill. At present, the MMO is to consent offshore windfarms with a capacity of up to 100MW, while schemes above that threshold will be dealt with by the IPC. However, the MMO will be responsible for the monitoring and enforcement of any conditions attached to offshore permissions.
Other bones of contention revolve around the government's decision that some NPSs - specifically those for new airports and nuclear power stations - will be site-specific. Critics complain that this will in effect mean the government is giving planning consent, prejudging the work of the commission.
Many of the concerns voiced by opposition peers have already been articulated in the Commons, where Eric Pickles, shadow communities and local government secretary, has promised that one of the first acts of an incoming Conservative government would be to scrap the IPC.
It faces opposition, too, from a coalition of environmental organisations that includes Friends of the Earth, the National Trust, the Civic Trust, the Royal Society for the Protection of Birds and the Campaign to Protect Rural England.
Ministers are well aware that even if the bill makes it to the statute book later this year, the work of the commission and its yet-to-be-appointed commissioners will face legal challenge. That is certainly what Lord Dixon-Smith expects. "I think that there are those out there in the great wide world who will want to test the system to destruction, to ensure that it is doing what it is supposed to," he said. "The bill deliberately sets up a new system, so the first batch of commissioners will be somewhat in the position of Dr Livingstone when he was in the darkest and deepest heart of Africa: they will be going where people have not been before."

How the new planning regime will work

The government has argued that its proposed new planning regime will mean a clearer role for the administration, more parliamentary scrutiny and more chances for the public to have its say. Ministers will have to set out National Policy Statements (NPSs) for each type of major infrastructure requirement (the one on nuclear power is already being drafted). The statements will be subject to consultation and to parliamentary scrutiny. They will have to be updated. Promoters of specific infrastructure projects will have to carry out public consultation before submitting the scheme to the IPC for determination. The commission will consider the proposal against the principles and criteria set out in the relevant NPS. It will hold public hearings. And it will be free to reject any application that it considers fails to meet the conditions set out in the NPS or would have local impacts that outweigh its benefits. Its decision will be open to legal challenge. Secretaries of state will have a default power to make decisions in very particular circumstances (such as where national security is involved or where the NPS is significantly out of date).

Changing the thresholds

Since the bill was published, the government has made a number of key changes to the definition and thresholds of what constitutes a nationally important project.
The threshold for power line schemes has been upped from 20kV to 120kV, which should mean only major transmission and distribution schemes will be involved. The threshold for water treatment plants has been increased significantly: originally the expectation was that schemes required to provide facilities for a population of 150,000 would be involved, now it will cover projects serving populations of 500,000 or more. New gas supply pipelines more than 40km long and serving populations of 50,000 or more will now be covered by the IPC. And the administration has inserted an amendment which would mean that a carbon capture and storage network of pipes would become a matter for the IPC.

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