Changing the nature of planning debate:  Reflections on the 3rd Reading debate Planning and Infrastructure Bill June 9-10th

Listening to the debate on 9th and 10th June in the commons on the Planning and Infrastructure Bill  was a somewhat predictable but nevertheless depressing experience. Despite some really good aspects of the Bill with a welcome return for strategic planning and mandatory councillor training, the white elephant in the commons was how concerns to Part 3 of the Bill were going to be addressed given the high profile communications in the media and concerns voiced at committee stage.  My observations and take-home messages from the proceedings are detailed below.

A competent planning minister but seemingly one who hears but does not listen.

The planning minister Pennycook is part of that rare breed of politicians; a politician who actually does have mastery of his brief. He gets planning and speaks authoritatively about it and with passion; something acknowledged on opposition benches. This has been missing from the last 14 years of government with the continual rotation of housing and planning ministers.  However, as evidenced in the committee stage and in early part of this debate, he offers to listen and reflect on members’ concerns but then does not accept any amendments or request for change.  He also perpetuates the same mantra of the Bill being a win-win for nature and development despite the government’s own environmental watchdog the Office for Environmental protection voicing its own concerns that the Bill is regressive for nature when compared against existing protections. This view has been backed up by respected QCs. Such a wieght of legal opinion surely is something that should give every ember pause to rethink and certainly not dismiss.    

The response in the early part of the debate was to dismiss all opposition groups as misleading and misrepresenting the Bill in respect of claims of a license to trash nature. It was also telling here that the minister sought to quote RSPB CEO Beccy Speight in supporting aspects of the Bill using an early quote before the full details of the Bill were apparent.  This was out of order in my view given RSPBs high profile opposition.  

A rushed piece of legislation is rarely a good piece of legislation

The Bill itself has been rushed through the house relying on the government majority to get it through rather than meaningful scrutiny. Seemingly it has not even considered or published responses to a previous white paper consultation on planning and development that contained the rationale for much of the Bill.  

Furthermore, there is a Land Use Framework consultation that recently finished which provides a collective umbrella within which the planning system would need to mesh.  For me the Bill would have been significantly stronger if it had used all the intelligence from previous consultations and the Land Use framework proposals rather than simply plough its own furrow.

The key arguments against Part 3 have been made by wildlife bodies but also by professional institutes (CIEEM), lawyers as well as academics.  There is a unity around these points and it is the cumulative impact here that is most telling for me.    The professional weight of opinion raises concerns on several fronts.

1. That the mitigation hierarchy is being compromised by the Bill which is a fundamental principle.
2. That existing EU legislation is being bypassed and watered down through a payment first approach and when an “overall improvement test is met”.
3. That senior government figures including the SOS  are continuing to peddle the myth that nature is a blocker to development despite the government’s own impact assessment stating that this is not the case and there is only very limited evidence.
4. That Natural England is going to be in the position of environmental delivery plan designer and enforcer generating a conflict of interest and also being dependent on funds from the nature recovery fund. The lack of staff resources to fulfil its obligations is also a concern.  
5. That the selective operation of EDPs across different habitats and species will result in greater complexity for developers rather than less actually increasing uncertainty.
6. That there should be a pause in Part 3 to address the regression of nature.

The debate also revealed that the government were now going to embed marine matters into Part 3. I have to admit to not having seen this coming. This is a hasty and dangerous addition and one that is really problematic especially given the complicated governance of the marine environment. This is a huge area bringing with it extra complexity and questions over the efficacy of Natural England to be the competent authority here. My own thoughts would be the Marine Management organisation.

Policy on presumption : the failure of academics to get their messages through

Listening to the debate as a professional environmental planner I was struck at the lack of scientific evidence being used to support stated positions. Reference to ad-hoc cases and trotting out bat tunnels and fish discos and unsupported statements as facts makes me concerned that as academics we are failing to produce sufficient evidence that is digestible and usable. I note how think tanks like the policy exchange are able to get their “evidenced” reports into politicians hands and shape policy well before it emerges and we need to get smarter.

I noted only two  piece of evidence being cited for Part 3:  the Wild Justice report (Lost Nature)  and an emeritus professor comments being read out by an MP.  This generates a fundamental question about how we as academics can be more effective in ensuring that we have legislation and policy based more on science rather than populist presumption

Where next: the Lords

In the summary of the day 1 debate covering Part 3, Pennycook simply repeated much of his opening mantra abandoning any chance of amendments being successful or listening to the debate itself. His response to the OEP concerns was simply that he would meet and reflect on their concerns and try to see what could be done to reassure them as well as other bodies, although he did seem to say something about strengthening some aspects. However surely that should have been done in committee stage when the line by line coverage and assessment is undertaken. There is no obligation to do this given the third reading unless the Lord’s responses catalyse this.

Indeed legislation is dependent on the careful wording and its legal interpretations and testing in practice.  Thus intentions of what might be wanted by the minister for the Bill  however laudable are meaningless when it is its operationalisation in the real world that will be the decider.   My hope is that the unelected Lords will provide the detailed scrutiny and feedback that results in Part 3 being changed fundamentally. I am however in glass half empty and cracked mode.