Planning hurdles for locally opposed renewable energy schemes look set to remain, despite government efforts to speed up the planning process experts warned this week.
They said expensive planning battles for contentious infrastructure schemes such as incinerators or onshore wind farms will continue.
Last week the long running fight over the Cornwall Energy Recovery Centre (CERC) incinerator at St Dennis ended at the High Court when the project was halted following a judicial review.
Experts said planning appeals, judicial reviews and lengthy Infrastructure Planning Commission (IPC) processes were unavoidable − yet expensive − realities for controversial projects.
Years of turmoil
The scheme has gone through years of turmoil. It has had a local planning application rejected, gone through a planning inquiry and been the subject of intervention by the communities and local government secretary.
The only way to reduce the likelihood of being embroiled in such a battle is by doing as much pre-emptive work as possible to achieve a compromise with the local community, said Hewitson.
“Community engagement is the key to all this,” he said.
“If you take the basis of the objection out you will have a much easier ride. You can’t always do that, but sometimes there is a particular aspect of the development [that is contentious].”
Royal Town Planning Institute head of policy and practice Richard Blyth said early public engagement and small compromises can also help to establish a good relationship from the start.
“There are going to be people in controversial cases like this that are looking for some hook to hang the challenge on”
Royal Town Planning Institute head of policy and practice Richard Blyth
“People feel pushed into a corner if they feel the design phase of a project is over and they are just being asked to rubber-stamp it,” he said.
“If they are not in an entrenched position against you they are less likely to go to court,” Hewitson agreed. “But you will still get the odd project that is desperately unpopular.”
The democratic checks and balances built into the planning system mean projects will always be vulnerable to planning battles if opponents have the resources to launch a fight, Hewitson said.
“Minor oversights often downfall of projects”
Minor oversights in the planning application process can bring an entire project to its knees if a judicial review is launched to contest that oversight.
“There are going to be people in controversial cases like this that are looking for some hook to hang the challenge on,” he said.
This happened in the St Dennis incinerator judicial review, where the judge found that a crucial environmental assessment had not been properly carried out, effectively putting the project back to square one.
Blyth said the judicial review mechanism is crucial to ensuring necessary planning processes are protected, and as such they are an indelible part of the planning system.
But he said it would be disappointing to think of them as inevitable.”It is regrettable if judicial review becomes the means by which planning decisions are made,” he said. “I don’t think the court is the best place to make planning decisions.”
The CERC project began before the Infrastructure Planning Commission (IPC) was set up to streamline the planning process for nationally significant infrastructure projects (NSIPs).
Obstacles for major projects
As a result the project went through the local planning system. But even NSIPs will still have a hard time at the planning stage.
Such projects still face a lengthy application process via the Infrastructure Planning Commission (IPC), legal firm Norton Rose head of planning Nigel Hewitson told NCE.
The IPC’s front-loaded regime requires extremely lengthy pre-application work, and the period between submitting an application and receiving the IPC’s decision can be more than a year.
“There is a hell of a lot of work involved,” Hewitson said.
After that, IPC decisions are still vulnerable to judicial reviews, IPC chair Sir Michael Pitt told NCE’s Infrastructure Show in Birmingham last week.
“I hope there will be a relatively small number of judicial reviews [of IPC decisions],” he said.
“That legal process is something we will have to accept and go through and hopefully come out the other side unscathed.”