Giving due consideration, part 1

An exchange took place recently during the proceedings of the HS2 Select Committee that illustrates perfectly why the hybrid Bill procedure is failing to provide adequate protection to our environment from the impacts of the HS2 project. It arose during the cross-examination by Tim Mould QC, Lead Counsel for the Promoter, of Mr Ray Payne, a member of the Chilterns Conservation Board, who was giving evidence for the Board’s petition (see footnote 1).

The subject of the discussion between these two gentlemen was the approach to be taken by decision makers in considering development proposals within an Area of Outstanding Natural Beauty (AONB) as set out in the National Planning Policy Framework (NPPF) document. Paragraph 115 of the NPPF identifies AONBs, along with National Parks and the Broads, as having “the highest status of protection in relation to landscape and scenic beauty” and, accordingly, merits them worthy of being given “great weight” when it comes to “conserving landscape and scenic beauty”. Paragraph 116 sets out how requests for planning permission should be considered in this context by those charged with granting or refusing such permission, and I give the full text of this paragraph below:

“116. Planning permission should be refused for major developments in these designated areas except in exceptional circumstances and where it can be demonstrated they are in the public interest. Consideration of such applications should include an assessment of:

  • the need for the development, including in terms of any national considerations, and the impact of permitting it, or refusing it, upon the local economy;
  • the cost of, and scope for, developing elsewhere outside the designated area, or meeting the need for it in some other way; and
  • any detrimental effect on the environment, the landscape and recreational opportunities, and the extent to which that could be moderated.”

Using one of those archaic terms that only lawyers see fit to employ, Mr Mould acknowledged that paragraphs 115 and 116 “set the approach” to protecting the Chilterns AONB that both the Chilterns Conservation Board and his client “pray and aid”. What Mr Mould set out to do, apparently with some success, was to convince Mr Payne, and in consequence the Members of the Select Committee, that the Promoter had satisfied the strictures of the NPPF within the hybrid Bill scheme.

Mr Mould may have been successful in getting Mr Payne, facing the rigours of cross-examination, to concede the point, but I am far from convinced that the intentions of the NPPF have been respected in the Promoter’s actions and the hybrid Bill processes, including examination by the Select Committee.

Mr Mould’s approach was to take the three bullet points of paragraph 116 in order.

His position on the first bullet point was that “the need for the development” had “been established by the decision of the House [of Commons] to give the Bill a second reading”, and Mr Payne concurred. Mr Mould is, as one would expect, correct – at least in constitution terms – in his interpretation of the significance of the Bill being given a second reading in April 2014, and Members of Parliament were informed by the Transport Secretary, when he opened the debate on that occasion, that one of the functions of the hybrid Bill was to ask Parliament “to grant planning permission” for Phase 1 of HS2 (see footnote 2). It is therefore relevant to consider whether Parliament, in its role as surrogate planning authority, gave due consideration to the requirements of paragraph 116 of the NPPF in its deliberations that day.

The overriding objection that I have concerning the way in which planning decisions are determined by the hybrid bill process is that it does not provide the level of scrutiny and review that one would expect from a public inquiry led by an independent planning inspector. This is clearly demonstrated by the circumstances in which the agreement by the House of Commons was given that the HS2 Phase 1 hybrid Bill “be read a second time”.

In the first place, unlike a public planning inquiry, the outcome of the HS2 Second reading debate was, to a high degree of certainty, pre-determined by the three-line whips that were imposed by the Government and main Opposition parties; this racing certainty was even acknowledged by HS2 opponent the Rt Hon Cheryl Gillan MP in her contribution to the debate, who told Members “for once Goliath [i.e. the Government] is going to win” (see footnote 3).

Secondly, the extent of the debate was curtailed by time pressure. Only a single day was allocated to the Second Reading, although business was extended by an hour, and time was lost on the day to some emergency business. This meant that backbench speeches were limited to five minutes, with the final handful further curtailed to four minutes, and some backbenchers, including the Chair of the Environmental Audit Committee, were unable to complete their contributions.

Thirdly, as is normal with such debates, only a minority of those who voted were present in the Chamber during the debate. The video of the debate indicates that attendance, at peak, probably did not amount to one hundred Members, and was considerably fewer at most times (see footnote 4).

Fourthly, although the impact on the Chilterns AONB was mentioned in the reasoned amendment tabled by Cheryl Gillan as one of the reasons why the House should decline to give the Bill a second reading, it was only actually referred to in the speeches by her and one other backbencher. At no point was any mention made of the requirements of paragraph 116 of the NPPF, and the tests of whether there were “exceptional circumstances” and a “need for the development” that justified encroaching on the AONB were not considered.

Finally, the effect of this flawed process was to limit further consideration in committee to making changes to the design deposited by the Promoter, making further consideration of the “need for development” test, as Mr Mould was claiming, effectively closed off.

(To be continued …)

Footnotes:

  1. The exchange took place during the public session held by the HS2 Select Committee on the afternoon of Monday 13thJuly 2015. The relevant passage is recorded from paragraph 228 of the transcript, and may be viewed from 15:15 hrs in the video of the session.
  2. Refer to column 567 in the House of Commons Official Report for Monday, 28thApril 2014.
  3. Refer to column 586 in the House of Commons Official Report for Monday, 28thApril 2014.
  4. The debate runs from 16:39 hrs in the video.

Important Note: The record of the proceedings of the HS2 Select Committee from which the quotes reproduced in this blog are taken is an uncorrected transcript of evidence, which is not yet an approved formal record. Neither witnesses nor Members have had the opportunity to correct the record in such instances, and it may therefore be subject to changes being made in the light of any such corrections being requested.

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