Legal threat over key White Paper planning reforms

Friends of the Earth has threatened the Government with a court challenge over its proposed development reforms after top planning barristers advised the environmental group that key elements in the Planning White Paper breached UK, European and international law.

FOE has called on ministers to rethink the measures or face the possibility of a legal challenge.

At issue are the Government's proposals for a new regime for major infrastructure schemes like airports and nuclear power stations. This would involve National Policy Statements on policy in sectors like energy and air transport and the creation of a new independent commission which would take the final decision on specific projects.

According to the barristers advising FOE, existing European law would require a strategic environmental assessment to be carried out on every National Policy Statement. The White Paper suggested SEAs would only be needed in "unusual cases".

The barristers, Matthew Horton QC and Richard Harwood from 39 Essex Street Chambers, have also argued that as currently framed, the way the independent commission would consider the implications of specific schemes and deal with individuals' concerns, would run counter to existing UK law and the European Convention on Human Rights.

The lawyers told FOE that the Planning White Paper effectively eliminated key rights because it proposed to replace the current system - which allows people to present their case in person and to call witnesses and cross examine opposing witnesses - with a short 'open floor' session at the end of the examination by the commission.

Friends of the Earth planning adviser Naomi Luhde-Thompson said: "The Government wants to force through major new developments such as airport expansions by limiting the public's involvement in the decision-making. This is not only undemocratic – it is also likely to be illegal."

Matthew Horton QC said: "I have concerns about a number of areas where the White Paper does not meet the requirements for public involvement or proper scrutiny laid down in law. The Government is leaving itself wide open to legal challenge unless it can address these concerns."

A Department for Communities and Local Government spokesperson said: "We are confident that our new proposals will not only be legally sound but create a simpler, more transparent and consistent planning process. The reforms will give local people a stronger voice, with a package of measures that will ensure the public and effective scrutiny are locked into every stage of the system.

"This includes a new duty on developers to consult communities, a more effective public inquiry stage and free access to advice from planning experts for local residents. We are committed to ensuring that infrastructure plans and applications are in full compliance with environmental law and will carry out Strategic Environmental Assessments whereever one is required."

Read the Friends of the Earth press release

Roger Milne

25 October 2007