Too much authority, not enough planning

I owe Deborah Meaden a bit of an apology. In an article in February I cocked a snook at her comments that the key considerations about the Gloucestershire incinerator were aesthetic, when for me the central issues were long term availability of feedstock and whether the scale of the incinerator was consistent with maximising recycling.

As it turned out, the planning committee in Gloucestershire was more inclined to agree with Meaden than with me or, more worryingly, with their officers. At the time of writing, minutes of their meeting on 21^st March at which the committee unanimously rejected their officers recommendation for approval and threw out the planning application for the incinerator at Javelin Park have still not been published, but press reports indicate that the five reasons given focused on the visual impact that the proposed structure, to be built near junction 12 of the M5, would have on the landscape of the Severn Vale.

Tug of war

Whatever position one takes on the arguments over whether an incinerator is the right solution in Gloucestershire, the decision exposes the profound tensions within the planning process that can land any local authority in a pretty invidious position. Any council, in its role as a waste disposal authority (WDA), may on the one hand be heavily committed – both intellectually and financially – to an infrastructure project; on the other, as the local planning authority (LPA), it has a completely different set of considerations to weigh.

The situation becomes more complex when a council enters into a long-term contract to build a piece of infrastructure, all the more so when it is supported by substantial government PFI credits. In pursuit of their shared objective, close working relationships can form between WDA officers and the contractor. Meanwhile, other parties such as Defra may be closely involved as co-funders. The momentum towards bringing the project to fruition can reach a high magnitude far in advance of it coming before a planning committee.

Nevertheless, as the Gloucestershire decision shows, councillors on planning committees are able to set aside their council’s waste disposal interests and reach a view based on other factors. A very similar situation arose in Cornwall in 2009, when councillors also threw out a planning application for a proposed incinerator. Such decisions are particularly striking because they are taken against the recommendations of officers. It is important to understand how this can come about.

Officers are the ones who may feel the tensions between the different roles of local authorities most keenly. Planning and waste disposal teams often report up to the same Director, who must strive to represent the interests of both the WDA and the LPA. In this internal tug of war, it takes a great deal of professionalism and skill for a council to make sure it keeps pulling both ends of the rope with the same degree of energy.

Planning officers will wish to support the planning committee’s wishes, but if the committee has reservations about a project that the officers’ colleagues are working towards, they may feel under pressure from both sides. Sometimes that pressure can be too great to manage. Documents released by Cornwall Council detailing the relationship between officers and their waste management contractor, SITA led the Liberal Democrat MP for St Austell, Steve Gilbert, to write of a “culture of collusion” between the council and the contractor as plans for an incinerator were considered. Gilbert found evidence of officers helping to “manage the flow of information to councillors, the media and community” while the council officially remained neutral.

Collusion course: Steve Gilbert MP says that officers in Cornwall got too close to their PFI contractor. Photo by Hamish McCallum, via Wikimedia Commons

Planning officers, aware of the council’s wider interests and contractual commitments, may feel bound to recommend approval of projects about which they know their committee has planning doubts. Maintaining their independence is therefore made more difficult by contractual commitments entered into years before; and the risk is that far more comes to hinge on the planning decision than it should. In circumstances like this, it starts to become explicable how a planning committee could unanimously reject a formal officers’ recommendation for approval of a major strategic project.

Losing their appeal

However, planning doesn’t stop at the planning committee: we have a growing culture of consent by appeal and judicial review. Urbaser Balfour Beatty (UBB) will no doubt be considering whether to appeal the Gloucestershire decision; if they do, it will be fascinating to see whether the victory won by the Gloucestershire campaign groups will be upheld. The Cornwall decision resulted in a planning battle that ended up in defeat for campaigners, but only once the case reached the Supreme Court.

A cynic might say that, with local elections in the offing, it suits councillors to be seen to make a popular decision against an incinerator, especially if they believe that it can all be resolved at appeal. For officers, the appeal applies the same tensions as the initial planning process, but magnifies them further. According to Steve Gilbert, in the Cornwall appeal the stresses ultimately prevented that council from putting forward both sides of the case to full effect. He states that when the Cornwall incinerator decision went to appeal, the council’s leadership said that the planning committee’s decision to reject the incinerator would be “robustly” defended. But at the same time, documents showed, senior officers were working with SITA to undermine the arguments that would be used in the council’s defence.

For the contractor, the delay and extra effort of an appeal matters little, if under the terms of a PFI contract it is the authority (and typically it is) that pays the lion’s share of the costs of both sides. Most PFI contracts also have preconditions relating to planning, which reverse the normal commercial order of things (i.e. a project receives consent and then a contractual commitment is entered into). The situation would be very different if LPAs were able to arrive at their view without being constrained by prior contractual commitments that leave the financial risk of an adverse planning decision with the council.

Split decision

What’s the alternative? There would appear to be an easy solution to remove some of the pressure from officers: authorities should seek planning permission for their preferred solution before they let contracts that depend on it.  Of course this would mean the local authority rather than the contractor taking the flak for an unpopular proposal. But the authority has set the strategy; they have adopted the development plan; and so if they want a particular development, why shouldn’t they be the ones seeking planning permission?

Whilst it may not be ideal that the applicant and decision maker sit within the same body, albeit with the WDA acting as applicant to the LPA, the heavy contractual financial pressures and penalties attached to the planning decision would be removed. It may require a little more investment up front, but by contracting only when planning issues are out of the equation councils should be able to reduce the amount of risk that bidders price in and therefore obtain better deals overall.

This approach would not be without its complications. Typically, the detailed design of the facility to be built is not specified in a PFI tender process, but – in theory at least – left to the market to decide. Without all of the information in place that a contractor would normally provide, wouldn’t it be difficult to obtain consent for the project? This problem wouldn’t be unduly difficult to fix, by splitting the procurement process to allow for a non-binding market sounding exercise to enable the council to firm up its view on the optimum facility required.

There might still be argued to be a risk of pre-judging the outcome of the subsequent contract – or of discovering at a later stage that permission had been obtained for what is, in the contractor’s view, the ‘wrong’ facility. In practice, though, contractors are quite capable of modifying planning consents to suit the emerging needs of a project. So although such reservations are material, they represent far lesser risks than councils take on in the current ‘contract before planning’ system.

A planning decision should be about what is and is not to be developed. It should not be the critical decision point relating to an already let, long-term billion pound contract, on which rests huge financial consequences for the local authority making it. Making it so puts a heavy burden on local authority officers and directors, who must exercise extraordinary levels of professionalism to ensure that the council acts impartially when its own interests are at stake. If councils are to reduce their exposure to costly planning related penalty clauses, and if we are to see better waste management decisions taken, the planning horse needs to get back in front of the procurement cart where it belongs.