Introduction

137. Even if the Government produces a framework within which there can be a more rational consideration of future port capacity, individual proposals will still have to go through the planning process. It is in the public interest that developments have to go through a proper process. Environmental, social and wider infrastructure considerations must be taken into account in deciding whether development should or should not be permitted; it is reasonable to examine major infrastructure projects carefully, and to reject proposals which are inappropriate. However, the current process is long and complex. The system should not impose undue delay, or allow procedural devices to be used to block development.

138. Consent for major projects takes years rather than months, and the United Kingdom Major Ports Group told us "the port industry is concerned that the time and cost of securing consent for major developments are now potentially so great as to be a potential deterrent for developers, regardless of the merits of the case concerned... Regardless of the pros and cons of individual proposals, it cannot be in the national interest that so much time and money has to be expended before the case for a development is settled". [122]

139. Most port development, particularly developments for new deep water berths, will fall within the definition of "major infrastructure projects":

• (a) Inland waterways, canalisation and flood-relief works where the area of the work exceeds 1 hectare.
• (b) Ports for inland-waterway traffic which permit the passage of vessels of over 1,350 tonnes.
• (c) Trading ports, piers for loading and unloading connected to land and outside ports (excluding ferry piers) which can take vessels of over 1,350 tonnes.
• (d) Construction of other harbours and port installations including fishing harbours, where the area of the works exceeds 1 hectare." [123]

140. The Government has attempted to address the deficiencies of our planning process by bringing forward legislation and guidance to improve the handling of individual applications, both in the Planning and Compulsory Purchase Bill and in the Planning (Major Infrastructure Project Inquiries Procedure) (England) Rules 2002 (SI 2002 No. 1223). It has also produced A Project Appraisal Framework for Ports to help promoters bring forward proposals which adequately address the issues which will be examined in the planning process:

"The Framework is a way of organising and bringing together material on a wide variety of topics relevant to the Government's objectives for transport and the formal procedures for dealing with applications for, consent to, or approval of, port development. In most cases promoters will have this material in some form or other, or will be required to obtain it, to meet a legal requirement in the consenting process to which the project in question is subject. The Framework should enable all those involved to understand the nature of the proposed port development and its effects. It should also speed up the process of decision making as the amount of coverage and information required for such decisions will be better defined. At the same time, the rights of those affected to question and object to the proposals are maintained."[124]

The framework is nonstatutory advice, but the Department for Transport recommends that it should be used for those ports in England and Wales which require approval.

141. Although, since our inquiry began, the Government has brought forward new procedures for inquiries into major infrastructure projects, and is proposing new legislation to speed up the inquiry process further by allowing parallel hearings on a number of different issues, much could still be done. We welcome these attempts to improve the efficiency of the planning process, without reducing the rights of objectors. However, we are concerned that they only go a small way to overcoming the problems of those who wish to bring forward proposals for major developments.

Gaining Consent

142. Many of the difficulties and delays facing those who want to develop new port facilities occur outside the inquiry process. The current process for planning applications involves multiple sequences of procedure in which certain bodies have separate statutory power to block proposals by reference to a single issue. We were told that

"A proposed new port development will require some or all of the following:

A combination of the three assessments above applied to one or more of the approvals referred to."[125]

143. All interested parties agree that the consents process is inefficient. This is heightened by the fact that individual consenting bodies do not see the project in its entirety. Associated British Ports told us that "every consenting department seeks perfect compliance with both the spirit and the letter of its component of the regulations. Without an overview, judgement is difficult to exercise, even where regulations permit judgement."[126] The DTLR told our predecessors that it intended to build on the success of the Joint Consents Unit between its Ports division and DEFRA, and to look at other ways of speeding the development process.

144. There was welcome for the formation of joint offices to deal with some aspects of the consents procedure. It is clear much more could be done. The Department for Transport needs to take a lead to ensure that consenting bodies work together, and that they respond promptly.

145. Modern Ports: A UK Policy aims to "make regulation add value rather than unnecessary cost, ensuring that regulators co-ordinate their overall demands."[127] Whilst a standardised information system may assist the Government in their deliberations, it is not clear how the Project Appraisal Framework will contribute to the general streamlining of the planning process. The Government should therefore give greater consideration to reducing the timescale and complexity of the overall process. A necessary element of this will be to improve interdepartmental co-operation.

Decisions

146. The Department for Transport notes that A Project Appraisal Framework for Ports is "intended to be an aid to decision making, but does not and cannot, of itself, lead to a single number or indicator that suggests a particular outcome."[128]

147. The Framework has been established to assist in the decision making process. The Government does not wish to accept responsibility for port planning per se.

"DfT is not convinced by arguments that they, or some independent body, are in the best position to identify need and pick winners (and losers). It is our belief that the commercial pressure and competition to bring forward projects in time to meet demand, but at the same time meeting environmental concerns through the public inquiry system, is the best approach. However, the nature and scale of the environmental impacts of port developments are likely to be of such importance that ports are a special case. Therefore, there is a need for an appraisal framework tailored to meet the particular situation of ports. This will help developers put forward well argued cases, enable those affected by the development to understand what is proposed, and help those in the planning process make informed decisions."[129]

148. However, this does not address the difficulties in weighing up the competing claims of different development proposals. The Royal Society for the Protection of Birds (RSPB) noted that despite this drive to standardise information regarding port planning, the Government takes an individualist approach regarding the processing of applications:

"In answer to a question about whether applications for port development at Dibden Bay, London Gateway and Bathside Bay would be determined together, the Minister David Jamieson replied: "there are separate applications running on individual timetables and there is no compelling reason why they should be determined together" (House of Commons, written answer 15 May 2003, Col 340W). It is the RSPB's view that there are compelling legal and policy reasons for these applications to be determined together."[130]

149. As we have seen, the United Kingdom's environmental obligations mean that proposals for development which would harm protected sites must be in the overriding public interest, and must be preferable to alternative solutions. Environmental groups consider that proposers should look at a wide range of alternatives, including "alternatives outside the UK where such alternatives could serve the UK, as well as alternatives within existing port developments." On the other hand:

"The port operators feel that there should be no requirement on them to compare alternatives outside of their control. They are not in a position to assess the details of alternatives that do not exist, or alternatives that might be, or are being developed by separate commercial or other bodies. They are also sceptical about the value of any discussion that might arise about alternatives outside of their control."[131]

150. The Department's position is that:

"it would be unreasonable to ask port developers to make detailed comparisons of their proposals with alternatives not under their control. But the framework cannot determine the nature of discussion at public inquiries and elsewhere. It is for this reason that we suggest that developers might want to prepare for questions about alternatives, using publicly available information. The framework does cover the appraisal of alternatives that make better use of existing port infrastructure. DfT is committed to making available more information about port traffic and infrastructure to enable an informed discussion to take place."[132]

151. However, although this is rational in itself, it may not fulfil the United Kingdom's international obligations. According to the Habitats Directive (Article 6(4)), a plan or project that may damage a Natura 2000 site cannot proceed unless there are no alternative solutions. The European Commission interprets this to mean that the competent authority must make comparisons between alternatives. On this basis the Secretary of State must examine all alternative plans for meeting predicted container port demand currently in the planning system in order to select the least damaging proposal or proposals which meet the identified need.

152. Article 5(3) of the EIA Directive requires the developer to provide information that outlines the alternative studies and main reasons for arriving at the chosen outcome taking into account environmental effects. The proposals for Dibden Bay, London Gateway and Bathside all contain this information and again the Secretary of State is required to consider it in full.

153. We also note that in the recent case of R (Medway Council & Others) v. Secretary of State for Transport one of the grounds for upholding the judicial review of the decision to omit Gatwick from the consultation process was that "it was irrational to exclude all Gatwick options from the consultation process" because a Gatwick solution might have "potential to impact on the question of whether or not there were imperative reasons of overriding public interest in favour of Cliffe", which is an environmentally sensitive site. [133]

154. The RSPB maintain "A full comparative assessment of these alternatives [planning applications] will only be possible once the Secretary of State has the planning inspectors' report before him."[134] Hampshire County Council considered there should be a national strategic planning framework in which port proposals could be considered.[135] Although we understand why the Government wishes to have a market led approach to port development, the case for major infrastructure projects is frequently based on national need. The Government intends to set out a clear framework to guide the aviation industry in its proposals for new airport capacity. We do not see why it cannot take a similar approach to ports. The Government must consider individual applications in the context of a national policy, and this may mean that it cannot consider single projects in isolation. There are compelling arguments for planning at an integrated national rather than individual level. We recommend that the Government adopt such an approach. The Government should continue its commitment to expansion which can be defended on environmental grounds and engage in adequate planning to determine where compensatory habitats will be needed.

123   S.I. 2002, No. 1223, Schedule. Back

124   A Project Appraisal Framework for Ports, Introduction. Back

125   HC (2000-01) 244 i-iv, p. 181 and POR 4 Back

126   Ibid, p. 161 Back

127   Modern Ports: A UK Policy, para 1.2.2. Back

128   A Project Appraisal Framework for Ports, para 3.3. Back

129   A Project Appraisal Framework for Ports: Commentary on Responses to the Consultation, para 11. Back

130   POR 18A Back

131   A Project Appraisal Framework for Ports: Commentary on Responses to the Consultation, para 14. Back

132   Ibid, paras 13-15. Back

133   See R (Medway Council & Others) v. Secretary of State for Transport - the 'Gatwick decision'. During the consultation on the Government's aviation paper. Air Transport in the South East, the decision to exclude Gatwick from the options was challenged on the grounds (among others) it might be singly or with other sites an alternative solution within Regulation 49 of the 1994 Regulations to more damaging proposals. Back

134   POR 18 Back

135   POR 17. See also POR 20 for a discussion of the need criterion. Back