Special Parliamentary Procedure – MMAG analysis and response

MMAG has taken extensive advice about whether this is a feasible next step -whether legally or politically. This is a very specialist, complex and rarely used process where the chances of success need to carefully weighed especially since it has never been used to examine the compulsory purchase provisions of local authority land as a result of the  Development Consent Order (DCO) made by the IPC.

To recap these compulsory purchase provisions within the IPC DCO are translated into parliamentary parlance via a special procedure order SPO. This means that the  Infrastructure Planning Commission (IPC) decision for an energy from waste plant at Rookery South in Bedfordshire, must now go through a Parliamentary stage where further objections can be made to the application and must be considered by a committee of MPs and peers, known as Special Parliamentary Procedure (SPP).

MMAG supporters will recall that the IPC held a compulsory acquisition hearing to examine issues in relation to the proposed acquisition of affected persons’ interests in land. Interest in land is defined as ownership, tenancy, occupation of land, power to sell,convey or release affected land or hold any interest in land – as defined by Sections 52 & 57 of the Planning Act 2008.

Despite our vociferous opposition, technically MMAG was not an affected person in terms of the Act (for the purposes of compulsory purchase) and the IPC accordingly gave no weight to any observation by ourselves or any other party not affected in respect of matters to do with compulsory purchase.

The right of petition against a Development Consent /Special Procedure Order DCO/SPO is open to any individual, group of individuals or organisation directly or specially affected by the provisions of a SPO to petition against that order. Clearly the local authorities would come within this definition. MMAG may well not.

Equally if the promoters of an order feel that a petitioner is not so affected they can challenge the petitioners right to petition. Indeed a counter petition may draw attention to the fact objections to the compulsory acquisition of statutory utility and local authority land will already have been considered during the examination of the application by the IPC and that this is simply  another process for objectors to reheat arguments on the same issue, with the attendant delay to a project that the government will have already approved of. (Remember the DCO is being sponsored by the Department for Energy and Climate Change who thus far have hidden behind the IPC). This would be at odds with the intention of the Planning Act 2008 , the national policy statements on energy infrastructure that nationally significant infrastructure projects be approved or rejected on a fast track basis. A counter petition may further argue that the petitioner does not have “locus standi”, that is the right to be heard against the order on the grounds the petitioner is not specially, directly or injuriously affected by the compulsory purchase provisions.

The promoters can also further argue there is a procedure laid down for making representations under the Planning Act 2008 before the start of the IPC examination that everyone had the opportunity to engage with and it would be perverse, unfair and uncertain to allow late objections to be made in particular cases on behalf of a particular set of affected parties. For example the SSP only applies to a minority of the total number of plots, subject to compulsory purchase. SSP is not available to the compulsory purchase of private land.

There is also the matter of costs. A landowner such as Central Bedfordshire Council who at their risk and cost who oppose the compulsory acquisition of their property is not liable for the costs of their opposition or the costs of any third party. However as regards other petitioners it is open to the Special Parliamentary Committee to also consider whether the petition was unreasonable and that the promoter has been vexatiously exposed to costs as a result of opposition. Central Bedfordshire Council has estimated that the costs of an objection/petition alone would be in the region of £120,000 which could be shared with Bedford Borough Council and there is the possibility that these costs may be exceeded. We can assume comparable costs on the part of the promoters. So a petitioner judged to be vexatious could end up with costs exceeding £240,000.

Although an affected party the main reason for the Councils maintaining an objection through a petition are that since the Council objects in principle to the development there is no need for the DCO/SPO. Central Beds principle reasons for objection were that the size and bulk of the facility will adversely affect the amenity of local residents and the highway network and the facility will source waste from a catchment area much greater than Bedfordshire contrary  to national/local planning policy that waste disposal should be local. Additionally Bedford Borough objected to the principle of incineration as a suitable technology. The local authorities may argue also that the emphasis placed by the IPC on the urgent need for energy infrastructure essentially rendered local objections irrelevant.

Theoretically if the Special Parliamentary Committee was persuaded that the IPC should have arrived at a different decision they could either not approve or amend the DCO. The length of Committee proceedings vary – they may be over in a day or last months. Realistically is this likely to happen ? We hope it does but it would mean the Committee effectively tearing up the Planning Act, changing its mind over the National Statements on Energy (passed in July 2011), defying the advice of the Department for Energy and Climate Change and starting all over again. For this reason its perhaps wise not to raise unrealistic expectations and create the impression that the special parliamentary procedure will be in effect an appeal process from the IPC. The SPC is more likely to take a much more restrictive view and concentrate solely on compulsory purchase issues.

In summary we have received no advice that this is a course of action with any reasonable chance of success for a community action group such as ourselves and the odds are disproportionate to the time and effort such a petition would entail if presented by MMAG. The local authorities as affected parties are entirely a different matter whose job as such is to defend our interests. We wish them well in this brave journey and hope that they eventually arrive at a successful conclusion rather than one beset with recrimination over the use of public money in a time of austerity over a high risk legal endeavour.

We will be monitoring proceedings in Parliament closely and haven’t forgotten that the Prime Minister in three answers to parliamentary questions emphasis that local people should decide these matters – now its time to deliver !

Hugh Roberts
Chair MMAG