Britain is a consultation nation

The Government is right to rein in consultation

Britain used to be good at building nuclear power stations. Really good. We built the world’s first - and then another ten within a decade for good measure. As late as 1965, Britain had more nuclear power stations than the rest of the world combined.

Britain used to be good at building nuclear power stations. We aren’t anymore. We haven’t finished one in three decades. And the one we are building is set to be, by some distance, the most expensive nuclear power station ever constructed.

There is one area of nuclear, however, where Britain is still world-leading: consultation. Between 2014 and 2022, there were no fewer than seven public consultations for the proposed Sizewell C nuclear power station. In fact, there were eight years between Sizewell C’s very first consultation (in 2012) and EDF actually applying for planning permission. (Sizewell C is still awaiting final sign-off from HM Treasury.)

EDF (Electricité de France) is, as the name suggests, a French company. In EDF’s heyday, they completed 42 reactors in the 1980s. Back then, France took a different approach to consultation. When Tony Benn, then-Britain’s Energy minister, visited in the 70s to learn about their programme. He wanted to understand how they obtained public consent for such a massive programme of building. The French official replied: “You don’t ask the frogs when you’re draining the swamp.”

Today, France does consult ‘the frogs’ but not by nearly as much as we do. France has very strict (but clear) guidance on what does and doesn’t count as consultation. By contrast, developers in Britain have a legal duty to consult, but exactly who and how is open to interpretation. The uncertainty results in developers, whether that’s EDF or National Highways, consulting again, and again, and again.

There are good reasons to consult the public. It is a way of spotting problems and nipping them in the bud. I suspect the Toby Carvery in Enfield wishes it ran a consultation before it cut down a 500 year old oak. It can also help drum up support for a project. It is no surprise that the Prime Minister is fast-tracking plans to build a new Universal Studios theme park in Bedford given that Universal’s consultation revealed that nine out of ten locals backed the idea.

Yet, consultation in Britain has evolved from good practice to a time-consuming (and expensive) box-ticking exercise. Britain would be better off, as the Government is now proposing, if the legal duty to consult before submitting a planning application for major infrastructure was scrapped altogether.

Too much of a good thing

One reliable way to turn a good thing bad is to make the good thing a legal requirement. For most planning applications, such as for a new housing estate, there is no legal requirement to consult before submitting an application. In almost all cases, developers still make the effort to consult. The problem is when consultation is a legal duty the purpose of a consultation is no longer to meaningfully engage the public, it is to avoid being judicially reviewed.

In theory, developers are only legally required to carry out a single 28 day consultation. Most do more: much more in fact. Sizewell C’s first consultation ran for four months. The second, third, and fourth consultation all ran for around ten weeks.

The problem isn’t just that consultations are more frequent and run for longer than originally envisioned. The problem is also the sheer amount of material that needs to be produced in advance of a consultation.

For a consultation to count, it must contain enough information to allow people to meaningfully comment. What is enough information? In the case of the Lower Thames Crossing that meant a 144 page consultation brochure, a 166 page document addressing ‘design, construction, and operation’, a 1,043 page environmental document (plus additional pages of charts and tables), and a 763 page traffic forecasting report. All of this takes time (and money) to produce.

Was all of that an overreaction from risk-averse bureaucrats in response to scare stories from lawyers and consultants who stand to gain financially by checking and producing all of this paperwork? No, it turns out. In fact, hostile local authorities objecting to the Lower Thames Crossing were able to delay it in 2020, in part, by arguing that the project had not been adequately consulted on.

The local authorities who objected argued that the five (!) consultations, which were held, should have run for 12 weeks (not 6, 8 or 10 weeks as they did). They thought the 1,043 page environmental impact assessment was much too brief. They ignored the four hundred and twenty other meetings and workshops held in addition to the formal consultations. None of this was explicitly required by the law.

Let’s be clear. The local authorities who successfully argued that the consultation was inadequate didn’t really care about the consultations. They simply didn’t want the scheme to happen. There were no changes at consultation that plausibly would have won them over. The aim was to delay the project, in the hope they might make the project so expensive that the Government cancels it altogether. On this front, they may still succeed. The Lower Thames Crossing may have finally got planning permission, but its budget has ballooned from £5.3bn to £9bn. There is still no guarantee the Government will fund it. It could still go the way of HS2’s Northern Leg.

Their success in delaying the Lower Thames Crossing has opened a can of worms. Local authorities are allowed to submit an ‘adequacy of consultation’ report. This document summarises whether or not they think the consultation was right and proper. It is now common for NIMBY councils to submit eerily similar (read: plagiarised) reports to the one that led to the Lower Thames Crossing being delayed.

The threat of legal action and delays due to ‘inadequate consultation’ create a further problem: inflexibility. Even small changes need to be consulted on. Developers who identify ways to make their project better are forced to choose between another lengthy expensive box-ticking consultation or a worse project.

And that’s not the only legal risk. Consultations are meant to be advisory, but a failure to properly take onboard a recommendation made in a consultation can invite legal challenge. Developers sometimes respond by running yet another consultation instead of fighting these claims in the courts, even if chances are they will win.

Consultation often changes projects for the worse

It might be worth tolerating all of these delays if it were at least true that consultations made projects better. But, it is far from clear the public gets better roads, railways, and power stations as a result of all of this consultation.

What we seem to get instead is more expensive infrastructure and, in the case of renewables, less power.

• The Hornsea Three Offshore Wind Farm reduced the number of turbines from 342 to 300 in response to consultation.

• A solar project in Northumberland reduced its generation capacity by a quarter in response to consultation.

• In Scotland, the Kilgallioch Forest Wind Farm was reduced from 132 wind turbines down to 99. Why? You guessed it: 'The company made the move in response to feedback received during the consultation process.'

That’s just three examples, but there are many, many, more.

While for renewables, consultation seems to scale projects back. For roads, it tends to make projects more expensive by adding numerous bells and whistles. National Highways produced a website detailing every single change they made to the Lower Thames Crossing in response to consultations. The tunnel entrance was moved 950m away from the river; three additional green bridges have been added; the overall height of the road has been reduced by as much as five meters and 80% of the route is now in a cutting, false cutting or tunnel.

One study by Leah Brooks and Zach Liscow, a top economist in the Biden Administration, explored how the rise of what they call ‘citizen voice’ made roadbuilding more expensive in the US. A single 28-mile stretch of the I-696 that runs through Detroit’s northern suburbs is instructive. It was built in three legs of similar length with similar geography. The first leg, built before a wave of environmental legislation that made it much easier for people to ‘participate’ (object) in the development process, was cheap. It cost around $17m per mile in today’s money. The next two legs, built after, were not cheap. The third and final leg, finished in 1989, cost seven times more than the first leg. This increase in costs was magnitudes more extreme than the rise in labour and material costs would suggest.

The authors found that post-1970 (when all of this environmental legislation came in) roads got wigglier. A straight line may be the shortest distance between any two points, but straight lines are controversial. Straight lines tend to go through or get close to people who respond to consultations with very strongly worded letters. There’s a cost to wiggliness however, and not just in delays. Wigglier roads are more expensive to build.

Removing the statutory requirement to consult will not eliminate this kind of cost bloat entirely. When HS2 opens, passengers making the 49 minute journey from London to Birmingham will only get seven minutes of daylight due to the extensive tunneling through the Chilterns to protect the views of wealthy homeowners (and bats). HS2 was passed via Hybrid Bill and as such, did not have to complete a statutory consultation. In this case, HS2’s costs grew because angry residents wrote to their MP demanding changes.

What does seem to be the case, however, is adding more and more opportunities for members of the public to object increases the pressure on developers (especially when they’re not subject to market pressures like National Highways) to accede to cost-increasing demands.

One argument for extensive consultation pre-application is that addressing issues upfront (rather than during the six-month examination phase) makes the overall process quicker. That was arguably true in the case of Hinkley Point C. Its three and a half year pre-application process was followed by a relatively smooth (and quick) formal process. All things considered (pre-app and post-app), it gained approval in marginally less time than it took Sizewell B – the last nuclear plant we built– in the 80s (1 year pre-app, six years post-app).

This is no longer the case. For Sizewell C – the pre-application process alone – took longer than the entire process for Sizewell B. And the post-application bit of the process is taking longer too. The time for major projects between making an application and getting a decision has increased by 65 percent between 2012 and 2021, from 2.6 to 4.2 years. Whichever way you look at it, the system isn’t delivering faster decisions.

The case for abolishing pre-application consultation requirements is overwhelming

The Government is proposing amending the Planning and Infrastructure bill to eliminate the duty to consult pre-application for nationally significant infrastructure projects altogether.

What, on paper, looked like a sensible addition to our planning process has morphed into a monster. Meaningful public engagement has been replaced with bureaucratic box-ticking. NIMBY councils are abusing the duty to consult as a means to delay controversial (but necessary) projects from the road tunnels in the South East to offshore wind farms in Scotland.

If the Government is to hit its 2030 target to get gas (almost entirely) off the grid, then measures like these are essential. It is estimated that removing the requirement could shave a year off planning timetables for the average project. For projects like the Lower Thames Crossing and Sizewell B, we are looking at even larger time savings.

And we must remember, there is a big difference between abolishing the legal requirement to consult and abolishing consultation altogether. Infrastructure developers will still consult the public. The difference is that consultations under the new policy will be focused on matters of real substance, unlike the current system where developers' main reason to consult is fear of being sued. Consultation is not mandatory under Britain’s other planning regimes, such as the Transport and Works Act Order process, but consultation still proceeds regardless.

Nor is the statutory consultation the only opportunity the public gets to have their voices heard. Even if developers eschew consultation entirely, there is still a six month Examination period where the public can comment every other week with independent inspectors reading their submissions and asking questions on that basis.

This is a change that will undoubtedly face pushback from certain members of parliament, but it is a necessary change. Without it, the Government’s pledges to build more wind farms, pylons, and homes cannot be met.

There is usually not a consultation for legislative amendments like this, but if there were, Britain Remade’s response would be simple: “do it now!”.