Are planning decisions increasingly at the mercy of a vetocracy

Last weekend Robert Jendrick tweeted, “We need to dismantle the powerful vetocracy that has impoverished the UK for decades - and not just when it comes to energy infrastructure”. But is the claim of a vetocracy a fair reflection of the current direction of the planning system?

Single individuals can certainly effectively veto a development if they spot a procedural omission. Take for example Raymond Pearce, a local resident who successfully challenged a development consent order for the Vanguard 1.8GW offshore windfarm. Mr Pearce argued the cumulative impacts on the landscape had not been considered, leading to a 20 month delay before a fresh development consent order was granted in February 2022, just as Putin launched the country into an energy crisis. Shame about the 2 million homes which the offshore windfarm will supply with green electricity, now 20 months late.

Veto power by the Highways Agency and Natural England

It’s not only individuals who can wield power through the application of planning rules.  The Highways Agency routinely issues holding directions to local planning authorities to prevent them determining a planning application until the Highways Agency get around to a favourable view.  In many cases this can delay major schemes for years.

Natural England’s nitrate and phosphate neutrality policies have likewise had a dramatic impact, effectively preventing housebuilding across wide areas in a power-play as Natural England puts pressure on water companies to upgrade their sewage treatment works. Meanwhile, the housing crisis deepens.

A vetocracy allows a single actor or narrow interest to play a trump card. It is arguably a total corruption of the principles on which planning is based, preventing a decision maker coming to a balanced judgment in the public interest. 

The national mood swing

Given the fuel crisis and the summer’s drought, the national press seems to have become ‘anti-nimby’ overnight, equating a ‘vetocracy’ with ‘nimbyism’.  In mid August the Spectator ran an article drew attention to the link between England’s drought and the fact Britain has not built a reservoir since 1991.  Layla Moran MP must be regretting her vigorous opposition in March to a new reservoir in Abingdon, as she becomes the face of the new ‘vetocracy’.

Robert Jendrick’s article a few weeks’ later in a different newspaper widened the ‘powerful vetocracy’ much wider.  He wrote, “The water crisis can be traced back to constant opposition to the construction of new reservoirs in the South East. We remain trapped with stagnant productivity as businesses cannot invest in capital projects. Indeed, the government recently cancelled the initiative that sought to grow such capacity around Oxford and Cambridge, potentially adding huge value to UK PLC.  And the vetocracy is just as destructive at blocking vital energy infrastructure – making it virtually impossible to construct new nuclear sites or windfarms.….”

Back to the Spectator article, which claimed, “The most powerful force in British politics is the veto...Wherever there is a need for economic development, a need for housing, a need for infrastructure, and a risk that this need might overcome local objections in the service of the national interest, there is a check: planning laws; and a balance in the form of judicial review. The end result of this vetocracy is stasis.

At times it feels like every problem in Britain is neglected due to the government’s terror that someone, somewhere, will be upset by change. The layers of vetocracy are built in to prevent the headlines that would result. We can’t build housing because of vetoes. We can’t build lab space because of vetoes. Even something as basic and essential as making sure water comes out when we turn on the taps can be vetoed, because we wouldn’t want an unsightly reservoir over the road, or for a village to put up with construction vehicles rumbling by.

If it’s any consolation when you’re freezing this winter, these vetoes have also made sure that our electricity supply is as insecure and strained as it can possibly be.”

Many planners will be relieved the press, at last, seems to understand our frustrations.  But is the claim of a vetocracy actually true?

Opposition to a vetocracy

No wonder Robert Jendrick uses the term ‘vetocracy’ negatively, as it is profoundly anti-democratic.  As Erin O’Toole once said, “In a democratic society, nothing will ever receive unanimous support. The way to deal with this is to empower elected governments and ensure that they answer to voters, not to give a veto to those who are the loudest or most willing to protest or break the law.”

Most councillors on a planning committee will strongly agree that decisions should be made by votes, not vetos.  They understand that vetos undermine democracy and their role within it.

The political class is well aware that the United States has a problem with veto-induced paralysis, which acts as a warning to avoid veto power like the plague.  The problem with vetos is that it can only say ‘No’; it cannot create anything positive.  It is a recipe for incompetence and incapacity.

Extent of veto power in planning appeals

Aside from the Highways Agency, Natural England and Judicial Review challenges, does the planning system as a whole operate as a vetocracy?

“Veto” comes from the Latin for “I forbid”.  It therefore applies to an actor rather than to an issue.  Although objectors often feel a single environmental issue should veto a development, this is not generally reflected in Planning Inspectors' mindsets.  For example, the Planning Inspector’s Training Manual notes on the subject of Environmental Impact Assessments (EIA), “EIA is a tool to aid decisionmaking, but is not a process designed to introduce an environmental “veto” power into the planning process. On that basis the EIA Regulations do not preclude a decision-maker from permitting development with significant environmental effects. However, they do require that such decisions are taken with full knowledge of the environmental consequences.”

The planning system requires decision makers to balance the benefits of development against harms to come to a balanced decision, after taking into account ALL considerations.  The ‘balanced view’ is evident in the NPPF, in Local Plans and in the presentation of decisions in Officer Reports and in Planning Inspectors' Decision letters.  Objectors very often misunderstand that no one issue should veto a development, unless it’s a very large harm that outweighs all other considerations.  

For most appeals, the concept of a veto raises hackles because it fundamentally offends the sense of fair play in considering all factors when making a decision. The Planning Inspectorate rightly tries very hard to be seen to be impartial and fair.  Strictly speaking, on an appeal it is only the Planning Inspector that can forbid (veto) a development.

The problem often lies with objectors who assume they have a veto, even when one does not exist.  Eric Pliner has written about group decision making, noting that unless it is clarified beforehand, an individual, “will likely assume that her perspective is a veto or, at least, a vote – potentially leading to real frustration or anger if you don’t follow her counsel.”  This sounds wearily familiar to anyone involved in planning appeals.

He writes that the solution is, “before asking for ideas or opinions, make explicit whether you are offering the respondent a view, a voice, a vote or a veto.”  

To prevent misunderstandings, it would help if LPAs, appellants and Inspectors would all make it clearer to objectors that good governance allows for opposing views and many voices.  Individuals can rightly challenge organisations, but planning law gives them a voice, not a veto.

Impact on planning reform

Apart from the unfortunate cases over which the Highways Agency and Natural England have a stranglehold, a vetocracy is more of a perception than a reality in the vast majority of cases. The term is being used in the general press to mean a system that gives a strong voice to Nimbys.

Ironically, the more attention is given to a vetocracy, the less likely it is to happen.  With planning reform on the parliamentary agenda, the likely impact will be a determination to minimise the extent to which NIMBYS can hold back development. On this basis, it will be interesting to see how the concept of fighting vetocracy feeds through to the next five years of legislation and policy making.

Talk of a vetocracy is not really a fair reflection of the planning system, but it isn't the first time public attitudes have been shaped by a misconception about planning.  However, it might be the first time the public really get behind development as a result.  It's therefore worth repeating the phrase, 'a voice not a veto', loudly and clearly, to guide proceedings back to a fair and balanced appeal process.