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1 1 1 1 1 1 11 188 8 (2008) 20 ELM : SITING OF NUCLEAR POWER STATIONS AND ‘PARTICIPATING LAW’ : EDITORIAL
Given that the IPC enjoys, on these proposals, some degree of discretion in principle
to arrive at a decision on the merits, there remain further details to explore concerning
the striking of the balance between industry’s needs for streamlined decision making
and the due process requirements of participation law. By way of speeding up the
process, the bill contemplates the IPC placing greater reliance on written representations
than on oral representations, and thus this is one area where there are opportunities
to hear evidence more quickly than under the present regime. The issue which arises
here is that there will necessarily be less opportunity to cross examine on evidence
submitted, and indeed it is possible that there will be no opportunity to cross examine
at all. European participation law is not clear on the question of cross examination, and
thus the government may take the view that this falls within its discretion.

The more fundamental question, however, concerns the evidential issues that will fall
within the remit of an IPC ‘hearing’. Government consultation suggests that the hearing
will be confined to ‘local issues’, some of which will have been flagged up in the NPS.
Yet ‘local’ is deceptively difficult to define in the abstract. Is the conscientious objector
so central to the delays surrounding Sizewell B addressing local concerns when he
critiques the very concept of nuclear power? A similar grey area relates to those
individuals whose objection is that nuclear power raises their anxiety to unacceptable
levels, although they may not be able to prove that this anxiety is technically justified
in terms of a risk analysis. And how about the materiality of economic arguments,
expressed by a local taxpayer or electricity consumer who is worried that the long term
costs of generating electricity from the proposed site compels them to object? When
one also factors in the issue that has attracted most attention – the extent to which
the IPC can hear evidence relating to alternative uses of the site, or alternative sites for
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that particular use – it is difficult to see how the current proposals will satisfy the
demand for certainty.

(3) Parliamentary approval
It is not necessary to look as far back as the industrial revolution for examples of
parliament approving major infrastructure projects by means of site-specific legislation.
Major infrastructure development during the Victorian era was achieved within the
private bill framework, which delivered almost the entirety of Britain’s railways, canals
and sewage works, and many of its earliest power stations, through a reasonably speedy
decision making process financed by the private sponsor of the act. Today, one would
probably look to the hybrid act procedure over the private act simpliciter to facilitate
development of this scale. Examples of developments which have used this procedure
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to good effect include the Channel Tunnel and, currently, some of the main
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infrastructure for the London Olympics of 2012. Quite apart from the fact that the
hybrid act procedure is already in place, it offers many other principled advantages
over the Planning Bill, such as a deep connection with parliamentary democracy.
Indeed, what is particularly compelling in theory about this parliamentary approval
approach is that it provides a unique opportunity to combine traditional notions of
representative democracy with vogue notions of democracy of a more participative
character. For example, the Crossrail Bill was first debated (and approved) by MPs, and
27 In Trusthouse Forte Hotels Ltd v then opened to representations by 365 interested individuals and groups, who are
Secretary of State (1986) 53 P and 30
CR 293, it was suggested by Simon aiming to express objections to the bill of one kind or another. If one were to imagine
Brown J, with the approval of the Friends of the Earth in the place of the Ramblers Association, and local individuals
Court of Appeal, that the siting of expressing anxieties about safety and the environment as opposed to deflated house
a nuclear power station would prices, that would give a fairly good idea of what the decision making process would
justify more intense scrutiny of the mean in a nuclear energy context. The decision has every chance of being efficient, but
suitability of alternative sites.
28 Channel Tunnel 1987. Applications its strengths also rest on its compatibility with participation law.
were invited in 1985, and within
two years the necessary The hybrid bill procedure is not a means of pushing through environmentally sensitive
development consent for this projects ‘by the backdoor’. Sponsors cannot use it to circumvent the requirements of
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project had been obtained under the EIA Directive, which apply in parallel to the parliamentary process, nor does it
the Act. obviate the need for compliance with other process rights (such as those defined in
29 Crossrail Bill. See http:// the Aarhus Convention and those arising under Article 8 of the European Convention
services.parliament.uk/bills/2007-
08/crossrailhybridbill.html on Human Rights). And whilst it would arguably not trigger the SEA Directive, the
30 ibid. These are known as sponsor of any (say) Dungeoness (Nuclear Power Station) Bill would be advised
petitioners. voluntarily to subject themselves to the SEA process, to avoid any impression that
31 Sponsors of the Crossrail Bill were they are hiding behind the arbitrary remit of European Union law in this field. The more
required to prepare an
environmental statement in much serious concerns centre on the narrow standing requirements relating to the petitioning
the same way as they would have of parliament for a hearing. The current parliamentary rule is that only an individual or
done within the planning system. group ‘directly and specially affected’ by the bill is entitled to a hearing. Of course, a

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