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Planning Bill

Volume 704: debated on Tuesday 14 October 2008

House again in Committee.

Clause 11 [Suspension pending review]:

[Amendments Nos. 88 and 89 not moved.]

Clause 11 agreed to.

Clause 12 [Pre-commencement statements of policy, consultation etc.]:

[Amendments Nos. 90 to 97 not moved.]

Clause 12 agreed to.

Clause 13 [Legal challenges relating to national policy statements]:

98: Clause 13, page 6, line 31, leave out “6” and insert “12”

The noble Lord said: This is a large group but the amendments are relatively small and we can deal with them simply and, I hope, fairly expeditiously. The amendments are designed to extend the period in which a claim for judicial review can be brought. It is a similar argument to that on 28 days and 42 days. We are suggesting that we move from 48 days to 98 days, or 12 weeks. Sometimes legal issues can be difficult. At this stage, the decision on whether to bring a judicial review, if it is to be brought at all—the probability is that it will not be—is something for which we ought to allow time.

Other amendments in the group would ensure that the time limit ran from the date of publication rather than the date of the Secretary of State’s decision. If the Secretary of State reaches a decision on a Friday afternoon, the publication of that decision may well not be until Monday. Although three days may seem insignificant, my experience suggests that lawyers could argue about three days for three weeks or even three months. The date of publication ought to be the appropriate point at which to start the clock. These are fairly simple amendments and I beg to move.

I have tabled a number of amendments in this group. They pretty much make the same point as that made in those tabled by the noble Lord, Lord Dixon-Smith. Publication by definition comes later than the decision. It may be only half an hour or, as he says, it may be three days. I might be capable of arguing the issue for three days, but probably not for three weeks. I have taken more than three seconds to speak, but my speech is closer to three seconds than to anything else.

Amendments Nos. 98, 99 and 105 concern the 12-week notice for judicial review. On the one side this Bill is about speeding up the processes, while on the other side it is about the normal civil procedure for filing for judicial review, which provides a maximum time limit of 12 weeks—although the Civil Procedure Rules state that that can be shortened by specific enactments, which is what we have here. We need to think afresh and work out what is reasonable in the circumstances.

I speak reluctantly on these amendments because I have added my name to others that seek to stretch deadlines. An applicant serving a notice on a landowner or a local authority and expecting them to provide a full and considered response in 28 days seems unreasonable, as is the provision in Clause 50, with a farmer having only 14 days in which to respond; he might well be on his holidays.

However, parties trying to establish a judicial review will have been following the debate for several months. They will almost certainly have been involved in consultation and will have followed the parliamentary debate—eventually, it is to be hoped, in both Houses—and the shape of the national policy statement will be obvious to them long before it is published. The difference between this and the other time limit changes, which I support, lies in the fact that the claim form to be filed, as I understand it—lawyers may correct me—merely has to set out the grounds for the review; it does not have to state the whole case in writing. The supplicant can also add to it at a later date and can, in special circumstances, even ask the court for an extension to the time limit.

While I can see both sides of the argument, I share with the noble Lord, Lord Jenkin, a distaste for the currently overused judicial review process and the uncertainty that it might create in this instance. I fear that I am not able to support the extension of time limits from six weeks to 12.

I am grateful to noble Lords for explaining their concerns and I hope to reassure them that there is a good reason for doing this as we have.

Amendments Nos. 98, 99, 101, 105, 109 and 112 would increase the time in which a claim for judicial review can be commenced in respect of national policy statements from six weeks to 12. Noble Lords have argued that six weeks is an unreasonably short time in which to require someone who wishes to challenge an NPS to file the appropriate claim form. I am well aware that the usual rule in judicial reviews is that claims must be filed promptly and, in any case, not later than three months after the grounds to make a claim first arose. As the noble Lord, Lord Cameron, suggested, we are trying to create in the Bill a process that is fast but certainly not overhasty. We need to introduce focus and discipline into the process but, essentially, this is a fair regime. It provides people with an opportunity to challenge national policy statements in the courts but it ensures also that that does not cause unnecessary delay.

It is important to remember the context in which this will work. The processes for drawing up, designating and reviewing national policy statements will be clear, open and undertaken in full public view. NPSs and amendments—unless, in the view of the Secretary of State, a proposed amendment does not materially affect the policy—will be subject to public consultation, an appraisal of sustainability and parliamentary scrutiny. So, within that, we have created a robust and transparent process. On those grounds, it is reasonable in such cases to expect that the claim forms should and could be filed within six weeks.

I also argue that this is not an entirely new provision. A six-week period for commencing proceedings applies at present in the case of statutory challenges to the development plan under the Town and Country Planning Act 1990. So there is a useful precedent. Clause 13 strikes the right balance between the national interest and the interest of individuals who might want to challenge an NPS.

All the other amendments in the group would ensure that the time limit for bringing a legal challenge runs from the date of publication of the Secretary of State’s decision, which marks the end of the relevant administrative process. They argue that there should be greater clarity as to when the Secretary of State has made a decision in respect of these actions and that that point should be the publication of that decision. I am not sure that I agree with that in principle, but if the key concern is that there should be a clear announcement of a decision, I can give that assurance. I understand the noble Baroness’s concerns that the Government should not make a decision that would affect people’s rights to bring a legal challenge but not announce it. I can certainly reassure the Committee and place it on record that, where the Secretary of State makes a decision that could give rise to legal challenge under Clause 13, this will be announced. I hope that that satisfies both noble Lords and that the amendment will be withdrawn.

I am grateful to the noble Baroness for her reply and her assurance that, where the Government make a decision, it will be announced. It does not alter my marginal problem regarding a decision taken on a Friday with the possibility of an announcement not being made until Monday. I will need to study the noble Baroness’s words with rather more care because, in such a situation, three days might be critical. I am grateful for the Minister’s response. I know that she intends to be helpful and, with that, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 99 to 114 not moved.]

Clause 13 agreed to.

Clause 14 [Nationally significant infrastructure projects: general]:

115: Clause 14, page 7, line 30, after “above” insert “or below”

The noble Lord said: These are probing amendments which contain a number of technical questions. The Bill defines the situation vis-à-vis power lines and pipelines in a particular way, and that needs to be expanded. Amendment No. 115 would include electricity cables below ground as well as above. I accept entirely that undergrounding major electricity power lines is a very expensive operation, but the reality is that from time to time it is done, and done for very good environmental reasons. I would not want a situation in which power lines could not be put underground because they had not been included in the Bill. Putting something underground may well not require planning permission, but that would be remarkable and might tempt a lot of landowners to start building subterranean houses, which I am sure is not the Bill’s intention. We need to debate that.

Amendment No. 117A deals with gas pipelines that do not carry what we consider to be gas, such as natural gas, but carbon dioxide. There is the question of whether gas lines carrying carbon dioxide are peripheral to the power station if they are involved in the process of carbon sequestration. Everybody hopes that carbon sequestration will work; they see it as a lifebelt for the coal industry. My view is that we do not know the cost of carbon sequestration; still less do we know the energy penalty of placing carbon sequestration on a coal-fired power station.

These are real questions. If we are to continue with coal-fired power stations in any numbers, while a pipeline may initially be peripheral to the planning application for the power station, we may in the end need to consider the construction of a carbon dioxide grid. That will be a major operation and we ought to think about it at this stage.

Concomitant to this line of thought is the suggestion that one of the best places to sequester carbon dioxide is under the North Sea in the holes from which we have extracted natural gas or oil. Indeed, it might improve the reclamation rate from oil or gas fields as a consequence. However, if we are to do that, will it have any impact on the marine Bill, which we have not yet seen? I do not know the answer. I hope that the Minister will be able to reassure us.

Amendment No. 125 deals with the reuse of heat, which currently flows from power stations into the atmosphere or into the sea. One of the interesting things about the installation of the Bradwell power station 30 years ago was that, within a short period, the timber quay which had been built out into the Blackwater estuary was attacked by the Teredo worm. The Teredo worm is a tropical problem, but the heat outfalls from the Bradwell power station had raised the local temperature in the estuary to the point where the Teredo worm could flourish. That is a potential problem which we need to think about. The disposal of waste heat is a very real issue. I said enough about it earlier not to need to repeat how we might need to think about using it, but I am confident that it will be a major issue in the future and we need to think about it at this stage.

Amendment No. 133 is simple and straightforward, dealing with the issue of connectors which are not in the United Kingdom. The Bill adequately covers Wales and Scotland—it does not cover Northern Ireland; I do not think that we have any direct connectors to Northern Ireland at the moment, but I suspect that we ought to cover it in the Bill, because, if we do not, it is as sure as night follows day that, about 10 years from now, somebody will produce a connector to Northern Ireland. We ought to think about that. We have connectors to France, to the Low Countries for gas, and it is possible that we will have direct connectors from Norway to England. The Bill does not provide for that. These are developments which one cannot predict, but they might happen. We need to give careful thought to the possibility, because, if we do not, it is again as sure as night follows day that somebody will at some point raise the issue and it will be an embarrassment. There is again the question of the relationship with the marine Bill, which is yet to come. I look forward to hearing what the Minister has to say on this broad spectrum of subjects. I beg to move.

Ministers in Northern Ireland come and go and it is a long time since I was there, but certainly when I was there I called on the Scottish commissioner in Brussels to discuss what view the EU would take of a connector to Northern Ireland. I should be very surprised indeed if it had not arrived in the intervening period.

I have one amendment in this group, which would reduce the limit size for generating stations onshore from 50 minimum to 30 minimum megawatts. It is probably a much better figure, although we can debate those numbers all night and go through all the different statistics. I know that my noble friend has tabled some amendments. It depends on whether one believes that having a lower figure would make it easier to get planning permission through this route than another one. Probably many of the amendments in this grouping reflect that. But I am sure that we can talk about this afterwards, outside the Committee.

I have one question for my noble friend on the gas transporter pipelines in the government amendments. It is always important to try to understand what is meant in legislation like this. How do we understand the construction of a pipeline by a gas transporter? A gas transporter to me is something that transports gas; it could be a ship, a lorry or a train. The only way I know of constructing a pipeline is either by digging a trench and welding the bits of pipe together and putting it back in or, occasionally, by something called thrust boring, whereby you can build pipelines under rivers. You start to drill on one side of it and the drill can go round corners and it is quite clever. But I would not have called that drill a gas transporter. When my noble friend comes to wind up on this mammoth number of small amendments, perhaps he will explain what a gas transporter is and how it builds a pipeline.

I am responsible for Amendments Nos. 122 and 126, which are designed to address the offshore infrastructure, as has been mentioned by previous Members of the Committee. The Minister, with his dual ministerial function, is probably more aware than anyone of the connection of this Bill with the Climate Change Bill and the Energy Bill. My noble friend Lord Dixon-Smith has indicated that there is a fourth Bill connected with this—the forthcoming marine Bill, which is at draft stage. It makes provisions for offshore infrastructure, so I seek through my amendments to probe the Minister on how this Bill will interact with the forthcoming marine Bill.

My concern is that, as this current Bill is presented, it ignores the advent of the forthcoming Bill and the creation of the Marine Management Organisation. As the World Wildlife Fund and the Royal Society for the Protection of Birds pointed out in their excellent brief, this Bill gives the Infrastructure Planning Commission the power to determine proposals in the marine environment—notably offshore generating stations of more than 100 megawatts in Clause 15 and airports in Clause 22. That is really inappropriate in light of the fact that we have a draft marine Bill, which actually has provision for a marine spatial planning system and a specialist marine management organisation—the MMO—to simplify the plethora of regulatory regimes in the marine environment.

Given that the IPC has a role in the marine environment running counter to the Government’s stated aim of generating a strategic overview and reducing complexity at sea through marine planning, how are these two things reconciled by the Minister? Within the marine environment, the MMO should surely make all decisions on behalf of the Secretary of State acting with Welsh Ministers when they are involved because of the devolved powers to the coastal regions adjacent to Wales.

These two amendments would mean that the decision-maker remained the Secretary of State—or the Secretary of State in collaboration with Welsh Ministers—until the MMO was created through the marine Bill. To my mind, that is a sensible arrangement and I hope that the noble Lord will agree that there is an imperfection in the way that the current Bill is drafted in that it fails to recognise where we will be taking this legislation when the marine Bill turns up.

I support the words of the noble Lord, Lord Taylor of Holbeach, about the forthcoming marine Bill and the way in which this legislation—indeed, the whole of the planning system—will link in with and be changed by the provisions of that Bill, which we are expecting to see in the next Session. It will be interesting to hear what the Government have to say about this. It may well be that some more thought is needed before the Bill is finally passed in this House.

I am responsible for Amendment No. 24, which would raise the threshold for an onshore wind power station—or wind farm as they are widely although quite inexplicably known—from 50 to 300 megawatts. It is true that at present there are few onshore planning applications in the pipeline for onshore wind power stations of more than 50 megawatts. That would require, for example, 25 turbines of 2 megawatts each. However, the threshold is not out of reach for developers as turbines increase in power all the time and the incentive would be there for developers both to increase the size of turbines and increase the number of them per application. That provides an even more horrible prospect for the benighted denizens of and visitors to our beautiful upland landscapes.

Ideally, I would have liked wind power stations to have been excluded from the Bill altogether, but as they are not mentioned by name it is not easy to see how that could have been done. The threshold of 50 megawatts applies to all onshore generating power stations. Of course, that is a ludicrously low figure in relation to gas, coal-fired or nuclear power stations, which typically range from 800 megawatts upwards to 2,000 or more megawatts per station. Nor was it necessary for that threshold to be set so low to catch the Severn barrage. It could have been set so low only in order to catch wind power stations—if not many of them today, perhaps more tomorrow and more still if the amendment of the noble Lord, Lord Berkeley, were adopted, which I think was his purpose.

In doing this, the Government are abusing the purpose of the Bill. The purpose of the Bill is to deal with nationally significant infrastructure projects. Indeed, that is the title of this clause. How could they conceivably justify calling a 50 megawatt wind farm a nationally significant project? I should like the Ministers on the Front Bench opposite to answer that question directly this evening.

A wind power station or wind farm of 50 megawatt installed capacity, which is what capacity means in the Bill because it can operate only part of the time owing to the variability of the wind, has on average in this country a load factor of 27 per cent. That means that a 50 megawatt power station as described in the Bill can develop only about 15 megawatts of power over the year. A thermal power station can operate at 80 per cent plus of capacity and so produce 50 to 100 times the amount of electricity of a 50 megawatt wind power station. How can they be talked about in the same breath?

My amendment raises the threshold by a factor of six. This would take account of the load factor—it is misleading in the case of wind power and talking in terms of the installed factor because of the huge difference between them—and doubles that. This still does not take it anything like into the same league as a modern thermal power station, but would raise it substantially for all that.

I shall make two points, the first of which I have discussed with my noble friend Lord Dixon-Smith. Amendment No. 125, looking at the definition of a generating station, would add a requirement that it should be capable of generating heat. This would clearly be highly desirable wherever it was feasible. However, because many of the generating stations that would fall within the purview of the Bill will be nuclear power stations—I do not think that anybody is contemplating putting a nuclear power station into the old Battersea site—they will be remote. It is now well recognised that to try to use the heat from a such a power station may be wholly impractical. I have been given the example of when there was an application for a combined cycle gas turbine at West Burton. It was made clear that while the Government certainly wanted to see if there was a possibility of CHP and the use of heat, the conclusion was:

“The Secretary of State is of the view that the Company has seriously explored the possibility of CHP and agrees from the evidence presented that there is no existing heat load within a reasonable distance of the application site to justify amending the proposal to be CHP”.

The point forcefully made to me on behalf of the Nuclear Industry Association is that if my noble friend’s amendment were to be added to the Bill, however much one might recognise the desirability of promoting the use of waste heat, it would actually kill off the prospect of people investing in new nuclear plants. As I say, I have discussed this with my noble friend and he understands the problem.

While I am on my feet, in order not to have a separate debate on whether Clause 14 shall stand part of the Bill, I raise the question of nuclear waste. I discussed this briefly with the Minister the other day and she kindly arranged for me to have an excellent note on it. I was told that the phrase “hazardous waste” at the bottom of the list does not include nuclear waste. I accept that. However, the note says:

“Whilst not having yet taken a final decision, Government is currently inclined to look towards applying the new system in the Planning Bill, and believes that the new arrangement could assist in the delivery of agreements with local communities”.

It goes on to outline the consequences of that. When the Minister replies, it would be helpful if she could give a slightly fuller explanation of the factors leading Ministers to consider the possibility of using the Bill to deal with a huge project: the underground repository for hazardous nuclear waste. After all, there is a whole process going forward under the Managing Radioactive Waste Safely programme for developing a volunteering approach so that some local community could offer to host the waste.

Although I am extremely grateful for the note that I received from the noble Baroness’s department, it seems to me at first sight that there is a considerable difference in the whole process and procedure that would be necessary for using what is envisaged in the existing radioactive waste policy and what would be involved if these matters had to come under the Infrastructure Planning Commission. If it is not possible to answer that question, I should be grateful if somebody could write to me and spell it out. Clause 14(1)(o) refers to,

“the construction or alteration of a hazardous waste facility”.

At first sight that could refer to a nuclear waste facility. Apparently it does not, but there is a possibility that it might do. I should like that to be explained in correspondence if it cannot be done tonight.

Having listened to many hours of debate it is a great pleasure to discuss a very important part of the Bill, which sets the thresholds for the new national arrangements. I shall speak to a number of the government amendments and then address the other amendments in the group.

The first set of government amendments relates to the introduction of a new category of project into the definition of “nationally significant infrastructure project”; specifically, major pipelines constructed by a licensed “gas transporter”. My noble friend Lord Berkeley rightly asked me to define what that means. My understanding is that a gas transporter is a holder of a gas transporter licence issued under the Gas Act 1986, as amended. The Gas Act requires any person who conveys gas to certain—in practice, nearly all—premises in Great Britain, or into a pipeline of another gas transporter, either to hold a gas transporter licence or to be covered by an exemption from the requirement to hold a gas transporter licence. I should make it clear to my noble friend that the main gas transporter is National Grid Gas, which owns and operates the national transportation system for gas in Great Britain. The owners and operators of the gas distribution networks in Great Britain also hold gas transporter licences. The three independent distribution networks in addition to National Grid Gas are Scotia Gas Networks, Wales & West Utilities and Northern Gas Networks. I hope that helps my noble friend.

Government Amendment No. 131 inserts a new clause that sets out the conditions for when such a pipeline project will be considered a nationally significant infrastructure project, and so be determined by the IPC. The pipeline must be wholly or partly in England, must be more than 800mm in diameter and more than 40km in length; or the construction is likely to have a significant effect on the environment. The proposed pipeline will have a design operating pressure of more than 7 bar gauge and it must be expected to supply at least 50,000 customers.

Government Amendment No. 116 updates Clause 14 to reflect the new category of project. Government Amendments Nos. 117, 132, 134, 169, 289, 336, 402, 403 and 459 are consequential amendments to ensure that the existing pipeline provisions do not unintentionally apply to the new clause. This is important as these provisions extend to Wales and, for cross-border oil and gas pipelines, Scotland.

Amendments Nos. 130, 394, 404 and 455 are further changes to tidy up the Bill’s drafting, as we would otherwise need to define “gas transporter” in a large number of clauses throughout the Bill. Instead the term is now defined in Clause 220.

The Government consider gas importation, storage and transmission to be key components of this country’s infrastructure. This is already reflected in the range of projects set out in Clause 14. Pipelines constructed by a gas transporter, while mentioned in the planning White Paper were, however, omitted. This was because this type of project currently benefits from permitted development rights and we did not feel it necessary to include them in the new regime. However, in the other place it was suggested that gas transporter pipelines ought to be included in the new regime as they are critical to the transport of national gas supplies and many of the larger pipelines still need consent from the Secretary of State for other matters such as environmental impact assessment and other ancillary works along the pipeline.

Including those projects in the new regime would eliminate the need for multiple consents across different decision-makers, which is consistent with the whole intent of the Bill. My colleague Ministers examined this matter over the summer, including in discussions with industry, and we now bring to the Committee the proposal that large gas transporter pipelines should be included in the new regime. The threshold established through Amendment No. 131 will ensure that only the most significant projects are captured. In the light of the decline of North Sea gas production and the increasing dependence on imports, I hope that noble Lords will agree that those projects are of national significance and should be included in the new regime.

I understand that in previous debates in your Lordships’ House and in the other place on the Bill, there have been concerns over what has been described as the “mission creep” of the IPC. I hope therefore that noble Lords and Members of the other place will be reassured by the Government’s other amendments in Committee, which aim to reduce the IPC’s caseload. In particular, we are removing the less complex electricity line cases via Amendment No. 129, which I will come to now.

Clause 16 sets out when the installation of an electric line above ground will be a nationally significant infrastructure project; that is, projects with a nominal voltage exceeding 20 kilovolts. That was set to be consistent with the Electricity Act 1989. During consultation on the planning White Paper, the Government invited views on whether a line could be drawn between national and local electricity line projects. As responses to this question did not suggest any specific alternatives, the Government proposed at the introduction of the Planning Bill that all current electricity line cases be transferred to the IPC.

The Government have, however, listened to concerns raised by stakeholders and in debate in the other place. As a result, the Government feel that it would be appropriate to raise to 132 kilovolts the threshold for when an electricity line project will be considered by the IPC. Amendment No. 129 therefore changes Clause 16 so that the only overhead line projects that will constitute a nationally significant infrastructure project for the purpose of the Bill are those relating to the development of long-distance transmission lines and the very largest distribution lines. We hope that the amendment goes a long way to addressing some of the concerns that have been expressed and will ensure that the IPC deals only with those electricity lines that are of national significance.

I am most grateful to the noble Lord, and I welcome him to the energy Dispatch Box and wish him well.

Am I misunderstanding something? If this new procedure is intended to be a signal improvement and acceleration of anything that might have been possible under the old procedure, why is it that people seem to want to escape the new system by getting themselves below the threshold? I find myself deeply puzzled by that. One would have thought that if this was a new procedure that was going to accelerate decisions, people would want to come into it. As my noble friend Lord Reay said, and as the Minister has been saying, it appears that people want to get out of it. Have I misunderstood something?

It is a great pleasure to reply to the noble Lord, whose career I have followed with great interest over many years since we debated the health service a very long time ago, when he was Secretary of State for Health.

That is an understandable question, though I am slightly surprised—although I have not taken part in previous debates—since I understand that there has been some concern about whether the remit of the IPC will be too large and it would deal with too many projects. There has been concern about whether the workload would be so great that in fact it might be swamped by applications, which would mean that it would not be able to focus on what must be considered nationally significant projects.

That was extremely helpful, but it indicates that the change in threshold is more for the benefit of the IPC and the system than it is necessarily for the benefit of the promoter. One remembers the case of the Yorkshire transmission line, when 10 years elapsed between the application and when the line was finally built. One would have thought, therefore, that people would have said, “For goodness’ sake let us have this new procedure to avoid that sort of thing”. However, if the change in threshold is intended not to crowd out the whole process in the hands of the IPC, I can understand that. Maybe that is the explanation. I am most grateful to the noble Lord.

Yes, that is, I think, the explanation. I move on to amendments moved or spoken to by other noble Lords. Amendment No. 115 of the noble Lord, Lord Dixon-Smith, seeks to determine the position of underground electricity lines. My understanding is that they benefit from permitted development rights and are, therefore, not included in the scope of the Bill. However, I reassure the noble Lord that the IPC can require sections of a proposed overground electricity line project to be constructed underground if there are strong reasons for doing that.

The noble Lord made some good points about the desirability sometimes of underground lines, but reflected on their cost, which is huge. He may also know that the ecological balance is not entirely clear. My understanding is that for underground lines to match to performance of overhead lines, four separate trenches have to be built or, perhaps more appropriately, dug. That can disturb sensitive habitats and damage archaeological heritage. There is a debate about that issue, but the position is covered by permitted development rights.

The noble Lord asked an extremely interesting question about electricity lines to France, known as interconnectors, which allow us to obtain electricity from the French grid and vice versa. We had a fascinating debate about Northern Ireland. My understanding is that the position with France would be the same as it is for Northern Ireland: lines that were above ground would need consent under the Electricity Act 1989, but that consent would transfer to the IPC if the threshold was met. To the extent that interconnectors are on or under the sea-bed, they will need consent under the Coast Protection Act. Under the provisions of the draft Marine Bill, marine licences would replace those consents and will be dealt with by the proposed Marine Management Organisation. I shall come later to how that organisation will relate to this Bill, because it is of considerable interest to noble Lords and, indeed, to me, who will presumably have the pleasure of piloting the Marine Bill, when it is ready, through your Lordships’ House.

The noble Lord, Lord Dixon-Smith, raised an important point on pipelines for the transmission of carbon dioxide. He will be aware that we are moving to a higher dependence on gas imports and that is why we have included various onshore gas supply infrastructures in the Bill. Increasing dependence on imports means a requirement for additional offshore gas supply infrastructure. Existing gas import pipelines from Norway, Belgium and the Netherlands need consent under the Petroleum Act. Innovative offshore gas supply infrastructures, including the offshore storage of gas and the unloading of liquid natural gas tankers, is addressed through provisions in the Energy Bill.

Carbon capture and storage technology is still evolving, although one has hopes for, and has expectations of, its potential for the very reason that the noble Lord mentioned. Obviously, without knowing what form this might take, it is difficult to be definitive about what pipes might be used to transport carbon dioxide. Were carbon capture and storage to come forward as part of a generating station application in the future, we think that it could be included as an associated work to the power station application. I believe that the provisions relating to associated works and the guidance on that to be given by the Secretary of State are set out in Clause 111.

The noble Lord then went on to ask whether a national CCS pipeline network would be developed. The advice I have received is that it would be too expensive to be treated as an associated work to a generating station. However, a CCS pipeline might sometimes qualify in its own right under Clause 20. “Pipeline” is defined in Section 65 of the Pipe-lines Act 1962 as a pipe for the conveyance of anything other than air, water, water vapour or steam.

Clause 34 allows the Secretary of State to direct that certain applications be referred to the IPC if she considers the project to be of national significance. As the planning White Paper explains, a key reason for introducing this power was precisely to ensure that we were able to deal with changing technology, such as for carbon capture and storage.

In addition, Clause 14 allows the Secretary of State to add a new type of project to the list of nationally significant infrastructure projects so long as it falls within certain fields and in certain areas. I note that we will shortly be debating amendments which seek to take that discretion away. However, I hope that noble Lords will bear in mind that for the very reason that we cannot always anticipate new technology, we need to have provision in the Bill to allow for the legislative framework to apply to new situations. Having said that, I must not anticipate the exciting debate that we will have shortly on that matter. I consider it to be one of the most important provisions in the Bill in that it provides the basis for dealing with future technology changes which will be to the benefit of the national interest.

Amendments Nos. 122, 126 and 127 deal with offshore generating stations. Under the Bill, the IPC would be responsible for determining applications for onshore generating stations with a capacity of more than 50 megawatts and offshore generating stations with a capacity of more than 100 megawatts. For onshore projects, we have set the threshold at 50 megawatts to match the provision in Section 36 of the Electricity Act 1989. We proposed a threshold of 100 megawatts for offshore projects because they tend to be larger and have a less significant impact on people than those on land. We think it is sensible that the threshold for offshore projects which will be dealt with by the IPC is set at a higher level compared with onshore projects. The noble Lord, Lord Taylor—

My noble friend may or may not know that I agreed with his noble friend the Minister that this evening I would not move or speak to Amendment No. 127, which dealt with the very point that is now asserted to be the Government’s position. I should be most grateful if he could reassure me that I can have substantive discussions with his colleague the Minister on this and that his mind is not totally made up; otherwise, I fear that I shall probably need to speak to my amendment.

That is a very fair intervention from my noble friend. I can certainly promise him long and interesting discussions. I cannot go any further than that in giving any commitment but I shall certainly be ever eager to talk to him about this matter between Committee and Report.

The noble Lord, Lord Taylor, raised some interesting points regarding offshore issues and the future relationship of the Marine Management Organisation and the draft Bill. On the general principle of including offshore consents within the Bill there is an unprecedented amount of investment in our infrastructure required in the next decade or so, and we think that offshore renewables will play an important part. I understand that industry believes that 40 to 45 new large offshore wind farms will be needed within the next eight to 10 years to meet those challenges. We think that the IPC will be integral to achieving these goals for major offshore developments. That raises the question of how that integrates with the work of the marine Management Organisation and the marine Bill. That is a fair question. The Government’s intention is that offshore projects of 100 megawatts and below will be dealt with by the Marine Management Organisation, which is being set up under the proposed marine Bill. That body will be the UK’s strategic delivery body in the marine area.

We believe that the MMO’s role in marine environment matters is synonymous with the approach taken on land where local authorities will be taking decisions on smaller generating station projects. In addition, for energy developments under 100 megawatts the MMO will provide a one-stop shop single decision-making process similar to the IPC single consent regime. I understand that noble Lords have a number of points to make about the way in which this will work with the MMO regulation. I am happy to go through it in detail, or I can set it out in writing if noble Lords prefer.

I should be happy to see the Government’s position in writing, but I hope that the Minister recognises that there is some inconsistency in setting up a body that is deliberately designed to manage the seabed and to have authority over all that happens on our offshore development, and then placing another body on top and saying that when it comes to really big schemes someone else will have the responsibility of being the strategic managers of such projects. Given that the two Bills are following closely on each other that may be a formula for tension and disaster in the sense that two departments will each be pushing an agenda, which could lead to a great deal of confusion—not in the Minister’s case because he can represent both interests. But in Whitehall generally, I am not sure that the arrangement that the Government seek to put in place is durable. Will the Minister not only write to us but think again about this aspect of the Bill?

I am not intervening on the substance but it strikes me that if there is concern about possible confusion and tension between departments, the explanation on how this Bill will work with the forthcoming legislation should be on the record. I am often concerned that a letter, even if it goes to the Library, does not have the same status. I am sorry; I do not want to prolong things tonight.

The Minister did not refer to my Amendment No. 124 on onshore wind farms, and he certainly did not answer my question.

I am coming to that, but noble Lords would like me to say a little more about the Marine Management Organisation. I am in the unique role to ensure that the two departments work well together and it is my intention and the intention of both Secretaries of State to ensure that there is an integrated approach across government. I hope that this is not establishing potential conflict between the IPC and the MMO.

As I have already said, we saw as more anomalous the relationship between the IPC for the very significant national projects that we want to be covered and the role of local authorities as planning authorities. The MMO will have to make a unique contribution to sustainable development and the integrated management of the sea. It will be guided by the UK marine policy statement. We expect the IPC to draw on the expertise of the MMO. The MMO can add conditions to an order granting development consent if new information comes to light and can even revoke consents if necessary. The MMO will be responsible for the monitoring and enforcement of IPC consents, and the Planning Bill guidance will detail the nature of the advice that will need to be given by the MMO to the IPC. My understanding is that there will also be a memorandum of understanding to formalise the arrangement. MMO enforcement officers will use marine Bill powers to enforce the system.

Thought has been given to ensuring that there is an integrated approach. I understand that when we come to debate the marine Bill these matters will be fully debated and scrutinised, but I do not think that what is proposed in this Bill is inconsistent with the general framework of the Planning Bill or with the general structure of the IPC dealing with a smallish number of very significant national projects on an annual basis and the anomalous role of the local authority in terms of planning consents.

I hope that I can reassure noble Lords on that and that I have said enough to read the general principles into the record. I am happy to write in even more detail to noble Lords if they would prefer it.

I turn to—

What the Minister said depends on the IPC and MMO coming into existence contemporaneously. If the marine Bill were to be delayed, it would put a spoke in the whole thing. Is the Minister telling us that we are going to be discussing the marine Bill within months?

The noble Lord, Lord Greaves, knows that I cannot respond to that question. I can say that my ministerial colleagues and I are anxious to see the marine Bill in Parliament as soon as possible when parliamentary time allows.

I now turn to the question of onshore generating stations. My noble friend seeks to reduce the threshold from 50 megawatts to 30 megawatts and so bring more projects into the remit of the IPC. The noble Lord seeks to increase the threshold from 50 megawatts to 300 megawatts to reduce the number of projects. That suggests to me, on the government Front Bench, that we have the balance about right.

The Minister is not answering my question. How does he justify describing a wind power project of 50 megawatts generating only 15 megawatts a year as a nationally significant infrastructure project?

The noble Lord is anxious for me to respond, but he does not give me much time to get to the point. We reached the 50 megawatt limit because it was set in the Electricity Act 1989. It was originally intended to allow local generating stations, typically with a single gas turbine, to be consented below central government level while ensuring that nationally significant power was dealt with centrally. Although the advent of renewable energy technologies means that there is now a wider spread of generating station size, we think that the limit still provides a useful distinction. In wind farm terms, 50 megawatts is about 20 onshore turbines, which is enough to have a significant effect on the wider landscape.

The noble Lord should consider how many renewable energy projects built in the past 15 years would have been large enough to qualify for decision-making by the Infrastructure Planning Commission under the Bill. My understanding is that only 6 per cent of the 1,999 megawatts of constructed renewable generating capacity in England and Wales would have been consented via the IPC had it been in existence. Obviously, whether we have the balance right is a matter for debate, but I suggest that those statistics show that only the top end of capacity in relation to onshore wind farms would be caught by the provisions in the Bill.

The noble Lord, Lord Dixon-Smith, raised the interesting question of combined heat and power. I assure him that any generating station meeting the thresholds in the Bill will be considered by the IPC, including those that use combined heat and power. Although this is a new area for me, I have observed at Question Time that we are regularly treated, particularly by the noble Lord, Lord Ezra, to the potential of combined heat and power. We have taken steps to encourage the use of combined heat and power, including supporting measures to encourage the development of schemes and increased awareness of the opportunities for combined heat and power. However, in relation to generating stations, it is not always practical to fit this technology, as the noble Lord, Lord Jenkin, pointed out. That is why in our guidance to developers we want them to maximise the use of combined heat and power, but we do not think that it would be right to require it.

In his last question, the noble Lord, Lord Jenkin, bowled the googly of hazardous waste, particularly in relation to nuclear waste. He kindly invited me to write to him. I accept that kind offer. For the sake of the Committee, perhaps I should read the extract that the noble Lord mentioned. It says:

“Hazardous waste can arise from a wide range of materials, from chemical residues from industrial processes to everyday items such as televisions and car batteries”.

It does not include radioactive waste. Because hazardous waste has the potential to cause greater harm to the environment and to human health than other types of waste, its management is understandably subject to strict controls, which apply to any projects approved by the IPC.

As noble Lords will know, four months ago we published the Managing Radioactive Waste Safely White Paper, which set out our framework for implementing the geological disposal of higher-activity radioactive waste. We have not yet taken a final decision, but the Government believe that the implementation of geological waste disposal would benefit from the Planning Bill reforms, which could assist the delivery of agreements with local communities. If the Government decided that that was the right approach and that it would be sensible to embrace radioactive waste within the work of the IPC, we would bring forward a statutory instrument to include it under Clause 14(3), the use of which we will debate shortly. The instrument would be subject to the affirmative resolution procedure. I reassure the noble Lord that no decision has been taken, but that is what was meant when he received the note about the potential use of the Bill.

I am extremely grateful for that and I will be grateful to get the letter that the noble Lord has kindly offered. As these two processes appear to be heading in totally unrelated directions, if one is to use that amending power to bring radioactive waste into the Bill and within the purview of the IPC, the letter must set out how that would work and how it is consistent with the process set out in the Managing Radioactive Waste Safely White Paper to which he referred. That is what people will want to know, so it would be helpful if he could include that in the letter.

That is a helpful comment, which sets out a challenge. My difficulty is that the Government have not taken a final decision, so this is a rather hypothetical debate. However, I will certainly write to the noble Lord and to other noble Lords who have taken part in this debate. I hope that I have responded to noble Lords’ concerns on these matters and I commend the government amendments to the Committee.

Can the Minister help me? I might have missed it, but I am having difficulty finding Clause 14(1)(ea), to which his Amendment No. 131 refers.

That was an even more helpful intervention. Another amendment in the group, Amendment No. 116, proposes new paragraph (ea):

“the construction of a pipe-line by a gas transporter”.

I hope that, with the help of my noble friend, that answers the point satisfactorily.

We have had a full discussion about major infrastructure projects in a limited number of fields: gas, carbon dioxide and thresholds for wind farms. My noble friend Lord Jenkin got into some nuclear waste amendments. We have other waste amendments to consider later that do not cover that issue but which would have been the point at which I raised the question of nuclear waste.

Finally, we had the debut of the noble Lord, Lord Hunt, on this subject. He has dealt with our and the Government’s amendments in great detail and we will have to study with immense care what he has said. I think that we have the answers that we want, although he raised a number of questions in his remarks that we will need to think about. However, he has been enormously helpful. We have certainly got explanations on the main points of our concern. For that, I am immensely grateful and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

116: Clause 14, page 7, line 33, at end insert—

“(ea) the construction of a pipe-line by a gas transporter;”

117: Clause 14, page 7, line 34, at end insert “other than by a gas transporter”

On Question, amendments agreed to.

[Amendment No. 117A not moved.]

117B: Clause 14, page 7, line 35, leave out paragraph (g)

The noble Lord said: This group of amendments, including Amendment No. 117B and the Question whether Clause 21 shall stand part, was inspired by the Local Government Association. The problem with the highways definition of what is appropriate as national infrastructure is that it is too narrow, too limited and perhaps not appropriate. Roads where the Government are the highways authority are not necessarily of national significance. Some of the projects undertaken on those roads are certainly not of national significance. When one qualifies that, there are questions as to whether the definition is sufficiently wide, but I shall come to that later.

The Local Government Association is particularly concerned about this definition. Amendment No. 117B would introduce a new clause to allow highway projects whose impact is sub-national to be devolved to a council or a group of councils. The projects may be on roads where the Secretary of State is the highway authority, but very often the impact of projects on those roads is essentially sub-regional. Obviously, the Secretary of State would still have the power to designate a highway application as a national infrastructure project under Clause 34, but that would probably remove some of the projects from the Infrastructure Planning Commission and put them back into the normal planning system, which is where the real concern of the Local Government Association lies. It is concerned that this expeditious, but slightly more remote, methodology is inappropriate for dealing with more local projects.

Amendments Nos. 168A and 168B would deal with highway projects which were not so designated. Amendment No. 168A would remove the Secretary of State’s ability to call in highway applications, except in relation to national parks. Amendment No. 168B would enable the Secretary of State to require local authorities to form joint committees to deal with trans-boundary highway applications.

The current drafting means that any scheme involving the construction, improvement or alteration of a road for which the Secretary of State is the highway authority falls automatically to the IPC. The Local Government Association does not accept that that is appropriate in all cases. We thought that this was worth, at the very least, taking a bit of the Minister’s time—I am pleased to welcome him here to answer these questions—because the Local Government Association is rightly the defender of local interest.

Amendment No. 134A deals with the problem in a different way. It puts in an arbitrary cost limit below which a project might be considered local and above which one would consider it to be national. That would have the virtue of simplicity and would not impose the sort of administrative procedures which the previous amendments imply. It might be considered that the figure of £250 million is wrong, but the amendment was tabled with the intention of trying to provide a simpler way of defining a national project.

I gave notice to the noble Baroness that I intended to raise another issue in relation to these highway projects which seems to have escaped the scope of the Bill altogether, and that is Trans-European Road Network projects, which are designated by Brussels. I have to declare a marginal interest in that a TERN road runs through the middle of my farm, and happens to be my main farm track. It is also the A120, a single-carriageway road that goes straight through one village. The traffic count is over 23,000 vehicles per day, which translates to one vehicle passing every five seconds 24/7. That is an extraordinary state of affairs. There is a project for a relief road, the price of which has risen to over £500 million for almost 10 miles of road. If there was ever a case of the best being the enemy of the good, this is it; but because it is not a national road, the improvement cost has to come out of the local budget. The regional budget for highways improvement is £100 million per annum. That road will never be built, and the people of the village will never get relief.

The more important issue is this: the Trans-European Road Network is a Brussels designation and of course has nothing to do with our national policy, but these roads are supposed to provide better transport links across the Continent of Europe. Of course we are not on the Continent, but the route I refer to is supposed to link the Haven ports in the east of Essex with Ireland. That may sound amazing, but it is the purpose of the original designation. So we have a classification of infrastructure projects designated by Brussels of which we apparently take no notice. There is at least a question here of whether projects on TERN routes ought not to be national infrastructure projects. If that were the case, given the existing financial situation it would make not a ha’porth of difference to the timing of that necessary road improvement, but it might facilitate it if and when budgetary conditions eventually become easier. I beg to move.

I support the general thrust of the amendments moved by the noble Lord, Lord Dixon-Smith. Clause 21 is all-encompassing, certainly as far as the alteration of highways is concerned. Trunk roads, which are the responsibility of central government, are often little different from the highways that are the responsibility of the Highways Authority. Roads have been trunked and detrunked over the years, and in many areas ordinary roads are the responsibility of the Government. Clause 21 states that:

“Highway-related development is within section 14(1)(g)”,

if the development is the construction, alteration or improvement of it. If it is the improvement of a highway, one of the conditions, set out in subsection (3)(c), is that it,

“is likely to have a significant effect on the environment”.

That is a reasonable test. It refers to a “significant effect”, and the word “significant” is important.

However, the word “significant” does not apply to alterations. Subsection 4(c) simply states that,

“the highway is to be altered for a purpose connected with a highway for which the Secretary of State is (or will be) the highway authority”.

The definition of “alteration” of a highway includes “improvement” of a highway, so there is some confusion. As the Bill stands, it seems that quite a large number of relatively small schemes would automatically be sent to the IPC. That is clearly not what is meant; otherwise, the IPC would be completely swamped by cases of relatively minor changes, alterations and improvements to highways.

The Bill has been drafted with motorways in mind. The motorway where I live is a principal road, not a trunk road, but most motorways are trunk roads. The Bill was drafted with large-scale roads such as motorways and major dual carriageways in mind, not the relatively ordinary A-roads which constitute many trunk roads. The Government should look at this again to ensure that they do not put schemes before the IPC that ought not to be there.

I am glad at this late hour to be joining the Committee’s deliberations as we come to the important provisions on the nation’s transport infrastructure.

Amendments Nos. 117B, 134A, 168A and 168B would remove highway developments from the scope of the new development consent system and would present an alternative way for highway schemes to receive consents of planning permission from a joint committee of local highways authorities. As the noble Lord, Lord Dixon-Smith, said, that proposal has been put forward by the Local Government Association. The amendments would oblige the Secretary of State to decide on a case-by-case basis which road schemes he believed should be decided by the IPC. The implication is that other road schemes are not of national significance and so should be decided by alternative means. Amendment No. 168B suggests the model of a joint committee of local highways authorities.

The concern raised by these amendments is that there should be a proper measure of devolution in the consideration of road schemes. To meet this concern, my officials have been in contact with the Local Government Association over the past few months and the Government expect to consult soon—I hope later this year—on the possibility of devolving full decision-making powers on local highway schemes to a local level, which will go some way to meeting the concerns of the LGA.

We have also listened carefully to LGA concerns on the Bill more generally, hence under the Bill local authorities have a strong role in the IPC process at pre-application stage and special roles at examination stage.

Alterations and extensions to the strategic road network are matters of national significance, hence the threshold in Clause 21. Roads for which the Secretary of State is highway authority are strategically vital for national flows of traffic, both passenger and freight. Improvements to this network can have wide-ranging effects, and even changes to small bottlenecks can have great implications for the coherence of the overall network. The noble Lord said that many of these works are very small scale, but their impact on the national network can be significant. For example, the current A1 Peterborough to Blyth improvement scheme includes works to six junctions along a 64-mile stretch of road passing through three county or unitary council areas and five planning authority areas. Each of the individual junction works might be thought of as less than nationally significant, but they are located in three planning authority areas and would have needed separate planning processes if such decision-making had been devolved. Of course the A1 is an important north/south route linking London and the south-east with the midlands, the north and Scotland.

This scheme, as a whole, taking all the works together, will deliver benefits both to the local area and much more widely across the country. As such, it is important not to be misled into equating the physical size of a project with its potential impact on the network and its potential national significance. However, even in respect of the strategic road network, we have taken significant steps of devolution. The noble Lord, Lord Greaves, referred to the detrunking exercise which has been taking place over the past decade. The desire to see that local decision-making was stronger in respect of roads that did not have a national network role was a major factor behind the extensive detrunking programme begun in 1998.

We are coming to the end of the detrunking programme and some 200 routes have been detrunked already. I have a list which I can circulate to Members of the Committee. There are now only seven routes in the entire country which remain to be detrunked; under the programme, around 30 per cent of the strategic road network has been transferred to local highway authority control. There has been a very significant devolution of decision-making control away from the Secretary of State as a result of this process. That figure of 30 per cent is a powerful testament to our commitment to devolve real control over the roads network to local authorities where there are not genuine strategic interests at stake.

Looking to the future, we recognise that patterns of traffic change over time, so the strategic road network will also continue to change. The position, I fully accept, is not static. I would be happy to look at particular routes, or part of routes, where it is felt by the LGA that the national/local balance is not correct. If the noble Lords, Lord Greaves and Lord Dixon-Smith, wish with the LGA to bring such routes to my attention, my officials would be content to look at them. However, our bona fides in this area are very strong, given the effect of the detrunking exercise.

Let me deal with the point of the noble Lord, Lord Dixon-Smith, on trans-European network routes. I understand his point that these are not referred to in the Bill. However, in fact, virtually all roads on the trans-European network are on the strategic road network and so would be within the ambit of the IPC. I am told that the only exception is the A299 to Ramsgate. There is a long explanation of why this is not on the strategic road network, which I can give your Lordships. While the A299 to Ramsgate provides an important link to the port of Ramsgate for the international traffic using it, the volume of such traffic is far less than at Dover and it is not regarded as of strategic importance at the national level. However, I am content to look again at whether it should be classed as part of the strategic road network if the noble Lord wishes me to do so.

I have no particular desire to fall out with the people of Ramsgate over whether the route to their port is a strategic route. Will the Minister answer the questions about the A120 which I specifically raised? All the evidence that I have heard so far is that this is treated not as a strategic route but as a regional road to be dealt with entirely on a regional scale. It is a major problem.

Despite my extensive brief, I do not have brief on every single A road in the country. I promise to write to the noble Lord when I have briefing on the particular issue to do with this road.

The A120 runs from the Haven ports of Harwich and Felixstowe. It is supposed to go across country and ultimately be a link with Dublin, but there is an intervening bit of sea, which really means Holyhead.

I will look at the issue of the A120 and come back to the noble Lord.

Perhaps I may make one comment on the noble Lord’s proposal in respect of joint committees. We have discussed with the Local Government Association ways that we can improve the balance between local and national roads. However, we are not attracted to its proposal. We are not sure that the joint committees would have the capacity to take the decisions which the noble Lord proposes to give to them. There is also one major flaw in the proposal—I can see why it is there, because I assume that the amendment was drafted lock, stock and barrel by the LGA, but it completely undermines its effectiveness—which is that no proposal can be referred to a joint committee of the kind proposed by the noble Lord unless, as subsection (4) of the proposed new clause states,

“all the local planning authorities concerned have consented to the making of the order”.

The whole purpose of the proposal, which is to produce a more streamlined decision-making process where proposals involve more than one local authority, would be undermined if all those local authorities did not agree in the first instance that such a proposal could go to such a joint committee. I can understand, in light of the lowest-common-denominator way in which the LGA often works, why this part of the amendment is there, but that does not mean that it would be an effective remedy to the issues being addressed by the Bill.

I am grateful to the Minister. He has dealt with these issues fairly extensively and, at this hour of the night, I shall not reply in great detail. I accept his point about trying to get all local authorities dealing with a particular application to agree. Having been a member of a local authority, I am all too aware of the difficulties of local authority co-operation. It is very easy to say it, but it is not as easy to achieve.

I was pleased by what the Minister said about the work that had already been done on devolution of schemes to local highways authorities. I appreciate also that when one starts improving a road such as the A1, which I occasionally use, while the individual schemes may be small, their impact is of major significance if you start to bang them together. The A1 is one of the major trunk routes in the country that still needs considerable improvement. The Minister has been very helpful and we will study his reply in detail. For now, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

118: Clause 14, page 8, line 2, leave out subsections (3) to (5)

The noble Lord said: I am going to duck out on this one. The noble Lord, Lord Hunt, in his response to the earlier amendments, gave us some reasons why mission creep might in certain instances be desirable. I need to think a little more about what exactly he said.

[Amendment No. 118 not moved.]

119: Clause 14, page 8, line 2, after “State” insert “shall keep under review the thresholds provided under sections 15(2)(c), 15(3)(b), 17(5), 18(2), 19(1), 22(3), 23(3), 25(4), 28(1) and 29(2) and”

The noble Baroness said: I shall speak also to Amendments Nos. 120 and 121. Reading the amendments together in respect of the review of what should be included and excluded as a nationally significant infrastructure project, noble Lords will see that my proposal amounts to the Secretary of State keeping the thresholds under review and being able to amend them, but not being able to add or remove projects. Addition and removal seem to give the Secretary of State more power than is appropriate. I acknowledge that the clause requires an affirmative resolution and that the Delegated Powers and Regulatory Reform Committee considered the point and let it go. However, in doing so, it stated:

“We should note that the memorandum has not sought to make a case for the removal of types of project, though we assume that the Minister will be able to do so to the House”.

This is my invitation to the Minister to make that case. I beg to move.

Although the noble Lord, Lord Dixon-Smith, did not move his amendment, I suspect that we are going to debate the issue in any case. On that basis, he may want to come into the debate.

I understand that this is a very important matter. As we know, Clause 14 sets out the broad terms of types of project that would be nationally significant infrastructure projects for the purpose of the Bill. The detailed threshold for each type of project is then spelt out in subsequent clauses, Clauses 15 to 29. The Government’s view is that while it is very important to set these out in the Bill as they are, there also needs to be some flexibility. That is why we think it right that the Secretary of State should have an ability to make secondary legislation at a later date to respond to the changes in technology and national need that might arise in future.

We have already had a discussion on one type of technology that might need to be embraced in the Bill. We cannot foresee the future and the speed of technological development, but clearly one must hope that, particularly in view of the huge challenges that we face in relation to energy security and climate change, new technologies will come along to help us to meet those challenges. It is very important that this Bill allows us to meet those needs, albeit with appropriate safeguards.

I understand why the noble Baroness who has moved her amendment and the noble Lord who has not moved his have legitimate concerns in this area. The noble Lord has already referred to yesterday’s debate on counterterrorism. Although this is of a different order, we are debating some of the same questions about how far it is right for a parliamentary Bill to seek to anticipate future changes with the necessary safeguards and where there should be a boundary.

We think that we have got the balance just about right here. The noble Baroness’s amendments would remove the Secretary of State’s ability to add new types of infrastructure to the types that can be defined as nationally significant under the Bill or to remove types of infrastructure where the Secretary of State subsequently decides that they should not be designated as being NSIPs. It also introduces a new statutory duty for the Secretary of State to keep under review certain thresholds for NSIPs specified in the Bill and limits the Secretary of State’s power to amend thresholds, so that it can be exercised only in relation to those thresholds that are subject to this statutory duty of review.

The new system will deal with nationally significant infrastructure projects in the fields of energy, transport, waste, water and waste-water, and clearly what we think of as being nationally significant in these areas may be subject to change. At the same time, we want the definition of an NSIP to cover only projects which really are of national significance. The obvious example in the energy sector is offshore renewable projects. Changing technologies may also mean that in future we have a national need for a new type of transport or energy infrastructure, and one which is not covered by the terms of the Bill as we read it today. We have already debated carbon capture and storage technology as being one potential candidate, depending on how the technology advances. That is why we think that the Secretary of State should have a power to alter these thresholds in future.

The Committee can be assured that strong parliamentary safeguards remain in any such actions. Any set of regulations that alters the thresholds in Clause 14 would be subject to the affirmative resolution procedure, which would ensure that Members of this House would have the opportunity to deal with and if necessary vote on the contents of any revision.

On the question of keeping thresholds under review, as long as the Secretary of State retains a general power to amend the NSIP thresholds, the provisions of administrative law will mean that he or she will be expected to keep these thresholds under review. It is interesting that in the other place the Lib Dem Front-Bench spokesman said in Committee:

“I am grateful to the Minister for clarifying that the Government are aware of the issues and that they intend to keep a watching eye on the thresholds and any effect that they have on applications”.—[Official Report, Commons, Planning Bill Committee, 22/1/08; col. 334.]

This is really a question of whether we have got the balance right. Is there enough detail in relation to the thresholds that we are proposing in the fields set out? We believe that there is. Is there enough flexibility to allow for changes in developments in technology? We think that there is. Is there sufficient parliamentary safeguard? We think that there is through the affirmative resolution procedure. I hope that noble Lords will accept that this is a genuine effort to get the balance right and ensure that we can deal effectively with future technologies that may have a lot to offer us, but with sufficient parliamentary oversight.

Of course I accept that this is a genuine effort to get the balance right. But it is difficult to understand that there has to be flexibility with regard to the thresholds—which I have sought to preserve, although perhaps not in an elegant or correct way—but not enough to respond to developments in technology; because thresholds is capacity by another term. Perhaps I am not sufficiently imaginative about what new projects there might be as distinct from capacity. That is very much what I am driving at in these amendments. I do not know whether the Minister has anything more to say.

We discussed carbon capture storage technology earlier. If it came forward as part of a generating station application, it could expect to be included as an associated work to the power station application. But it might be much more than that. It might be a national carbon capture and storage pipeline network, for example, which would be too extensive to be treated as an associated work to a generating station. It could qualify under Clause 20 as an NSIP in its own right as now defined, but it might not. We need these provisions to allow for that kind of flexibility. I cannot anticipate other projects and technologies, but I hope that they may come down the line in the next few years.

If developments are as dramatic as the Minister suggests, they are worthy of their own primary legislation.

I understand that, but we are talking about pressing strategic matters. We know that primary legislation sometimes takes a long time to deal with. It is a question of balance: a judgment needs to be made about whether you have new primary legislation or whether the flexibility in the Bill serves the purpose. The Government think that the flexibility serves a purpose.

I was about to beg leave to withdraw the amendment but, in response to the Minister, I refuse to be characterised as attempting to block proper development. That is not what we on these Benches are about. I also refuse to accept that the Government are not in a position, when faced with something important, to ensure that it is dealt with. However, before I provoke the Minister further, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 120 and 121 not moved.]

Clause 14, as amended, agreed to.

Clause 15 [Generating stations]:

[Amendments Nos. 122 to 127 not moved.]

Clause 15 agreed to.

Clause 16 [Electric lines]:

[Amendment No. 128 not moved.]

129: Clause 16, page 9, line 12, leave out from “the” to “, or” in line 13 and insert “nominal voltage of the line is expected to be less than 132 kilovolts”

On Question, amendment agreed to.

Clause 16, as amended, agreed to.

Clause 17 [Underground gas storage facilities]:

130: Clause 17, page 10, leave out lines 4 and 5

On Question, amendment agreed to.

Clause 17, as amended, agreed to.

Clauses 18 and 19 agreed to.

131: After Clause 19, insert the following new Clause—

“Gas transporter pipe-lines

(1) The construction of a pipe-line by a gas transporter is within section 14(1)(ea) only if (when constructed) each of the conditions in subsections (2) to (5) is expected to be met in relation to the pipe-line.

(2) The pipe-line must be wholly or partly in England.

(3) Either—

(a) the pipe-line must be more than 800 millimetres in diameter and more than 40 kilometres in length, or(b) the construction of the pipe-line must be likely to have a significant effect on the environment.(4) The pipe-line must have a design operating pressure of more than 7 bar gauge.

(5) The pipe-line must convey gas for supply (directly or indirectly) to at least 50,000 customers, or potential customers, of one or more gas suppliers.

(6) In the case of a pipe-line that (when constructed) will be only partly in England, the construction of the pipe-line is within section 14(1)(ea) only to the extent that the pipe-line will (when constructed) be in England.

(7) “Gas supplier” has the same meaning as in Part 1 of the Gas Act 1986 (c. 44) (see section 7A(11) of that Act).”

On Question, amendment agreed to.

Clause 20 [Pipe-lines]:

132: Clause 20, page 11, line 24, after “pipe-line” insert “other than by a gas transporter”

On Question, amendment agreed to.

[Amendment No. 133 not moved.]

134: Clause 20, page 12, line 3, leave out “, and has been granted, for its construction,” and insert “for its construction by virtue of section 14(1)(f), and has been granted,”

On Question, amendment agreed to.

Clause 20, as amended, agreed to.

Clause 21 [Highways]:

[Amendment No. 134A not moved.]

Clause 21 agreed to.

Clause 22 [Airports]:

135: Clause 22, page 13, line 18, after “providing” insert “and will be permitted to provide”

The noble Baroness said: I also speak to Amendments Nos. 136, 137, 139 and 158. I declared an interest earlier, in that I am affected by development at Heathrow, but the amendments to this clause are about all airports.

In the Commons on Report, the Minister, Mr Healey, commenting on the intensification of the use of airports, said that it seemed,

“an anomaly that the new planning system should deal with a significant increase in capacity at airports only when that was the result of physical development”.—[Official Report, Commons, 2/6/08; col. 515.]

I agree but I am scarred by experiences around the inquiries regarding Heathrow. I do not mean the length of the last inquiry, but conditions imposed appear to melt away, undertakings given appear not to be undertaken and so on. I want to probe some of the Bill’s provisions, and distinguish between what an airport is capable of supporting and what it is permitted to provide. The terminal 4 permission permitted an increase in the number of passengers. There was little confidence in that locally, and I think that lack of confidence has been borne out. The Bill should give as many assurances as possible by referring to the airport being capable of providing or what it is permitted to provide by way of air passenger transport services.

I shall not repeat the long discussion in the Commons about, among other things, the Cranford agreement and runway alternation at Heathrow. The Minister said that he would clarify the position to the extent that he could. These issues were raised in particular by John McDonnell. I have checked with him and he believes that he did not receive any follow-up correspondence from the Minister.

Are my amendments relating to what is permitted in this context covered by Clause 31(2)(c), which refers to,

“an increase in the permitted use of an airport is treated as a material change in the use of the airport”?

I was interested to note that a significant increase is described in terms of air passenger services as an increase in the number of passengers. I believe that the number of air movements, or possibly the number of passengers and air movements, are normally referred to in this context. The figure of 50,000 more air movements a year to which I have referred in my amendment may not be correct; I was advised that it was equivalent to 10 million passengers. However, this is a probing amendment and I hope that the Minister will not go into the detail of the numbers. There is a point of principle here rather than of numbers.

The Stansted decision, to which I think my noble friend Lady Tonge will refer, was announced last week, and dealt with movements as well as passenger numbers. For many purposes the numbers of flights are most relevant. Flights use fuel and disturb people—I use a mild term—on the ground, however many or however few passengers are on any given flight. I hope that the Minister will respond favourably to these probing amendments. I am genuinely puzzled as to why the relevant clause deals with the matter in the way that it does. I beg to move.

Resisting the expansion of Heathrow Airport is an article of my political faith, and the Committee ought to know that. I declare an interest as the president of HACAN ClearSkies, which is the main campaigning group against the expansion of our airports.

I want particularly to look in detail—I did the maths before I had a very good dinner tonight, so I am pretty sure that it is accurate—at Amendment No. 136, which questions the use of the number of passengers to assess the expansion of an airport. It is not really so relevant when you are thinking about the noise pollution and air pollution in an area. That is much more related to the number of air traffic movements. If you do the sums, 10 million passengers could be contained in 50,000 aeroplanes, if one assumes that the average—I am told—of 200 passengers per plane applied. If you had an average of 200 passengers per plane, an increase of 10 million passengers would mean 50,000 extra air traffic movements. That is not stated in the Bill.

In fact, we know that does not happen, because planes do not have an average number of passengers. Sometimes they are quite small, and sometimes they fly with very few passengers at all. We have seen examples in the press recently of aeroplanes flying with no passengers, but they must do so to keep that slot in that airport open for that airline. We are causing air pollution and noise pollution just for the sake of keeping a slot open, with no passengers transported at all. Many more flights than 50,000 might be used to carry those 10 million passengers.

As my noble friend said, the amendment is to probe the Government’s thinking on the issue and to attempt to more accurately quantify the nuisance to an area from noise and pollution, should the expansion go ahead. If the Government will not use just air traffic movements as the criteria, they should use both either/or; either 10 million passengers or a limit of 50,000 air traffic movements. That would be a much more reasonable way of expressing it. As my noble friend said, the recently announced Stansted expansion is for 10 million passengers and no more than 23,000 air traffic movements. If you do the maths, that assumes that every one of those 23,000 planes would have over 400 passengers, which is rubbish. We know that will not happen. Therefore, those 10 million passengers in fact are much more likely to be carried in 50,000 air traffic movements.

My noble friend Lady Hamwee said that the conditions imposed melted away after the terminal 4 inquiry and the terminal 5 inquiry. In fact, we were told after terminal 4 that there would be no more expansion at Heathrow, and we were told during the terminal 5 inquiry—of which I attended a great deal—that there was no need for a third runway and that the rumours that were being put about were ridiculous. In those inquiries and just after, we were actually told lies. When I saw the figures for Stansted, I thought, “Here we go again, misleading the public and trying to bamboozle people into thinking that there will be less disturbance than there really will be”. I urge the Government, on the side of honesty and decency, to specify carefully in the Bill just what we are expecting in terms of passenger numbers and air traffic movements.

I accept that these amendments are probing in nature, and I listened with interest to the questions of the noble Baroness, Lady Hamwee. I will be equally interested in the Minister’s reply. I am sure that Amendments Nos. 135 and 137 are entirely probing and I await the Minister’s response. It is odd that there is a discrepancy between the phrasing of subsections (5) and (8). One uses the words “capable” and “permitted”. At face value, those amendments would explicitly place a limit on the capacity of all airports’ passenger capacity, which could be altered only if permission were granted.

I understand why the noble Baroness tabled Amendments Nos. 136 and 139 as probing amendments. Why have the Government used different measurements of airport activity? I agree entirely with the noble Baronesses, Lady Hamwee and Lady Tonge, that the relevance to the public and the communities affected is surely the number of aircraft movements. That is especially the case in relation to climate change. I was interested in the description given by the noble Baroness, Lady Tonge, of slots being kept open when no passengers were being flown. We are interested not in the number of passengers but in aircraft movements.

Amendment No. 138 in the group refers to the hours of operation of an airport. This can be a highly emotive topic for the communities that surround airports and fall under their flight paths. We know from repeated complaints about airport expansion that people feel strongly about the detrimental effects on their lives that aircraft noise can cause. I should not repeat my earlier comments when I spoke to Amendment No. 42 of my noble friend Lord Jenkin, but this issue is tied closely to the points that I raised.

The use of airports and their expansion are exactly the sort of issues that must be laid open to proper consultation and public debate. Any major development of airports is bound to impact on communities, whose views must have a chance to be considered. These problems are precisely why the Government cannot reheat old aviation policies and adopt them as national policy statements without proper consultation and compliance with all the current EU directives and regulations.

I say, first, to the noble Baroness, Lady Hamwee, that my information is that a letter was sent on the points she raised about the Cranford agreement and permitted development to John McDonnell MP after the first day of the Report stage in another place. However, I will look at the issue and if the letter was not sent, I will write to the noble Baroness and to Mr McDonnell.

I apologise if I unfairly described what did not happen. I asked Mr McDonnell and his response was, “If I got the letter, it was so uninteresting that I did not notice”.

I cannot conceive that any letter from my department could be uninteresting, but the fact that a letter has been sent may not mean that it was received, whether it was interesting or not. I shall look at this issue and if there has been a slip-up in my department, I shall ensure that we immediately write to the noble Baroness and copy the letter to John McDonnell.

Clause 22 sets out the thresholds for which airport-related development is classed as a nationally significant infrastructure project. Amendments Nos. 135 and 137 seek to probe the sections of the Bill that deal with alterations to airports. Perhaps I may explain the position. Airport developments are already given maximum permitted uses by virtue of their planning permissions and, in the future, development consent orders will also specify maximum permitted uses. I know that the amendments are probing, but perhaps I may explore them more fully.

They could inadvertently create a distinction between the permitted number of services and the services that an airport is capable of providing. This could mean that a developer might try to seek planning permission under the Town and Country Planning Act for a permitted use of fewer than 10 million passengers a year, even though the alterations themselves would make the airport capable of serving more than 10 million passengers a year. We do not believe that such a position would be justifiable.

Clause 31(2)(c) states that an increase in the permitted use of an airport counts as a material change in the use of the airport. This means that an increase in the permitted use of the airport counts as “development” within the meaning of the Bill, and therefore development consent would be required if the increase in the permitted use exceeded the thresholds in Clause 22. I believe that that is the assurance that the noble Baroness, Lady Hamwee, was seeking from me.

Amendment No. 158 seeks to delete that subsection, with the effect that an airport operator seeking to increase the capacity of its airport above 10 million passengers a year—or 10,000 air transport movements a year in the case of air cargo—would not have to seek development consent from the IPC. We do not believe that such an amendment is right. We wish to ensure that nationally significant airport developments are examined by the IPC, whether they are for new airports or extensions of existing airports.

The noble Baronesses, Lady Hamwee and Lady Tonge, also raised in Amendments Nos. 136 and 139 the issue of why the airports threshold is expressed in terms of numbers of passengers rather than the number of air transport movements. I can tell the noble Baronesses that the Government took this approach following consultation, as we do not want the definition of a nationally significant infrastructure project airport development to be in effect a definition related to the construction of a new runway. Airport-related development may well include runway developments, as described by the noble Baroness, Lady Tonge, but it could also include work to terminals which would not necessarily have an impact on the number of aeroplanes using a runway—for example, if the terminal and not the runway were the limiting factor on capacity. We believe that most reasonable people would agree that if an airport wanted to cater for an additional 10 million passengers or more per annum, the development would be of national significance irrespective of whether it needed to do development work on the runway.

In respect of air freight, we used air transport movements as the definition in the Bill because, following consultation, we concluded that it was a more reliable manner of distinguishing national significance than the number of tonnes of increased traffic.

I know that it is late but can the Minister explain why last week the permitted expansion of Stansted airport was expressed in both passenger and air traffic numbers, however erroneously in my view.

I do not think that that is a relevant consideration, as that was the way in which the consent was expressed. The issue here is the threshold above which proposals would be referred to the IPC. They are two very separate issues. The fact that the consent was expressed in terms both of numbers of movements and numbers of passengers does not affect the fact that in the Bill we have chosen to use the number of passengers as the threshold above which applications should be referred to the IPC. I hope that that explains the situation to the noble Baroness. She may not be satisfied with it because I know that she wishes to see a threshold based both on numbers of passengers and numbers of movements, but the fact that the consent last week was expressed in both terms does not in any way affect the decision that we have taken to proceed in the Bill with the threshold set at 10 million passengers.

I also believe that in Europe the threshold is expressed in air traffic movements—50,000 such movements. In fact, there is a European agreement to express the threshold in air traffic movements, although I am not totally sure of the detail. I must admit that I am not totally satisfied and I am not convinced by this at all. I just cannot understand the Minister’s argument.

I have explained the position. I am not familiar with the European regulation to which the noble Baroness refers but I shall look at it and write to her.

In conclusion, while I have been speaking I have been passed a copy of the letter from John Healey to John McDonnell dated 5 June 2008, which I shall pass to the noble Baroness so that I can satisfy her that, interesting or uninteresting, it was indeed sense.

I want to know whether or not it was interesting.

I am grateful for the explanation on the first clutch of amendments. I, too, am puzzled by there being no reference to air traffic movements. Stansted is relevant because it shows that the Government were thinking in terms of transport movements and passenger numbers, which are equally relevant in their impact. I entirely agree that an additional 10 million, or however many million passengers going through a terminal is—if I can use the term a bit non-technically—material. I accept that it is very significant, but I should have thought it appropriate to have parallel thresholds so that both or either could be used. I do not feel capable of drafting off the top of my head at this time of night, but I want to explore that.

I am very conscious of the time that the Bill is taking. Perhaps we can explore it further outside the Chamber with a view to coming back with an amendment. I might talk to the Minister about that between now and Report. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 136 and 137 not moved.]

[Amendment Nos. 138 and 139 not moved.]

Clause 22 agreed to.

Clause 23 [Harbour facilities]:

140: Clause 23, page 15, line 5, at end insert—

“( ) The construction or alteration of harbour facilities is not within section 14(1)(i) if it is permitted development.”

The noble Lord said: We are now moving from the air to the water. I shall also speak to Amendments Nos. 141 to 143, 170 and 171. The issue is permitted development rights for harbours. We have talked about them for pipelines, and the Bill provides them for railways, but provision for harbours seems to be missing, which is the point of my amendments. I declare an interest as a harbour commissioner for the port of Fowey, in Cornwall. The amendments have two aims. They would except harbour authorities from the need to obtain a development consent order in respect of acts authorised under their permitted development rights and would confer PDRs on harbour authorities that wish to alter a facility authorised by a development consent.

PDRs are used by statutory port authorities frequently to maintain and develop port facilities. Ports and harbours rely on PDRs to respond to technical advances, changes in demand and changes in circumstances in order to remain competitive. Their removal could compromise the efficient movement of international trade through these ports. One of the biggest operators, Associated British Ports, is deeply concerned. It owns 20 or 30 ports around the country—I do not have a clue how many. It is concerned that a Bill aimed at speeding up the planning process may do the reverse for larger port facilities in England and Wales. Port authorities will instead have to apply for a development consent order to be authorised to undertake what is now fairly routine business—using permitted development rights. They will have to wait probably two years or so before doing work that they can do very quickly at present. That is clearly contrary to the general thrust of government policy on planning.

The position of PDRs has been somewhat unclear because the Bill as introduced in the other place did not preserve them. Having been challenged on the matter, the honourable Member John Healey, the Local Government Minister, gave a simple but welcome expression of the Government’s stance. I quote:

“We are protecting all permitted development rights in the Bill”.—[Official Report, Commons, 2/6/08; col. 529.]

That general commitment is not reflected in the Bill as introduced into this House. The Government seem to be adopting a piecemeal approach, so, while I was pleased to note that the amendments tabled on Report preserved the railways’ permitted development rights, the absence of a general saving of PDRs is a bit disappointing. I do not see why there is unequal treatment of railways and ports. If railways have PDRs, ports should have them.

The second issue concerns alterations to a facility authorised by a development consent order. Alterations of harbour facilities authorised by an Act of Parliament or an order under the Harbours Act 1964 will, provided that they are within existing authorised limits, normally enjoy PDRs. However, the Bill does not apply PDRs to alterations of facilities authorised by a development consent order, so a harbour authority would need to obtain an additional planning permission for such alterations. That is clearly not in the interests of efficiency, and it could hold ports back from taking action quickly to remedy operational problems or to exploit new commercial opportunities.

My amendment simply places an authorisation under a development consent order on the same footing as one made under an Act or a harbour revision order. I hope my noble friend will recognise that I am trying to ensure that the policy set out by our honourable friend in another place also applies to ports. I beg to move.

In his Amendments Nos. 140 to 143, 170 and 171, my noble friend exempts port operators from having to seek development consent if they possess relevant permitted development rights to carry out such work. I appreciate the point he made about ports undertakers being keen to avoid being required to make applications for planning permission for minor improvements to infrastructure or for maintenance work. However, that would not be the case under the Bill, where permitted developments are proposed beneath the threshold in Clause 23.

We recognise that statutory undertakers have rights that stem from Part 17 of Schedule 2 to the general permitted development order to carry out certain types of development. However, these permitted development rights are not available in respect of developments that require environmental impact assessment. Our view is that this Bill will not remove any such permitted development rights since the thresholds have been set above the level at which the project would require an environmental impact assessment—that is, when it is likely to have a significant environmental effect—and permitted development rights would no longer apply.

Permitted development rights are already available where the nature of the development is specifically authorised by local or private Acts or orders, and we intend to protect existing Part 11 permitted development rights under the general permitted development order.

We are not touching the ability of a harbour authority to undertake small projects currently allowed under its permitted development rights without seeking development consent. However, developers should not salami-slice environmentally significant projects into small chunks in order to avoid proper scrutiny, which would be contrary to EU law on environmental impact assessments.

I hear from my noble friend that ports undertakers have complained that they are being treated unfairly compared with rail undertakers because Clause 23 does not contain a provision equivalent to subsections (1)(c) and (2)(c) of Clause 24—that is, it does not specifically exclude works carried out under permitted development from the thresholds of a harbours NSIP. However, an important difference between Clauses 23 and 24 is that there are high-capacity thresholds in Clause 23 but not in Clause 24, so the exclusion for permitted development in Clause 24 serves a useful purpose. Where the project is likely to have a significant effect on the environment, a railway undertaker will not be able to rely on permitted development rights, for the same reason that salami-slicing a project is not permitted under EU law. I hope that that explains why we have not gone down the route outlined by my noble friend.

On a wider note, I know that operators have raised concerns about how operational and maintenance works could be carried out on facilities constructed under a development consent order. We can offer some comfort to undertakers on this score. First, we intend to retain permitted development rights under secondary legislation in respect of development which has been specifically authorised by a local or private Act, an order approved by both houses or a harbours Act order where the development has not yet been carried out. Secondly, we intend to make amendments to the general permitted development order, such that land designated by a development consent order will become “operational land” for certain purposes, so that planning permission may be granted for future operational and maintenance works. In doing that, we will have to continue to be mindful of our EU obligations on environmental impact assessments.

I hope that I have gone some way to meeting my noble friend’s concerns and have explained why the thresholds are in the Bill.

I am very grateful to my noble friend for that detailed response. I shall read it with interest, because it is difficult to take in at this time of night. I am sure the intention was not to go down the salami-slicing route, as he calls it, because that is not the way to develop projects. I know that the Bill has already been significantly improved, because at one stage one of the independent planning commission projects was 100 yards of cycle route next to a trunk road. Ministers have, rightly, taken that provision out. When I read that, I am sure that I will learn a lot and the ports will be much happier. For now, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 141 to 143 not moved.]

Clause 23 agreed to.

Clause 24 [Railways]:

144: Clause 24, page 15, line 16, leave out paragraph (a) and insert—

“(a) one end of the railway will (when constructed) be in England and the other end of it in Scotland,”

The noble Earl said: I shall speak also to Amendment No. 145. First, I cannot see why the amendments tabled by the noble Lord, Lord Berkeley, have been grouped with mine; they address a totally different point. Perhaps they are all to do with railways, but it is hard on the Minister and rather disrupts the thought process to lump all this stuff together.

In Part 3 we are dealing with nationally significant infrastructure projects. The UK is a nation; Scotland is a nation; England is a nation. In railways, there is no apparent link in future developments to what might be happening north of the border. In Clause 16, which refers to electric lines, there is a link to Scotland; in Clause 20, which refers to pipelines, there is a link to Scotland. I should have raised Clause 21, on highways, because it does not relate to Scotland. The point of tabling the amendments is simply to say: is it not a little stupid to have a project in England to develop a railway that could go right up to the border with Scotland but not beyond that? What discussions are under way with Scotland? What proposals are there for major infrastructure projects for highways and railways that will run across the border, so that we join up both Governments and get some sort of co-ordination? I beg to move.

I might as well speak to the amendment moved by the noble Earl, Lord Caithness, and to my Amendments Nos. 146 to 151. He optimistically wonders how many new railway lines will be built between Scotland and England. It might happen one day, but his Scottish Government, if I can call them that, are already building the borders line half way to Carlisle. Perhaps it will go all the way to Carlisle, in which case they will have an interesting project. It is an interesting idea, anyway.

My amendments relate to Clause 25 and rail freight interchanges. I put on record my thanks to officials in the sponsoring department of the Bill and the Department for Transport for some interesting discussions. We did not always agree, but we had some useful debates.

Amendment No. 146 would reduce the lower limit for a rail freight interchange from 60 hectares to 30. Amendment No. 150 would insert a definition of area, because if we do not have one, what are we talking about? A rail freight terminal—here I declare an interest as chairman of the Rail Freight Group—includes the area for which you seek planning permission, some environmental protection measures, one hopes, access roads, access railways, sidings, hard standing and sheds. How you define the area therefore has a significant effect on how big it should be. I am talking about the lower limit of something that we are defining as strategic, so the amendment offers a way of defining such an area. If Ministers think that the definition should be different, we will probably end up with a different number. The key thing is to have an area.

Sixty hectares is too big for a terminal that is strategic. A network of terminals is needed around the country if rail freight is to make sense. The terminals need to be well distributed if one is to avoid long road journeys at each end of them. In other words, one terminal in London is insufficient, because London is so large that three, four or even several more will probably be needed. Sixty hectares may be fine—even 80 hectares may be fine—for a greenfield site, as many greenfield sites that are anywhere near major conurbations will also be in a green belt, which does not help to get planning permission. However, if a site can be found that is closer to the centre of consumption or production, one might well have to make do with a smaller area because of land values and a lack of land. One should also bear in mind that a terminal needs good road access, good rail access and all the other conditions that I mentioned, which are in short supply.

Of the existing terminals, of which there are quite a number, some are much smaller, whereas one or two are larger. However, a network of terminals is needed to enable the Government’s transport policy to be implemented to grow the volume of rail freight, so it would be good if the area limit was reduced to 30 hectares. An application for a terminal in Radlett, which seems to be the home of many Liberal Democrats, was rejected last week for whatever reason. I shall not comment on it, but these things do get rejected, so my Amendments Nos. 146 and 149 propose an area of 30 hectares.

My other amendments are quite small. I do not like the phrase “container train”, because it is not right to say in a Bill how goods are carried in a train. They might be carried in containers or in wagons; it does not really matter. They are being carried, which is the important thing. I want to change the word “container” to “goods”, which is the normal word used in legislation. As regards storing the goods in warehouses, the important thing is for the goods to be stored. The words “suitable storage facilities” are not as prescriptive as the word “warehouses”.

Finally, on Amendment No. 151, if the Minister accepts that the words “container train” should be changed to “goods train”, a definition of the words “container train” is unnecessary in Clause 25(9). That summarises these amendments.

I indicated to my noble friend Lord Berkeley that, as a supporter of the Rail Freight Group, I should like to emphasise one point that he has made. No other area covered by this Bill is so susceptible to nimbyism as rail freight interchanges. Everyone in the country wants to get more freight off the roads and on to rail, which requires rail freight interchanges, but the very people who unanimously say, “Get more freight on to rail”, hate any rail freight interchange anywhere in their town or city. That is very glaring nimbyism, which leaves me to support the figure of 30 hectares rather than 60 hectares for the reasons given by my noble friend.

Many local authorities will reject these rail freight interchanges if they are put to them for their consent. As we know, the heart of this Bill is about major national strategic questions going to the national Planning Infrastructure Commission not just because of procedural niceties but, in effect, to overcome some of the contradictions arising from nimbyism. I repeat: it is not that people do not want the freight to go on to rail but that they do not want the rail freight interchange.

I hope that the Minister will give some more thought to this or at least an explanation as to whether sufficient work has been done to ascertain whether in the next 10 or 20 years 30 hectares would not be nearer the sort of pattern of rail use through rail freight interchanges that would be conducive in practice to getting more freight off the roads and on to the railways.

The amendments tabled by my noble friend Lord Caithness are similar to our earlier Amendment No. 133 about pipelines that leave or enter England or Wales. My noble friend raised a good point. He was not talking just about railways. That was not really the issue. I was not going to speak to this amendment until the noble Lord, Lord Berkeley, pooh-poohed the prospect of new railway lines going north of the border. I do not believe that my noble friend’s amendment is about railway lines. It is about what happens when infrastructure projects cross borders. They might be crossing borders with Scotland, as in my noble friend’s amendment. They might be pipelines, power lines, roads or railways. What discussions have taken place and/or what agreements are in place or are intended to be in place with the Scottish Parliament and the Welsh Assembly?

I have no idea why these amendments are grouped. I thought that it might be because the noble Earl anticipated that my noble friend, with his commendable zeal for rail freight, was about to propose a new dedicated goods line between England and Scotland. He has not yet done so, so I can only assume that the amendments were grouped because it was thought that there might be rail implications in them all. However, I will deal with them separately.

In respect of cross-border railways and Amendments Nos. 144 and 145, let me say, as the Government have said in response to previous amendments with a similar intent, that this Bill does not seek to alter the devolution settlements. Welsh and Scottish Ministers will continue to authorise railway projects wholly in Wales or Scotland respectively. Cross-border projects will be handled in accordance with the existing devolution settlement. Where a proposed Anglo-Scottish scheme comes forward, there are two ways of proceeding. The scheme could be split at the border, with the IPC considering the English part and Scottish Ministers the Scottish part, or such a scheme could be authorised by means of a private or possibly hybrid Bill presented to the Westminster Parliament and very likely requiring a Sewel motion. Discussions on which of these options would be best would take place at the appropriate time. I hope that that deals with the noble Earl’s concerns in this regard.

I turn to my noble friend’s amendments. I can tell him that we appreciate the points that he makes about the definition of container trains in Clause 25, in subsections (4) and (9). We are keen to look at these further with him between now and the Report stage.

On rail freight interchanges, I know that my noble friend has had detailed discussions on these points with officials from my department, so my responses will come as no surprise to him. However, I think that I should put the Government’s position on the record. In respect of Amendments Nos. 146 and 149, we are not attracted to lowering the area threshold for rail freight interchanges from 60 hectares to 30 hectares. We arrived at the 60-hectare threshold after considerable research and we still believe that the terminals considered to be nationally significant strategic rail freight interchanges would be in excess of 60 hectares. While we share the concerns of both my noble friends to see that appropriate support is given to the rail freight industry and that interchanges at a certain appropriate level are considered to be national projects, we believe that the 60-hectare threshold meets that requirement. Reducing the threshold to 30 hectares in the way proposed would take away from local authorities decisions that we do not believe to be of genuine national significance.

We are not attracted to the use of the phrase “suitable storage facilities” in Amendment No. 148, which we feel is not sufficiently defined and moves away from the primary purpose of Clause 25, which is to capture the sort of proposed development that is of national significance. We also believe that warehousing is a key element of any such development. On that basis, we believe that the word “warehouses” in subsection (6) is already adequate.

Finally, government Amendment No. 172, on Crossrail extensions, will ensure that extensions to the Crossrail scheme and alterations to railway facilities for the purpose of or in connection with Crossrail do not necessarily need to be considered under the planning Acts, but can instead be authorised under the Transport and Works Act 1992 in respect of which Section 48 of the Crossrail Act 2008 confers additional enabling powers. Without this proposed amendment, Crossrail extensions and alterations that meet the railway threshold in Clause 24 would be prevented from being authorised through the enhanced TWA regime and would be precluded from making use of enhanced TWA powers provided in Section 48 of the Crossrail Act. Instead, they would inevitably require development consent from the IPC. While there are at present no firm plans for any such extensions or alterations, they remain a distinct possibility for a project of this significance, complexity and construction timescale. We therefore think it appropriate to put this provision in place.

I hope that my noble friend does not mind if I ask him a question about his amendment. It seems a little odd that a Crossrail extension is again suggested as a special case. I am not sure exactly what he means by that. Crossrail trains will end up—apart from at Heathrow Airport, where there are buffers underground—on the main line. If the trains go beyond the existing extension, that will involve electrification and, possibly, the building of some sidings. Much of that would probably be on permitted development, because it is on the existing railway. Why is it thought important to bring Crossrail in as a special case whereas an extension to a railway line in Manchester or elsewhere would not get this preferential treatment?

I shall write to my noble friend setting out the full reasons why. Our reasoning is that, as he said, it would be a development of an existing railway which had already gone through an exhaustive parliamentary process and consent procedure; it is in a different position from a wholly new line of the kind he suggested. But I shall be happy to set out our reasoning in greater detail.

On a previous amendment the Minister’s noble friend Lord Hunt gave some empirical data to support his argument about the offshore wind. I think he said 6 per cent of the applications and so on would fall within this.

Perhaps I may explain. Looking back over the past 15 years at what has been approved, about 6 per cent would have fallen under the new regime proposed in the Bill.

That is helpful. On the amendment of my noble friend Lord Berkeley and the size of rail freight interchanges, the Minister did not supply the Committee with empirical data on the significance of sticking to at least 60 hectares as opposed to 30 hectares. It is an important question as to whether or not historically rail freight interchanges have been 60 hectares or above and what the impact would be of taking 30 hectares. If the Minister does not have the information at the moment, perhaps he will write to the noble Lords who are interested in that point.

By sticking with 60 hectares, there is not a shadow of a doubt that major rail freight interchanges will be out in the green belt and the countryside and further away from the ultimate point of need. That means that many lorries will be back on the road and shifting goods from the green belt sites into the urban areas, which will defeat part of the purpose of rail freight. It is an important point. It is not a partisan point but one of practical fact as to the significance of this to the strategic objectives of rail freight.

I do not have the empirical data to hand but I shall write to my noble friend on the average size of developments.

The Minister might not wish to have the data which seem to be flying towards him at this hour of night. When he writes on Crossrail, will he explain what is meant by an extension and, in this instance, what Crossrail is? In lay terms, an extension to Crossrail could mean something very significant and more or less amounting to a new railway line. But that is because we have been talking over the years about extensions to Crossrail in perhaps a looser way than is meant here and it would be helpful to understand the detail.

Perhaps I may help the noble Baroness. In theory, a new line to Scotland to help the noble Earl, Lord Caithness, could be an extension to Crossrail.

I am informed that Crossrail extension is a legal term defined in the Crossrail Act 2008. Alas, I do not have the wording of that Act to hand but I will supply it to my noble friend.

What a horribly disjointed debate we have had. Let us hope the groupings are a bit better in the future. I am grateful to the Minister for what he has said. It seems a little odd that there should be confusion regarding nationally significant infrastructure projects. I question whether Part 3 ought to be entitled “Nationally significant infrastructure projects”—perhaps it should refer to infrastructure projects for England. I am grateful to the Minister for explaining the procedure. The changes to the devolution arrangements will doubtless come in a few years’ time. I have no intention of upsetting them under this Bill—they will arise for different reasons.

I hope that the Government will work very closely with the Scottish Government when it comes to cross-border issues. It was quite clear when we looked at the draft marine Bill that there were considerable problems between the Scottish and Westminster Governments on maritime issues. I hope that the Minister will bear that in mind and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 145 not moved.]

Clause 24 agreed to.

Clause 25 [Rail freight interchanges]:

[Amendments Nos. 146 to 151 not moved.]

Clause 25 agreed to.

Clauses 26 and 27 agreed to.

Clause 28 [Waste water treatment plants]:

152: Clause 28, page 17, line 39, leave out “150,000” and insert “500,000”

The noble Lord said: I shall speak first to the government amendments and then the noble Lord, Lord Dixon-Smith, will speak to his.

Clause 28 defines the types of waste water treatment plant development that will be classed as nationally significant under the Bill and so require consent from the IPC. There has been considerable consultation on the planning White Paper and, more recently, extensive discussions with industry. Several stakeholders have raised concerns with the Government that the threshold for waste water treatment plants is too low and may capture projects that are not of national significance. We have listened to those concerns and have been persuaded by the arguments that industry and stakeholders have made. As a result, we have tabled our Amendments Nos. 152 and 153, which increase the threshold so as only to capture the biggest projects in England where the additional treatment capacity exceeds a population equivalent of 500,000. The challenge, as ever, is to bring the empirical evidence. My understanding is that this threshold will be consistent with the project caseload anticipated in the Bill impact assessment of one project every 10 years. I beg to move.

My Amendments Nos. 154 and 155 are grouped with the government amendment. I was fascinated by what the Minister said about the reasons for changing the figures with regard to Amendments Nos. 152 and 153. Although he said that arguments had been produced, he did not actually tell us what the arguments were, except to mention the possibility of one case every 10 years. I suppose that that is an argument, but whether it justifies national significance I have no means of judging, if he will forgive my putting it that way. When he responds to my amendments, perhaps he will deal with the matter in more detail.

My amendments relate to Clause 29 on hazardous waste facilities. There are two sorts of hazardous waste. The Minister has to some degree answered the question of my noble friend Lord Jenkin, who is no longer present, about nuclear waste. I looked at these figures and wondered whether hazardous waste facilities included nuclear waste. I could not see nuclear waste producing anything like these figures annually, so I wondered what we were talking about. I accept that there are other forms of hazardous waste. We used to have a very large hazardous waste disposal facility in my part of the world many years ago. The trouble was that it was so effective and efficient that it drew waste from about half the country, which caused immense angst among local people who knew about it, because the hazardous wastes were being transported on ordinary roads in ordinary transport. It would arrive at a particular point in Essex, and local people would ask, “Why should we have to dispose of other people’s hazardous waste?”. It was a question which was very difficult to resolve, but the fact was that a facility was there that could deal with large quantities of such waste, and did so very efficiently and effectively. Of not least interest about the establishment in question was that the biggest part of the waste disposal operation consisted of taking somebody’s waste and finding that it was somebody else’s raw material. It transferred an immense amount of materials because it had a wide circle of contacts. It was able to dispose of a lot of the waste either by making use of it or at least finding others to do so.

My amendments probe the figures in the clause. One hundred thousand tonnes per year of deep storage is roughly 100,000 cubic yards. If one is disposing of material in solid rock in permeable foundation, it amounts to a fairly heavy mining commitment each year. Exactly what does one finish up with after 10, 15 or 20 years of that kind of establishment? Will the Minister explain that? Thirty thousand tonnes per year in any other case is understandable, because people become very concerned about the materials if they are disposed of on the surface and there is some merit in limiting the scale. Even so, after 10 years, you are talking about 300,000 tonnes of such material being disposed of and the heat would keep growing. Will the Minister explain why he has lifted the figures and what lies behind the change that the Government are proposing?

Perhaps the Minister, the noble Lord, Lord Dixon-Smith and I could explore the numbers a little more. In Clause 28, the Government propose to increase the threshold to 500,000 people, which is roughly one-100th spread over England and Wales, if I have got the mathematics right.

I cannot see what is strategic about these plants. They are water treatment plants or sewage plants, or whatever we want to call them. Every town has to have one—London has lots of them and will have a great big tunnel down the Thames, which might be strategic—but they are not interconnected, so I wonder what is strategic about them. Is it just a convenient way of getting planning permission for something which is not very popular? If so, I could understand that as well. I compare them with a dozen rail freight terminals around the country which have to be connected by rail to work, but they are not apparently strategic—we will probably come back to that another day.

I would understand the amendments of the noble Lord, Lord Dixon-Smith, to Clause 29 if I knew how many tonnes of hazardous waste were disposed of in the country as a whole. If it is the same figure as he has given, it is clear that there will be a lot of road or rail transport; if it is 10 or 100 times that, it might be more strategic. If my noble friend does not have the figures now, I am sure that he can write to us.

This has been an extremely interesting debate. I shall deal with the waste-water amendment first, and the question of thresholds. I failed to persuade the noble Lord, Lord Dixon-Smith, in moving my amendments, as to why it was appropriate to change the threshold, although I should have thought from his general stance that he would have welcomed the fact that we have raised the threshold.

During the White Paper consultation we asked questions about whether the 150,000 population threshold was about right. We consulted with stakeholders and a pretty strong view came back that we did not get the threshold right in the Bill and that the 150,000 threshold would catch too many numerous schemes that are not genuinely nationally significant.

My noble friend Lord Berkeley challenged me to make comparisons between the previous debate with my noble friend on what is nationally significant in relation to waste water. It is a good question, but it is difficult to answer in strict comparisons. If we are frank, common-sense judgments have to be made here, and I take him back to the original impact assessment on the Bill of an anticipated application approval of about one in 10 years. He may say that that is not a proper definition of “nationally significant”, but our view is that that kind of scale and threshold is of national significance. He mentioned the Thames Tideway, which is an interesting point that embraces major developments through an existing sewerage treatment works. My understanding is that the planning application for the 32 kilometre Thames tunnel is part of the project and would, under the threshold, go to the IPC, which is one illustration of what we mean by nationally significant.

As for the hazardous waste facility threshold, in comparison to existing facilities I do not have the figures that my noble friend asked for. I shall try to find out and let him know. On how the threshold now in the Bill would impact, my understanding is that currently there are only nine hazardous waste landfills and one deep storage facility, each with a permitted throughput of 100 kilotonnes or more per annum. These all serve a national need, which is why we think that we have the threshold figures about right.

Clearly, as I think we are beginning to understand, these are judgments. For each project area listed in the Bill there are different considerations in relation to the threshold. Overall we believe that we have the balance right; overall we believe that in its work the IPC will deal with projects of national significance, but that the IPC should not be swamped with applications that would impact on its ability to come to appropriate decisions on projects of national importance. In the end it is a judgment, but we think that we have the judgment about right.

On Question, amendment agreed to.

153: Clause 28, page 18, line 2, leave out “150,000” and insert “500,000”

On Question, amendment agreed to.

Clause 28, as amended, agreed to.

Clause 29 [Hazardous waste facilities]:

[Amendments Nos. 154 and 155 not moved.]

Clause 29 agreed to.

Clause 30 [When development consent is required]:

156: Clause 30, page 19, line 5, leave out “or forms part of”

The noble Baroness said: This amendment is repeated in my Amendment No. 162 in a later clause. Clause 30 provides for when development consent is required,

“to the extent that the development is or forms part of a nationally significant infrastructure project”.

Both amendments would remove “or forms part of”, to probe what that means. Are there some de minimis arrangements? How will they work? Is the provision designed to sweep up after the bulk of the project has been determined? There is nothing sinister in this: I am unclear what the limits are. It seems odd that development consent and all the paraphernalia that that entails would apply if the part is very small. I beg to move.

I apologise to the noble Baroness, but my advice was that the Law Society suggested the amendment. Anyway, it is neither here nor there. I am grateful to the noble Baroness and quite happy if she had responsibility for it. It does not make any difference because I am happy to have my name added to it. The amendment is designed to clarify, as the noble Baroness said, whether additional minor development works might require development consent and the process by which that would be dealt with.

Amendment No. 157, which we also have in this group, deals with the question of changing the fuel source for a generating station. As drafted, the clause deals with only one type of fuel conversion. One can conceive of other types of fuel conversion perhaps happening. I can easily conceive of a coal station converting to gas, particularly if carbon sequestration were found to be uneconomic and not to work. You would then immediately halve the emissions for the same amount of power generated. Doing that on an existing site with connections to the grid and everything else might make extremely good sense in those circumstances. We thought that the Bill was too narrowly drafted and the definition ought to include a change of fuel used without referring to one particular type of fuel or another, which subsection (2) does at the moment. I hope that the Government will agree that that is a more sensible way of approaching the issue.

Amendment No. 159 goes back to what a nationally significant infrastructure project is. If work relates to a minor national infrastructure project which is none the less important and must still be done, how does one deal with the consent for that? It does not appear to be clear in the Bill how these matters will be treated. If one has a major national power station and some enhancement suddenly becomes either desirable or necessary, and that has to go through the local planning system, there might be some interesting consequences as a result of the time spent getting such matters dealt with. We must think about that.

I admit that I find it odd that Amendment No. 395 was added to this group but, since it has been, we may as well get it out of the way. The measuring and marking out of land is an offence under the Bill if it is done without consent. We thought that we ought to find out precisely why that is so. The measuring and marking out of land does not do a great deal of damage to land. I entirely agree that it ought only to be done with consent; that would be normal politeness and everything else. However, I should think that every Member of the Committee has had the awkward but not at all unusual experience of notifications of things that have completely gone astray.

The perpetrator of this disaster, from the point of view of the recipient, usually has no knowledge that that is the situation. We must think about that. Somebody may well give somebody notice in writing that he intends, because of the terms of his consent, to go on to and start marking it out on a particular date. That notice may well not arrive at the other end, such is the reliability of the modern postal service. Of course there are other means of communication—telephones, e-mail and all the rest—but the accepted method of communication for this sort of thing is a written notice. Sadly, they do not always arrive. We ought to have a little discussion of that topic. It would be an offence in that instance, but once through inadvertence not of one’s own creation.

I shall first deal with Amendments Nos. 156 and 162 of the noble Baroness, Lady Hamwee, which probe why development consent will be required for development where the development only forms part of a nationally significant infrastructure project rather than being one in its own right. I reassure the noble Baroness that her amendment is not necessary. Clause 30 of the Bill is designed to regulate nationally significant infrastructure projects. To the extent that development is proposed as part of such a project, that development will require consent under the terms of the Bill. However, development that could be carried out separately, and which is not clearly part of a development NSIP, will continue to enjoy existing permitted development rights.

Our overall policy aim is that the IPC will take on the role of examining and considering all aspects of an application that meets the definitions of a nationally significant infrastructure project. These definitions are set out in Part 3 and state clearly what scales of project will require development consent from the IPC. It is not our intention that promoters should be required to seek development consent for works which are not captured by these thresholds and which are not component parts of a greater project, by dint of them being judged as forming part of an NSIP. At the same time, however, we do not want to create a loophole that allows promoters to “salami slice” NSIP development into smaller chunks of work which could therefore slip under the thresholds.

I should also clarify that we have no reason to believe that the wording of this clause will prejudice the ability of the promoter to carry out works which are below the thresholds through existing permitted development rights as long as these do not form part of an NSIP.

In Amendment No. 157, the noble Lord, Lord Dixon-Smith, seeks to alter the wording of Clause 31(2)(a) to mean that the conversion of fuel sources in a power station should always be treated as a material change of use, and therefore require development consent under the Bill. I shall explain the background to this. The wording of Clause 31(2)(a) is intended to ensure that the provisions of Section 14(1) of the Energy Act 1976 are not lost. Under this Act, power station operators are required to seek consent from the Government before converting a power station to run from any power source, which generally, of course, means coal, to petroleum or gas, which was the example given by the noble Lord. The conversion of a power station to such a fuel source may not in itself be “development” within the normal definitions, and so were it not for this clause such works might not require development consent from the IPC. However, the conversion of existing power stations to use forms of fuel other than those contained in Clause 31(2)(a) would be extremely likely to require construction and other works, which would mean that it automatically counts as development under the Bill. For this reason we believe that Amendment No. 157 is unnecessary. However, if the noble Lord can provide me with any concrete examples to the contrary I shall, of course, look at them to see whether further amendment is necessary.

Amendment No. 159 seeks to add a new category to subsection (3), to expand the definition of “development” to cover any works that are relevant to an NSIP. This is intended to cover the kind of works that would not otherwise constitute development; for example, internal building works. However, we believe there is a risk that this amendment would introduce real uncertainty as to the meaning of,

“works carried out under Clause 14”,

and therefore create confusion as to the range of matters requiring development consent. No works are carried out under Clause 14, as this clause simply sets out definitions for what constitutes a nationally significant infrastructure project. By including these matters within the definition of development, this amendment would create uncertainty and confusion as to the range of matters requiring development consent under Clause 30, which would have completely the opposite effect of what this Bill seeks to achieve.

The noble Lord’s Amendment No. 395 is intended to ensure that a person does not commit an offence under the enforcement clauses of the Bill if he is only measuring and marking out land. We believe that this amendment is unnecessary. As I understand it, the noble Lord is concerned to avoid the situation whereby an offence under Clauses 153 or 154 could be triggered by a person simply measuring up or marking out land. I understand that underlying this concern is case law that has developed around the meaning of when development is commenced for the purposes of Section 56 of the Town and Country Planning Act 1990. The courts have held that in some circumstances preliminary works can be material operations for the purposes of Section 56. However, for the purposes of the offences created by Clauses 153 and 154 of this Bill, the relevant question is not whether development has commenced, but whether a person has carried out development for which development consent is required, or whether he has carried out works in breach of the terms of a development consent order. To understand this fully, it is necessary to refer to Clause 30, which says that,

“(“development consent”) is required for development to the extent that the development is or forms part of a nationally significant infrastructure project”.

We do not consider that the measuring up or marking out of land by itself could ever conceivably amount to development forming part of a nationally significant infrastructure project.

It only remains for me to move Government Amendments Nos. 160 and 161, which are purely drafting points intended to clarify the workings of Clause 33. However, I can explain them fully if noble Lords wish.

I will read what the Minister said. One point, which I was trying to write down, seemed circular; I am sure that it was not. Regarding the provenance of my first amendment, I wish I had realised that the Law Society had proposed it, because then I could have checked its notes rather than agonising about what I meant. I am sure that it was a good idea at the time, but it is not necessarily that obvious when one gets to midnight on a Committee day. I am grateful for the explanation, which I will read. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 30 agreed to.

Clause 31 [Meaning of “development”]:

[Amendments Nos. 157 to 159 not moved.]

Clause 31 agreed to.

Clause 32 agreed to.

Clause 33 [Welsh offshore generating stations]:

160: Clause 33, page 21, line 14, leave out “being made in relation to” and insert “authorising”

161: Clause 33, page 21, line 20, leave out “is made in relation to” and insert “authorises”

On Question, amendments agreed to.

Clause 33, as amended, agreed to.

Clause 34 [Direction in relation to projects of national significance]:

[Amendment No. 162 not moved.]

163: Clause 34, page 21, line 32, leave out paragraph (d)

The noble Lord said: There seems to be no theme uniting this group of amendments as far as I can see. It seems to be a bureaucratic grouping, which I do not object to at all, but I shall speak only to my amendment, which deletes Clause 34(1)(d). This subsection concerns me because it appears to give the opportunity to the Secretary of State to lump together several projects. When none of them singly would be able to be categorised as a project of national significance, he can apparently lump them together and so decide that they become a project of national significance.

For example, it would appear that the Secretary of State might be able to decide that a group of wind farms which were individually beneath the threshold could be considered together and would become a nationally significant project. They would have nothing in common with each other at all; there is certainly nothing here to require anything that links the projects. They would be schemes by different developers and they could be started at different times and subject to different local authorities, with absolutely nothing in common to justify them being put together except that the Secretary of State has, apparently, the unfettered discretion to decide that they should be considered together. I should be grateful if the noble Lord could explain whether that is the intention of the subsection and, if it is not, whether it could be the effect of that subsection. I beg to move.

I should tell the Committee that if the amendment is agreed to, I cannot call Amendments Nos. 164 or 165 for reasons of pre-emption.

My Amendment No. 164 is grouped with Amendment No. 163. It was really prompted by curiosity and by the drafting of Clause 34, which is quite interesting. Clause 34(1) says:

“This section applies if … an application for a consent … in relation to development”.

Paragraph (b) starts with the words “the development is” and paragraph (c) says “the development will”. Then paragraph (d), for some reason, states,

“the Secretary of State thinks that the project is of national significance”.

I fail to understand why paragraphs (a), (b) and (c) refer to “development”, then, suddenly, the Secretary of State is thinking about a “project”. There may be a rational reason for that, but I admit that I had some difficulty in thinking what it could be. I thought that the only way to find out what was in the Secretary of State’s mind was to invite the Minister to say why “project” is used when the rest of Clause 34(1) refers to “development”.

I have Amendments Nos. 165, 167 and 168 in this group. On Amendment No. 165, I share the concern of the noble Lord, Lord Reay. When the notion of covering more than a single field in this provision was introduced in the Commons, it was said that it would clarify drafting. I think I know the answer, but perhaps the Minister can clarify the position for me. Is a single application possible across more than one field? I think that the answer is “yes”.

Amendment No. 166 represents perhaps an obscure way of probing. I sent the question to the office of the noble Baroness, Lady Andrews, and I hope that it is not so obscure as to be impossible to answer. I suggested taking out,

“for specified purposes or generally”,

because I do not understand the difference between paragraphs (a) and (b) in subsection (4). I have asked for the distinction to be explained.

On Amendments Nos. 167 and 168, in the Commons the Minister said that the power would be used only in rare circumstances and on the basis of clear criteria. I think that he was referring to this matter. It would be clearer if any future applicable legislation contained the provisions, rather than trying to anticipate them now. More importantly, it would be more appropriate if the Secretary of State did not have the power to make a modification or treat a provision as having been complied with. That strikes me as a significant power, given rather casually to the Secretary of State.

We are on the last lap—for tonight. I begin with the issue raised by the noble Lord, Lord Reay, on Clause 34(1)(d), which allows the Secretary of State to direct either individual sub-threshold projects or a group or cluster of such projects to the IPC. In the case of a cluster of projects, referral to the IPC can be made on the basis that the projects, when considered together, are of national significance. This reflects the cumulative impact that such clusters of projects can have on an area. For example, a series of proposed offshore wind farms in a similar area might be below the 100 megawatt limit individually, but above the limit when taken together.

In response to the opening comments of the noble Lord, Lord Reay, we expect that the ministerial power of direction in this area would be exercised on the basis of clear criteria set out in a ministerial Statement, or possibly in the NPS itself. We would expect this power to be used comparatively rarely, to deal with circumstances which we would not be able to predict, such as changing technology, changing sectoral circumstances or situations where several projects come forward in close proximity such that they are likely to have cumulative impacts that require holistic consideration.

Amendment No. 164, in the name of the noble Lord, Lord Dixon-Smith, seeks to alter Clause 34(1)(d) so that the Secretary of State can direct a project to the IPC only if he believes that the “development” is of national significance, rather than if he believes the “project” is of national significance. Perhaps I should explain why we have used “project” in Clause 34.

The meaning of “development” in the Bill, as set out in Clause 31, is the same as in the Town and Country Planning Act, albeit with some modifications—that is, it relates specifically to physical and engineering works, such as construction, demolition and digging, and to material changes in the use of land. The reference to a “project” as opposed to a “development” is used in Clause 34 to permit the Secretary of State to take a wider view of various aspects of development work involved in a project when deciding whether it is of national significance. Therefore, we have used “project” to cover planned and linked pieces of development, and the Bill is chiefly interested in whether a project taken as a whole is of national significance.

Subsection (1)(d) relates to where a series of individual projects might be envisaged—perhaps promoted by different companies—but where the projects involve similar types of development work and are perhaps within close geographical proximity to one another. In such circumstances, the cumulative effect of these individual projects could exceed the thresholds of an NSIP, and we intend that it should be possible for the Secretary of State to conclude that the projects, taken together, are of national significance. Where a series of related applications or proposed applications clearly form a single project, Clause 34(1)(b) already achieves that result. In other cases, it might not always be possible to view the applications as part of a single project, and these separate projects could be directed to the IPC only through the wording that we have provided in Clause 34(1)(d).

I turn to the amendments in the name of the noble Baroness, Lady Hamwee. She will be pleased to hear that we believe that there may well be merit in her Amendment No. 165, which would ensure that the Secretary of State could direct a series of projects to the IPC only if they were within the same field—such as all being energy projects or transport projects and so on. We think that the noble Baroness raises a valid point in this area and, if she would be content not to move the amendment at this stage, we should be glad to discuss it with her further before Report to see whether some change is appropriate.

I fear that I cannot be quite so forthcoming on Amendments Nos. 167 and 168. In this context, it may be helpful to outline our intentions for subsections (4) and (5). We want to avoid the situation where the direction of an application to the IPC has unintended consequences, and we want to prevent a promoter having to restart the consent process for a project from square one if the Secretary of State directs an application to the IPC. For example, the Secretary of State might want to ensure that the pre-application consultation requirements apply in modified form to the application in question, or the Secretary of State might want to direct that certain procedures—for example, pre-application procedures—are treated as having been complied with in relation to that application. We believe that this would be justifiable to ensure that the promoter was not penalised because the Secretary of State ruled, relatively late in the process, that the application was of national significance.

Amendment No. 166 asks whether the power of the Secretary of State in subsection (4) applies,

“for specified purposes or generally”.

For the reasons I have already given, we believe that this wording is needed in order to allow the Secretary of State flexibility to vary the effect of a direction of a project to the IPC. On that note, I hope that I have dealt with most of the matters raised.

I am grateful to the noble Lord for his reply, which I shall study carefully. He mentioned the possibility that this power could be used in the case of offshore wind farms that individually fell below the threshold. Will he say—if not immediately, then in writing—whether the Government can envisage that power being used in the case of onshore wind farms?

I thank the Minister, and on that basis I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 164 to 168 not moved.]

Clause 34 agreed to.

I beg to move that the House do now resume.

Moved accordingly, and, on Question, Motion agreed to.

House resumed.

House adjourned at 12.35 am.