House again in Committee on Clause 36, Amendment No. 176.
We resume debate on this long and varied group of amendments on applications for development consent and consultation on them. The lead amendment in the group was moved some hours ago by the noble Lord, Lord Dixon-Smith. We have a number of Liberal Democrat amendments, 10 in total, in the group, to which I shall speak in a minute. In addition, my noble friend Lady Hamwee and I have added our names to the three amendments from the noble Lord, Lord Jenkin, to which he has already spoken. I am not sure that the digression into building a highway tunnel under the Lake District was entirely appropriate in this debate, and I do not think that the Minister would want us to go that way. The idea of a road tunnel being built under Great Gable and Bow Fell would not immediately gain our support—we wonder where it would come out at each end. As somebody who has been peripherally linked to a campaign against building a similar road under the Vignemale in the Pyrenees, I would not support it. However, we support everything else said by the noble Lord, Lord Jenkin, with great enthusiasm.
I also added my name to the two amendments tabled by the noble Lord, Lord Judd, about national parks. I will briefly return to the issues that we talked about on Tuesday relating to national parks, parishes and consultation. As the noble Lord, Lord Cameron, said, this is part of the Bill where it is most important that a statutory right to consultation exists, because it is about development control. They will be called applications for development consent, but in practice they are applications for planning permission for big nationally important projects.
At the moment, if someone comes along and wants to build a new road, power station, railway or whatever in a parish, the parish council has a statutory right to be consulted on that planning application. Unless it is written into the Bill, that is an existing right of parish councils that would be taken away. That is the fundamental point. Surely the Government do not want that. When we were talking about the Local Government Bill on Tuesday, the Government said that they did not have a national database of parish councils. I have been thinking about that since then. Parish councils must be the only organisation or group of people in the entire country that the Government do not want to have on their new super database. However, if that is the case, as I pointed out previously, local planning authorities would do the job for the applicants if that was a way round it, but it has to be in the Bill.
The argument about national parks, of course, is that they are the local planning authorities in terms of planning implications. They are the local development control authority within each national park. It would be extraordinary if the body which, at the moment, is initially the body to which application is made, should be cut out of the process altogether and should not even have the right as a consultee. These are important matters and I hope the Government will reassure the Committee, or I have a feeling that we will have to return to them.
The issue raised by the noble Lord, Lord Dixon-Smith, is very important. He asked about the relationship between these new national planning applications—applications for development consent—in relation to existing local development frameworks, which are a part of the existing planning policy system. But the issue is wider than that because the existing planning policy system, which is fairly complex as we all know—some would say inscrutable—essentially consists of three layers. There are the national policy statements or planning policy statements, the regional planning policy statements or regional spatial strategies and then there are the local development frameworks which will all develop within the regional spatial strategy. If you are considering a planning application as a local planning authority, those are all important material considerations. You look at the local development framework, you look at the regional spatial strategy and you look at the planning policy statement.
Sometimes, they conflict. Together with all the other material considerations, you decide whether to pass the planning application. However, I am not clear about the new system. One thing that is clear is that the new national policy statement will be up-front and will be the first thing that the Infrastructure Planning Commission will look at. It is the number one material consideration, although others are listed in the Bill.
However, if you have a planning application for a new power station or railway line, for example, it is most unlikely that all the considerations to be taken into account to deal with that application will be in the national policy statement. By its very nature, the national policy statement is a more strategic document. Even if it is pushing people towards specific sites, it is still an overall policy statement. Everything else connected with it is probably not in the national policy statement, such as the materials in which a building will be built, for example. Some of these other issues may be found in planning policy statements, regional spatial strategies and local development frameworks. I cannot find in the Bill the role and relationship between the Infrastructure Planning Commission and the existing policy structure set out within the planning system. That is the fundamental issue in the narrower amendment of the noble Lord, Lord Dixon-Smith, which talked specifically about local development frameworks. It would be helpful if the Minister could send round one of her famous circulars explaining how the provision will work, because we need to understand it. If it is not clear at the moment, the Bill should be amended so that it is clear.
I now move rather more rapidly, I hope, towards the amendments in my name. Amendment No. 178 relates to the consultation report that follows the consultation. We must remember that there is a great change of emphasis on consultation under this new system compared with the existing planning application because the onus is on the applicants to carry out the pre-application consultation. At the moment, there are occasions when applicants do that. We have just had a new supermarket application in Colne and the applicant, Sainsbury's, put in a lot of local consultation. But the danger is that the consultation will not be seen to be unbiased. If a company proposes to build a nuclear power station and that company—presumably EDF or whatever it will be called in this country—puts in an application, and then does the consultation, people will simply not believe that it is not rigged and that it will be fair, open and transparent and that people’s views will be fairly listened to. The amendment suggests that the consultation report must include not just the results of the consultation but an explanation of how that consultation has changed the application in any way. If it has not changed, it must explain why the consultation has been ignored. That is the purpose of that amendment.
Amendment No. 183A relates to the point I previously made about who carries out the application. All that we are saying is that the applicant can do the consultation themselves, as the Bill suggests or it can appoint some other quite independent body that is seen by people to be independent to carry one out on their behalf, which would be in the interests of applicants. That is the purpose of that amendment. It is important that the consultation is seen to be fair and impartial. The specific example put forward by my noble friend was BAA submitting an application for expansion of an airport—if I were to think of one at random it would be Heathrow. People throughout south-west London will not believe that BAA itself would carry out a fair consultation exercise, but somebody else might on its behalf.
On Amendment No. 184, at the moment, Clause 41(1) says that the applicant must consult,
“such persons as may be prescribed”.
We would like to add the words:
“who shall include persons living within the area of each local authority that is within section 42”—
—in other words, local residents within the local authority concerned. We are not suggesting that everyone necessarily has to have a door-to-door leaflet about it, although in some cases that might be appropriate—that is what Sainsbury's did in Colne. There are local newspapers and other means of publicising things. The important thing is that everybody who lives in the area should be told about the application and have the opportunity to respond. There is a Conservative amendment on a similar point.
I would simply tick the box and say about the amendment of the noble Lord, Lord Taylor of Holbeach, on marine issues, that we share his concerns. A later group of amendments will look at that in a bit more detail.
Amendment No. 193 is about categories for the purposes of Clause 41(1)(d). It puts the onus firmly on the applicant to make a diligent inquiry as to who the owners, lessees, tenants and occupiers are in order to consult them. At the moment, there is no duty on applicants to make reasonable efforts to identify these people; without such a duty, they will miss out people, who will be miffed. Large organisations or those rich enough to do so might go to the courts; others will feel that the planning system has failed them.
Amendment No. 198 relates to Clause 44, on the timetable for consultation. The Bill defines the consultation documents as,
“the documents supplied to the person”.
We want to strengthen the definition to mean all the documents required to be supplied.
That ties in with Amendment No. 202 to Clause 47, on the duty to publicise the application during consultation. Clause 47(1) says that regulations will be prescribed. We would like clarification of whether that prescription would be by the Secretary of State or the infrastructure planning commission. We assume that it is an order by the Secretary of State. There is ambiguity about whether the overall supervision and monitoring of the consultation is in the charge of the Secretary of State or whether it is devolved to the infrastructure planning commission. We would like clarification.
Clause 47(2) is the only specific requirement in the Bill under these regulations, if that is what they are. It provides a deadline for the receipt of responses. Amendment No. 202 would add the words,
“the scope and content of consultation documents to be provided under sections 44 and 46”.
The scope and content of the documents are vital. You could post a postcard through people’s doors and say “That’s it” or you could give them various types of access to consultation documents. It ought not to be left to the applicants to decide the content of those documents; the regulations should clearly prescribe the minimum information that people must be given.
Amendments have been added to this group about the minimum number of days in which to give a consultation response. This was raised by a number of noble Lords, including the noble Lords, Lord Jenkin and Lord Cameron, who tabled amendments on it. We propose that the minimum number of days for a consultation response, whether by statutory consultees, such as local authorities, other organisations or members of the public, be raised from 28 days to 90 days. We do not hold firm to the figure of 90 days, but 28 days is not long enough by a substantial degree. The noble, Lord Jenkin, suggests 12 weeks and the noble Lord, Lord Cameron, 56 days. I am sure that we can agree a period, but it should certainly be more than 28 days, especially given the effort needed to give a reasonably detailed and coherent response to a planning application for a power station, a railway line, road or any of the other infrastructure projects mentioned.
If the period of 28 days is included in the Bill and adhered to rigidly, the system will be brought into disrepute. The Government cannot countenance that happening as a result of people not believing that they have had enough time to take part properly. People need to spend time deciding what to do when they get notification of an application or read about it in the paper, possibly a week later. Local authorities would have to call meetings to decide what to do and to gather evidence. If the application is for a big development such as a nuclear power station, district councils would probably have to appoint consultants to assist with the response. It takes time for authorities to do their work, make decisions and submit a report. It is simply not acceptable to ask even a local authority to respond within 28 days to huge, major proposals in their area; nor is it acceptable for ordinary people, local groups, parish councils or even national campaign organisations. Of course there are always applications submitted on 20 December or just before the summer holidays, and people go bananas, quite rightly, because they cannot respond.
I have spent some time talking about these amendments because they are very important; they are at the heart of the system. There is huge suspicion about the new consultation system because it is to be organised by the applicants. If it does not work and is not seen to be fair, transparent and effective, the whole system will go into disrepute very quickly.
I apologise that I have not been able to be present since the lunch break. I gather that we will not be here beyond 7 pm but I shall certainly stay for the rest of the debate.
I support Amendment No. 191, in the name of my noble friend Lord Judd and the noble Lord, Lord Greaves. It seems inconceivable that national park authorities would not be automatically involved as consultees if land in their areas is affected. I hope very much that, today or on another occasion, the Minister can be positive about that.
This has been a very long debate, necessarily so as there is a huge range of amendments in the group. It is testimony to the integrity of this House that so much time has been spent on what the noble Lord, Lord Greaves, rightly said lies at the heart of this: the need for a credible process so that people genuinely own the changes under the Bill.
These amendments address consultation at the pre-application stage. We must remember that this is a new, very welcome part of the planning process. I am sympathetic to much of what noble Lords said, and I hope I can reassure them wherever possible. There is currently no requirement in the planning system for promoters to undertake pre-application consultation, though they do it as a matter of good practice. Part 5 seeks, therefore, to set out standards and processes that should be common to all applications but which are flexible enough to meet the needs of large and small, and more and less complex, projects.
Three principles will guide the consultation. First, it should be early so that people not only have their influence felt but know they have influenced the process and that their views have been taken into account at the formative stage, when it counts. The promoters must be able to refine and improve their proposals by identifying problems early on, by negotiating on and discussing those issues with the local community and suggesting solutions. That will improve the quality of the application.
The second principle is that consultation must take place with the relevant people and local authorities, statutory consultees and people with an interest in the land or whose land could be affected by proposals.
Thirdly, the consultation must be undertaken with the local community. It has to reach into communities to make sure that those affected have a say. That is why the promoter is required to consult the local authority on how to consult local people. Local authorities can give detailed guidance on how to undertake local consultation, in the light of the proposals and of the nature of the local community. That could include which bodies and groups should particularly be referred to, what timescales are appropriate and so on.
In addition, promoters must have regard to any guidance from the IPC. The IPC may wish to give general guidance as to how consultation should be carried out. That is important, as the IPC must be satisfied that consultation has been properly carried out before it accepts an application.
Thirdly, a promoter must have regard to any guidance from the Secretary of State, including any guidance from the Secretary of State about community involvement in planning. This is likely to be in the form of broad, strategic guidance on consulting with local communities. There is a robust set of requirements surrounding this process.
Turning to the amendments and the issues they raise, Amendment No. 185 of the noble Lord, Lord Dixon-Smith, and the noble Earl, Lord Cathcart, would require that a list of statutory consultees for pre-application consultation must include residents who would be affected by the proposals. Amendment No. 184 of the Opposition and Liberal Front Benches would require this list to include persons living within each affected local authority, as defined by Clause 42.
In saying why the amendments are unnecessary, I shall explain the ways in which the Bill meets the objectives, and how the consultation will capture those people it should. First, Clause 41 requires consultation with local authorities, statutory consultees, and those who would be directly affected because they either have an interest in the land, or because their land would be affected to such an extent that they might be able to make a claim for compensation.
Secondly, Clause 46 provides that promoters must draw up a statement setting out how they propose to consult people living in the vicinity of the land. There is no legal definition of “vicinity”, so if we take the dictionary definition it would mean, “people living nearby”. That captures what the noble Lords are concerned about to a large extent.
We must remember that the principle behind this drafting is quite simple. The projects will vary in size and complexity, and impacts will vary. For example, an underground gas storage facility may affect people located nearby, but have little effect on wider traffic flows. As we have heard from the noble Baroness, Lady Hamwee, an airport, for example, affects traffic flows over a wider area. We must therefore have some flexibility about the definition.
Rather than prescribe a rigid and, frankly, artificial geographical boundary for consultation, the Bill gives promoters the flexibility to make a judgment about what “vicinity” means in each case, based on the detail of the proposal. However, I reiterate—and assure the noble Lord, Lord Dixon-Smith—that this judgment is subject to the safeguards outlined above for those different requirements for advice and to follow guidance.
To ensure wider coverage, promoters must also publicise both the proposed application under Clause 47 and the local community consultation statement under Clause 46. In both cases, the Secretary of State may prescribe in secondary legislation how this should be carried out. I therefore hope that this will meet the purposes of those amendments.
Amendment No. 202 seeks to require that regulations under Clause 47(2) must make provision as to the scope and content of consultation documents to be provided. As I said above, projects will obviously vary enormously, and it would therefore be quite difficult to make regulations about scope and content both useful and universal. They would have to be very broad and therefore probably quite banal and perhaps not very useful.
There will be a significant body of advice and guidance to which the promoter must have regard when undertaking consultation. Moreover, the IPC must decide whether the applicant has complied with the provisions of Part 5 before it can accept an application. As the arbiter of this matter, and as the body with responsibility for the new regime, they should therefore be responsible for providing guidance on how the requirements should be complied with.
Amendment No. 183A of the noble Baroness, Lady Hamwee, and the noble Lord, Lord Greaves, would clarify that a promoter could organise consultation under Clause 41 through a third party. Members of the Committee will understand that, through these provisions, we are trying to initiate a proper dialogue between the promoter and the local community. On the grounds of responsibility, the promoter should have overall control and can be held responsible for this process. I take issue with the noble Lord, Lord Cameron, on this: it does not mean that the promoter runs the process. The promoter will be under some serious requirements to follow the guidance I have already spelt out. They must ensure that the application meets those standards.
One of the purposes of consultation at this stage is to identify any significant impacts of proposals. The promoter must address that, take account of them and amend the proposal. This does not mean that a promoter could not appoint a third party to assist them in carrying out this consultation. Nothing would stop that if it was felt a better process. The clause does not rule out that possibility. However, it is vital that the duty should bear directly on the promoter and they must take direct responsibility for it.
Before the Minster goes on to another amendment, applicants will set great store by the tone that the Government set on this. My noble friend rapidly—because we understand the need to move on—explained the problems of trust and confidence if a promoter undertakes the application himself. I can envisage people saying, “Well, it’s the applicant; there is no point in us going along to a meeting”, while the applicant says, “Only three people came, so there is no objection”. What the Government have to say about encouraging genuine consultation is very important in addition to the words in the Bill.
I could not agree with the noble Baroness more, which is why the guidance to be issued by the IPC and to be complied with is so important. The guidance of the Secretary of State—the language, the scope and tone—will be crucial. On this amendment, however, there is nothing in the Bill to stop the promoter bringing in a responsible, respectable party to conduct a consultation for them.
I am grateful for my noble friend’s intervention. Does the Minister not understand that there is a difference? I am entirely in favour of a dialogue between applicants and the local community, where it is very local or huge. That is an important part of a good planning application at any level. However, that is a different process from that of consultation of the wider community in a more unbiased and independent manner as part of a general process of consultation and participation—engagement, the Government would say—in that process.
The process of dialogue between an applicant who has a strong point of view and the community is different from consulting the community about what it thinks as part of the application. Is there not a conflict here?
Not necessarily. We are talking about pre-application consultation. All I can say to the noble Lord is that it is because we want this to be as acceptable and credible as possible that we have built this process into the compliance requirements of the IPC itself. It must be satisfied that this consultation has been conducted properly, impartially, fully and inclusively, not least bringing in those with disabilities, which we addressed this morning.
Moving on, promoters are also responsible for carrying out an assessment under the EU EIA directive, where one would be required, and for preparing an environmental statement, which involves consultation with certain bodies. There is an element of precedence here.
Amendments Nos. 178 and 203 probe how far promoters would have to explain how they had accommodated responses. Amendment No. 178 would require that the consultation report would include details of the extent to which the application is affected. Amendment No. 203 would require that, under that duty in Clause 48, they would have to take account of responses to publicity and consultation and so on.
As I said, some projects will be more controversial than others and will be bound to excite a huge number of responses. I do not think it is sensible, as suggested by Amendment No. 203, to require promoters to explain how far they were unable to accommodate each individual response. However, I am more sympathetic to the principle underpinning Amendment No. 178. Clause 36 already requires promoters to report the account taken of the responses to public consultation. That would include describing how the responses had affected the consultation. Therefore, I believe that the Bill meets those requirements.
Other amendments, for example, Amendment No. 186, would further broaden the list of statutory consultees to include local organisations representing disabled people—I again pay tribute to the work of the noble Lord, Lord Jenkin, in ensuring that we listen to and are cognisant of the needs of people with disabilities. I put that in the context of the other amendments that consider other consultees.
Earlier we discussed the role of local authorities. Local authorities are the only statutory consultees specified in the Bill because, as I said, they are both the elected representatives of their areas and experts in local consultation. However, I am sympathetic to what noble Lords seek to achieve with these amendments. A wide range of bodies should be consulted by promoters about applications, but primary legislation is not the right place to put such a list. However, I reassure noble Lords that we would certainly expect that organisations representing disabled people and the marine environment would be specified as statutory consultees where appropriate. I hope that takes account of the amendment in the name of the noble Lord, Lord Taylor of Holbeach.
There are a raft of amendments concerning parish councils and national parks. The Committee has made its views clear on where it stands on these matters and the importance it attaches to these very important bodies. I have instructed my officials to ensure that, wherever appropriate, national park authorities and parish councils will be included as statutory consultees in regulations. I hope that fully meets the requirements of noble Lords who raised these points. As I said, we cannot put these in the Bill. We are putting no statutory consultees in the Bill. However, they will be clearly identified as statutory consultees in secondary legislation.
Amendment No. 193 in the names of the noble Baroness, Lady Hamwee, and the noble Lord, Lord Greaves, would require that an applicant make diligent inquiry to identify people with an interest in the land. I can confirm that this is the effect of the clause as drafted. Therefore, I believe that is taken into account.
Amendments Nos. 193A and 225A stand in the name of the noble Lord, Lord Jenkin, who asked how we expected to be able to consult and notify people who might be able to claim compensation for injurious affection and sought to remove the relevant provisions. I wish to respond in some detail as this is an important point. Identifying people who could be able to make a claim for injurious affection is far from impossible and this is certainly not the first time that we have done this. I reassure the noble Lord on that point as he was obviously concerned about it. The relevant provisions in the Bill are based on those in the Acquisition of Land Act 1981, which requires that where a compulsory purchase order is being made in relation to a project, people who might be able to claim for injurious affection must also be notified.
It is only right that people who could be affected in this way should be notified and consulted. Not to do so would infringe their rights under the ECHR. Injurious affection is not abstract or mysterious; it is based on the depreciation in land value as a result of the construction or use of works. Therefore, we have precedents; this is a very specific procedure and we are required to do it under the European Convention on Human Rights.
Promoters are responsible for understanding the potential impacts of their projects and should therefore already have evidence as to what they will be at this stage. However, in response to concerns that this requirement is drawn too widely in the Bill, we are bringing forward amendments, which will be debated shortly, to require the notification and consultation of people who might be able to make a claim so far as they are known after a “diligent inquiry”. The words “diligent inquiry” appear in government Amendment No. 192. This will ensure that, were a developer to miss a person who might be able to make such a claim, despite their best efforts, neither they nor their consultation would be vulnerable. I hope that the noble Lord is reassured by that.
Amendment No. 198 in the names of the noble Baroness, Lady Hamwee, and the noble Lord, Lord Greaves, seeks to ensure that the timescale within which someone must respond to consultation—the point at which the clock starts ticking, as it were—starts to run from the point where the person being consulted has received all the documents required under the provisions of the Bill to be served on them. That is already the position under the existing wording of Clause 44: the reference to the documents means all the documents.
Staying with the issue of timescales, Amendments Nos. 196, 197, 199A and 250 all urge the Government to extend these. Amendments Nos. 196 and 197 argue that consultees need to be given sufficient time to respond to a promoter’s consultation, but it is equally important that they provide the promoter with any information or advice he needs in a timely manner as the promoter will be reliant on certain consultees such as local authorities for specific information. Therefore, statutory consultees who hold such information have to be able to respond promptly and properly to help the investigation along.
The noble Lord, Lord Greaves, as always, spoke eloquently on this issue, but I stress that the 28-day period specified in relation to pre-application consultation is a minimum period. It will be open to an applicant to give those consulted a longer period to respond. Applications will vary in complexity and will require different periods of time for consultation. Promoters will have to look very carefully to ensure that those periods meet the requirements of disabled people. I take the point the noble Lord made that often documents in a special format come out far too late for disabled people to make use of them. We should try to do something about that. Therefore, we have flexibility when specifying a deadline for consultation. The question arises of why the promoter should make that offer. However, they are in a position to come to a view on the timetable. The promoter knows the detail of what he is dealing with. That is all subject to the same safeguards in relation to the IPC advice and guidance, advice from the local authority and guidance from the Secretary of State. Those safeguards will kick in there.
The formal pre-application consultation is unlikely to be either the beginning or the end of the process. That is relevant because many of these details will have been hammered out in bilateral conversations with individuals, agencies and groups in the community before the application even reaches the pre-application process.
On Amendments Nos. 199A and 200, I underline that the local authority is not being consulted on the application—that takes place under Clause 41—but is being asked to express its opinion on how a promoter should consult people in the local authority’s area. It is important that local authorities respond quickly to this consultation and it is reasonable to give a four-week opportunity to do so, because we do not want any procrastination at these sorts of process levels. The timescales set out allow for flexibility but provide safeguards. I hope that noble Lords will accept that explanation.
Amendments Nos. 201 and 183 would require that arrangements for publishing an application locally include one talking newspaper where available and that arrangements must be made to make sure that the register of applications maintained by the IPC is available in formats accessible to disabled people. I fully sympathise with the purpose of these amendments. I can give an assurance that guidance from the Secretary of State under Clause 46(5)(b) will give consideration to the need for consultation to address the needs of people with disabilities. As I have said, the Disability Discrimination Act will apply.
Amendment No. 176, tabled by the noble Lord, Lord Dixon-Smith, and the noble Earl, Lord Cathcart, would alter Clause 36 to require an applicant to provide evidence that he has taken all reasonable steps to ensure that his proposals conform with the local development framework relevant to the affected area. I happily respond to the invitation made by the noble Lord, Lord Greaves. I will be delighted to send a long letter to noble Lords about how this locks into the planning process. It is not complex, but it is quite difficult to visualise. We are not talking about a hierarchy of planning documents, although the NPS will be the material consideration. We are talking about the integration of the planning policies that are already in place into the NPS and the reflection of those policies, through the regional spatial strategies, into the local development framework. I will happily set out for noble Lords how we see that working and the flow chart that it will involve.
It is already a requirement that, once a national policy statement is established, the relevant development plans, including regional spatial strategies and local development frameworks, should be consistent with it. I take the point raised by the amendment that the developer must work with the local authority in relation to the local development plan to ensure that, in so far as it can be consistent, it is. We hope that there would be evidence of close working throughout the entire process. Local development plans are coming on stream and the process has been accelerated. Part of the purpose of the Bill is to simplify some of those processes. It would not be helpful to require the promoters to sign up the policy in an NPS with what might be out-of-date policy in an LDF, which I think is implied in the amendment. We would have to leave it to common sense and clear thinking. The Bill requires that NSIP applications must be decided in accordance with the relevant national policy statement going through that process. For normal applications, the evidence of conforming to the local plan will have to be shown at different stages as it goes along.
However, that does not mean that local concerns will not be taken into account; far from it. In fact, the Bill places a clear role for local authorities to ensure that local concerns are given proper weight. In addition to their role in consultation that I have specified, the Bill makes specific provision for local authorities to be statutory consultees and to submit a report of local impacts. The local development plan will be reflected throughout that and it will highlight the impact of the proposals.
I have spoken at some length. I hope that I have addressed all the issues that have been raised in the amendments.
This is purely a matter of clarification. I want to ask about marine representation in the Bill. Am I right in assuming that the noble Baroness has affirmed today that by regulatory means there will be a requirement to consult with the marine body—the Marine and Fisheries Agency or later the MMO? I cannot understand why that is not central and why it is not in this Bill, because it will be part of the forthcoming marine Bill. That suggests some resistance by the promoters of this Bill to acknowledge the concern of the promoters of the marine Bill that there should be equivalence. My interest in this matter is to try to make sure that there is a system in which the pre-consultative process diffuses the tensions that can exist. One does not want—and I am sure that the noble Baroness is no exception—a situation where planning applications go through but a body starts to create a fuss at later stages, as the MMO will be perfectly entitled to do under the marine Bill, which we shall consider in due course.
I agree with everything that the noble Lord has said. First, there has to be a proper read-across between the provisions of both Bills in terms of the objectives that they serve and what we are after, to ensure that we have the best possible processes and understand how the marine environment will relate to them. At one level, the marine legislation will be fed into the national policy statement, like every other piece of relevant national legislation. In terms of the regulatory structure, the MMO will be a statutory consultee. That will be set out in regulations. We have not identified any statutory consultees in the Bill, because it is not good practice to do that; one would need to keep adding to the list and different NPSs will require different statutory consultees. I hope that I have answered the two main points. Perhaps I may write to the noble Lord, because we have not had a full debate on that relationship and we may tease out some of the other issues that he raised.
I have two quick points. I thank the Minister for yet again providing us with a large amount of bedtime reading before the next stage of the Bill. I particularly look forward to her promised explanation of how the NPSs and ADCs will fit into the existing planning system. If we can get that soon enough to dissuade us from putting down amendments at Report, it would be in everyone’s interests, although it may not dissuade us.
The national policy statements will not go into the sort of detail that local development frameworks do on all kinds of things, such as design and materials. I am trying to discover whether aspects of the planning policy at regional and local level through the LDFs will need to be taken into consideration, alongside the major strategic matters in the NPS, when the Infrastructure Planning Commission deals with an application.
The noble Lord is absolutely right. In some cases, the NPS is a material consideration; the planning system will not be suspended but will operate alongside the NPS, in matters such as siting, location and materials, which are governed by a range of other provisions to improve the way in which we plan. I give the noble Lord that assurance.
Okay; we will look forward to that. The other issue that I wish to raise is the role of a local authority as a statutory consultee under the pre-application consultation system. A local authority will be asked to do two different things. One is to provide information. It is perfectly reasonable that there should be a deadline such as 28 days if the applicant is serving a notice on a local authority asking for information on, for example, local sewers, traffic counts, what is in the LDF and so on. It is reasonable that a local authority must provide that information quickly, because it possesses that information. If the local authority is efficient in any way, it will be able to pull the information off the shelf or out of a computer and provide it. That is different from the local authority as a consultee being asked to provide its considered views on a proposal—in other words, being asked to provide its opinion, based on facts and information. That is why 28 days is onerous and will cause bother.
I think that there is a distinction to be made; it is that distinction that allows for the flexibility to kick in and will allow longer for the second sort of application. However, I shall clarify that and, if I am wrong, I shall write to the noble Lord.
I hesitate to disagree with the noble Lord, Lord Greaves, except on one thing. It is not bedtime reading, otherwise I would fall asleep; it is weekend reading. We shall certainly want to study carefully what the noble Baroness said, particularly with regard to the points that I raised on the two, what I might call “legal”, amendments to which I spoke. I think that I understood what she was saying, and obviously one will need to consult. However, she was extremely responsive to the amendment concerning disabled people. The promise of guidance on the publication of documents in formats suitable for visually handicapped people will be valuable. One of the major complaints is that it takes a long time for them to become available and, of course, if the time limit is very short, that makes it extremely difficult for people to respond. However, I am grateful for the trouble that the Minister has taken.
I thank my noble friend for what she said about national parks; it was very encouraging. I have no doubts whatever about her personal commitment. What I am still a little anxious about is the cut and thrust and dynamics of the real process of planning. Without wishing to bore the Committee, perhaps I may remind noble Lords that the post-war Labour Government had a vision of the parks belonging to the nation. Thank God that that vision has been endorsed by Administrations of different political persuasions ever since and the parks do belong to the nation. The principle was that people would be appointed to be the guardians of the responsibilities; we talked a little about democracy on Tuesday, and I cannot see anything undemocratic about this. Parliament decided that the parks belonged to the nation and they were for the nation. It was the guarantor of the whole process and Parliament is certainly accountable to the people.
The trouble with regulation, as distinct from what is in the Bill, is that, as powerful realities come into play, a certain psychology develops. People say, “Have all the consultations taken place? Yes, here on the face of the Bill are the things that have to be consulted about and the bodies that are consulted”. When asked whether there is anything else, the answer is, “Oh yes, there are the national parks”, and their status immediately begins to drop in the debate. That is what I am worried about. Therefore, although of course I welcome what the Minister indicated she is determined will happen—it would be wrong not to welcome that most warmly—I ask her and her officials and colleagues to go away and think about this. I believe that if they are to fulfil the vision that has been held by successive Governments, it is important to take an opportunity such as this to say that the national parks are a major consideration in the deliberations.
It will be difficult to give a sufficient summary of what has been said and the Committee will be relieved to hear that I have no intention of trying to do so. However, one or two points need to be mentioned. The whole tenor of this debate has been about a process. It has been about consultation. The first question was: who is to be consulted? I shall not go into the answers to individual questions, except to pick up what was said by the noble Lord, Lord Judd. The national parks are planning authorities. I understand that, with a little luck, by the time we get to the end of the Bill they will have a regular place, because I believe that it is proposed that planning authorities should be the bodies to charge the community infrastructure levy. If that is the case, the planning authorities will be included at that stage, and it seems to me that those will be adequate grounds for including them everywhere else where appropriate.
“Who?” is of course an important question. The second important question is: how is this consultation to be done? A number of questions were raised on the issue of how much faith people would have in a system of consultation run by the applicant. That leads me to the next word that I have written down: “trust”. We have to see all of this in operation before any of us knows how it will work. The next word is “effect”. What effect will the consultation have on the application, if any? People will have much more faith in the process if it is clear that applicants are doing their best to respond to what is said. My final question is the timescale in which all of this has to take place.
All these important points have been raised in the debate, but the Minister has answered all too often, “Guidance will be forthcoming from the Government on all these matters”. We have to answer the question to our satisfaction today without the guidance. That is one of the great difficulties that we constantly have with legislation. There is nothing that we can do about it; in the end it comes down to a question of belief. We ought to realise how significant this debate has been. Everyone who has tabled amendments will no doubt study the Minister’s response in considerable detail and with great care and will have to decide how far she has answered their concerns.
There will be some interesting times ahead. I will pick up just one point made by my noble friend Lord Taylor of Holbeach, who asked that the Marine Management Organisation should be a consultee. It should be a consultee not only on things that happen in the sea. Some things that happen on land can have a dramatic effect. Any power station or cooling system on the coast consumes enormous volumes of sea water to enable it to keep running at a reasonable temperature. There is no particular problem with that except that every now and again they consume enormous numbers of fish fry—little baby things that you hardly notice drifting up and down the coast. Sometimes large proportions of fish fry stocks can go through a power station in a short period, which has a dramatic impact on stocks.
Those are all important points. I am most grateful to the noble Baroness. I, like everybody else, will go away and find a cold wet towel and decide what to do. She has certainly tried to give an answer even though it cannot be satisfactory because we cannot put into the Bill what she hopes will happen. This is part of a learning process, as it will be for the whole community. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 177 and 178 not moved.]
Clause 36 agreed to.
Clause 37 [Model provisions]:
179: Clause 37, page 23, line 23, leave out from “may” to “to” in line 25 and insert “provide model provisions”
The noble Baroness said: This may not take quite so long. Clause 36 deals with what my noble friend has called ADCs—applications for development consent. I have three little amendments here, and I hope that the Minister got my note saying what I would say. First, I want to probe what is the regulation-making power in Clause 36. Secondly, model provisions may be prescribed, but they are not mandatory. My amendment probes what that means. Does it mean that there cannot be a provision which is a bit different from the prescribed provision? Can the Minister give me a translation? I hope the noble Lord, Lord Patel, also received my e-mail. I feel that Clause 37 is slightly heavy-handed, but I shall not take issue with that. But I am unclear about how this will work. I beg to move.
These amendments alter the way in which the Secretary of State may bring forward model provisions relating to development consent orders. The amendments would remove the requirement that any model provisions for incorporation in a draft order should be set out in regulations made by the Secretary of State. The procedure for bringing such model provisions forward would consequently be less formal than is currently provided for in the Bill. The noble Baroness, Lady Hamwee, helpfully set out her concerns. In order for us to consider this issue further, I shall set out the details behind our thinking on this and briefly explain the background.
Model clauses are already used extensively by promoters through the similar power to issue model clauses by order in Section 8 of the Transport and Works Act 1992. Model clauses are helpful in ensuring that development consent orders follow high standards of legislative drafting. They provide consistency in drafting, which is undoubtedly of benefit to all. They often cover technical matters which frequently arise in relation to large infrastructure projects and developments.
Clause 36(3)(d) gives the Secretary of State a power to prescribe certain documents and information that must accompany an application. It is intended that regulations under this power will be used to require that a draft of the consent order sought by the promoter should be one of the accompanying documents. Promoters will find it useful to have model provisions to follow when preparing such draft orders.
Clause 37(2) requires the commission to have regard to model clauses when making an order for development consent, while subsection (3) makes it clear that Clause 37 does not amount to a requirement to use model clauses but simply makes them available for use where they are helpful. Amendment No. 182 would delete subsection (3), but if the intention is that, as a result, the IPC should be required to use model clauses, then I must disappoint the noble Baroness. Nothing in the Bill requires the IPC to use the model provisions, and we believe that that is right. That is not the purpose of model provisions, which are intended for guidance. Making the inclusion of model provisions a legal requirement would be unduly burdensome and contrary to the spirit of the Bill. Giving the Secretary of State a power to prescribe model provisions by order brings them within the general provisions relating to statutory instruments and allows for scrutiny by the Joint Committee on Statutory Instruments. That provides a further safeguard to ensure that model clauses are drafted to a high standard.
The provisions are designed to be helpful to promoters. The similar power under Section 8 of the Transport and Works Act has worked well and been well received. I hope that that reassures the noble Baroness and that she will withdraw the amendment.
I am grateful for that explanation. I take it that the term “prescribed” in Clause 36(3)(d) refers to a regulation-making power—I think that I am losing my grip on the terminology here. No, I did not mean that model provisions should be mandatory.
The noble Lord has reminded me of a suggestion that I was going to make on how we can move on with this Bill. After a certain point on any given day, noble Lords who have tabled amendments should simply stand up and move them, because the Ministers will always tell us what the amendments’ effect will be. Perhaps we should reserve our remarks for our response to the Minister’s reply. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 180 to 182 not moved.]
Clause 37 agreed to.
Clause 38 [Register of applications]:
[Amendment No. 183 not moved.]
Clause 38 agreed to.
Clauses 39 and 40 agreed to.
Clause 41 [Duty to consult]:
[Amendments Nos. 183A to 188 not moved.]
Clause 41 agreed to.
Clause 42 [Local authorities for purposes of section 41(1)(b)]:
[Amendments Nos. 189 to 191 not moved.]
Clause 42 agreed to.
Clause 43 [Categories for purposes of section 41(1)(d)]:
192: Clause 43, page 25, line 16, after “the” insert “applicant, after making diligent inquiry, knows that the”
The noble Baroness said: I have given notice of the amendments, so if the Committee will allow me, I shall speak swiftly to them because it is a rather large group and it is important that I put it on record. We have tabled the amendments in place of Clause 151. They fall broadly into two categories: setting out a legal position by which NSIPs relate to the common law on nuisance; and consequential technical amendments which flow from that, in terms of who promoters should consult and notify about applications. I hope to speak also to the stand part debate of the noble Lord, Lord Reay, on Clause 151 alongside the government group, and to the amendment laid in the name of the noble Baroness, Lady Hamwee, Amendment No. 394B.
Let me begin by explaining the history of Clause 151. The text in the Bill was suggested by an amendment from the other place. It was designed to replicate the defence of statutory authority against nuisance claims which already exists for some of the infrastructure types which will be classed as NSIPs by the Bill. In particular, highways, railways schemes, ports schemes and airport schemes already benefit from such a defence against nuisance claims.
In practical terms, Clause 151 as drafted would prevent any nuisance proceedings from being brought in relation to development, works or operations authorised by an order granting development consent. Likewise, Clause 151 would prevent proceedings from being brought in relation to escape of things from land in relation to matters authorised by a development consent order. That is a very wide definition that would mean that a defence was available in more cases than currently.
We accepted the principle at the heart of the amendment originally, because we recognise that in the past, nuisance claims have sometimes been used aggressively to try to block developments that would provide great benefits to the wider society.
We certainly believe that it would be important that all NSIPs could benefit from a defence of statutory authority against nuisance claims, on the basis that the big decisions are now taken up-front. The main arguments around NSIPs will have been held in the context of the national policy statement itself. We want discussion on possible nuisance and impacts in relation to individual projects to take place in public at the examination. It would be inconsistent with that process if individuals could apply for subsequent injunctions to reopen these decisions.
However, after close consideration, we believe the clause as originally laid is too broad. We agree with the noble Lord, Lord Reay, that it tips the balance too far towards the promoter. It effectively blocks all nuisance proceedings, including those only “in relation to” development contained in a development consent order. Our amendments aim to maintain the balanced settlement that has allowed the development of such important infrastructure while ensuring that individuals can receive compensation for the effect on their land. Our new amendments replace and correct the text in Clause 151.
The prime amendment is the new clause in Amendment No. 394A, which has been drafted to replicate more closely the position of statutory undertakers under existing legislation such as the Transport and Works Act and the Harbours Act. In particular, it defines more narrowly that a defence of statutory authority exists only where the nuisance relates to carrying out development to which a development consent order has specifically consented and where any requirements or controls placed on the promoter through that order have been complied with. We have also included the ability for the IPC to make an order that does not grant a defence against nuisance claims if it believes it appropriate to do so.
The clause is also designed to operate within the framework of the existing common law provisions on nuisance. The default position set out in our amendment does not confer a defence against any of the statutory nuisances set out in Section 79(1) of the Environmental Protection Act 1990, in so far as they involve matters outside what would constitute nuisance in common law. It is possible, however, for individual development consent orders to confer a defence for any of these activities, as Transport and Works Act orders sometimes do. Likewise, we intend the common law test that is applied by the courts for acts or omissions specifically authorised by statute to apply where the clause confers statutory authority.
I reiterate that the amendments provide a statutory basis for a defence against nuisance by setting out a position in primary legislation. However, individual development consent orders can also vary the breadth of that defence through use of the IPC’s legislative powers. These are intended to cover individual circumstances specific to certain applications where the default position may not be appropriate. We do not believe that airport operators, for example, should benefit from a defence against nuisance claims unless they already comply with the air navigation order under Section 77 of the Civil Aviation Act 1982. Nor do we believe that there are any circumstances in which reservoir operators should have a defence against Rylands v Fletcher claims. I am sure that noble Lords are completely cognisant of that case, which I understand involves reservoirs. This case explains why we have introduced Amendment No. 389A, which is intended as a safeguard to ensure that a development consent order cannot alter certain strict liabilities, set out in legislation, which affect certain serious emissions from land.
We have also addressed compensation. Clause 151 prevents people pursuing nuisance claims without offering a route to claim other forms of compensation. We recognise that it may be impossible in some cases to mitigate all the potential impacts of the construction and/or operation of nationally significant infrastructure. It is vital in such cases to ensure that individuals affected can receive compensation. This is why one of the amendments clarifies that compensation for injurious affection will be available where the value of a person’s land depreciates as a result of the construction and use of a nationally significant infrastructure project.
Amendment No. 389B sets out that affected parties will be entitled to seek compensation on the ground of injurious affection under Section 10 of the Compulsory Purchase Act 1965, or under Part 1 of the Land Compensation Act 1973 where public works are given consent by development consent orders. Compensation will be assessed, as it currently is, on the basis of the depreciation in the value of the land owned by the claimant. An order cannot contain a provision that removes or modifies the principles encompassed in these Acts. Amendment No. 373 therefore ensures that there are no contradictory applications of Section 10 of the Compulsory Purchase Act 1965 in different clauses of the Bill.
The compensation provisions for injurious affection work well. Compared with the uncertainty of a nuisance claim, they are a quicker and more reliable way of enabling individuals to obtain relief where they have suffered loss. We therefore support the proposal that similar compensation should be available for schemes approved by the IPC, as currently exists for those which receive statutory approval.
I hope that this explanation, complex though it is, will convince Members of the Committee that we have considered the position closely as regards nuisance. We believe that the amendments we have put down will ensure a right and proportionate balance between ensuring that nationally significant infrastructure progresses while maintaining the maximum protection for the rights of individuals affected by such works.
The national policy statements will require the IPC to look specifically at the possible sources of nuisance for every application in front of it. First, we intend that the text of the NPSs will give a strong steer to the IPC to consider placing strict requirements on the promoter, which are akin to planning conditions, where appropriate, in order to restrict and mitigate the levels of nuisance caused. We want the IPC to look specifically at the potential for noise, vibration, emissions, light pollution, smoke, smells, insects and so on to require that the potential for such nuisances is as low as possible, if not eliminated altogether. Requirements to control nuisances will be particularly important where they may be a risk to health.
Secondly, the IPC already has the ability to place requirements on the applicant, so that the latter conducts physical mitigation works, in order to reduce the potential effects of an NSIP on the local environment and communities; for example, installing double-glazing or embankment works. Thirdly, it should be emphasised that where a promoter does not abide by the strict controls and requirements placed on it by the IPC, it will not benefit from any defence against nuisance claims in the relevant area, quite apart from being liable to any enforcement actions provided for in Part 8.
Fourthly, the new clause in Amendment No. 394A makes it clear that the IPC has the ability to remove the defence against nuisance claims for a particular case if it believes it is appropriate to do so in light of the NPS and the evidence submitted. The IPC also will have the ability to make provision that modifies the application of any defence against nuisance claims in any particular case. So, for example, in order for there to be a defence to nuisance in relation to the operation of an airport, the promoter would have to continue to comply with the air navigation order.
The other amendments are largely consequential. Amendment No. 455A replicates this position in Scots law. Amendments Nos. 195 and 228 are consequential changes, which are based on the fact that a defence against nuisance claims exists. Since no one will subsequently be able to make a nuisance claim against an NSIP promoter, except in unforeseeable circumstances, it makes little sense to require an applicant to notify people who could make a claim. We are therefore deleting that category.
Amendments Nos. 192, 194, 224 and 227 also clarify that the onus on a promoter is to make diligent inquiry about who should be notified about a proposed application, which is where the interrelationship with the previous amendment, as raised by the noble Lord, Lord Jenkin, comes in. The Bill sets out a high standard for consultation with landowners, the local authority and the local community, including widespread publicity. However, it is still possible that a promoter can inquire diligently but still not be able to identify every person interested in a particular piece of land. We believe that it would be unfair for such a person to reveal himself at a much later date to challenge the application on grounds of not being notified.
I said that I would address the noble Baroness’s amendment, but we have had a useful exchange and I think that we have identified the problem. I am happy to leave it at that. I beg to move.
I shall speak to my amendment, which would leave out Clause 151. I put this amendment down some time ago and, later, I had the unusual experience of finding that the Minister had added her name to mine. In due course, I discovered that the Government have found something with which to replace it. I will now have to decide whether that will be a sufficient improvement on what was there before.
I was disturbed by Clause 151. As I think the noble Baroness explained, it was a last-minute addition to the Bill in another place as the result of a Back-Bench amendment which the Government accepted. It seems, however, to remove a basic human right to mount a legal challenge on the grounds of nuisance to any authorised development. No local council, for example, would any longer have been able to act on complaints from local people regarding nuisance caused by light, smell, flicker from wind turbines or noise in respect of any development once permission had been given for it to go ahead.
It so happens that infrastructure projects in the field of transport including aviation already enjoy, I believe, statutory protection from nuisance claims. What this clause would have done was to confer on energy and hazardous waste projects the same degree of protection. That would include electricity generating stations, some of which are small projects. The noble Baroness said that the big decisions would now be taken up-front and put that forward as a justification, but the threshold for onshore wind projects is set at 50 megawatts, which means 15 megawatts of annual production of electricity generated and suggests that they are only one-hundredth the size of a normal nuclear power station. They cannot be considered to be big projects.
It is not possible to list in statute all potential nuisances. “Nuisance” is a common law term and new nuisances arise all the time. In the case of wind turbines, some of the effects on nearby residents are only now coming to light and being recognised. Rulings have been made under existing legislation, and one can expect a growing rate of challenges and rulings as the number of development applications increases. In one case, a judge found that a property had decreased in value by 20 per cent following the erection of wind turbines nearby. In another case last July, the Lincolnshire Valuation Tribunal ruled that the authorities in Spalding had erred in not reducing the council tax banding of a house which was situated within one kilometre of wind turbines and whose owners had suffered dire effects from those turbines. Clause 151 would have severely restricted the right to claim compensation against nuisance, leaving landowners, as the noble Baroness said, with no other route to take for compensation. It has also been argued that it would have allowed the operators of major infrastructure projects to claim immunity on the grounds of statutory authority against prosecution, even when it could be proved that they had been negligent. It seems therefore hardly to add to the chances of the IPC acquiring a degree of public acceptance if it is given so much protection from legal proceedings on grounds of nuisance brought by members of the public or by local authorities on their behalf that it becomes immune to the consequences of its decisions.
The noble Baroness has decided to replace Clause 151 with the new clauses set out in Amendments Nos. 394A and 389B. These amendments were tabled only a matter of days ago and we need longer than we have had so far to examine their implications. Further, the noble Baroness with great courtesy and openness sent me in advance of this debate her speaking notes for this group, but again I have hardly been able to study them thoroughly. The purpose of the new amendments seems broadly to maintain the intention of Clause 151, which is to protect developers against claims for nuisance, except in the case of landowners, who will be given explicitly the right of compensation. That is the provision set out in Amendment No. 389B and I certainly welcome it. However, it would appear that no one except landowners will have a right to compensation or a claim for nuisance, so the rights that ordinary citizens who are not owner-occupiers but perhaps are tenants have today to bring proceedings on grounds of nuisance would be removed by the new clauses. I would like to consider very carefully what the noble Baroness has said and take a view in the days to come on whether to accept the new amendments.
The need for Amendment No. 394B disappears—or, at least, my argument for it disappears—if the clause is taken out. I, too, had an instinctive reaction against Clause 151 and my justification included not only discovering that the Minister was opposed to the clause standing part of the Bill but that the Equalities and Human Rights Commission was briefing against it, or at least had big question marks. I, too, was grateful to receive her speaking note. Once I had recovered from it—it was fairly daunting—my first reaction was that I am happy with the Government’s proposals.
As to Amendment No. 192, the next amendment, Amendment No. 193, was included in a previous group, as is the way of these matters, when the Minister gave my noble friend an assurance that the terminology “after making diligent inquiry” incorporates within it an obligation to make diligent inquiry. I assume—I would like her to confirm this—that the same goes for the new words to be inserted at her behest in Clause 43 and, indeed, in quite a number of other places throughout the Bill.
I offer my warmest congratulations to my noble friend Lord Reay on the astonishing achievement of getting the Minister to oppose Clause 15.
I have listened to the Minister with great care. We shall obviously want to study this but she has gone a long way towards meeting the concerns which I received in a briefing from the Environmental Law Foundation and others. They made an overwhelming case and one is surprised that the clause got as far as it did. But the clause has been removed and we have these new clauses in its place.
I do not know whether the Minister is in a position to reply to this question, but in other countries, particularly France, it has for a long time been the practice that when a large infrastructure project—for instance, a power station—is erected in a particular area, there is provision for reduced electricity charges to people within a substantial range of the facility. This is a wise provision but it has never been followed here. The nearest we are getting to it, as I mentioned earlier, is in nuclear waste disposal, where a community is being asked to volunteer and to suggest benefits for the community which might compensate it for doing so.
I did not table amendments to this effect because one would have had to change the whole shape of the Bill and this is not the right place to do that. However, is there not a case for looking at that solution to the problem? Perhaps it would not be appropriate for electricity or gas charges because that is limited, but a reduction in the community charge that is levied could apply automatically to people within a particular area. If a promoter put forward the proposal that a significant body of people affected by nuisance would get some tangible financial benefit as a result, the whole question of compensation could be dealt with in an entirely different manner from the exceptional cases, whereas the provision in the Bill—which is I fully concede a great improvement on Clause 151—requires the commission to go into considerable detail as to who will be entitled to what. Has that ever been considered by the Government?
The noble Lord is right, I cannot answer the question. As a good European, the suggestion sounds interesting and I shall refer it on to my noble friend the Minister for Energy and Climate Change.
On Question, amendment agreed to.
[Amendments Nos. 193 and 193A not moved.]
194: Clause 43, page 25, line 33, at end insert—
“This is subject to subsection (4A).(4A) A person is within Category 3 only if the person is known to the applicant after making diligent inquiry.”
195: Clause 43, page 25, line 40, leave out from “works),” to end of line 41
On Question, amendments agreed to.
Clause 43, as amended, agreed to.
Clause 44 [Timetable for consultation under section 41]:
[Amendments Nos. 196 to 198 not moved.]
Clause 44 agreed to.
Clause 45 agreed to.
[Amendment No. 199 not moved.]
Clause 46 [Duty to consult local community]:
[Amendments Nos. 199A to 201 not moved.]
Clause 46 agreed to.
Clause 47 [Duty to publicise]:
[Amendment No. 202 not moved.]
Clause 47 agreed to.
Clause 48 [Duty to take account of responses to consultation and publicity]:
[Amendment No. 203 not moved.]
Clause 48 agreed to.
Clause 49 [Advice for potential applicants and others]:
204: Clause 49, page 27, line 29, leave out “Commission may give advice” and insert “Secretary of State may by regulation make provisions about the giving of advice by an existing government body appointed for this purpose”
The noble Lord said: The Bill provides that the IPC should give advice to those who wish to submit a planning application to it on what the planning application should contain and the process by which the applicant should develop the final application. That, to me, is another one of these wretched cases of somebody acting as judge and jury in their own court. This group of amendments has one purpose solely: to give a third party—in this case the Secretary of State—the power to give the IPC guidance on exactly what advice it should or should not give.
I am well aware that there is one subsection that gives the Secretary of State power to intervene if it is thought necessary. We do think it is necessary and that the clause should be drafted slightly differently so that the Secretary of State advises the IPC on what it is to do and the IPC’s then passes that on. In that way, the advice is seen to be independent of the commission.
This is another part of ensuring that the IPC is independent. If that framework is, so to speak, established by the Secretary of State, then it will give the commission a greater degree of freedom from involvement in the applicants’ actual work. If it is seen to be giving applicants advice, it could be advising them to put in the application in a form which suits it. It could be argued that the commission would be leading the applicants. That would be neither desirable nor good. I beg to move.
It occurred to me, when reading Amendment No. 204, that there is an analogy. In the normal world of planning, a local planning authority will give advice. I am not quite sure whether that leads me to the conclusion that it should be the commission which gives advice or whether, following my arguments on the first day of Committee, the final decision should be that of the Secretary of State. I throw that in, for what it is worth.
I was distracted. I am not sure that the noble Lord spoke to Amendment No. 205. I believe that we have agreed informally that the question of cross-examination and oral submissions is to be left to a later group. I agree with his Amendment No. 208 about disclosure.
Perhaps I may begin by setting out what Clause 49 seeks to achieve. The giving of advice will play an important role both in helping to ensure that applications to the commission are consistently well prepared and are of good quality from the outset, and in assisting people to participate in the process for making representations about a proposal and participating in the examination process.
Promoters are likely to need early advice on whether the project that they are considering would fall within the commission’s remit to determine. The commission would also be able to provide technical advice on procedural issues and about the form of the application and the supporting documents that should be submitted.
The commission may also be able to give early advice on the kind of information that should be collected. Some data—for example, data needed for an environmental impact assessment—can take a long time to collect, and it will be important for promoters to understand the data requirements so that they can start gathering at the earliest opportunity. This could avoid substantial delays caused by needing to gather new information during the decision-making stage. We will make regulations about the environmental impact assessment in due course.
It is important that the advice-giving process does not favour the promoter, as other parties, such as local people or people with an interest in nearby land, may also want advice from the commission. They may, for example, seek more information about the application process, how to make representations, or the procedures and timescales.
Clause 49 therefore allows advice to be given about such issues equally to those seeking to make representations. That ensures that the process for applying for orders, granting development consent and making representations is transparent to everyone involved. It will help people who might object to a proposed application find out what types of evidence they may be allowed to give to the commission during the examination and how they can make their views known.
The detail as to how advice will be given will be a matter for the IPC to determine, in accordance with any regulations about this under Clause 49(4). However, it may be expected that a range of methods could be employed; for example, information could be made available online as well as in person, or on request in writing or even by telephone.
In Amendments Nos. 204, 206, 207 and 209, noble Lords argue that it would be improper for the decision-making body also to have responsibility for giving advice to promoters. The amendments would place this role in the hands of an existing body— perhaps they have in mind a body such as the Planning Inspectorate. I wholeheartedly agree with noble Lords on the need for propriety, and for a clear and transparent process for giving advice. When giving technical advice to promoters, it will of course be very important that the IPC does not prejudice its position as regards the determination of the application.
It is, however, essential that this advice-giving function falls to the IPC. Most importantly, the consent process will be owned by the IPC, and it would make little sense for another body to give advice on it. It will hold much of the detailed, practical information that might be needed. For example, the IPC will undertake the scoping for environmental impact assessments, and advice regarding this will be of vital importance.
I had understood that the role would be performed by a government body before it reached the Secretary of State. However, we still think that is important that the consent process is owned by the IPC, because of the detailed information that it will have and the process that will need to be gone through.
The IPC will be able to advise on how the requirements and standards for applications set out in Clause 36 will apply for individual applications as well. The IPC will also be able to provide information on the particular timings and processes for each stage of an application to ensure that those seeking to make representations are ideally placed to make their views known. Additionally, the IPC will be, and will be seen to be, independent of any body with an interest in the process, and is therefore ideally placed to give open, impartial advice to both promoters and those with concerns about a project. For example, the Secretary of State in this case or the Planning Inspectorate will not have the detailed knowledge of the IPCs processes that will be undertaken in respect of individual applications. That is a position unique to the IPC. It is absolutely a job for the IPC to do.
Having set out the argument that the IPC is best placed to give this advice, I should stress that it is vital that this early contact between the commission and other parties should not prejudice its decision in any way. That is the purpose of the power in Clause 49 to make regulations regarding the giving of advice, in particular regarding disclosure of the advice more widely, and to the public in general. Amendment No. 208 would require requests for advice and advice given by the commission to be made available to the public.
These regulations will be published in due course, and while I am not therefore able to give details of what they will say, they are likely, for example, to make provision for minutes of meetings, notes of telephone conversations or advice from the commission to be available to all parties and the public in general, in an easily and widely accessible format. I echo the words of the noble Lord, Lord Jenkin, about making sure that people with disabilities have access to that information as well. That will help to ensure that it is clear to everyone that the commission acts impartially, and that the advice-giving process is as open as possible. Noble Lords will, of course, have an opportunity to scrutinise these regulations to ensure that they are proper, and they will also be subject to public consultation.
It would not, however, be appropriate to require that all advice requested and given be made available to the public, as Amendment No. 208 would require. I must stress that freedom of information legislation already provides a regime for determining when information should be made generally available, and in what circumstances information should not be made available to the public. We have added the Infrastructure Planning Commission to the list of bodies that are subject to the requirement of freedom of information legislation, and the normal provisions for disclosure and exemptions will apply.
Amendment No. 205 would alter Clause 49 to provide that the commission's advice about the making of representations should include advice on making oral submissions and the cross-examination of witnesses. I reassure the Committee that the provisions of the Bill in respect of advice also extend to oral representation. I can also confirm that it is the intention that advice will cover details of procedures, including the rules on when it might request cross-examination.
In conclusion, I should also like to underline the work that the Government are undertaking to ensure that people have access to information and advice on planning generally. We have announced that we will be nearly doubling the planning aid grant to £3.2 million this year, to enable more people to benefit from free independent advice to help them comment on proposals, make representations at inquiries, or submit a good planning application. Community planning programmes exist in each region in the UK to identify groups that have previously been excluded from the planning system or are disadvantaged from years of not having a voice, and the planning portal website also provides tools and information to help people find out about planning in their area and assist them in making applications electronically as well as submitting and tracking appeals online.
I understand the concerns expressed by noble Lords, but I hope that I have reassured the Committee that advice given by the IPC will be, and will be seen to be, transparent and fair to all parties. We are committed to making it easier for people to engage in the planning system generally, and the provisions in the Bill build on and enhance that commitment. I hope, therefore, that the noble Lord will be prepared to withdraw his amendment.
Before the noble Lord responds, if he wishes to pursue this matter at a later stage—I assume that he will not today—it would be helpful if he could be clear about a point that caused confusion. Amendment No. 204 suggests that the Secretary of State provides for the Secretary of State to give advice, or another body. I think that is where the confusion arose.
I apologise to the Committee if there is some confusion. The intention behind the amendment was that the Secretary of State should make provisions about the giving of advice by an existing governing body. By the time this legislation is in place, the existing governing body will be the IPC. It will be independent. I agree that the wording of Amendment No. 204 is somewhat obtuse, but we thought that it was clear.
I am grateful to the Minister. Unknowingly, he has been remarkably helpful. One of the first tasks of the commission will undoubtedly be to read the record of the processes by which the legislation was arrived at. Undoubtedly, the answers he has given me, if they do nothing else, will guide the IPC on how to deal with the question of advice to applicants. We always have this wretched business on the Floor of the House of flying blind in many ways, but in answering us the Minister has inadvertently given the IPC a framework for doing its job. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 205 to 209 not moved.]
Clause 49 agreed to.
Clause 50 [Obtaining information about interests in land]:
210: Clause 50, page 28, line 18, at end insert—
“( ) The applicant shall pay the recipient’s reasonable costs of complying with the notice.”,
The noble Earl said: Clause 50(2) states:
“The Commission may authorise the applicant to serve a notice on a person”
to give the applicant in writing the name and address of all those with an interest in the land in question. Clause 50 goes on to state that the recipient of the notice commits an offence if he does not supply accurate information within 14 days and will be liable to pay a level 5 fine, which I understand to be £5,000.
We have no problem with the need for the applicant to find out all those with an interest in the land in question, but this clause creates an onus, in supplying that information, on any of those listed in subsection (3). It could be an occupier, freeholder, mortgagee, lessee, receiver of rent or those who manage or arrange the letting of the land. Our Amendment No. 210 states:
“The applicant shall pay the recipient’s reasonable costs of complying with the notice”.
This amendment was moved by my honourable friend Robert Neill in another place, but the Minister, John Healey, replied:
“The only type of information that may be obtained using that power is a person’s name and address. In those circumstances, I think that the hon. Gentleman accepts that the costs of compliance are likely to be negligible”.—[Official Report, Commons, Planning Bill Committee, 24/1/08; col. 433.]
Unfortunately, the matter was not pressed further.
If only it were that simple. We know that property law and ownership in this country are far from simple. Let me give the Committee one example. A pensioner is the freehold owner of a property which he converted into flats in the 1980s. He let all the flats on long leases and subsequently there have been many sub-leases of each flat. How on earth does he supply the accurate names and addresses of the current interested parties within 14 days so as not to be fined £5,000? In the real world, I suggest, with great difficulty. He might remember who the original lessees were, but more likely he will have to contact his professional adviser, maybe his lawyer, at a cost—and we know that lawyers charge like wounded buffalos. He might also have to incur the cost of searches at the Land Registry, but we also know that not all interests in land are registered. The recipient of a notice, through no fault of his own, can have huge difficulties and costs in complying with the requirements of this clause.
I suggest that, other than in the simplest of inquiries, there may well be costs involved which would be onerous on the affected recipient of the notice, regardless of whether the project goes ahead or not, but peanuts for the applicants who, after all, will be large organisations. Meanwhile, poor Joe Bloggs the pensioner might be fined £5,000 if he does not provide accurate information within 14 days, on top of the costs that he may already have incurred. No doubt other Members of this Committee will be able to cite far more complex examples of the time and cost involved in providing this accurate information.
That brings me on to our Amendment No. 211, which would increase the number of days to comply with the notice from 14 to 28. We can all give examples of why 14 days might be too short a time. The recipient of the notice might be on holiday, in hospital or away on work commitments; or, indeed, the recipient’s professional advisers—lawyer or agent—might be away for similar reasons. More importantly, however, because of the sheer complexity of and complications in ascertaining the ownership or interests in a property, in the real world it may be physically impossible to comply with the notice in 10 working days. I hope that the Minister will agree that an extra 10 working days is not unreasonable. To use the earlier analogy of my noble friend Lord Jenkins, when he said that he wished we could get a response to our letters to Ministers within 28 days, in this clause Ministers are only giving themselves 14 days to reply to letters or risk a fine of £5,000. I beg to move.
I put my name to Amendment No. 211. I shall not back it up with such complicated urban examples as the noble Earl has given us about leaseholders and so on down the line. I was merely thinking about someone on holiday or about to go on a Christmas break, or a simple farmer or landowner who might be harvesting or lambing. I know several farmers who do not answer their mail during the lambing season, and who do not even open it during the harvest. So 14 days is seriously insufficient for them to be able to get to grips with answering such a request.
I was not going to speak to Amendment No. 210, but a thought occurred to me while the noble Earl was speaking. I know that this amendment applies to a specific expense in the clause. The noble Lord, Lord Greaves, and I were speaking earlier about individuals having to employ professionals and teams of people to be able to respond to the IPC’s consultation process. Maybe the Minister can inform me whether expenses are available to the ordinary applicant, a landowner, perhaps in other statues or elsewhere in the Bill, allowing them to apply for all reasonable costs in submitting their responses.
I support my noble friend on Amendment No. 211. It is a good opportunity for the Minister to tear up his brief, which will have “Resist” at the top, and say, “Yes, I think this is absolutely right”. He would get a lot of good will, and it might be the first major concession on the Bill after three and half days of churning through it. It really has far too short a timetable.
The noble Lord, Lord Cameron of Dillington, raised the point that I was going to make about farmers. He also touched on my other point: public holidays. Should the notice be served on 20 December, for instance, it is likely that somebody will fall foul of these requirements. I encourage the Minister to open the door of the cage, step out a little and say, “Yes, we will accept this”.
I am told that I had better not be brave. The only type of information that may be obtained using the power in Clause 50 is the name and address of a person. Therefore, we believe that the costs of compliance with a notice are likely to be negligible. The noble Earl said that this matter was not pressed in the other place and gave interesting examples of instances where it could take a little longer. I have no briefing on that. I shall ask officials to look into it and I shall write to the noble Earl. Nevertheless, we would not expect the commission to authorise the serving of a notice in circumstances where the applicant could readily obtain the information by other means; for example, by applying for a Land Registry search. The power in Clause 50 by which the commission is able to authorise the service of this type of information notice by a promoter is intended to be used exceptionally; for example, where details cannot be readily obtained from the Land Registry. In these circumstances, the amendment serves little purpose. I therefore urge the noble Earl to withdraw it.
As regards Amendment No. 211, it is important that a mechanism is in place to ensure that where ownership information cannot be readily obtained from the Land Registry, the required information can be obtained within a reasonable time by a promoter and/or applicant.
The purpose of Clause 50 is to give the commission the power to authorise a promoter or applicant to serve a notice on the occupier of the land, anyone who receives rent for it, manages it, is a mortgagee or has an interest in the land requiring them to provide the names and addresses of people with an interest in the land.
The clause specifies that a person who is served with such a notice should have a minimum of 14 days to respond. I do not believe that this is unreasonable. We should bear in mind that this is the minimum period that can be specified in the notice. Clause 50(5) does not prescribe the maximum period that can be specified. Where the proposals are such that information was not needed so quickly, the commission will be able to specify a longer period. Moreover, these provisions are in line with a similar provision in Section 5A of the Acquisition of Land Act 1981.
Moreover, the Bill provides that a person with a reasonable excuse for non-compliance would not fall foul of these provisions. Someone would not fall foul of the offence if they were able to provide a reasonable excuse for not complying; for example, if they were on holiday. I am not entirely sure whether a lambing season would be considered a reasonable excuse for someone not opening mail, but I am sure that excuse could be put forward. Clearly, a person being on holiday would be considered a reasonable excuse which would not fall foul of this provision. As I say, these provisions are based on Section 5A of the Acquisition of Land Act 1981, which was added to the Planning and Compulsory Purchase Act 2004. Without this power it would be possible for a landowner opposed to a potential development to cause delay and frustrate the process of providing infrastructure projects of national significance in a timely and cost-effective manner. This would not be in the national interest.
Clause 50 is reasonable. It provides adequate safeguards to ensure that someone would fall foul of the provisions only where there was an intention to do so. In both cases, it seems clear that 14 days is a reasonable minimum period to specify, and I therefore urge the noble Earl to withdraw the amendment.
I thank those who supported these amendments. I was interested to hear the Minister say that he would take away the measure and reconsider part of it. To our mind costs are involved. This is not a simple matter. Ownership of land is extremely complicated. Advice will have to be sought to get the right answer about who all the interested parties might be. They may be people who have rights of way or easements. Charities, property companies and trusts may be involved. It is not that simple. We still believe that 14 days is a very short period. I know that the Bill says,
“not … earlier than the end of the 14 days”,
and that therefore the period could be longer than that. However, it is always tempting for the commission to say, “How much notice do we have to give under the Bill? It says 14 days. OK, it will be 14 days”. That is the problem. There needs to be a bit of common sense and logic about when the notices are put forward. I look forward to reading the Minister’s remarks in his letter.
212: Clause 53, page 31, line 7, leave out “that purports to be an application”
The noble Lord said: I was prompted to table the amendment because it struck me that the wording of Clause 53(1) was peculiar. It says:
“The following provisions of this section apply where the Commission receives an application that purports to be an application for an order granting development consent”.
If the commission receives something that only purports to be an application, it probably is not an application, and therefore it should be referred back to the sender. It either is an application or it is not. That was the reason for Amendment No. 212; it is quite simple. If there is some frightful legalistic explanation of why we need those words in the Bill, I may be obliged to accept that they should remain there, but on the whole, for the sake of clarity, it would be much better if those words were removed.
Amendment No. 220 cross-references this question of interested parties back to those who have been consulted under Clause 41. They ought to be notified if a planning application, as a result of that consultation, is notified to the commission, so that it knows that there is a planning process in play.
Amendment No. 222 deals with how an application should be publicised using the local press and so on. Amendment No. 223 stipulates that that should be done within 28 days of the making of the application. Again, that is perfectly proper. It is an obligation on the commission, but I would have thought that it is not an obligation that is impossible for it to meet.
Amendment No. 226 includes the people who made representations at an earlier stage as the people who should be informed that an application has been accepted. There are other amendments in the group, which are all aimed at making the process transparent and obvious. I very much look forward to hearing what the noble Baroness says in response. I beg to move.
Amendment No. 221 is in my name. Again, it is directed to the disabled and the need to have the application notified to them in the right form. The noble Baroness has been extremely generous in her references to the disabled. There have been a number of related amendments, and I am sure that she will be sympathetic to this one.
We have a few amendments in this group. Amendments Nos. 215 and 218—Amendment No. 217 is consequential on Amendment No. 215—are directed to the same end as the amendment proposed by the noble Lord, Lord Dixon-Smith; namely, that it is not only local authority consultees who are relevant in this situation and that the definition of “adequacy-of-consultation representation”—I am sure that someone can find an acronym for that soon—should extend to the duty to take account of responses.
I shall not speak to Amendment No. 219 and there is no need for the noble Baroness to say anything about it. She has already answered on Amendment No. 225, when she confirmed that there would be a duty to make a diligent inquiry at an earlier stage and she does not need to repeat that.
I shall speak to two amendments in this group. On Amendment No. 216, I am probably fighting a managed retreat, but I think that I have a good defensive position. The Minister has already ably stated why she rejected my earlier amendment that attempted to direct the applicant during the consultation process. I am happy to accept those arguments, but she did say—probably pre-empting my weekend reading, to which the noble Lord, Lord Jenkin, referred—that the IPC has to be satisfied that this was a properly managed consultation process.
It occurred to me that, if the Bill stated that the IPC had to have regard to the response of the applicant to the consultee, that would be enough to force the hand of the applicant in how it handled the consultation process or, more important, how it was seen to have handled it. As I said earlier, the applicant has a huge financial interest, which will get in the way of a fair, unbiased—or even a seen-to-be-unbiased—consultation process. I cannot see how an amendment—either mine or something similar from the Government—could possibly interfere with the Government’s purposes. Indeed, if we took the Minister at her word, my amendment would fulfil the Government’s purposes and spell them out in the Bill. I hope that she can accommodate my point. It is a small amendment that directly confirms the Government’s stated wishes.
Amendment No. 221A reverts to the time limit of 56 days, not 28 days. I am not going to cover that ground again, but this amendment represents the last chance that an individual or a local authority might have to make their input. One could argue that the authority would have known about an application for a long time and that 28 days would be quite enough. However, although the authority will know about an application, it will not know the final details until that application has been submitted. It is a bit like the CIL clauses in the Bill. We knew that they would be there, but we did not know how they would work out until the Government recently tabled all their amendments and we could start thinking about them and making our case.
The Minister seemed to recognise the points that I and the noble Lord, Lord Greaves, made on the number of professionals and consultants involved in submitting a considered opinion. She said that 28 days was just a minimum but, as has been said on the 14 days, minimum time limits are what usually stick in practice. I think that I heard her say that she would consider our arguments on this point. I take this opportunity to urge her to consider this matter positively.
I am grateful to noble Lords for addressing their amendments succinctly. Some of this reiterates our earlier discussions. It is rather a large group of amendments and I shall follow them in the logical sequence of the Bill.
I shall deal first with the handling by the commission of an application and then the notification and publicising of accepted applications. We are concerned with probing questions about the nature of consultation and the need for noble Lords to be secure in what the Bill will deliver. We talked on previous amendments about the safeguards set out in Clause 53—the series of conditions that must be met before the IPC can accept an application. The commission must be satisfied that the application is in the correct form and that the applicant has complied with the pre-application procedure, set out in Chapter 4. In deciding whether that is the case, the IPC is required to have regard to any representations from local authorities about the adequacy of consultation. I am sure that local authorities will not be slow in coming forward there. That consultation will be carried out under Clauses 41, 46 and 47, which relate to the promoter’s duty to consult statutory consultees and local communities and the duty to publicise the proposed application. Most of the amendments to Clause 53 therefore propose to extend the requirements placed on the commission when deciding whether to accept an application.
I want to address the central misunderstanding in Amendments Nos. 215 and 216. I reassure noble Lords that the reference to “local-authority consultee” in Clause 53(4) would not prevent either party from submitting representations about the adequacy of the consultation, nor would it mean that the commission could ignore them. The references to Clauses 41, 46 and 47 in Clause 53(5) would not prevent the other parties from making representations saying that the promoter had not had due regard to the responses to consultation, nor would it mean that the commission could ignore them. I thought that that was the noble Baroness’s concern when she spoke to her amendment.
Before the Minister moves on, the point is the one that the noble Lord, Lord Cameron of Dillington, has just made. In real life, people do the minimum. It is not a matter of ill will but, if they are directed to have regard to certain matters, even though they can have regard to other matters, it is not so likely that they will have regard to the matters that are not specified. That was my concern. I do not dispute with the Minister that of course they can have regard to other matters.
I think that I understand that but I hope that I may be forgiven if I have to read Hansard tomorrow to pick up the subtlety of the argument. I do not have to rehearse the excellent arguments that I have, as clearly they address the wrong point. The final line of my briefing reads, “I hope that that is reassuring”. However, it would be the opposite of reassuring, as we have missed the point of the amendment.
Amendments Nos. 216 and 218 probe how far a promoter would have to explain how he had accommodated responses to consultation. Amendment No. 216 would require the consultation report to include details of the extent to which the application was affected by any relevant responses. Amendment No. 218 would require that, under the duty in Clause 48, account was taken of responses to publicity, consultation and so on, with explanations given. The noble Lord, Lord Cameron, invited me to agree that this was merely sensible, but I believe that it comes within the notion of “adequacy”. I am afraid that it is difficult for me to say anything following what I said on previous amendments. There is an issue concerning proportion and the extent to which promoters can explain how far they have been unable to accommodate individual responses. As I said previously, I have some sympathy with the requirement that promoters report the account taken of responses to public consultation, describing how the responses had affected the consultation. However, I think that the Bill meets that requirement.
I listened to what the noble Lord, Lord Cameron, said, but the guidance has to address the question of adequacy. Perhaps he will let me think about the nature of the guidance, and we can have a conversation about the points raised by the noble Baroness, Lady Hamwee, concerning its scope. If that happens between now and Report, we can ensure that we are all on the same page with regard to what we understand by that. I should be very happy for that to happen and I hope that it will help.
Clauses 54 and 55 deal with the applicant’s duty to notify and publicise the acceptance of applications. The key word here is “notify”. Clause 54 sets out that when the commission accepts an application for an order granting development consent, the applicant must notify a range of persons, including the local authority, persons to be prescribed by the Secretary of State and anyone who has an interest in the land covered by the application identified in Clause 55. The clause specifies that the applicant must notify people in such a manner as prescribed and make available copies of the application and any other information, and that it must do that in the manner prescribed by the Secretary of State.
The people who are notified of an application would have at least 28 days in which to make representations. The clause also requires the applicant to publicise the application in a manner prescribed by the Secretary of State, provided that the person so informed is also informed of the deadline for receipt by the commission of representations giving the person’s interest in or objection to the application.
It is important to consider that Clause 54 draws a clear distinction between the category of persons to whom information must be made available and the wider group of people to whom information is required to be made through publicity. Notification under Clause 54 is a specific requirement and applies only to those people or bodies most likely to be directly affected by the application. I fully understand why noble Lords have tabled the amendments and I believe that the process laid out in the Bill satisfies the need for this part of the process to be as open and inclusive as possible. A small group of amendments generally attempts to create a list of people who should or should not be notified by the applicant of the acceptance of the application.
I am grateful to my noble friend for not speaking to Amendment No. 219, as we addressed the issue in a previous amendment. On the other amendments— Amendment No. 220 on the persons consulted by the promoter at the pre-application stage, Amendment No. 226 on people who make representations following the publicising and Amendment No. 221 referring to disabled people—we think that the Bill’s provisions set out a clear and strong requirement. I do not believe that including such groups of people in the Bill adds anything to those strong requirements. Clauses 54 and 55 are wide in scope and are sufficient for the applicant to know full well who should be informed and consulted.
Clause 54 already set outs that the applicant must notify an affected local authority, persons with an interest in the land, anyone who might be entitled to claim compensation and other statutory consultees. It is pretty comprehensive. Local people and any other directly affected parties are covered. We should not forget that the applicant is also under a duty to publicise the application in a manner to be prescribed by the Secretary of State. That will be sufficient to reach the wider group of persons whom the amendments would include.
It is also crucial that Clause 56 requires the applicant to certify to the commission that he has complied with the requirements to notify and publicise in such a manner as may be prescribed. That is an important safeguard, which takes care of the concerns expressed by the Committee.
I fully sympathise with the purpose of Amendment No. 221. Again, we intend to issue guidance from the Secretary of State. Clause 46(5)(b) on consulting local communities will ensure that consideration is given to the need for consultation to address the needs of disabled people. I give that assurance again, as this must be an inclusive process.
The other amendments—Amendments Nos. 221A, 222 and 223—would extend the time following notification or publicity for persons to make representations to the IPC that they have an interest in or objection to the application. They would also set minimum standards for publicising the acceptance of the application. Amendment No. 225, which I will need to address, refers to diligent inquiries.
Amendment No. 222 would prescribe in the Bill some of the minimum standards for publicising an application. The Bill already allows the Secretary of State to make much more detailed regulations on how publicity should be carried out. Subsection (7) gives the Secretary of State powers to prescribe minimum standards for publicity and notification. We will ensure that these standards are robust and that applications are given an appropriate level of publicity.
Amendments Nos. 221A and 223 refer to the minimum length of time. They are slightly different. The amendment tabled by the noble Lord, Lord Cameron of Dillington, would increase the minimum time from 28 to 56 days. I agree that people who might be affected by an application should have a suitable time to formulate representations. I believe that it is an appropriate minimum time. I am exhausting my armoury of arguments but I have not said that by the time an interested party is formally notified of an application he is likely to know of other proposals. It will be at the end of a rather long process.
I know that the process is long, but he will not know the details of the application until he gets the notice. I hope that a proposal will be changed throughout the process as a result of the consultation, but the person will not know the details and will be holding fire. He will not be in a position to submit his case.
The noble Lord makes a strong point. I go back to my original argument that this is the minimum time and the applicant can give a longer period.
The amendment tabled by the noble Lord, Lord Dixon-Smith, would impose a deadline of at least 28 days by which representations relating to an application must be submitted to the IPC. That would apply to those who are not notified directly by the applicant but respond to publicity.
As I understand it, the applicant has to satisfy the IPC that he has consulted properly. The IPC can disagree that the applicant has allowed sufficient time for that to happen. I shall double-check that point, but that is my understanding.
The regulations will deal with this issue in a more detailed way. We have allowed for flexibility in regulations so that the deadlines can account for different circumstances. We have no intention of setting a deadline in respect of receipt of representations of less than 28 days. I shall read what noble Lords have said about these arguments.
I return to Amendment No. 212, which is where we started, in a gallant attempt to try to make sense of it. I appreciate the noble Lord’s efforts to improve counsel’s drafting. I am assured by lawyers that the amendment does not change the effect. The two phrases are identical and mean the same thing. I confess that I think that the noble Lord’s option is clearer. On that basis, I hope that the noble Lord will withdraw his amendment.
I beg the Minister’s pardon. I was perhaps trying to read too much into her remarks. I am fascinated by the approach to publicity. We are prepared to give a great deal of detailed guidance to the commission about how publicity should be handled but in the previous group of amendments we were not prepared to have the Secretary of State give advice to the commission on the advice that it should give to potential applicants. There is inconsistency here. The Minister has, in her usual way, been conscientious in answering the points that have been raised. Other noble Lords will have to decide how far they are satisfied with those answers. I am most grateful to the Minister for her time and trouble. We shall study with great care what she said. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 213 to 218 not moved.]
Clause 53 agreed to.
Clause 54 [Notifying persons of accepted application]:
[Amendments Nos. 219 to 223 not moved.]
Clause 54 agreed to.
Clause 55 [Categories for purposes of section 54(2)(d)]:
224: Clause 55, page 32, line 33, after “the” insert “applicant, after making diligent inquiry, knows that the”
On Question, amendment agreed to.
[Amendments Nos. 225 to 226 not moved.]
227: Clause 55, page 33, line 7, at end insert—
“This is subject to subsection (4A).(4A) A person is within Category 3 only if the person is known to the applicant after making diligent inquiry.”
228: Clause 55, page 33, line 14, leave out from “works),” to end of line 15
On Question, amendments agreed to.
Clause 55, as amended, agreed to.
Clauses 56 and 57 agreed to.
Clause 58 [Local impact reports]:
229: Clause 58, page 34, line 25, after “section 99(5),” insert—
“( ) in an area where there is both a county council and a district council, both councils,”
The noble Lord said: The amendment is grouped with Amendments Nos. 230 and 231, in the name of the noble Lord, Lord Taylor, which are nothing to do with Amendment No. 229; I am not sure why they are grouped together. I will probably not comment on those amendments until after the noble Lord has spoken to them, when I reply to the debate on Amendment No. 229. I think that that is the polite thing to do.
Amendment No. 229 is apparently an innocuous little amendment, but it is actually fundamental and complicated; if the Committee will bear with me, I will go through it. We are now on to the part of the Bill that deals with local impact reports. Local impact reports are the information and advice that a local planning authority—a local council—provides to the Infrastructure Planning Commission once an application for an ADC has been submitted. The Infrastructure Planning Commission contacts the council and asks it for any information and views that it wishes to put forward at that stage. Clearly, that is to inform the Infrastructure Planning Commission about the local impact that a proposal will have. The local impact is one of the criteria set out in the Bill of which it has to take account when it determines an application. Have I got that right?
The amendment adds to the provision:
“The Commission must give notice in writing to each of the following”,
that “the following” includes,
“both a county and a district council”,
in a two-tier area. The Bill states:
“each authority which, in relation to the application, is a relevant local authority within the meaning given by section 99(5)”.
That is a slightly odd cross-reference, because Clause 99(5) is in a different chapter of the Bill, but it states:
“In subsection (1) ‘relevant local authority’ means a local authority within subsection (6) or (7)”.
Subsection (8) states:
“In subsections (5) to (7) “local authority” means—
(a) a county council, or district council, in England”.
It then lists other authorities, such as a London borough, the Council of the Isles of Scilly, and councils in Wales and Scotland, which is all very clear. I submit that the phrase,
“ a county council, or district council, in England”,
is ambiguous and should be looked at. The word “or” gives rise to the question of whether someone can choose whether they wish to consult a county or a district council. I do not want to go into the realms of Boolean logic which, in this internet age, we have all had to learn to understand, but “or” usually has a different meaning to “and”. Perhaps our amendment should seek simply to remove “or” and insert “and”, although it would have exactly the same effect. Its purpose is to probe the meaning of the clause and to ask the Government whether they are prepared to make this matter clearer in legislation.
This phrase appears in at least one other place in the Bill, perhaps more, and it is not clear what,
“a county council, or district council, in England”,
means. I am not sure why the commas are there. There was a time when commas never appeared in legislation. They have been put in to clarify the legislation and to make it easier to read. We are always not told not to change the meaning, but the presence of those commas implies that there is a pause and emphasises that it is an alternative. It does not mean a county council and a district council, and someone will decide in any application whether the county or the district is consulted and asked to produce the local impact report. I think the Minister has understood the point that I am making. It should be both, because the county council still has a residual strategic planning function, and specific planning functions in relation for example to minerals, and the district council is the main development control authority. Clearly they should both be consulted in any particular case.
Unitary authorities can be either districts or counties. The Isle of Wight is a unitary county, and there are lots of unitary districts. There is no problem with a unitary authority, because it is obvious whether it is a district or a county. The problem is in two-tier areas, so I would be grateful for the Minister’s confirmation that there is no intention to exclude either of them. I beg to move.
I am tempted to say that I am all at sea, but only as a way of bringing the topic back to the draft marine Bill and to my two amendments, which seek to clarify the disconnect between the proposals in that Bill and this one. If we had considered the draft marine Bill first, we would have seen why there is an inconsistency between the two Bills that might be remedied. We need a marine representative body in this Bill that would, after the draft marine Bill has passed into law, become the marine management organisation. This body would speak and carry out an impact assessment on behalf of the marine environment and have a duty of care in that area. Writing it into this Bill would make it clear that it had this role, and previous amendments that I have tabled in this area would all fall into place. I am sorry to ask the Minister to include this in her correspondence and in her considerations between now and Report, but dialogue with other members of the Government with an interest in this Bill might resolve the matter before Report.
On an associated matter, what is the position of national parks under the clause? They are certainly not mentioned in this clause or in Clause 99(7), which is intended to clarify the matter. If “land” involves national parks, will they fall under this clause?
I have said many times that we are very keen to ensure that the local authorities have an enhanced role in this process, as they must as guardians of the local community and the local environment. The forensic attention which noble Lords have paid to those clauses has been well worth it. In essence, as I have said, the promoter of the project will consult the local authorities. The IPC will have to have regard to any report on the adequacy of the promoter’s consultation which they receive from a local authority consultee. Local authorities are statutory consultees.
In addition, Clause 58 requires the Infrastructure Planning Commission, on accepting an application for development consent, to invite the affected local authority or local authorities to produce a report of the likely impact on their local community. Clause 101 requires that the IPC must have regard to the local impact report when making its decision. Clause 102 requires the Minister to do the same in a case where they exercise their power of intervention to take over and decide.
The noble Lord, Lord Greaves, asked me a simple question: does the term “local authorities” cover county councils and district councils in two-tier authorities? The short answer is: yes, it does. I am pleased to confirm that there should not be any issue about that. The amendment duplicates the effect of Clause 99(5), which provides, among other things, that a local authority means a county council or a district council in England. He raised the reading of the clause and its grammatical structure. I shall look at the clause to see whether there is unnecessary ambiguity and will take advice. I am sure that it is written as it is for very good reason. I can give the noble Lord that assurance, but I will see whether any unnecessary confusion is caused by the punctuation.
The amendments to Clause 58, raised by the noble Lord, Lord Taylor of Holbeach, seek to expand the requirement of the local impact report to the marine environment, as well as provide that local impact reports should be produced by the relevant marine body if the land or area to which the application relates, or any part of it, is coastal or offshore. Clearly, the intention is to ensure that in deciding the application the IPC should have proper regard to the appropriate marine policy and plans. He has also made amendments to Clause 101, which is the crucial decision test clause.
Although we are absolutely clear that marine policy and marine plans, where relevant, will be important to considerations in decisions on applications for development consent, the Bill provides for those in a different way from the assessment of local impacts. We consider that the right place for the consideration of the marine environment will be the NPS and the marine policy statements. This is an important point and I want to reassure him that we will require that the NPS and the relevant marine policy will be consistent. The NPSs have to draw together all relevant policy into a framework that everyone sees is consistent in order for the promoters to develop their projects and for people to understand the balance of various arguments and interests. Within that, the IPC will take the final decision.
In addition, we envisage that where the development requires the consideration of the marine environment, the relevant marine body would be a statutory consultee. I am happy to confirm that. I have also said that I will write to the noble Lord and that I will explore the issue of the interrelationships before Report stage. If issues arise about this interface, I hope that we can discuss them outside the Chamber so that he can be reassured that we are doing out best to make sure that government policy, as always, is seamless.
While I am grateful to my noble friend for responding to my point, the definition of a local authority to produce an impact assessment applies to where land is in that local authority. Major wind farms can have a significant impact in a local authority area even though the land and the wind farms are not in that area. Would a local authority in an area affected by a proposal have any right to conduct an impact assessment even if the land where the development would take place is not in its area?
I see my noble friend’s point and my understanding is that this applies to local authorities. Perhaps I may come back to my noble friend on that point and that made about the national park. This relationship between responsibility and land is complex, but I am happy to clarify it to make sure that we all understand what it means.
Yet again the noble Lord, Lord Woolmer, has made a good point about national parks, and given another reason why this should not be left to secondary legislation. National parks are a special case because they are local planning authorities. Perhaps the reason why all these local authorities are in here is that they are all wonderful democratic representatives of their communities—and no doubt some of them are. At least I hope that some of them are; I hope that mine is, for a start. The real reason they are in the Bill is that they are local planning authorities, and this is a planning Bill. If local authorities had nothing to do with planning, they would not be in this legislation, however good they are at representing their communities. It emphasises the importance of national park authorities as planning authorities and why, as a special case and without listing all the other bodies in the world, they ought to be in the Bill.
I am grateful to the Minister for her comments on the county/district issue. The definition in Clause 99(5) and elsewhere in the Bill should be broadened so that a two-tier system is defined separately on another line. In two-tier areas, it is both the district and the county. That is an answer to the conundrum and I hope that the Minister will think about doing that. The point needs to be made clear.
I said that I would comment briefly on the amendments tabled by the noble Lord, Lord Taylor, on the draft Marine Bill provisions. Again, I should like to associate us with the many points he has made on the relationship between that draft Bill and this legislation. This may not be the right place in the Bill to put something in, but many people have huge expectations about the impact and effect of the Marine Bill, assuming that we get it in the next Session, as we all hope we will. Marine policy statements will be vital, as will marine plans. In effect, it will be a planning Bill for offshore areas and will introduce the marine conservation zones on which everyone is pinning what are perhaps too great hopes. However, we hope that at least some of them will be effective.
I can see concerns developing unless the Minister can clarify two points. The first is that the provisions of this Bill need to be in place before the provisions of the Marine Bill and that decisions may be taken which it will be too late to reverse by the new marine management authority when it gets to work. There is a risk that the authority will be pre-empted and that parts of the marine environment will be degraded by development taking place under this Bill, which is development orientated. The Marine Bill is more concerned with the environment and the need to balance all the interests involved.
Secondly, from what the Minister has been saying, the new national planning system for these big projects will take precedence over the rest of the planning system on land, and she is telling us that it will take precedence at sea as well. That is going to come as quite a disappointment to many organisations and people who have been campaigning for so long for the Marine Bill. The Infrastructure Planning Commission will be able to give permission for something like 30 to 40 offshore wind farms. That will happen before the Marine Bill is ready, thus pre-empting marine policy statements and marine plans. There is a real problem in selling this to people so far as the marine environment is concerned. I hope that the Government will think about it carefully.
Having made those points, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos.230 and 231 not moved.]
Clause 58 agreed to.
Clause 59 [Initial choice of Panel or single Commissioner]:
232: Clause 59, page 35, line 3, after “2,” insert—
“( ) is to be handled by the Commission,”
The noble Lord said: The first appearance of the concept of the council, to which the majority of my other amendments refer, is in Clause 59 on page 35.
241: Clause 60, page 35, line 32, at end insert—
“( ) the single Commissioner handling the application,”
The noble Baroness said: I shall not speak to the substance of the amendment. I move it only to speak to a procedural point which I raised briefly with the Minister and to reassure those who may be watching our proceedings at 6 am tomorrow on the Parliament Channel or on whatever other modern technology. I have a hand-held device, which is very helpful.
The point is that yesterday the noble Lord, Lord Dixon-Smith, and I agreed with the Minister not to move a clutch of amendments in order to make progress on the Bill. Those amendments are not necessarily unimportant; in some cases we are seeking clarity and in others we are making points where we disagree to a certain extent with the Government. In return for not moving them, the Minister has offered to write to us—which we have readily accepted—to give certain assurances. But we are concerned that what the Minister has to say should, through some means or other, be a matter of public record.
This is where the point about computer technology comes in. I have seen a letter from the leader of the Bill team and he entirely takes the point. He states that one option is for me to say that I am not moving amendments and that the Minister will be writing to give a formal response. That would alert interested parties to the fact that there is correspondence. I know that the noble Baroness will make sure that her responses are placed in the Library, but my suggestion is that amendments which are of particular importance could be reframed as Parliamentary Questions for Written Answer, and those could then be part of the public record. I am happy to go through the amendments and consider how best to deal with each, but I wanted to raise the issue because it is an important procedural point. I beg to move.
I am grateful to the noble Baroness for enabling me to thank her and the Official Opposition Front Bench—the noble Lord, Lord Dixon-Smith, in particular—for their extraordinary co-operation on a Bill which we all think is very important. We are all conscious that time has caught up with us and I am extremely grateful to them. I shall certainly do everything I can to ensure that everyone who is interested in the amendments knows about them. We can deploy all the noble Baroness’s suggestions. I am happy to answer Parliamentary Questions, to write to noble Lords and to put the correspondence in the Library—or, indeed, to do anything else they would like me to do. I wish I had one of those hand-held machines too; it would be easier than running back and forth to the Box.
I thank noble Lords for their co-operation. We have debated some of the issues before, and we will debate them again, but there are specific issues—about the single commissioner, for example—which I know the noble Baroness will want to talk about and have on the record. Let us continue and have that conversation between now and Report.
I apologise for raising the point, but I understood that it was not proper procedure to use such a device in the Chamber. I do not wish to be pedantic, and I am a very junior Member of this Committee in terms of my experience, but it sets a precedent. The Minister has said that from her point of view it might be rather useful. I think that the procedures of the Committee do not permit that sort of communication with the Box, and it is probably preferable not to encourage it.
I consider myself reprimanded. I have referred to it before and on the first occasion I was thanked by the Minister responding on behalf of the Government for having done so and legitimised it, as it were. How useful it is depends on how fast you can type. I am grateful to the Minister and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 242 to 246 not moved.]
Clause 60 agreed to.
Clause 61 [Delegation of functions by person appointed to chair Commission]:
[Amendments Nos. 247 and 248 not moved.]
Clause 61 agreed to.
Clause 62 agreed to.
Clause 63 [Appointment of members, and lead member, of Panel]:
[Amendments Nos. 249 to 254 not moved.]
Clause 63 agreed to.
Clause 64 agreed to.
Clause 65 [Panel member continuing though ceasing to be Commissioner]:
[Amendment No. 255 not moved.]
Clause 65 agreed to.
Clauses 66 to 69 agreed to.
Clause 70 [Panel ceasing to have any members]:
[Amendments Nos. 256 and 257 not moved.]
Clause 70 agreed to.
Clause 71 agreed to.
Clause 72 [Panel to decide, or make recommendation in respect of, application]:
[Amendments Nos. 258 to 260 not moved.]
Clause 72 agreed to.
Clause 73 [Decision-making by the Panel]:
[Amendments Nos. 261 and 262 not moved.]
Clause 73 agreed to.
Clauses 74 and 75 agreed to.
Clause 76 [Single Commissioner to handle application]:
[Amendment No. 263 not moved.]
Clause 76 agreed to.
Clauses 77 and 78 agreed to.
Clause 79 [Single Commissioner continuing though ceasing to be Commissioner]:
[Amendment No. 264 not moved.]
Clause 79 agreed to.
Clause 80 agreed to.
Clause 81 [Single Commissioner to examine and report on application]:
[Amendments Nos. 265 to 267 not moved.]
Clause 81 agreed to.
[Amendment No. 268 not moved.]
Clauses 82 to 84 agreed to.
Clause 85 [Examining authority to control examination of application]:
269: Clause 85, page 45, line 2, at end insert—
“( ) Subject to subsection (3), nothing in this section shall restrict the rights of interested parties to make oral representations or cross-examine witnesses.”
The noble Lord said: I feel that I should apologise to the people in the Public Gallery, who must have found that part of our proceedings rather difficult to understand. We should be clear that we are badly delayed in our progress through the Bill and had to do something to accelerate matters. Indeed, one could argue that our achievements in this Committee—
They are heroic, but they are beginning to demonstrate some of the flaws of the planning system itself. This part of the Bill deals specifically with how applications are to be examined and we have a number of detailed points that we wish to raise.
Although the examining authority may disregard representations in certain circumstances, Amendment No. 269 makes clear the absolute right of interested parties to make oral representations or to cross-examine witnesses without restriction. Amendment No. 270 would make sure that people who had commented in writing during the preliminary public consultation were among those who were invited to the examining authority’s meeting. We accept that this may raise some practical difficulties, but if they are already on the record, they should not be so great.
Amendments Nos. 271 and 272 to Clause 85 are also designed to allow oral as well as written representations to be considered, while Amendment No. 273 would make the authority’s examination of representations subject to the right of interested parties to make oral submissions and to cross-examine witnesses. Amendment No. 277 would allow the calling and cross-examination of witnesses about specific issues, and allow the same at open-floor hearings. Amendment No. 281 would remove Clause 92(4)(a), which gives the examining authority the power to decide whether cross-examination is permitted. The power is not appropriate.
Amendment No. 282 would leave out Clause 92(7), which establishes the principle that any cross-examination would be by the examining authority, save in exceptional cases. I have had a conversation about this with the noble Viscount, Lord Colville, who has much experience in planning inquiries. He has a concern which I hope the Minister will take into account. If the members of the panel of the commission who are examining an application undertake the cross-examination themselves, he suggests that any decision would be open to a claim for judicial review—whether it would succeed is another matter. If one party or the other—the applicant or the person objecting to the application—does not like the cross-examination, he could accuse the member of the panel of being an interested party in the examination because he also had to judge it. That point needs to be considered. The noble Viscount suggested that rather than members of the commission undertaking the cross-examination, they could employ independent counsel to undertake the cross-examination on their behalf. However, having put that into the debate, it is for the Minister to consider.
This is a large group of amendments and I have outlined what they are. I understand that the Minister might be able to give us assurances on some of these matters which might curtail the debate. I do not have any desire to curtail the debate, but we need to make progress. I beg to move.
I have a number of amendments in this group and I am afraid that I may speak at a little more length, particularly on the issue of cross-examination.
I appreciate that it is for the examining authority—a single commissioner or panel of commissioners—to determine how to examine the application, and oral representations and cross-examination are not ruled out. I do not need assurances that they are possible, but the Bill does not give much encouragement to them, and the commissioners will take their cue from what will be the Planning Act 2008.
What I have to say will be familiar to the Minister. I was grateful to her for agreeing to meet the chairman of the Planning and Environment Bar Association with me. He feels—I am sure that he speaks for colleagues because he made it clear that he was not there, as it were, in a trade union capacity—that if there is to be an Infrastructure Planning Commission—I do not think that there is a prospect that there will not be—it must work as well as possible. That means, among other things, being fair and being seen to be fair because of issues of confidence among the public and scrutinising applications rigorously.
That leads me to argue that there should be a right for the parties to require an oral hearing and the right to ask questions to test the evidence. I would say to my noble friend that at that point I have a dash not a comma, but I think that that amounts to the same thing. Cross-examination is not simply something narrow and legalistic: it is an important tool to test the basis of views that are being put forward. Assertions have to be tested by informed questions. It is not a matter of an expression of view: this is about ascertaining how well founded are the propositions being put to the commission. Are they rational, are they on a secure basis, and so forth? As has been said several times, including this afternoon, these applications will be highly complex and difficult. There will be expert evidence. We know that not every expert agrees with another—if every expert were correct then they would all agree—so there are matters to be tested. Fairness requires that parties should be able to test each other's case. The promoter will spend a great deal on putting the case together. Is it fair to the applicant not to be able to question those who oppose the application? Understandably, there will be differences between, for instance, the applicant and local residents, whose interests are very different but who will seek on the basis of the application to make assertions that will need to be tested. Noble Lords who have been members of a planning committee will have had many examples of objectors to an application casting as widely as possible for arguments against it.
I know that the Government are hugely concerned—it is really the rationale for the proposals—not to lengthen the procedures, but testing the evidence need not unduly lengthen them. It will be open to the commissioners to curtail cross-examination. Judges have the right to curtail it if they feel that it is going nowhere and is not truly a cross-examination. Although Clause 92(8) permits the commissioners to refuse to allow representations that are irrelevant, repetitious and so on, the same or similar provision could be made in respect of questioning. Even if it is not accepted that there should be a right to an oral hearing and to questioning, Clause 92(7) is much too restrictive.
The reality is that questioning by the parties will frequently be needed. It is not practicable to expect the examining authority to ask all the questions. Questioning expert witnesses to probe their evidence requires an enormous amount of preparation, skill and experience—although the latter can be gathered. In case the noble Baroness throws this back at me, I accept that at an early stage in our discussions I said that the commissioners could be trained, but practically speaking it is not possible to train them to the level of experience, for instance, that members of the Bar have gathered over their career. The commissioners will need guidance from an appropriately qualified expert on what areas to test. They are not likely to have at their disposal the guidance of specialists, who are essential to brief an advocate engaged in such testing.
I do not think that the Government have got their head around the massive cost of providing the examining authorities with the teams of experts they would need if they were to take responsibility for all the testing of evidence. There is also the risk to fairness of process that such assistance is not open to scrutiny.
The point was made to the Minister, privately before today, that in the development plan examinations, the procedures introduced following the 2004 Act, it is for the inspector to decide the procedure. I understand that initially inspectors tried to exclude questions from the parties to the process but came to realise fairly quickly that from time to time they needed their assistance.
Clause 92(7) says that the examining authority may think that,
“exceptionally, oral questioning by another person is necessary”.
The term “exceptionally” must mean something. It can only be there to make it more difficult for the examining authority to allow anyone else to ask a question. It must decide not only that questions are necessary, but that this is an exceptional case among the applications going to the IPC. If it is necessary to allow questions in a relatively high number of IPC cases, is it “exceptional”? The approach will by definition prevent the examining authority having the tools required to test the objectives I have mentioned.
I need not say nearly as much on the other amendments. My points underlying Amendment No. 283 apply across the raft of amendments. Amendment No. 275 is about publication. Amendment No. 280 is about the time for notifying the examining authority of a wish to be heard at the open-floor hearing; I propose 56 days for some of the practical reasons voiced in other contexts this afternoon. If practicalities are not observed, then unfairness can arise. Amendments Nos. 285 to 287 are about oral representations; I think that I have probably covered the point. I will not speak to Amendment No. 290, so the Minister need not respond to it. I look forward to hearing what she has to say on a serious aspect of the IPC’s procedure.
This is indeed an important series of amendments in an important part of the Bill. We all agree that we want to ensure that this process—the opportunity for local people to make their voices heard—is clear, transparent and satisfies its purposes. I shall group some of the amendments, and hope that I can address and reassure Members of the Committee.
Amendments Nos. 269, 271 to 273 and 285 to 288 address similar points around written and oral representations, and the judgment between them. I shall first explain why we have emphasised in the Bill the use of written representations. We are talking in the context of applications coming to the IPC which will be technical and extremely complex. There is a real role for written evidence. Yes, the noble Baroness has said that we are concerned to have a speedier process, but that is not the overriding force driving this process. It is driven by the need for effective consideration, which, in the testing of evidence and the gathering of information, will enable everybody satisfactorily to look back and say, “Yes, they did a good job. They had the information they needed before them and the judgment was based on proper evidence”.
Written evidence will speed up and clarify an application because it will reduce the need for often lengthy and repetitious oral evidence. Primarily, however, it will also improve the analysis of evidence and allow technical questions to be explored in greater depth. It therefore makes the process a bit more accessible to members of the public, not least because they do not have to attend a public inquiry but can access the exchanges in other ways.
That said, I stress that the Bill sets out clear and explicit rights to be heard. I heard the noble Baroness saying that the Bill does not encourage that. I think that she was talking about cross-examination in that context. However, I believe that the Bill really encourages the right to be heard in very different ways. The emphasis on written representation set out in Clause 88 is subject to the requirement to hold specific oral hearings, which are set out in Clauses 89, 90 and 91. That, along with the open floor hearings to which I referred, is about being fair and being seen to be fair to people who in previous situations may not have been heard at all for different reasons.
Clause 88 requires the examining authority to hold oral hearings to probe specific issues where it considers that it is necessary to ensure its adequate examination or to ensure that an interested party has a fair chance with its case. Each interested party would be entitled to make oral representations at this hearing. I stress that the decision by the examining authority to hold an oral session cannot be arbitrary. Interested parties will be able to make representations to the commission about how the application should be examined at the preliminary meeting, including whether they would be adequately or fairly treated by a purely written process. They would be able to make subsequent representations that exchanges of written evidence had not properly settled an issue. The examining authority will have to take all these representations into account before it decides whether a hearing is necessary. If it concludes that a hearing is needed, it must hold one.
Clause 90 also requires that whenever an application seeking authorisation of compulsory purchase arises, the examining authority must hold an oral hearing into it. Any affected person would be entitled to make oral representations at that hearing. Certainly, the new step, and perhaps most importantly Clause 87, will require the examining authority to hold an open-floor hearing wherever an interested party notifies it by the deadline that they desire one. It is not discretionary. If they want an open-floor hearing, they will get one. That means that under the Bill interested parties have a right to be heard. They have a right to make oral representations. This is obviously subject to the examining authority’s powers to control examinations; for example, to disregard representations which are frivolous or vexatious, as set out in Clause 85. Those sorts of powers are perfectly standard. However, the IPC will not be able to use that provision as a means to exclude people from submitting evidence which has merit. The normal procedures of administrative law apply just as much to the IPC as to any other public body. Anybody who believes that their evidence has been unreasonably disregarded would be able to make use of the mechanisms for legal challenge.
As I said, Clause 94 ensures that should a party be prevented from making an oral representation for whatever reason, they can still make a written representation. Therefore, we will provide a more rational and transparent process to test what will often be very technical evidence.
As regards oral representations to be made by agents, Amendments Nos. 276 and 278 seek to make clear that representations at issue-specific and open-floor hearings can be made personally or by a counsel, solicitor or agent. In essence, they establish a right to be represented at hearings. I can offer reassurance here. The best possible motives lie behind making hearings more open and accessible; namely, that parties do not need to employ expensive, professional advocates to participate on an equal footing with other parties. However, we emphatically do not prevent them from employing someone to represent them if that is what they want. Nothing in the Bill prevents an interested party asking to be represented, and being allowed to do so. I hope that is reassuring.
The noble Baroness made a very eloquent and passionate defence of cross-examination. Amendments Nos. 277, 279 and 281 are designed to give interested parties the right to call and cross-examine witnesses, in addition to being entitled to make oral representations at hearings. Amendment No. 282 is consequential and Amendment No. 273 is also relevant.
I understand what the noble Baroness is saying, and I have heard what has been said by other parties about the importance of cross-examination. I do not deny that it has an honourable place in our planning system. But this is an opportunity for us to think clearly and critically about what cross-examination is about. It is simply one mode of testing evidence. When the noble Baroness talked about time, she was right that we are trying to make the process a bit more streamlined, so that we can avoid repetitious activity and so on. The point about cross-examination is that there has always been a risk, which has been realised in many instances, of it being exclusive and being something that you can obtain if you have wealth, connection, opportunity, organisation and access. It has also been legalistic and adversarial, and it has added infinitely to the protraction of the procedures in public inquiries. It has often been intimidating and difficult for members of the public to engage effectively in the process.
We do not want to replicate those risks. We do not want the new process to mean that only those with the deepest pockets have the loudest say. As the noble Baroness said, we want to achieve the best possible testing of evidence. It is much more sensible for the commissioners charged with examining an application to probe and test the evidence themselves via direct questioning, rather than outsourcing it to other advocates and getting them to do it.
Noble Lords should bear in mind that this is the end of a process at each stage of which the applicant and the IPC—before the pre-application hearing, the local impact assessment, the local consultation process and the pre-application stages—will have many opportunities to test out the assertions that are being made both by the promoters and by their adversaries. This will not be the only place in which arguments and evidence are tested. It will be a very specific process, but it will come at the end of a series of iterative processes.
I take the point that we have a very fine profession in the Bar whose job it is to get the best result from cross-examination, but the noble Baroness does the IPC, and the skills that we intend to look for, something of a disservice if she thinks that it will not be able to question and probe to a very high standard the sort of evidence that will come before it. It would also be possible for the individual member of the local community to suggest questions. They may themselves not be able to cross-examine, if they have not reached that stage, but they would certainly be able to suggest questions to the IPC; “Why don’t you ask the appellant on what evidence he bases the traffic flows on road X?”, and so on. There will be interaction. This will be an extremely robust process.
The noble Baroness has raised the issue before—my noble friend Lord Hart raised this—and we are very serious about ensuring that the commissioners have the skills and training that they need to examine effectively. We will look for those generic skills in any case. If they thought it necessary, they could even appoint a counsel to the panel to probe evidence on their behalf. There would be an ability to dig under what they are being told. Nothing of that nature is ruled out in the Bill. I understand that there is an issue about technical expertise being challenged and how we ensure that. I think that there will be sufficient opportunity at this stage, in this way, for the evidence that comes before the commission to be challenged and tested. We also get an openness and a more level playing field for all parties, because the current adversarial system is genuinely exclusive and can shut out smaller, less confident or less well resourced participants.
The noble Lord, Lord Dixon-Smith, asked whether there was a possibility of legal challenge, because the panel would be seen to be judge and jury. The commissioners will have to act reasonably and impartially—we would expect nothing else—but we will also specify in guidance how they should do their job, and they will have a code of conduct. If they do not meet the high standards that we set, they could be challenged. That is right and proper. However, the scenario posed by the noble Lord is pretty unrealistic, but I will think about that, because he rather sprang it on me. He is perfectly well allowed to do that and I will come back to him on that point.
Cross-examination is emphatically not ruled out. While the commission would normally use direct questioning to test the evidence under Clause 97(7), the questioning could, as the noble Baroness pointed out, exceptionally allow participants to cross-examine where the commission considers that it is necessary to ensure the adequate testing of representations and to allow an interested party a fair chance to put the party’s case. There will be a panel whose job will be to ensure fairness and transparency. It will be on the lookout, on the qui vive, for that fairness to be seen to operate.
Amendment No. 284, in the name of the noble Lord, Lord Dixon-Smith, is about substituting “necessary” with “appropriate”. Amendment No. 283 is about removing “exceptionally”. Both amendments address the basic principle that the panel should test the application by direct questioning and whether that should stand. We have opted for our position because the Bill sets out a way of proceeding for the IPC that aims to probe, test and assess through direct questioning. While we believe that interested parties should be able to cross-examine witnesses in certain circumstances, there needs to be a test of necessity. I hope that we have made full allowance in the Bill for that to be clear to the IPC; where necessary, the IPC should allow the person to have their anxieties and their voice heard properly. That is provided for in relation to the testing of evidence.
Amendment No. 270 on who should be invited to the preliminary hearing requires anyone who commented during the application consultation to be invited. The purpose of the preliminary meeting is to enable those present to make representations as to how the application should be examined and to discuss any other issues that the examining authority wishes. Such meetings have long been held prior to the opening of complex inquiries. Investing time up front is well worth it. The Bill is much about that principle, and I hope that the noble Lord will accept my assurances that the Government have no incentive to short-change anyone.
Clause 86 already requires the examining authority to invite any interested party to a preliminary meeting, including statutory parties, anyone with an interest in the land, or anyone who has made a relevant representation. Clause 54 requires that where the commission accepts an application, the applicant must notify relevant authorities and so on—all the people set out in Clause 55—and has to publicise that. That will ensure that potentially interested parties are made aware that an application has been accepted and that they will have an opportunity to meet the commission at the preliminary meeting about the application.
Amendment No. 291 on people with an interest in land makes the same case. It seeks to ensure that they have a right to participate in the examination as interested parties. In the other place the Minister for local government said that Clause 99 already includes a provision for the Secretary of State to prescribe persons as being statutory parties, who will automatically be interested parties. We intend that persons who have an interest in land which the applicant proposes to acquire should be prescribed as statutory parties for the purposes of regulation under Clause 92.
Amendment No. 274 specifies that examination of an application should also include,
“the carrying out of a site visit”,
as well as the consideration of oral representations. We do not think it appropriate to require that a site visit be carried out in all cases. We are talking, not least, about offshore wind farms here, and I am not sure what the panel would expect. I am sorry that the noble Lord, Lord Reay, is not present. I am sure that we could arrange a visit to an offshore wind farm for him. However, the Bill provides the examining authority with the flexibility to use other methods to support their examination. Nothing rules out a site visit.
Amendment No. 280 states that the deadline for notice of an open-floor hearing must be at least 56 days. We would expect to specify this sort of procedural deadline in regulations and not in primary legislation. That is the standard practice and it means that we can adjust the rules in the light of experience. We will look closely at this issue but I do not think that a deadline of 56 days is necessary. As I have set out elsewhere, because the Bill improves pre-application processes and so on, I do not think that it is realistic to require the commission to give 56 days’ notice. It is simply the deadline for registering the wish to appear before, and give evidence to, the panel.
Amendment No. 275—I am coming to the end—would require the examining authority to publish all written representations. That will be dealt with in regulations under Clause 95. I assure the Committee that we intend that written representations should be made available to interested parties. That is key to the process and we will have to think how best to do that.
The noble Baroness, Lady Hamwee, said that she will not be moving Amendment No. 290. It appears, in any case, to be a stray in this group.
I have rattled through a lot of very important and detailed amendments relating to an important part of the Bill. I hope that noble Lords will feel reassured that we have thought very seriously about the content of the Bill and about what we are trying to achieve. We have provided a lot of opportunity for open and direct representation on the floor through oral representation and, exceptionally, cross-examination, supported by written examination, and we have provided the capacity for the IPC to do an extremely good job in challenging and testing the evidence.
I apologise to the Committee for not having been here for the first part of the debate on this group of amendments. The speed at which the previous three or four groups were dealt with took me by surprise. I am having to wrestle with the Energy Bill as well.
This is a very important issue and I want to make just a couple of points. Noble Lords may remember that when the M11 extension was designed to pass through my former constituency of Wanstead and Woodford in north-east London, there was the most terrible hoo-ha. People from outside who had nothing to do with the constituency formed what they called the “Wanstonia Free State” and tried to take possession of the green in the middle of Wanstead. My own constituents were totally satisfied because the then Government had decided to put a tunnel under part of Wanstead, and they simply wanted them to get on with it. I think that that was a total abuse of the system, with all those people turning up to public inquiry after public inquiry. It is that process that I believe this Bill is intended to prevent.
In contrast to that are the public inquiries that have been held into the extension of Stansted Airport, initially by increasing the number of flights on the existing runway, although I have no doubt that eventually there will be an application for a second runway. It is very difficult to see how you can limit that because all the villages have a direct interest in what is happening. Many of them will expect compensation for injurious affection as well as those who will have their land taken. It seems that somehow the procedure has to draw a distinction between them.
I have studied the Bill and see the various categories 1, 2 and 3, to which I am sure reference has been made, of the people who are entitled to be regarded as “interested parties”—a phrase used by the noble Baroness. There is no definition of interested party as such but there has to be a way of excluding total outsiders from demanding to be heard. I hope that the noble Baroness will confirm that that is what the Bill is seeking to do. That has given rise to so much delay, hassle and legalistic activities on behalf of organisations that represent people all over the country.
I have a lot of sympathy with what the noble Baroness has been saying about all the opportunities for people to have their say before hearings in front of the commission, but I have seen how the existing system can be so grievously abused by people who are making political points rather than challenging the significance of the development in hand. I want to be sure that the Bill will draw the distinction between what I call the Wanstead situation, which was a massive abuse—like the Wantage by-pass—on the one hand, and the Stansted applications on the other. I am not entirely satisfied that that balance has yet been struck.
I am sorry to detain the Committee when it probably wants to shut up shop, but I have to pick up the point made by the noble Lord, Lord Jenkin. It is in the nature of the kinds of projects that are likely to be covered by this Bill that they are of national significance. Although of course predominantly local interests will be engaged on issues such as siting and impact, which are certainly at stake with a project such as the expansion of Stansted Airport, there are wider issues in which people who are not necessarily immediately local to the project have a legitimate interest. I understand the point that the noble Lord makes, but to attempt to restrict the way in which people represent those interests to the commissioners when large infrastructure projects are being discussed is not helpful to the notion of transparency and breadth of interest.
I am grateful to the noble Baroness for that intervention, but much of that will have taken place at the earlier stage when the national planning statements set out the policy. Various procedures set out in the Bill, which we discussed at earlier sittings, give ample opportunity for interests such as the noble Baroness is describing to make their case to the authorities. That is one of the reasons why ultimately it has to be a decision of Parliament to approve the national planning statements. Once you are at the commission taking individual applications, the work that is done through the national planning statement must not be duplicated.
The Minister said that it is a seamless road between the two stages. I have argued the same, but they have their separate functions. We are discussing the second stage—the commission stage. I am not sure that I wholly agree with the noble Baroness who said that the national interests could take part in that.
The Minister has already responded, but I think there will be an opportunity at the next stage to discuss the matters raised by the noble Lord and answered by the noble Baroness. They both made important points about what should happen at what stage. I am rather more towards the noble Baroness on the spectrum.
To pick up what the Minister said, I shall say again that I do not dispute the assurances that she gave, that the Minister with responsibility for local government gave in the Commons and what is stated in the Bill about it being possible for there to be oral representations and cross-examination. The Minister used the term “intimidating” and referred to those with deep pockets having a loud say. That is not the thrust of my amendments, in particular Amendment No. 283 about testing evidence. She said that this comes at the end of the process. That is exactly my point. What will often have to be tested are fact and technical matters. There are grey areas where technicalities may merge from fact into opinion. I am not talking about the eloquence of the arguments but about establishing facts. If all experts agreed—well, it is never going to happen. The Minister referred to guidance. Guidance will not take precedence over the primary legislation, which is why I am so concerned about the term “exceptionally”. To use her language, I am sure that at the next stage we will probe, assess and I suspect test—
I shall reply very briefly to the noble Lord, Lord Jenkin. I have some sympathy with the way the argument has flowed across the Chamber. It is essential that we treat everyone equally in the light of their right to be heard. The IPC will have a means of dealing with vexatious processes, but the noble Lord was right that we expect the national debate by and large to be swept up in the debate on the NPS. What the local application does, in a way that has not been achieved in any of our public inquiry processes so far, is identify the role of the local voice. It gives statutory consultee status to local authorities and makes sure that there is a local impact report. My noble friend is right that these are nationally significant projects, but they will sit in a local community. It is important that that local community feels it owns that process. There is no way that in a democracy one can exclude people from making their voices heard. We have tried to design a process that balances efficiency and rights. Through the pre-application process, the preliminary hearing and the engagement with promoters, we expect local people to have a close and intense engagement. There will be a balance of interests to be served.
In relation to what the noble Baroness, Lady Hamwee, said, I stand by what I said. I think that in a range of ways, not least the ability of the IPC to bring in people, if it so chooses, to do the questioning for it, she is absolutely right, and I would not assume for a moment that anything that I said about the exclusive nature was the thing that she was primarily concerned with. She was concerned, as were the lawyers, about the efficacy of the process and its ability to tease out and challenge the nature of the technical evidence so that the best judgments are made. I believe that the IPC, as it will evolve, will be able to do that in a way that does not exclude people being heard on the floor of the process and does not deliver them into the hands of people who speak for them. People must speak for themselves, ask their own questions and feel that they are in charge of the process in a way that they are not at the moment.
The noble Baroness has dealt with her usual conscientiousness with a difficult area of the Bill. She has been of considerable help, so the debate has been well worth having. I am bound to say that my noble friend Lord Jenkin and the noble Baroness, Lady McIntosh, precisely illustrated the dilemma that we all face at this point. We are having to make a judgment on a new process that we have not seen. The noble Baroness is quite right: it will constrain the content and proceedings of the sort of inquiry that the IPC members will run in the way that it has not previously been constrained by the current planning inquiry system. We need to think quite carefully what we are about.
I was going to apologise to the noble Baroness—who has had to make a quick call elsewhere—for bowling the question of an independent cross-examiner, rather than the commission doing the examination and the risks that that might involve in the increased liability for judicial review. We may run into a barrage of judicial review of the new system. I very much fear that; I think that there are those out there in the great wide world who will want to test the system to destruction, to ensure that it is doing what it is supposed to. The Bill deliberately sets up a new system, so the first batch of commissioners will be somewhat in the position of Dr Livingstone when he was in the darkest and deepest heart of Africa: they will be going where people have not been before. Everyone—we as politicians and those involved in the planning system—will have to learn to make the new system work if and when the Bill becomes law.
This has been a very interesting and useful debate. As I said, in her response, the noble Baroness has given us some help. We will have to go away and study very carefully what she said, compare it with what our advisers are telling us and see how much we want to take further. In the mean time, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 85 agreed to.
Clause 86 [Initial assessment of issues, and preliminary meeting]:
[Amendment No. 270 not moved.]
Clause 86 agreed to.
Clause 87 agreed to.
Clause 88 [Written representations]:
[Amendments Nos. 271 to 275 not moved.]
Clause 88 agreed to.
Clause 89 [Hearings about specific issues]:
[Amendments Nos. 276 and 277 not moved.]
Clause 89 agreed to.
Clause 90 agreed to.
Clause 91 [Open-floor hearings]:
[Amendments Nos. 278 to 280 not moved.]
Clause 91 agreed to.
Clause 92 [Hearings: general provisions]:
[Amendments Nos. 281 to 284 not moved.]
Clause 92 agreed to.
Clause 93 agreed to.
Clause 94 [Representations not made orally may be made in writing]:
[Amendments Nos. 285 to 288 not moved.]
Clause 94 agreed to.
Clause 95 [Procedure rules]:
289: Clause 95, page 49, line 21, after “construction” insert “(other than by a gas transporter)”
On Question, amendment agreed to.
Clause 95, as amended, agreed to.
Clause 96 [Timetable for examining, and reporting on, application]:
[Amendment No. 290 not moved.]
Clause 96 agreed to.
Clauses 97 and 98 agreed to.
Clause 99 [Interpretation of Chapter 4: “interested party” and other expressions]:
[Amendments Nos. 291 to 293 not moved.]
Clause 99 agreed to.
[Amendment No. 293A not moved.]
Clause 100 [Cases where Secretary of State is, and meaning of, decision-maker]:
294: Clause 100, page 51, line 32, leave out from “consent” to end of line 42
The noble Lord said: My amendments are consequential on earlier amendments that we have not yet pressed and which are therefore not part of the Bill, so it is not particularly helpful to refer to them at this time. I do not intend to speak to them in any detail.
Amendment No. 317 would limit the amount of time that we would give the Secretary of State to take a decision after the IPC had made a recommendation. We seek to compare what can be done if we start using parliamentary procedures with what might happen if we finish up in the courts. We can perfectly practically limit the time that we take as politicians and administrators, but there is no way that I know of, or would be prepared to see, of trying in a Act of Parliament to limit the time that the courts might choose to take over an issue. We would be getting on to very improper ground if we did so.
That is the background to this group of amendments, and I do not intend to fill out any more of the detail at this stage. They are self-explanatory, but they depend on other amendments that have not been pressed, so there is no point in spending more time on them and I shall not take the matter any further forward. I beg to move.
Similarly, my Amendments Nos. 295 to 297 relate to matters that have already been discussed. I shall not speak to them and the Minister need not respond to them.
Amendment No. 303 may look as though it relates to the longish debate that we have just had, but it does not quite do so. It probes how the IPC is to take evidence for the purposes of Clause 101(4), (5) and (6), which are about the commission being satisfied that deciding an application in accordance with the relevant national policy statement would lead to the UK being in breach of its international obligations or a statutory duty or be otherwise unlawful. I know that these subsections were inserted after debate in the Commons. I do not challenge the underlying notions, but I am curious as to how the IPC will come to the necessary conclusions. That point applies to Amendments Nos. 303 and 305. My name is to Amendment No. 304 on climate change. I assume that the Government will deal with that when they consider the amendments which were covered in greater detail last week.
Amendments Nos. 306 and 316 challenge the term “both important and”. Amendment No. 306 would apply to Clause 101(2)(d), which refers to,
“matters which the Panel or Council thinks are both important and relevant to its decision”.
Amendment No. 316 would apply to Clause 102(2)(c). The logical sequence is for the IPC to consider the relevance of a matter. In the context of the relevance, it then considers the importance, but that does not need to be said. One clearly has to have regard to the status of a particular issue. To word it this way around—to consider the importance first—is confusing and possibly misleading. It perhaps proposes a way of dealing with things with which I would not agree.
I shall speak to Amendments Nos. 301A and 306A. I do not in any way seek to challenge the importance of national policy statements, but rather to ensure that the provisions already laid out in other detailed planning documentation are also considered by the IPC. As national policy statements will almost certainly be economically focused and demand driven, they could present an unbalanced view. In order to redress that imbalance, I therefore propose that the existing planning policy statements, produced by the Department for Communities and Local Government, and covering such fundamental thematic areas as sustainable development, housing, rural areas and biodiversity, should also be considered a key material consideration for the IPC. As important as the planning statements at national level are the local planning policies in the local development plan covering regional spatial strategy and the local development framework. I am convinced that these should be explicitly part of the Infrastructure Planning Commission’s deliberations.
I shall say again how much I appreciate not only the detailed, full and forthcoming way in which my noble friend always treats observation in Committee, but also deeply appreciate the thorough correspondence which she conducts with us outside. I have noted the reassurance offered by my noble friend in her letter to me that national policy statements may—I emphasise the word “may”—also need to be reflected in planning policy statements and guidance where relevant and appropriate.
I hope my noble friend will forgive me if I say that I am not altogether reassured by what she said in her letter. It seems to be the wrong way around. My intention is to ensure that the Infrastructure Planning Commission takes into consideration these other important documents, which I do not believe is required under Clause 101. I suggest that by adopting my amendment the Government will ensure that the IPC considers all relevant planning documentation and not just the national policy statements in isolation.
Amendment No. 302 takes a little further some arguments that I expressed in earlier debates in Committee. It tries to sharpen up that argument and to underline what the noble Lord, Lord Judd, and the noble Baroness, Lady Hamwee, suggested in their contributions. We are dealing with the decision-making process and the elements that need to be brought in. If the Bill draftsmen had also been working on the Climate Change Bill, for example, they would have wanted to include the new paragraph proposed in my amendment. It talks about,
“the desirability of contributing to the mitigation of, and adaptation to climate change”.
I notice that the same wording is used in another amendment in this group which was tabled by the right reverend prelate the Bishop of Liverpool and the noble Baroness, Lady Hamwee, and others.
Other policies should also be considered and could form quite an important aspect of the utility of this Bill. Indeed, some of what Governments will seek to achieve in the use of the new authority will contribute to the,
“mitigation of, and adaptation to climate change”.
Surely those factors should be specified in the Bill as forming part of the decision-making process.
The other amendments refer specifically to national policy in terms of land-based development plans and to marine policy and marine plans which are consequent on the forthcoming Marine Bill—and here I am back on the track which I have bored the Committee with before. However, I hope that I am being consistent in trying to bring these aspects together for the usefulness of the Bill in achieving the Government’s objectives and in order to ensure that the rather nebulous statement set out in paragraph (c) is replaced with something a little more specific.
I am grateful for the way in which noble Lords have introduced these very specific amendments. Noble Lords are essentially seeking various assurances. My noble friend Lord Judd seeks assurance on the primacy of the NPS. The noble Lord, Lord Taylor of Holbeach, seeks reassurance that the NSIPs processes will be consistent with local planning provisions and other aspects of wider policy such as marine plans and will contribute to the,
“mitigation of, and adaptation to climate change”,
and address matters such as health and well-being, the environment and so on.
It is an interesting group of amendments. Perhaps I may deal first with Amendment No. 306A, which seeks to remove the requirement that the commission should decide an application in accordance with any NPS. This goes to the heart of what we are trying to do in the NPS. It would remove the ground for the commission to take a decision that is not in accord with the NPS. I do not want to have a rerun of the long debate we had at the start of Committee. Instead, I can reiterate the fact that this is not acceptable because NPSs will be the primary factor for IPC decisions in the new single consent regime. They will set out clearly our national policy on and national need for infrastructure, but only after they have been consulted on and scrutinised by Parliament.
However, it is clear that Clause 101 also provides that the NPS will not be the only factor. Earlier today we talked about how the IPC must also have regard to the local impacts report from the local authority, to other matters which may be set out in secondary legislation and to any other issues that the commission thinks are important and relevant. Even where the application is in accordance with the NPS, the IPC could well, as we know, decide that a particular application for a proposed project was not appropriate because it would be unlawful or would result in the UK being in breach of a duty imposed on it by or under any enactment.
I should tell the noble Lord, Lord Taylor, that we intend that among the matters we will prescribe is that the IPC would need to have regard to relevant marine plans and the marine policy statement. He has indeed been extremely consistent and relentless on this matter. I hope that by answering him in this context, he will take what I said earlier as a fuller explanation of how we intend to respond.
I turn now to the other amendments to Clauses 101 and 102 which would add further factors for the IPC to consider in determining applications, an example of which would be climate change. Clause 10 requires the relevant Secretary of State when preparing national policy statements to do so with the objective of contributing to the achievement of sustainable development, which of course would include climate change objectives. The NPS stage is the right place to do that job. It should not be for the IPC to reach those judgments, for the reasons that we set out in our earlier debates.
On Amendment No. 301A, in the name of my noble friend Lord Judd, I take the point entirely. I understand exactly what he is aiming at. However, I cannot say more than I said in my letter to him—which is that national policy statements will also incorporate planning policy where it is relevant. If we were to do what he wants and add them into the decision framework in the way proposed, we would essentially be duplicating their role. We would be confusing matters rather than clarifying what we expect the NPS to deliver in the way it relates to the planning framework as a whole. We are trying to achieve clarity and comprehensiveness in the NPSs, and this is the way to do it.
I listened to what the Minister said a few hours ago on a similar subject that I had raised and I thought that we were getting somewhere; she now seems to be retreating back to prepared positions. Are we not in a situation where the national policy statement will define broad national strategies and some other matters, but many other peripheral, detailed and consequential matters will have to derive from the local development plan and from the other planning policy statements? I thought we had established earlier that it was an interesting issue and that the Minister would write to us to clarify it.
I am certainly going to write to the noble Lord about it. But, as he knows, the national policy statement is the prime point. It will take into account the planning policy statements that are relevant to a particular NPS, and the rest of the planning framework for regional and spatial plans—the local development framework—will reflect the national policy statement. It will not be the other way round. The planning frameworks will have to reflect the priorities of the national policy statement. Perhaps I did not make myself clear the first time round.
I do not want it thought that I am trying to cross-examine the Minister. We all understand that the national policy statements and the planning policy statements at national level will have to be in accordance with each other, and the ones at regional and local levels will have to be in accordance with the national statements. Whether or not we agree with it, we all understand how the system will work. But many other issues will be dealt with when the applications for development consent are made but are not in the national policy statement because they are not relevant there, because they are too detailed or too local. I do not know how big the national policy statements will be, but if they are going to cover everything on development, they will be a foot thick. Presumably they will be as concise and understandable as possible while putting forward the overall national strategies, and a great deal of the rest of a planning application will be based on regional and local issues and the local development plan. That is the point that I am making. I cannot speak for the noble Lord, Lord Judd.
Nothing divides us on this—the noble Lord is absolutely right. That is one of the reasons for having a local impact policy. It helps to explain how the local development framework will be reflected in the effects of the planning application. I am beginning to be rather incoherent at this time of night, but I shall look in the report to see whether what I have said makes sense. However, I promise to write a letter that will leave no one in any doubt about how this will all fit together.
As to local development documents, relevant local authorities and other planning authorities will be consulted by the promoter of a project under the provisions of Part 5, which we have already debated. There is no way that that will not have made it clear how the proposal relates to the local development plan. In addition, we have talked about the promoter consulting local communities and demonstrating how he has made responses to the consultation. I have referred again to the local impact report, which will evaluate how the proposal fits in with their development plans and the views of their residents.
I have addressed the point about marine policy and plans, albeit rather briefly. I turn to the tiny raft of amendments covering health and well-being, and the environment, including biodiversity and natural resources. I have sympathy with what noble Lords are trying to achieve through the second part of Amendment No. 313A. All the elements are identified as important factors that need to be taken into account. I hope that what I have said so far reassures noble Lords that in the alignment of policy, these issues will be given proper consideration. The NPSs will take into account all relevant policy and set out the particular impacts that it is important for the IPC to take into account. That will ensure that the issues are given proper weight.
Let me turn to the issue of “material considerations” versus “important and relevant”. I take the noble Baroness’s point that the wording should read “relevant and important” and I will consider that. Amendment No. 302 seeks to introduce the concept of material consideration, which comes from town and country planning, into the decision test. I should like to consider that, along with Amendments Nos. 306 and 316, which seek to remove the requirement that in order for a relevant matter to be something to which the decision maker should have regard, it must also be thought to be important. There is a considerable amount of case law on the meaning of “material consideration” because the term has often been misunderstood and has hindered rather than assisted effective decision-taking. It is precisely because we have tried in the decision test not to import that sort of confusing legalistic language that we have replaced it with clearer language about importance and relevance. I think it is better that we do not simply replicate the existing language.
On Amendments Nos. 303 and 315 dealing with written and oral representations, a distinction needs to be made between ensuring that the commission examines and considers all the evidence before it and taking into account what is relevant to the decision. That is a basic distinction and a basic function, and it is what we have tried to achieve. The commission will have to examine and give proper consideration to all the evidence it receives by way of both written and oral representation, obviously excepting representations that it thinks are vexatious or frivolous. But the decision test is a different issue. We want to ensure that it is indeed based on criteria of importance and relevance. I hope that noble Lords will accept that justification.
Finally, Amendments Nos. 317 and 319 seek to reduce the timetable. We all share the noble Lord’s concern that these very important and complex decisions are taken in a timely and efficient manner and think that three months is an appropriate period of time in which to secure that outcome. The other amendments are consequential on that. I know that that is a disappointing response, but I think we have allowed for an appropriate length of time.
I am not at all sure, given our behaviour on this Bill, that we are in a position to advise anybody on timetables. I am extremely grateful to the noble Baroness for the detail of her reply. Once again, all those who tabled amendments in this group—I had a very small part in the proceedings—will study what the noble Baroness said and what it means, in addition to the first impression we take away with us. When we have done that, we may want to pursue some of these matters further. For now, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 295 to 299 not moved.]
Clause 100 agreed to.
Clause 101 [Decisions of Panel and Council]:
[Amendments Nos. 300 to 313A not moved.]
Clause 101 agreed to.
Clause 102 [Decisions of Secretary of State]:
[Amendments Nos. 314 to 317 not moved.]
Clause 102 agreed to.
Clause 103 agreed to.
Clause 104 [Timetable for decisions]:
[Amendments Nos. 318 to 326 not moved.]
Clause 104 agreed to.
Clause 105 [Suspension during review of national policy statement]:
327: Clause 105, page 54, line 15, leave out from “that” to first “the” in line 17
The noble Baroness said: I cannot speak as fast as others in this Chamber, but I shall endeavour to be brief. Amendment No. 327 deals with the provision in Clause 105 whereby, if the Secretary of State thinks that circumstances have changed since the publication of a national policy statement and that the statement should be reviewed, he can direct suspension of examination or decision. The amendment questions whether this is relevant to a change of government, to which my noble friend referred on our last day in Committee. Circumstances that might have changed include a change of government. The Bill should state simply that,
“the Secretary of State thinks that … the statement should be reviewed”.
I hope that the Minister can assist me.
Amendments Nos. 331 and 332 are to the provision whereby the Secretary of State must have regard to the views of the commission in deciding certain tests for intervention, one of which, in Clause 106(2)(e), is,
“an urgent need in the national interest for the application to be decided before the national policy statement is reviewed”.
I question whether the commission should have a role in that. The Government might want to hear the views of the commission, but requiring them in statute to do so—this is probably opposite to the way in which I often argue—gives the commission inappropriate status in the process. I beg to move.
We oppose the clause standing part of the Bill, but only, I hasten to add, in a probing way. The clause raises a number of questions and I would be grateful if the Minister could develop how it would work in practice.
I have four points. First, presumably work in progress for all other applications using the same national policy statement would also stop during this suspension. Secondly, how does this review take place? I looked back to our earlier discussions on Clause 6, which deals with review. Clause 6 describes what happens and how the review is conducted, but only when the national policy statement is being amended, not withdrawn. Clause 105 seems to be talking about withdrawing the statement for some period because there has been a change of circumstance. The noble Baroness, Lady Hamwee, gave the example of a change of government, which may well mean that there is a fundamental policy change. Presumably the whole process then has to start again with consultation, compliance with directives, sustainable development requirements and parliamentary requirements. They would all have to be done again because there had been such fundamental change. I would like confirmation from the Minister on that. Thirdly, presumably the applicant then has to resubmit or rethink completely his application in the light of the new national policy statement, at some cost to himself. Fourthly, what timescales are envisaged from suspension to completion? Are we talking months or years?
This is a good point at which to finish our deliberations today. I am grateful for the support of the whole Committee in helping us to reach this point. The group contains important government amendments. I will speak to government Amendments Nos. 333, 335 and 452 and the opposition amendments at the same time.
In the Bill, the Government have made every effort to listen to concerns that have been put to us and to accommodate other views where we can. Throughout this process, there has been strong public engagement. I am sure that noble Lords know that the Bill has been substantially changed since it was introduced into the other place in November. There are strong concerns in both Houses about the fact that decisions about nationally significant infrastructure projects should be taken by an independent body—the IPC.
The Government held extensive discussions on these concerns and took various steps to address them. One of the main concerns was that the Bill did not provide for a safety valve if the system was not working. As such, my right honourable friend the Secretary of State made a commitment at Report stage in the other place that the Government would carry out a review of how the IPC was working two years after it accepted its first application. That is a sensible benchmark. The Government also agreed to table amendments to the Bill in this House so that, if the review revealed problems, the grounds on which Ministers can intervene in applications made to the IPC and take the decisions themselves could be extended. My Amendments Nos. 333, 335 and 452 meet that commitment.
Noble Lords will know from our debates that the Bill already provides Ministers with a power of intervention at Clause 108. As set out in detail at Clause 106, the Secretary of State may intervene to decide an application in place of the commission if she considers that there has been a “significant change” in the circumstances on the basis of which the policy in a relevant national policy statement was decided.
There follows in that clause a logical sequence of tests to be met in determining whether something constitutes a “significant change”. The change must not have been anticipated at that time; it must be such that, had it been anticipated it would have meant that the policy would have been materially different and therefore the difference would have been likely to have a material effect on the commission’s decision on the application. In addition, there must be an urgent need, in the national interest, for the application to be decided before the national policy statement can be reviewed. Clause 107 also allows Ministers to use the power of intervention where they consider that it would be in the interests of the defence of national security; for example, where the siting of a project could compromise a military installation.
Where the tests are met, Ministers can intervene in cases and take decisions themselves. That means that there is already limited provision for a safety valve in the Bill, allowing Ministers to intervene in applications made to the IPC to take decisions themselves. Our Amendment No. 333 provides the Secretary of State with a power to prescribe further grounds on which the Secretary of State can intervene under Clause 108. Amendment No. 335 is consequential on this, to ensure that the link between the new clause and Clause 108 is more explicit, and Amendment No. 452 provides that the use of that power must be subject to the affirmative resolution procedure. I am sure that the Committee will welcome that.
The use of this power will be considered only if, after the two-year review has been completed, there is evidence that the IPC is not working as intended. We believe that, because of the robust framework provided by the Bill and the policy framework, the IPC will work well. However, if the review were to reveal problems and the Government decided that it was necessary to prescribe further grounds on which the Secretary of State could intervene under Clause 108, this power would enable us to act.
Were the Government to prescribe further grounds on which the Secretary of State could intervene, the effect of an intervention would be the same as for interventions made pursuant to Clauses 106 or 107. The Secretary of State would be able to direct that the application in question is referred to them. Under Clause 109, the Secretary of State would have the function of examining and deciding the application and would have the ability to direct the IPC to examine specified matters. It would also continue to be subject to the same requirements as interventions made on the basis of Clauses 106 or 107. It will need to be made within four weeks from the date of the preliminary meeting, unless there are exceptional circumstances justifying a later intervention.
Should the proposed review of the IPC reveal problems with the way it is working, these amendments will provide the safety valve sought by some noble Lords and others; I therefore commend them to the House.
The noble Earl, Lord Cathcart, asked whether all work on related policy would stop because the review was carrying on. The answer is no. I am limited in what I can say because, by definition, it is a hypothetical situation. A review would take as long as it does now, but obviously we would try to do it as expeditiously as possible.
If I can backtrack, was the noble Earl asking me about the review of a national policy statement?
In that case, I beg his pardon; I shall reframe my answer.
If the NPS has to be reviewed, clearly it would take as long as required, although we would try to do it quickly. The extent of the review would depend on the way in which the NPS was perceived as being out of date. One would have to judge the scope of the challenge in front of the NPS review.
Following the review, the Secretary of State has some choices. She can amend, withdraw or leave the statement as it was, depending on the findings of the review. If she amended the NPS, an assessment of sustainability would have to be carried out, and there would have to be consultation and parliamentary scrutiny, unless the amendment did not materially affect the policy. There is a proper procedure, which is understood, on what reviews will involve. I hope that I have answered most of these questions; if not, perhaps the noble Earl can tell me and I shall write to him.
On Amendment No. 327 and the stand part debate, the noble Baroness, Lady Hamwee, tabled a number of amendments. I have described the power of intervention set out in Clauses 105 and 106. I hope that saying a little more about the power of intervention set out in Clause 105 will address the concerns of Members of the Committee before I move on to Amendment No. 327.
Clause 105 provides that if the Secretary of State considers it necessary to review an NPS, the commission can then be directed by her to suspend its consideration of the application until the review has been completed. As I said in response to the noble Earl, that power might be used if the Secretary of State considered the NPS to be out of date, and so on. The clause is necessary to ensure that the Secretary of State has an option short of intervening. We have two clauses doing slightly different things to allow the Secretary of State, when there is a significant change in circumstances, to take the decision herself. Clause 105 gives her the other option of being able to require a review. As I explained, there is some room for manoeuvre. That means that there is some scope for proper judgment on the degree of urgency, and the tests set out in Clause 106 are clear on that.
Amendment No. 327 would expand the circumstances in which the Secretary of State can suspend the examination. The effect would be to give Ministers the right to suspend examination of, and a decision on, an application if they considered that the NPS should be reviewed before the application is decided, regardless of any change in circumstances. The noble Baroness, Lady Hamwee, essentially asked me what “change in circumstances” means. It does indeed cover a change in Government. It would cover, for example, changes to the evidence on the basis of which the policy was developed—such as a change in oil prices meaning that we would have to revise our air passenger projections. The change could be driven by a European directive. It can cover a wide range of political and other circumstances.
We are after providing a stable, long-term framework for planning and investment. We are not in the habit of making decisions on a whim. In the context of NPSs, which are supposed to be long term and robust, the phrase “a change of circumstances” is reasonable and not unduly restrictive.
In Clause 106, Amendments Nos. 331 and 332 would require that the Secretary of State would no longer have regard to the views of the commission when deciding whether there is an urgent need in the national interest for an application to be decided. I understand the noble Baroness’s concerns here, but it is important that the Secretary of State listens to the views of the commission when determining whether there is a genuinely urgent need to decide an application. An element of that urgency is bound to spring from the nature of the project, and the IPC, knowing the project, will be in a unique position to advise on it. That is why we have provided subsection (3).
The cumulative effect of Amendments Nos. 327, 331 and 332 is to broaden the way in which Ministers could suspend the NPS to intervene in an application and direct the IPC to examine the application and prepare a report. However, the Bill already strikes the right balance between preserving the independence of the IPC and ensuring that appropriate safeguards exist.
In summary, the Bill provides Ministers with a power to suspend an application before the IPC and, in a limited number of circumstances, to intervene and take the decision on the application in place of the IPC, but attaches clear conditions to that. I hope that, on the basis of that explanation, Members of the Committee will be able to withdraw their amendments.
I listened with care to the noble Baroness’s comments on this amendment as the noble Baroness, Lady Hamwee, got me going on general elections again, which we have discussed previously. If a national policy statement can be changed as a result of a general election, the stable, long-term trends in planning decision-making which the Minister wants will be put at severe risk. I refer again to the 1997 decision on the M40 in this regard. Much discussion and consultation will have taken place on such a project and the national policy statement will have been produced. The relevant Secretary of State makes a decision that it will go ahead. However, if there is a general election six months later, the incoming Secretary of State may change the whole policy. Therefore, the national policy statement is not the effective instrument that we all hoped it might be.
We had a brief exchange on this matter on Tuesday. The point the noble Earl makes needs to be set in the context of how the NPSs will be constructed. They are not political documents. For example, they forecast our future energy needs, where we will need to obtain it from and how we will need to store it and plan for energy diversification on the basis of the best available evidence and intelligence. A change in government comes under the heading of changes in circumstances, and it would be illogical if it did not. Nevertheless, the NPS will have sturdy foundations. You cannot change demography or geology. We will be dealing with some very fixed imperatives. Although I take the noble Earl’s point, the NPS will be devised and driven by what we all know needs to be done in the country’s interests on the basis of the best technical, scientific, economic and social evidence. As I say, we cannot change our demography. We cannot change our need for electricity and water. I am sure that any Government would study carefully and sensibly what the NPS advises.
I hesitate to intervene but we are raking over precisely the ground that we discussed on Tuesday, as the noble Baroness said. I do not think that we should take the matter any further tonight, but it would be wise for us to recognise that the existing limitations on the process give rise to the sort of concerns that my noble friend expressed. The noble Baroness, Lady Hamwee, inadvertently initiated his nightmares. The Minister is right that these national policy statements need to be more than just political statements. However, we need to face the fact that if we want that to be the case, the existing process may not be sufficient to achieve it.
As regards Amendments Nos. 331 and 332, I was not suggesting that the Secretary of State should not involve the IPC when she thinks that is appropriate. However, I question its role as it is presented. As regards government Amendment No. 333, it had not occurred to me that “other circumstances” was code for the two-year review. The purpose of the review is to assess whether we got it right or wrong. That is not a change in circumstances; it is a change in judgment. I may want to return to that, but I will certainly not pursue it tonight.
The noble Baroness asked whether I would withdraw my amendment, but my noble friend is mischief making. I know that he has a train to catch, so he would not really thank me if I did pursue it tonight. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 328 to 330 not moved.]
Clause 105 agreed to.
Clause 106 [Intervention: significant change in circumstances]:
[Amendments Nos. 331 and 332 not moved.]
Clause 106 agreed to.
Clause 107 agreed to.
333: After Clause 107, insert the following new Clause—
“Intervention: other circumstances
The Secretary of State may by order specify other circumstances in which section 108 is to apply in relation to an application for an order granting development consent.”
On Question, amendment agreed to.
[Amendment No. 334 not moved.]
Clause 108 [Power of Secretary of State to intervene]:
335: Clause 108, page 55, line 18, after “applies” insert “in relation to an application for an order granting development consent”
On Question, amendment agreed to.
Clause 108, as amended, agreed to.
Clause 109 agreed to.
Schedule 3 [Examination of applications by Secretary of State]:
336: Schedule 3, page 158, line 36, after “construction” insert “(other than by a gas transporter)”
On Question, amendment agreed to.
Schedule 3, as amended, agreed to.
Clause 110 agreed to.