My Lords, I beg to move that the Bill be now further considered on Report.
Moved accordingly, and, on Question, Motion agreed to.
Clause 12 [Pre-commencement statements of policy, consultation etc.]:
moved Amendment No. 42:
42: Clause 12, page 6, line 17, after “may” insert “exercise the power conferred by section 5(1) to”
The noble Lord said: My Lords, Amendments Nos. 42 to 46 directly respond to the views and concerns expressed by noble Lords opposite in Committee on the issue of pre-commencement statements of policy and whether they could be designated as national policy statements once this Bill becomes law. There was particular concern that no proposal should go to the IPC on the basis of a national policy statement that failed to take account of significant changes of circumstance since the policy was issued, where that circumstance was both unanticipated and not properly provided for.
The noble Lord, Lord Jenkin, in introducing his amendments during the Committee stage, was concerned that the Secretary of State might,
“designate existing policy statements, however old they may be, as national policy statements without the need for further appraisal”.—[Official Report, 14/10/08; col. 617.]
The noble Earl, Lord Cathcart, likewise worried that Clause 12 suggested that the Secretary of State could,
“dust down an old policy, regardless of how old it is or whether any or all of the correct procedures and legislation have been complied with”.—[Official Report, 14/10/08; col. 618.]
The noble Lord, Lord Tyler, was concerned that Clause 12 could,
“introduce an element of retrospective legislation”.—[Official Report, 14/10/08; col. 623.]
We have given a good deal of consideration to these concerns. I know that they were particularly felt in relation to the air transport White Paper, which is why I have personally been engaged with the issue and am speaking to these amendments on behalf of the Government.
Accordingly, government Amendments Nos. 42 to 45 seek to clarify that where the Secretary of State wishes to use existing statements of policy or work that was done for the purpose of existing statements of policy, the standards set out in the Bill still apply. All national policy statements, including those designated under Clause 12, must meet the standards for appraisal of sustainability, public consultation and parliamentary scrutiny. The Secretary of State will not be able, in the words of the noble Earl, simply to dust off an existing policy statement and designate it as a national policy statement for the purposes of this Bill without meeting the requirements set out in these new provisions. Furthermore, where the Secretary of State comes to designate a national policy statement under Part 2, the Secretary of State will have to ensure that this complies with the UK’s obligations under Community law and other relevant legal frameworks.
However, having proposed these changes to meet the concerns of the House, we continue to stand by Clause 12 and seek the support of the House in so doing. In some cases, considerable technical, scientific and public consultation work has already been undertaken in the context of pre-commencement statements of policy, as well as work which continues to have relevance to the nation’s current and future circumstances. We believe that in these cases it would be not merely foolish but extremely wasteful of public resources to throw away all the work which has gone into existing policy statements and start again from scratch. It would also generate significant and unnecessary uncertainty for business, causing economic damage.
Our amendments accordingly make it clear that the Secretary of State can take into account the work that has already been done towards pre-commencement statements of policy in order to build up new national policy statements. I should add that further work may well be necessary to ensure that new national policy statements meet the tests laid out in this Bill. There will be a new appraisal of sustainability for every national policy statement. The Secretary of State will also have to satisfy himself that consultation on a national policy statement meets the standards for consultation, even where some prior consultation has been taken into account. This might require additional national-level consultation to be undertaken over and above that done at the local level for previous policy statements.
I believe that the amendments strike a sensible and effective balance on this issue and show that the Government have been listening to the concerns of the House. I commend these provisions and I beg to move.
My Lords, the cornerstone of this Bill is the national policy statements and the robust processes that each statement must go through before it can be designated as a national policy statement. There are strict processes regarding consultation and publicity, and the noble Baroness has said,
“we want there to be a proper national debate”,—[Official Report, 15/7/08; col. 1163.]
strict processes regarding parliamentary requirements, appraisals of sustainability and compliance with all existing legislation, both UK and European. All this is excellent stuff until we get to Clause 12, where it is quite extraordinary that the Government can just dust down policies regardless of how old they are or whether they are able to meet the correct procedures. Like other noble Lords, I agree that if opponents to a national policy statement felt that the Government had cut corners or had not followed the strict processes set out in the Bill, there would be legal challenges not only in the UK but in the European courts. This would bog down and delay the process of speeding up planning decisions, which is one of the core aims of the Bill.
Amendment No. 46 seeks to leave out Clause 12. Before noble Lords opposite get too exercised, it is a probing amendment in the hope that the noble Lord, Lord Adonis, will clarify one or two issues, if he has not already done so. If Clause 12 were removed, all national policy statements would have to go through all the rigorous processes from scratch. Some would argue that that is exactly what should happen. However, the noble Baroness, Lady Andrews, argued in Committee—and the noble Lord, Lord Adonis, has just repeated it—that that would be absurd when certain processes had already been carried out. She referred to Clause 12 ensuring that:
“Ministers can take on board all the good work, the analysis, the evidence and the judgments that have gone into making current policy sound … It is not sensible to throw that work away. We cannot start from scratch. It would be completely ridiculous to do that”.—[Official Report, 14/10/08; col. 624.]
I totally agree with her, provided that the previous processes had been conducted according to the high standards set out in the Bill as though it had been started from scratch.
Since the Committee stage, the noble Baroness, Lady Andrews, has listened to the concerns expressed by noble Lords around the House and I would like to put on record our thanks to her and her team for coming back on Report with these government amendments which seek to make the process more watertight.
The Minister also wrote a letter explaining the aims of the government amendments which have been so ably spoken to by the noble Lord, Lord Adonis—namely, first, to make it explicit that all national policy statements have to meet the tests set out in the Bill for consultation, parliamentary scrutiny and appraisal of sustainability; secondly, that parliamentary scrutiny of each draft national policy statement will start from scratch; and, thirdly, to ensure that no national policy statement will be designated where there has been a significant change in circumstances that was not anticipated at the time and, had it been, would have meant that the policy would have been materially different.
I thank the noble Lord, Lord Adonis, for putting on record the Government’s thinking in these areas, but I would like to delve a little deeper. In Committee, a number of noble Lords, including me, used the air transport White Paper 2003 as our template for this clause. Although the Government’s policy for air transport is no skin off my nose, one way or another it affects tens, if not hundreds of thousands of people and organisations who live and work around Heathrow and Stansted airports. If an air transport NPS were carried out today from scratch, the consultation process would, as the Secretary of State, Hazel Blears, said in another place,
“be subject to debate across the country”.—[Official Report, Commons, 10/12/07; col. 29.]
The noble Lord, Lord Adonis, said that where the consultation had been only localised, it would have to go out again for national debate. Perhaps the Minister can clarify whether that means the consultation on the air transport White Paper. Given the perceived imperfections of the consultation process relating to the air transport White Paper, I would like to know where the Government stand on this. If they get it wrong, no doubt there will be numerous legal challenges that will delay the whole process, which we would all prefer to avoid.
Will the Minister confirm that the White Paper, or any other dusted-down old policy, will have to be subject to all the subsequent legislation—specifically, the strategic environment assessment and the habitats directive? If I heard him correctly, he said that they would have to be.
What does the Minister envisage would happen, once the Secretary of State had responded to recommendations by Parliament, if the Secretary of State did not follow and act on the recommendations that Parliament had proposed? Parliament might say that a process had been inadequate and the Secretary of State might respond that no further action would be forthcoming. Does the Minister feel that, by doing that, the Secretary of State would leave herself open to legal challenges?
The Minister said that he wishes to ensure that no national policy statement will be designated where there has been a significant change in circumstances that was not anticipated at the time. Again using the air transport White Paper as a template, does the Minister feel that the following subsequent changes are sufficient for the Government to look again at the issue?
First, in the new Acts and directives that I have referred to, and now in the Climate Change Bill, it seems increasingly difficult to reconcile the policy set down in the White Paper with the wider UK policy context for addressing the problems of climate change. We heard in the first Question earlier today about the problems with aviation and climate change.
Secondly, the structure of the UK airports market will soon be significantly changed, now that the Competition Commission has called for the BAA monopoly to be broken up. If London’s three main airports are to be separately owned, it would seem entirely wrong for the Government to predetermine, in advance of any planning applications, which ones should be allowed new runways and on what timescale. This may be why the Competition Commission has been critical of the prescriptive nature of the air transport White Paper.
Thirdly, the recent dramatic change in the global economic climate requires the air transport White Paper’s demand for protections for air travel, based on forecasts produced in May 2000, to be reassessed. No one can now seriously believe that we are still in a business-as-usual situation regarding future growth in the market for air travel.
Fourthly, the Government’s own Sustainable Development Commission has called for an independent review of the evidence base underpinning the air transport White Paper, but the Government amendment says that subsection (1) does not apply to the pre-commencement statement if the Secretary of State thinks—I emphasise that—that there has been a significant change in any circumstances. Here there seems to be ample wriggle room for the Government. Who would be advising the Secretary of State that there had been a sufficient change of circumstances? Would it be the parliamentary scrutiny committee looking at national policy statements, would it be the IPC or would it be by weight of representation from individuals and other bodies? Does the Secretary of State have to listen? What would happen if she did not? Would she lay herself open to legal proceedings, which is something that we all want to avoid?
I apologise for taking up so much of the House’s time, but we must get the whole business of pre-commencement statements right lest we lay ourselves open to a plethora of legal proceedings and delays.
My Lords, following discussions last week and in Committee, I formed the impression that the Government had not really understood the extent to which these national policy statements are a departure from where we are now. The statements will rule the decisions of the IPC and give those decisions the authority needed to expedite these essential, but nevertheless locally unpopular, infrastructure projects.
During our debate on Clause 12 in Committee, the Minister said that there was no intention to avoid the high standards of consultation and sustainability implicit in the Bill and that Clause 12 would ensure that a Minister would have to take into account consultation carried out before the commencement of the Bill. She even said how thorough the consultation on the air transport White Paper had been. To me, however, that misses the whole point of the national policy statements.
As I said, I do not think that the Government quite realise what a departure NPSs are from what we have now. They will authorise, empower and arm the IPC with the authority to carry out the will of Parliament without challenge. The Government appear to miss the point that, unless the previous consultation on these previous White Papers or planning guidelines expressly stipulated that they were going to dictate the decisions of the IPC, that consultation is invalid as far as the new process is concerned.
To be honest, I am not so concerned about the people or the NGOs that might have taken part in the process of consultation. It is more a question of the ordinary people, or their representatives, who would not normally have involved themselves in national policy guidelines, which are usually drafted within departments, behind closed doors. This is not something that normally features on people’s radar but suddenly they will find the rules being changed at half-time. These national policy statements will dictate the decisions of the IPC which could dramatically affect ordinary people throughout the country.
No one expects the Government to start with a blank sheet of paper, as the Minister said. I do not mind if they cut and paste whole chunks of previous statements, guidelines or White Papers, or maybe even all of them, as a starting point. That would probably make sense. They should also look again at all the previous consultation to see what really appeared to matter to people. That, again, would make sense. However, the national policy statements are different: they will focus people’s minds as they have never been focused before. To my way of thinking, it would be underhand to assume that any previous consultation in what were completely different circumstances amounted to more than a row of beans when it came to controlling the decisions of and giving authority to the IPC.
As many of us have said before, national policy statements are what make the Bill work. They are new, they are different and, in my view, therefore, this clause is redundant. Even if the Government do not agree, I hope that they will accept that whatever past policy is used in this way, it will at least ensure that a new consultation process is implemented.
My Lords, the noble Lord, Lord Cameron, has put very adeptly the concerns that we on these Benches have. I would like to ask the Minister one question about the wording of Amendment No. 44. The proposed new subsection says:
“The Secretary of State may take account of appraisal”,
previously carried out. It refers not to “appraisals” or “an appraisal”. I think that “appraisal” here means something slightly different from where it is used in Clause 5(3). This goes absolutely to the validity of the appraisal—in other words, whether there has been consultation. Can there be consultation on appraisal used in its normal sense, over a much wider area, not a discrete piece of work? This may seem a tiny point, but I believe that “appraisal” means something rather different from a specific appraisal on specific policy, a specific White Paper or possibly a series of appraisals on specific policies that will have alerted the public, as the noble Lord, Lord Cameron, said, to their importance and relevance for national policy statements.
My Lords, the noble Lord, Lord Cameron of Dillington, eloquently said almost exactly what I would have said. However, I will add one point. The pre-commencement statements were made with an entirely different purpose from that which this Bill is now enshrining in the national policy statements. They were, for instance, available to local planning authorities and to the Secretary of State, if he or she had to decide an appeal. The national policy statements are, by contrast, directed almost wholly to the Infrastructure Planning Commission. Indeed, the whole of that part of the Bill has been drawn up so as to make sure that the national policy statement is in a form fit to go before the IPC, after it has gone through all the processes, notably of consultation, local inquiry and parliamentary scrutiny. It is, therefore, for the IPC to determine any particular planning application made to it and then to decide on that application in the light of the NPS. I am sorry if I merely paraphrase what others have said.
The pre-commencement statements, of course, vary hugely in their degree of detail, in the amount of consultation undertaken and in the importance that was to be attached to them when issued. I know that it is not now parliamentary to break into Latin phrases, but the lawyers would have said that they were prepared alio intuitu—with another intention. What has aroused the alarm not only here but in another place is that those statements will, in a sense, be taken as substituting for the quite elaborate procedure that the Bill sets out for approving the policy statement.
I recognise at once that the noble Lord, Lord Adonis, and the Government have sought to allay such anxieties. However, I remain anxious, for there is scope in how the Bill is now drawn—with these amendments, if they are now accepted—for the Government to cut corners by taking an existing planning policy statement and elevating it to the status of a national policy statement. That, to my mind, is the mischief in this clause.
One has dealt with these statements before: the noble Baroness, Lady Andrews, will recall our arguments about underground gas storage proposals, where my complaint was that, when her department ultimately issued its decision, Mr Darling’s statement of policy was reduced to one sentence. It is inconceivable that the commission would, when considering a particular application, reduce a national policy statement to one sentence.
I have been told that one of the first new NPSs that the Department of Energy and Climate Change is seeking to draft will deal with the underground storage of gas. Therefore, that particular one is starting anew. One is not expecting simply to start, as the noble Lord, Lord Cameron, said, with a tabula—I am sorry, I must not use Latin again—that is, with a clean sheet of paper. Of course, the department will take what has been said before as the basis for the statement, but it has to comply with the full and rigorous procedure that we have put into the Bill about parliamentary scrutiny and all the rest of it. It is not enough merely to say that the sustainability criterion must be added; much more than that will be needed.
I have not combed past planning decisions to see what previous decisions were, but noble Lords in all parts of the House have expressed huge anxiety about the aviation White Paper turning itself into a national policy statement. If ever a paper was directed to an entirely different purpose than the one that we will have for national policy statements, that was it. The noble Lord, Lord Adonis, and his colleagues will have to make some decisions on that White Paper. What about new circumstances? The noble Lord gave an extremely interesting interview to the Times a few days ago, in which he declared his passion for high-speed rail. That echoed what my honourable friends in another place said when they addressed the conference in Birmingham; they thought that high-speed rail would be a much better alternative than having large numbers of short internal flights. I happen to agree with that. I never fly to Edinburgh; I always go by train. Is this a change of circumstance? Is it a change of circumstance that the noble Lord, Lord Adonis, has arrived at the Department for Transport with this new enthusiasm? This is the kind of thing that one will have to look at. If there is going to be a national policy statement for aviation, airports, new runways and all the other things, it is difficult to say that you can simply take that White Paper, dust it down, add a sustainability criterion and then say, “Right, off we go”.
That is the anxiety that I have. I hope that the noble Lord, Lord Adonis, will be able to deal with it. He has met criticism from all parts of the House in trying to make sense of this clause. I hope that he, with his considerable abilities, will be able to allay our fears, but somehow I doubt it.
My Lords, the course now proposed by Her Majesty’s Government in this amendment is, to use Latin for once, a via media, which should be welcomed in this context.
The problem with the new structure proposed in Clauses 1 to 8 is that one has to avoid one or two extreme and unwholesome situations. One extreme would be a total republication of all the relevant policy statements, from the year dot. That, of course, would be utterly impossible. On the other hand, if one were to say that none of them had any effect at all, the situation might be even more drastic. One must find some sort of compromise, with criteria being applied as to whether a particular policy statement is current and relevant for present-day needs and, of course, whether it conforms to the criteria set out in the Bill.
The amendment proposed by Her Majesty’s Government does the job as well as one could reasonably expect. However, I have one question. It is many years since I did any planning as a barrister, but there may well be great dubiety as to exactly what the situation is. Will there be a general publication with regard to all the previous policies—I suspect not—or will it come by dribs and drabs? The difficult situation of a petitioner then will be that he or she will not know exactly what the validity is of a matter that has been dealt with in the past. In other words, how soon can that dubiety be removed, how comprehensive will the statements be and what machinery will have operated in each case before such a statement is made?
My Lords, I warmly welcome the government amendments, which I respectfully suggest address the issues raised in Committee. I direct the House’s attention to the terms of Amendment No. 43, which would insert new provisions into Clause 12 and in particular to proposed subsection (1C), which states:
“For the avoidance of doubt, section 5(3) to (7) continue to apply where the Secretary of State proposes to designate a statement as a national policy statement for the purposes of this Act”.
Clause 5(3) provides that,
“the Secretary of State must carry out an appraisal of the sustainability”.
As we saw last week at Report, that now includes both design and reference to climate change as well as general sustainability.
Clause 5 (4) states that:
“A statement may be designated as a national policy statement for the purposes of this Act only if the consultation and publicity requirements set out in section 7, and the parliamentary requirements set out in section 9, have been complied with”.
Those are the full requirements in relation to these matters. National policy statements would be required to comply with consultation and publicity provisions in Clause 7 and the parliamentary procedure in Clause 9, which we amended on Report last week.
Clause 5 (5) sets out what the national policy statement must include; Clause 5 (6) states that the,
“national policy statement must give reasons for the policy set out in the statement”;
and Clause 5 (7) states that:
“The Secretary of State must—
(a) arrange for the publication of a national policy statement, and
(b) lay a national policy statement before Parliament”.
Those provisions go a very substantial way indeed towards concerns expressed by noble Lords in Committee, and ensure, so far as I can make out, that pre-commencement national policy statements will have the full rigour applied to them as would be applied to national policy statements made after the commencement of the Act.
From my own knowledge, in the nuclear field the Government have commenced the procedure for the adoption of a national policy statement through consultation on the strategic siting assessment and the criteria for a strategic environmental assessment. We heard not only in this Bill but also in the course of debates on climate change and energy about the problems that face the Government and our society in meeting the challenges of climate change and security of energy supply. If we delay any further, as would be implied by not accepting pre-commencement national policy statements, we would be doing a disservice to the challenges that we face.
My Lords, my noble and learned friend Lord Boyd has made my speech for me. It answers a good number of the points raised by the noble Earl, the noble Baroness and the noble Lord, Lord Jenkin. Again, I draw the attention of the House to Clause 5 and the provisions of subsection (3) onwards, which would apply in respect of the designation which could take place under Clause 12. As my noble friend said, it would make clear that:
“Before designating a statement … the Secretary of State must carry out an appraisal of the sustainability of the policy set out in the statement”.
It must only be done, under subsection (4),
“if the consultation and publicity requirements set out in section 7, and the parliamentary requirements set out in section 9, have been complied with”,
as well as all the provisions set out in subsections (5), (6) and (7). These ensure that the concern the noble Lord, Lord Jenkin, still has that there might be a cutting of corners cannot take place. It cannot take place because of the provisions in the Bill. It is not a question of my giving assurances from the Dispatch Box. This will be the law once we accept these amendments. I hope that on that basis the House is reassured. As always when you have constantly to flick between amendments and different provisions on different pages, the problem is to understand their full force. Noble Lords need to read Clause 12 as if all the subsections in Clause 5 continued from subsection (1) of Clause 12. I think in that context the concerns that have been raised are met.
My Lords, I am most grateful to the noble Lord for giving way. He clearly has a point as regards the parliamentary process. I should think very few pre-commencement statements have ever been through anything like that. On consultation of local interests and other stakeholders, the anxiety is that the Government may well say, “There was a lot of consultation about the aviation White Paper; that will suffice”. That is the anxiety, even though it was done in an entirely different set of circumstances.
My Lords, the consultation requirements set out in Clauses 7 and 8 are substantial. The elephant in the Chamber is the Air Transport White Paper. That issue is giving rise to a good deal of concern and it might be helpful if I state categorically that we intend to produce a national policy statement which meets in full the policy and statutory requirements for national policy statements set out in the Bill. As part of that I can say categorically that we will consult again on the airports national policy statements in line with the Bill’s requirements. We shall have to make a judgment on how we conduct that consultation in the light of what is in the national policy statements and the extent to which it differs from what is in the Air Transport White Paper, but it will need to meet in full the requirements of the Bill.
In respect of the noble Baroness’s concern about appraisal, Clause 12 needs to be read in the context of Clause 5(3), which makes it clear that the appraisal in question is one of sustainability. Although the Secretary of State can take account of existing appraisal work in that context, there will be a new appraisal of sustainability on any new national policy statement, and that would include one concerning airports.
The noble Earl, Lord Cathcart, wanted to know who would seek to advise the Secretary of State on whether there had been a significant change of circumstances. Under the Bill, the Secretary of State ultimately has to make a judgment on whether he believes there has been a significant change of circumstances, but it will be open to parliamentary Select Committees, the public and others to make representations to him. The Secretary of State would have to look at those representations and take a view on them when making a judgment. The noble Earl also referred to strategic environmental assessments as required under EU law. Where a strategic environmental assessment is required under EU law, it will be undertaken within the appraisal of sustainability, ensuring one integrated assessment process, so that we do not have unnecessary duplication. We have already stated our intention to produce an airports national policy statement which incorporates the Air Transport White Paper in a way which meets the policy and statutory requirements for national policy statements set out in the Bill. We will, of course, conduct a strategic environmental assessment for the airports national policy statement if it is required under EU law.
I hope that I have dealt with the specific issues raised and made categorical statements in respect of the seriousness of the consultation and appraisal process that would need to take place before a pre-existing statement of policy could be designated as a national policy statement. I again emphasise the provisions of Clause 5, which would need to be satisfied in full before such a designation could take place.
My Lords, will the Minister clarify something for me, so that I understand it perfectly? Is the noble Lord saying that any PPG, PPS or White Paper that is now going to become a national policy statement will have to undergo fresh consultation in the light of the change that is going to happen?
My Lords, I thank the noble Lord for his responses. He categorically said that the Air Transport White Paper would go through the consultation process again. Given that the evidence that was used in the original policy was called into question by the Sustainable Development Commission, and it has called for an independent review of that evidence, will that now happen?
43: Clause 12, page 6, line 23, at end insert—
“(1A) But subsection (1) does not apply in relation to a pre-commencement statement if the Secretary of State thinks that—
(a) since the time when the statement was first issued or (if later) the statement or any part of it was last reviewed, there has been a significant change in any circumstances on the basis of which any of the policy set out in the statement was decided,(b) the change was not anticipated at that time, and(c) if the change had been anticipated at that time, any of the policy set out in the statement would have been materially different.(1B) A pre-commencement statement is a statement issued by the Secretary of State before the commencement day.
(1C) For the avoidance of doubt, section 5(3) to (7) continue to apply where the Secretary of State proposes to designate a statement as a national policy statement for the purposes of this Act in circumstances within subsection (1)(a) or (b).”
44: Clause 12, page 6, line 24, leave out subsection (2) and insert—
“(2) The Secretary of State may take account of appraisal carried out before the commencement day for the purpose of complying with section 5(3).”
45: Clause 12, page 6, line 30, leave out subsection (4)
On Question, amendments agreed to.
[Amendment No. 46 not moved.]
Clause 13 [Legal challenges relating to national policy statements]:
47: Clause 13, page 7, line 2, leave out “review” and insert “carry out a review of all or part of”
48: Clause 13, page 7, line 5, leave out “review the statement” and insert “carry out the review”
49: Clause 13, page 7, line 7, leave out “review” and insert “carry out a review of all or part of”
50: Clause 13, page 7, line 13, leave out “reviewing” and insert “carrying out a review of all or part of”
51: Clause 13, page 7, line 20, after “review” insert “of all or part”
On Question, amendments agreed to.
[Amendment No. 51A not moved.]
Clause 14 [Nationally significant infrastructure projects: general]:
52: Clause 14, page 7, line 38, leave out “above ground”
The noble Duke said: My Lords, the purpose of my amendment is to determine whether it is the Government’s intention that all necessary alternatives for electric lines are clearly within the powers of the Infrastructure Planning Commission.
I realise that to be an effective amendment, further consequential points would be required. It may be that the Minister has an argument that the phrase,
“an electric line above ground”,
can comprehend all sorts of other electric lines without my amendment, but that is not clear to the ordinary member of the public.
There are already certain forms of transmission that are outside the strict description in the Bill, such as electric lines underground or electric lines under territorial waters. Clause 16, which is devoted to electric lines, has a very useful stipulation that the Government wish only to include lines of more than 132 kilovolts. There may be practical limits on installing electric lines underground or under the sea, and there may be voltage limits; I am certainly not in a position to go into the technical limitations on these matters.
As noble Lords will be aware, developments of this kind in Scotland are the responsibility of the Scottish Administration. By way of illustration, I use the Scottish plan for a 400 kilovolt line from Beauly to Denny, which is presently under consideration. A number of arguments are being put forward that sections of that line should be put underground. If that is approved, it will still be a consideration for the Infrastructure Planning Commission, operating throughout England and Wales, that the same issue might arise. I am not sure whether that would be a possibility for consideration by the Infrastructure Planning Commission.
I thank the Minister for the assistance of his department on the question of undersea cables. It suggested that rather than coming under planning legislation, undersea cables might be dealt with under Section 36 of the Electricity Act 1989. At present, the Bill looks as if the national policy statement, and even the Infrastructure Planning Commission, will have no role in saying whether offshore interconnectors might be part of the plan.
Many noble Lords will, like me, have received a paper from Ofgem entitled Connecting Renewable Generation, which lays down the considerable difficulties faced regarding the structure and capacity of the grid to take on renewable energy on the scale that will be required to meet our EU target of 15 per cent renewables by 2020. Ofgem estimates that this will require 37 gigawatts. Given that renewable energy is seen as highly intermittent, it will be even more important that the largest possible adequate grid is available, so that periods of shortfall from the area which is supplying renewable energy can be compensated for from other parts.
Surely it must be a worry for Ofgem, which has a statutory responsibility for security of supply, if the Infrastructure Planning Commission is looking only at the structure of the national grid where it is composed of overhead wires. Ofgem will already have to cope with a divided responsibility, whereby it would have to reach agreement with the Scottish Executive on construction of overhead lines to ensure continuity of supply, or that the renewable target is met, if renewable generation from Scotland were not immediately available.
The powers that would be required to lay cables inland or inside the 12-mile limit are fully exercisable by the Scottish Executive, as are the interconnectors. This will presumably be of vital significance if renewable energy from the north of Scotland is to be carried by cables off the western or eastern coasts, particularly if they are within the 12-mile limit, because the Infrastructure Planning Commission will be a great deal short of the distance required to make the connections.
Another complication arises for any offshore generating station built north of Berwick—if I may put it that way—whose supply line crosses the border in the remainder of UK waters anywhere between the 12-mile and 200-mile offshore limits. My noble friend Lord Taylor is concerned that offshore generating stations should not come under this legislation at all, but the Bill includes them. Nothing in it considers how the connections will be achieved, particularly if they cross the boundary between the two national authorities.
I have another point which I hope noble Lords will allow me to raise, because it comes almost within the concept of an electric line, although it is not strictly electric—the fibre-optic network, which is increasingly important. Can the Minister say whether the Government envisage that this area might fall within the powers of the Infrastructure Planning Commission? If not, would the Government consider ensuring that an amendment were proposed for our consideration at Third Reading? I beg to move.
My Lords, Amendment No. 55 concerns Clause 15, relating to the principles established under Clause 14(1) on,
“the construction or extension of a generating station”.
The amendment refers to page 8, line 41, and proposes to leave out “or Wales”; in other words, the powers of IPC would be restricted to England in this respect. We want legislation in Wales to cover generating stations of more than 50 megawatts; Clause 15(3) refers to 100 megawatts. This clearly restricts the ability of Wales to influence what the IPC does regarding the expansion of electricity generation in Wales.
We conclude that the Infrastructure Planning Commission and not the devolved Welsh Assembly will make recommendations and take decisions in Wales. As I have explained, Amendment No. 55 would remove mention of Wales from this clause, and responsibility would then lie within a much more democratically accountable system. The powers would be transferred to the Secretary of State for Wales, who would liaise with the elected Welsh Assembly to produce a fully accountable solution, as opposed to a decision being imposed by an unelected quango from outside Wales. I am sure that the House will recognise that many appointed quangos in Wales have already been abolished by the National Assembly for Wales, and we certainly do not want another one foisted upon us from outside. The National Assembly for Wales Sustainability Committee recently published a report on its scrutiny of the Planning Bill. It concluded:
“The Committee therefore recommends that the Welsh Assembly Government makes representations to the UK Government to exclude Wales from the remit of the Infrastructure Planning Commission, in order to retain democratic accountability in all parts of the planning process in Wales”,
and not only what is referred to in the amendment. There is very strong feeling about this. We recently had not a public demonstration but a demonstration none the less about the gas pipeline which goes straight through the national park from Milford Haven to Gloucester. There was no appeal mechanism; that was the way it went and that was the beginning and end of it.
I do not wish to detain the House too long but I should like to explain the present situation with regard to electricity production in Wales. Briefly, there are 34 terawatt hours in total but electricity usage in Wales is only 24 terawatt hours. Therefore, there is a surplus of 10 terawatt hours, which is consumed over the border. Sources of electricity production in Wales are: gas and coal, 23 terawatt hours; nuclear, 7 terawatt hours; renewables, 1.5 terawatt hours; and pumped storage—mainly the Dinorwig scheme in Snowdonia—2.5 terawatt hours. Clearly, with 23 out of 34 terawatt hours originating from coal and gas, there is considerable scope for a reduction in carbon emissions. Indeed, with coal, that includes carbon capture, and there are still 300 million tonnes of coal under the surface in Wales.
From the point of view of the Assembly and the Government, Wales’s mission is for sustainable development to be mapped out in the Welsh Assembly Government’s policies. However, the Bill currently denies Wales decision-making in relation to a power-generating station of more than 50 megawatts. That just does not add up. The scale of potential renewable energy in Wales is enormous, and, frankly, denying the elected National Assembly for Wales the ability to legislate in this respect is unacceptable.
Potential production in Wales from hydroelectricity, wind and solar, as a replacement for aspects of gas and coal, is enormous. We want a low-carbon economy and, moreover, we want the transport infrastructure, including the rail system, to be run on renewable energy. Frankly, the north/south infrastructure in Wales is appalling, being akin to that of a third-world country. I have to tell the House that I can get to Scotland from where I live, just north of the south Wales coalfield, faster than I can get to Anglesey, and that is the situation for many of us in Wales. There is a need for enormous investment. The amendment would prevent the IPC taking a unilateral decision which should be made in Wales. It would give the Secretary of State for Wales, rather than the IPC, the power to make such decisions, which, I am sure the House will agree, is fair, correct and, in the context of climate change, very desirable.
My Lords, this has been an extremely interesting debate, and I shall attempt to answer some of the points made. The noble Duke, the Duke of Montrose, asked about the Bill defining only overhead electricity lines, a point which we debated to a certain extent in Committee. The Bill defines only overhead electricity lines because permitted development rights relate to underground electricity lines. We are not seeking to change that through this Bill. Clause 15 has been drafted to reflect Section 37 of the Electricity Act 1989, which sets out the current regime for electricity line consents.
The noble Duke raised an interesting point about the cost of putting electricity lines underground. As he knows, it is not a simple matter—although, on the face of it, underground lines always seem an attractive option. They can be very expensive and, as I said in Committee, can involve additional environmental and social costs. None the less, it can clearly be an option. Permitted development rights are available, and under Clause 118(1) the IPC can require that sections of a proposed overground electricity line project are constructed underground if there are strong reasons for doing so.
The noble Duke also asked about electricity lines under territorial waters. We will shortly discuss a group of amendments on offshore generators.
My Lords, it is interesting that overhead lines are exempted from consideration under the Bill if they are less than 132 kilovolts. Is the Minister saying that there is no limit on underground lines and that regardless of the kilovolts any underground line would be a permitted development?
My Lords, underground lines are covered by the permitted development procedure, so it applies to them. Electricity lines under territorial waters are not part of the Bill but they can be consented as part of a nationally significant project such as an offshore wind farm. Permission for electricity lines under the sea is currently granted by the Secretary of State under the Food and Environment Protection Act 1985 and will in future be granted by the marine management organisation, subject to legislation which we all hope to see in your Lordships’ House as quickly as possible.
The noble Duke raised some interesting points on the electricity transmission system in general. We clearly need new investment in the grid infrastructure together with changes to the existing access arrangements to support the connection of new renewable and other essential generation. That will help us to meet the UK share of the EU 2020 renewable energy target, which I need not remind noble Lords is extremely challenging. I understand that £560 million has already been committed to upgrading the network in Scotland and the north of England to connect renewable projects. In the recent transmission price control, Ofgem set out plans to invest some £4 billion in the electricity transmission network. In addition, as noble Lords who debated the issue during the passage of the Energy Bill will be aware, in June 2008 the Government and Ofgem set out a package of measures in the transmission access review which, taken together, will remove or significantly reduce grid-related access barriers. We have taken an order-making power in order to intervene if agreement is not reached between Ofgem and the companies concerned.
The noble Duke, the Duke of Montrose, raised a point about decisions on projects in England and Wales that are below 132 kilovolts. These decisions will continue to be taken by the Secretary of State under Section 37 of the Electricity Act subject to certain exceptions. We intend that the decisions will be made with regard to the electricity networks national policy statement. The intent is that the IPC will deal only with electricity lines of national significance. The Government intend to conduct a review of where such cases might best be decided in future. We intend to conduct it over a similar timescale to the review, to which my right honourable friend the Secretary of State, Ms Blears, has committed, to examine whether there is a case for extending the grounds for ministerial intervention in IPC decisions. My understanding is that the review is intended to commence about two years after the IPC has accepted its first application.
I sympathise with the commitment to renewables by the noble Lord, Lord Livsey, and his comments about railway infrastructure in Wales. I use railways in Wales, particularly from Birmingham to Aberystwyth, and I know what he means, but that is perhaps to stray a little from the point of our debate today, although it sets the context. He will not be surprised by my answer because, as was set out in the debates in the other place, the UK Government have taken the view that reserving powers on nationally significant energy infrastructure is the best way of developing the UK’s long-term energy strategy. The planning White Paper made it clear that the current devolution settlement works well, and the Government propose that it should continue. On that basis, the intention is that projects must be included within the IPC’s remit and thus benefit from a quicker and more effective system that improves the ability of individuals and local communities to participate in the process.
I noted carefully the noble Lord’s comments about Welsh confidence in the IPC process. I want to make it clear that, under our proposals, UK Ministers will consult Welsh Ministers in drawing up national policy statements that apply in Wales. This requirement will be imposed by secondary legislation. Welsh Ministers will also be consulted by developers in advance of any consent application and by the IPC during its consideration of any scheme in Wales. As for confidence in the IPC process, it is proposed that two or three IPC commissioners will be appointed on the advice of Welsh Ministers where an application to be determined by the IPC relates to land in Wales. Where reasonably practical, at least one of the members of the decision-making body—the panel or, for applications examined by a single commissioner, the council—should be a commissioner nominated by Welsh Ministers. We think that that is the best approach to ensuring consistency with the devolution settlement and sufficient involvement of the Welsh dynamic, if I may put it that way, in the process.
As for the 50 megawatt threshold raised by the noble Lord, it is defined in the Electricity Act 1989 as being the appropriate boundary between national—in other words, England and Wales—and sub-national decision-making, and no case has been brought before us to suggest that we should change the threshold.
My Lords, my understanding—it is complex because it has to be consistent with the devolution settlement—is that overhead line consents between England and Scotland would need to be split at the border. For a 132 kilowatt electricity line project, therefore, the IPC would consider the part in England and Scottish Ministers would consider the part in Scotland under the existing regime. We must hope that, within the context of the devolution settlement, it all works well together.
My Lords, I hesitate to intervene before my noble friend sits down, especially on Report, when we should be on our best behaviour, but will he remind the noble Duke, the Duke of Montrose, who made a very interesting and informative contribution to our debates, as he often does, that offshore wind farms produce about 25 per cent of their rated capacity, much of which would be lost in the underwater cables that the noble Duke proposes and that more would be lost when we got to the grid? That suggests that we should not rush too madly into proposing any more offshore wind farms.
My Lords, my noble friend pushes us a little far from our debate. I very much welcome him to our debates; it is very good to see him in his place. Although there are issues about connection, offshore wind has a potential part to play in meeting our renewables target, but not just offshore wind. I am very keen on technology development in wave power and the other marine technology in which this country has a lead. Having seen a prototype model in Lowestoft on Friday, I am especially enthusiastic. We should not underestimate the potential that water, through offshore wind and wave, has to make to meeting our renewables obligation.
My Lords, with the leave of the House, I take note of what the Minister said, but the Electricity Act 1989 is pre-devolution—prehistory as far as the constitution is concerned. We want measures to come from the Welsh Assembly to meet the sustainability targets in Wales. The priorities are different in Wales because, as I explained, there is a surplus of electricity in Wales. We need to convert to lower carbon types of electricity production. Those are our priorities, which are not necessarily those of the IPC in that context.
My Lords, I thank the Minister for that wide-ranging response, but he did not address the point about fibre optics; I do not know whether he has anything to say about that. He creates an interesting scene in my mind. If there is no limit to the size and extent of underground cables and someone started to put the main interconnector—not that that is necessarily a very big cable—underground, in the north of England, and heading for Scotland, and did not need planning permission, could they simply dig a hole and put it in without anyone having any say in the matter?
My Lords, I am sorry that I did not answer the fibre-optic question. My understanding is that the IPC could not consent to fibre-optics cables in their own right, although if they were part of a nationally significant infrastructure project that required them, a promoter could apply to have them as part of an NSIP—as associated work—under Clause 113.
My Lords, it has been of great interest to the House to hear from the Minister how sea-situated connectors will be considered under the marine Bill. When we get to that stage, I think we will all want to be very sure about how this ties in with Ofgem’s responsibility for security of supply. It will have to look at several Bills to ensure that it can carry out its available duties. I shall read what the Minister has to say, but, in the mean time, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
53: Clause 14, page 8, line 11, leave out “add a new type of project or”
The noble Baroness said: My Lords, Amendment No. 53 returns us to overarching points of principle because it would remove from Clause 14 the Secretary of State’s ability to amend the list of nationally significant infrastructure projects by, among other things, adding a new type of project. I bring this amendment back because, when I raised the point in Committee, the Minister’s answer was very much about possible future changes in technology. When I read Hansard after the debate, I realised that I should have pursued the matter in Committee because such changes are by no means all that this provision might cover. Any fundamental changes in technology that allow for new projects could give rise to some very important questions that required more than the secondary legislation that would apply to enable the Secretary of State to add to the list. I hope that we do not need to detain the House for very long, but I invite the Minister to expand on his answer on a previous occasion. I have been in touch with his office, so I hope that I am not asking him to do anything unexpected. I beg to move.
My Lords, I am glad to respond to the noble Baroness on this matter. She has raised an important point and it is important at the very least that I place on record the Government’s view of the intent behind the clause. As she suggested, Clause 14 sets out in broad terms what types of project will be nationally significant infrastructure projects for the purposes of the Bill. The detailed thresholds for each type of project are spelt out in subsequent clauses. It is right that the Secretary of State should have the ability to make secondary legislation at a later date, as provided for at Clause 14(3), in order to respond to the changes in circumstances that may arise. That flexibility is an important balance to the other provisions in the Bill.
One may ask why that flexibility would be required. First, it provides flexibility to add new projects where Ministers feel that there is a good case for so doing. That might be by varying the existing thresholds or by adding an entirely new category of project. The safeguard is that a new category of project can be included only if it involves the carrying out of works in one or more of the five fields set out in Clause 14(6): energy, transport, water, waste water and waste. An example might be a project that deals with the geological disposal of higher-activity radioactive waste, should Ministers decide that such a project should be considered nationally significant. The second aspect would be if Ministers wished to remove projects from the new regime if, for instance, circumstances change and there is a good case for taking certain decisions out of the new regime. In such a scenario, the thresholds could be reduced or a category of project removed.
Regardless of the change, this power is subject to an affirmative resolution in both Houses. Unless both Houses agree that such infrastructure should or should not be considered nationally significant, Ministers would be unable to make the proposed changes. That is the essential safeguard against what might be described as a frivolous use of this power to get around a particular problem, say, with a local authority’s decision in relation to a specific planning consent. Taken in the round, first, there are enough safeguards and, secondly, it is self-evident that none of us can say for sure whether the thresholds will continue in the long term to meet the purpose or whether there might not be a new development that, although it comes within the categories laid down in this clause, would justify the flexibility inherent in this clause.
My Lords, the Minister anticipated—perhaps because I gave him a hint in an e-mail—my concern that the provision could be used to override what the Government could regard as a recalcitrant local authority. There could be matters concerning transport, for instance, which would be the responsibility of a local planning authority and not within the ambit of the IPC. Given our stance on the IPC as a matter of principle, I am not challenging the removal of projects from the IPC regime, although we all know that there are limitations on the use of affirmative resolutions and on the effectiveness of challenging them. I knew that the Government would not agree to vary this in the Bill, so the purpose of the amendment was to elicit clarity. I am grateful to the Minister and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 15 [Generating stations]:
54: Clause 15, page 8, line 39, leave out “or (3)”
The noble Lord said: My Lords, in moving Amendment No. 54, I shall speak to the other amendments in this group in my name, which share a common and, dare I say, familiar theme. They reflect the long-anticipated marine Bill, which has already been published in draft form and was considered by a committee of both Houses. I and other nobles Lords have talked before of the daisy chain of Bills before us: the Climate Change Bill, the Energy Bill and this Planning Bill. As the Minister has said, they will—I suspect that all noble Lords will agree—shortly be joined by a fourth Bill, the marine Bill.
The principal purpose of the marine Bill is to safeguard the marine environment and ecology. To that end, it will establish the marine management organisation. These amendments anticipate that event by placing the MMO centre stage in the marine environment. The Bill before us gives the Infrastructure Planning Commission the power to determine proposals in the marine environment, notably in Clause 15 offshore generating stations of more than 100 megawatts. My noble friend the Duke of Montrose referred to this when discussing his Amendment No. 52. The marine Bill will provide for a marine planning system under the MMO, so it cannot be right that the IPC overrides the MMO in the marine context. The purpose of Amendments Nos. 54 and 56 is to address this anomaly and to vest decision-making in the MMO rather than in the IPC.
The wider powers of consultation on the pre-application procedure are the reason for Amendment No. 71 to Clause 42, while Amendments Nos. 84 and 85 deal with local impact reports in Clause 59. Amendment No. 102, which by coincidence addresses Clause 102, covers the decisions of the panel or the council. It includes a provision to consider the,
“mitigation of, and adaptation to, climate change”,
as a priority element in any such decision. In all other cases, the sole purpose of these amendments is to put the MMO in the Bill as a party to the process. No development adjacent to or approximate to the coast can ignore its impact on the maritime and coastal environment. Who is to speak for this interest, if not the MMO? Which is the authority most capable of delivering an impact assessment of value?
I hope that the Minister will recognise the consistency of my argument. Rightly, local authorities are represented in the processes. The Government’s wish to use the MMO in a key role is clear from the courteous and conscientious briefing and response to our Committee stage from the noble Baroness, Lady Andrews, but that response did not explain why the Government are not willing to accept these amendments, not least because there will be a period prior to the enactment of the marine Bill when there will be no MMO; the Government will need a consultee and will have to place on a temporary basis the Marine and Fisheries Agency in this role. However, that is by the by compared with the question of who will speak for the seas and the coasts. I hope that the Minister can assure the House that, by bringing the MMO into being, the marine Bill will be drafted to ensure that the MMO can properly represent at every level of the planning process the interests of our seas and coasts. I beg to move.
My Lords, this is the first time that I have spoken on Report so I should declare an interest as a member of a local planning authority and a development control committee. Once again I thank the noble Lord, Lord Taylor of Holbeach, for bringing these issues before the House. He did so in Committee and performed a service, and he is doing so again today.
We are in some difficulty because we think that we know what will be in the marine Bill that we believe will come before the House in the not-too-distant future—indeed, there will be, if not riots on the streets, then riots on the beaches if the Government do not bring it forward this time, having come so far. We have only a few weeks to wait until we get a guarantee that it will come forward, but we do not know exactly what will be in it because the Government may have altered the draft version that some of us have already been scrutinising and discussing.
As the noble Lord, Lord Taylor, put it, the Bill is part of a daisy chain of legislation that will fundamentally change our planning and development systems. Indeed, in addition to the Bills and Acts listed by the noble Lord, the Housing and Regeneration Bill—now an Act—that we considered is a fundamental part of these systems. So we are in some difficulty. The real debates on the issues raised by the noble Lord today may come when we consider the marine Bill and how the marine environment and new marine planning system slot into the system that by then will have been enacted by this Bill.
It is absolutely right that we should consider this issue today and the Liberal Democrats support the noble Lord’s amendments. There will be a completely new planning regime for the marine and coastal environment, which will involve new organisations, such as the marine management organisation, new planning documents, such as the new marine plans, and new concepts, such as the marine conservation zones. It is important that the Infrastructure Planning Commission should not be able to ride roughshod over a new system that, although it does not yet exist and there is no Bill before us, is nevertheless casting its shadow over us. It is right that this Bill should recognise what will happen in the general terms described by the noble Lord, which could apply in the interim to existing organisations and systems even if there is not a marine Bill. I add my support to the noble Lord’s remarks.
My Lords, I was delighted to hear the Minister express enthusiasm for the power of the tides and waves and so on, and for his visit to Lowestoft. I am pleased that he came back full of enthusiasm because, as he knows, the Carbon Trust estimated some time ago that about 15 to 20 per cent of UK electricity could be generated by wave and tidal power, so it is potentially of enormous importance.
The Bill as framed effectively brings under the IPC only wind farms of 100 megawatts or more. So, given the current state of technology, for some years to come, what is recognised to be strategically important—that is, the power of the wind, waves and tides—will not come under the IPC. Among the few questions that I would like my noble friend to address today—or, if not, to write to me before Report—is whether or not wave and tidal energy will be considered under national policy statements. Clearly, under the Bill it will not fall under the IPC—I assume it will fall under the powers of the marine management organisation—but where will this important technology come in in relation to national infrastructure policy statements?
Given this distinction, perhaps my noble friend will address one or two matters today or, if not, write to me. Under the Bill there is a minimum limit of 100 megawatts for what are, effectively, wind farms. If a wind farm of 100 megawatts was extended but the extension was much less than 100 megawatts, would the IPC deal with such an extension off-site—it would be helpful to have this on record—or would it come under the MMO? The question of extensions is, potentially, quite important.
I turn to my second question. Offshore planning and maritime issues are at present subject to a limited amount of expertise. They were previously under BERR but, I believe, are now under the new Department of Energy and Climate Change. That is a small team, as noble Lords will know; it is certainly in single figures. The future location of that expertise is really quite important because there is not a lot of it. In future there will be the DECC, the IPC and the MMO. The worst of all worlds would be if that expertise were split up in some way and spread around even more thinly. It is important that the expertise is kept in one place, at least until things have settled down and then we can see what the scale of operations is going to be. Has thought been given to this? The IPC will shortly be formed and in operation, and applications will be coming in forthwith. They will have to be dealt with, or they will be outstanding. Will the expertise be kept together and put in with the IPC until such time as future expansion and development determine whether a large amount of expertise is needed in the MMO as well?
My Lords, my name is also to these amendments. As the House would expect, I support my noble friend Lord Taylor on them. We have talked a great deal throughout the Bill on the best way to improve the planning system so that the most appropriate decision can be made expeditiously. That is right. We have also debated keenly who should play a part in the planning process, and that is quite right too. The amendments fill a gap that we risk leaving open. By agreeing to them, the Minister will be able to ensure that the most appropriate decisions on marine planning are taken by the right people.
We have mentioned wind farms today. The noble Lord, Lord Woolmer, mentioned wave and tide. There are also cable and pipelines that may have to be laid in the marine environment.
As the Bill stands, as my noble friend has already said, the IPC has the power to determine proposals in the marine environment. That runs contrary to the Government’s stated aim of creating a strategic overview and reducing complexity at sea through marine planning and reformed marine licensing. The proposed marine Bill, we are told, will create a marine management organisation. If that specialised body is to be created, it would be better to leave decisions with the Secretary of State until such time as the MMO is ready to take over.
If the IPC must retain jurisdiction in this area, it is vital, as my noble friend has said, that the expertise of the MMO is put to good use and that it should provide advice on both coastal and offshore applications that impact on the marine environment. The Planning Bill is vital, as I have said, but it is only part of the jigsaw puzzle. The other pieces, as has been said, are the Climate Change Bill, the Energy Bill and, soon, the marine Bill, as well as, as the noble Lord, Lord Greaves, said, the Housing and Regeneration Bill. Those Bills all have to take account of one another, so I support my noble friend on these amendments, which would take account of the marine Bill. It is a simple exercise in joined-up government, as I am sure the Minister will agree. If the Minister does not like the wording of these amendments, I ask him to agree to take them away and come back at Third Reading with his own amendments to ensure that the correct interaction between the Bill and the forthcoming marine Bill takes place.
My Lords, this has been an extremely interesting debate. I am grateful to the noble Lord, Lord Taylor, and other noble Lords, who have tabled amendments and have spoken.
I was very interested in the remarks of the noble Lord, Lord Greaves; noble Lords are keen to see the marine Bill before your Lordships' House. Because of the pre-legislative scrutiny, there has been considerable discussion and debate on what might be in a possible Bill that might be brought at a certain stage in the future. That is one of the problems of seeking to draft amendments to this Bill which refer to an organisation that at the moment has no statutory being whatever. None the less, I hope to reassure noble Lords in respect of a couple of the points that have been raised. However, I also understand that when we come to debate the marine Bill, a number of these questions will be debated again. Assuming that these are in its scope, I am sure that we will be able to ensure that noble Lords have undertaken effective scrutiny of the marine management organisation and how it relates to the national planning infrastructure.
The Government have made the decision that while the marine management organisation, if established as we all hope it will be, will have expertise on the marine area and will advise the IPC on challenges and impacts specific to the marine environment, it is the IPC itself which will be best placed to consider the broader significance of national need alongside the impact to the marine environment. There is clearly a difference of view here, but I should make it clear that that is the Government’s firm view on the relationship. Within that, it is important that the views of the MMO are made known to the IPC and that the expertise that is available is clearly brought to the fore.
As the noble Lord, Lord Taylor, suggested, the IPC could be established before the marine management organisation has come into being. If that were to be the case, the intent is that the IPC would draw on the expertise of the Marine and Fisheries Agency. I can assure the noble Lord that the MFA will be classed as a statutory consultee.
My noble friend Lord Woolmer spoke about the existing expertise. He is very anxious to ensure that that expertise is not dissipated, which I well understand.
Consents for offshore renewables are currently considered within two regimes—under Section 36 of the Electricity Act 1989 and under the Marine and Fisheries Agency, which provides consent under the Food and Environment Protection Act 1985. Although the two bodies have worked closely together to give a joined-up service to industry and stakeholders, an important benefit of this Bill and the future marine Bill will be to provide for a single point of application and consent.
We are looking very carefully at transitional arrangements, including the need to avoid any loss of existing expertise. Broadly, we expect the MMO to get most of its expertise from the Marine and Fisheries Agency, and the IPC from my department—essentially, from staff who have been transferred to the DECC. That will not necessarily be through permanent transfer of staff; precise arrangements will need to be worked out. It needs to be borne in mind that the Department of Energy and Climate Change will have ongoing responsibilities after the IPC is established, such as the preparation and maintenance of national policy statements. My department will need to have expertise on the books as well as any potential transfer to the MMO.
I reassure my noble friend that we very much recognise the expertise of those currently involved. The last thing that we would want is to dissipate or undermine that expertise in any way. My noble friend asked about an extension that might bring a project to over 100 megawatts. My advice is that the IPC would have to consider it at that point.
My Lords, I assume that my noble friend is talking about a project that is already over that threshold. I would rather write to him about those specifics, because one has perhaps to distinguish between a major expansion and what might be a minor change. Rather than giving him an answer on the hoof, I would like to come back to him on that point.
On whether wave and tidal power can be considered under a national policy statement, I understand that, as technology is already being developed for large projects, the NPS will cover them. Where renewable energy is concerned, I agree with what was said about the general potential of marine and wave technology. The other important point is that the UK has a lead at present in that technology. It is important to do everything that we can to ensure that we take advantage of that lead, so I very much agree with the noble Lord.
Finally, on the question of the MMO being a statutory consultee, I point out that Clause 42 sets out a duty on applicants applying to the IPC for planning consent to,
“consult … about the proposed application”,
and prescribes the persons to be consulted. Amendment No. 71 in the name of the noble Earl, Lord Cathcart, would include “the relevant marine body” among those to be consulted, which is an ingenious way of referring to the marine management organisation. I reassure the noble Earl that certain persons who must be consulted on pre-application consultations will be prescribed in secondary legislation flowing from the Bill. It is our clear intention to prescribe relevant marine bodies in such secondary legislation, including—in due course and subject to all the caveats to which I referred earlier—the marine management organisation, should it be established.
Amendments Nos. 84 and 85 would include the MMO within Clause 59, which makes provision in relation to local impact reports. I well understand that these amendments would then require the IPC to give notice in writing to the “relevant marine body” that it has accepted an application and to invite that body to submit a local impact report for a nationally significant infrastructure project where the application is wholly or partly for a coastal or offshore development. This is not the right place for such a duty to be placed on the IPC. The term “relevant marine body” is not defined and it would be difficult for the IPC to interpret it as it stands. If the intention is to have the IPC notify the marine management organisation, that should properly be a provision in the marine Bill. I well understand that the noble Lord, Lord Greaves, has already given notice that we will come back to that in due course.
Moreover, provision for the IPC to consider local impact reports was added to give due prominence to democratically elected local councillors who represent local people affected by the proposed project. The case for the MMO is somewhat different, but I want to reassure noble Lords that the MMO will not be ignored by the IPC. Given that the MMO will be the Government’s strategic delivery body in the marine area, the IPC will be expected to draw on its expertise when assessing proposals for nationally significant infrastructure—for instance, when considering what conditions might be appropriate to mitigate any negative impacts on the marine environment. Detail as to how the IPC will receive advice from the MMO will be covered in guidance under this Bill, and in a Memorandum of Understanding. When taking decisions in relation to marine provisions, the IPC will have to comply with its obligations under the Planning Bill and the marine Bill. The provisions of the marine Bill will, of course, take account of the final form of the Planning Bill.
Amendment No. 102 would amend the decision test of the IPC so that it would have to have regard to marine plans. Again, the national policy statements will be the primary factor for IPC decisions in the new single consent regime, because they will clearly set out our national policy on, and the national need for, infrastructure, but only after they have been consulted on and scrutinised by Parliament.
Clause 102 also provides that national policy statements will not be the only factor, because the IPC must have regard to the local impact reports from local authorities, other matters that may be set out in secondary legislation and any other matter that the commission thinks is important and relevant to its decision. Even when the application is in accordance with the national policy statement, the IPC could well decide that a particular application for a proposed project was not appropriate because it would be unlawful or result in the UK being in breach of any duty imposed on it by or under any enactment. The IPC would still consider issues specific to the application at the local stage, such as detailed layout, siting or access, as well as the environmental impact. If it decides that the adverse impact of the development outweighs its benefits, it can refuse consent.
One matter that we will prescribe is that the IPC must have regard to relevant marine plans and the marine policy statement. We intend that the MMO will provide particular assistance to the IPC during the examination, not least by advising it as to any requirements that should be placed on a deemed marine consent that the IPC is considering granting. At the decision stage, we want the IPC to decide on applications in accordance with the national policy statement, except when certain specified circumstances arise. That principle should apply to projects offshore in the same way as to projects onshore.
We believe that decision-making on nationally significant projects should fall to the IPC, but it will have the advice available of the proposed marine management organisation. We wish the expertise available to go forward into the new organisations and we have order-making powers to ensure that appropriate consultation takes place. We can anticipate lively debate when that Bill comes to your Lordships’ House at some stage in future.
My Lords, I thank the Minister for his detailed reply. One can always rely on the noble Lord, Lord Woolmer, to come up with penetrating questions of detail, which have tested the Minister. I am grateful to all noble Lords who have spoken in this debate for the general support that they have given and I am grateful for the sentiments expressed by the Minister in giving support to the concepts that lie behind these amendments. I am pleased that in the matter of Clause 42 there is likely to be specific secondary legislation. I am grateful for that and for the fact that a memorandum will reflect the debate and the contribution of the Minister. Perhaps noble Lords are wrong to anticipate the royal prerogative—the speech from the Throne—as we have done to some degree today. On the other hand, it is nice to have something to look forward to. On those grounds, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 55 and 56 not moved.]
Clause 23 [Airports]:
57: Clause 23, page 13, line 39, after “year” insert—
“( ) air passenger transport services for at least 50,000 air transport movements of passenger aircraft per year,”
The noble Baroness said: My Lords, in moving this amendment, I will also speak to Amendments Nos. 58 and 59. The amendments take us to the definition of airport development for the purposes of nationally significant infrastructure projects—in other words, what will come within the IPC regime. They would add the criterion of aircraft movements to that of the numbers of passengers in the threshold.
In Committee, the noble Lord, Lord Adonis, said that the Government did not want the definition to be in effect about the construction of a new runway and that airport-related development,
“could also include work to terminals which would not necessarily have an impact on the number of aeroplanes using a runway”.—[Official Report, 14/10/08; col. 710.]
The words “not necessarily” are important there. It would be naive to think that there is never an issue around aircraft movements and the experience is that more and more passengers are squeezed through terminals—pace terminal 5.
We acknowledge the impact from the numbers of passengers. My particular purpose in tabling the amendments is to ask the Government in turn to acknowledge the impact from the number of flights and the number of aircraft movements. I include in those the empty and half-empty flights maintained, as my noble friend Lady Tonge said in Committee, by airlines in order to preserve their slots. Surely both the runway capacity and terminal capacity determine overall capacity.
I found this a difficult issue because I start from the principle of not wanting to support the Infrastructure Planning Commission and not wanting to push more decisions its way. However, it is important to be clear. How do the Government regard aircraft movements? Do they dismiss them as irrelevant? If the Government take a particular view of them as relevant or irrelevant, how is the IPC to respond? In particular, will the local impact statement be able to take account of the impact of numbers of aircraft movements? Can it validly comment on the movements and their impact in such a way that under Clause 102 the IPC must have regard to the impact of aircraft movements?
It is important to establish the impact of aircraft movements as well as of numbers of passengers. I do not need to repeat arguments about the impact on the ground of both noise and movements of other sorts of traffic; I will not take the time of the House to do that. However, it is essential that it is understood locally that aircraft movements have an important impact on the quality of life of those who have to suffer them while not being on the flights. I beg to move.
My Lords, I find this amendment rather interesting, because the noble Baroness, Lady Hamwee, is trying to put a limit of 50,000 air transport movements of passenger aircraft a year into the same subsection of the Bill where there is a limit of 10,000 air transport movements of cargo aircraft every year. In terms of noise, it does not make much difference whether a plane is carrying passengers or freight; it is still noisy or not, depending on one’s point of view. I assume that she has calculated the figure of 50,000 by taking an average passenger plane carrying about 200 people and converting it down from the 10 million passengers a year, which seems reasonable to me. However, it is also interesting to note that Clause 23(3) refers to a limit of 10 million passengers a year or 10,000 air transport movements of cargo aircraft a year, but not both. I am not sure that the amendment contributes a great deal to understanding this subsection, which is a bit confusing anyway, but perhaps my noble friend can explain whether “and” rather than “or” should be inserted between paragraphs (a) and (b), and whether it makes much difference whether planes are carrying cargo or people.
My Lords, these amendments continue the debate that we had in Committee about the airports threshold set out in Part 3 and in particular why we have phrased it in terms of the numbers of passengers who could use an airport rather than the number of air traffic movements. As I stated in Committee, we arrived at the threshold having gone through an extensive consultation process for the planning White Paper, on which this Bill is based.
The noble Baroness, Lady Tonge, suggested in Committee that EU regulations specified a threshold of 50,000 air traffic movements. We have researched this point, but the only relevant EU legislation that we can find that mentions a threshold of 50,000 air traffic movements are EU regulation 1794/2006 on a common charging scheme for air navigation services and the environmental noise directive 2002/49/EC. However, neither of these appears to us to have any relevance to the issue at hand. The regulation concerns reporting systems for the costs of air navigation services at airports. It specifies that, in respect of airports handling more than 50,000 commercial air traffic movements a year, there must be a transparent charging system for air navigation services that meets prescribed EU standards. The environmental noise directive requires member states to produce strategic noise maps every five years for the main sources of environmental noise, including airports with 50,000 annual movements and above.
However, the issue in this Bill is different. It is whether a proposed airport development is of such a scale that it should count as nationally significant and go to the IPC rather than through the local planning system. Our judgment, based on analysis and consultation, is that the figure of 10 million passengers constitutes the right threshold in respect of proposals having regard to passenger services. This would, for example, have taken in the recent decision to allow Stansted to increase the number of passengers using its existing runway.
Our concern about the noble Baroness’s amendment is that it might capture projects that do not involve increases in air traffic that are of such national significance. Our data suggest that, based on average current loadings, the 50,000 air traffic movements proposal in her amendment is equivalent to only about 5 million additional passengers nationally and about 7.5 million at Heathrow. Therefore, it would have the effect, which I do not think the noble Baroness intends, of having more proposals considered by the IPC, whereas I understand that she wishes to see fewer—indeed, none—considered by the IPC. Given her general position on the Bill, her amendment would move it in the wrong direction from her point of view.
The noble Baroness asked me a specific question about our view of the impact of proposals including air traffic movements. I stress that of course we fully accept that increases in the number of air traffic movements will affect people who live in the vicinity of an airport and that increases above 50,000 air traffic movements may affect them a great deal. However, as with other such local planning matters, these issues should be properly addressed by the local planning system with its manifold provisions for consultation. We would expect the local planning system to take full account of those issues, which do not constitute a threshold that would justify such proposals coming to the IPC.
The noble Baroness also asked whether local impact assessments could properly take account of air traffic movements. That would indeed be a proper matter to take account of. In respect of the question asked by my noble friend Lord Berkeley, it is “or” in the Bill. However, I am told that 50,000 air traffic movements at a freight airport is so large as not to capture any foreseeable projects, so I am not sure whether there is a real issue here in any event.
My Lords, I thought that we were dealing with the unforeseeable as well as the foreseeable. I readily acknowledge and had already acknowledged the dilemma that I presented myself with as to whether the Bill should be changed. I had wrestled with the and/or issue for quite some time.
The local authorities group SASIG—I cannot remember what that stands for, but it is the group within the LGA of local authorities that are particularly affected by airports—commented to me that it thought that the equivalence of numbers of movements and numbers of passengers was broadly right, but there we go. It is irrelevant, because I have achieved what I wanted, which was the acknowledgement of the relevance of movements to the local impact statement.
I am sorry that my noble friend Lady Tonge is not here to deal with the finer detail of EU provisions and I shall not attempt to answer that point. I thank the Minister for the assurances that he has given. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 58 and 59 not moved.]
Clause 26 [Rail freight interchanges]:
60: Clause 26, page 17, line 7, leave out “container” and insert “goods”
The noble Lord said: My Lords, I am deeply reluctant to steal the thunder of my noble friend Lord Berkeley, because these are his amendments. They are drafting amendments that better capture the objective that we were seeking than the wording in the Bill, in respect of the use of the term “goods” in preference to “container”. We agree with him that this is an improvement to the Bill. I am very glad to move the amendment and, in doing so, to accept the points that my noble friend made at an earlier stage of consideration of the Bill. I beg to move.
My Lords, briefly, I am very grateful to my noble friend. We got in a bit of a muddle about who was to move the amendments. I am really grateful to the officials in both departments for making the changes from “container” to “goods”. I find quite funny the need to define a goods train as meaning,
“a train that … consists of items of rolling stock designed to carry goods”.
I am sure that the parliamentary draftsmen have their reasons for doing it. I am very grateful to my noble friend for agreeing to the three amendments.
On Question, amendment agreed to.
61: Clause 26, page 17, line 16, leave out “container” and insert “goods”
62: Clause 26, page 17, line 17, leave out “in containers”
On Question, amendments agreed to.
Clause 31 [When development consent is required]:
63: Clause 31, page 19, line 36, leave out “or forms part of”
The noble Baroness said: My Lords, I shall speak also to Amendment No. 67. I do not know who will steal whose thunder on Amendment No. 69.
Amendments Nos. 63 and 67 are probing amendments that deal with the phrase,
“or forms part of a nationally significant infrastructure project”,
in the provisions explaining when development consent is required. I proposed a similar amendment in Committee and it was answered in these terms:
“where the development only forms part of a nationally significant infrastructure project rather than being one in its own right … [it] will continue to enjoy existing permitted development rights”.—[Official Report, 14/10/08; col. 724.]
The answer took me a little by surprise because I was not seeking assurances on that. I would have thought that it was quite conceivable that part of a project was viable without the whole. What happens if a developer wants to proceed with a part, not the whole? I continue to probe, very gently and fairly briefly, because of issues around the aggregate of several developments being below the threshold. At the previous stage the Minister said that the wording of the clause would not prejudice the promoter’s ability to carry out works below the thresholds, but that did not quite relate to my point.
On Amendment No. 69, the noble Baroness, Lady Andrews, said at that time, as I recall it, that she thought that we had a point, but I shall leave it to my noble friend to explain the amendment. I am sure that the Government will want to say why they are changing the Bill and why they feel they do not need to sign up to my words. However, it is a delight to see an amendment that is headed: “Baroness Hamwee, Lord Greaves, Baroness Andrews”. I am grateful to the Government. I beg to move.
My Lords, I shall be moving government Amendment No. 123 in this group. It is a purely technical amendment, simply a drafting change for the sake of clarity. The provisions on nationally significant infrastructure rely on a definition of development that is not necessarily completely the same as that used in Part 11 in relation to the community infrastructure levy. Our amendment ensures that the distinction is maintained.
The noble Baroness will be delighted to hear that we accept Amendment No. 69. She has persuaded us—as my noble friend Lord Berkeley did in the previous group—that it can improve the Bill in respect of “clusters” of projects, such as groups of wind farms in close proximity to each other which should be considered together for a better overview of their cumulative impact. It is not our intention that the Secretary of State will have a power to direct projects in different fields to the IPC together as a “cluster”. They must be in the same field together. The noble Baroness’s point is very well taken in that regard. We are therefore glad to accept Amendment No. 69.
On Amendments Nos. 63 and 67 and why the words “or forms part of” are included in the Bill, as the noble Baroness knows, we have set out thresholds in Part 3, and a project that meets these thresholds will subsequently be designated a nationally significant infrastructure project. Clause 31 ensures that to the extent that development will be carried out to further this overall project, development consent will be required for that development. Of course, it will be up to individual promoters which development works they choose to include in an application for development consents. At the very minimum, they must include those works that have a direct bearing on the construction of something which meets the thresholds in Part 3.
However, there may well be additional works, both onsite and elsewhere, that serve supporting functions to the main NSIP works. They might be needed for the purposes of preparation or finishing, to facilitate benefits, or to mitigate impacts. We want promoters of NSIPs to include in their development consent applications all relevant works, whether they are directly related to the main Part 3 thresholds or whether they form part of the wider projects. Therefore, under Clause 30, such development which “forms part of” a nationally significant infrastructure project will in future require development consent.
A promoter may wish to carry out development which is unrelated to a nationally significant infrastructure project. We want to ensure that promoters can carry out such development separately and enjoy existing permitted development rights where appropriate. As I mentioned in Committee, we do not want to create a loophole that allows promoters to salami-slice NSIP development into smaller chunks of work, which could therefore slip under the thresholds. For example, harbour facilities are not defined as such in the Bill but will often involve construction of a range of different things, such as a port access road, a container terminal, warehousing, berths for ships and so on. Together, they would make up a whole viable project. The proposed facilities need to be looked at as a whole to see whether the quantity threshold will be met. If they will, we want to ensure that development consent is required for each part of the development that forms part of the proposed project.
On that basis, we believe that the words “or form part of” are required to ensure that a developer cannot get round the need for development consent by separating out the types of development that go into an NSIP. I hope that, with that explanation, the noble Baroness will be able to withdraw her amendment and take some comfort from the fact that, where we have been persuaded by her arguments in relation to the later amendments, we have accepted them.
My Lords, I am looking ahead but cannot find the provision quickly enough. I wonder how this fits in with “associated development”, which is the term that we have had a bit of difficulty with. However, I think I understand that explanation better than I did the one on the previous occasion, which is all to do with me and nothing to do with the explanations. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
64: After Clause 31, insert the following new Clause—
In considering whether to designate a statement as a national policy statement or in considering whether to grant development consent which affects a listed building, scheduled monument, conservation area or a registered park, garden or battlefield, the Secretary of State or, as the case may be, the Commission shall have special regard to the desirability of preserving such assets, their settings or any features of special interest which they possess.”
The noble Lord said: My Lords, in Committee the Minister, my noble friend Lady Andrews, assured us that there was no intention on the part of the Government not to carry forward into the new regime for planning nationally significant infrastructure the existing legislative protections for the heritage. In that case, there is little, if any, difference between her objectives and mine. I am most grateful to her for allowing me to meet her in the department and for the care that she has taken to explain her position to me.
Having reflected carefully on all that she said, however, and having taken expert advice, I remain unpersuaded that the Bill succeeds in carrying forward those protections adequately. I am fortified in this view by the consultations that I have had with leading heritage organisations. Having spoken to the National Trust, the Historic Houses Association and Heritage Link, which represents the voluntary heritage sector, I have found that they all share my view that the Bill as it is, and the assurances so far given, fail to provide sufficiently robust protection for the heritage. They have all written to me confirming this, and I understand that each of the organisations has made its own representations to the Secretary of State. Sir Patrick Cormack MP, on behalf of the All-Party Parliamentary Group on the Arts and Heritage, has also written to the Secretary of State expressing the same anxiety.
Subsections (5) and (6) of Clause 102 require the commission to comply with existing laws. These existing laws, however, are not general but specific to the exercise of existing planning controls. The laws in question are the Planning (Listed Buildings and Conservation Areas) Act 1990 and the Ancient Monuments and Archaeological Areas Act 1979. They apply only to the existing planning consent regime. This Bill, of course, creates a new development consent regime—a separate sphere of planning law and policy for nationally significant infrastructure projects—which the existing regime does not control. Indeed, Clause 33 specifically disapplies the protections for the heritage in the 1979 and 1990 Acts.
My noble friend has offered the comfort that the Government intend to replicate the test set out in Sections 66 and 72 of the 1990 Act in the decision test in Clause 102 for the IPC and in Clause 103 for the Secretary of State. Clause 102(2)(c) gives the Secretary of State power to make regulations prescribing matters to which the IPC must have regard. Clause 103(2)(b) provides the same power for cases when the Secretary of State is the decision-maker. In Committee on 8 October, my noble friend said:
“We intend that in considering whether to grant development consent that would affect a listed building, the IPC shall have special regard to the desirability of preserving the building or its setting or any features of special architectural or historic interest which it possesses, and likewise for cases of major projects which affect scheduled monuments and conservation areas. To make that clear we intend to prescribe these matters in the decision test under the powers already in Clause 101(2)(c)”,—[Official Report, 8/10/08; col. 293.]
which is now Clause 102(2)(c). In those words my noble friend drew on the language of the 1990 Act, as I have done in my proposed new clause.
My noble friend also told us in Committee that the Government were about to revise planning policy guidance 15 on the historic environment and PPG16 on archaeology, unifying them into one planning policy statement, which,
“will in turn feed into the national policy statements and will be taken account of in IPC decisions”.—[Official Report, 8/10/08; col. 291.]
Those assurances are welcome and to an extent, valuable. I regret, however, that I do not draw sufficient comfort from them.
Regulations do not offer the same solidity of protection as statute. They can all too easily be altered by government or discarded. Parliament has no capacity to amend regulations; they are not subject to the same scrutiny as Bills; and they are rarely rejected. There could be enormous pressure to sweep aside anything as inconvenient as heritage when it stands in the path of proposed development, backed by powerful economic interests and other government departments that are not squeamish about heritage. Previous Governments have taken the view that protection of the historic environment is so important that it should be enshrined in statute and not left effectively to the discretion of the Secretary of State.
My noble friend made no specific mention in Committee of protection of registered parks, gardens and battlefields. At present they enjoy varying levels of protection. Parks and gardens are currently designated under a statutory scheme set out in Section 8C of the Historic Buildings and Ancient Monuments Act 1953. PPG15 says that preserving them should be a material planning consideration. It says the same about battlefield sites, although there is currently no statutory protection for them.
My noble friend has not promised new regulations to fill the void in protection of parks and gardens that the Bill would create. Instead, she has suggested that my proposed new clause would move us beyond maintaining current levels of protection and that, while she sympathises with that desire, she does not think it appropriate to do so in this Bill, using it to restructure or undermine a settlement that has been carefully worked out over time.
My response is that the Government have made it clear that that is exactly what they mean to do in the Heritage Protection Bill, which they have published in draft. In it, the Government have put forward their policy to extend the statutory duty to protect beyond listed buildings to other heritage assets in a new, unified system. The scope of the new unified system of designation and protection would include what are termed in the draft Bill “heritage open spaces” defined to include parks, gardens and battlefields.
We hope that the Heritage Protection Bill will be in the Government’s legislative programme for the next Session, but that is by no means a certainty. If it is included, the legislation will not be on the statute book for a year; if it is not, it may then not appear on the legislative programme for some years, if ever.
I also need to make the point that the Planning Bill and the Heritage Protection Bill ought to be consistent with each other. The development consent regime ought to be consistent with the Government’s policy on protection of the historic environment. The Planning Bill ought, therefore, to frame its provisions concerning heritage protection on the basis of the unified system that the Government proclaim they intend to bring in by means of the Heritage Protection Bill. If not, policy will be confused, and parks, gardens and battlefields will not be protected in the same way as other very important parts of our heritage. My proposed new clause would reconcile the two Bills.
There is one more point that I want to emphasise. In my desire, which is widely shared as our debate in Committee demonstrated, to protect the heritage in the face of the extraordinarily powerful forces of development that the Bill foretells, I am not seeking to be intransigent or unreasonable. The proposed new clause requires only that the Secretary of State and the commission shall have special regard to the desirability of preserving heritage assets. It does not require that, when preservation of the heritage is in conflict with infrastructure development, heritage must prevail. My case is that heritage should never be destroyed without the most careful weighing of the costs and benefits. We need new infrastructure, we need faster processes for taking decisions, but we also need to guard against destroying heritage casually. We need speed of decision-taking, but not poverty of decision-taking.
There is an immense amount at stake here for the heritage. This proposed new clause does no more than what the Government have said they want to do. It introduces into the new regime existing protections for heritage, and it enacts some additional protection that has already been proclaimed by the Government in a draft Bill as their policy. It does these things more surely and completely than the Government have so far proposed. I beg to move.
My Lords, the noble Lord, Lord Howarth, has shown admirable persistence in seeking to persuade the Government to accept this provision on the regard that should be given to the national heritage within the new planning structure that the Bill introduces. I know that the Minister has accepted a number of requests for additional provisions within the Bill—for example, on the attention to be given to good design—and, no doubt, she does not want to overload the Bill. None the less, this debate on Report is, in practice, the last stage during the passage of the Bill when we can ask the Government to consider favourably the new clause proposed in Amendment No. 64, which is moderately drafted. Like the noble Lord, Lord Howarth, I would like to see it included in the Bill.
My Lords, I add my support to the remarks of the noble Lord, Lord Howarth, and the sentiment behind them. When faced with large projects, the reality is invariably that the pressure seems to be behind those who wish to carry the project forward. It is almost by definition that once it has got that far, there is an enormously strong momentum. In those circumstances, the perennial tendency is for those things that cannot be reduced to figures in some sophisticated and more or less completely incomprehensible cost-benefit analysis to get swept to one side. As the noble Lord said, what is proposed is entirely in line with the proposed Heritage Protection Bill, and it would be inconsistent for the Government not to include it here.
My Lords, I support my noble friend warmly on this amendment and to make the point, which I have made on other amendments, that those of us who support the whole strategy of the Government and the importance of national planning to be able to make a success of our economy do so so that we have a society worth living in. If that society is to be worth living in, taking our heritage seriously and enjoying it must be priorities.
My Lords, there is very little that the noble Lord left unsaid, but I add my voice in support of this moderate and reasonably framed amendment. I am sure that we are at one on the importance of preserving our heritage. There is no issue there. In Committee, the Minister was at pains to assure us that she is passionate about design, and I am sure the same is equally true with regard to her attitude to preserving our heritage. The only issue appears to be how best to do it. From that point of view, I hope that she will be sympathetic to this amendment so that its mover is essentially pushing at an open door.
All the amendment does is to apply to the new development consent regime the existing statutory protections for heritage that apply under the town and country planning legislation. For reasons that I do not entirely understand, they are disapplied by the Bill in relation to the new development consent regime for nationally significant infrastructure. I should have thought that the important thing is to achieve consistency between the two regimes—the town and country planning regime and the new development consent regime. That has already been stressed by noble Lords who have spoken. After all, heritage is heritage regardless of which route the planning application goes down. It is no less so just because it is dealing with a major infrastructure project. Indeed, it might be argued that it is all the more important to protect heritage when we are dealing with major infrastructure projects that can, if not handled correctly, constitute a bigger blot on the landscape—a greater eyesore—than smaller developments. I hope that the Minister will be able to see her way to accepting this amendment.
My Lords, in Committee I spoke in support of the amendment moved by the noble Lord, Lord Howarth. Since this is the first time I have spoken on Report, I declare a variety of interests in heritage organisations; I was formerly chairman of the National Trust and so on. There is not much more to be said in argument than the noble Lord, Lord Howarth, so comprehensively and devastatingly said in just a few minutes flat. The Minister was extremely good to the noble Lord, Lord Judd, and me in helping us out with national parks. In terms of the Bill, that was probably a simpler issue because it is was that national parks are planning authorities. Nevertheless by the same token, I hope that the Minister will see her way to giving—however it is done in the Bill—equivalent status and protection to heritage assets.
My Lords, I listened closely to what noble Lords said. We have returned to a topic that has been assiduously pursued by my noble friend in ways that I can well appreciate. There is little that divides us when we consider the importance that we attach to protecting our heritage. I listened to the contributions from all around the House, which clearly put an obligation on me to explain as clearly as I can why we cannot accept this amendment. In so doing, I want to give every assurance to noble Lords that the Bill and the protections that will be carried forward will be more than sufficient to safeguard what noble Lords are concerned about. I shall also address the other issues that arise in the course of the argument.
My noble friend raised similar points in Committee, since when my officials and I have been in contact with him several times. I had hoped that we had been able to offer him the reassurance for which he was looking that the system that we are creating under this Bill will continue to maintain the highest levels of protection for heritage assets.
I know that this House takes the issue extremely seriously and I was grateful that my noble friend gave me advance warning of what he was going to say on Report. Let me try again to reassure all noble Lords who, rightly, want to be absolutely sure that the Bill does not deliberately or inadvertently reduce the protection available to our precious heritage and, in so doing, also to reassure the voluntary heritage organisations that have joined the debate.
As the noble Lord, Lord Low, said, we all have a common aim of maintaining existing statutory protection for heritage under the new infrastructure regime proposed in the Bill. I am grateful to my noble friend for outlining the other legislation and sharing with us details about why he remains concerned that the Bill will not deliver that objective. He is right when he says that Sections 66 and 72 of the Planning (Listed Buildings and Conservation Areas) Act 1990 will not apply to the new regime, but he knows that there is nothing sinister in that, as we are disapplying many consent regimes in so far as the new single consent regime will replace them. The Historic Buildings and Ancient Monuments Act 1953, which he cited, is untouched by the Bill.
In contrast to what my noble friend and the noble Lord, Lord Low, said, Clause 33 does not specifically disapply the protections for heritage in the 1979 and 1999 Acts. Clause 33 clarifies that nationally significant infrastructure projects do not need to seek separate listed building consent, conservation area consent or, indeed, scheduled monument consent, as those will be incorporated in the development consent order granted by the IPC. As I will explain, the fact that those consents will be contained inside the single consent regime in no way entails a reduction in the protection of our heritage.
I can do no more than reiterate in large part what I said in Committee. Under the Bill, a project that meets the threshold of a nationally significant project will require a single development consent. We have agreed across two days of debate on Report alone that that is one of the great prizes of the Bill. We are moving from the position where NSIP promoters need to secure a multitude of consents, including many, if not most, of the consents mentioned in Clause 33, to a position where a development consent order will cover all of them but will not require any consent under any of the existing consent regimes mentioned in Clause 33.
We certainly do not intend through the streamlining of consent regimes to undermine the vital protections that exist for heritage assets. Why should we take such a risk when we are completely in agreement about the unique value of our heritage and the need to be as vigilant as possible against any sort of vandalism? We intend through the Bill and secondary legislation to require that, when the IPC makes decisions on projects that would have implications for heritage assets, it must decide on those works in exactly the same way as a decision-maker under the Planning (Listed Buildings and Conservation Areas) Act 1990. We intend to replicate the tests set out in Sections 66 and 72 of that Act in the decision test in Clause 102 for the IPC and in Clause 103 for the Secretary of State by prescribing considerations set out in Sections 66 and 72 of the Act as matters to which the decision-maker must have regard. Clause 102(2)(c) gives the Secretary of State the power to do that by a set of regulations that prescribe matters to which the IPC must have regard and Clause 103(2)(b) provides an identical power for cases where the Secretary of State is the decision-maker.
In practice, the IPC, in considering whether to grant development consent that would affect a listed building, will have to have special regard to the desirability of preserving the building, its setting or any features of special architectural or historic interest that it possesses. It will be likewise for cases of major projects that affect conservation areas and scheduled ancient monuments.
My noble friend has argued that his advisers feel that regulations along the lines that I suggest will provide a significantly lesser level of protection than exists at the moment. I simply disagree with him. The fact that the protection is being enabled through regulations does not diminish or compromise its content or force. Decisions on works forming part of an NSIP that would affect listed buildings and other heritage assets will continue to be subject to the special considerations that form part of the existing heritage protection regime. That will be what the law requires.
In practical terms, it would be as difficult to water down regulations about how NSIPs that affect heritage assets should be considered as it would be to water down primary legislation affecting them. I remind noble Lords that Clause 224(5)(e) makes it absolutely clear that regulations under Clause 102(2)(c) or Clause 103(2)(b) are subject to affirmative resolution. My noble friend knows as well as I do how seriously this House takes its responsibilities in scrutinising and voting on affirmative regulations. It would be a brave Minister indeed who—not least knowing the assurances that I have given on the record—attempted to revise the affirmative regulations that we intend to introduce under Clause 102(2)(c) in such a way as to dilute heritage protection.
I say one other thing to my noble friend and other noble Lords, because I know the level of concern in the Chamber. The protections in the Bill have not been designed and advocated simply by my department, which is responsible for planning. They have the full approval of DCMS, the national custodian of heritage, and of all Ministers in that department. They would not contemplate a dilution of protections.
I hope that noble Lords will be content with those joint assurances. I also hope that they address my noble friend’s specific concerns about the 1990 Act. I should add that of course our regulations will require the IPC to take into account the tests in the Ancient Monuments and Archaeological Areas Act 1979, where an NSIP site includes a scheduled monument.
The noble Lord, Lord Williamson, pointed out that we have included many amendments in the Bill. We have done so with good reason. The Bill has been significantly improved by the contribution of noble Lords across the House. It is not a question of overloading the Bill; it is a question of the impact of the amendment. The amendment would cause problems with national policy statements. In short, it would undermine the integrity of the NPSs.
As noble Lords know, we intend national policy statements to take account of and reflect the range of policy issues relevant to decisions on nationally significant infrastructure. The amendment risks undermining that balance, because it isolates heritage for special treatment. It would wrench around the direction of travel in which we want to proceed by adding special requirements for heritage that will not be placed on any other aspect of policy. Such a step would weaken the coherence and effectiveness of the NPSs. It would cut across our objective of creating a streamlined single consent regime.
It would also undoubtedly invite a host of similar, understandable requests from other sectors. I have already rejected, against strong arguments from noble Lords opposite, the possibility of identifying flood risk as a separate and paramount issue. Other issues are equally significant: biodiversity could make an equal claim, as the noble Baroness, Lady Young, intimated in Committee. If we follow the logic of specifying all important issues in the Bill, we would end up not only with an unwieldy list in primary legislation but with the NPSs not reflecting but refracting policy.
I am grateful to my noble friend for reminding the House that we have already made it clear that we intend that NPSs will be required to take account of policy set out in planning policy statements where they are relevant, including the crucial ones on heritage and archaeology, PPS15 and PPS16. They will be doing so in future on the basis of revised, updated and stronger policy. That work is being undertaken now by my department in close conjunction with English Heritage. It will be an important opportunity to strengthen protection and to raise the profile of policy in relation to heritage and archaeology to ensure that it gets appropriate weight in decision-making.
My noble friend’s amendment also includes parks, gardens and battlefields specifically, from which I infer that he wants to provide them with comparable protection to that for listed buildings. Since we discussed this last week, he will not be surprised to hear that we do not believe that it would be appropriate to extend protections in this way. The Bill takes account of current legislation. The noble Lord is right that there is nothing on the statute book on parks and gardens that is similar to the specific consents that are required for works on listed buildings, scheduled monuments or conservation areas, but this is why the Bill does not mention them. The Bill is about nationally significant infrastructure projects and enabling them to obtain the consents necessary to allow them to proceed.
However desirable it may be, the Bill is simply not the place in which to rewrite the existing system or to extend the protection regime. Doing this would turn the Bill into a Pandora’s box of legislative opportunism. Our system of designation, combined with the opportunities provided through community consultation and the use of local lists, is designed to help us to make admittedly difficult judgments about what it is most important to preserve, and I do not wish to undermine that unintentionally.
The noble Lord knows that I cannot comment on future legislative Sessions, but I can say that the Bill has been drafted according to the current statute book and that putting parks, gardens and battlefields on to a national register would not confer any additional legal protection. It would send the signal that they should feature more prominently in any consideration, but that signal could also be strongly sent, if we so chose, in our revised and updated planning policy statements 15 and 16. That would bring parks, gardens and battlefields to the fore very effectively. It is not necessary to put into the Bill the protections that the noble Lord wants to achieve his objectives. His objectives can be achieved more appropriately in other ways.
Let me finish by giving a few more assurances. We have already put into the Bill—and have been delighted to do so—things that will strengthen the involvement of the national parks; we have clarified further how and when NPSs can be reviewed; we have provided for greater challenge in the examination process; we have made it clear that there must be a new appraisal of sustainability whenever an NPS is issued or revised; and we have clarified that the Secretary of State, when preparing NPSs, must have the objective of contributing to achievable sustainable development, which includes having regard to the desirability of mitigating or adapting to climate change and to achieving good design. These are all very good changes, driven by your Lordships.
We envisage that all NPSs will explicitly address heritage issues that are relevant to the sectors covered by them and we will ensure that heritage protection bodies such as English Heritage and Cadw will be specified as statutory consultees in the NPSs. This recognises the arguments posed by the noble Lord and specifically secures heritage organisations such as English Heritage as partners in the creation and content of the NPSs. They will be statutory consultees for individual applications that could affect heritage assets.
We have bound what we have done with a concern for heritage at every stage of the process and throughout the changes that we have made in the Bill. Given the earnestness with which I am saying this, I hope that noble Lords will understand that we have done everything conceivable to ensure that the protections that we currently enjoy are repeated and enforced in the Bill. I am grateful to my noble friend for allowing us to have such a thorough debate on this, but I hope at this point that he is satisfied that we have done our best and that we have satisfied his concerns.
My Lords, I warmly thank all noble Lords who have spoken. This has been an impressive debate and I hope that the Minister will acknowledge the significant expression of support for the proposed new clause from around the House. That, combined with the representations that have been made by the country’s leading heritage organisations, should, I still think, cause the Government to reflect carefully.
I am extremely disappointed by the Minister’s response. I will study carefully what she has said, but I do not think that she has advanced the argument. She says that I know that there is nothing sinister in the Government’s position, but the question that I am driven to ask is: is there a technical problem with the drafting of the Bill, or is there a political problem? She assured us that the DCMS is solidly with the DCLG in approving of the Bill as it is currently drafted, but it is difficult not to suppose that other government departments and agencies are extremely unwilling to see any satisfactory protection for heritage standing in the way of their ambitions and their requirements for moving rapidly forward with the development of new infrastructure. We are not against the development of new infrastructure; we are against the development of new infrastructure casually bulldozing our precious heritage. That is my fear.
I continue to believe that the protections that the Government are offering in the Bill are comparatively weak and insufficiently extensive. My noble friend makes the point that it would be a brave Minister who, having to bring regulations for affirmative approval before Parliament, dared to ignore the pledges that she has given on the record. There is some force in that point, but it remains the case that regulations are easily altered and that Parliament has little control over what regulations eventually do. I am also dissatisfied with what she said about parks, gardens and battlefields, because, as I said in my opening speech, government policy should be consistent. Government policy has been plainly declared in the Heritage Protection Bill and it is not right for the DCLG to disavow that Bill, which it seems to be doing.
I will think carefully about what my noble friend has said and I will consult further. I hope that there may be an opportunity for us to have another conversation in an amicable spirit, but we may well have to bring this issue and this proposed new clause back at Third Reading. In the mean time, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 32 [Meaning of “development”]:
65: Clause 32, page 20, line 1, after “Act” insert “(except in Part 11)”
66: Clause 32, page 20, line 9, after “Act” insert “(except in Part 11)”
On Question, amendments agreed to.
Clause 35 [Directions in relation to projects of national significance]:
[Amendment No. 67 not moved.]
68: Clause 35, page 22, line 16, leave out “one or more of the fields” and insert “a field”
69: Clause 35, page 22, line 22, leave out from first “in” to end of line 23 and insert “the same field”
On Question, amendments agreed to.
Schedule 2 [Amendments consequential on development consent regime]:
69A: Schedule 2, page 151, line 24, at end insert—
“Planning and Compulsory Purchase Act 2004 (c. 5)(1) The PCPA 2004 is amended as follows.
(2) After section 1(2) (regional spatial strategy) insert—
“(2A) In subsection (2) the Secretary of State’s policies include national policy statements.”
(3) In section 19(2)(a) (preparation of local plan documents) before “national policies” insert “national policy statements, other”.
(4) In section 38(5) (development plan) after “contained” insert “in a national policy statement or, where the conflict is not between a national policy statement and another document”.
(5) After section 117(3) (interpretation) insert—
“(3A) Expressions used in this Act and in the Planning Act 2008 have the same meaning in this Act as in that Act.””
The noble Lord said: My Lords, there has been a lot of discussion at various stages of the Bill, not least in our debate on the amendment which the noble Lord, Lord Howarth, just moved, about the relationship between national policy statements and other statements of government or local planning policy. Much of the discussion in the past has centred on whether the national policy statements should take account of existing planning policy statements, planning policy guidance, regional spatial strategies and local spatial strategies. A number of noble Lords, and indeed Members in the other place, wanted to import what they saw as the best of those into the national policy statements.
The purpose of my amendment is to look at this the other way round. If, after all the consultation, all the parliamentary scrutiny and all the rest of it, a national policy statement is established, that statement will eventually be adopted by government. It is felt that it should carry greater weight in local matters than the existing local regional documents, spatial strategies and the rest. That point was put to me rather forcefully by the British Wind Energy Association, which recognises that a large number of wind farm proposals will be below the thresholds that fall to be dealt with by the Infrastructure Planning Commission and will therefore still come under local planning arrangements.
It is well known—it was debated at some length during the passage of the Energy Bill; if the noble Lord, Lord Hunt of Kings Heath, were here, he would recognise it—that many of these proposals for the smaller size of wind farms are still languishing in the planning system. In a debate recently I quoted from the headline of an article which suggested that if wind farms are not coming forward, one should blame the councillors, the implication being that it is local planning authorities which make it very difficult to obtain the necessary planning guidance to get wind farms up and running.
My amendments would amend the Planning and Compulsory Purchase Act 2004 to make it absolutely clear to those concerned with drawing up regional or local planning strategies that they have to have regard to national policy statements. I recognise that national policy statements are specifically designed to deal with major projects, but techniques such as wind farms come in all shapes and sizes and a large number of them will be dealt with, as I said, by local planning authorities.
These amendments make it clear that, because of the status they will have, the national policy statements should be regarded as the overriding guidance. If we had, as I expect we will eventually, a national policy statement covering the whole energy field, and then another one directed specifically at renewables or perhaps just at wind energy, the local planning authorities should take great account of those documents to ensure that the policies on the larger scale are consistent with those that are applied at the smaller scale. It is a comparatively simple point. However, if there is any conflict, as there may well be, between the two statements, the propositions in the national policy statement should prevail. One would hope that, over time, local planning authorities at the regional, county or district level would bring their strategies into line with the national policy statement.
This is a comparatively short point. In her note to noble Lords taking part in discussions on the Bill, the noble Baroness wrote:
“It is also worth noting that under existing planning law regional planning bodies and local authorities must have regard to national policies and guidance when preparing development plans such as Regional Spatial Strategies and Local Development Frameworks. NPSs will fall into this category of national policies and guidance, and therefore once an NPS is established, it should be reflected as appropriate in relevant development plans”;
and she went on to enlarge on that. That is not provided for in this Bill. There is no downward link between the NPS and the local planning strategies, which is clearly what the Government want. My amendments suggest that those amendments to the 2004 Act will implement what the Government have stated as their intentions. I hope that Ministers will be able to smile on my amendments or, if they are not properly drafted, that they will come back at Third Reading with something that parliamentary counsel would approve of. I beg to move.
My Lords, I support the remarks made by the noble Lord, Lord Jenkin. I know from personal experience that wind farm applications in rural areas come up against a huge wall of resistance. Without some guidance or even a statement in the Bill along the lines suggested, wind energy, on which I believe our immediate future depends, will not play the part in our energy strategy that I know the Government desire. This is essential. I have dealt in local government with other matters of this sort, such as extracting minerals, finding encampments for Gypsies and the disposal of waste. Wherever you put them they will run up against huge prejudice and, no doubt, strong feeling locally, but they have to go somewhere. I warmly support the noble Lord’s proposal that planning policy guidance and national policy statements should take precedence over what I believe are local and often prejudiced concerns.
My Lords, I, too, support this amendment. I moved a similar amendment in Committee that related only to renewable energies, but this amendment better addresses the point that I sought to make. The point is well made in relation to wind energy, because we in this country have an objective to increase the amount of energy coming from renewable sources. Much wind energy will come from small-scale developments below the Bill’s threshold of 50 megawatts for a significant project. Those developments will therefore not be dealt with by the IPC, but they are critical to realising the national objectives of increasing the amount of energy from renewable sources.
There is a conceptual issue here. I perceive that this amendment will put national policy statements at the top of a hierarchy from which other policies cascade, particularly in relation to the development plan. I was involved as Lord Advocate in the change of planning regime in Scotland. In many respects this Bill is better than the one that we put forward in Scotland, but it perhaps falls down in one area; namely, the concept in Scotland of nationally significant projects, then major projects, and then local developments. There is a hierarchy of developments supported by a hierarchy of plans, with, at the apex of the planning system, a spatial policy, the national planning framework, within which are policies to support the development of renewable energy. In a sense, we have excised nationally significant projects and put them off to the Infrastructure Planning Commission with its own regime of national policy statements. We are asking the Government to ensure a consistency of approach from the top down to the bottom.
On the issue of wind energy, it is clear that there are many hold-ups in the system for introducing more renewables, such as connections to the National Grid. A good many of those hold-ups occur at the level of the local planning authority where it takes more time than is appropriate to obtain planning permission. There is a strong suspicion that part of the problem is that development plans do not recognise adequately the importance of renewable energy sources, particularly wind. In my submission, this is an important issue and we should ensure that there is consistency of approach.
My Lords, I support this amendment and indeed tabled a similar one in Committee. As other noble Lords have said, it provides a way of linking in legislative terms the big projects with all those that fall below it and generally come under the term of projects that people do not want in their back yards. They include not only the wind farms that so many noble Lords have talked about, but also rail freight terminals—I declare an interest as chairman of the Rail Freight Group—waste sites, hazardous waste disposal and ports. We have all come across examples of where people do not want developments in their back yards. I am not sure that you can have a mini nuclear reactor, but perhaps someone will come up with one of those.
The fact remains, as my noble and learned friend Lord Boyd has said so clearly, that we need a legislative link to ensure that policies at the top of big projects can cascade down and take precedence over the regional and local policies beneath them.
My Lords, I recall introducing some years ago a debate about the use of the splendid buildings at Greenwich. When we were looking through the estate agent’s particulars, we discovered that there is a mini nuclear reactor on the site.
Members on these Benches are not in the business of detracting from local autonomy, so I speak to this amendment in order to urge clarity in understanding what applies to what rather than seeking to use national policy statements to impose policy at the local level. If the Government want to do that, they should do so through planning policy statements.
I am grateful to the noble Lord, Lord Jenkin, for raising the issue. While I do not want to attribute this to other noble Lords, I am still quite confused about the hierarchy. When I raised a not completely unrelated issue last week on planning policy statements, the Minister said that they were “fundamentally different” as they are drawn up for different purposes, and distinguished the IPC where the NPS is the primary policy framework. I think that she could see my confusion—we were coming to the end of a fairly long day—and she said that she would write to me. I do not criticise the fact that I have not had a letter yet, as it has only been one or two working days, but we must finish our consideration of the Bill understanding exactly what the hierarchy is. If it is not a hierarchy but a series of completely separate pigeonholes, we need to understand that as well.
My Lords, I want to add my ha’penny-worth to this amendment. My noble friend raises an important point that requires clarification. It is a matter of observation and practice that a great many small issues in local areas run into quite severe difficulties when in general principle they are desirable, even if that does not necessarily mean that they are right. Like the noble Baroness, Lady Hamwee, I have difficulty with the idea that because something is in a national policy statement specifically designed to deal with really big national infrastructure projects, that principle will cascade through the existing guidance so that it has a relationship with regional spatial policies and so on. The linkage between national policy and regional spatial policy, which then cascades down to local planning authorities, is clear. I must admit that, until now, I have largely considered the Bill as very much outside of that field. However, my noble friend has raised a significant issue by asking how far this should apply.
With regard to the power generation sector, this country is likely to move quite seriously into what is known as dispersed generation and we will have a situation where many relatively small projects will produce a significant national effect. However, that will not happen if the projects are stopped at the local level. That is a real issue which needs to be considered because we all know how desirable and necessary these developments are. There are fiscal and other obstacles because at the moment many energy-friendly sources are, in relative cost terms, not particularly competitive. When we have a more effective carbon market, which I acknowledge is nothing to do with this Bill, some of those difficulties may be overcome and we will begin to see real incentives for people to push these proposals forward. At the moment, however, there are local difficulties.
My noble friend is right to put this proposal to the Government because we need to make the relationship absolutely clear. If this is not the right vehicle to deal with the problem, it needs to be thought about in another context.
My Lords, I shall try to address comprehensively Amendment No. 69A, moved by the noble Lord, Lord Jenkin. I shall set the scene for a moment by saying that the amendment would amend the Planning and Compulsory Purchase Act 2004 to ensure that the policy set out in a regional spatial strategy must have regard to national policy, including national policy statements, when development plans are prepared. It would require local planning authorities to have regard to national policy statements in addition to other national policy when preparing their development plans, and would require them to give primacy to policies in the latest national policy statements over existing policies within a development plan.
We understand the concerns and intentions behind the amendment. However, let me explain why we believe that they are unnecessary and, I hope, reassure him and other noble Lords. Under the 2004 Act, regional planning bodies and local planning authorities must have regard to all national policies and guidance when preparing development plans. National policy statements will, by being what they are, naturally fall into the category of national policies and guidance, so there is no need for them to be specifically referenced. Of course, any national policy, including national policy statements, will need to be taken into account in the development of the regional and local plans that follow them. Indeed, there is a statutory requirement, under Sections 5(3)(a) and 19(2)(a) of the Planning and Compulsory Purchase Act, for regional planning bodies and local planning authorities to have regard to national policies and guidance when preparing development plans. Once a national policy statement is established, it should be reflected as appropriate and relevant in development plans, including regional spatial strategies and local development frameworks. In cases where development plans have not yet been updated to take account of a particular national policy statement, any relevant new policy in the NPS should be taken into account by the local planning authority as a material consideration in decisions on development applications. Given that the Planning and Compulsory Purchase Act relates to the decision-making framework for the Town and Country Planning Act, we do not consider it appropriate to put an NPS on the same statutory footing as a development plan.
It would not be wise for NPSs to be given absolute primacy in local plans, which is what the amendment would achieve. The planning system is based on planning authorities having the flexibility to adapt national policies to local situations and local needs. While national policies clearly need to be reflected in local plans, we believe it is better to allow planning authorities to weave national policies, which would include national policy statements, into their local plans in their own way. For example, a local authority for an urban area might interpret a package of national policies, including national policy statements, which were not locationally specific differently from a planning authority for a rural area of outstanding natural beauty. In either case, they will have to have regard to the national policy statement but it will apply differently in their respective areas.
There are other safeguards. The Secretary of State has powers to make changes to a regional spatial strategy where a planning authority has ignored a relevant NPS in its preparation. With respect to the preparation of local development frameworks, documents are reviewed by an independent examiner who must be satisfied that they accord with national policy. Recommendations made by the examiner are binding. The Secretary of State also has the power to direct local authorities to make changes to documents and can, ultimately, call in the document and prepare it herself.
National policy statements are aimed primarily at providing a framework for the IPC to take decisions on major infrastructure projects. In addition, the planning White Paper indicated that national policy statements may also set out policies of relevance to local planning authorities taking decisions on smaller infrastructure applications, particularly with regard to renewable energy. The recent consultation on the national renewable energy strategy outlines the Government’s proposals for meeting the UK’s share of the EU-wide target for renewable energy. The consultation document on the strategy made clear our proposals for delivering renewable energy consents via the NPS and the town and country machinery, which I have just outlined. It makes clear the important role that planning plays and what we expect from good planning. Building on current policies, it sets out a number of ways in which improvements could be made to how renewable energy projects are planned and consented.
I should say to the noble Baroness, Lady Hamwee, that NPS preparation will take account of existing government policies, including PPSs where relevant. Once a national policy statement is completed the relevant PPS may need to be updated, as appropriate, to reflect the national policy statement. I hope that reassures the noble Lord and that he will withdraw the amendment.
My Lords, as always, I am extremely grateful to other noble Lords who joined in the debate and supported the thoughts behind these amendments. In the light of what has been said, the Minister should recognise that there is confusion and that this needs to be resolved so that there is greater clarity about the relationship between the proposed new national policy statements and all the other planning instruments at the different levels of local government that the planning system has to work to. I shall certainly study carefully what the noble Lord, Lord Patel of Bradford, has said. He spoke very quickly and, if one is getting on in years, it is not always easy to follow everything, but I shall read carefully what he said.
The noble and learned Lord, Lord Boyd of Duncansby, referred to the concept of the hierarchy and, as the noble Baroness, Lady Hamwee, said, there has to be a measure of local option. If you are going to make local government mean anything, it has to be in a position to make decisions. It is a question of what are the influences that will lead it to make a decision in a particular way. Where the IPC is dealing with infrastructure projects at the highest level, the same principles should apply at the local level. However, I am not entirely clear that the existing planning law provides for that. Throughout the Bill one has been very conscious of the influences of nimby. When I was Planning Minister at the Department of the Environment there was another one, NOTE—“not over there either”.
One has to recognise that there are often legitimate and powerful local pressures that will frustrate what most people would regard as being a national imperative. Somehow one has to deal with that. I always come back to the Hampshire experience of a plan for dealing with a major waste incinerator. There was total uproar and the plan was rejected. Waste incinerators generating power are useful instruments for both dealing with waste and generating power. Hampshire then set about a process of massive consultation within the county and, in the end, came up with a proposal which had sufficient support to get through. But behind it all there was, even then, a clear national policy that this ought to be encouraged and ought to happen. It was that which enabled it to drive the process forward and that is what I am asking for here.
I shall study what the Minister said and I hope that I will come to share his optimism that this will happen. Some of it will depend on government action independently of the Bill but following it, when the planning policy statements, the planning guidance and so on come to be revised. There will be an opportunity to make sure that the policies in the NPSs are properly reflected in the planning documents as they go down the line. It may take a little time but it is probably the right way. The amendment may not be the right way, in which case I beg leave to withdraw it.
Amendment, by leave, withdrawn.
Clause 37 [Applications for orders granting development consent]:
70: Clause 37, page 24, line 6, leave out from second “report” to end of line 10 and insert “giving details of—
(a) what has been done in compliance with sections 42, 47 and 48 in relation to a proposed application that has become the application,(b) any relevant responses, and(c) the account taken of any relevant responses.(8) In subsection (7) “relevant response” has the meaning given by section 49(3).”
On Question, amendment agreed to.
Clause 42 [Duty to consult]:
[Amendment No. 71 not moved.]
72: Clause 42, page 25, line 27, leave out subsections (2) and (3)
On Question, amendment agreed to.
Clause 43 [Local authorities for purposes of section 42(1)(b)]:
73: Clause 43, page 26, line 2, leave out second “or”
74: Clause 43, page 26, line 4, at end insert—
“(g) a National Park authority;(h) the Broads authority.”
On Question, amendments agreed to.
[Amendment No. 75 not moved.]
Clause 46 [Duty to notify Commission of proposed application]:
76: Clause 46, page 27, line 4, leave out “subsection (1) of”
77: Clause 46, page 27, line 5, leave out “subsection” and insert “section”
On Question, amendments agreed to.
Clause 47 [Duty to consult local community]:
78: Clause 47, page 27, line 11, leave out “development” and insert “application”
On Question, amendment agreed to.
[Amendment No. 79 not moved.]
80: Clause 47, page 27, line 25, leave out paragraphs (b) and (c)
81: After Clause 49, insert the following new Clause—
“Guidance about pre-application procedure
(1) Guidance may be issued about how to comply with the requirements of this Chapter.
(2) Guidance under this section may be issued by the Commission or the Secretary of State.
(3) The applicant must have regard to any guidance under this section.”
On Question, amendments agreed to.
Clause 52 [Rights of entry]:
81A: Clause 52, page 30, line 9, after “surveying” insert “, investigating”
The noble Lord said: My Lords, I shall speak also to Amendments Nos. 81B to 81D. We are moving now to Chapter 3—“Assistance for applicants and others”—and, in particular, Clause 52, which is concerned with rights of entry. One of the objectives of the Bill, quite rightly, is to avoid promoters having to make multiple applications and I have been encouraged by the Society of Parliamentary Agents to table the amendments because we have identified gaps in the pre-application procedures when compared with those of the Transport and Works Act, with which noble Lords will be very familiar.
The purpose of the amendments is to allow the IPC to give rights of entry to any person proposing to apply for development consent orders in relation to land not directly affected by a proposed project but which could be indirectly affected by it, possibly by displaced environmental effects. The amendment is necessary because Clause 52(2) currently limits a right of entry that the IPC can authorise before the application to land likely to be directly required for a project. The amendments also widen the scope of the clause as a whole so that, in addition to entry for surveying, taking levels, searching and boring, entry may be authorised for generally investigating the land and to carry out ecological and archaeological investigations. Apparatus may also need to be left on the land for any of those purposes.
It is important that subsection (3) makes clear that the surveys concerned include ecological surveys, in accordance with the TWA orders prescription. In addition, subsections (2)(a) and (b) are too limiting in terms of the scope of the surveys. To assess fully the impact of a proposed project it is often necessary to survey land adjacent or near to the project to check for possible displaced effects, which would not normally be land over which the promoter is intending to seek works or compulsory purchase powers.
We are talking about the pre-application stage. It is difficult to work out how an applicant can properly carry out an environmental impact assessment, an EIA, if access to land in the vicinity of the land to be acquired and used for the project is denied. As noble Lords will know, EIAs must consider all the effects of a project, including displaced effects. The scope of the clause should be expanded to cover generally investigating as well as surveying and taking levels. The clause should also cover ecological and archaeological investigations and allow apparatus such as monitoring equipment, which is often necessary for this, to be left on the land.
All these activities are often necessary for the purpose of carrying out a thorough EIA. Again, they are commonly used and needed in TWA orders. I beg to move.
My Lords, I support one aspect in particular of Amendment No. 81D, which would extend the right of entry to carry out archaeological investigations. I have to get what I can for the heritage, where I can. What the amendment proposes is entirely consonant with PPG16, which, when it was originally introduced, made an enormous difference in giving archaeologists the opportunity to investigate sites where development was proposed. I think this would be useful, and I hope my noble friend will think likewise.
My Lords, I hope I can give both my noble friends sufficient assurance on the points raised by the amendments. Essentially the group of amendments tabled by my noble friend Lord Berkeley seeks to change the current provisions in respect of the rights of entry to land set out in Clause 52, particularly those in respect of the right of entry in connection with a proposed application for an order granting development consent.
The amendments would add a provision that land may be entered for the purpose of investigating, as well as surveying, the land in connection with an application. In relation to a proposed application, they would add a provision for rights to enter land in the vicinity of the land that is the subject of the application, if it could be adversely affected by the proposals. They would also provide that a person authorised to enter on land should, as well as surveying, be able to carry out ecological or archaeological investigations and give them the power to place on, leave on and remove from land apparatus for use in connection with the exercise of any of those powers.
I understand that the amendments are based on provisions that are common in orders made under the Transport and Works Act 1992. Most recently, for example, Article 21 of the Felixstowe Branch Line and Ipswich Yard Improvement Order 2008 contains provisions similar to those my noble friend proposes. However, I emphasise that there is a clear difference between what Clause 52 seeks to achieve and such TWA orders as the one I have mentioned, in that TWA orders grant consent for works to be carried out. As such, they are the end product of the application process, and will already have undergone detailed examination to decide exactly what works should be carried out and where.
Having framed my response to the amendment in those broad terms, I shall now address the specific points raised by my noble friend. Amendment No. 81A would add a provision that land may be entered for the purpose of investigating it. I reassure him that we believe the amendment is actually met: the word “surveying” is sufficiently broad that it encompasses the meaning of “investigation”.
Amendments Nos. 81B and 81C would apply in relation to a proposed application and add a provision for rights to enter land in the vicinity of the land that is the subject of the proposed application, if it could be adversely affected by the proposals. We think that that is too wide a power for such an early stage in the process—that is, before an application has been made. The precise detail of the works may change during the examination stage, and the final order may be different in important respects from what was envisaged at the pre-application stage.
I draw my noble friend’s attention to Clause 96, which makes clear that the examination procedure rules may provide for the examining authority, alone or with others, to enter on to land, including land owned or occupied otherwise than by the applicant, for the purpose of inspecting it as part of the examining authority’s examination of the application. Rules under Clause 96 can therefore provide for the IPC to enter land, including land neighbouring the land that is the subject of the application, to determine what the impacts of the works will be and how they should be mitigated. I hope that meets his second point.
Amendment No. 81D would provide that a person authorised to enter on land should be able to carry out ecological or archaeological investigations and place on, leave on and remove from land apparatus for use in connection with the powers in Clause 52(3). I have two points in relation to that. First, as I said earlier, “survey” should be understood broadly. I reassure my noble friends that it can certainly mean archaeological and ecological surveys. Secondly, I note that Clause 52(3) concerns the power to,
“search and bore for the purpose of ascertaining the nature of the subsoil or the presence of minerals or other matter in it”.
That “other matter” means any other subsurface matter, including any archaeological features.
Clause 118 and Schedule 5 provide that development consent orders can make provision relating to matters ancillary to development, which can include the sorts of provisions about which my noble friend is concerned—for example, carrying out surveys or taking soil samples; the removal, disposal or re-siting of apparatus; and mitigation of the adverse impact of development on property. Therefore, at the stage when consent is granted, full rights of access to relevant land can be authorised.
I believe that this fully meets the intentions in my noble friend’s amendment. The Bill brings together a number of different consent regimes, as he knows. In doing so, it is necessarily similar to each in some ways and different in others. However, the provisions are robust and thorough, and effectively address the needs of promoters. I hope he agrees with me on that, and that he will be able to withdraw his amendment.
My Lords, I am grateful to my noble friend for that detailed explanation. She gives me quite a lot of comfort, but I still worry. At an early stage when people are trying to develop a project and they know they have to do a full EIA that will be subject to the most detailed examination, not only by the people granting permission but by the opposition, they should be able to get on to adjacent land and do their measurements. I recall, when I was working on the Channel Tunnel and the terminal at Folkestone a long time ago, that there was the prospect of a major landslide in that area. There were landslides all the way along that coast, not on land that the company was trying to buy but on land above it. If it had not been able to get on to the land above it, take the necessary measurements and leave the equipment in there, it could have been severely criticised at a later date.
I will read with great interest what my noble friend has said and see whether I am satisfied that it gives as good a basis for going forward with an application as the Transport and Works Act might do. In the mean time, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 81B to 81D not moved.]
Clause 54 [Acceptance of applications]:
82: Clause 54, page 32, line 15, after “to” insert—
“(a) the consultation report received under section 37(3)(c),(b) ”
83: Clause 54, page 32, line 16, at end insert “, and
(c) the extent to which the applicant has had regard to any guidance issued under section (Guidance about pre-application procedure).”
On Question, amendments agreed to.
Clause 59 [Local impact reports]:
[Amendments Nos. 84 and 85 not moved.]
85A: Clause 59, page 35, line 25, leave out subsection (6) and insert—
“(6) The deadline is the deadline that is prescribed, which must be such that the applicant and any other interested party are afforded a reasonable opportunity to make representations on the local impact report to a Panel or a single commissioner (as appropriate) before the deadline for completion of the examination of the application by the Panel or the single commissioner (see section 97).”
The noble Lord said: My Lords, my amendment may look a bit confusing, but it would bring forward the deadline that would be set out in regulations for the production of local authorities’ local impact reports. Interested parties such as promoters and objectors would have an opportunity to comment on the report to the IPC before the end of its examination period in relation to the application.
This is an issue that needs a lot of study, but it occurred to me that there does not appear to be any provision for a local authority’s local impact report to be seen and commented on by any other interested party. It is essential that there is such a provision in the interests of fairness and natural justice and so that the final decision is robust, particularly because the local impact report will be a key factor in the IPC’s decision, as confirmed in Clause 102. I felt that this defect could be mitigated by bringing forward the deadline provided in Clause 59(6) to some time before the end of the examination period. Perhaps the precise timing could be considered further and covered by regulations. I beg to move.
My Lords, we have three amendments in this group. I support what underlies the amendment tabled by the noble Lord, Lord Berkeley—it also underlies my Amendment No. 88—although local authorities are going to have a pretty short time. It is right to ensure that interested parties have opportunities to comment but I would not want any constraints to result from the shortening of deadlines, which would make the process more difficult.
My Amendment No. 88 would provide that,
“written representations shall be published on receipt by the Examining Authority”.
The words “on receipt” may be a bit too restrictive, but I hope that this will prompt the Minister to tell us that regulations will have something to say about this. Currently—I keep saying “currently”, as if we are abolishing the whole of the current process, but of course we are not—in the non-IPC regime, objectors, supporters and applicants have a chance to see the other representations that are made, which makes the process open and inclusive. I believe that that should be replicated in the IPC process.
Amendments Nos. 96 and 97 take us to the interpretation section for this chapter. My noble friend Lord Greaves talked about county and district councils at the last stage of our proceedings at a different point in the Bill, although it was under this chapter. He raised a point about the punctuation. The Bill refers to,
“a county council, or district council,”.
My noble friend rightly questioned the significance of the commas. I notice that when Hansard reported the debate, it did not use commas, saying,
“a local authority means a county council or a district council in England”.—[Official Report, 16/10/08; col. 903.]
It may have known something that we did not. The Minister acknowledged that there might be some ambiguity and said that she was concerned to ensure that no unnecessary confusion was caused by the punctuation. It is confusing, but, more than that, for all the purposes of Chapter 4, local authorities should mean both county councils and district councils. Of course, if there is only a unitary, then it is that unitary that, in most cases, will be regarded as a district authority. Where there are two tiers, then both tiers should be involved.
My Lords, this group of amendments deals with the issues relating to the examination of applications. Amendment No. 85A in the name of my noble friend Lord Berkeley seeks assurances that there will be a sufficient gap between the deadline for the submission of the local authority’s local impact report and the end of the examination process to give the applicant and other interested parties a reasonable opportunity to comment on its contents. He has raised a serious question and I am glad that he has done so. Before I deal with the amendment, noble Lords might find it useful if I set out why the Bill provides for the commission to invite the relevant local authority or local authorities to produce a local impact report in the first place.
We are absolutely clear that local authorities—the democratically elected representatives of the local community—should have a clear and important role in the new process, particularly ensuring that national decision-makers, including the proposed Infrastructure Planning Commission, take proper account of relevant local and regional factors and considerations. The Bill provides local authorities with an important role, representing their communities in the new process and ensuring that the local community is adequately consulted.
Local authorities will be consulted by the promoter of a project before they submit an application under the provisions of Part 5. The IPC will have to have regard to any report on the adequacy of the promoter’s consultation—a very important point—received from a local authority consultee when deciding whether to accept an application. Local authorities will be interested parties to the examination of an application.
In addition, Clause 59 requires the IPC, on accepting an application for development consent, to invite the relevant local authority or local authorities to produce a report of the likely impact on their area of the proposed development being applied for. Clause 102 then requires that the commission must have regard to the local impact report when making its decision. Clause 103 requires the Secretary of State to do just the same in cases that she decides—for example, where she exercises the power of intervention.
In drawing up this notion of the local impact report, we saw it as a serious undertaking. We wanted to give local authorities the longest time possible, as these will be detailed documents. They will reflect the impact of the development on the local development plans. They will reflect the comments of the communities themselves, which is why the deadline is the same as that for the completion of the examination of the application by the commission.
I understand my noble friend’s concerns that the applicant and certain other interested parties must not be excluded from commenting on the content of the local impact report. They should at least have the opportunity to comment on the local authority’s provisional views. I accept that the provisions of Clause 59(6) may inadvertently suggest that the applicant may be kept in the dark about the views of the local authority, so I am happy to give my noble friend Lord Berkeley the assurance that I will consider this further, ahead of Third Reading.
Amendment No. 88, in the names of the noble Baroness, Lady Hamwee, and the noble Lord, Lord Greaves, would require the examining authority to publish all written representations. Noble Lords will know, because we have rehearsed this many times in our consideration of the Bill, that access to written representations is central to our aim of making the examination process more open to the public. The Government believe that many issues that need to be examined and decided by the IPC can, in principle, be settled through exchanges of written evidence, particularly technical issues.
Those exchanges will speed up the process, reducing the need for often lengthy and, frankly, repetitious oral evidence-giving. That will also improve the analysis of evidence, by allowing technical questions to be tested in greater depth, and make the process much more accessible to members of the public, as it would be easier to understand the issues without having to attend or, indeed, to be represented at an often lengthy public inquiry. We therefore expect that interested parties would be given reasonable opportunities to comment on written representations, including those made by local authorities. The Government are clear that the procedural rules made by the Lord Chancellor under Clause 96 will cover the disclosure of written representations and correspondence to interested parties. I hope that that will take care of the concerns of the noble Baroness.
I do not think it appropriate to specify those sorts of matters in the Bill, for obvious reasons. However, I can certainly assure the House that we intend that written representations should be made available to interested parties: that, after all, is the key to the process. I am not sure that we should necessarily publish all the material or circulate it to all parties. There could be a huge amount of material, which might come in different formats and so on.
My Lords, I used the word “published” quite deliberately. It is important that interested parties should define themselves, rather than be defined by another body. These days, with the use of the internet, publication is quite easy. Could the Minister consider that aspect? I acknowledge that it is probably a matter for procedural rules, but I would not like to let this go by as if I agreed with that part of her comment.
My Lords, I am not at all surprised that the noble Baroness rose to her feet at that point. There are practical difficulties and the procedural rules have to be as generous and sufficient as possible, but let me think how we might best address that issue. The IPC would certainly have to present whatever was available for public inspection, while anyone could submit an FOI request for representations, but there is clearly a matter of principle here and I will certainly be in touch with the noble Baroness about it.
I hope that I can clarify the meaning of “local authority”, but I am afraid that there is nothing in my long speaking note about the offending commas. Amendments Nos. 96 and 97 would clarify that the meaning of “local authority”, for the purposes of the Bill, includes both the county councils and district councils. I explored this and must defer to counsel’s drafting, but I am reassured that the intention is to provide that the meaning of “local authority” applies to both county councils and district councils. For example, where a county council and a district council are affected by the development, both will be invited to prepare a local impact report and both will be statutory consultees. I hope that putting that on the record is sufficient to reassure noble Lords that the point is properly addressed and that nobody will be in any doubt. I hope that it is sufficient, in short, for these amendments not to be pressed.
My Lords, I am grateful to my noble friend for her positive answer. I thank her for what she said and look forward to further discussion, perhaps before Third Reading. It is always tempting to say that everything must be consequential with a Cabinet Office 12-week consultation period at every stage, but one then begins to lose the whole point of this process, which is to speed things up a bit. I am grateful and beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 66 [Panel member continuing though ceasing to be Commissioner]:
86: Clause 66, page 39, line 9, leave out “the prescribed form” and insert “writing to each of the following—
(a) the chief executive of the Commission;(b) the person appointed to chair the Commission, where the ex-Commissioner is not the person appointed to chair the Commission;(c) the lead member of the Panel, where the ex-Commissioner is not the lead member of the Panel”
The noble Baroness said: My Lords, Amendment No. 86, and Amendment No. 87 in Clause 80, remove unnecessary delegated powers in the Bill. Clause 66 provides that if a commissioner was, immediately before ceasing to be one, serving on a panel that has not concluded its business, he may, provided that he makes an election in a prescribed form, decide to continue as a panel member until the panel completes its work, unless he is no longer a commissioner because the Secretary of State has removed him from office. Clause 80 is a similar provision to allow a single commissioner to continue dealing with the application, though ceasing to be a commissioner.
We consider it essential that commissioners should be able to finish cases that they are working on before standing down, to ensure that the consideration of applications for development consent for nationally significant infrastructure projects is not unnecessarily disrupted by changes in personnel. The noble Baroness, Lady Hamwee, tabled amendments in Committee challenging the Government to explain why the requirement that the,
“election … is effective only if made in a prescribed form”,
was necessary. She felt that that was a little too prescriptive. Although this amendment was not debated in Committee—the noble Baroness kindly agreed not to move it, along with a number of other amendments, so that we had more time to debate the bigger issues that the Bill raises—I saw the point that she made and I agree with her.
Amendments Nos. 86 and 87 therefore remove these instances of delegated power and provide that the election is effective from Clauses 66 and 80 themselves, if notified in writing to the chair and chief executive of the commission, as well as to the lead member of the panel where the outgoing commissioner is examining the application as part of a panel. Whenever we are able, we seek to minimise the use of delegated power in this Bill. I hope that the noble Baroness feels that we have met the issue. I commend these amendments to the House. I beg to move.
87: Clause 80, page 43, line 41, leave out “the prescribed form” and insert “writing to each of the following—
(a) the chief executive of the Commission;(b) the person appointed to chair the Commission, where the ex-Commissioner is not the person appointed to chair the Commission”
On Question, amendment agreed to.
Clause 89 [Written representations]:
[Amendment No. 88 not moved.]
Clause 92 [Open-floor hearings]:
89: Clause 92, page 48, line 3, after “representations” insert “and call evidence”
The noble Viscount said: My Lords, I must start by apologising for not being in my place last Thursday when this group of amendments was called. I was not consulted about the grouping, and was therefore receiving some extremely useful education on a recondite point that arises under the Regulation of Investigatory Powers Act 2000. I am not sure that I am all that much wiser, but it was well worth doing.
I also wish the Minister to understand that I am not trying, in what I am about to say, to go back to the days of interminable planning inquiries. I participated in many of those and entirely appreciate the purpose of the system being introduced in the Bill. Nevertheless, I am not alone in wondering about the process of the examination of these large and important matters. The Government have already made the concession about having an advocate to the authority, a point that I wished to raise, but perhaps it goes a little beyond that.
The word that Ministers use perpetually in this connection is “representations”. In the planning world, those are pretty lowly objects: the lowest form of trying to say something about a planning application. I do not think that is what is meant. We have just heard about interested parties from the noble Baroness, Lady Hamwee, and that is much more important. Interested parties are not always people who just want the project to go away so that it does not affect them—although there are many who do. There are some who really do challenge some of the technical aspects of the project for good reason, and they wish to bring evidence to establish their case. There is not a word in anything that has been said so far about evidence or witnesses from people who want to make representations about a project.
I shall give just two examples. Noble Lords will all know about the City Airport, which was built in the Royal Albert Docks only after a very strict noise regime was worked out by a very skilful acoustics expert. It may have been modified as time has gone by, but it would never have happened if it had not been subject to conditions that imposed limits on the sort of aircraft, the time of flight and that type of thing. Those were conditions attached to the planning consent, which would now be requirements in the terminology of this Bill.
I do not know how many of your Lordships have been involved in any detail in the subject of noise, but it is a very technical subject that requires a most skilled appreciation of the various techniques and various aspects of it before a sensible conclusion can be reached. I have no doubt that in one of the airport projects that are going to be specified in the national plan there will be different methods of building a runway, a terminal or whatever it may be. These will need to be tested, not least perhaps in terms of the creation of noise and the disturbance to the immediate vicinity. I suppose that there will be skilled members of the panel with a good grounding in noise—although I am bound to say that I doubt it, as it is a very technical subject and not many people know about it.
The other proposition that I wish to be considered is the major highway project. It could be a railway project, but I shall take as an example a highway project. It will be a big scheme, as defined in the Bill, and there will probably be proposed, as there usually are, a number of alternative routes, which have to be considered at the examination. People putting forward the alternative routes will probably wish to challenge the assumptions on the basis of which the chosen route was proposed, which often involves the consideration of a traffic model.
I myself have been involved in a number of public inquiries using computer models and, although the model itself is only a short line of algebra, the inputs to the various factors in it make all the difference. If you change them around or alter them in a small way, it can make a colossal difference to the end result. What is more, the model is then iterated through the computer, so that you have an aggregation of the effects of it—and, of course, if you go too far, the aggregation is such that the thing becomes completely intolerable. Therefore, you have to have some judgment about when you stop the iterative process.
Are members of the panel going to be able to involve themselves with sufficient knowledge to do that sort of testing? Probably not. It took me a fortnight to do that sort of testing at the London School of Economics when we challenged the four ring-roads in the Greater London development plan. Those four ring-roads included the M25, which was already there; the other three never materialised, because there was something wrong with the models. I do not say that it was entirely due to me, but it was found that they should not be built—and they still have not been built. It was a very difficult proposition to grasp, which is why I want to go a little further into the process of the examination.
In such circumstances, there could very properly be an advocate to the authority who will help with this sort of thing, but how is he going to get his instructions? If no one on the panel understands the matter, who else is going to tell him what questions to ask and what points need to be tested? That is why in the amendment, which I shall not move but which is still in the Marshalled List, I wrote “assessors”. The High Court can appoint an advocate to the court and assessors if there is a technical matter that needs to be considered. It would of course be the assessor who gave the instruction to the advocate, and between them they would be able to work out the aspects of the proposition that need to be examined and tested so that the best result ensues.
No method mentioned so far will deal with that sort of complication. These are not “representations” but extremely skilled technical pieces of evidence, which will be put forward. They deserve to be treated with some respect and to be taken into account properly. Nothing I have seen so far indicates that that sort of process will take place, so I should like the Minister’s help to ensure that it will be properly dealt with. If it is not properly dealt with, there may be a judicial review, because the panel or the authority will be said not to have taken into account properly some of the things that it should have taken into account. If, on the other hand, it is left to a member of the panel to test these technical matters and he or she does not know enough about it to do it properly—or tries to do so, and then the panel comes down against the person objecting to the technical proposition that has been put forward—there will be a judicial review on the grounds of bias. It will be said that the panel decided beforehand, in the questions that were asked, which of the two propositions it prefers.
We have heard enough about judicial review in the proceedings of this Bill to know that we want to try to avoid that if we possibly can. The noble Lord, Lord Jenkin, talked about it last Thursday in relation to national strategic plans. We need to ensure that the actual process of the examination of an individual application is also proof, except in unusual circumstances, against challenge by judicial review, because that is not only long term but expensive and may mean that the whole thing is defeated.
I have not heard enough about this, and I am not the only person who is concerned. The current chairman of the planning Bar has spoken to me and other members of the House, including the Minister, raising these points. I am not asking to revert to the old form of massive planning inquiries, which take forever and ever, but these things are sufficiently difficult to require the right people with the right expertise to take part in the process. That is what my amendments are all about. I hope that the Minister will be able to reassure us that that will take place because, even if it is not on the face of the Bill, what she says in this House will be a valuable guide to those setting up the examination and those conducting it. I beg to move.
My Lords, I enthusiastically support the amendments. The noble Viscount used some very important terminology, including “evidence”, “test” and “witness”. “Evidence” is not just more or bigger representation; it is qualitatively quite different and it is proper that it should be tested. Witnesses are not just more people making representations. They speak to the evidence. There is little more that I can add, but the brevity of my remarks is qualitatively different from their strength.
My Lords, I am very pleased to have the opportunity to address these issues, and I am sorry that the noble Viscount was discomforted by the groupings last week. It is excellent that we have been able to separate out and have a specific debate on the issues that he raised. He brings a huge range of experience in planning law to bear on the Bill, and, as the noble Baroness, Lady Hamwee, said, he raised some extremely important questions on process.
I was comforted by the great good sense that the noble Viscount demonstrated by not wanting to revert to the present system. We can get a better system, including one that tests evidence properly and more effectively, by not returning to the present system. I absolutely understand his need to have something on the record—which enables me to spell out some of the processes that we are intent on. Before I address the amendments, I should like to set out the context of how the hearings themselves will work, so that we can see that in relation to the two extremely important instances raised. I quite agree that acoustic engineering and the measurement of noise is a fine science and is not something that, with the best will in the world, can be solved by amateur guesswork. The same can be said of his other example.
Clause 92 provides that the examining authority must arrange an open-floor hearing if at least one interested party informs it within the deadline notified to the parties by the examining authority that it wishes to be heard. It also provides that each interested party is entitled, subject to the examining authority’s powers of control over the conduct of the hearing, to make oral representations at an open-floor hearing. The amendment would widen the purpose of these hearings by entitling all interested parties to call witnesses to give evidence. I hope to be able to assure the noble Viscount that the Bill, and particularly the procedural rules, will meet his concerns.
I shall first briefly describe the new process of examination, which allows for a series of opportunities for interested parties to provide both written and oral evidence. I want to reassure the noble Viscount and the chairman of the Bar, to whom I have spoken, that the Bill provides for the proper consideration and testing of all evidence presented. We have laid a great deal of emphasis on written representations. All interested parties will have the opportunity to submit evidence in written form. We would expect much of the evidence from applications to be given in written form as such evidence would reflect the technical nature of much of the development application. The two examples which the noble Viscount gave illustrate why it would be helpful for people who will be affected by an application to understand some of the considerations, measurements and methodologies that have gone into making these judgments. It will also speed up the process of considering an application. It will make the process more accessible to members of the public as it will make it easier to understand the issues without having to turn up physically at the public inquiry.
I also want to stress that the Bill sets out very clear and explicit rights to be heard. The emphasis on written representations in Clause 89 is clearly subject to the requirements to hold hearings set out in Clauses 90, 91 and 92. The provisions in Clause 90 require the examining authority to hold oral hearings to probe specific issues where it considers that that is necessary to ensure adequate examination of an issue. I suspect that it is at that level of interrogation that we will see a significant need for expert digging into the questions, implications and impacts on interested parties in the community. Clearly, we want to ensure that adequate examination of an issue means that an interested party has a fair chance to put its case. Each interested party would be entitled to make oral representations about the issue at the hearing.
The provisions of Clause 91 require that whenever an application seeks authorisation for compulsory purchase, the examining authority must hold an oral hearing into compulsory acquisition, and any affected person would be entitled to make oral representations at that hearing. The provisions of Clause 92 require the examining authority to hold an open-floor hearing wherever an interested party notifies it by the deadline that it desires one. It is important to put on record that that is not discretionary. If an interested party wants an open-floor hearing and tells the commission that by the deadline, it will get an open-floor hearing. Finally, Clause 95 ensures that, should a party be prevented from making an oral representation for whatever reason, it can still make a written representation. In that process, all persons with an interest in the application have an opportunity to engage in the examination by giving evidence through either written or oral representations, provided that they have notified the examining authority of their interest within a deadline notified to them by the examining authority. In some cases, where this is permitted by the examining authority, they will also be able to call evidence. This is where we come to the amendments.
The noble Viscount’s amendments refer to the calling of other people—people not registered as interested parties—to give evidence. It would be fair to say that in most planning cases the calling of evidence normally refers to the calling of experts to give evidence. I am happy to set out how we expect that the calling of expert evidence and expert witnesses will be dealt with by the commission.
I begin by stressing that nothing in the Bill would prevent an “expert” registering himself or herself as an interested party to an application and then being able to give evidence in the normal course of the examination, through written representations or oral representations. They may also submit reports from experts who have been commissioned as part of their written representations. But it is worth saying that the whole process of examination at the application stage is predicated on the fact that, from the beginning of the process—the pre-pre-application process—we have built in a series of processes for interested parties to consult and agree with the examining authority how best to hear and test evidence. When a hearing takes place, Clause 93(3) provides that it is for the examining authority to decide how the hearing is to be conducted. That will include a decision about whether a person making representations should be permitted to call particular evidence from a third party. That means that the examining authority has discretion to allow expert witnesses to be called—much as in the current process the inspector has to agree to allow the calling of experts.
What is the extent of the discretion? These sorts of powers are perfectly standard, not least because examining authorities need to have powers to organise hearings and refuse to allow the giving of irrelevant information. If we are to avoid the possibility of an examination being seriously disrupted, it is right that the examining authority should have the power to call a halt to any representations that are not seriously made or are calculated to obstruct. That is where we looked at Clause 94, which completes the package of necessary powers.
Let me be clear on the noble Viscount’s important point about what rights interested parties will have and how they can exercise them. First, we consider that it would be appropriate for the examining authority itself to be able to call expert witnesses to give evidence on specific points at hearings. The noble Viscount, who was unable to be in his place when we talked about the provision of counsel support to the IPC, would have welcomed on that occasion, as he has today, the strength and extra expert interrogative power that this will give to the examining authority.
It is also worth putting on the record—the noble Viscount already knows this—that Clause 99 provides that a person may be appointed as an assessor to the examining authority to assist in the probing of technical evidence. Therefore, we have bolstered the power of the IPC through the provision of additional legal support and technical evidence. In addition, the examining authority is also able to call expert witnesses when requested to do so by an interested party where the commission feels that it would help it to understand the issues, or so that an interested party has a fair chance to put its case. This is consistent with the fact that we want to get to decisions on applications in a manner that is timely and efficient and an improvement on the present process.
However, I stress that a decision by the examining authority about whether to call expert witnesses cannot be arbitrary or one-sided. Interested parties would be able to make representations to the commission about how the application should be examined at the preliminary meeting—Clause 87—including making the case on whether they will be adequately or fairly treated if expert witnesses are not called to give evidence. They will be able to make subsequent representations that exchanges of written evidence or oral evidence have not properly settled an issue. Therefore, interested parties will certainly have a right to call for expert witnesses if they feel that it would be significant to their case and would help them make their case.
The examining authority will have to take all relevant representations into account before it decides whether it is necessary for a witness to be called to give evidence at a hearing. If the commission unreasonably refuses to allow interested parties to call witnesses, this decision could, of course, be open to legal challenge.
Although I hope the noble Viscount will be reassured on that point, I understand that, given that the Bill cannot carry the weight of detail, it would be useful to have other reassurances on the record. Therefore, the procedural rules made pursuant to Clause 96 will set out in greater detail the general requirements on how examinations are to be conducted. These rules will be in a statutory instrument which is consulted on in the usual way and laid before the House before it takes effect. We envisage that these rules might provide, for example, a power for the examining authority to call witnesses where it considers that that is necessary for the adequate examination of an application or so that an interested party has a fair chance to put its case and to respond to requests from interested parties that it should do so. I hope that this also meets the noble Viscount’s concern in Amendment No. 90 to provide that it is for the examining authority to decide whether a witness may be questioned at a hearing by another person. The reference in Clause 93(4) to,
“a person making oral representations at the hearing”,
would cover circumstances where a witness is called to give evidence.
On questioning witnesses at hearings, it is worth mentioning again that under the proposed new clause set out in government Amendment No. 94 the chair to the commission may appoint a barrister, solicitor or advocate to provide legal advice and assistance to the examining authority. That, of course, includes the ability to conduct oral questioning at a hearing.
I have gone into this matter in detail because I was invited to put it on the record. I hope that that is helpful. I hope noble Lords will be assured that the provisions of the new clause will ensure that decisions of the commission on whether to allow the questioning of expert witnesses by another person will be based on legal advice of the highest quality. It will also ensure that where the commission decides not to allow questioning by another person, it will have the ability properly to probe the evidence itself. The noble Viscount has done the House a service in enabling me to put that on the record. I hope he will feel satisfied with the safeguards I have mentioned.
My Lords, will the Minister make a distinction between the procedural matters of allowing examination and the testing of evidence and dealing with vexatious people, which is in the Bill? She knows that I feel the weight of what is in the Bill and the lead that the commissioners will take from what is spelt out. There seems to me to be an imbalance in those two things.
My Lords, I am thinking aloud—I think that is allowed at the Dispatch Box now and again—but the vexatious reference is probably included in the Bill because it is normally provided in statute. However, how one conducts the detail of examination is left to the instruments, which allow us to spell it out in detail. However, if I can find a better explanation, I shall provide it to the noble Baroness in writing.
My Lords, the House, and probably the public at large, will be greatly enlightened by what the noble Baroness has said. It certainly deserves to be carefully read. I do not think that anything like this has been spelt out before. Consequently, this must have been worth while. The only thing on which I urge her to reflect is that it is much more likely that these sorts of things can be properly thrashed out at a specific issue hearing than at an open-floor meeting, because the subject matter is of a nature that would make it not an open-floor meeting but a cleared-floor one almost immediately. These are very technical and difficult subjects which bore most people to death. Therefore, it is much better to deal with them under Clause 90 than at an open-floor hearing. I shall read what she said. If, as I believe—she nodded—this is the first time this matter has been spelt out, it will be of much more general interest than just to me and those who have taken part in this debate. I thank her very much for giving us the advantage of her explanation. For the moment, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 93 [Hearings: general provisions]:
[Amendments Nos. 90 and 91 not moved.]
92: Clause 93, page 48, line 35, leave out “, exceptionally,”
On Question, amendment agreed to.
Clause 96 [Procedure rules]:
[Amendment No. 93 not moved.]
94: After Clause 99, insert the following new Clause—
“Legal advice and assistance
(1) The person appointed to chair the Commission may, at the request of the Examining authority, appoint a barrister, solicitor or advocate to provide legal advice and assistance to the Examining authority in connection with its examination of the application.
(2) The assistance that may be given by a person appointed under subsection (1) includes carrying out on behalf of the Examining authority any oral questioning of a person making representations at a hearing.”
On Question, amendment agreed to.
[Amendment No. 95 not moved.]
Clause 100 [Interpretation of Chapter 4: “interested party” and other expressions]:
[Amendments Nos. 96 and 97 not moved.]
98: Clause 100, page 52, line 18, leave out second “or”
99: Clause 100, page 52, line 20, at end insert—
“(g) a National Park authority;(h) the Broads authority.”
On Question, amendments agreed to.
[Amendment No. 100 not moved.]
Clause 101 [Cases where Secretary of State is, and meaning of, decision-maker]:
[Amendment No. 101 not moved.]
Clause 102 [Decisions of Panel and Council]:
[Amendment No. 102 not moved.]