Skip to main content

Marine and Coastal Access Bill [HL]

Volume 707: debated on Tuesday 10 February 2009

Committee (4th Day) (Continued)

Amendment 88B

Moved by

88B: Clause 49, page 24, line 35, leave out “the sustainable development of the area” and insert “sustainable development”

Clause 49(1) defines marine plans. Subsection (2) defines a marine plan as a document which, among other things,

“states the authority’s policies (however expressed) for and in connection with the sustainable development of the area”.

The amendment would replace the words,

“the sustainable development of the area”,

with the words,

“sustainable development”.

This is intended be a helpful amendment. It would not to change anything substantial in the Bill or the intentions or operations that will happen after the Bill has been passed, nor is it meant to poke or probe the Government; it would simply put in the Bill words that mean what we assume the Government want the legislation to mean.

Sustainable development is not something that is restricted to a particular area surrounded by a particular boundary. Clearly, if you are defining areas for the purposes of marine planning, you have to draw boundaries. To that extent, you have to have boundaries. If you are carrying out policies that involve what on land might be called land-use policies and perhaps should be called sea-use policies—I do not know—you are defining things within that area. However, if you are defining the aims and purposes of what goes on in that area, the boundaries are irrelevant. Therefore, the clause should refer to “sustainable development” rather than,

“the sustainable development of the area”.

I have one or two examples. Marine conservation zones in the Bill will only be relevant as part of the network of marine conservations zones. Those which will be defined in the area of a particular marine plan can only be considered in terms of sustainability as part of that much larger network covering all British seas. The effects of extractive dredging or the dumping of any materials in the sea might go well beyond the boundaries of a particular marine plan area, affecting the movement of materials through currents and tides. Geomorphological processes on the seabed and the coast might go outside those areas. They are clearly aspects of sustainability.

The sustainable energy contribution of each marine plan to its area must be seen within the context of an energy plan for the whole country, on both land and sea as well as in other marine planning areas. The boundaries are irrelevant. The contributions of wind or tidal energy to the country’s overall energy supply—they are clearly major energy sustainability issues—are relevant. The contribution of a particular planning area is obviously part of that, but it is not the whole story.

A final example concerns what we have already discussed today, and no doubt will discuss further; namely, the integrated planning of the coast and the need for the sustainability of the marine planning area to be clearly closely related to the sustainability of the adjacent land. As regards integrated planning by the coast, you cannot refer to sustainability just within one area as it affects wider areas. It is a question of causes and effects. What happens in a marine planning area will affect what happens in surrounding areas, in the British seas as a whole and on land throughout the country. I beg to move.

I am grateful to the noble Lord for introducing the amendment. We had considerable debate on sustainable development when we discussed Part 1 and the Marine Management Organisation and indeed when we discussed marine policy statements in Clause 42. In our previous Committee discussions we debated at length the amendments of the noble Baroness, Lady Hamwee, to Clause 42. I expect that just as she was concerned that there was consistency between the marine policy statement and between geographical areas, she is concerned here that the statement of sustainable development set out in the marine policy statement may be inconsistent with that set out in the regional plans drawn up by the planning authorities.

It is clear that the marine policy statement must contain a statement of how those participating administrations’ policies will contribute to the achievement of sustainable development of the UK marine area. Clause 49 requires that a marine plan should similarly state those policies in connection with the area for which that plan is prepared.

This gives me an opportunity to outline how marine plans are intended to operate at the regional level. They will help crystallise and implement the broader policy aims set out in the marine policy statement. The marine plan authorities may prepare plans for their particular plan areas. The Secretary of State can plan for English regions, the Scottish Ministers can plan for the offshore Scottish region, the Welsh Ministers can plan for the Welsh inshore and offshore regions and the Department of the Environment in Northern Ireland can plan for the Northern Ireland offshore region. I do not think that there should be a risk of inconsistencies between the regional plans and the marine policy statement. Plans will have to be in accordance with the marine policy statement which will govern marine planning. There are a number of incentives in the Bill for plan authorities to draw up plans that will be agreed by the Secretary of State and that will deliver the holistic marine planning that everyone in the Committee wants to see. I have no doubt that the Secretary of State would not agree to plans which showed incompatibility with the marine policy statement.

It is important for marine plan functions in Clause 49 to be allowed to be operated either at a regional or sub-regional level. As marine plans will relate only to a particular area, it is appropriate that they state sustainable development policies for that area. Broader linkages either to sustainable development across UK waters as a whole, or the plan authorities policies as a whole, are for the marine policy statement, which will be agreed by the policy authorities together.

Clause 42 requires the marine policy statement to state general policies for contributing to the achievement of sustainable development in the UK marine area. Given the obligation to state general policies in Clause 42 and policies in relation to plan areas in Clause 49, I think that we have met the objectives which the noble Lord, Lord Greaves, sought to emphasise in the amendment in relation to sustainable development. I hear what the noble Lord says in relation to the territorial authorities, but he will recognise that the Bill legislates on the marine authorities and the responsibility in those areas. Of course, he is right that the whole sustainable policy has to be taken in the round, but what I have identified, in particular in Clauses 42 and 49, is the comprehensive nature of the demand on the general policies for marine development to be based on the necessity for sustainable development. I hope, with that assurance, that he will feel able to withdraw his amendment with confidence.

My noble friend may withdraw the amendment, but I hope that he does not do so with confidence. I do not understand why the Government are defensive about this. Clause 49 could have referred back to Clause 42, period, but it does not. It uses different terminology, and it is more limited. That must mean something. The Minister’s reply was to the effect that we should not worry about it, it does not mean anything and it does not reduce the impact of Clause 42. I, for one, am not very confident about it. I am less confident than before we started, in fact.

I am grateful to the noble Baroness, and I am sorry that the phrase that the noble Lord should withdraw his amendment “with confidence” caused a little frisson. By that, I meant that I hoped that I had been confident enough in my presentation to reassure the noble Lord. The noble Baroness has indicated why I have not been so persuasive. I emphasise that the two clauses may use different terminology, as she indicated, because they relate to two parts of the planning process. Nevertheless, this overall commitment is emphasised in Clause 42 with the marine policy statement.

I assure the noble Baroness and the noble Lord, Lord Greaves, that we have clearly spelt out within the framework of the Bill the obligation on the need for sustainable development as an absolute priority for both component parts of the planning mechanism. I do not think that the amendment adds anything to that. Is the noble Lord saying that the Bill does not have enough emphasis on sustainable development? I heard that point being made when we discussed the earlier amendments. Of course, the Government recognise this commitment, and it is clearly emphasised in both these crucial clauses. I hope that, having pressed the Government on our commitment, which is clearly expressed in these clauses, the noble Lord will feel that he has had a reasonable response to his interesting amendment.

My noble friend is right that I am not going to withdraw the amendment with confidence, though I will withdraw it with hope. Having listened very carefully to what the Minister said and to his careful and thorough discussion of this issue, I think that he was arguing in favour of accepting my amendment rather than rejecting it. His arguments were impeccable, but they were not logical in relation to the words that we have here.

If the concept of sustainability in relation to development applies only within the borders of the UK marine zone in terms of the MPS or of each planning area, important areas are missed out. The noble Lord dismissed the idea that the land might have relevance, but what you do in the sea along the coast has a huge effect on the land. It is not just what happens in the sea that matters, but what happens on the seaward or oceanward edge of the UK marine area and beyond.

That happens for other countries’ territorial areas, such as the rest of Europe, including Ireland. There are strange gaps in the UK marine area around the Crown territories. All these surely have to be taken into account. All that we are saying is: talk about sustainable development and not just sustainable development in the area.

I understand that. I accept entirely the objective in those terms. It will be necessary for the appropriate authority to make sure that it meets this absolutely critical objective of the Government. However, we are talking about the powers of an authority in relation to a plan that is specifically linked to its area. Of course the clause indicates that the sustainable development aspect relates to the effect that it has on any related area, but the plan is bound to relate to the authority which derives its power from the Bill. For us to introduce into a Bill related to the marine environment obligations that relate to other authorities would clearly not be appropriate.

We are saying that where these authorities act, they must have regard to sustainable development. Of course the noble Lord is right that the concept of sustainable development cannot have a boundary in that sense, but, equally clearly, you have to put an obligation on a specific authority and then, beyond that, you need co-ordination between authorities. That is a matter for the wider government position in its pursuit of authorities, but this Bill is about these authorities, and that is why in this case the sustainable development aspect relates specifically to the area for which the authority has responsibility.

I am grateful for that explanation. We should not discuss this much further, but I should be clear that I am talking not about co-ordination but about policies carried out within a planning area, regardless of whether people outside it want to co-ordinate and co-operate. It does not matter. They might refuse to talk and to co-ordinate, but the policies carried out within the area should still have regard to the effect on sustainable development outside the boundaries of the area because, as the Minister said, it is about sustainable development. If that is the case, why not put that in the Bill?

Finally, I think that the Minister was talking about Clause 49(1)(a), about the plan. Clause 49(1)(b) is about the policies. The plan has to be constrained within the boundary; the submission here is that the policies must have regard to the effect that they are having beyond the boundary. Having said that, I beg leave to withdraw the amendment.

Amendment 88B withdrawn.

Amendments 89 to 89ZA not moved.

Amendment 89ZC

Moved by

89ZC: Clause 49, page 25, line 4, leave out “unless relevant considerations indicate otherwise”

I am happy to move the amendment, but I had wondered what the name of the noble Lord, Lord Hanningfield, was doing here and why I had not put my name to it, unless I had changed personality in the eyes of the Public Bill Office.

Perhaps I should just get on with it. Amendment 89ZC uses the same language as Amendment 90ZC and is grouped with Amendments 89A and 90A. It deals with “relevant considerations”. Taking just one of the provisions, I was surprised to see that the Bill states:

“A marine plan must be in conformity with any MPS”,

for the area,

“unless relevant considerations indicate otherwise”.

I searched unsuccessfully for a definition of “relevant considerations”. The two long amendments are not my drafting—I would not have had the imagination to do more than delete the phrase—but they suggest the circumstances in which relevant considerations might apply, and those are listed. I shall not take your Lordships’ time by reading the four, and in the other case six, circumstances.

I may be told otherwise but I do not believe that the term has achieved an understanding in the way that in terrestrial planning “material consideration” has. I understand that the Government rejected the use of that term on the basis that we are looking at a new type of planning regime, perhaps a new type of planning and, as referred to by my noble friend Lady Miller, new planners, who do not yet exist—at least, they exist but they do not have the qualifications; they are to come.

I think that it is dangerous to have such a wide, undefined and uncircumscribed clause. To my mind, the term “relevant” is wider and looser than “material”, which I accept has case law behind it. It certainly does not mean as much as “significant”. A matter can be relevant but at the same time unimportant, yet, if it were unimportant but relevant, it would still appear to detract from the obligation for a marine plan to be in conformity with an MPS.

The Government may defend the wording by saying that we will have guidance, but that is the least that we should have. If we are to have guidance, I hope that they have begun to work on it and can share with your Lordships what it might say before we proceed too much further through the Bill. It seems to me that this matter needs to be pinned down far more than is the case at the moment. We cannot leave it to the good will of various authorities; it is too open to challenge. I beg to move.

These amendments, which we support, derive from the Link coalition of wildlife and environmental groups, and we are very grateful to it for suggesting them to us. The noble Baroness can be forgiven because, on the earlier list of amendments, the name of my noble friend Lord Hanningfield and not hers was attached to this one. That was a technical error, which is rare in this place, but she can be forgiven for being confused by it.

We feel a great deal of sympathy for the amendments, which are designed to clarify terms used in the Bill, making them more specific and transparent. The Committee has already spent much time on marine policy statements. The Minister described an MPS as a statement that will bring together all our maritime policies, covering social, economic and environmental considerations, set out a clear and consistent framework for coastal and marine regulators and users, and help everyone to work together towards common, agreed objectives.

That is no mean aspiration and, even if it might sound like motherhood and apple pie, I cannot disagree that this must be the objective. However, it is even more crucial that public authorities will be required to obey marine policy statements. If there are areas where “relevant considerations” can be used not to follow the marine provisions, they must be defined clearly and beyond doubt. If the marine planning statement is heralded as a truly uniting and effective document, it is necessary to ensure that marine plans will not be out of sync with it and that public authorities will be unable to disregard the appropriate marine policy statements without due cause as defined in the Bill.

We understand the Government’s desire for flexibility. Does the Minister not agree that too much room for manoeuvre will just mean that the Marine and Coastal Access Bill will not be as powerful or as effective as it could be? Does he not share a concern that “relevant considerations” could be exploited by those in a marine planning area who would like to be exempt from the MPS or by a public authority that does not want to act in accordance with a marine policy document? To this end, we also support the production of guidance about the sort of relevant considerations that would allow marine plans not to follow the MPS.

I am grateful to the noble Baroness and the noble Lord for speaking to these amendments, as it allows me to clarify what is meant by “relevant considerations” and to say why they are the appropriate words in the Bill.

Amendments 89A and 90A follow the Planning Act in trying to pin down the meaning of relevant considerations and the circumstances in which they might justify a decision-maker departing from provisions of either a marine policy statement or a plan. Clearly, this is an important issue that goes directly to the degree of trust that people and organisations—the decision-makers—can place in those documents. I can well understand why the amendments have been tabled and what lies behind them.

Clause 49 requires a marine plan to be in conformity with the marine policy statement unless “relevant considerations” indicate otherwise. Similarly, Clause 56 requires certain decisions to be taken in accordance with the marine policy statement and plans unless “relevant considerations” indicate otherwise. This approach of a general duty of conformity, which also allows relevant or, indeed, material considerations to be taken into account, is familiar from terrestrial planning legislation, where it has worked effectively for many years.

I shall come back to that comparison with terrestrial planning legislation in a moment, but first I want to deal with Amendments 89ZC and 90ZC. They would impose a strict statutory duty on marine planning authorities and decision-makers to follow the content of the marine policy statement or marine plans without exception, regardless of any other factors that might suggest that perhaps another approach might be more appropriate. I understand that part of the reason for the amendments is to seek clarity, but they would cause a major problem by removing from planners and decision-makers the ability to take new science and evidence into account.

We have to face up to the fact that however hard we and our colleagues in the devolved Administrations endeavour in trying to prepare marine policy statements and marine plans, we will never be able to address every possible set of circumstances which may face marine planners and decision-makers when trying to apply those policies to real places, projects and people.

The noble Lord, Lord Taylor, said that the way in which this has been constructed gives too much room for manoeuvre, and I see where he is coming from. The problem was raised in our original debate when he posed the risk that in order to gain agreement, particularly in relation to the marine policy statement, everything is watered down. This is a worry here, too. If you could never depart from what was in the MPS, the risk is that there would be a perverse incentive and that the MPS and plan would be so vague that any marine plan or decision could be said to be in accordance with it. As we argued earlier, that would achieve nothing. We would therefore be most worried about an amendment that removed any flexibility whatever.

Amendment 96A seeks to add to Clause 59(4) a provision for challenges to be brought against the planning authority if a decision is taken which does not conform to the marine policy statement. I understand that that would follow from Amendment 89ZC, which would make marine plans always be in conformity with the marine policy statement. I want to point out that at Clause 59 the Bill recognises the importance of marine plan authorities to be able to make plans with relevant considerations in mind, which they feel are necessary and justifiable, without the fear of legal challenge being brought against them because they are not in total conformity with the marine policy statement.

Apart from the concern about an absolute duty, which would fetter any sensible use of discretion, there is also a question of timing. Clearly, circumstances change and sometimes it will not be possible to wait for a marine plan or marine policy statement to be amended. That is particularly so because Schedules 5 and 6 set out an extensive process which must be undertaken before either the MPS or the marine plan can be adopted. We therefore believe that there must be an opportunity for marine policy statements to be amended. It would mean that the marine plans were no longer in strict conformity, but a legal challenge in those circumstances will not be in anyone’s interest.

We debated the issue briefly at Second Reading. I said then that we do not expect marine plan authorities or decision-makers regularly to depart from the provisions in the MPS or marine plan. I fully accept that this should be very much the exception. Marine plan authorities are, in practice, the same Ministers who adopt the marine policy statement as policy authorities. They will not want to adopt a marine plan which contradicts their own policies as stated in the MPS unless there are very good reasons for doing so.

Similarly, for the whole integrity of this new system, we would not want decision-makers regularly to ignore the MPS or plan since, clearly, that would undermine the confidence of marine users who will want to use and understand these documents. That is why we have imposed a requirement in Clause 56(2); if decision-makers depart from the MPS or plan, they must give their reasons for doing so. I am sure that marine plan authorities will want to monitor decisions that do not follow the MPS or plans as part of their review of the effects and effectiveness of plans under Clause 58. I would be very surprised if the process of parliamentary scrutiny did not involve itself in such matters. Large numbers of decisions made otherwise than in accordance with the MPS or plans are likely to be a signal that those policies are not working in that area. They would trigger a review and amendment of a plan or even of the marine policy statement.

Turning to Amendments 89A and 90A, I am not as expert as the noble Baroness or the noble Lord on the intricacies of the Planning Act, but Section 104 has already featured in our discussions. Notwithstanding some similarities between national policy statements under that Act and the marine policy statement under this Bill, there are key differences in the purposes of these documents and the way they will apply to decisions, which is why it is not always appropriate simply to transplant what is in the Planning Act into the Bill.

National policy statements will be the primary consideration for decisions by a single body on a small number of nationally significant infrastructure projects. These projects have been identified as being so significant to the national interest that a special planning procedure was needed to ensure that those national needs were given proper weight. In contrast, the marine policy statement and plans are more akin to terrestrial development documents designed to deal with the vast majority of everyday cases that are not nationally significant because they do not meet the threshold contained in the Planning Act.

I was wondering whether to intervene to make that point. Is it not the case that local development plans, as they were, and local development framework documents, as they will now be, have to have a certificate that they are in conformity with the regional spatial strategy, formerly the structure plans?

That is helpful information, and I am grateful to the noble Lord. I do not claim to be an expert on the intricacies of the Planning Act. The point I was making is that there is a difference between the marine policy statement and the national policy statement that applies as a result of the Planning Act. The marine policy statement and plans will also affect decisions by a much larger number of organisations and a much wider range of projects than will be considered by the Infrastructure Planning Commission. As I said earlier, we expect the vast majority of decisions to be taken fully in accordance with the MPS and plans.

I shall now deal with Amendment 89A, although much of what I have to say applies to Amendment 90A as well. I agree with the noble Lord and the noble Baroness that many of the relevant considerations that they have suggested in these amendments, such as specific local or site circumstances, new data, evidence of adverse impacts, other legal obligations and so on, would be exactly the kind of relevant considerations that I expect planners and decision-makers to take into account. However, these lists are, and will almost always be, incomplete, even if supplemented by guidance. I take the point made by the noble Baroness about the importance of guidance, and I will certainly see what further information I can provide to noble Lords about the nature of the guidance that will be issued.

However, it is not possible to foresee and determine in guidance all the potentially relevant circumstances that might result in a planner needing to depart from the strict requirement to conform to the marine policy statement. The considerations and factors relevant to any decision will always depend on the circumstances. The relative merit that needs to be given to each factor will also vary, depending on the case. The danger of placing such lists in legislation is not only that they are inevitably incomplete, but that it tends to imply that more weight should be given to the listed considerations because we, as legislators, saw fit to draw specific attention to them.

On subsection (5B) in Amendment 89A, we are happy to commit to providing guidance to the Marine Management Organisation and other decision-makers on matters that may be relevant considerations. That is already common in terrestrial planning where planning and consenting decisions are made by a different body to that which develops and adopts the strategic policy framework. We will also draw on existing case law developed on application of material considerations in terrestrial planning although, as noble Lords have intimated, the sea is a very different environment.

We doubt that a specific statutory duty to provide guidance is either necessary or appropriate, especially in relation to conformity between the MPS and marine plans, as the authorities responsible for adopting both documents are the same. In essence, they would be producing guidance for themselves.

This is an important matter, and the debate will aid clarity. The safeguards that I have provided are, first, that use of the “relevant considerations” clause will not be taken lightly. Indeed, if there was evidence that it was being used frequently, that would in itself call into question either the marine policy statement or the relevant marine plan and, I am sure, lead to calls for its review. Secondly, in the next clause, the Bill makes clear that any departure must be brought to our attention, and therefore will be in the public domain. The problem with trying to define relevant considerations more tightly than in the Bill is that it simply leads to greater inflexibility, which we want to avoid.

I am grateful to the noble Lord, Lord Taylor of Holbeach. I should have attributed the two longer amendments to the Link Coalition. Like the Minister, I was a little concerned about starting a definition without being confident that one had gone far enough. The two short amendments to remove the phrase were mine before I knew what the Link Coalition was thinking, but it had had discussions with officials about the phrase “material considerations” as an alternative.

The noble Lord, Lord Taylor, said that the amendments set out what sort of relevant considerations would allow the MPS to be departed from. The clause does not distinguish between different relevant considerations. That is the problem: it includes all relevant considerations, not just a limited number.

My noble friend referred to the need for local development documents to conform.

As information has reached me on that matter, perhaps I may inform the Committee that Section 36 of the Town and Country Planning Act, entitled “Local plans”, states:

“In formulating their proposals in a local plan the local planning authority shall have regard to any information and any other considerations which appear to them to be relevant or which may be prescribed or which the Secretary of State may in any particular case direct them to take into account”.

The important words are “shall have regard”.

Section 46, on the certificate of conformity, states:

“The proposals in a local plan shall be in general conformity with the structure plan”.

If the noble Baroness presses me to define what is meant by that, I will struggle.

I was not going to press the Minister on that point, but I was going to draw his attention to the well accepted distinction in terrestrial planning between general conformity and strict conformity. I was just about to talk about general conformity, because we were not referring to the national policy statements at all. I hope that the Government might be prepared to think about that a little, but if that is completely out of the question—if it is, I would be interested to know why—they need to find a way of putting into the Bill some reference to the relative weight of relevant considerations. I used the term “significance”, which may not be quite the right thing.

The Minister referred us to Clause 39. One of my concerns is that third parties might challenge whether considerations were truly relevant or of sufficient weight that they should have allowed the plan not to be “in conformity” with the marine policy statement, and could use Clause 59(4)(a), arguing that the document was not within the appropriate powers. Even if I am not right about that, I am sure that someone who was aggrieved would find a way to challenge it.

I suppose one could argue the case the other way round and say that these matters will always be subject to judicial review and that, although on the one hand the noble Baroness can argue that a person might well go to court, on the other hand it is also a safeguard. It appears to me, as I have said already, that this provision will be used very sparingly and that the appropriate plan authority will be very aware of the potential for judicial review, for instance, which is why one can have some confidence in the way in which it has been drafted.

I suspect that the problem with relative weight is the same as the problem of having a list; it may be very difficult to define. However, I understand the importance of this, and at the very minimum I will write to the noble Baroness on the kind of guidance that we will produce on this matter, as it might inform her decision whether to take this further.

I am grateful for that. I merely add that judicial review is about procedure and is therefore very tedious. I am thinking about substance and the position the other way round.

I am sorry to keep intervening, but this is a very important point. I realise that a person or organisation would have to think very carefully about taking judicial review proceedings, but my experience of government and working with agencies is that the possibility of judicial review proceedings imposes a very powerful discipline on the way in which they behave, and I would have thought that it would be very much one of the safeguards against the ill-judged use of the relevant consideration clause.

I appreciate that. My final point, which I might as well make, is that the situation could be the other way round in that a third party might argue that there are relevant considerations to be applied, not that there are not. I look forward to continuing this discussion, but for the moment, I beg leave to withdraw the amendment.

Amendment 89ZC withdrawn.

Amendment 89A not moved

Amendment 89AZA

Moved by

89AZA: Clause 49, page 25, line 16, at beginning insert “Unless prepared and adopted by the Secretary of State,”

I am introducing Amendments 89AZA, 89AZB, 89CB, 89FZB and 89HB to improve the clarity of the Bill in relation to the Secretary of State and retained functions. They are minor and technical amendments. At various stages of the planning process, certain requirements apply if the proposed plan makes provision in relation to “retained functions”; that is, functions which have not been devolved. “Retained functions” is a concept which only has relevance in relation to devolved marine planning regions. There are no devolved functions in the English inshore or offshore regions, so there are no “retained functions”. These requirements should therefore not apply to plans prepared by the Secretary of State for those regions.

Amendment 89AZA ensures that the requirement to state whether a marine plan makes provision in relation to retained functions does not apply to plans prepared by the Secretary of State. These are followed by consequential amendments to Schedule 6— Amendments 89CB, 89FZB and 89HB—which make it clear that the Secretary of State’s agreement is not needed for publishing his own statement of public participation or a revised SPP or his consultation draft.

Finally, Amendment 89AZB to Clause 49 introduces a signpost to the definition of “retained functions”, which appears later, in Clause 57, for purposes of clarity. I beg to move.

Amendment 89AZA agreed.

Amendment 89AZB

Moved by

89AZB: Clause 49, page 25, line 17, at end insert “(see section 57)”

Amendment 89AZB agreed.

Amendment 89AA not moved.

Amendment 89B

Moved by

89B: Clause 49, page 25, line 24, at end insert—

“(11) Nothing in this section prohibits the preparation of joint plans by marine plan authorities between marine planning regions.”

I shall speak also to Amendments 89LA to 89LC, and one of my noble friends has Amendment 94ZZA in this group. These amendments concern joint planning across borders and boundaries. Amendment 89B would add a paragraph to Clause 49 to provide that there can be,

“joint plans by marine plan authorities between marine planning regions”.

Again, I am grateful to the Link Coalition for this amendment.

It does not need arguing any further that to ensure sustainable development one must look not at political or administrative boundaries, but follow what my noble friend on the Front Bench probably would call sensible boundaries—ecological boundaries in this case. We have had reference already, not least from my noble friend Lady Miller, about the dangers of having separate plans produced for the same area. This is an encouragement to the preparation of joint plans.

I am advised that under the marine strategy framework directive member states are required to produce strategies and programmes to,

“apply an ecosystem-based approach to the management of human activities, ensuring that the collective pressure of such activities is kept within levels compatible with the achievement of good environmental status”.

The amendment suggested by the Link Coalition builds on that.

Amendments 89LA, LB and LC seek to amend Clause 52, which covers the need to keep matters under review and would extend those matters beyond the authority’s own region to the regions of the other marine plan authorities. They are the result of my drafting and are therefore a lot shorter than those of the coalition. Amendment 94B would add a similar provision to Clause 58. I beg to move.

I shall speak briefly to my Amendment 94ZZA, which is grouped with those of my noble friend. It seeks to add a further subsection to Clause 56, which covers “Decisions affected by marine policy documents”. The amendment suggests much more definite wording than that proposed by the Government in Schedule 6. The issue here is exactly how the interface between the marine plan authority and the land-based planning authority will work. The Minister has used the phrase “have regard to”, but at exactly what stage will that happen? My suggested wording addresses a critical issue that we have not yet fully considered. I should say also that we have received a briefing on this from the LGA.

Noble Lords will be aware that the LGA is concerned about the importance in planning terms of the overlap between the landward extent of the UK marine area, which is mean high water, and the seaward extent of areas under local authority responsibility, which is mean low water. That is a considerable amount of land. We need to make it very clear in the Bill what exactly is the extent to which the marine plan authority must have regard to decisions of the terrestrial planning authority. I invite the Minister to add something more definite to Clause 56 rather than leaving the issue simply to a paragraph in Schedule 6. That does not give sufficient weight to exactly how the planning function is going to work in an area that is of absolutely common interest. Local planning authorities already have planning functions down to mean low water, and I do not think that that has been sufficiently recognised in the Bill.

I support my noble friend Lady Miller on this issue. As the Minister may recall, ever since Second Reading I have been particularly concerned about the extent to which local coastal communities want to and feel they should have a sense of ownership of the plans that are going to develop under the new regime. I, of course, am well aware of such communities, having represented them. If there is no proper and sensible relationship between the terrestrial planning process and the marine planning process, that sense of ownership simply will not exist. Moreover, there is a feeling that the well established and mature regimes that already operate on land will not interrelate effectively with the new regime, which is untried and therefore needs to be tested carefully in terms of public communication, ownership and involvement. The whole of this new planning hierarchy may be at risk if the relationship is not made explicit at the outset. I agree with my noble friend that the reference in Schedule 6 is insufficient in that respect.

A great many coastal communities will feel that this crucial relationship is not sufficiently well expressed on the face of the Bill. I hope, therefore, that the Minister will be sympathetic to the objective behind the amendment and, if he is not prepared to accept it at this stage, that he will think about this point, which is crucial to the success of this legislation.

I thank the noble Baroness, Lady Hamwee, for moving the amendment. Those of us who were at the helpful devolution briefing and who have looked at the maps will understand that the more we delve into the issue of devolution and different authorities, the more complex the question becomes. A quick look at the map shows that for the UK part of the Irish Sea at least four separate plans could be applicable. The issue of joint planning, therefore, is important—or is “planning jointly” a better phrase?

The Government’s consultation document, Our Seas—A Shared Resource, states clearly that the marine objectives are in line with the,

“integrated approach that Administrations are proposing to take through new legislation”.

The objectives are designed to promote the action of the UK Government, the Northern Ireland Executive and the Welsh Assembly Government in a “coherent and consistent way”.

The sea is a volatile beast and decisions made in one area may affect another. It is difficult to draw precise boundaries and define where the impact of the action of one authority will end and another begin, so it is vital that joined-up planning takes place across boundaries. It is not difficult therefore to see the reasoning behind the Government’s emphasis on the integrated and consistent approach. I think I am right in saying that they would sympathise with the sentiment behind Amendment 89B—namely, that nothing should stop marine planning authorities making joint marine statements—but they have not wanted to highlight it or encourage it specifically.

This is another amendment which highlights the importance of ensuring that there is a collaborative and coherent approach both to the way in which different planning authorities work together in relation to the marine environment and to the need for marine planning to work side by side with terrestrial planning. I take the point but I am not convinced that the kind of legislative approach outlined in the amendments is the right way to ensure this.

We have discussed the approach that is needed to ensure that there is one marine policy statement for the whole of the United Kingdom in which all the devolved Administrations have ownership. The way to achieve this is partly through the encouragement contained in the Bill, partly because it is to the advantage of all the policy authorities to come together and partly because our experience of the discussions that have taken place between the different Administrations and the UK Government lead us to believe that there is a determination to make all these arrangements work together.

I accept the important point made by the noble Lord, Lord Tyler, about the need for a sense of ownership. The question is the extent to which that ownership is arrived at because of the encouragement that is given, and whether you can legislate to determine it. I certainly think that the Bill is an encouragement to that kind of ownership. It provides a number of reassurances that neighbouring planning authorities will co-operate with one another in preparing marine plans.

I know that noble Lords think that Schedule 6 does not really meet their requirements. However, it makes it clear that, before planning commences, notice of intent to plan must be given to any neighbouring planning authority. Steps must be taken to ensure that plans are compatible with any other related marine plan or land plan. There are various other provisions in that schedule about involving all interested parties in consultation.

On Amendment 89B, we come back to the issue that we debated regarding the Bristol Channel. Nothing in the Bill prohibits two marine plan authorities from working together to plan collaboratively for a cross-border area. We intend and hope to do just that. As I said to the noble Baroness, Lady Miller, we are ever open to suggestions about how that may be done effectively.

The drafting of the Bill technically prevents the creation of a single joint plan that crosses borders between marine planning regions. The reason is simply, as I said before, to protect the distribution of functions under the devolution settlement. A cross-border plan would mean giving each Administration the ability to adopt or reject policies for the other’s marine region. We have a real problem with that because it is not in accordance with the devolution settlement. Any attempt at legislation to enable this would have to be accepted by both Administrations and would almost certainly be extremely complex and inflexible. What is more, the current drafting has the benefit of absolute clarity about which is the responsible marine plan authority in any part of the sea. That is extremely important in resolving and simplifying the various management and consenting regimes at the coast and we think that it will help rather than hinder the process of coastal integration. However, that does not inhibit two authorities from working together, producing two plans in tandem that are entirely consistent. That is something that we wish to encourage.

The work of planning and managing across borders is not new. I draw the attention of your Lordships, even at this late hour, to the excellent cross-border work done by, for example, estuary partnerships, in which the Government, the devolved Administrations and our agencies are already involved. We will also have the benefit of the various voluntary estuary management plans and strategies that are commonly prepared for larger estuaries. That will help to ensure that we create a consistent approach on both sides of the administrative borders.

Earlier I reiterated our commitment to a joined-up approach to planning in the Bristol Channel. I emphasise that again; the same issue will clearly arise at the border with Scotland and the boundaries between the inshore and offshore marine planning regions. We are no less committed to working co-operatively there to develop a coherent approach that works for marine users and meets the aspirations and needs of both Administrations.

I turn to Amendments 89LA, 89LB and 89LC to Clause 52(2), and the related Amendment 94B, which seeks to amend Clause 58. It may assist if I set out the amendments in some context. As currently drafted, Clause 52(1) obliges the marine plan authority,

“to keep under review the matters which may be expected to affect”,

the authority’s planning functions—in other words, how it identifies planned areas and plans accordingly for them. Clause 52(2) contains a non-exhaustive list of what those matters could consist of.

We would not expect marine plan authorities simply to ignore anything that was happening outside their borders. Indeed, as has already been stated, it would be unwise for them to do so. It is impossible to view our seas in discrete areas. The effects of the dynamic environment can be felt some distance out to sea as well as on land—I entirely agree with the points raised. This is why the Bill contains provisions for marine plan authorities to take reasonable steps to ensure compatibility with all other related areas; that is, areas at land or at sea which adjoin or are adjacent to the area, or may be affected by the whole or any part of another area of a proposed plan.

It may also be useful to note that the suggested amendments are confined to marine plan regions. They do not provide any scope to consider related terrestrial regions which are equally important. A great deal of development and impact on the seas takes place at the land-sea interface—that is another point that has been well made in our debate. The amendments are not limited to related regions of other marine plan authorities, which would have the effect of broadening the scope to considering activities in another region even if they were unlikely to have any effect at all. Keeping matters in the regions of other planning authorities under review is implicit in our legislation, and I would expect that all plan authorities, both marine and terrestrial, would work together when preparing marine plans as a matter of course.

Amendment 94ZZA to Clause 56 proposes to introduce a requirement for the marine plan authority to have regard to terrestrial plans in taking certain decisions. I know that Schedule 6 is not popular in this regard, but paragraph 3 requires the marine plan authority to have regard to related terrestrial plans when preparing a marine plan and to “take all reasonable steps” to secure compatibility with them. I know that local authorities want the provision hardened, but it is a sensible and finely judged requirement. I would have thought that taking “all reasonable steps” to secure compatibility meets this concern. It is clearly one of the most important decisions that the marine plan authority will take, which could affect adjacent land. The duty is already imposed. The marine plan authority will also have to have regard to the marine plan when taking other decisions. The marine plan will have been drafted having regard to the terrestrial development plan. In addition, any development above low watermark would in any case need development consent under terrestrial plans.

I understand the importance of this matter. I have listened carefully to the arguments in favour of including a duty to keep under review matters taking place in other planning regions. I have said that I regard that as being implicit in the legislation, but I shall give it further consideration between Committee and Report. I am happy to discuss it further, because there is not much point in doing this unless one can be satisfied that arrangements exist to incentivise and ensure as far as possible that planning authorities, whether terrestrial or marine, work together. One should not underestimate the challenge because there will be tensions in this environment. The Bill has the necessary levers, requirements and forms of encouragement, but, as I have said, on a duty to keep under review matters taking place in other planning regions, I am very much open to further discussion.

We have managed to get through that without anybody using the term “holistic”. I am grateful to the Minister for that reply and, particularly, for his offer. I hope that he will not think it is any slight on him or the officials who have assisted in preparing that response if I simply say that I will not seek to deal with it in any detail at this hour and merely thank him for it.

I should have said something about the point raised on the concern that local authorities were experiencing. My understanding is that we are taking forward extensive work with the Local Government Association to understand better how we can involve local planning authorities in the marine planning process. I hope that through that we can deal with some of the anxieties it has expressed to noble Lords.

I hope that that is with the special interest group and not simply the LGA corporately because, by definition, there are special interests. I am grateful for all that. We will read carefully the Minister’s reply. I beg leave to withdraw the amendment.

Amendment 89B withdrawn.

Clause 49, as amended, agreed.

House resumed.

House adjourned at 9.56 pm.