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Those new clauses and amendments are necessary to avoid a situation in which a promoter must unnecessarily purchase the whole of a person’s land when all they need is a right over it—or under it, such as the right to store natural gas in the subsoil. The amendments provide flexibility and more options for the developer and land owners. New clauses 18 and 19 give protections for statutory undertakers, such as water companies, gas transporters and mobile phone operators, that have apparatus on land that is to be compulsorily acquired. If those statutory undertakers object to the proposed extinguishment of the right of way on the land or the proposed removal of their apparatus from the land, the Secretary of State who sponsors the relevant statutory undertaker would need to consent to the provisions.
Amendments Nos. 117, 120, 121, 134, 137, 142 and 145 clarify the procedures by which a promoter can propose land as a replacement for special land that it seeks to acquire compulsorily—for example, common land, allotments or statutory undertakers’ land. The Secretary of State can certify that the proposed replacement land is as good as the land that it replaces.
When a promoter intends to acquire compulsorily common land or rights over common land, the amendments clarify that the Secretary of State must notify those interested in the proposal of his or her intention to certify the promoters’ offer of replacement land as acceptable. The amendments also allow the Secretary of State to cause a public inquiry to be held into the proposed package of replacement common land. That strikes us as a common-sense thing to do to ensure fairness.
The provisions are designed to ensure alignment with existing provisions in the Acquisition of Land Act 1981. New clause 15 clarifies that the decision maker may authorise the compulsory acquisition of land that was not included in the original application if all affected parties consent, or if specified procedures have been followed. Without that amendment, only land identified in the original application could be compulsorily acquired. It is important to allow the decision maker the flexibility to make changes to the draft order if they believe that a decision to approve could be made only on the basis of a project that requires revisions.
The amendment gives the Secretary of State a power to prescribe the procedures to be followed whenever the decision maker wishes to approve additional compulsory acquisition. We believe it is right for the Secretary of State to set the rules when additional compulsory acquisition is envisaged, in order to ensure that human rights and other interests are respected. We anticipate that these procedures would, at a minimum, ensure that the promoter and all interested parties were notified and may make representations, and that the decision maker must take into account any representations and objections made about the proposed changes.
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Amendments Nos. 124, 127 and 130 clarify who are to be counted as statutory undertakers for the purposes of clauses 114, 115 and 116. That is necessary in order to include companies that have been deemed as
statutory undertakers in legislation other than the 1981 Act. The amendments allow for flexibility beyond that Act.
Amendments Nos. 135, 138, 143 and 148 respond to concerns raised in Committee about the possibility that the promoter of a nationally significant infrastructure project may claim a need to acquire common land compulsorily in order to secure its preservation or preserve its management. The amendments remove that possibility and respond to the requests that were made in Committee.
Amendments Nos. 136 and 144 respond to concerns raised in Committee about the threshold of 209.03 sq m of common land above which compulsory acquisition can be made only if a package of replacement land is offered, or through special parliamentary procedure. As we described in Committee, that figure was merely a metrification of 250 sq yd. We were asked to round that number down, and we have done so by rounding the threshold down to 200 sq m, which is in line with the existing threshold in the Commons Act 2006.
Amendment No. 157 clarifies that if a development consent order extinguishes a public right of way, the appropriate authority must order that that right be revived if it becomes clear that the promoter has abandoned proposals to acquire the land covered by the right of way. New clause 37 requires that the Compulsory Purchase Act 1965 applies to cases in which compulsory acquisition is authorised by a development consent order unless the order specifies otherwise. There are other ways in which compulsory purchase orders can come about beyond the 1965 Act, so the new clause leaves this open and provides for that flexibility. It also applies the 1965 Act to the acquisition of land where a landowner serves a blight notice because an application that has been submitted proposes its compulsory purchase. That provides safeguards and protection for those whose land may well be blighted as a consequence of the process. Amendments Nos. 186 and 187 make further technical changes to ensure that blight notices following the passage of the Bill are served on the correct authority and identify the appropriate enactment.
I appreciate that this is a large array of amendments, but they are mostly technical.
Mr. David Jones: As the Minister has so comprehensively pointed out, this is a series of detailed amendments required to implement the compulsory acquisition regime that is necessary in order to make the unified consent system work. There are a significant number of amendments, and I hope the Minister will not take it amiss if I gently chide him once again for the fact that their provisions were not included in the Bill originally. It was evident from the moment the Bill was published that a regime for compulsory acquisition would be necessary, and it should have been obvious that that regime would have to be detailed. The details that have been supplied in the amendments clearly make up the deficiency that was so manifestly there, and I am glad that they have been tabled.
I shall refer to a number of matters, one of which is the right of persons who will be on the receiving end of a compulsory acquisition order to have their representations properly heard. The power compulsorily to acquire land and interests in land is one of the more draconian
powers in the hands of the infrastructure planning commission, and it should therefore be used carefully, sparingly and with sensitivity. It is important that the rights of those whose interests will be affected by a compulsory acquisition order should be properly heard and respected. I am worried that when the procedure for inquiries comes to be considered, we will see that the interests of those who are likely to be affected by compulsory acquisition orders are frequently regarded as not primary in the course of those proceedings and may even be discounted altogether. That is not right. The powers that the Bill gives to the commission are very extensive, and if an individual’s rights are to be usurped in the manner proposed, albeit legally, their interests should be fully heard.
New clause 15 provides that an order authorising compulsory acquisition of land may be made only if, inter alia, “the prescribed procedure” has been followed in relation to the land. I may have missed something—no doubt the Minister will enlighten me—but I wonder where that prescribed procedure is set out. Clause 112 provides that the Secretary of State may issue guidance about the making of an order granting development consent, which includes provision authorising the compulsory acquisition of land, but that appears to be something less than a prescribed procedure.
I have nothing further to add, save that for my own part I would have been happier if we had stuck with 250 sq yd and imperial measurements.
Dan Rogerson: The Minister was clearly aware of the seemingly dry nature of the part of the Bill that he has been asked to shepherd through and has sought to brighten up the occasion with a tie to keep awake anybody who might be nodding off—and an excellent tie it is, too.
The hon. Member for Clwyd, West (Mr. Jones) made some serious points about the rights of people who may find themselves subject to compulsory acquisition of land. I am particularly concerned about a point that was raised in Committee, as the Minister will recall. When land is being offered in lieu of something that is being taken away, how can we be sure that it is a suitable replacement? If it is common land, for example, will it be geographically suitable for the people who would be exercising rights upon it in the way that they have done customarily? Indeed, land that is special for any other purpose or reason should be borne in mind when an alternative piece of land is offered. We also have to consider how the process will be arbitrated. If there are questions about whether the land represents appropriate compensation for what has been taken away, there should be recourse to some sort of negotiation.
The hon. Member for Clwyd, West is right to raise the problem whereby if the compulsory acquisition of land is handled at the time of the development consent order, other issues will obscure the importance or severity of it. People in the community affected in other ways, in far greater number, will have the floor to a greater extent than those affected in a small, personal way that is nevertheless important to that individual. The Government clearly had the desire to speed up the process—they have been clear and up front about that throughout—but my concern is that the process should be correct and just and that any acquisition must be
entirely necessary. If those matters are obscured in some way and rolled up into the process of development consent, some of them might be overlooked.
I am concerned about some of the changes that are being made, but I welcome the fact that the Government are removing the fog from the proposals and clarifying some of the issues that we explored in Committee.
John McDonnell: I have just a couple of points to make. We are talking about placing an immense power in the hands of the IPC, which will affect a large number of people with regard to major infrastructure developments. I refer hon. Members to early potential expansion of Heathrow. The provisions give immense power for compulsory purchase and the forced removal of people. When it comes to Heathrow, the calculations show that anything up to 10,000 people will be removed from their homes, alongside the loss of three schools, community centres and so on. I would welcome information about the financial support and professional assistance that will be given to those who wish to contest a compulsory acquisition. What additional support will be given to local authorities to represent their constituents in such matters?
I have a point of detail with regard to BAA. When the industry was a nationalised one, it had specific powers of compulsory purchase. Once it was privatised, those powers were apparently retained, and I would welcome clarity about the powers that it will have on compulsory acquisition of land after this legislation is passed, and with regard to whether it will have any special status above any other private sector company.
Mr. Clifton-Brown: I would like to probe the Minister on the procedure for compulsory acquisition. Following on from what the hon. Member for Hayes and Harlington (John McDonnell) and my hon. Friend the Member for Clwyd, West (Mr. Jones) said, compulsory acquisition is one of the most severe powers anyone can take to acquire land. Can the Minister clarify what the procedure will be when it becomes clear that the promoter has served notice under new clause 19, or any other provision in the Bill, that compulsory powers are likely to be used? There was some confusion about that in Committee. The Minister said:
“To be clear, people who are subject to compulsory purchase orders as a result of this provision will have exactly the same rights that they have at present.” ——[Official Report, Planning Public Bill Committee, 10 January 2008; c. 150, Q367.]
I want to probe the Minister—my neighbour in Gloucestershire—on the rights that people will have to be heard.
Under the Compulsory Purchase (Inquiries Procedure) Rules 2007 made by the Lord Chancellor on 15 December 2007, people had the right to be heard orally and in writing, and they had the right to summon witnesses and to cross-examine them. It would not only be landowners who had that right: under rule 6 of the Town and Country Planning (Major Infrastructure Projects Inquiries Procedure) (England) Rules 2005, raised by my hon. Friend the Member for Bromley and Chislehurst (Robert Neill) in the oral evidence session, others affected, such as parish or town councils, would have the same rights. I
seek to probe the Minister on the right that parties affected by compulsory purchase powers will have to be heard and to summon and cross-examine witnesses. Will they have an absolute right, or will they be able to do so only at the discretion of the IPC commissioner?
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Mr. Dhanda: I thank the hon. Member for North Cornwall (Dan Rogerson) for his kind remarks about my tie. I am inclined to agree that this grouping relates to one of the more detailed and, some would say, drier aspects of the Bill, but it is an important one, as hon. Members have said.
People are particularly concerned about homes—my hon. Friend the Member for Hayes and Harlington (John McDonnell) mentioned those near Heathrow—and under our proposals, those whose homes are subject to compulsory purchase, and other landowners, would have exactly the same rights as they do at present. They would have the same human rights protection as they do now. They will be able to object to a proposal for compulsory purchase, submit evidence to the IPC on why their home should not be purchased and appear at the examination to have their say. As now, they will be able to challenge a decision on compulsory purchase in the courts. Rules on compensation will be the same as now, and disputed compensation will be decided by the Lands Tribunal. The commission would be required to explain how it used powers for compulsory purchase in an annual report to Parliament.
Mr. Clifton-Brown: The Minister has skated over the critical point that I raised. Will objectors to compulsory purchase powers have the absolute right to be heard both orally and in writing? Will they have the power to summon witnesses, and will they have the power to cross-examine those witnesses? I am not talking about going to court, but about the IPC procedure. Will such matters be at the discretion of the IPC commissioner hearing the case?
Mr. Dhanda: The role of the IPC commissioner is important and we must remember that although the Bill and the legislation set the framework—and not just through the amendments, which are mostly technical—most of the framework policy was already in the Bill. I am sure that the hon. Gentleman was aware of that. The hon. Member for Clwyd, West (Mr. Jones) rightly pointed out that he wants to see more flesh on the bones with regard to the process, as does the hon. Member for North Cornwall, and I was about to refer to that. Although the Bill sets the framework, there will be regulations to provide the detail of the process; we will consult widely on those, and they will have to go through Parliament.
Mr. David Jones: We are coming to the relevant amendments later, but do not the new clauses specifically mean that those who seek to be heard on compulsory purchase alone will not necessarily have the right to be heard by the commissioners?
Mr. Dhanda:
Those involved in the process will have the mandatory right to submit evidence and attend a hearing on CPO issues. IPC discretion remains, however,
as to whether to allow a cross-examination. It is worth remembering that the CPO process, and the amendments that I have just highlighted, goes a little further by adding flexibility and options for developers and landowners. We are talking about land not being subject to a CPO; ideally, the process would take place in a consensual way where there is usage of the land above—for example, it may be necessary to bring in a crane to build infrastructure—or below, as someone may wish to store gas under the soil. I hope that having the extra options that we are introducing through our amendments will result in consensus far more often.
There will be times when there is no consensus and when we will have to use other processes, more of which will be set out in regulations. However, the changes that we have made, not least from listening to members of the Committee, together with what was already in the Bill, provide good safeguards for the owners of land, as well as opportunities to go forward with consensus from both developers and landowners.
Mr. Clifton-Brown: I am grateful to the Minister for giving way; he is being very indulgent. His answer has been helpful, but may I press him one more time? I do not want to put words into his mouth, but I think he said that those to whom CPOs will apply, whether they have land or houses, will have an absolute right to appear before an IPC to give evidence either orally or in writing. Can he confirm that I have got that right? Using a CPO to take away someone’s home or land is one of the most draconian powers that a Government can use. It is therefore only correct that there should be a right to appear at the IPC hearing to give evidence orally or in writing.
Mr. Dhanda: I thought that I had confirmed that just a moment ago. I hope that that is helpful.
John McDonnell: My hon. Friend has not addressed the points that I raised. I should be grateful if he could do so at some stage, if not this evening. I should like information on the continuing powers that BAA may have post-privatisation. In addition, new clause 28, which we shall come to later, relates to access to planning aid—that is, financial support for those who are contesting or wish to be represented—and refers to “planning matters”. I seek clarity about whether such aid would be provided to those who were also contesting an order involving the compulsory acquisition of their property or homes.
Mr. Dhanda: I appreciate my hon. Friend’s question about BAA and the changes that would apply. I will seek to provide him with a more detailed answer in writing before we return next week to consider the Bill further.
This group of amendments has been designed to ensure that proposals that include the compulsory acquisition of land are dealt with properly and that correct levels of protection are given to landowners and, as I mentioned, special types of land. The hon. Member for North Cornwall mentioned special types of land, such as common land. I am grateful to hon. Members who suggested helpful changes in Committee, some of which have been implemented in the package of amendments that we are considering. They set out
essential technical changes to deal with the acquisition of rights over land and give protections to landowners, statutory undertakers and the users of rights of way. The provisions set out clear rules and procedures to ensure the protection of the rights of those whose land may be compulsorily acquired.
I hope that that answers hon. Members’ questions and gets across the point that we are making changes that are consistent with existing planning law. Those who fear that their homes, businesses or land are about to be CPO-ed will have the processes that already exist, as well as other options that we are bringing forward, which will provide flexibility.
Clause read a Second time, and added to the Bill.
(a) the development to which an order granting development consent relates is development within section 13(1)(c), and
(b) the order authorises the compulsory acquisition of one or more rights within subsection (2).
(a) a right to store gas in underground gas storage facilities;
(b) a right to stop up a well, borehole or shaft, or prevent its use by another person;
(3) If the right within subsection (2) is an existing right to store gas in underground gas storage facilities, this Act has effect in relation to the compulsory acquisition of the right with the omission of section 118.
(4) If the order authorises the compulsory acquisition of the right by the creation of a new right within subsection (2), this Act has effect in relation to the compulsory acquisition of the right with the omission of sections 114 to 119.’.— [Mr. Dhanda.]
Brought up, read the First and Second time, and added to the Bill.
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