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‘(1) The following provisions of this section apply if—
(a) an order granting development consent makes provision for the acquisition of land, compulsorily or by agreement,
(b) a public right of way exists over the land,
(c) the right of way is not a right enjoyable by vehicular traffic, and
(d) the right of way is over land falling within subsection (2).
(2) Land falls within this subsection if it is land on, over or under which there is—
(a) apparatus belonging to statutory undertakers, or
(b) electronic communications apparatus kept installed for the purposes of an electronic communications code network.
(3) The order granting development consent may include provision for the right of way to be extinguished only if the undertakers or the operator of the network (as the case may be) consent to the inclusion of the provision.
(4) The consent referred to in subsection (3)—
(a) may be given subject to the condition that there are included in the order such provisions for the protection of the undertakers or the operator (as the case may be) as they may reasonably require, and
(b) must not be unreasonably withheld.
(5) Any question arising under subsection (4) whether any requirement or refusal is reasonable is to be determined by the Secretary of State.
(6) The question of which Secretary of State should make a determination under subsection (5) is to be determined by the Treasury, if it arises.
(7) In this section and section [Extinguishment of rights, and removal of apparatus, of statutory undertakers etc.] “statutory undertakers” means persons who are, or are deemed to be, statutory undertakers for the purposes of any provision of Part 11 of TCPA 1990.
(8) In this section and section [Extinguishment of rights, and removal of apparatus, of statutory undertakers etc.] the following terms have the meanings given in paragraph 1(1) of Schedule 17 to the Communications Act 2003 (c. 21)—
“electronic communications apparatus”;
“electronic communications code”;
“electronic communications code network”;
Brought up, read the First and Second time, and added to the Bill.
‘(1) This section applies if an order granting development consent authorises the acquisition of land (compulsorily or by agreement) and—
(a) there subsists over the land a relevant right, or
(b) there is on, under or over the land relevant apparatus.
(2) “Relevant right” means a right of way, or a right of laying down, erecting, continuing or maintaining apparatus on, under or over the land, which—
(a) is vested in or belongs to statutory undertakers for the purpose of the carrying on of their undertaking, or
(b) is conferred by or in accordance with the electronic communications code on the operator of an electronic communications code network.
(3) “Relevant apparatus” means—
(a) apparatus vested in or belonging to statutory undertakers for the purpose of the carrying on of their undertaking, or
(b) electronic communications apparatus kept installed for the purposes of an electronic communications code network.
(4) The order may include provision for the extinguishment of the relevant right, or the removal of the relevant apparatus, only if—
(a) the decision-maker is satisfied that the extinguishment or removal is necessary for the purpose of carrying out the development to which the order relates, and
(b) in a case within subsection (5), the Secretary of State has consented to the inclusion of the provision.
(5) A case is within this subsection if a representation has been made about the application for the order granting development consent before the completion of the examination of the application—
(a) in a case falling within subsection (2)(a) or (3)(a), by the statutory undertakers;
(b) in a case falling within subsection (2)(b) or (3)(b), by
the operator of the electronic communications code network,
and the representation has not been withdrawn.
(6) The question of which Secretary of State should give consent under subsection (4)(b) is to be determined by the Treasury, if it arises.’.— [Mr. Dhanda.]
Brought up, read the First and Second time, and added to the Bill.
‘An order granting development consent may include provision authorising the use of underground gas storage facilities only if the development to which the order relates is or includes development within section 16(2), (3) or (5).’.— [John Healey.]
Brought up, and read the First time.
John Healey: I beg to move, That the clause be read a Second time.
Madam Deputy Speaker (Sylvia Heal): With this it will be convenient to discuss the following: Government new clause 21— Harbours.
Government new clause 22— Deemed consent under section 34 of the Coast Protection Act 1949.
Government new clause 23— Deemed licences under Part 2 of the Food and Environment Protection Act 1985.
Government new clause 24— Removal of consent requirements.
Government amendments Nos. 114, 115 and 152.
Government motion: That Clause 120 be transferred to the end of line 8 on page 65.
Amendment No. 4, in clause 124, page 65, line 22, at end insert—
‘(2) An order granting development consent may include provision authorising an electric line to be kept installed above ground only if the decision-maker is satisfied that no person will be exposed to any risk to their health arising from exposure to electric and magnetic fields with a frequency of between 30 and 300 Hertz.’.
Government amendments Nos. 165 and 250.
Government new schedule 3— Provision relating to, or to matters ancillary to, development.
Government amendments Nos. 270 to 274, 276 and 277.
John Healey: We come to a series of new clauses, new schedules and amendments that reflect the further work that we have done and our reflection on the points put to us in discussion.
New schedule 3 reworks the provisions of clause 109(4) into a new schedule, thereby clearly setting out the matters that may be included in a development consent order. New schedule 3 contains new matters that go beyond those that were previously contained in clause 109. They include the use of underground gas storage facilities; the carrying out of civil engineering and other works; the charging of fares and other fees; the operation and maintenance of a transport system; entering into an agreement for the provision of police services; the transfer of property, rights, liabilities or
functions; and the transfer, leasing, suspension, discontinuance and revival of undertakings. In substance, all those matters are taken from the Transport and Works Act 1992 and the Harbours Act 1964, and the terminology relating to many of them has been imported into the Bill.
Amendment No. 115 also makes it clear that we do not believe it appropriate for the IPC to make provisions that could create byelaws or criminal offences. We recognise that the promoters of nationally significant infrastructure projects may wish to have powers relating to penalty fare regimes or the enforcement of the proper use of infrastructure, through prosecution for trespass or the breaking of speed limits, for instance. However, we remain of the view that in such circumstances an application should properly be made to the Secretary of State for a Transport and Works Act order or a Harbours Act order, as currently.
Let me deal with Government new clauses 22 and 23, Government amendments Nos. 165 and 270, and Government amendment No. 88, which was in the first group of amendments that we considered. These measures set out a single or harmonised procedure for dealing with the major consents that are needed for offshore development, which are a consent under section 34 of the Coast Protection Act 1949, or a licence under the Food and Environment Protection Act 1985. Those consents will be treated differently from other aspects of the single consents regime. The new clauses and amendments will not disapply the need to seek consents under those Acts, but will allow development consent orders from the IPC to deem consents that must otherwise be applied for under those Acts.
6.30 pm
We have decided to make the CPA and FEPA consents into deemed consents to facilitate enforcement offshore. As the Bill stands without those amendments, the Secretary of State would lose the power to require the owner of infrastructure offshore to take action to prevent a danger to navigation. The provision is important and justifies the CPA consent being a deemed consent. Amendment No. 165 clarifies that enforcement of those consents should be carried out under the enforcement mechanisms in the CPA and the FEPA rather than under the Bill.
For harbours, the overall regulatory structure is different from the large majority of infrastructure types covered by the Bill. With most infrastructure types, a company or person has the ability to undertake whatever development they wish, subject to receiving a certain number of consents or regulatory authorisations. With harbours, a company has no such powers until it receives statutory powers under an order made under the Harbours Act 1964. New clause 21 reflects the fact that a harbour proposal that is a nationally significant infrastructure project, or NSIP, will almost inevitably require changes to the statutory powers held by a harbour authority or the grant of fresh powers to create a new harbour authority. The new clause allows the decision maker to include in a development consent order provisions to allow the creation of a harbour authority or the revision of provisions governing an existing harbour authority.
There will be restrictions on what can be included in a development consent order in relation to a harbour,
the most notable of which are set out in amendment No. 115, which I have mentioned. Furthermore, such an order may provide for the creation of a harbour authority only if it is necessary or expedient for a harbour proposal that is an NSIP application. A development consent order will provide for the transfer of property, rights or liabilities between one harbour authority and another only if the order deals also with compensatory payments.
New clause 24 makes it clear that the IPC cannot use the powers in the Bill to override the requirements of operational consents unless the relevant consenting body agrees. We drew the measure from the operation of the Transport and Works Act 1992 and the orders that have been put in place under it. Experience tells us that it can be of benefit to promoters to incorporate certain operational consents into the original authorisation to proceed. However, the position and rights of the bodies that grant operational consents, a leading example of which is the Environment Agency, must be protected. Under the new clause, they must therefore agree to provisions in the development consent order that would override a requirement otherwise to seek operational consent from them. That is what happens under the Transport and Works Act with authorisations for the discharge of water, for example. Several operational consents are devolved matters, and we intend to preserve the devolution settlement, so there is a similar provision in relation to the Welsh Assembly Government.
Finally, let me address the amendments tabled by the hon. Member for Newbury (Mr. Benyon), who is not in his place. I pay tribute to the way in which he raised his concerns in Committee and to how his colleague, the hon. Member for Ruislip-Northwood (Mr. Hurd), expressed similar concerns in the Committee that debated the Housing and Regeneration Bill. In the Committee that discussed the Energy Bill, my hon. Friend the Member for Bolton, South-East (Dr. Iddon) also raised concerns about the health effects of electromagnetic fields.
In Committee, we discussed at some length frequencies known as extremely low frequency electric and magnetic fields, to which I shall refer as ELF EMFs. The main sources of ELF EMFs are power lines, electricity sub-stations, household wiring and electrical appliances in the home. The Government do not believe that the proposed duty on the decision maker—in this case the IPC—is necessary or appropriate at this stage because there are already guidelines on the exposure of people to ELF EMFs.
The hon. Member for Newbury will know that the Government are considering whether any further practical, precautionary measures should be put in place to strengthen the concern to protect people from the possible effects of that sort of radiation. In doing so, we are giving full consideration to the report of the Stakeholder Advisory Group on ELF EMF and to the Health Protection Agency’s recommendations on that report. When we draw the matter to a conclusion, we will consider how to implement any precautionary measures that might be justified, which will be implemented at national level.
I hope that the hon. Gentleman will recognise, as he did in Committee, that it would not be sensible, at this stage of this Bill, to pre-empt the conclusions and recommendations that might flow from the report. I
pay tribute to him for his tenacity and commitment in raising these concerns, but I urge him not to press his amendments to a vote, and to accept that any policy or precautionary protective changes that might be necessary in future will be put in place by the Government as a result of the conclusions that we reach, based on the SAGE and HPA reports. I hope that my comments help the House with the consideration of this group of new clauses and amendments, and I look forward to the debate.
Mr. David Jones: We are again debating a large number of extensive and technical amendments to the Bill, and I am sure that the Minister will be glad to hear that I shall not berate him again for the lateness of their appearance. However, there are several matters that I wish to raise.
The Minister discussed new clause 21, which relates to harbours and contains powers providing for the creation of harbour authorities. It also contains powers to change the powers and duties of harbour authorities and to authorise the transfer of property rights and liabilities from one harbour authority to another. Will he comment on the fact that in many cases, applicants for development consent under the proposals in the Bill will be harbour authorities? Is it proposed that in such circumstances the rights in the new harbours would simply be vested in the new harbour authorities, or would further procedures have to be undergone to achieve that transference?
In a previous debate today, I referred to general permitted development rights in the context of railways. At that point, the Minister suggested that although such rights were not specifically mentioned in certain clauses of the Bill, that did not mean that they would not be preserved—for harbour authorities, for example. I should simply like to place on record that I have noted that point, as I have no doubt that others will place reliance on it.
New clause 24 makes this provision:
“An order granting development consent may include provision the effect of which is to remove a requirement for a prescribed consent or authorisation to be granted, only if the relevant body has consented to the inclusion of the provision.”
The relevant body is defined as
“the person or body which would otherwise be required to grant the prescribed consent or authorisation.”
At first sight, that appears to be anomalous, given that clause 31—one of the linchpins of the Bill, and, indeed, of the whole single consent regime—provides for the other sorts of consent that might normally need to be obtained to be dispensed with. Will the Minister please explain the purpose of new clause 24, in the context of the provisions in clause 31? Is there a conflict between the two provisions? At first sight, there appears to be one.
The Minister has also mentioned that the new clauses specifically preclude the imposition of new byelaws or the grant of authority to others to impose such byelaws. Again, that appears strange, given that many of the entities that will be created by the Bill—particularly those covered by this group of amendments, including harbour authorities—will have the right to impose byelaws. Given the wide-ranging, sweeping powers that will be granted to the IPC by the Bill, even to the extent of enabling it to amend primary legislation, it seems odd
that the power to confer the right to make byelaws has specifically been excluded. Perhaps the Minister could comment on that.
“An order granting development consent may include provision deeming a licence to have been issued under Part 2 of the Food and Environment Protection Act 1985”.
That relates, inter alia, to the laying of installations on the sea bed. The deemed licence is limited to England and English waters, or to a renewable energy zone designated under section 1(7) of the Continental Shelf Act 1964, except any part of that area that is part of the Scottish renewable energy zone. Please will the Minister explain why the new clause does not relate to Welsh waters, especially in the light of the fact that large-scale offshore wind developments—a reserved matter—will probably require a licence to be made under the 1985 Act?
Finally, I should like to apologise for the absence from the Chamber of my hon. Friend the Member for Newbury (Mr. Benyon). I am sure that he will appreciate the thoughtful and kind way in which the Minister has dealt with his proposed amendments, and I am authorised to say that my hon. Friend would have sought to withdraw them.
Dan Rogerson: As we heard in our debate on the programme motion, we are working under considerable time constraints. We have another two groups of amendments to discuss in the next hour, so I shall not detain the House for long. I simply want to note that another whole area of authorities is being given to this unelected body, which will be able to take decisions on matters such as setting up a new harbour authority, for example. We have already discussed the IPC, the broad range of competencies and skills that its commissioners will need to have, and the information that they will have to contend with. While I suppose that it makes sense to have provisions that will enable development to be considered and put in place at the granting of a development consent order, this will mean that the IPC will have to get to grips with a whole new set of competencies. I am concerned about the organisation’s ability to do these things adequately and properly within the necessary time scales.
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