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The hon. Member for Clwyd, West (Mr. Jones) has already referred to a number of the problems arising from the new clauses. Perhaps I have misunderstood new clause 22I hope that the Minister will be able to clarify the matterwhen it talks about section 34 of the Coast Protection Act 1949. It seems to suggest that people who do not comply when consent is deemed to have been given without conditions will not be subject to enforcement mechanisms under clause 134 of the Bill. The Minister might wish to reflect on this point and to check whether my understanding is correct. I am concerned that there should not be any loosening of the strictures that would be placed on people under the existing legislation, to which the Bill refers, when bringing these matters under the remit of the IPC. Marine protection is a sensitive area, and there will shortly be a Bill to consider all those issues. I want to ensure that there will be no watering down of any conditions, and that enforcement will take place if any action taken under a DCO is questioned.
Mr. Clifton-Brown: I wonder whether the Minister could help the House. Clause 109 contains a long list of what may be included in an order granting development consent. Presumably, those are the really important things, as they will be in the main order. The Minister has tabled new schedule 3 today, which relates to matters ancillary to development. One might assume that those matters were less important, because they are ancillary. In the original clause, there are 26 items, but in the new schedule, there are no fewer than 38. A quick scan of what is included in each of the provisions reveals that the items in the new schedule include carrying out civil engineering or other works, and entering into an agreement for the provision of police services. In addition, item 28 relates to:
Deeming any such conditions to have been imposed by the Secretary of State under that section.
Deeming a licence under Part 2 of the Food and Environment Protection Act 1985...to have been issued.
Deeming any such provisions to have been included in the licence by the specified licensing authority by virtue of that Act.
I understand why items 31 to 34 were not included in the original provision, but it seems odd to have included them among the ancillary items, because they are important. They include: the creation of a harbour authority; changing the powers and duties of a harbour authority; the transfer of property, rights, liabilities, or functions; and the transfer, leasing, suspension, discontinuance and revival of undertakings.
I think that the Minister said that the list in new schedule 3 was from the Transport and Works Act 1992. I cannot remember the exact wording of the Act. I would be grateful if he could tell us why the list of main items in clause 109 is less inclusive than the list of ancillary items.
First, I say to the hon. Member for Clwyd, West (Mr. Jones) that we believe that what we have under the current regimethe range of provisions that a decision maker, which in this case is the IPC, can include in development consent ordersis the right mix.
Our starting principle has been to try to ensure that, as far as possible, orders that grant development consent cover all the consents and authorisations to proceedif that is the judgment of the commission and the judgment on the applicationnecessary for the nationally significant infrastructure project to proceed.
As I described earlier this afternoon, that is one of the important prizes in the overall reforms that we propose in the Bill. However, we believe that two aspectsbylaws in particular and powers to make criminal offencesfall into what I suppose is a different category. We do not believe that, on its own, the IPC should decide such matters, nor should promoters apply simply to the IPC for them to be included in a development consent order. So, we have constructed the Bill in such a way that promoters may continue, as they do now, to apply separately under the Transport and Works Act 1992 and the Harbours Act
1964 if they want bylaw-making powers or the powers to create criminal offences for particular reasons related to their project. Government amendment No. 115 applies not simply to harbour developments; it applies to the 1992 Act and the 1964 Act together.
The hon. Member for Clwyd, West probed a little further on harbours. New clause 21 allows the inclusion in a development consent order of the creation of a new harbour authority or the revision of provisions governing an existing harbour authority. That is expressed in schedule 2 to the 1964 Act. I did not spell that out before, but these remarks might be helpful because he was probing to find out precisely what that might entail.
The schedule includes such things as the creation of a harbour authority, including the approval of a constitution; the conferring of powers and duties; setting the jurisdiction of the authority and allowing it to ask a justice of the peace to appoint constables; the revision of a harbour authority or the merging of two harbour authorities into one; the transfer of property from one harbour authority to another; the disposal of property vested in a harbour authority; and the charging of tolls, fares and other charges. That is the range of provision in existing legislation that we propose potentially to make available, where it is justified, as part of the single development consent.
On coastal protection, the hon. Member for North Cornwall (Dan Rogerson) wants an assurance, particularly with the Marine Bill in prospect, that there will be no watering down of enforcement powers. Precisely for that reason, we are taking the approach that we are. Rather than make the Bill disapply the need for consents either under the Coastal Protection Act 1949 or under the Food and Environment Protection Act 1985, we are making the consent a deemed consent precisely so that the full range of enforcement powers under both Acts remains in place and can be discharged.
The amendments delete the references to the 1949 Act, reinserting them as a deemed consent. They also insert in the Bill, for the first time, licences under the 1985 Act, again as deemed licences. We have done that to make the enforcement provisions as strong as they are at present. That gives the Secretary of State the same power to intervene in an emergency to require the owner of infrastructure offshore to take certain actions that may be required to prevent a danger to navigation. However, because those powers are operational only where what is termed a section 34 consent is in place, they will not be operational if a development consent order has disapplied rather than deemed as part of the consent agreement; otherwise, the Secretary of State would lose the powers that he needs at the moment.
To return to the starting point of the hon. Gentlemans concern, the Marine Bill will rework the regulatory regime for offshore development by streamlining the CPA consents and FEPA licences in a single regime. Uniform enforcement would be facilitated if the IPC deemed consents in respect of offshore nationally significant infrastructure project consents. That is the purpose of our amendment No. 165, clarifying, therefore, the fact that enforcement for those consents is to be carried out under those two existing provisions, which will, in time, be consolidated in the new Marine Bill. Incidentally, they will be enforced through the new marine management organisation.
Finally, the hon. Gentleman was concerned about the breadth of the powers in relation to harbours. I have explained the restrictions under amendment No. 115. I have confirmed that the development consent orders will not allow the creation or modification of bylaws or criminal offences and why we believe that is right. I make it clear to the House that the development consent order for harbours will be able to provide for the creation of the harbour authority only where that is necessary or expedient in relation to a particular harbour nationally significant infrastructure project application.
I say to the hon. Member for Cotswold (Mr. Clifton-Brown) that the fact that different items are listed in the Bill and in the proposal that we are making does not make any of those things less important. I tried to explain earlier that we are consolidating what we already have in clause 109(4) in new schedule 3 and adding items that we think are appropriate but that are not yet in that list. That is why the proposed list is longer and more comprehensive, and therefore a better reflection of the matters that may be required within a single development consent order, as well as appropriate for the commission to consider as part of any application, if that is what the promoter decides.
Mr. Clifton-Brown: I am extremely grateful to the Minister for those helpful remarks, but some of the powers in new schedule 3 are very wide indeed. The basic building block of the Town and Country Planning Act 1947 were civil and other engineering works. What safeguards will there be for people who are affected by an IPC decision that those powers are strictly necessary for a development? Will there be any appeal mechanism? Will there be a mechanism for appeal to the courts through judicial review? How will this work?
John Healey: The hon. Gentleman tempts me into territory that we shall deal with at length in debates to come. Essentially, the Bill contains a number of new steps, including, for the first time, a legal duty and requirement on any promoter of an application or a project to consult widelylocal councils and local communitiesin preparing an application. So, promoters must make clear the degree to which they want to include in a single application elements covering any of those areas as part of the consent application.
The commission will not even receive and consider any application unless the pre-application requirements have been properly carried out. Then, any local interest, local group, local resident, local council or anyone concerned will have the right through the application process to register their concern in writing, and will have the right to be heard orally as part of one of the sessions that the IPC will conduct. Therefore, they can alert the IPC to areas that perhaps require questioning by the commission of the promoter during consideration of an application. There should be ample information and publication, proper cross-questioning and full consideration of any elements such as this that may form part of an application for a single consent.
(4) An order granting development consent which includes provision for the creation of a harbour authority, or changing the powers or duties of a harbour authority, may also make other provision in relation to the authority.
(a) any provision in relation to a harbour authority which could be included in a harbour revision order under section 14 of the Harbours Act 1964 by virtue of any provision of Schedule 2 to that Act;
(b) conferring power on a harbour authority to delegate, or makes changes to its powers so as to permit the delegation of, any of the functions mentioned in paragraphs (a) to (f) of paragraph 9B of Schedule 2 to the Harbours Act 1964.. [John Healey.]
(1) An order granting development consent may include provision deeming consent under section 34 of the Coast Protection Act 1949 to have been given for any operations only if the operations are to be carried out wholly in one or more of the areas specified in subsection (2).
(1) 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 for any operations only if the operations are to be carried out wholly in one or more of the areas specified in subsection (2).
(d) an area designated under section 1(7) of the Continental Shelf Act 1964, except any part of that area which is within a part of a Renewable Energy Zone in relation to which the Scottish Ministers have functions.
(1) 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.
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