| Previous Section | Index | Home Page |
‘Schedule [ Correction of errors in development consent decisions] (correction of errors in development consent decisions) has effect.’.— [Mr. Dhanda.]
Brought up, and read the First time.
Mr. Dhanda: I beg to move, That the clause be read a Second time.
Madam Deputy Speaker: With this it will be convenient to discuss the following: Government new clause 25 — Changes to, and revocation of, orders granting development consent.
Government amendments Nos. 113, 166 and 246.
Government new schedule 2— Correction of errors in development consent decisions.
Government new schedule 4— Changes to, and revocation of, orders granting development consent.
Mr. Dhanda: These Government amendments, new clauses and new schedules cover a wide range of areas that we believe will be necessary to ensure that the single consents regime provides real benefits to promoters of nationally significant infrastructure projects and to the wider public. In particular, the amendments deal with how a development consent order could be modified at a later date, where changes prove necessary.
Given the size and complexity of nationally significant infrastructure projects, it is almost inevitable that changes to the design of the project may need to be made as construction progresses. The single consents regime would be of little help to promoters, if it were not nimble or flexible enough to allow some changes to be made without forcing the whole project to start all over again from square one. The amendments set out two mechanisms for how this might be done in a manner that is both proportionate to the complexity of the changes and suitable for the task in hand.
The first mechanism relates to the correction of a decision where there is a non-significant error, such as a typo in a decision document—these things happen. The mechanism is intended solely for the correction of clerical errors in the documents. Under the procedure, the appropriate authority may make corrections where it finds that the decision documents do not properly reflect the decision that it reached. The procedures set out are intended to be speedy, while ensuring that all interested parties are notified of corrections the authority intends to make.
7.15 pm
There are consequential amendments that follow from the procedure, particularly amendment No. 113, which outlines that challenges to a decision to correct
an error should be made through judicial review, as is the case with regard to all the other decisions made by the appropriate authority. Amendment No. 166 gives a defence against an offence under clause 134, where the offence was caused by an error that had been corrected. The second mechanism relates to how development consent orders could be subsequently modified or revoked, when the original decision documents accurately reflected the decision that was made.
The categories of person who may apply for a revocation or modification of a development consent order are thus: the applicant or his successor in title, or otherwise the beneficiary of the development consent order; the relevant local planning authority, where the development contained in the order has been abandoned and has resulted in a reduced amenity of surrounding land; the appropriate authority, if it believes that the development consent order contains a significant error within it; and the Secretary of State, if he or she believes that if development were carried out in accordance with the order, it would contravene Community or human rights law.
Where the IPC or Secretary of State applies for a revocation or modification, they may be liable to pay compensation to those who incurred loss because of the changes. New schedule 4 includes a power allowing the Secretary of State to prescribe further detail on the procedures by which applications for modification or revocation should be handled. We intend that the procedures for modification or revocation of an order will be more onerous, obviously, than for the correction of errors and may, depending on the complexity of the changes applied for, involve a full scale examination along the lines set out elsewhere in the Bill. Where the effects of a proposed modification could be significant, we believe that it is right that a detailed and thorough examination should be undertaken by the IPC, just as it would do for a new application for infrastructure.
Mr. David Jones: As we have heard from the Under-Secretary, these amendments provide a framework for the change of and revocation of orders granting development consent. The IPC, or the Secretary of State if they are the decision-maker, may make a change to a development consent order, if they are satisfied that the change is not material. As we have heard, the application for a change to the order may only be exercised on an application by the original applicant or his successor in title, a person with an interest in the land or any other person for whose benefit the development consent has effect. In the case of an application by someone with an interest in only part of the land, the order may be made in respect of so much of the original land as is affected by the order.
The new schedule also contains a power for the appropriate authority to amend or revoke a development consent order, if that authority is satisfied that the order contains a significant error and it would not be appropriate for the error to be corrected by means of the power to which I have just referred. I would be grateful if the Minister could indicate the sort of circumstances in which it would not be appropriate for the error to be corrected by means of the exercise of that earlier power, because although the power may be exercised on an application made by the applicant or
his successor in title, it may also be exercised, as we have heard, on an application by any other person with an “interest in the land” or
“any other person for whose benefit the development consent order has effect.”
Thus, this is potentially a draconian power, which could cause enormous loss to the applicant or to the promoter of the project.
As far as I can tell, no provisions are contained in new schedule 4 for representations to be made by any person who may be aggrieved by the revocation of the order. It might be that those will be made pursuant to regulations that will be made when the Bill is enacted, but I would be grateful if the Minister were to confirm that in such a circumstance provisions would be made for representations to be made by a person who is aggrieved or who could be aggrieved by the making of such an order.
The Secretary of State or the commission, whoever is the decision maker, may also change or revoke the order on its own motion if satisfied that the developments, if carried out, would contravene community law. The potentially draconian nature of the power is made clear in paragraph 5, which includes a power
“to require the removal or alteration of buildings”
“discontinuance of a use of land”.
We are talking about projects of major national infrastructure, so it is possible, and indeed likely, that the downsides of any revocation of such an order will be enormously expensive.
Paragraph 6(5) provides that the Secretary of State may make regulations about
“the assessment of compensation payable under this paragraph.”
Paragraph 6(1)(c) provides that the loss or damage in question must be “directly attributable” to the change or revocation. Does that refer to pure economic loss, or would other sorts of losses be the subject of compensation? Furthermore, what of loss that is not directly attributable to the change or revocation? I assume from what the Minister has said that such indirect loss would not be the subject of compensation, but it may be difficult to ascertain whether a loss is directly or indirectly attributable. Will the regulations that are to be made make provisions that will be of assistance with regard to disputes that may arise in connection with determining whether a loss is, for the purposes of the Bill, to be regarded as direct or indirect?
Given that that question is of such great significance, it is perhaps surprising that these provisions have only recently been introduced into the Bill. For the reasons that I have just outlined, I am by no means convinced that the procedure that has been set up is entirely watertight, and I look forward to the Minister’s response to the points that I have raised.
Dan Rogerson:
In the debate on an earlier group of new clauses and amendments, the hon. Member for Hayes and Harlington (John McDonnell) referred to the ability of his constituents to sniff out conspiracy. The Minister is trying to persuade the House that these provisions relate more to cock-up than to conspiracy. As with all legislation, we must examine how they
might be interpreted not only by those who are advancing the Bill, but by those who may have the opportunity to use the provisions at a future time. I therefore share the concerns raised by the hon. Member for Clwyd, West (Mr. Jones) about whether or not the provisions are drafted tightly enough to ensure that whatever decisions the IPC takes on development consents cannot then be rewritten quite quickly, given that that might have far-reaching consequences for those involved.
Given that I suspect that the number of applications that the IPC will have to deal with will grow beyond the annual number to which we have been told it will grow, and given that we have been discussing the increasing complexity of the things in which the IPC will have to become expert, this matter again highlights that there is a great deal of potential for all those sorts of mistakes to be made. I can see why the Government feel it necessary to introduce this provision, but it does not inspire a great deal of confidence in the whole process.
Mr. Clifton-Brown: It is hard to understand why the Planning Bill, having gone through all its procedures thus far, has had a hugely important new schedule incorporated into it at this late stage. The new schedule has far-reaching effects. I cannot think of another Bill containing provisions to correct errors in the way in which this one does. Normally, such significant changes or such significant powers would be available only to a court, but the IPC would be able to say to a promoter, “ Sorry chaps, we got it wrong, and we will correct it now” or, “No, you have to go through the whole thing again.” Under this new schedule, it would depend on a whim as to whether or not the IPC would require the promoter to go through the whole process again. The decision would be arbitrary, which is extraordinary.
I would be grateful if the Minister could give us some indication of the Government’s thinking as to how the provision came about. In what circumstances would he expect the IPC or the Secretary of State making the order to be able to modify that order, and to what scale would that be possible? How serious would the circumstances need to be for the order to be revoked altogether and for the poor old promoter, who would probably have spent many years and many thousands of pounds—probably hundreds of thousands of pounds, or perhaps even millions of pounds—on the project, to have to go through the whole process again. This very serious matter would normally, under other Acts of Parliament, be considered by the courts, so I am not sure why it is being delegated to the IPC or to the Secretary of State.
Mr. Llwyd:
I shall take a slightly different tack. I anticipate legal challenges regarding paragraph (1) to new schedule 2, which deals with the correction of errors in development consent decisions, in paragraph 2(1) to new schedule 4, which deals with changes to, and the revocation of, orders granting development and so on, and paragraph 3(1) to new schedule 4, which deals with changes to, and the revocation of, orders granting development consent. I cannot understand why the Government cannot find a means of making those corrections without having to put people to the
expense of going to court. The last thing that I want is to do my learned friends out of jobs, but should the Bill say that it has to proceed all three cases by way of judicial review, which is a very expensive and often time-consuming process? Why could we not think of some other forum for correcting these cases?
Let us consider the example of the Commons Registration Act 1965, under which a commission was set up. It was normally chaired by a lawyer; people could apply locally to have discussions of this kind determined once and for all; and matters would proceed to the High Court only if the commissioner had misdirected himself or herself or had in some way fallen foul of the 1965 Act. It was a less time-consuming and less expensive procedure, and something along those lines may well lend itself to this part of the Bill. I had not prepared anything on this part of the Bill until now, but I was struck by the fact that the Bill imposes a duty on an individual always to go for judicial review, which, as I have said, is onerous and expensive. Between now and when the Bill finishes its passage through Lords, perhaps the Government will consider another forum, as that might be cheaper, quicker and perhaps more accessible.
Mr. Dhanda: The clock may be against us, so I shall write to hon. Members with assurances if I cannot answer their questions. In many respects, these are amendments of last resort. We do not want to see clerical mistakes, but when they occur it is right and proper that we have a system in place for changes to be made with a minimum of consequential problems, so that projects can be completed as quickly as possible—
It being half past Seven o’clock, Madam Deputy Speaker put forthwith the Question already proposed from the Chair, pursuant to Order [this day].
Clause read a Second time, and added to the Bill.
Madam Deputy Speaker then proceeded to put forthwith the Questions necessary for the disposal of the business to be concluded at that hour.
‘Schedule [ Changes to, and revocation of, orders granting development consent] (changes to, and revocation of, orders granting development consent) has effect.’.— [Mr. Dhanda.]
Brought up, read the First time, and added to the Bill.
Amendment made: No. 113, in page 55, line 23, at end insert—
‘(3A) A court may entertain proceedings for questioning a decision under paragraph 1 of Schedule [Correction of errors in development consent decisions] in relation to an error or omission in a decision document only if—
(a) the proceedings are brought by a claim for judicial review, and
(b) the claim form is filed during the period of 6 weeks beginning with the day on which a correction notice in respect of the error or omission is issued under paragraph 2 of that Schedule.
(3B) A court may entertain proceedings for questioning a decision under paragraph 2(1) of Schedule [Changes to, and revocation of, orders granting development consent] to make a change to an order granting development consent only if—
(a) the proceedings are brought by a claim for judicial review, and
(b) the claim form is filed during the period of 6 weeks beginning with the day on which notice of the change is given under paragraph 2(7)(b) of that Schedule.
(3C) A court may entertain proceedings for questioning a decision under paragraph 3(1) of Schedule [Changes to, and revocation of, orders granting development consent] to make a change to, or revoke, an order granting development consent only if—
(a) the proceedings are brought by a claim for judicial review, and
(b) the claim form is filed during the period of 6 weeks beginning with the day on which notice of the change or revocation is given under paragraph 4(5) of that Schedule.’.— [Mr. Dhanda.]
Amendment made: No. 166, in page 68, line 25, at end insert—
‘(1B) It is a defence for a person charged with an offence under this section to prove that—
(a) the breach or failure to comply occurred only because of an error or omission in the order, and
(b) a correction notice specifying the correction of the error or omission has been issued under paragraph 2 of Schedule [Correction of errors in development consent decisions].’.— [Mr. Dhanda.]
Amendment made: No. 246, in page 116, line 40, at end insert—
‘(aa) a power to make changes to, or revoke, an order granting development consent;’.— [Mr. Dhanda.]
‘(1) This section sets out the parliamentary requirements referred to in sections 5(4) and 6(4).
(2) The Secretary of State must lay the proposal before Parliament.
(3) In this section “the proposal” means—
(a) the statement that the Secretary of State proposes to designate as a national policy statement for the purposes of this Act, or
(b) (as the case may be) the proposed amendment.
(4) Subsection (5) applies if, during the relevant period—
(a) either House of Parliament makes a resolution with regard to the proposal, or
(b) a committee of the House of Commons makes recommendations with regard to the proposal.
(5) The Secretary of State must lay before Parliament a statement setting out the Secretary of State’s response to the resolution or recommendations.
(6) The relevant period is the period specified by the Secretary of State in relation to the proposal.
(7) The Secretary of State must specify the relevant period in relation to the proposal on or before the day on which the proposal is laid before Parliament under subsection (2).’.— [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: With this it will be convenient to discuss the following:
Amendment (a) to the proposed new clause, in subsection (2) at end insert
| Next Section | Index | Home Page |