Clause
13
Power
to disapply section
10(1)
Question
proposed, That the clause stand part of the
Bill.
Stephen
Hammond:
I have a short contribution to make. I invite the
Minister to tell the Committee what is the purpose of the clause. The
explanatory notes say that
it
“allows the Secretary
of State to switch off the deemed planning permission granted by the
Bill in respect of future Crossrail works, should he decide to do
so”.
The preceding
clauses have given the Government the power to obtain deemed planning
permission to build the network, presumably to facilitate and speed up
the construction process. However, under clause 13, we see that they do
not want that power and are saying that the process can go down the
normal planning permission road.
Why does the Secretary of State
want special powers in relation to the deemed planning permission
process at one stage and, in respect of clause 13, under what
circumstances is that not necessary? I find the clause slightly
confusing in that regard and I look forward to the Minister
elucidating. 2
pm
Mr.
Harris:
The clause allows the Secretary of State, by means
of an order, to disapply the deemed planning permission granted by
clause 10(1) in respect of maintaining or altering any Crossrail work
from the date specified in the order. That is most likely to be used in
the case of the electrification and signalling work done on sections of
the existing railway network. It will ensure that a single planning
regime covers works in relation to existing track after the Crossrail
construction phase has been completed. In the event of a
disapplication, any such development would be subject to the normal
provisions of the Town and Country Planning (General Permitted
Development) Order 1995 applying to development authorised by a local
Act.
Stephen
Hammond:
I am interested that the Minister has chosen to
mention electricity. When we touched on that point this
morning, he said that he required special powers to deal with
electricity, yet now, when discussing other provisions relating to it,
he says that he can use normal
powers.
Mr.
Harris:
I am not entirely sure that I follow the hon.
Gentleman’s logic on that point. Does he want to
elucidate?
Stephen
Hammond:
This morning we looked at the Electricity Act
1989 and the normal consent regime that applied. I was told that that
regime clearly was not appropriate and that a special consent regime
needed to apply. I cannot understand why a special consent regime is
needed to deal with the building and moving of electricity
infrastructure, but not a special planning
regime.
Mr.
Harris:
I will tell the hon. Gentleman
shortly.
Stephen
Hammond:
Inspiration has
arrived.
Mr.
Harris:
Yes, inspiration has arrived
from on high. The clause is about works to maintain or alter the
existing infrastructure. It is not about creating new infrastructure,
which is why there is a different planning regime. I hope that that
makes sense to the hon. Gentleman. The clause allows the planning
regime to change and then to revert back to normal—as it was
before the construction took
place.
Stephen
Hammond:
I was hoping that the answer would make sense to
me. The Minister says that the clause relates to the alteration of
existing infrastructure rather than to new infrastructure, but we are
taking deemed planning permission to do all sorts of alterations to
existing infrastructure. Will he clarify what infrastructure already in
existence he wishes to alter and why? Why, in another case, does he
want existing infrastructure that needs to be altered to be dealt with
under a different planning regime?
Mr.
Harris:
That might be something that I will have to write
to the hon. Gentleman about. As I said earlier,
the clause allows the Secretary of State, by means of an order, to
disapply the deemed planning permission granted under clause 10(1) in
respect of maintaining or altering any Crossrail work from the date
specified in the order. In that respect, I can understand the hon.
Gentleman’s questions, but I might have to clarify these issues
at a later
date.
Question put
and agreed
to.
Clause
13
ordered to stand part of the
Bill.
Clause
14
ordered to stand part of the
Bill.
Clause
15
Extension
of permitted development
rights
Question
proposed, That the clause stand part of the
Bill.
Stephen
Hammond:
For the purposes of clarification, will the
Minister assure me that clauses 15, 16 and 17 merely bring into effect
schedules 8, 9 and 10, and that they have already been extensively
covered by the Select Committee and are not really within the
jurisdiction of this Public Bill
Committee?
Mr.
Harris:
The hon. Gentleman is right that these provisions
have been covered by the Select Committee. However, since they are in
the Bill, it is within the jurisdiction of the Committee to amend and
debate
them.
Stephen
Hammond:
I thank the Minister for that reply. Within the
schedules, I understood that we were not able to touch the routes or
the highways, but that we might be able to change some parts of the
schedules relating to methods. I was seeking clarification that my
understanding was
correct.
Mr.
Harris:
That is a procedural matter that you may wish to
clarify with the Clerks, Lady Winterton, but it is not a matter on
which I can
rule.
The
Chairman:
For the Committee’s information, an
amendment that seeks to re-hybridise the Bill falls outside the scope
of the
Bill.
Question put
and agreed
to.
Clause
15
ordered to stand part of the
Bill.
Schedule
8
agreed
to.
Clause
16
ordered to stand part of the Bill.
Schedule
9
agreed to.
Clause
17
ordered to stand part of the Bill.
Schedule
10
agreed to.
Clause
18
Power
to deal with trees on neighbouring
land
Stephen
Hammond:
I beg to move amendment No. 14, in
clause 18, page 12, line 7, at
end add
‘, and is
subject to the conditions set out in subsection (3)’.
Clauses 18 and 19 quite rightly
deal with trees, because overhanging trees could delay the scheduled
works, and it is understandable that they might need to be trimmed or
removed so that they no longer obstruct the construction or operation
of Crossrail. Clause 18 allows the owner of a tree to appeal against
any such action and entitles them to receive compensation for loss or
damage. One would be hard-pressed to disagree with the general
provisions. The amendment is not designed to revise that purpose, or
the general principle behind it, but to make the process slightly more
watertight.
Subsection
(4) enables the nominated undertaker to do the work himself, if the
owner of the tree has not undertaken to do so within 28 days of being
served a notice by the nominated undertaker. However, the clause would
benefit if the words of the amendment were appended because there will
undoubtedly be some cases in which the reason for the
landowner’s inaction will be that he has objected to the
proposed works in accordance with subsection (2). It may be that,
within those 28 days, he has served a counter-notice and is therefore
awaiting confirmation by a county court. When the 28-day deadline
expires, he may still be waiting for that response. If that is the
case, it will be prudent for the nominated undertaker to await the
judgment of the county court before starting work on the affected tree.
By making a reference to subsection (3) in subsection (4), we would
ensure that the nominated undertaker would not start chopping off
branches before he was sure that any appeal to the courts has been
properly
processed.
Mr.
Harris:
I can see what the hon. Gentleman is attempting to
achieve with the amendment, but I can tell him that the powers featured
in subsection (4) are not what he assumes them to be. I will
explain.
The clause
deals with the removal or lopping of overhanging trees on adjacent land
that is necessary for the Crossrail works to be constructed or
maintained, and for their safe operation. The nominated undertaker can
give notice and, if there is no objection, can undertake the works
after 28 days, if the owner has not dealt with the trees himself. If a
counter-notice is served within the 28-day period, the notice has no
effect unless confirmed by a county court. That provision is very
similar to that provided under the 1996 Act, which used a procedure for
notices and counter-notices similar to that provided under the
Telecommunications Act 1984. That Act gives the landowner the suitable
protection that he can choose to lop or remove the trees himself, but
if he disputes the need for lopping or removal, he can serve a
counter-notice. In that case, no action can be taken, unless the county
court confirms the
notice.
If the
intention behind the amendment is that the county court should confirm
every notice, whether contested or not, I would argue that it would add
no benefit. If a landowner has done nothing about a notice, it is
highly likely that the county court consideration would be uncontested.
It is unclear, therefore, what such consideration would achieve.
However, it would create extra work, including for the courts, and
might cause delay. I therefore hope that the hon. Gentleman will
withdraw the amendment.
Stephen
Hammond:
I initially thought that the Minister was saying
that the serving of a counter-notice stopped the time limit on the
notice. Was that what he was
saying?
Mr.
Harris:
If a counter-notice is served, no action can be
taken until it is confirmed by a county
court.
Stephen
Hammond:
I am grateful to the Minister for that
clarification. If that is the procedure, my amendment is rendered
unnecessary, and I beg to ask to leave to withdraw the
amendment.
Amendment,
by leave,
withdrawn.
Clause
18 ordered to stand part of the
Bill.
Clause 19
ordered to stand part of the
Bill.
Clause
20
Control
of construction sites:
appeals
Question
proposed, That the clause stand part of the
Bill.
Stephen
Hammond:
Clause 20 will effectively disapply the
provisions of the Control of Pollution Act 1974, which will mean that
appeals are determined by not a magistrates court, but the Secretary of
State, which is concerning. The Government are trying to enact
legislation that allows them, or their nominated undertaker, to create
a great deal of noise—I accept that sometimes that is
unavoidable—in and around London. Under the 1974 Act, the
Government can apply for prior consent for such a level of noise.
Normally, such appeals would be heard by a magistrates court, but now
the Government want to hear those appeals themselves. In legal terms,
they would therefore be the defendant and judge. I invite the Minister
to clarify the situation and explain how he will seek to remedy it. It
is an extremely important
matter.
This morning,
we tackled briefly the possibility of noise due to the extension of
boring and drilling downwards. However, we have only touched on noise.
Clearly, noise blight could be a major result of the construction phase
under the Bill. Whole communities might well be affected during the
construction, and the 1974 Act seems to be more or less the only
protection for a neighbourhood or community. It would seem invidious
for appeals to be determined by the Secretary of State rather than
through the normal channels. How on earth could a local community
protect itself? Is the Minister saying that the Government should be
above the law for the purposes of this Bill, and
therefore—potentially—for the purposes of other
Bills?
Sir
Peter Soulsby:
May I reassure the hon.
Member for Wimbledon that the question of noise during construction was
repeatedly a matter of concern in petitions heard by the Select
Committee? We spent a considerable amount of time listening to those
concerns and were heartened to receive from the promoters and the
Government a number of assurances about the way in which the
construction would be undertaken. That enabled us to reassure those
petitioners. Although I understand the point that the hon. Gentleman is
making about the general provision, I hope that I can reassure him and
the Committee that some of the specific problems anticipated by
petitioners, residents and those in the
neighbourhood of the construction sites were considered at an early
stage and a number of remedial measures were put in
place.
2.15
pm
Mr.
Lee Scott (Ilford, North) (Con): There are laws in place
relating to noise pollution from works. However, my constituency has
the highest number of underground stations—a total of
14—and lot of work takes place outside normal hours and causes
massive disturbance, and that is just the ongoing regular work. There
will be much more work to be done during the construction stage of
Crossrail, which is why this important issue needs to be
addressed.
Mr.
Binley:
May I confirm what my colleague the hon. Member
for Leicester, South said about the concern raised by petitioners not
only about noise, but about other pollution? Noise, vibration and dust
were the major concerns. Indeed, we went through the code that has been
adopted—at considerable length and to a considerable depth. The
hon. Gentleman is right. We should be happy with the conditions built
in to the code and the fact that the undertakers are aware of the need
to act properly in this respect. However, there are sad occasions when
things go wrong and we have seen examples of that in this place over
the past week.
I am
concerned about whether there is a fall-back position. Many of the
petitioners felt that they had a fall-back position with regard to
magistrates who knew their own locality. That was an important
safeguard for them: if the code and the promises and all that was said
to good effect did not materialise, they could appeal to local
magistrates. Again, the “local” gave them comfort. I am
concerned that we are removing local knowledge from the equation. I
would like the Minister to reassure me and tell me exactly why he feels
that that element should be removed or whether my concerns do not
matter and are of no consequence. If that is so, I am happy; if not, I
will not be happy at
all.
Mr.
Harris:
I will try my best to offer comfort to Opposition
Members, although I am not sure whether I will be successful, given the
concerns that they have raised. However, I believe that their concerns
are unfounded. I am grateful for the comments made by my hon. Friend
the Member for Leicester, South in that
regard.
May I use an
increasingly over-used word, which is perhaps devalued currency, and
say that the clause is precedented in the Channel Tunnel Rail Link Act
1996? The purpose of the clause is to modify elements of the Control of
Pollution Act 1974, so that an appeal against a construction noise
notice under section 60 of that Act, or a refusal or conditioning of a
consent to construction arrangements under section 61, is
determined by the Secretary of State instead of by a magistrates
court.
The Crossrail
scheme is a linear work of some 100 km in length, passing through the
areas of many petty sessional divisions. Although magistrates courts
are an appropriate forum for the resolution of disputes in relation to
schemes and activities that have discrete local effects, using such
courts as appellate bodies is not likely to secure the co-ordinated and
unified approach to construction activities that is desirable for the
effective management of a project the size of
Crossrail.
Mr.
Binley:
The point about which we are talking relates not
to the code, but to the failure of the code. The code should be
adjudged from a local perspective, because local conditions impact upon
dust, noise and vibration. We were told that at great length. That is
why, given that the conditions and the code are in place, I want an
appeal, as a fall back scenario, to be interpreted from a local
viewpoint, rather than from that of the Secretary of State, who has, as
the Minister said, the broader view. It is for that exact reason that I
want the local
input.
Mr.
Harris:
I understand the hon. Gentleman’s concerns,
but do not accept his assumption that the Secretary of State is somehow
an inappropriate person to hear those appeals. As a member of the
Select Committee, the hon. Gentleman will know that an awful lot of
work has been done on agreeing the working hours for Crossrail works.
That has been the subject of lengthy discussions with local authorities
and, of course, the Select
Committee.
Sir
Peter Soulsby:
I wish to respond to the suggestion that
local knowledge will somehow be lost by this process. I am sure that
the Minister can confirm that the role of the local authority will be
completely unaffected by the provision, and the local knowledge that
the local authority undoubtedly has will still be an important part of
the enforcement of the controls over this
nuisance.
Mr.
Harris:
My hon. Friend is correct and, once again, shows
deep knowledge of the subject at hand. The position agreed with local
authorities is reflected in the construction code mentioned by the hon.
Member for Northampton, South, which forms part of the environmental
minimum requirements, for which an undertaking has been given to the
House.
I would like
to clarify the fact that the Secretary of State will not necessarily be
the Secretary of State for Transport. The hon. Member for Northampton,
South has suggested that the Secretary of State for Transport might be
in some kind of double bind, being both the appellant—the person
creating the complaint in the first place—and the person hearing
the appeal. It does not have to be the Secretary of State for
Transport.
Stephen
Hammond:
If it does not have to be the Secretary of State
for Transport, which Secretary of State does the Minister envisage it
being? It would help a lot of people if that was specified in the Bill.
Is he proposing that the appellate procedure be held by the Secretary
of State for Communities and Local
Government?
Mr.
Harris:
In practice, it would not necessarily be the
Secretary of State for Transport. Instead, an independent inspector is
likely to be appointed with the authority of the Secretary of State.
That is what happened with the 1996 Act. As the appeal in the case of
the Thameslink box at Kings Cross has shown, there can be no
presumption that the inspector will find in favour of the project. We
know that the promoter lost that particular case.
I understand
the general concern that the Secretary of State should not have those
powers, but they have been invested in previous legislation and hybrid
Bills because a strategic approach is needed. Of course, local
knowledge is absolutely essential. However, that local knowledge will
not be lost, as my hon. Friend the Member for Leicester, South has
already said. In a project of such importance and physical size, the
appeals should be heard by someone with a strategic overview of the
project, not by any number of local magistrates
courts.
Question
put and agreed
to.
Clause 20
ordered to stand part of the
Bill.
| 
