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Session 2007 - 08
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Planning Bill

Planning Bill

The Committee consisted of the following Members:

Chairmen: Sir John Butterfill, Mr. Eric Illsley
Benyon, Mr. Richard (Newbury) (Con)
Betts, Mr. Clive (Sheffield, Attercliffe) (Lab)
Brake, Tom (Carshalton and Wallington) (LD)
Clark, Paul (Gillingham) (Lab)
Curry, Mr. David (Skipton and Ripon) (Con)
Dhanda, Mr. Parmjit (Parliamentary Under-Secretary of State for Communities and Local Government)
Duddridge, James (Rochford and Southend, East) (Con)
Ellman, Mrs. Louise (Liverpool, Riverside) (Lab/Co-op)
Ennis, Jeff (Barnsley, East and Mexborough) (Lab)
Fitzpatrick, Jim (Parliamentary Under-Secretary of State for Transport)
Healey, John (Minister for Local Government)
Jones, Mr. David (Clwyd, West) (Con)
Lait, Mrs. Jacqui (Beckenham) (Con)
Llwyd, Mr. Elfyn (Meirionnydd Nant Conwy) (PC)
Michael, Alun (Cardiff, South and Penarth) (Lab/Co-op)
Mole, Chris (Ipswich) (Lab)
Neill, Robert (Bromley and Chislehurst) (Con)
Reed, Mr. Jamie (Copeland) (Lab)
Rogerson, Dan (North Cornwall) (LD)
Sheridan, Jim (Paisley and Renfrewshire, North) (Lab)
Watts, Mr. Dave (Lord Commissioner of Her Majesty's Treasury)
Alan Sandall, Committee Clerk
† attended the Committee

Public Bill Committee

Tuesday 22 January 2008


[Sir John Butterfill in the Chair]

Planning Bill

Clause 27

When development consent is required
4 pm
Robert Neill (Bromley and Chislehurst) (Con): I beg to move amendment No. 255, in clause 27, page 13, line 24, leave out ‘is required’ and insert ‘may be applied for’.
The Chairman: With this it will be convenient to discuss the following amendments: No. 256, in clause 27, page 13, line 30, leave out ‘is required’ and insert ‘may be applied for’.
No. 257, in clause 29, page 14, line 30, leave out ‘required’ and insert ‘obtained’.
No. 258, in clause 29, page 15, line 8, leave out ‘required’ and insert ‘obtained’.
No. 259, in clause 29, page 15, line 9, leave out ‘may’ and insert ‘is required to’.
Robert Neill: It is a pleasure to see you back in the Chair, Sir John. We thought that we would change the shift on our Front Bench for the afternoon as well.
The amendment looks at the means by which applications for development consent can be dealt with. We are moving on to part 4, which deals with the question of the requirement for development consent. This group of amendments addresses an issue that the Government have still not got right: the existence of parallel regimes. We discussed the matter earlier today, but we are still not convinced that the Government understand the potential difficulty.
The amendment would change the wording from saying that consent “is required” under the infrastructure planning commission procedure, to saying that it “may be applied for”. The reason for tabling it is to tease out from the Government further comment on how they see the two regimes sitting together. Amendments Nos. 257 to 259 are consequential amendments and I need not go into too much detail. Essentially, they follow on from those changes in subsequent parts of the Bill.
If there are going to be two regimes, the Government should either rule national infrastructure projects out completely or there should be a measure of flexibility for the applicant. Which is it to be? If we take the route that we have suggested and use the Bill to separate policy statements from site-specific elements, the logic suggests that everything should go through a single consent regime. The reasons for that have already been rehearsed and I will not repeat them. We are in favour of that, but we seem to be in the position that duplicate regimes will exist. Do I take it that anything that falls within the category of nationally significant infrastructure projects will automatically be dealt with under the single consent regime and also by the IPC? Clarity on that is important for people. Some of the evidence that we heard expressed concern about the two regimes. We would like the Government to spell it out. The amendment is not intended to wreck, but to find a more constructive way forward.
I hope that without trespassing too much, Sir John, I may mention amendment No. 9, which is in the next group, because it is part of the overall picture. I will try to keep in order by saying that we will find that a subsequent amendment also relates to our alternative approach. First, the scheme will work best if there is a clear separation between national policy and site-specific elements. Secondly, that could be achieved without the need for the large and cumbersome bureaucracy of the IPC. My hon. Friend the Member for Beckenham has already rehearsed the reasons for that. It could be done by adapting the Planning Inspectorate and the role of the High Court in dealing with issues of fact and the construction of statutory matters. Those are well-established routes and that separation of areas could be used to cut down repetition and the lengthy cross-examination of inquiries. We will return to that matter in more detail later.
The amendments are not complex, but I would like to hear exactly where the Ministers are going with regard to single consent or otherwise. If two regimes are to be in existence, the temptation will be for someone to argue the toss as to whether they are caught by the national infrastructure regime, or whether they should make an application under the existing rules.
I see the point that it will, generally, be in the applicant’s interest, if he has multiple applications, to go under the national infrastructure regime. But one can think of circumstances in which the project—we will return to the definition of that later— might simply be one discrete piece of development that would require only one application. In that regard, looking at some of the other elements of fees and other matters that we will come on to later, there may be circumstances in which there is a temptation for the applicant to say, “Actually, I would rather go under the old route”. That may seem unlikely, but it is possible. We would like what is in and what is out of the regime to be clear, and I hope that the Minister can help us on that.
The Parliamentary Under-Secretary of State for Transport (Jim Fitzpatrick): It is a pleasure to see you back in the Chair this afternoon, Sir John. Allow me to add my welcome to your return. I have not had the opportunity to welcome you to presiding at all so far in Committee, and it is nice to see you back.
I also welcome the hon. Member for Bromley and Chislehurst to his place. A West Ham double act means that perhaps we can get back on to some football anecdotes, and get away from some of the Scottish questions, although I am not sure that that will be wholly achievable.
Were the amendments accepted, the result would be that promoters of nationally significant infrastructure projects could continue to apply under the current multiplicity of consent regimes, thereby providing none of the benefits of the single consent regime to promoters and the public. Such applications would not go through the procedure set out in the Bill, which is a substantial improvement on the current planning system, particularly, as we have discussed on a number of occasions, at the pre-application and examination stages. The legal test for deciding such applications would be that set out in the consent regime chosen. As a result, the primary consideration for such applications would not necessarily be Government policy in relation to the particular infrastructure, as set out in the form of a policy statement that had been subject to parliamentary scrutiny.
The approach adopted in the Bill is better. Infrastructure projects of national significance should be determined through a national planning body, and through a single application for order-granting development consent, rather than through a handful of applications to different bodies for different partial consents. Decisions on nationally significant infrastructure projects should be made in accordance with appropriate national policy statements that have been subject to thorough consultation, unless there are very good reasons not to do so. Similarly, we believe that applications for NSIPs would benefit from the pre-application requirements that we have set out in the single consent regime. The benefits of those will be lost if promoters can choose to avoid them by going down an alternative route.
To conclude, the hon. Member for Bromley and Chislehurst asked whether the Government should rule out NSIPs from existing regimes; that is exactly what the Bill does. Clause 29 prevents any existing regime requirements from being required for NSIPs. No order on a nationally significant infrastructure project can be made under existing regimes either, with the exception of Welsh offshore wind farms, which we discussed this morning. If a project is an NSIP, it must go through the single consent regime. On that basis, I recommend that the Committee reject the amendment, if the hon. Gentleman insists on pressing it to a vote.
Robert Neill: I am grateful to the Minister. I will not press the amendment to a vote, but I hope that he will make clear on Report in precisely what circumstances, if any, it is envisaged that leaving the existing regime in place will achieve something. If clause 29 has the desired effect, are we clear that it is set out unequivocally so that no one will be tempted to go down that route?
Jim Fitzpatrick: We are leaving the existing regime in place because there will be applications for planning permission that will not be NSIPs and therefore the existing legislation will be required.
Robert Neill: I appreciate that part, but I was concerned that we should all be satisfied that clause 29 avoids any ambiguity in that regard.
Mrs. Jacqui Lait (Beckenham) (Con): I still think that there is one area that we need to look at. The legislation that was set up for that is now quite elderly and it would therefore be logical and in the interests of better regulation if the Government were to move the remainder of those bits of legislation into the planning system under the Town and Country Planning Acts, rather than having separate Acts under the control of what was the Department of Trade and Industry.
Robert Neill: My hon. Friend makes an interesting point and, in the interests of co-operation and clarity, I will endeavour to speak sufficiently slowly to enable those advising the Minister to get the note to him, as I am sure that he will want to help us in that regard. The issue of clarity is important and I hope that we will be able to deal with it adequately.
The Minister feels that that is enough. I am grateful to him and have given him that chance, but if we are unhappy we will return to the matter on Report. At this stage, however, perhaps we will regard what he and I have said as the same outcome as Saturday’s Manchester City game, 1-1, and I will withdraw the amendment; and I apologise, Sir John, for the Bournemouth and Southend game. I beg to ask leave to withdraw the amendment.
The Chairman: That is quite enough football references from the Committee for one afternoon.
Amendment, by leave, withdrawn.
Jim Fitzpatrick: I beg to move amendment No. 340, in clause 27, page 13, line 27, leave out subsection (2).
The Chairman: With this it will be convenient to discuss the following: Amendment No. 9, in clause 27, page 13, line 32, leave out ‘Commission’ and insert ‘High Court’.
Amendment No. 164, in clause 27, page 13, line 32, leave out ‘Commission’ and insert
‘Secretary of State on the advice of the Commission.
‘(3) The Secretary of State must take a decision under subsection (2) within 28 days of receiving the Commission’s advice.
(4) Nothing in this section shall compel the Secretary of State to comply with the Commission’s advice.’.
Amendment No. 10, in clause 32, page 16, line 25, at end insert—
‘(2A) An order granting development consent may also be issued by the High Court consequent on a decision under section 27(2).’.
Government amendments Nos. 360 and 361.
Jim Fitzpatrick: I ask the Committee to reject amendments Nos. 9, 164 and 10 and adopt Government amendments Nos. 340, 360 and 361. The Bill currently provides that when there is doubt as to whether a project requires development consent, the commission will decide the question. The amendments tabled by Opposition Members would only be relevant in a case in which a promoter submits an application for a project whose capacity is closer to the threshold set out in clauses 13 to 26.
The current clause would allow the IPC to decide whether the proposed development meets the thresholds to be constituted a nationally significant infrastructure project. We agree a mechanism for determining whether a project meets the threshold of being an NSIP is necessary, and believe that the IPC will be best placed to analyse the proposals set out by a promoter and to decide whether the project falls within the specified thresholds. We take that view because of the technical expertise that will be available to it and because it will handle such applications regularly.
The question of whether a proposed development meets the thresholds in order to be a nationally significant infrastructure project is primarily a matter of fact. As such, we do not believe that the High Court should be involved at that stage. There will be a right of recourse to the High Court at the appropriate stage of proceedings as set out in clause 104. Amendment No. 10 provides that the High Court itself be able to issue an order granting development consent, and we do not consider that to be appropriate either.
Notwithstanding what I have said, the Government are not content with clause 27 as it stands. We believe that decisions on whether an application requires development consent should take place earlier in the process. Leaving those questions until they are raised could lead to both considerable uncertainty for promoters and objectors and potentially nugatory work. Instead, the Government propose an amendment to clause 49 to allow the IPC to take those decisions earlier in the preparation of an application. Amendment No. 360 provides that when the commission receives an application purporting to be for an order granting development consent, it may only accept the application if it concludes within 28 days that development consent is required for all or some of the development contained in the application.
4.15 pm
During that period the commission will need to consider whether, for example, the proposed development meets the threshold set out in relation to NSIPs. It would check, along with other matters, that the application complies with the rules regarding the content and form of an application and the standards set out in clause 32(5), and that the applicant has complied with the pre-application procedures. As a result, clause 27(2) is no longer needed; amendment No. 340 therefore deletes the subsection. On that basis, I recommend that the Committee reject the Opposition amendments. I commend to the Committee the amendments tabled by my hon. Friend the Minister for Local Government.
Robert Neill: Amendments Nos. 9 and 10 were primarily tabled as part of our overall scheme for an alternative that would use the Planning Inspectorate and the High Court as the means, rather than having to create the IPC. I need not repeat that point. I appreciate that the votes have not been with us so far on that, but the point is made for consistency. The Ministers know that our concerns about the principle remain, and that will be referred to in due course.
Another issue of concern, particularly in relation to amendment No. 9, is whether it will be practical and appropriate for the IPC to act to some degree as judge and jury under those circumstances. It may be that expertise can be made available—that comes back to the point made earlier about the importance of a proper range of expertise within the IPC, so that the issues can be dealt with. I appreciate that sometimes these will be questions of fact, but to use the jargon, they are often mixed questions of fact and law, which have historically been decided through the courts. It is therefore important that there is adequate legal membership of the commission, as well as adequate representation of other professionals, to ensure that there is a legal input. Otherwise, we might have to hire some expensive lawyers, the very thought of which will make the Government blanch, to ensure that the decision is legally watertight.
The Minister’s observations about his own changes to the Bill, and his bringing forward those issues, are welcome. I am glad that the discussion until now has managed to highlight those issues. Clearly, it is right, in the interests of speed and efficiency, that as much as possible is dealt with at the pre-application and earlier stage, so that the issues in dispute are narrowed down for any hearing, whatever form that takes, which we will debate later. I think that that is common ground among all members of the Committee and virtually everybody who has expressed an interest in the Bill, whether professional or lay. We understand that clause 10 was put in place to try to save time under such circumstances, but given the Minister’s comments and having flagged up the issue, we are content at this stage to withdraw our amendments.
Dan Rogerson (North Cornwall) (LD): I join other hon. Members in welcoming you back to the Chair, Sir John. I rise to speak to amendment No. 164, which I have tabled. Along similar lines to the hon. Member for Bromley and Chislehurst, I had concerns about the commission deciding whether or not it should consider an application, and felt that it might be more appropriate for that decision to be a matter for the Secretary of State. However, the Government amendment that deletes that provision is an alternative and it reassures us that the Bill is watertight enough and that these matters will fall within the scope of the Bill, so there will not need to be a decision by the commission. On that basis, I am happy to withdraw the amendment.
The Chairman: May I just say to the hon. Members that it is not necessary for them to withdraw their amendments as they have not yet been called? They have been debated along with that which is presently being discussed. When we come to their amendments, the hon. Members may choose not to move them, so it is not necessary to withdraw them at this stage.
Amendment agreed to.
Clause 27, as amended, ordered to stand part of the Bill.
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