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Session 2007 - 08 Publications on the internet General Committee Debates Planning Bill |
Planning Bill |
The Committee consisted of the following Members:Alan Sandall,
Committee Clerk
† attended
the Committee
Public Bill CommitteeTuesday 22 January 2008(Afternoon)[Sir John Butterfill in the Chair]Planning BillClause 27When
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.
I would
ask the Committee, with the greatest respect to the hon. Gentleman, to
reject the amendments. They remove an obligation on
promoters of nationally significant
infrastructure projects to seek developing consent under the new single
consent regime. Instead, promoters would be given the opportunity to
seek consent for their project, either under the single consent regime
or under any of the existing regimes. That would have the effect of
substantially reducing the benefits of the new single consent regime,
as well as potentially confusing both promoters and the wider public as
to the steps that must be gone through in order to proceed with an
application.
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.
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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