Planning Bill


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Clause 28

Meaning of “development”
Jim Fitzpatrick: I beg to move amendment No. 143, in clause 28, page 14, line 1, after ‘use’ insert ‘a cavity or’.
The Chairman: With this it will be convenient to discuss Government amendment No. 144
Jim Fitzpatrick: Clause 28 provides a definition of which type of works constitute “development” for the purposes of the Bill, and consequently whether development consent is required before the works are undertaken. In general, the meaning of development in the Bill is the same as is currently the case in the Town and Country Planning Act 1990. Subsection (2) adds two further categories of works which should be considered development: the conversion of a power station’s fuel source and starting to use underground strata for the purposes of gas storage. Amendments Nos. 143 and 144 amend the clause so that development will also include starting to use underground cavities for the purpose of gas storage. That is a technical change to ensure that the new regime properly covers all forms of gas storage as currently undertaken both within underground strata and cavities.
Robert Neill: We take no issue with what the Minister says. It is a sensible and technical amendment.
Amendment agreed to.
Amendment made: No. 144, in clause 28, page 14, line 2, after second ‘the’ insert ‘cavity or’.—[Jim Fitzpatrick.]
Clause 28, as amended, ordered to stand part of the Bill.

Clause 29

Effect of requirement for development consent on other consent regimes
Jim Fitzpatrick: I beg to move amendment No. 341, in clause 29, page 14, leave out lines 34 to 37.
The Chairman: With this it will be convenient to discuss Government amendments Nos. 343, 344 and 353 to 355.
Jim Fitzpatrick: Clause 29, together with clause 27, ensures that projects which require consent under the new single consent regime are not in addition required to obtain consents under other regulatory regimes. Subsection (1) states:
“To the extent that development consent is required for development”
it is not necessary to also obtain any of the consents listed in paragraphs (a) to (k). The amendments are needed to ensure that the devolution settlement with regard to Wales is maintained. Currently, a project that involves work on a heritage asset in Wales needs to obtain listed building consent, conservation area consent or scheduled monument consent from Welsh Ministers. Amendments Nos. 341, 343 and 344 amend the clause to ensure that a consent granted under the single consents regime will not override the need to obtain listed building consent, conservation area consent or scheduled monument consent from Welsh Ministers if such consent is currently needed.
Robert Neill: From our point of view, we are glad to have that on the record. It spells out the situation quite well and we are grateful to the Minister for that explanation.
Amendment agreed to.
Jim Fitzpatrick: I beg to move amendment No. 342, in clause 29, page 14, leave out lines 47 and 48.
The Chairman: With this it will be convenient to discuss Government amendment No. 351
Jim Fitzpatrick: Clause 29, together with clause 27, states that projects which require consent under the new single consent regime are not in addition required to obtain consent under other regulatory regimes. Subsection (1) states:
“To the extent that development consent is required for development, none of the following is required to be obtained for the development or given in relation to it.”
Paragraph (h) refers to consent issued under section 39(1) of the Pipe-lines Act 1962 for the placing of pipelines over or under harbour waters. Consent in the first instance is for the harbour authority. Only if agreement cannot be reached will the matter be referred to the Secretary of State. It is not appropriate to remove the role of the harbour authority. In addition, the placing of a pipeline over or under harbour waters will not in itself amount to a nationally significant infrastructure project, so it is not considered appropriate to automatically disapply section 39(1) of the 1962 Act.
Amendments Nos. 342 and 351 propose to remove section 39(1) consents for placing pipelines in harbour waters from the list of consents that are automatically disapplied when development consent is required under the Bill. Instead, such works will require separate consent under section 39(1) of the 1962 Act. Should a promoter of a nationally significant pipeline wish to place part of their pipeline under harbour waters, they could still include that in their application to the Infrastructure Planning Commission as associated works, as referred to in clause 101. However, the requirement to obtain consent under section 39(1) of the 1962 Act will continue in force. I commend this amendment to the Committee.
Robert Neill: I do not have any issue with what the Minister said, but will he clarify one point? Given that we have discussed consultation arrangements, what happens when a developer proposes to put a pipeline under harbour waters? Will any harbour authority be a consultee under those circumstances? What will be the arrangements to ensure that they are consulted? One can imagine the circumstances in which they would have a legitimate material interest. If the Minister is not able to help me at the moment, he can take the matter away and perhaps come back to it later so that the authorities are not disadvantaged. As he said, harbour authorities frequently have a separate legal identity from the local authorities.
Jim Fitzpatrick: I am very happy to come back to the hon. Gentleman in due course and I am grateful for the opportunity to research exactly where that matter will be covered in respect of the Bill. By virtue of the fact that we are articulating that the appropriate sections of the 1962 Act will still apply, we are clearly indicating that there will be a requirement for harbour authorities to be involved. Therefore, consultative arrangements that would normally apply will apply here as a matter of course. However, I will double check to see whether our references are strong enough.
Amendment agreed to.
Amendments made: No. 343, in clause 29, page 15, line 4, at end insert—
‘(ja) to the extent that the development relates to land in England, consent under section 2(3) or 3 of the Ancient Monuments and Archaeological Areas Act 1979;
(jb) to the extent that the development relates to land in England, notice under section 35 of the Ancient Monuments and Archaeological Areas Act 1979;’.
No. 344, in clause 29, page 15, line 7, at end insert—
‘(l) to the extent that the development relates to land in England, consent under section 8(1), (2) or (3) of the Listed Buildings Act;
(m) to the extent that the development relates to land in England, consent under section 74(1) of the Listed Buildings Act.’.—[Jim Fitzpatrick.]
4.30 pm
Jim Fitzpatrick: I beg to move amendment No. 345, in clause 29, page 15, leave out line 14.
The Chairman: With this it will be convenient to discuss Government amendment No. 352
Jim Fitzpatrick: As we have already discussed, clause 29, together with clause 27, ensures that there are the required consent arrangements under the single consent regime. Subsection (2)(c) states that to the extent that development consent is required for a project, a notice under section 16(1) of the Gas Act 1965 with respect to safety conditions may not also be given in relation to that project. A notice under section 16(1) of the 1965 Act is issued by the Secretary of State and imposes safety conditions on the development or operation of an underground gas storage facility. It also applies to gas storage facilities that have received a consent by means of an order under section 4(1) of the 1965 Act.
Under the terms of subsection (2)(b) in which a project requires development consent under this Bill, no order under section 4(1) of the 1965 Act can be made. As they are linked to section 4(1) orders, it is automatically the case that notices about safety conditions under section 16(1) of the 1965 Act cannot be made for gas storage facilities consented under this Bill. The amendments seek to avoid confusion on the application of the 1965 Act by deleting references to section 16(1) of the Gas Act in the Bill.
None of this is to say that safety conditions cannot be imposed on the development of gas facilities within the single consents regime. That regime already contains a provision in clause 105(1) for the decision maker to impose whatever requirements it feels appropriate on the grant of development consent. That power can be exercised to serve a notice on terms equivalent to that which could previously be set out in a notice under section 16(1) of the 1965 Act given at the same time as a storage authorisation order under that Act.
Amendment agreed to.
Jim Fitzpatrick: I beg to move amendment No. 346, in clause 29, page 15, line 16, at end insert—
‘(2A) Subsection (2) is subject to section [Welsh offshore generating stations].’.
The Chairman: With this it will be convenient to discus Government new clause 11—Welsh offshore generating stations.
Jim Fitzpatrick: We have discussed clause 29 in some detail. Subsection (2)(d) refers to orders made under the Transport and Works Act 1992. Currently, offshore wind farms can receive consent under section 37 of the Electricity Act 1989 or through an order under the 1992 Act. Provisions of the 1992 Act have been devolved to Welsh Ministers for projects based entirely in Wales. Welsh Ministers have made an order under the 1992 Act for an offshore wind farm at Scarweather Sands. In order to preserve the devolution settlement, these amendments are needed to allow Welsh Ministers to use the 1992 Act to consent to offshore wind farms in territorial waters adjoining Wales. That does not prevent a promoter from seeing a development consent for such a wind farm under the single consents regime if he or she so chooses.
Mr. David Jones (Clwyd, West) (Con): Perhaps the Minister could help me. How many of the current and recently granted applications for offshore wind farms in Wales—apart from the one at Scarweather Sands—been made under this particular provision rather than under the usual provision in the 1989 Act? Is it the case that almost every year consent for wind farms in excess of 50 MW generating capacity is applied for under the 1989 Act?
Jim Fitzpatrick: My understanding is that that is the case. If the hon. Gentleman will allow me, I will do some research into the numbers of applications and respond to him in due course.
Robert Neill: My hon. Friend’s helpful intervention reminds me of one other point that I would like the Minister to clarify. He has set out the way in which certain decisions will be devolved to Wales. We will all have received a written memorandum of evidence from the Mayor of London. Will the Minister confirm that it is not the Government’s intention to make light devolution arrangements in favour of the Mayor of London, which he is apparently requesting in the memorandum, particularly in relation to the 1992 Act?
Jim Fitzpatrick: If we were intending to make any such arrangements, we would have tabled amendments.
There have been only one or two applications under the Transport and Works Act in Wales; most are under the Electricity Act, as far as we are aware.
The Chairman: May I say that in any event it is extremely unlikely that they would come within the scope of the clause, since this deals with Welsh wind farms?
Amendment agreed to.
Clause 29, as amended, ordered to stand part of the Bill.

Clause 30

Directions in relation to projects of national significance
Jim Fitzpatrick: I beg to move amendment No. 347, in clause 30, page 15, line 41, after ‘one’ insert ‘or more’.
The Chairman: With this it will be convenient to discuss Government amendment No. 348
Jim Fitzpatrick: Clause 30 allows the Secretary of State to intervene in an application for consent for an infrastructure project in England that has been made to a body other than the commission. In such a case, if the Secretary of State thinks that the project is of national significance, even if it does not meet the statutory thresholds set out in clauses 13 to 26, he or she may direct the authority that is considering the application to refer the application to the IPC instead of dealing with it itself. The Secretary of State can only direct an application to be considered by the IPC if the project forms part of one of the fields mentioned in clause 13(5)—energy, transport, water, waste water or waste. Amendment No. 347 is designed to clarify the drafting and provide that a direction by the Secretary of State can be made when the development is part of more than one of the fields mentioned in clause 13(5).
Amendment 348 is designed to improve the drafting for clause 30. It ensures that where the Secretary of State directs an application to the IPC from another authority, the application is to be subsequently treated as if it were an application for development consent, and the development that forms the subject of the application is to be treated as development for which development consent is required under the terms of the Bill.
Amendment No. 348 also provides the Secretary of State with a power, in such cases, to direct that certain requirements of the Bill are modified in relation to the proposed development, or are to be treated as having been complied with. The ability to modify the Bill’s requirements in relation to an application, or to deem that such requirements have been satisfied, is essential. If it did not exist it would mean that a promoter could be required to re-do all the work involved in the pre-application stage simply because the Secretary of State directed the case after the application was submitted to the local planning authority. That is not to say that further work to the application would not be needed on the part of the promoter. Indeed, in many cases it will be necessary for a promoter to alter an application so that it becomes an application for an order granting development consent. An example of that might be rewording the application to fit the format of an order, as set out in clause 32.
The promoter may also need to engage more fully with the IPC and local communities under part 5, to reflect the revised application more fully. To that end, there is no obligation on the Secretary of State to include the provisions in clause 30(2)(c) in a direction referring the case to the IPC. Nevertheless, the principle should remain that a promoter should not be unreasonably penalised through having to do additional work because the Secretary of State has decided that an application made in good faith to a local planning authority should be referred to the IPC.
Robert Neill: There is one question on which I would like the Minister to be a little more specific. Does he anticipate circumstances in which—perhaps he will give a practical example—an application has commenced under the Town and Country Planning Acts regime, but it fits the nationally significant infrastructure projects criteria and the power of direction will have to be used? He said that clause 29 means that anything that comes within the national infrastructure projects criteria will have to be commenced under that regime. Perhaps it is my fault, but I am struggling to understand the circumstances in which a project might commence outside the regime but could subsequently be brought under it. Is it a question of size thresholds? We are concerned that the measure has the potential for mission creep as far as the IPC is concerned. Will the Minister explain a little more about the rationale behind the measure?
Mr. Jones: Further to that question from my hon. Friend, I note that the provisions apply in England only and not in Wales. Will the Minister explain why a similar power is not given to Welsh Ministers to make the direction that the Secretary of State can make in England? The normal mantra is that the Government are reluctant to disturb the devolution settlement but, if anything, such a provision would enhance and strengthen the devolution settlement. Given that the thrust of the legislation is to streamline and generally to speed up the processes involved with consent application, there is no good reason why an equivalent power should not be devolved to Welsh Ministers.
Jim Fitzpatrick: I take the hon. Gentleman’s point. It looks like there is an inconsistency but, having devolved the power to Welsh Ministers, it is for them to make a judgment call. We discussed that only a few moments ago, and the position is that they have used the power under the 1992 Act or the 1989 Act and they will make a judgment on what is appropriate for Wales. I apologise for saying that the settlement allows them to do that—we do not intend to disturb the settlement because it is working very well. It would be a matter for them to judge an application as to which direction they recommend.
The Secretary of State would use the power mentioned by the hon. Member for Bromley and Chislehurst only in rare circumstances and on the basis of clear criteria. There might be a situation in which a series of proposed projects that are individually beneath the thresholds collectively represent a nationally significant project. For example, a series of offshore wind farms might be below the 100 MW limit individually, but above the limit when taken together. Directing such applications to the IPC would allow a better examination of the collective benefits and impacts of such a project.
As part of the White Paper consultation, we questioned whether it was appropriate for Ministers to be able to specify projects for consideration by the IPC by means of a direction, and a large majority of those who commented on the proposal believed that it was appropriate as long as the power was used sparingly and on the basis of clear criteria.
Mr. Jones: The Minister’s example of a series of offshore wind farms amounting to one large wind farm would not be subject to the devolution settlement. In those circumstances, why should the Secretary of State not make such a direction even if the wind farm is off the Welsh coast?
Jim Fitzpatrick: I do not have anything to add on the difference between the powers given to Ministers in the Welsh Assembly Government and those given to the Secretary of State to direct.
Amendment agreed to.
Amendment made: No. 145, in clause 30, page 15, line 42, leave out ‘mentioned in section 13(5)’ and insert ‘specified in subsection (1A)’.—[Jim Fitzpatrick.]
4.45 pm
Dan Rogerson: I beg to move amendment No. 165, in clause 30, page 15, line 42, at end insert ‘and’.
The Chairman: With this it will be convenient to discuss the following amendments: No. 239, in clause 30, page 15, line 43, leave out from ‘England’ to end of line 44.
No. 260, in clause 30, page 15, line 44, leave out ‘project’ and insert ‘development’.
Dan Rogerson: I am sure that the Minister will correct me if I am wrong, but my reading of the clause is that there is provision for the Secretary of State to step in and take something away from a local authority and take it to the IPC. We are concerned that, although the Bill has already set out in what circumstances that should happen, there is an extra facility for the Secretary of State to do so. The amendment seeks to probe the Government on this issue. We have heard why they feel that this power is needed, but I am yet to be convinced that we should allow the Secretary of State further powers to remove things from local authority consideration and give them to the IPC.
Robert Neill: May I refer to amendment No. 260 in this group? I understand the point that the hon. Member for North Cornwall made about his amendments. Our amendment makes a slightly different point, but I do not disagree with his observations. We are trying to seek clarity about definitions in this part of the Bill. As we observed when we started discussing this part of the Bill, the meaning of “development”—a well-known phrase for all who are involved in these matters—is sensibly restated in clause 28 as being defined in the normal Town and Country Planning Act terms. We are intrigued as to why it is appropriate to move away from the normal test for development, which requires planning permission, to something else, which is called “a project” and requires development consent. What is the difference in practical and legal terms between a development and a project? If something is a project, does that not automatically involve development? What is the distinction?
My hon. Friend the Member for Clwyd, West raised the further issue of whether the Minister was saying—and it seemed to be the case—that a number of adjacent areas of development can amount to a project. Who is to decide that? Are they not individual projects? Are they not all developments? It is not entirely clear why the Government chose to use the word, “project”, which is a novel term to bring into the legislation, as opposed to “development”, which is tried and tested as far as the courts and all those involved in planning are concerned.
Mrs. Lait: Without in any way wishing to enrich his professional friends, may I ask my hon. Friend to tell us how the word, “project”, should be defined in the Bill, so that people do not confuse projects with developments and hence have reason to take the matter to the court?
Robert Neill: I am grateful—I think—to my hon. Friend for that intervention. The Minister said that we are working as a team and team members are always keen to test each other’s mettle, as my hon. Friend’s question shows.
Let me give an example. Many people would refer to the Thames Gateway as a project, but it is clearly a series of developments. I hope that nobody would pretend that the developments at Barking Reach at the London end of the gateway are part of the same project, for planning law purposes, as the development of the port facilities at Shell Haven or a barrage at Sheerness, if one is ever to be built. People might argue—and it is common parlance for the man in the street—that they are part of the Thames Gateway project, but they are all significant developments in their own right, and some of them could qualify as nationally significant infrastructure projects. That is one example of a negative application of the term, “project”.
The implication is that a project involves more than one piece of development. I can see that that might work if multiple consents are required—for instance, when we deal with a pipeline to a refinery or an energy plant—but that seems the only sensible reason for using the provision, which would allow all the consents to be rolled up together. I would be grateful if the Minister would amplify that point, because there is a risk of confusion in the public’s mind. I do not think that that was the Government’s intention—and I am sure that they had a lot of advice from lawyers on the use of the “project”—but because the term is a novel departure, I would be grateful for a clear justification for its use before some of my erstwhile colleagues find themselves extremely busy litigating on the definitions.
Jim Fitzpatrick: With respect, I urge the Committee to reject the amendment. We believe that amendments Nos. 165 and 239 go together. They are intended to remove the need for the Secretary of State to be satisfied that a project that is the subject of an application to a body other than the commission is of national significance before directing it to the IPC. We are not sure why hon. Members believe that that is a good idea, because there seems to be little justification for calling in small projects from local authorities for a decision by a national body. As the Committee knows, we intend the single consents regime to be reserved for the biggest and most important infrastructure projects. Only projects of national significance should go through that regime. Others are best decided by local planning authorities.
Amendment No. 260 would require the Secretary of State to be satisfied about the national significance of a “development”, rather than a “project”, before directing an application to the IPC. Again, with respect to the hon. Member for Bromley and Chislehurst, we believe that it is not necessary. The single consents regime will work on the basis of projects being nationally significant, as can be seen in clause 27(1). Development consent will be required for development
“to the extent that the development is or forms part of a nationally significant infrastructure project.”
Clause 30(1)(a) and (b) make it clear that the application that the Secretary of State is considering directing to the IPC must refer to “development” that is or forms part of a relevant “project”. I am advised that the word, “project”, covers development and matters that are not currently treated as development, such as listed building consent. It is designed to cover many types of consent, including associated works such as connection to the electricity network for a power station.
Mr. Jones: Is it the Minister’s understanding that a “project” should be an undertaking mounted by one individual or a series of individuals acting in concert? If so, how can his example of a series of separate applications for offshore wind farms be regarded as one project, if the applications were made by different developers?
Dan Rogerson: I thank the Minister for his explanation, and I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Amendments made: No. 146, in clause 30, page 15, line 43, leave out ‘England’ and insert
‘one or more of the areas specified in subsection (1B)’.
No. 147, in clause 30, page 15, line 44, at end insert—
‘(1A) The fields are—
(a) energy;
(b) transport;
(c) water;
(d) waste water;
(e) waste.
(1B) The areas are—
(a) England;
(b) waters adjacent to England up to the seaward limits of the territorial sea;
(c) in the case of a project for the carrying out of works in the field of energy, a Renewable Energy Zone, except any part of a Renewable Energy Zone in relation to which the Scottish Ministers have functions.’.
No. 348, in clause 30, page 15, line 45, leave out subsection (2) and insert—
‘(2) The Secretary of State may direct—
(a) the application to be treated as an application for an order granting development consent, and
(b) the development to which the application relates to be treated as development for which development consent is required,
for specified purposes or generally.
(2A) A direction under subsection (2) may provide for specified provisions of or made under this or any other Act—
(a) to have effect in relation to the application with any specified modifications, or
(b) to be treated as having been complied with in relation to the application.
(2B) If the Secretary of State gives a direction under subsection (2), the relevant authority must refer the application to the Commission instead of dealing with it themselves.’.—[Jim Fitzpatrick.]
Dan Rogerson: I beg to move amendment No. 166, in clause 30, page 16, line 7, leave out from ‘application’ to end of line 8 and insert
‘for a period of up to three months’.
Jim Fitzpatrick: I hope that I can provide the hon. Gentleman with the appropriate reassurance so that he will not feel it necessary to press the amendment, which is an attempt to secure reassurance about time frames. He and his hon. Friends would like the Secretary of State to decide as soon as possible whether to direct an application to the IPC, and they would consequently impose a time limit on the length of time in which the Secretary of State could instruct the relevant authority that held an application not to proceed with it.
We intend that any decision will be made speedily. There is no benefit to anyone involved if an application is held in limbo for a long period. At the same time, however, putting a time limit in the Bill would not be appropriate. The Secretary of State will, in all cases, make a decision as quickly as is reasonably possible about whether to direct an application to the IPC.
The power to direct a local planning authority not to proceed with an application is not new. The Secretary of State already has similar powers through directions under article 14 of the general permitted development orders under the Town and Country Planning Act 1990, and there is no time limit on how long those orders can last. On that basis, I hope that the hon. Gentleman will feel able to withdraw the amendment.
5 pm
Dan Rogerson: I am pleased to hear the Minister say on record that the Secretary of State would seek to take such a decision as speedily as possible. Although I am no lawyer, I understand that if a provision in a Bill were to be tested or explored in a court, our discussions in this Committee about the intention of the legislation might inform the decision. On that basis, I will not press the amendment to a Division, and I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Jim Fitzpatrick: I beg to move amendment No. 349, in clause 30, page 16, line 11, after ‘decide’ insert—
‘(a) ’.
The Chairman: With this it will be convenient to discuss Government amendment No. 350.
Jim Fitzpatrick: Clause 30 allows the Secretary of State to direct an application for consent for an infrastructure project in England that has been made to a body other than the commission. In such a case, if the Secretary of State thinks that the project is of national significance, even if it does not meet statutory thresholds set out in clauses 13 to 26, he or she has the power to direct the authority that is considering the application to refer the application to the IPC, instead of dealing with it itself.
The primary purpose of the amendments is clarification. The Secretary of State can require the authority considering the application to provide information to allow him or her to decide whether or not to direct an application to be referred to the IPC.
The amendments also clarify that information can be used by the Secretary of State to decide the terms in which such a direction should be given. That reflects the fact that the Secretary of State may specify in the direction that some of the requirements of the Bill are to be deemed to have been complied with, as detailed in Government amendment No. 348. The Secretary of State might make a direction in such terms if he or she was satisfied that work already done while making an application to the authority would substantially satisfy the requirements in the Bill on pre-application consultation in chapter 2 of part 5. That works on the principle that a promoter should not be unreasonably penalised through having to do additional work because the Secretary of State has decided that an application made in good faith to a local planning authority should be referred to the IPC. I commend the amendments to the Committee.
Amendment agreed to.
Amendment made: No. 350, in clause 30, page 16, line 11, after ‘(2)’ insert ‘, and
(b) the terms in which a direction under subsection (2) should be given.’.—[Jim Fitzpatrick.]
Clause 30, as amended, ordered to stand part of the Bill.
Clause 31 ordered to stand part of the Bill.
 
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