Planning Bill

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Clause 42

Duty to consult local community
Amendments made: No. 357, in clause 42, page 20, line 10, at end insert—
‘(2A) The deadline for the receipt by the applicant of a local authority’s response to consultation under subsection (2) is the end of the period of 28 days that begins with the day after the day on which the local authority receives the consultation documents.
(2B) In subsection (2A) “the consultation documents” means the documents supplied to the local authority by the applicant for the purpose of consulting the local authority under subsection (2).’.
No. 358, in clause 42, page 20, line 12, leave out ‘received by the applicant’.
No. 359, in clause 42, page 20, line 13, after ‘(2)’ insert
‘that is received by the applicant before the deadline imposed by subsection (2A)’.—[John Healey.]
Clause 42, as amended, ordered to stand part of the Bill.

Clause 43

Duty to publicise
Question proposed, That the clause stand part of the Bill.
Mrs. Lait: I have a quick query on the proposal, Mr. Illsley. Has the Minister considered the use of the internet under the duty to publicise the application?
John Healey: The short answer is yes. The slightly longer answer is that it will be open to the promoters to use the internet as part of their publicity channels and as a way of consulting the public and other interested parties.
Question put and agreed to.
Clause 43 ordered to stand part of the Bill.

Clause 44

Duty to take account of responses to consultation and publicity
Mr. Clive Betts (Sheffield, Attercliffe) (Lab): I beg to move amendment No. 326, in clause 44, page 20, line 37, at end insert
‘and to a statement of impacts and mitigation made under section (Duty to identify and mitigate adverse impacts).’.
The Chairman: With this it will be convenient to discuss the following: Amendment No. 327, in clause 80, page 37, line 27, at end insert
‘, but in doing so must consider any statement of impacts and mitigation prepared under section (Duty to identify and mitigate adverse impacts).’.
Amendment No. 329, in clause 80, page 37, line 36, at end insert—
‘(b) to consider whether and how the range and comprehensiveness of the issues identified in any statement of impacts and mitigations prepared under section (Duty to identify and mitigate adverse impacts) and mitigations proposed thereto should be examined.’.
New clause 8—Duty to identify and mitigate adverse impacts
‘(1) Further to the applicant’s duties under section 42, the applicant must prepare a statement of impacts and mitigation identifying those effects of the proposed application that have been identified in response to the consultation under section 42 as adverse to the interests of respondents and the steps (if any) that the applicant proposes to take to respond to those impacts.
(2) For each instance of an adverse impact, the statement of impacts and mitigation must set out the applicant’s proposal for mitigating action to be taken by the applicant, or must state that no mitigating action is to be taken.
(3) A statement of impacts and mitigation may propose no mitigating action where it appears to the applicant that—
(a) the adverse impact is insignificant and mitigating action is not warranted, or
(b) mitigating action would be unreasonable due to disproportionate cost, adverse collateral effects on other interests or because it would be otherwise not in the public interest.
(4) The Commission must provide guidance to the applicants on the factors to be considered in identifying impacts and mitigating actions and on circumstances in which no mitigating action may be taken pursuant to subsection (3).
(5) In preparing the statement of impacts and mitigation, the applicant must have regard to—
(a) any relevant response received by the applicant to consultation under section 44(2), and
(b) any guidance given by the Commission under subsection (4).’.
Mr. Betts: I am pleased to hear that attendance at our Committee sittings is having a beneficial effect on your health, Mr. Illsley.
In my previous amendments, I raised the issue of the Secretary of State rather than the commission being responsible for the ultimate decision on applications for national infrastructure projects, which the Government may have thought was contrary to their intentions. However, these amendments go very much with the grain of what they intend.
The Royal Town Planning Institute has been helpful to me in drafting the amendments and helping me to understand their general intention, which is to enhance the Bill to ensure that communities have a genuine opportunity to identify the impact of proposals at the earliest possible stage, to comment on them and to raise concerns about siting and design. It is relatively easy to make changes to projects at an early stage; any adverse impact identified by the community can be laid down very clearly at that point and the applicants must respond formally to it.
Amendment No. 326 relates to the pre-application stage. Pre-application consultation is essential; issues that may result in a fight at a later stage, with the two sides hardly listening to each other, can be dealt with in time to reach a compromise before things go any further. That would improve the entire process.
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Communities should have the opportunity to identify issues at the earliest stage. The applicant must respond to those concerns formally, and if mitigation is not possible, explain why. Despite the importance that many planning authorities now attach to pre-consultation on ordinary planning applications, all too often those processes are neither effective nor real, as we as individual MPs have seen. They are sometimes little more than a sham. Although the community raises concerns, the applicant might hardly attempt to respond in any meaningful way and sometimes ignores them by talking about anything other than those concerns when responding to the planning committee. The amendments, therefore, would require the applicant to respond to such concerns in a proper way. They would not, of course, have to agree with those concerns, but they would have to answer them.
Mr. Llwyd: I am following the hon. Gentleman’s argument and think that he is on to something important, but I would ask him to explain one thing. Subsection (3)(b) of new clause 8 states that
“mitigating action would be unreasonable due to disproportionate cost, adverse collateral effects on other interests or because it would be otherwise not in the public interest.”
In the event that the mitigating action is not taken, does the application fail?
Mr. Betts: No. In the end, the issues of whether the applicant has taken reasonable steps to mitigate and why an applicant does not feel that mitigation is possible because of cost or other reasons are matters for the commission to take on board and determine. In the amendments, we are trying to structure the concerns of the community and the responses to those concerns and make the applicant respond formally to them by saying either that they can be mitigated, or if they cannot, why not. Of course, the commission will have that information to enable it to make a better decision and can, in the end, do so with conditions, such as deciding that mitigation is necessary, despite what the applicant has said.
That leads us to amendments Nos. 327 and 328, which are linked together appropriately. The process of identifying the issues from the community and the applicant’s response with regard to mitigation or non-mitigation continues beyond the initial pre-application consultation into the commission’s hearings. That process continues in the commission’s initial consideration, as laid out in clause 80, and then in the first meetings at which the commission brings the applicant and the main objectors together.
At those stages, the process of identifying the impact that the community is concerned about and deciding for or against mitigation for the applicant are considered as part of the commission’s initial view and the initial hearing that it holds. Having had the first meetings and the formal hearings, that process takes those issues through into the later processes of the commission’s consideration.
The Minister might have views about the appropriateness of that process and the wording of the amendments, but they are an attempt to ensure that communities see that there is less value in simply waiting and using objections as obstructions later in the process, and that there is every benefit in raising objections at the earliest possible stage, when concerns over details can be dealt with more easily and when the applicant is likely to be more responsive in dealing with those concerns. That also means that there is less benefit in simply trying to obstruct, rather than engage with, those opposed, and that applies to the applicant as well. There is much more benefit in trying to engage with the community and address concerns, rather than trying to ignore them and hope that somehow they will go away, be pushed to one side or not be properly focused on.
It would be helpful to target and focus not only at the pre-application stage, but in the remaining stages of the commission’s initial consideration and at the formal hearings themselves. With the amendments and the new clause, I am trying to lay down a process that has two fundamental objectives: one is to make the Government’s approach more effective and focused on the issues of real concern, and the other is to improve the perception, and the reality, that the community is involved. Any concerns that the community has should not simply be pushed to one side and ignored, but given proper attention and a proper response.
Mrs. Lait: This group of proposals is exceedingly important. I congratulate the hon. Member for Sheffield, Attercliffe for getting to the Clerks before we did on this issue. Unless the Minister comes up with a miracle, I will be pressing the amendments that I tabled. We think, as does the hon. Gentleman, that if we are to make any new system work, the duty to consult must be widened to include the duty to mitigate.
The best developers already seek to mitigate. I referred earlier to the Kent Wildlife Trust’s negotiation on a grid application. It managed to achieve the realignment of cable routes, to have the work timed to avoid the impacts on internationally important populations of migratory birds and protect breeding marsh harriers. It received a commitment to enhance the works to encourage biodiversity. It achieved those things because of its ability to negotiate with a responsible applicant before the inquiry.
My thinking on this area is influenced by a case in which a bottleneck was to be relieved on our overcrowded railways when Eurostar came through my constituency. There was a need to unblock the bottleneck at a point where the railway crossed a busy road with a station immediately on the other side.
Chris Mole (Ipswich) (Lab): Shortlands.
Mrs. Lait: I am grateful to the hon. Gentleman for identifying the famous Shortlands, because I will be describing it in great detail. This case is a model of how such projects should be dealt with. Not only was there the busy road and the bridge with the station on the far side, we had green open space, some social housing, some detached houses and blocks of flats. There was just about every aspect that would concern a local population.
What was so impressive was that before the application was put in for the underpass that was required, consultants were brought in by Railtrack—rather than Network Rail. Well done to Railtrack for having had the foresight to do that. Before the application was put in, the consultants knew all the trees, animals, and flora and fauna in the open space.
Mr. David Curry (Skipton and Ripon) (Con): By name.
Mrs. Lait: Indeed, they probably christened many of them. The consultants had also worked out exactly when the work needed to be done, what impact it would have on the local residents and how to mitigate that impact. For instance, as the social housing was closest to where the heaviest work would take place, and by and large, railways are mended at weekends, the residents were offered money to go away for those weekends. For example, the developers would say, “We will pay for you to go away in weeks two, five, nine and 12.” The work was actually so fascinating that very few people took up the offer to go away and instead watched what was going on.
The residents of the blocks of flats were asked what could be done to mitigate the bad impact. Most of the blocks decided that they wanted secure parking, which is perhaps a reflection of the residents’ concerns. With the owners of the detached houses, it was decided what needed to be done, and remedies were put in place. The local council was the only objector when it came to the planning inquiry, as it would have liked a widened road at that stage. But, as the hon. Member for Meirionnydd Nant Conwy said, that is one of those areas where there could be no agreement, so it went to the planning inquiry and was dealt with speedily.
Dare I say that the only delay occurred in the Department for Transport, which also happened to be led by the then Deputy Prime Minister, and we were all agog at the speed with which he made his decision on that planning application. If it can be done in such a complex situation, I do not see why it cannot be done for every planning application. I am sure that that is what the Minister is hoping the responsible developers working on infrastructure projects will do, but unless he can reassure me that precisely that high quality of mitigation and resolution of problems before they get to a planning inquiry is covered by the term “consultation”, I will be keen for my hon. Friends to support the amendments.
Mr. Curry: I am fascinated by the topographical detail of my hon. Friend’s constituency, but would she not accept that there is a close analogy between how effective consultation can work, and ineffective consultation cannot, in the transfer of social housing to new landlords? Where the council does its work well and everyone is consulted, often those transfers go through because people’s fears have been allayed, but where that is not done effectively, a no vote is often provoked. The irony is that a no vote is often to the detriment of the tenants themselves.
Mrs. Lait: I could not agree more. This may not contribute towards getting the discussion back into order, but my constituents were also the beneficiaries of social housing transfer early on: Broomleigh housing association is streets ahead of many associations in the service that it delivers to its residents. That shows how good consultation can work.
However, on the subject of the planning applications that we are discussing, we want not only to consult but to resolve problems, so that the number of objections to the applications can be limited, and the whole process speeded up. In a sense, I think that the Department has missed a trick by wishing to go down the quango route, rather than improving the way that the current system can be made to work.
The other implicit concern is that, where a statutory agency is the applicant, as I understand it, it is already somewhat constrained in how it can negotiate on compensation when it needs to buy up land property, as is the case for the Highways Agency. A closer look at that area is also needed. Obviously, the private sector can do deals, but it is more difficult for statutory or regulated organisations to do so.
I suspect that the result of not only wide, good, willing consultation but mitigation is that the front-end loading cost probably equals the back-end costs involved in application, challenge, judicial review, and all the other lengthy costs that have so dragged out our planning system. Within the system as it stands, if we could get that form of consultation and mitigation in place, the system would automatically speed up. That is why I support our amendments so strongly.
I hope that hon. Members understand that we feel very strongly that the Minister should accept the amendments and that we will invite the Committee to vote on all of them so we can at least try to get the Government to understand what we need in the planning system—whether or not we change it.
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Dan Rogerson: I very much welcome the fact that hon. Members have tabled the amendments and new clause 8. I congratulate the hon. Lady on finding something positive to say about that popular Conservative legacy to the nation—Railtrack. She did well to think of something.
The new clause and amendments get to the heart of the process of pre-application consultation. There have obviously been many areas of disagreement, and further matters of disagreement will arise about how that should operate and be improved. However, there has been agreement that the process of pre-application consultation is a positive aspect of the Bill and will ensure that the handling of such important planning applications is conducted more efficiently and effectively. Therefore, it is even more important to ensure that the process is absolutely right and that, acting on the Minister’s assurances that the process will be effective and will reach everybody in the community, problems identified by the local community are taken on board by the developer. Even if there cannot be an agreed resolution, at least that has been stated up front. The new clause and amendments would be particularly useful additions and I hope that the Minister accepts them. If he does not, I will certainly add my support to that of other hon. Members in seeking to make him do so.
Mr. Jones: I add my strong support to the amendments. It is sensible, it will add considerably to the streamlining of the process, and it will give great reassurance to residents who might be affected by large-scale developments. My hon. Friend mentioned a positive experience that was local to her. I would like to mention an example in my constituency which was determined only this week: an application for the inevitable wind farm. As the Committee has probably gathered, there are a lot of applications for wind farms in my constituency. This one was for a large wind farm—not quite as large as those that would be determined under the new procedure, but nevertheless a significant development. In that case, there was grave concern about the potential impact of the development on flooding. A flood risk assessment was not done and the proposal was that flooding should be dealt with when granting planning permission by inserting a suitable condition to the extent that the developer should take all necessary steps to address the flood risk.
That was clearly and understandably completely unacceptable to local residents. Considerable reassurance would have been given to local residents if, as is proposed by the new clause, the developer was under a positive obligation to address the concerns of local residents about flood impact and if applicants had to state to the planning committee what they intended to do to address those concerns—for example, in terms of flood impact assessments and the necessary works resulting from those. As my hon. Friend said, that would have given considerable reassurance to local residents, speeded up the procedure and taken an important element of local opposition out of the equation.
In discussing the new clause, I feel that my hon. Friend and I have illustrated opposite sides of the coin. The net effect of both of our experiences is that if a developer can address local concerns at an early stage and can show to the planning authority what proposals he is making for addressing those concerns, we will have not only considerably more contented residents but a faster and more streamlined application procedure. I hope that the Minister will accept the new clause.
John Healey: I took at face value the hon. Lady’s assertion that she wanted to make progress. I understand that she feels strongly about this. I also understand that she wishes to dwell at some length on the example from her constituency. As constituency MPs, we all understand that.
Mrs. Lait: It will not get me a headline.
Robert Neill (Bromley and Chislehurst) (Con) rose—
John Healey: I do not know what the deadlines are for the hon. Lady’s local papers, but 10 am on Thursday may be a little late for this week. The hon. Gentleman, who obviously competes with her for headlines and coverage in the local press, wishes to get material for his press release, and so I give way to him.
Robert Neill: I just wanted to point out for the sake of completeness that my hon. Friend was entirely correct, not least because the railway line at Shortlands is the boundary between her constituency and mine.
John Healey: I feel a joint press release to the South London Press coming on.
My hon. Friend the Member for Sheffield, Attercliffe was absolutely right when he said that the pre-application stage in our proposals and the Bill is essential. He made a good general argument for that new stage when he said that it should discourage objections being used at later stages simply to obstruct progress in the consideration of any application and should encourage those with concerns or objections to raise them earlier in the process, when there may be more of an opportunity to consider them.
Clause 44 is therefore important because it requires promoters to have regard to responses to the consultation. It is backed by clause 32, which requires that an application must also be accompanied by a consultation report which, among other things, shows how the promoter has taken into account the points and the results of the consultation. It is precisely to deal with my hon. Friend’s worry that promoters may not respond to concerns that have been raised in a proper way that clauses 44 and 32 are in the Bill.
Showing how a promoter has taken into account the results of the consultation would include any changes the applicant has made to mitigate the effects of the original proposal. The hon. Lady, in the example of Shortlands—backed to the hilt by the hon. Gentleman—and in the example of the Kent Wildlife Trust demonstrated the value in the pre-application duty to consult, but she did not make the case for the duty to mitigate or for a prescriptive requirement to report on all the identified impacts to be on the face of the Bill.
Mrs. Lait: I did.
John Healey: But I am not convinced by it.
To reinforce the combined operation of clauses 44 and 32, there is also the duty for the promoter to have regard to any guidance that he may be given about pre-application consultation by the Secretary of State or the commission. Moreover, the commission must ultimately be satisfied that the pre-application consultation has been done properly before it accepts any application from a promoter. There is a power to guide and advise. There is also a pretty substantial point at which the commission may decide that the promoter has not done the job properly and so declines the application.
That reinforces the measure with a strong incentive for the promoter to take the pre-application process seriously and to get it right within the framework. As my hon. Friend rightly said, it is the role of the commission during the inquiry to consider the application in light both of the national statements and of any potential local impacts, including appropriate mitigation of those impacts that the promoter may be proposing to take as part of the application. As he said, this is the proper role for the infrastructure planning commission in its decision-taking role over an application. Where local impacts should be mitigated, the commission can set out the actions to be taken by a promoter as part of any subsequent consent order.
Mr. Curry: How local is local? Much in the news at the moment is talk of a Severn barrage, which would have impacts for two sides of a huge estuary, and for miles east and west, and even north and south. What would be a proper definition of local in pre-consultation on a Severn barrage?
John Healey: I think that the right hon. Gentleman would accept that a proper interpretation of “appropriate consultation” and “local” will vary from application to application. I know that he was not with the Committee for some of our earlier proceedings, but if he looks at the Hansard for our debate on clause 39 earlier this morning, he will see that we dealt, not least off the back of some of the amendments tabled by the hon. Member for North Cornwall, with some of the concerns and issues around that point.
Finally, the combination of the two clauses in this Bill, together with the capacity for the commission and the Secretary of State to issue guidance, rightly sets out this pre-application stage as a new, required stage in the process of preparing and submitting applications for major projects. It sets out the duties for consultation, but avoids being over-prescriptive in the detail that is required in primary legislation.
Mr. Betts: May I go back to what my hon. Friend thinks is the requirement of the legislation as it stands, particularly the second part of clause 44? It talks about the applicant having to have regard to any relevant responses. Does that mean that at that stage the applicant will have to go through the responses from any objectors from the community in general and reply in detail as to how they will mitigate those objections, or explain why no mitigation is necessary? Is there likely to be further ministerial guidance—he mentioned that when we were talking about the commission—once the legislation is passed to flesh out and enhance what is on the face of the Bill?
John Healey: The answer to my hon. Friend’s second question is yes. There is also likely to be, I suspect, guidance from the commission, although that will be a matter for the commission.
The answer to my hon. Friend’s first question is that there is the duty to consult in the pre-application phase; there is the duty to take into account in the way that it is done any advice and guidance that may be issued by the Secretary of State or the commission; and there is the duty, as part of the application itself, to demonstrate, through a report on the consultation, not just that the consultation has been undertaken, but how the promoter has taken into account the points that have been raised and the results of the consultation. That may include any changes that the applicant has made to mitigate the effects of the original proposal. However, it would not be right to include what the hon. Lady argued for, which is a duty to mitigate.
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Mrs. Lait: I shall still press the amendment to a vote, because while the Minister has done a valiant job in trying to explain that an applicant will have to mitigate, it would be much clearer if that requirement were in the Bill. I can foresee a situation in which there is confusion between consultation and mitigation. Until the hon. Member for Sheffield, Attercliffe intervened, I thought that the Minister was going down that road.
Under the clause, any mitigation will potentially be decided at the inquiry stage by the IPC, rather than having been agreed to and put in place before the applicant comes to the IPC. Agreeing on mitigation before the inquiry would be infinitely more sensible. I am sure that responsible applicants would not object to a process under which mitigation must be put in place and signed off with the interested parties and then reported to the inquiry. It would then not be an issue for the inquiry.
The other area that strikes me and which the Minister did not address is the position of statutory bodies, such as the Highways Agency, compared with those in the private sector. As I understand it, such bodies are considerably more constrained in mitigation because of rules on the levels of compensation that they can pay. An awful lot of mitigation is about adequate compensation being agreed between the promoter and the individual who is affected. Many of the statutory organisations do not have the flexibility that private sector organisations have in settling such claims. Therefore, more problems will come before an inquiry than is necessary because of the rules that bind statutory organisations. On the grounds of best practice and of clarifying that consultation includes mitigation, I will press the amendment to a vote.
Mr. Betts: I thought that we were reaching a point at which some agreement was possible on what my hon. Friend said. He indicated that there will be further ministerial guidance on how the process will operate. I do not want to put words in his mouth, but I understand him to be saying that under clause 44(2) there is no duty on the applicant to mitigate. However, when the applicant responds to the issues raised by the community in the pre-application consultation, he will have to explain where mitigation is thought to be appropriate and where mitigation is not possible, necessary or desirable. That will be a requirement on the applicant at that stage. That is the intention of the clause and it will be fleshed out further in the guidance to come. I am sure that the Minister will intervene if I am wrong. I understand that an explanation of why mitigation is or is not appropriate is part of clause 44(2), but that does not mean to say that there is not a duty to mitigate.
Mrs. Lait: My difficulty is that if mitigation is agreed before the inquiry, it can be reported that there is mitigation and that issue will not be part of the inquiry. If the applicant has to say in what cases there is a potential for mitigation, that will absorb the time of the inquiry because it will open up the debate. If that can be closed down before the inquiry starts because it has been legally resolved, the inquiry will be speeded up. That is why mitigation is important in planning law in general, not just in the Bill.
Mr. Betts: The hon. Lady was beginning to lose me. My assumption was that anything that comes out of the pre-application stage—the consultation—even if the applicant is saying, “Yes, I agree with the community’s concerns and I will mitigate,” will be carried forward into the IPC’s consideration of those matters. Of course it will. It will be taken on board in the application, which will be amended accordingly if the applicant decides to mitigate. That seems to be a given.
Mrs. Lait: The difference is this. If mitigation is agreed before the inquiry stage, the applicant can report that the matter has been resolved. It is therefore not an issue and will not delay the inquiry. If, however, the applicant says, “It is possible that we can mitigate in the following few cases,” it potentially becomes an issue for the inquiry.
Mr. Betts: Yes, but I am not sure how pressing the amendment to a Division improves that situation.
Mrs. Lait: There is a duty to mitigate.
Mr. Betts: My understanding, and why in the end I certainly will not press my amendment to a vote, is that the Minister has said that he understands that although there is no duty in the Bill to mitigate, there will be a duty on the applicant to respond to concerns and objections raised as part of the pre-application consultation, and that will include both any indication of mitigation from the applicant and any indications that the applicant chooses not to mitigate, cannot mitigate or does not want to mitigate. As I understand it, that will be part of the response and that duty will be fleshed out further in guidance to come.
To bring this exchange to a conclusion, let me say that I am reassured by what the Minister said about the issues relating to mitigation and by the fact that there is further guidance to come on these matters both from Ministers and from the commission. I beg to ask leave to withdraw the amendment.
Hon. Members: No.
Question put, That the amendment be made:—
The Committee divided: Ayes 7, Noes 12.
Division No. 10 ]
Benyon, Mr. Richard
Curry, rh Mr. David
Jones, Mr. David
Lait, Mrs. Jacqui
Llwyd, Mr. Elfyn
Neill, Robert
Rogerson, Dan
Betts, Mr. Clive
Clark, Paul
Dhanda, Mr. Parmjit
Ellman, Mrs. Louise
Ennis, Jeff
Fitzpatrick, Jim
Healey, John
Michael, rh Alun
Mole, Chris
Reed, Mr. Jamie
Sheridan, Jim
Watts, Mr. Dave
Question accordingly negatived.
Clause 44 ordered to stand part of the Bill.
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