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.
9.45
am
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.
10
am
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.
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.
10.15
am
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.
Question put,
That the amendment be
made:—
The
Committee divided: Ayes 7, Noes
12.
Division
No.
10
]
Question
accordingly negatived.
Clause 44 ordered to stand
part of the
Bill.
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