Planning Bill

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Clause 67

Decision-making by the Panel
3 pm
Dan Rogerson: I beg to move amendment No. 286, in clause 67, page 33, line 21, at end insert—
‘(3) The vote of each member of the panel in respect of each decision shall be recorded.’.
I am beginning to feel like a one-man show here. [ Interruption. ] I apologise; there have been some excellent responses from the Minister. The amendment relates to votes being taken within the panel when determining an application. That raises the possibility of different commissioners serving on a panel taking a different view with regard to an application that they are considering. They may have different areas of expertise and experience, and it is part of their role to use that experience to consider an application, to take into account the evidence before them and to reach a conclusion following discussion.
If it were to come to a vote, the amendment would require each vote on an application to be recorded. As commissioners may acquire a reputation in certain fields, with the implication that they hold certain opinions and views, were any trend to become obvious, it might be suggested that they were prejudging applications based on a certain point of view. To record the commissioners’ votes on each application would help transparency and make it more likely that those who are concerned about how an application has been handled would have the evidence, or contributory evidence, in order to call the judgment into question.
The amendment is simple. It would not damage the Bill or obstruct what the Government are trying to achieve in any way, but it would mean that people concerned about individual commissioners taking individual views would have the evidence in front of them. It may help the Government, because it would help to allay any fears by showing that there is no bias and that the commissioners are considering each individual application on its merits, with no trends developing at all. It could work both ways, but whichever way it works, I cannot see how it would be anything other than helpful, and I therefore hope that the Minister will consider taking it on board.
Mr. Curry: I normally find myself in agreement with my Cornish friend, and the fact that this time I am not sure that I do probably means that the Minister is about to accept the amendment. If the commission is to work, it must operate on the basis of collective responsibility, which means that the decisions must be indivisible. The trouble is that if commissioners get a reputation for voting in a particular way, like the Bank of England’s Monetary Policy Committee, the minute that they are appointed to a case, the first thing that will happen is that their past history will be wheeled out and presumptions made about how they are likely to react.
I see the obvious attractions of recording and publicising votes, but I also see the drawbacks in terms of developing collective wisdom, with individual commissioners being separated out and comments being made about the appropriateness of certain appointments to carry out certain tasks. It is a conundrum to which, happily, I am not in the position of having to provide an answer, but the Minister is, and I am interested to know what it is.
John Healey: All members of the Committee accept that, as far as possible, the commissioners sitting on a panel will operate best if they operate collectively, reflecting the equal role of the members and the skills that they bring to the table in consideration of any particular application. At the same time, there are circumstances in which commissioners will disagree, and it may be that a vote on a decision will be necessary in order to avoid a deadlock. In those circumstances, a panel would take a decision by a majority and the lead commissioner—the commissioner chairing the panel—would have a casting vote, if there were a tie.
In order to avoid confusion, significant splits and some of the drawbacks outlined by the right hon. Member for Skipton and Ripon, the Bill provides that once a decision has been taken, in the spirit of the ambition to see the panel and the commission operating collectively, all members of the panel will be bound by collective responsibility. The proposal to record and publicise votes in such circumstances would undermine that principle. I hope that the hon. Member for North Cornwall will not press the amendment to a vote.
Dan Rogerson: I understand the argument put forward by both the Minister and the right hon. Member for Skipton and Ripon. However, it depends where one is coming from on this issue. If we want the commission to build up the reputation that the Minister is talking about, it might help to have a collective responsibility, which is unfashionable nowadays. My concern is that such allegations will be made anyway. If two or three members of a panel are looking at an application within a certain sector, it may well be that, because of their expertise, they find themselves on another panel considering another application of a similar type. People will start to read into that. They may say, “Mr. Smith was on the last panel and that decided that, and this one has decided that.” It might help if people can base whatever they say on evidence rather than supposition. I do not think that we can stop potential criticism of the panel. It is more likely to be unfounded or founded on supposition rather than the facts. I will not press the amendment to a vote, but there could be concerns about opacity in the decision taking of a commission or a panel.
Amendment, by leave, withdrawn.
Clause 67 ordered to stand part of the Bill.
Clause s 68 and 69 ordered to stand part of the Bill.

Clause 70

Single Commissioner to handle application
Question proposed, That the clause stand part of the Bill.
Dan Rogerson: I want to return to the issue of the single commissioner and would like to vote on clause stand part.
To delete clause 70 would have a fairly drastic effect on the function of the single commissioner. As far as I can see, single commissioners should not be considering applications of national importance. Having moved away from the issue of democratic accountability, I will not go over again the arguments about whether the infrastructure planning commission is a beneficial part of the Bill, but I will say that if we are going to have such applications considered, it should be done by a group of commissioners rather than a single one.
Mrs. Lait: I am somewhat torn between both arguments. On balance, however, the practical potential impact of having a single commissioner who is sick or who has to pull back from presiding overrides the argument that the Minister makes for what is a relatively small application. Evidence was cited to us about the north Yorkshire grid application and substations being held up for many years for all sorts of reasons. Even a small application for a substation would be affected.
We have also been given an example about roundabouts on the A1. It may be no surprise that I, too, am familiar with those roundabouts. I can imagine that any proposal to replace them with whatever might be the right solution at those junctions would be controversial. There is an interesting debate to be had on whether such projects are of national significance and whether it is more appropriate for the IPC or the Planning Inspectorate to deal with them. If such projects are to be classified as projects of national significance, and they are controversial, then however speedy the process could be under the system that we are trying to achieve with our amendments or under the Government’s system, we need more than one commissioner on even the smallest project.
The likely consequence is that although the number of applications might stay the same, the number of applications that the commission can deal with in a year will go down. That backs up the arguments that we have long made that the number of commissioners appointed and the deadlines that are implied will clog up the system and not speed up the decision-making process. I therefore support the objection of the hon. Member for North Cornwall to the clause and will join him in voting against it.
Question put, That the clause stand part of the Bill.
The Committee divided: Ayes 11, Noes 5.
Division No. 14 ]
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
Watts, Mr. Dave
Curry, rh Mr. David
Jones, Mr. David
Lait, Mrs. Jacqui
Neill, Robert
Rogerson, Dan
Question accordingly agreed to.
Clause 70 ordered to stand part of the Bill.
Clauses 71 and 72 ordered to stand part of the Bill.

Clause 73

Single Commissioner continuing though ceasing to be Commissioner
Amendments made: No. 374, in clause 73, page 35, line 22, after ‘until’ insert ‘— (a)’.
No. 375, in clause 73, page 35, line 23, after ‘application’ insert ‘, or
(b) (if earlier) the ex-Commissioner ceases to be the single Commissioner.’.
No. 376, in clause 73, page 35, line 25, after ‘until’ insert ‘— (a)’.
No. 377, in clause 73, page 35, line 27, after ‘application’ insert ‘, or
(b) (if earlier) the ex-Commissioner ceased to be the single Commissioner.’.—[John Healey.]
Clause 73, as amended, ordered to stand part of the Bill.
Clause s 74 to 78 ordered to stand part of the Bill.

Clause 79

Examining authority to control examination of application
3.15 pm
Dan Rogerson: I beg to move amendment No. 296, in clause 79, page 37, line 21, leave out paragraph (a).
The Chairman: With this we may discuss the following: Government amendments Nos. 378 and 379, and 382 to 384.
Amendment No. 397, in clause 96, page 44, line 29, leave out paragraph (a).
Government amendment No. 385.
Dan Rogerson: I am sure that the more experienced Members who are used to wading through Bills will understand the use of the word “frivolous” in this context, but I must admit that it raised some concerns with me. I would be interested to hear how the Minister defines “frivolous.” I can understand that were commissioners to receive a note saying, “Dear commissioners, you are a bunch of”—one can insert the Anglo-Saxon or Welsh word of choice—they might regard that as frivolous and seek to disregard it.
However, there may be standard letters—for example, those that are completed by several objectors. Will letters that people are handed in a town centre and asked to sign, and things of that nature, be considered frivolous? The examining authority might seek to use the word “frivolous” to disregard some objections, or it could be argued by the applicant that something should be considered frivolous.
The purpose of the amendment is to draw attention to the use of the word. It may be that I am unaware that it is standard practice to include it, and that there is a clear definition of it, but I would welcome hearing from the Minister what the definition is.
Robert Neill: Following on from the hon. Gentleman’s point, in other legislation and in common law, definitions of, for example, frivolous and vexatious litigants are well enough known. Is this the same sort of context? It obviously is not entirely the same, but is the frivolous part intended to be the same, and in what context?
Will there be any scope for appeal? One is hoping that there would be, because the people who might make frivolous representations are exactly the sort of people who may end up seeking judiciary review applications and being obstructive. I hope that the Minister can give some clarification of that. I understand that that is what the Bill is trying to achieve.
I note also that in subsection (2)(b) regard is to be had to
“any guidance given by the Secretary of State, and any guidance given by the Commission, relevant to how the application is to be examined.”
Will the guidance from the Secretary of State be guidance to the commission? I assume that that is the case. Will the guidance from the commission be to itself, or will it also be to those appearing before it? Can the Minister give us any idea as to what sort of matters might appear in the guidance? Will there be consultations on the guidance? How will they be published, and what legal status will they have? What is the timetable?
John Healey: “Frivolous” refers to a representation that the person who is making it knows in advance has no merit. The amendment would make it unclear whether the IPC is required to consider frivolous representations during the examination of an application. Although we all share the aim of ensuring that IPC examinations are thorough, efficient and accurate, we should agree that frivolous representations, which may be irrelevant, pointless or patently of no merit, have no place in the system. I hope that the hon. Gentleman is reassured that the IPC should not use that as a means of excluding people from submitting evidence that has merit. Were it to try to do so, the normal procedures of administrative law would apply to the IPC, just as they do to any other public body. Those who believe that their evidence has been unreasonably disregarded in that respect could also make use of the mechanisms for legal challenge set out in clause 104.
Government amendments Nos. 378, 379 and 383 to 385 would strengthen the thoroughness of the IPC’s examination by ensuring that parties do not try to wreck the proceedings by using vexatious representations. They are consequential amendments to clauses 92 and 96 and were tabled to ensure consistency throughout the Bill in the treatment of vexatious representations. It should not be too difficult for the IPC to identify when representations become vexatious—there will be a large quantity of repetitive, burdensome and unwarranted representations in which the intention is not so much to explain the issues as to try to do down or subdue the other parties.
Government amendment No. 382 concerns a different matter. As the hon. Member for Bromley and Chislehurst has pointed out, it will allow the Secretary of State to prescribe the form and manner of a relevant representation for the purposes of clause 92 to facilitate the clear and efficient communication of information and objections. The amendment would ensure that the IPC can quickly identify the key issues that underline an application in order to concentrate its examination on the most important and relevant underlying issues.
A standardised method of communicating representations could also make the examination of the main issues more effective, which is the purpose of the amendment. There will, of course, be consultation before we finalise the proposals, and although it may be possible for the IPC to specify those things through its own procedural rules and powers, it is appropriate in this case that the Secretary of State should specify them rather than the IPC. The reason is that the decision whether a representation is relevant is the gateway to a participant being included as an interested party to the examination with the rights to be heard that flow from that. The hon. Member for Bromley and Chislehurst is nodding his head, and I think that he recognises the significance of the amendment.
Dan Rogerson: I am grateful to the Minister for his reassurance that the provision will not be used to discount evidence frivolously. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Amendment made: No. 378, in clause 79, page 37, line 21, after ‘are’ insert ‘vexatious or’.—[John Healey.]
Robert Neill: I beg to move amendment No. 409, in clause 79, page 37, line 21, at end insert ‘or’.
The Chairman: With this it will be convenient to discuss the following amendments:
No. 410, in clause 79, page 37, line 22, leave out from ‘statement’ to end of line 23.
No. 429, in clause 85, page 40, line 8, at end insert ‘or,’.
No. 411, in clause 85, page 40, line 10, leave out from ‘person)’ to end of line 11.
No. 413, in clause 107, page 51, line 17, leave out ‘or is incidental to’.
No. 419, in clause 107, page 51, line 20, leave out subsection (3).
No. 412, in clause 109, page 51, line 32, leave out from ‘provision’ to end of line 34.
Robert Neill: We seek clarification on clause 79, and we return to the important issue of cross-examination once again. Amendment No. 409 would insert the word “or”, which may not seem much in itself, but it deals with the compulsory purchase element of the matter, and we think that it would provide greater clarification.
Amendment No. 410, to move on slightly, would leave out from “statement”, because the current clause may be too restrictive. We do not disagree with the ability to restrict extraneous material, which has been our stance throughout. I see the hypothetical danger of somebody saying, “I want to go on to the merits of nuclear power, beyond what the national policy statement says.” Will the Minister give us an idea how the clause will work in practice, which will assist us?
The Chairman: Order. In view of the time for which the Committee is likely to sit, and to give the hon. Gentleman time to collate his thoughts, the Committee will take a 15-minute refreshment break, on the basis that we have now sat for almost two and a half hours and are likely to sit until the votes in the Chamber this afternoon. The Committee cannot sit for four hours without a break, and it would be as well to take that break now.
Dan Rogerson: On a point of order, Mr. Illsley. I realise that the Government Whip may be seeking to catch your eye, but I wonder whether it would be better to finish proceedings today at 4 o’clock, as the convention has been up to now. We could press on until that juncture, subject to what other hon. Members think.
The Chairman: Order. The Committee is suspended until quarter to four.
3.27 pm
Sitting suspended.
3.45 pm
On resuming—
Robert Neill: May I say, Mr. Illsley, how grateful I am to you for your perspicacious decision to adjourn the Committee for a short time?
I hope that I can deal with the amendments quite briefly. It is clear to anyone that they are on compulsory purchase. Taken together, amendments Nos. 409 and 410 would reverse the exclusion from the ambit of the clause of issues relating to compensation for the compulsory acquisition of land, so that they are not disregarded by the examining authority. The subsequent amendments follow that pattern elsewhere in the Bill.
The reason for that is the importance to the individual of the compulsory acquisition of land. It seems right that an individual should be entitled to make representations to the authority examining such a proposal to protect the small person who may have real worries about it. If the Minister can reassure me that there are other mechanisms by which such problems can be satisfactorily vented, I shall be interested to hear them.
If the Government are saying that compensation is irrelevant and not to be regarded, how can that be reconciled with the provision elsewhere in the Bill that one ground for departing from a national policy statement is if the local impact would outweigh the benefit? That is a balancing act. If it is decided that that the impact of a proposal outweighs its benefit, surely the financial consideration might be significant. A man might come along and say, “This will put a firm out of business”. It is not unreasonable to seek some quantification on that. What is the rationale for the argument that compensation should be excluded? Will the exclusion be automatic, or will the examining authority have discretion, as appears to be the case? If so, how will that discretion be exercised?
Mr. Llwyd: Am I right in thinking that the reason for striking out compensation for compulsory acquisition of land from the ambit of the clause is so that the Lands Tribunal can continue its operation as the main avenue through which land acquisition compulsory payments are discussed if there is a default on an agreement? I am trying to assist, because I, too, am a bit bemused. I suspect that that may be the reason—so that the Lands Tribunal remains intact as a body.
Robert Neill: I am grateful to the hon. Gentleman for his valuable and helpful point. If that is right, which it may well be, does he think that it runs contrary to the idea of having all the consents brought together?
Mr. Llwyd: That was one of my concerns. The hon. Gentleman is right to raise the matter, and I am glad that he has. Perhaps, in due course, the Minister could address that apparent conundrum and confirm whether it is intended that the Lands Tribunal will operate as it currently does when compulsory acquisitions of land have to be effected.
John Healey: Perhaps I can come to the concerns of the hon. Gentleman and the hon. Member for Bromley and Chislehurst in a moment. I hope that I shall be able to deal decisively with them.
It is important not to overlook amendment No. 429 or let it pass without comment. It is designed to prevent the IPC from refusing to allow representations at hearings if it considers that they relate to the merits of policy as set out in the national policy statement.
We have discussed at some length, particularly in part 2, the importance and benefit of Ministers setting out a clear policy framework in a national policy statement, which will be extensively consulted upon and subject to scrutiny in this House. There has been a general recognition that there is merit in moving away from the current situation in which applications and hearings are possible in which the questions of policy are reopened and examined during the course of the inquiry. I do not want that to be the case or risk with the IPC.
I shall turn to the concerns raised by the hon. Members for Bromley and Chislehurst and for Meirionnydd Nant Conwy. The Bill prevents individuals from making representations about the levels of compensation that they should receive for being compelled to sell individual pieces of land, or their interests in it. The amendments would alter that position. I tried to explain this when I gave evidence to the Committee. If there is a dispute about the levels of compensation for the compulsory purchase of pieces of land, it is a matter for the Lands Tribunal, as the hon. Member for Meirionnydd Nant Conwy surmised, not for the IPC. Nor is it a matter for the Secretary of State if he, and not the IPC, took the decision on a particular application.
On the other hand, amendment No. 412, relating to clause 109, touches on a different question. If individual levels of compensation rightly remain a matter for the Lands Tribunal, it is appropriate and necessary—on reflection I hope that Members will agree—that the IPC can include in an order granting the development consent a provision to ensure that the legislation relating to the assessment of compensation applies to it. It is also appropriate that compensation for land compulsorily purchased is assessed on the same basis as generally applies. That is a provision to ensure that compensation is assessed in accordance with the Land Compensation Act 1973 or the Planning and Compulsory Purchase Act 2004.
Finally, Members know that I have a lot of sympathy with the aim to create a single consent regime, with the intention that promoters can include the totality of their proposed work in a single application. In many cases, applicants will include in their application works connected to the operational effectiveness of the new facilities, such as connections to the national electricity network for a new power station. An electricity undertaker in such a situation might need to acquire land at some distance from the power station to put up pylons or as a means to gain access for overhead line maintenance. The clause simply enables such compulsory purchase provisions to be included in applications for development consent.
Finally, amendment No. 419 would remove the need for the IPC to be satisfied that there was a compelling need in the public interest for land to be compulsorily purchased. I assume that it is either a probing amendment or a drafting deficiency. Surely Members would want the IPC to have the ability to issue compulsory purchase orders only, and would not want it to do so without having to be sure that there was a case for it in the first place.
I hope that my comments have been useful and that Members do not feel the need to press their amendments.
Robert Neill: The Minister is quite right about amendment No. 419; an error slipped into the drafting. I heard what he said, and I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 79 ordered to stand part of the Bill.
Clause s 80 and 81 ordered to stand part of the Bill.
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