Planning Bill

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Jim Fitzpatrick: When the hon. Gentleman moved his amendment, I had hoped that he was taking the time to reflect on the earlier debate and was considering offering to withdraw it, but clearly he talked himself out of that while reminding himself of his speaking notes and has decided to test it by having some discussion.
I will try not to repeat what I have said because we have discussed the safeguards on the use of legislative powers by the IPC. However, the hon. Gentleman’s amendment tries to address that with a different tactical approach to such safeguards, by providing that no order granting development consent could apply, modify or exclude statutory provision without being confirmed by a resolution of both Houses of Parliament under the super-affirmative resolution procedure.
As we know, the super-affirmative procedure is extremely onerous, at least with regard to parliamentary time, and I say that with respect. Under that process, Ministers would lay a draft order before Parliament for 60 days, during which a Select Committee of either House may recommend on specified criteria that no further proceedings be taken, in which case the order falls. Designated Select Committees in either House may make recommendations on the draft order, to which Ministers must have regard. If the Minister decides to revise a draft order, the Committee stage restarts. After 60 days, if the Minister has decided not to revise the order, the draft order is laid before Parliament and a motion to improve it is then moved in both Houses. A Minister can only make the order if both Houses resolve to affirm it. I hope that that description demonstrates the amount of parliamentary time that would be taken up in that procedure, with which the hon. Gentleman is obviously familiar.
We are unconvinced, in any case, that Parliament would welcome those time commitments back again. It was because of the time spent on private Bills relating to infrastructure development that Parliament created the Transport and Works Act regime in the first place. I question whether any of the parties at the examination stage will welcome an additional parliamentary stage after the IPC’s examination has already gone over all the facts and reached a decision.
Dan Rogerson: I felt it necessary to discuss the amendment so that the Committee had a second chance to consider what the Minister said in response to the hon. Lady’s amendment, and the safeguards do not reassure me a great deal. It is an onerous procedure, although not a hugely lengthy one, as there are time limits imposed on it. It ought to be fairly onerous for an unelected body to disregard legislation passed by Parliament. Therefore, on this occasion I would like test the Committee’s opinion on the amendment.
Amendment negatived.
Clause 105, as amended, ordered to stand part of the Bill.

Clause 106

Exercise of powers in relation to legislation
Dan Rogerson: I beg to move amendment No. 399, in clause 106, page 50, line 34, leave out from beginning to second ‘the’ in line 36.
The Chairman: With this it will be convenient to discuss the following amendments: No. 400, in clause 106, page 50, line 39, leave out subsection (4).
No. 401, in clause 106, page 50, line 43, leave out ‘28’ and insert ‘56’.
No. 402, in clause 106, page 50, line 45, leave out subsection (6).
Dan Rogerson: We reach clause 106, which I suppose is a resonant number in the planning terms that we all quote backwards and forwards to each other in a different context. No doubt we will do so again when we reach the section on the community infrastructure levy.
The amendments would widen the scope of powers available to the Secretary of State. It may seem a little odd that I should be arguing for that, and that the Secretary of State’s representative among the Ministers might be arguing against it, but it allows the Secretary of State a longer period in which to act in considering whether he is happy with a draft order. As drafted, the clause specifically limits those powers to Community law or convention rights. My amendments would widen that provision so that the Secretary of State can review the draft order and make any changes that he or she sees fit to ensure that the draft order is right, or as near to that as possible. The provision may well not be exercised a great deal, and it would not necessarily delay the process a huge amount. However, it would ensure that there is an extra safeguard for the Secretary of State to consider the draft orders and to change them if concerns arise not only from problems with Community law or convention rights, as the clause currently states. I hope that the Minister will discuss how the Secretary of State might be able to address any problems that occur with a draft order.
Jim Fitzpatrick: I ask the Committee to reject the amendments. The clause sets out a limitation and safeguard on the IPC’s ability to exercise its powers under subsection (6) in relation to a project. When the IPC proposes to make an order that will include such matters, it will have to send a draft to the Secretary of State. The Secretary of State may step in if she believes that any provision the IPC wishes to include in an order in exercise of its legislative powers will contravene Community law or convention rights under the Human Rights Act 1998. That reserve power takes the form of an ability to direct the IPC to make modifications to its draft order so as to prevent the contravention from arising.
The amendments would remove the limitation on the Secretary of State to make changes only when the order contravenes Community or human rights law. Instead, the Secretary of State could direct changes for any reason. It is not clear whether the Secretary of State’s power of direction would continue to be restricted to changes to the provisions relating to the legislative powers, or whether changes could be made to other provisions in the order granting developing consent. Even if the courts were to favour the former interpretation, the amendments have the potential to involve the Secretary of State extensively in decisions for which the IPC wants to make use of its legislative powers. Whether there is a restriction or not, it seems clear that the intention behind the amendment is to involve the Secretary of State more closely in making decisions.
We have discussed the topic at length, and the Government continue to believe that there are great benefits and a clear separation between policy making and decision making. That led us to suggest the IPC system in the first place. It would not be appropriate for the Secretary of State to direct changes to IPC decisions on any grounds other than those mentioned in the clause.
The amendments would jeopardise the benefits of the new system. The clause currently states that if the Secretary of State wishes to direct the IPC to make modifications to the draft order, she must do so within 28 days of receiving it. Amendment No. 401 would extend this deadline to 56 days, presumably because the hon. Gentleman is trying to expand the scope of decision making and so allow more time.
Nevertheless, we believe that 28 days remains the appropriate time. The Secretary of State will not need more than 28 days to determine whether a draft order contravenes Community or human rights law and to direct changes to ensure that it continues to conform. An extension of the deadline would simply slow down the process more in its final stages and therefore increase the level of cost to promoters who would be waiting for the development consent order to be made formally.
On that basis, I hope that the hon. Gentleman feels able to withdraw his amendment. Should he not do so, I will ask my hon. Friends to oppose it.
11.15 am
Amendment, by leave, withdrawn.
Clause 106 ordered to stand part of the Bill.

Clause 107

Purpose for which compulsory acquisition may be authorised
Jim Fitzpatrick: I beg to move amendment No. 433, in clause 107, page 51, line 20, leave out ‘need’ and insert ‘case’.
The Chairman: With this it will be convenient to discuss Government amendment No. 436.
Jim Fitzpatrick: We ask the Committee to accept the amendments. Amendment No. 433 is largely technical. Instead of the decision maker needing to be satisfied of compelling need in the public interest for land acquisition, he needs to be satisfied of a compelling case in the public interest. That wording better reflects the current wording of the test set out in the Department for Communities and Local Government’s circular 06/2004 on compulsory purchases and the Crichel Down rules and hence the established case law. We have been asked by the Compulsory Purchase Association to make that change.
Clause 126 provides that time limits will apply to orders granting development consent. It specifies that development that is consented under such an order must have begun before the end of the prescribed period, although the clause allows the decision maker to set a different time limit as part of the order itself. Amendment No. 436 will allow us also to set time limits on any compulsory purchase powers contained in an order granting development consent. The time limits by which point compulsory purchase powers must be used will also be prescribed, as we expect that this prescribed period will in most cases be shorter than the time limits for the development to begin.
Again, this clause will allow the decision maker to set a different time limit as part of the order. We believe that it would be unfair and improper for developers to have the right to buy people’s land but then not do so until a significant period of time later. The ensuing blight from compulsory purchase powers that are not acted on could wreck people’s quality of life, let alone the value of their property.
Robert Neill: I welcome the amendments. I just flag up for future consideration that the Government have in this instance been prepared to return from their original proposal to the existing case law. That is sensible and makes for greater certainty. I hope that between now and Report they might like to reflect on adopting the same approach to the question of materiality that we discussed, because the same considerations apply.
Amendment agreed to.
Question proposed, That the clause, as amended, stand part of the Bill.
Robert Neill: We will not vote against clause, but I ask the Minister to reassure people who have told us that they are worried about precisely what is meant in subsection (2)(b) by the circumstances in which land is required that is “incidental to that development”. Everyone understands the concept of land for development, and to facilitate that development, but there is naturally concern that the use of the powers in this regime should be limited to that which is necessary for the development. What are the practical implications of the phrase “incidental to that development”?
Jim Fitzpatrick: The Bill outlines different powers that the IPC may have. An applicant may apply for the decision to authorise the compulsory acquisition of land that is incidental development when the land is required as part of a package of compensatory measures—for example, if the applicant has to acquire land that is protected by the habitats directive. Where there is a clear community, environmental or legislative need to make additional incidental arrangements, they are covered by that phrase.
Robert Neill: I am grateful to the Minister for that explanation. If the phrase is used in that limited way we do not have a problem with it.
Clause 107, as amended, ordered to stand part of the Bill.
Clauses 108 to 113 ordered to stand part of the Bill.

Clause 114

Commons, open spaces etc: compulsory acquisition of land
Dan Rogerson: I beg to move amendment No. 403, in clause 114, page 55, line 33, at end insert—
‘(9) Where subsection (4) applies the Secretary of State shall publish a statement detailing the means and extent of the preservation or improvement that will be effected on the order land once compulsory acquisition has taken place.’.
The amendment relates to subsection (4), on the compulsory acquisition of land
“in order to secure its preservation or improve its management.”
We must be clear about why that land is being acquired and know exactly what will happen to it that will improve its management, as those objectives could be controversial.
The hon. Member for Bromley and Chislehurst wanted the Minister to clarify the use of the word “incidental” in clause 107, and I would welcome an explanation of how the implications for that land will be made clear if the clause as drafted is accepted.
Robert Neill: We have sympathy with the amendment and we look forward to hearing what the Minister has to say about it. It is a matter of clarification and our stance will depend on what we hear from him.
Mr. Llwyd: I am curious about the magical figure of 209.03 sq m in subsection (5); were it 209.04 sq m, I dare say that things would not proceed. I presume that it is the standard width and accommodation for the land on each side of a pipeline that is not normally developed at any cost. There is a word for that which escapes me. I would be interested to know precisely why it is 209.03 sq m.
Mr. David Curry (Skipton and Ripon) (Con): I am equally somewhat arithmetically baffled. It might be that the figure refers to something defined in acreage or metres in a previous piece of legislation.
I would like some clarification from the Minister on how this provision will work for common land. There is a large amount of common land in my constituency. A significant part of the Yorkshire dales is common land. It is quite a complex business. The Bill says that if some land is taken away, compensatory land will be given on which all the old rights will apply, but it is not quite as easy as that. Rights on common land are historical rights held by various people. Those are not necessarily transferable to new pieces of land because they might not have the historical quality of the old land.
In addition, there is a complex issue regarding the Rural Payments Agency, an organisation which the Public Accounts Committee, of which I am a member, has had occasion to examine in some detail over far too long a period because of its continuing inability to get its act together. The way that the RPA recognises, or fails to recognise, the rights on common land is important. For any land given in compensation, the RPA should recognise the rights that are often endowed to grazers on common land. That should be done in terms of entitlement under the single payments system.
I know that the Minister is widely versed in all those matters, but I would like some strong reassurances about matter and, out of sheer curiosity, an answer to the question posed by the hon. Member for Meirionnydd Nant Conwy about the magical arithmetic.
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