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.
Amendment No. 398 would
certainly increase uncertainty for all parties. Therefore, I encourage
the hon. Gentleman to think again about the safeguards,
four of which I listed in the discussion with the hon. Lady a moment
ago. I hope that that explanation and the discussion that has just
taken place with regard to amendment No. 418 on the safeguards on the
use of legislative powers by the IPC have given him the opportunity to
think again so that he will withdraw his amendment. If he does not, I
will ask my hon. Friends to oppose
it. 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
106Exercise
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
Dan
Rogerson: The Minister has clearly addressed the issues
that we have just discussed. Having heard that he was quite happy for
the IPC to have the
provision to disregard the legislation, the amendments aimed to offer a
further safeguard to that process. He and his colleague have sought
throughout the debate to distinguish between policy and decision
making. I should have thought that there is certainly an element of
policy in deciding that legislation can be disregarded. It is a bit odd
to say that that is purely a matter of deciding on an application.
Surely the disregarding of legislation is in itself a policy-related
decision. I am not entirely convinced by the Minister’s
argument. However, we have had the opportunity to debate the principle
and get it on the record that Opposition Members are unhappy about
this. As others have said, we can return to this at a later stage. I
beg to ask leave to withdraw the
amendment. Amendment,
by leave, withdrawn.
Clause 106 ordered to stand
part of the
Bill.
Clause
107Purpose
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
114Commons,
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.
| 
