Jim Fitzpatrick: The Government do not support the amendment. The clause specifies that an order granting development consent cannot extinguish public rights of way over land, unless the authority making it is satisfied that alternative rights of way have been provided or that none are required. That point has been raised by my right hon. Friend and other colleagues in the debate. The procedures are drawn from section 32 of the Acquisition of Land Act 1981.
The amendment would compel the decision maker to have regard to public consultation before deciding that an alternative right of way is not required. That might prove difficult if the decision maker was required to hold their own public consultation for the purposes of this section. Such an additional consultation would be expensive and could delay unreasonably the final determination of the application.
In any case, we believe that the amendment is unnecessary. The application as a whole would already have undergone extensive consultation, been widely publicised and been examined in detail. It would have been open about any rights of way to be extinguished, and any person concerned about the proposal would have the opportunity to make representations to the promoter, or subsequently to the IPC on that matter.
Mr. Llwyd: That is the crux of the matter: has the right to make representations. As the law stands, the person would have an opportunity to address, effectively, a tribunal hearing, or an inquiry. Therefore, the member of the public loses the right to challenge that procedure at inquiry level that they would previously have had. Now we are down solely to representations; that is a major concern.
Jim Fitzpatrick: As I said, the application would have to have been open about any rights of way, and any person concerned could make representations. Any representation would have to be taken into account by the IPC if it was relevant, particularly in deciding whether a right of way was needed. We understand the importance of the issue.
We have the power to issue guidance on consultation in clause 37, which we have previously discussed. We intend that it would include guidance on the right of way. An example of a right of way that may no longer be required, as asked for by the hon. Member for Meirionnydd Nant Conwy, would perhaps be a cliffside path that has been washed away by erosion but would still exist in law, or a right of way that has fallen into disuse. Apparently there is clear case law on those types of definitions and it would apply in those instances.
Alun Michael: It is not clear to me what my hon. Friend is drawing from those two examples. For instance, a clifftop right of way, which is an important aspect of access that Government policy supports strongly, would surely still be required. Is that the interpretation he is placing on that example? Also, he used the words needed and required. The Bill contains the word required, but it is not clear from what he has said what is meant by that.
Jim Fitzpatrick: I have been trying to reassure the Committee that there is case law in respect of the matter, that there are instances in which there will no longer be a requirement for a particular right of way, that the representations that individuals can make are already contained within the consultative procedures, and that there would be no loss of rights, as there would be relevant representation for the examination, including the open floor stage.
Mr. Llwyd: The Minister is obviously engaging fully with the matter. All the case law is predicated on the fact that there is currently a statutory right to a full inquiry. That is the crux of the matter. I do not want to delay matters unnecessarily and perpetuate quasi-tribunals that might not be of any use, but we are talking about a time-honoured statutory procedure. People who feel aggrieved because they think they will lose what they believe to be their age-old rights of access will no longer have recourse to an inquiry. They will simply be allowed to send in a submission within the ambit of the planning procedure; in other words, they will be consulted in a way, but that is all.
As the Minister said, the case law on the issue is extensive, and often decisions are made on the quality and quantity of usehow many people use a footpath, how long it has been used, whether there is evidence that the local council have maintained it or it has fallen into disrepair and so on.
The Ministers examples are obvious ones that would cause no problem to anyone, but many fall into another category, which would create problems. For example, people rely on footpaths for recreation and other purposes, and they might find their representations on what might seem to be a trivial matter have been brushed aside in the interests of a larger scheme. For a local village or town the matter is not trivial but very important. The Bill is in danger of trampling on peoples ancient rights.
Jim Fitzpatrick: I recognise the sensitivity and significance of the issue. We have had many discussions about previous procedures and ways of doing things, and this proposal changes things, but we want to reassure everyone who is interested that we are trying to strengthen the consultative arrangements by having a pre-application stage and a hearing.
I tried to explain to the hon. Gentleman that there will be no loss of the right to complain to the inquiry. There will be relevant representations for examination during the open floor stage of hearings. Individuals will still have the right to make those representations
Mr. Llwyd: The open floor does not assist me very much, because the IPC could decide not to allow examination or cross-examination at that stage. Therefore, any objector could be muffled.
Mr. Jones: I want to underline what the hon. Member for Meirionnydd Nant Conwy said. I have been involved in many inquiries about public rights of way and I know the fundamental importance of cross-examination. The veracity or otherwise of evidence of long use can usually be tested only by assiduous cross-examination. If that is to be abandoned as a result of the proposed procedure, peoples rights will be trampled on, as the hon. Gentleman said.
Jim Fitzpatrick: We are returning to previous discussions about the adequacy of the consultative arrangements being put in place, whether the IPC will be able to satisfy people that their concerns are being listened to and whether they have an adequate opportunity to put them before the appropriate authorities. We are confident that the arrangements we propose are more than adequate, and we oppose the amendment on that basis.
Dan Rogerson: The Minister sets great store by the fact that there will be an examination of the overall application. However, subsidiary changes are proposed in this and other clauses to what will happen in the local area based on the main applications. The wider environmental impact will be considered primarily, and that will be peoples biggest concern. Consideration will also be given to transport implications and all sorts
Rights of way will not necessarily occur to people straight away. They might come to the fore only later on, when it would be too late for them to be considered in the open hearing. People will quite rightly have been exercised by the bigger picture and the totality of the development. There might be other provisions and unforeseen consequences. In the application and consultation, the applicant may have put on page 753, line 22: PS: Were going to take away your right of access. That is not good enough. On matters as contentious as rights of way, where there are established processes for addressing the issues, I think that the Government have gone far enough. We have heard from hon. Members how important such provisions are to people.
Very generously, the Minister said that he will look again at the provisions under clause 114. I think that it is unfortunate that he has decided not to do so under this clause. Having heard about these concerns from hon. Members of all parties, it is important that we test the Committees opinion.
Question put, That the amendment be made:
The Committee divided: Ayes 7, Noes 12.
Division No. 18]
Question accordingly negatived.
Clause 118 ordered to stand part of the Bill.
Excavation, mining, quarrying and boring operations
Question proposed, That the clause stand part of the Bill.
Jim Fitzpatrick: The clause would place a restriction on the ability of a decision maker to make an order granting development consent that authorises the carrying out of specified excavation, mining, quarrying or boring operations in a specified area. It specifies that the decision maker can make such an order
only if the development to which the order relates is or includes the underground storage of gas.
The provision was aimed at ensuring that a development consent order could authorise controlled operations in the same way as an authorisation under section 5 of the
Question put and negatived.
Clause 119 disagreed to.
Clauses 120 to 122 ordered to stand part of the Bill.
(1A) If an order granting development consent includes provision authorising the charging of tolls in relation to a proposed highway, the order is treated as a toll order for the purposes of sections 7 to 18 of the New Roads and Street Works Act 1991..
The IPC will have powers under clause 105(4) to provide for the charging of tolls in a development consent order. Clause 123 specifies that an order granting development consent can only authorise the charging of tolls in relation to a proposed highway if that is requested in the initial application. It is entirely possible that funding arrangements for a proposed highway may be based on predicated tolls being charged.
The amendment is a technical one to ensure that, when the IPC makes an order authorising the charging of tolls in relation to a proposed highway, that order is treated, for the purposes of related legislation such as the New Roads and Street Works Act 1991, as a toll order. That will ensure that the order granting development consent has legal effect in other legislation governing toll roads.
Amendment agreed to.
Clause 123, as amended, ordered to stand part of the Bill.
Clauses 124 and 125 ordered to stand part of the Bill.
Duration of development consent order
Amendment made: No. 436, in clause 126, page 60, line 3, at end add
(3) Where an order granting development consent authorises the compulsory acquisition of land, steps of a prescribed description must be taken in relation to the compulsory acquisition before the end of
(a) the prescribed period, or
(b) such other period (whether longer or shorter than that prescribed) as is specified in the order.
(4) If steps of the prescribed description are not taken before the end of the period applicable under subsection (3), the authority to compulsorily acquire the land under the order ceases to have effect..[Jim Fitzpatrick.]
Clause 126, as amended, ordered to stand part of the Bill.
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