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 use—how 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 Minister’s 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 people’s 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.
David Jones (Clwyd, West) (Con)
rose—
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.
Jim
Fitzpatrick: I shall take interventions from the hon. Lady
and the hon.
Gentleman.
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, people’s
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
people’s biggest concern. Consideration will also be given to
transport implications and all sorts
of matters that were set out in the national policy statements and how
they should be applied locally once an application has been
submitted. 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: We’re 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
Committee’s
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.
Clause
119Excavation,
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
Gas Act 1965. However, it is not now intended that the IPC should be
responsible for authorising this type of excavation work in the
vicinity of a nationally significant infrastructure project. Instead,
the Secretary of State will remain responsible for such authorisations.
As a consequence, the clause is not required. The Government therefore
propose that it be
removed. Question
put and
negatived. Clause
119 disagreed
to. Clauses
120 to 122 ordered to stand part of the
Bill.
Clause
123Highways 12
noon
Jim
Fitzpatrick: I beg to move amendment No. 435, in
clause 123, page 58, line 37, at
end insert— ‘(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.
Clause
126Duration
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.
| 
