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Session 2009 - 10
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Delegated Legislation Committee Debates



The Committee consisted of the following Members:

Chairman: Mrs. Joan Humble
Austin, Mr. Ian (Parliamentary Under-Secretary of State for Communities and Local Government)
Beresford, Sir Paul (Mole Valley) (Con)
Brown, Lyn (West Ham) (Lab)
Gardiner, Barry (Brent, North) (Lab)
Goldsworthy, Julia (Falmouth and Camborne) (LD)
Hewitt, Ms Patricia (Leicester, West) (Lab)
Jackson, Mr. Stewart (Peterborough) (Con)
McNulty, Mr. Tony (Harrow, East) (Lab)
Morden, Jessica (Newport, East) (Lab)
Rogerson, Dan (North Cornwall) (LD)
Scott, Mr. Lee (Ilford, North) (Con)
Slaughter, Mr. Andy (Ealing, Acton and Shepherd's Bush) (Lab)
Soames, Mr. Nicholas (Mid-Sussex) (Con)
Stuart, Ms Gisela (Birmingham, Edgbaston) (Lab)
Turner, Mr. Neil (Wigan) (Lab)
Wiggin, Bill (Leominster) (Con)
Simon Patrick, Committee Clerk
† attended the Committee

Sixth Delegated Legislation Committee

Wednesday 27 January 2010

[Mrs. Joan Humble in the Chair]

Draft Infrastructure Planning (Decisions) Regulations 2010
2.30 pm
The Parliamentary Under-Secretary of State for Communities and Local Government (Mr. Ian Austin): I beg to move,
That the Committee has considered the draft Infrastructure Planning (Decisions) Regulations 2010.
It is a great pleasure to serve under your chairmanship, Mrs. Humble. I am grateful to all hon. Members who have come to serve on this Committee today.
These regulations are of a technical nature. Although they are straightforward and uncontroversial, they serve an important function as they ensure that decisions taken by the Infrastructure Planning Commission will be taken on the same basis as planning decisions are taken now.
Let me briefly provide some background. As members of the Committee will be aware, the Planning Act 2008 puts in place a new single consent regime for nationally significant infrastructure projects. It creates a single integrated consent regime for NSIPs, including large power stations, ports, road and rail, replacing eight separate and often overlapping regimes.
The new infrastructure body, the IPC, will be responsible for examining applications for NSIPs and, where a national policy statement has been designated, for taking decisions on applications. The IPC will be able to accept applications for the energy and transport sectors from 1 March this year. The Act provides for the Government to produce NPSs, to provide clarity on what the national need for infrastructure is and to set the policy framework for IPC decisions. It ensures a greater focus on pre-application consultation, to make sure that promoters deal with the specific issues raised by each NSIP proposal before submitting an application.
Over the course of the past year, the Government have been working to develop the various packages of secondary legislation and guidance necessary to implement the new regime to ensure that everything that is needed is in place on 1 March, when the IPC begins to receive applications. The first two of those packages, relating to consultation on NPSs and pre-application and application procedures, are already in force. The regulations under consideration today belong to the third package, which relates to the examination of applications. This is the only affirmative instrument in the package.
I turn now to the detail. The regulations ensure that important matters relevant to decision making on planning applications under the present planning regimes continue to apply to decisions under the Planning Act. Under planning law, there is a range of matters to which decision makers, whether the Secretary of State or the local planning authority, must have regard when taking decisions on applications. They cover a range of important issues—they provide protection for our national parks and help to ensure the safe use of hazardous substances and that biodiversity is given proper consideration. Those are just a few examples from a much longer list.
In most cases, those matters will automatically apply to decisions made under the Planning Act but two categories will not. The first is matters that are drafted in such a way that they will not automatically apply. In many instances, the requirements already apply to any Minister of the Crown and any public body. One such example is section 11A(2) of the National Parks and Access to the Countryside Act 1949, which requires any Minister of the Crown, any public body—that will include the IPC—any statutory undertaker or any person holding public office in exercising or performing any functions in relation to, or so as to affect, land in a national park, to have regard to the purposes of conserving and enhancing the natural beauty, wildlife and cultural heritage of national parks, and promoting opportunities for the understanding and enjoyment of the special qualities of those areas by the public.
Because the IPC counts as a public body for these purposes, the requirements drafted in that way will already apply to decisions made under the Planning Act, whether by Ministers or the IPC, and do not need to be specifically applied. However, section 40(2) of the Natural Environment and Rural Communities Act 2006, which requires a Minister of the Crown, a Government Department or the National Assembly for Wales, when carrying out their duty to conserve biodiversity, to have regard in particular to the United Nations Environment Programme convention on biological diversity of 1992. Because that duty is binding on Ministers, who currently decide most applications that will now fall to the IPC, it is appropriate that the duty should be binding on the IPC also. However, because the duty only applies to the specified bodies, it needs to be specifically applied to the IPC through the draft regulations.
The second category accounts for most of the matters specified in the draft regulations. As hon. Members will know, the Planning Act puts in place a single consent regime, enabling promoters to apply for one consent in respect of infrastructure development, where previously they may have needed to apply for several. The Act does that in two ways: by removing the requirement to obtain certain consents that were otherwise needed, as set out in section 33 of the Act; and, in a few cases, by permitting decision makers to grant deemed consent.
However, where those consents included a requirement to have regard to one of the important matters mentioned earlier, it is vital that we ensure the protection provided is not lost. The statutory instrument before the Committee therefore reapplies the tests contained in those consents to ensure that decision makers have proper regard to them. For example, section 33 of the Planning Act removes the requirement to obtain listed building consent under section 8 of the Planning (Listed Buildings and Conservation Areas) Act 1990. Section 16 of that Act requires decision makers, in considering whether to grant listed building consent for any works, to have special regard for the desirability of preserving the building or its setting, or any features of special architectural or historical interest that it possesses. Because the need to obtain consent is removed, the protection provided in section 16 would also be lost if it were not reapplied through the SI.
That is the essence of this short but important statutory instrument. In closing, I would like to set it in the context of the wider planning system. The requirements to have regard to certain matters exist across the planning system, to ensure that decision makers take proper account of the effects their decisions may have in certain areas—our national parks, biodiversity and so on. Because those issues are cross-cutting, it is important that there is consistency across the legislative framework applying to decision makers under both the Planning Act and the wider Town and Country Planning Act 1990 system. A change to one would necessitate a change to the others. It is therefore a basic principle of the regulations that they should not seek to add or to remove elements of the framework, but they should ensure that the status quo is maintained. Where that status quo changes in the wider context—where the requirements are changed, added to or removed—the regulations will need to be amended to reflect that.
2.37 pm
Mr. Stewart Jackson (Peterborough) (Con): It is a pleasure to serve under your chairmanship, Mrs. Humble, for what I believe is the first time on a statutory instrument Committee. I will not detain the Committee long.
We intend to divide the Committee and vote against the statutory instrument, because we have consistently argued against the overall rationale for the Infrastructure Planning Commission. My hon. Friend the Member for Bromley and Chislehurst (Robert Neill) did so on the floor of the House and in the Committee that scrutinised the Planning Bill. Our general view is that there was insufficient scrutiny of the issues the statutory instrument deals with, as there was of a number of key issues in the Planning Act 2008. For the avoidance of doubt, Mrs. Humble, let me say that a Conservative Government will scrap the Infrastructure Planning Commission. We believe that it offends against the principle of democratic accountability, both within and outside Parliament, and the case has not been made for it.
Having established the general picture and the view of Her Majesty’s Opposition, it is appropriate to look at the statutory instrument in detail. A general question—one that I have raised on a number of occasions—is why some of the detailed ramifications of the statutory instrument were not examined during the passage of the primary legislation. I am confused about why it was not possible to do that and to iron out some of the inconsistencies at that stage—during all the proceedings in Committee and on the Floor of the House on the Bill that became the Planning Act.
Perhaps the Minister will answer some specific questions. It is appropriate to ask why paragraph 7.6 of the explanatory notes on the statutory instrument states that
“The requirements included in these Regulations...will not apply to one or more of the decision-makers under the Act...because of the way in which they are drafted”.
I am not entirely certain why that is so and perhaps other Committee members are not either. Will the Minister elucidate?
“in the wider statutory context.”
Will the Minister comment on that specific point?
Paragraph 8.3 of the explanatory notes throws up a number of moot points about the efficacy or otherwise of pre-application consultation. Playing devil’s advocate, one could ask rhetorically what the point is of having pre-application consultation and a consultation report if they are not going to be a substantial part of the value judgment and decision that the IPC makes on significant linear projects or large-scale capital projects, such as power stations. There is an argument for saying that that might undermine the belief of local people, key stakeholders and those with a direct interest in their community, who will be demonstrably affected by any large-scale development, that consultation is not merely a window-dressing exercise and that the IPC is not going through the motions. No doubt the Minister will disabuse me of that rather cynical view.
Paragraph 10 of the explanatory notes, “Impact”, states that no impact assessment is required, because the required assessment was provided with the Planning Act 2008. However, the key issue is that this secondary legislation will add further statutory duties in respect of coastline management and biodiversity, for example, so it is effectively sui generis in that there will be encumbrances on businesses. In the fullness of time, perhaps a new impact assessment will be required specifically for the statutory instrument.
Finally, will the Minister say a little about paragraph 12 of the explanatory notes, which mentions the continuing work of the Department for Communities and Local Government in reviewing—particularly next year—the relevant parts of the Marine and Coastal Access Act 2009? How will that impact on the statutory instrument and its operation?
I look forward to receiving answers on those specific points and the general issues that I have raised. In any event, notwithstanding the Minister’s eloquent, cogent reply to my points, we will divide the Committee and will vote against the draft regulations.
2.44 pm
Barry Gardiner (Brent, North) (Lab): I wish to comment on regulation 7, which is about biological diversity and rightly puts the onus in that respect on the IPC. Under the existing regulations, only Ministers can be governed by the duty to conserve biological diversity. I want clarification from the Minister on certain points relating to how the IPC will observe that duty.
At present, Ministers are governed by the Green Book on Government accounting, and they will always look at their cost-benefit analyses when considering any planning scheme or Government proposal—they have to look at the costs and benefits of the proposed course of action. It is, however, difficult to include evaluation of natural capital and of biological diversity in particular.
That fact has been recognised this year, the international year of biodiversity. I am sure that the Minister knows of the convention on biological diversity conference later this year in Nagoya, which will consider precisely matters such as the value of ecosystems and natural capital. The TEEB report—“The Economics of Ecosystems and Biodiversity”—will report into that commission. However, it is important to have clarity and for the IPC to have to take on the same accounting framework as Ministers do in the way it considers the conservation of natural capital when arriving at its decisions. That is perhaps on abstruse point, but it is an important one, particularly in the international year of biodiversity.
2.46 pm
Dan Rogerson (North Cornwall) (LD): It is a pleasure to serve under your chairmanship for the first time, Mrs. Humble.
I support a lot of what has been said by the hon. Member for Peterborough. The Liberal Democrats stuck with their opposition to the principle of the IPC throughout the deliberations on the Planning Bill. I had the delightful responsibility of serving on that Public Bill Committee as we went through many sittings, looking at all the issues. We were not convinced that the creation of another quango to deal with matters that were being dealt with in other ways—that was the key element—would improve the planning system to the benefit of people who were trying to provide the needed infrastructure and of affected local communities. We supported— I would not say in passing—the concept of national statements, which we thought would be helpful, and I know that the Conservative party took a similar view. Having a clearer policy can take out elements that are of strategic significance, so that each application is considered on its merits within that, rather than looking at wider issues, which can at present be raised at an inquiry. We certainly support those measures.
In considering the regulations before us today, we are looking at issues not covered by the national policy statements, but which affect existing legislation. I suppose we are addressing the crossovers between those. There was certainly a feeling during the consideration of the Planning Bill in Committee that there have been many gains in recent years on environmental protection and biodiversity, as others have mentioned. We were keen to get on the face of the Bill a cross-cutting commitment to ensure that decisions taken by the IPC have regard to those elements, and if possible, not just to protect the environment as it stood, but to look at applications that would achieve what we wanted to achieve and have environmental goods. Unfortunately, we were not successful with that, so there were not to be national statements that would cover all the issues, and we are left with trying to preserve the gains that have already been made.
My problem is that the IPC is an appointed, unelected body with a clear remit to drive applications through within a short time scale, regardless of how complex the applications may be. The time scale is everything, whereas to me, the important thing is to get the decisions right. There are examples where things have dragged on for far too long—the national statement is designed to remove those cases and speed up the process. However, it is far more important that we get things right than that we get them done quickly but end up with the wrong decision. The IPC, as I said, is an unelected body. It will have the responsibility of trying to correlate the regulations before us with national statements. If there are any conflicts, it will be up to the IPC to judge which way to go and what should take precedence.
 
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