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
issuesthey 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 bodythat
will include the IPCany 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 areasour
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
contextwhere the requirements are changed, added to or
removedthe 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 Majestys
Opposition, it is appropriate to look at the statutory instrument in
detail. A general questionone that I have raised on a number of
occasionsis 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
stageduring 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?
On
public consultation, we are minded to agree with the Government.
Paragraph 8.2 of the explanatory notes states that 75 responses were
received to the public consultation that took place last autumn. We are
minded to support the Government in their belief that it is important
not to fetter the legislation in any way by adding extra duties under
the Act that are effectively new statutory requirementsfor
example, on climate change. However, a slightly opaque sentence at the
end of that paragraph states that Any changes, such as
adding climate change and landscape considerations to the statutory
requirements, will be
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
devils 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 reviewingparticularly next
yearthe 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
Ministers 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 proposalthey
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
reportThe Economics of Ecosystems and
Biodiversitywill 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 waysthat was the key
elementwould 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 passingthe 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 longthe
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.