Growth and Infrastructure Bill

Memorandum submitted by UKMPG (GIB 49)

 GROWTH AND INFRASTRUCTURE BILL

PROPOSED AMENDMENT TO

SPECIAL PARLIAMENTARY PROCEDURE UNDER THE PLANNING ACT 2008

1. Summary

1.1 Clause 19(1) of the Growth and Infrastructure Bill (the Bill) states:

"Sections 128 and 129 of the Planning Act 2008 (special parliamentary procedure applies to certain orders granting development consent which authorise compulsory acquisition of land belonging to a local authority or statutory undertaker) are repealed."

1.2 The Bill therefore proposes that where a Development Consent Order (DCO) under the Planning Act 2008 provides for the compulsory purchase of land owned by local authorities or statutory undertakers, there should be no necessity for that compulsory purchase to be considered by Parliamentary Committees through the special parliamentary procedure under the Statutory Orders (Special Procedure) Act 1945, as is currently the case.

1.3 Because of the importance of land belonging to bodies performing statutory functions to national economic interests, Parliament should be the ultimate safeguard in relation to the proposed compulsory acquisition of such land.

1.4 The Bill should therefore be amended so that the words "..or statutory undertaker.." in Clause 19(1) are deleted.

2. Second Reading

2.1 On the second reading of the Bill on 5th November 2012 before this House, The Secretary of State for Communities and Local Government, the Right Honourable Eric Pickles, stated in commenting on this provision,

"We are also reforming the special parliamentary procedure to remove a duplicate consent regime, introduced as a result of the poor drafting of the Bill that became the Planning Act 2008. As the Ways and Means Committee in this House and the Chairman of the Committees in the other place have stated, "since the 2008 Act did not amend the 1945 Act, we now have a statutory framework which is inherently contradictory". The Bill removes that overlap…"

2.2 It is unlikely that the retention of special parliamentary procedure in the 2008 Act was as a result of "poor drafting". If that were the case the Government has since had ample opportunity to correct such "poor drafting", for example, through the Localism Act 2011. It is far more likely that the draftsman of the 2008 Act recognised, as did the Government of the day, the vital importance of land belonging to statutory undertakers and that such land should not lightly be removed from bodies charged with undertaking statutory public functions [1] .

3. Statutory Functions

3.1 The functions of statutory undertakers cover such matters as the provision of energy, transport services and infrastructure in the UK. As such, extensive land holdings are required to ensure the capacity to deliver relevant services to provide for both current and future infrastructure needs.

3.2 Major ports in the UK provide a classic example of these needs. The UK ports industry is the second largest in Europe in terms of total tonnage, about 500 million tonnes per year, and annual international passenger throughput of about 25 million. It is estimated that 130,000 people are directly employed by the UK ports industry, 95% of the UKs international trade is handled through UK sea ports and the ports are key components in the national economy.

3.3 Ports have been identified by Government (for example, in the Eddington Transport Study and National Policy Statement for Ports) as key drivers of economic growth. The key strategic importance of ports to the national economy must be given full and proper recognition. This is also the case for other key infrastructure such as road, rail and air.

4. Parliamentary Protection

4.1 The Secretary of State in his comments on the reform of special parliamentary procedure during the second reading of this Bill on 5th November 2012 stated that the Bill retains "..safeguards for land with genuinely "special" historic and parliamentary protection, such as National Trust and common land."

4.2 Land belonging to statutory undertakers is at least equally deserving of parliamentary protection as the examples mentioned by the Secretary of State. Indeed in economic terms, for the reasons which have been set out above, such land is even more deserving of such protection.

4.3 DCOs which seek to authorise compulsory acquisition of land belonging to statutory undertakers are considered first at an examination in public by the National Infrastructure Directorate, which is part of the Planning Inspectorate. While it is correct that the final decision on the compulsory acquisition of land under a DCO normally rests with the Secretary of State, Parliament should still be the ultimate safeguard in relation to the compulsory acquisition of land under the operational control of statutory undertakers because issues which are of vital importance to the economic interests of the UK have to be properly taken into account.

4.4 Those economic interests are of such overriding national significance as to outweigh any potential detrimental consequences of the assessment of a DCO project being elongated by appropriate and justifiable further scrutiny.

5. Conclusion

For all of these reasons, it is submitted that he Bill should be amended so that the words "..or statutory undertaker.." in Clause 19(1) are deleted.

November 2012


[1] The term ‘statutory undertakers’ in the context of Special Parliamentary Procedure under the Planning Act 2008, is defined in s 127(8) as having the meaning given by s 8 of the Acquisition of Land Act 1981 and also includes the undertakers which are deemed to be statutory undertakers for the purposes of the ALA 1981 by virtue of another enactment or which are statutory undertakers for the purposes of s 16(1) and (2) of the ALA 1981. The definition of ‘statutory undertakers’ in s 8 of the ALA 1981 extends to the operators of any railway, light railway, tramway, road transport, water transport, canal or inland navigation undertaking; any dock, harbour, pier or lighthouse undertaking; any undertaking for the supply of hydraulic power; the Civil Aviation authority; a person who holds a licence under Chapter 1 of Part 1 of the Transport Act 2000 to the extent that the person is carrying out activities authorised by the licence; and a universal service provider of a universal postal service.

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Prepared 1st December 2012