Draft Infrastructure Planning (Business or Commercial Projects) Regulations 2013
The Committee consisted of the following Members:
Ainsworth, Mr Bob (Coventry North East) (Lab)
† Birtwistle, Gordon (Burnley) (LD)
† Blackman-Woods, Roberta (City of Durham) (Lab)
† Boles, Nick (Parliamentary Under-Secretary of State for Communities and Local Government)
† Bridgen, Andrew (North West Leicestershire) (Con)
† Cox, Mr Geoffrey (Torridge and West Devon) (Con)
† Freer, Mike (Finchley and Golders Green) (Con)
† Gyimah, Mr Sam (Lord Commissioner of Her Majesty's Treasury)
† Hamilton, Fabian (Leeds North East) (Lab)
† Jones, Susan Elan (Clwyd South) (Lab)
† Leech, Mr John (Manchester, Withington) (LD)
† Roy, Mr Frank (Motherwell and Wishaw) (Lab)
Roy, Lindsay (Glenrothes) (Lab)
Simpson, David (Upper Bann) (DUP)
† Tomlinson, Justin (North Swindon) (Con)
† Weatherley, Mike (Hove) (Con)
† Whittaker, Craig (Calder Valley) (Con)
Elizabeth Bolton, Committee Clerk
† attended the Committee
Third Delegated Legislation Committee
Tuesday 10 December 2013
[Mr Jim Hood in the Chair]
Draft Infrastructure Planning (Business or Commercial Projects) Regulations 2013
2.30 pm
The Parliamentary Under-Secretary of State for Communities and Local Government (Nick Boles): I beg to move,
That the Committee has considered the draft Infrastructure Planning (Business or Commercial Projects) Regulations 2013.
It is a great pleasure to serve under your chairmanship, Mr Hood. I am grateful to Members of this House who have taken an interest in the Government’s proposal to extend the infrastructure planning regime to business and commercial development as an option for developers.
The change was debated thoroughly in this House during the passage of the Growth and Infrastructure Bill. During the evidence sessions held at the start of the Bill’s passage, the Confederation of British Industry and the British Chambers of Commerce expressed support for the Government’s proposal. The CBI highlighted that research and development industries could see the scope for using the infrastructure planning regime, and said:
“those kinds of developments are very much in Britain’s interest not only from a local point of view in creating local jobs, but in terms of driving growth and developing Britain’s industrial strengths.”––[Official Report, Growth and Infrastructure Public Bill Committee, 13 November 2012; c. 35, Q81.]
The Growth and Infrastructure Act 2013 offered business and commercial projects the new option of using the nationally significant infrastructure planning regime. It enabled regulations to be made setting out the types of projects that could benefit from that route. The Government carried out a consultation last winter to inform the detailed design of the regulations. We received over 100 responses, which have enabled us to refine our approach and reflect the views of interested bodies. The Infrastructure Planning (Business or Commercial Projects) Regulations 2013 therefore prescribe the types of business and commercial projects that will be able to use the infrastructure planning regime. I should point out that the regulations do not place any additional burdens on business, but simply open up the streamlined infrastructure planning regime as an option for nationally significant business and commercial schemes.
Increasing the speed and certainty of the planning regime is vital to our economic growth. The Government have made significant strides in simplifying and speeding up the planning system with the new national planning policy framework, which was published in 2011, and with streamlined planning guidance. We have also introduced a number of important legislative changes, in the Localism Act 2011 and the Growth and Infrastructure Act, which will speed up the planning process and support the creation of jobs and new homes.
This measure responds to concerns about a decline in the speed with which local planning authorities determine large-scale major commercial and industrial applications. Over the five years from 2008-09 to 2012-13, the proportion of large-scale major applications that were determined within 13 weeks fell from 68% to 53%. Delayed decisions result in additional costs and uncertainty for developers and communities. Even more importantly, they delay much-needed new investment and jobs.
In response to those concerns, the Government announced our intention to extend the nationally significant infrastructure planning regime to business and commercial projects as an option for developers. The infrastructure planning regime allows for a single consent regime, which is useful where multiple consents are required, and a streamlined process for considering applications. The regime also offers other benefits to developers, including statutory timetabling of a maximum of one year from the start of examination to a decision. It also removes the potential for call-in or appeal.
By offering a new, streamlined option for the determination of business and commercial projects, we are providing a way for important projects to be built more quickly and to provide a crucial boost to the economy. The regulations therefore enable business and commercial development, including offices, research and development, industrial processes, storage or distribution, conferences, exhibitions, sport, leisure and tourism, to benefit from the option of using the infrastructure planning regime. Projects that include housing will not be able to use that route.
Perhaps it would assist hon. Members if I briefly explained how the regulations will work in practice. If a developer wants their business or commercial project dealt with though the regime, their first step will be to make a written request to the Secretary of State for Communities and Local Government to use the regime. The Secretary of State will then make a direction for the application or proposed application to be determined through the regime, if he is satisfied that the project both falls within one of the prescribed types of project and is nationally significant.
To assist developers, the Government have published a policy statement that sets out the factors that the Secretary of State will take into account in considering whether a project is nationally significant. That policy statement is published alongside the draft regulations and is available in the House of Commons Library. When taking these decisions, the Secretary of State will carefully consider all relevant matters concerning national significance, including whether the project is likely to have a significant economic impact over a period of time and whether it will create jobs, generate new investment and impact on the local and national economy. All those factors would be taken into account.
Andrew Bridgen (North West Leicestershire) (Con): Will the Minister confirm whether the regime will cover the strategic rail freight interchange planned to the north of East Midlands airport? That £400 million private sector investment is set to create 7,300 new jobs in my constituency.
Nick Boles: I thank my hon. Friend for his question. Whether a project is eligible will depend on its scale, but it is certainly the case that strategic rail freight interchanges can be of a scale that means they count as nationally
significant. The promoter would therefore have the option—it is important to understand that it is only an option and that they do not have to take it—of using the regime.The Secretary of State will also take into account the physical size of the project and its importance to the delivery of a nationally significant infrastructure project or other significant development. That could potentially benefit a complex mixed-use business development. Physical size alone will not be the single determining factor of significance.
Once a direction is given, the project will need to comply with the requirements of the nationally significant infrastructure planning regime. Those requirements include comprehensive pre-application consultation with the local community, local authorities and statutory consultees, so that the proposals take into account the views of the local community at an early stage. I underline that the regime does not in any way reduce the role or opportunity for local people, communities and councils to state their views on a proposal. The local authority also plays a vital role in the infrastructure planning regime through preparing a local impact report, which sets out the likely impact of the proposed development on the authority’s area, and representing the views of its community during the pre-application and examination stages.
I believe that Members from all parts of the House agree on the need to support new investment and jobs. That is why we have acted to extend the benefits of the streamlined infrastructure planning regime to business and commercial development, helping to support delivery of the most significant business and commercial projects and the creation of new jobs. The regulations provide an optional route for developers of potentially nationally significant business and commercial projects and support our wider plans for driving economic growth.
2.39 pm
Roberta Blackman-Woods (City of Durham) (Lab): May I say what a pleasure it is to serve under your chairmanship again, Mr Hood?
As the Minister said, we had extensive discussions in Committee about the matters before us today. He will know that the Opposition have no real objection to the regulations or indeed to the primary legislation to which they relate, section 26 of the Growth and Infrastructure Act 2013. However, we need to ask several questions, which we hope the Minister will be able to answer.
In Committee, we noted the existence of the consultation exercise that the Government were undertaking to determine what “nationally significant” was likely to mean in the context of the regulations. The final version of the legislation is not substantially different from that which was in the consultation exercise. It is interesting to note in passing that the Secondary Legislation Scrutiny Committee in the other place commented on the fact that the consultation exercise was run over a six-week period that included Christmas, which was not an example of best practice. The Minister might want to consider that.
When the regulations were being debated in the other place, Baroness Stowell noted:
“The infrastructure planning regime offers a number of potential benefits to developers, including statutory timetabling of a maximum of one year from the start of the examination to decision and
removing the potential for call-in or appeal. These features could provide important benefits to developers of the most significant business and commercial projects.”—[Official Report, House of Lords, 2 December 2013; Vol. 750, c. GC12.]In addition, she said that the new regime might help developers to access funding. Broadly speaking, we agree with that approach. As Baroness Stowell said:
“By offering a new, streamlined option for the determination of these business and commercial projects, we are providing a way for these important projects to be built more quickly and provide a crucial boost to the economy.”—[Official Report, House of Lords, 2 December 2013; Vol. 750, c. GC12.]
We spent much time in Committee debating whether planning is a brake on growth, and I do not want to rehearse those arguments again. I accept, as does my noble Friend Lord McKenzie, that the regulations flow from primary legislation, so they are, to a large extent, a fait accompli. It remains to be seen whether in practice they will provide a better way forward for business and commercial projects, and the setting in which they end up, than does the system currently at developers’ disposal. I think it is probably worth a try.
Baroness Stowell and the Minister have highlighted the areas that are seen as relevant: offices, research and development, industrial processes, storage or distribution, conferences, exhibitions, sport, leisure and tourism. I will make some points shortly about the inclusion of some of those areas, but I think there is a general problem with the Government’s approach. The Planning Act 2008 envisaged that a national policy statement would sit alongside the national infrastructure regime, so a project related to energy, for example, would be covered by the national policy statement on energy. After the extension to business and commercial projects, however, no such national statements will be put in place. Will the Minister explain why the Government have rejected the national policy statement approach? Was the statement issued by the Department on the same day as the regulations supposed to be the national policy statement? The Opposition are a bit confused.
There is a real danger that if the Minister is not careful, development may end up in the wrong place. For example, warehousing might be placed near an area of outstanding natural beauty. Will he comment on how he intends to avoid such disasters? Has he considered giving special protection to areas of outstanding natural beauty and sites of special scientific interest?
The regulation requires the Secretary of State to make a direction for the application or proposed application to be determined through the national regime if it is one of the prescribed projects and is nationally significant. It will be judged by criteria set in the policy statement accompanying the regulations. We are told that he
“will consider all relevant matters, including: whether a project is likely to have a significant economic impact, or is important for driving growth in the economy; whether a project has an impact across an area wider than a single local authority area; whether a project is of a substantial physical size—further details are set out below”—
indeed they are, but I will not go into them now—
“or whether a project is important to the delivery of a nationally significant infrastructure project or other significant development.”
We are also told that he will reach a decision on any request on the basis of the information provided by the developer.
A number of questions arise from that. What happens if the information given by the developer is wrong? If a decision is made on that basis, can it be overturned? If a project is deemed to be large enough to be included in the national regime—I understand that size is not the only issue—but is then reduced in size through the consultation process, will that be removed and sent back to the local authority?
That situation was addressed to an extent by Baroness Stowell in the other place. During the consultation exercise, she said that the local authority would be charged with representing the views of the local community during the pre-application and examination stages, and that that could allow for the planning application proposals to be refined. Of course, there is also the possibility that they could be changed substantially, yet the documentation does not appear to tell us what will happen in those circumstances. In the policy statement, the system appears to rely too heavily on the Secretary of State’s discretion. We need to be clearer about the decision-making basis.
I am pleased that the Minister listened to the points that we and others made in Committee and decided to exclude the workings of peat, coal, oil and gas from the regulations. Many were rightly concerned about open-cast mining falling within the regulations’ remit. There remain, however, concerns about quarrying and the fact that mining for aggregates remains within the new regulations. I would be interested to hear why the Minister felt that mining for coal should be removed, but mining for aggregates should stay.
We also wonder why tourism was included in the list that the Minister and others gave us. It would be good to hear what is meant by that. Will he give us examples of projects that might fall under the tourism heading?
The Minister said that all housing had been excluded from consideration by the national regime. Many office developments, particularly large ones, have a degree of housing within them, with penthouses or upper floors being reserved for residential accommodation. I think I understand, from what he said, that they will be rejected by the national regime. Does that not significantly reduce the circumstances in which the legislation can be applied? Perhaps that requires further consideration, especially as the policy statement says that the regulations have been framed to allow a degree of flexibility, so that mixed-use developments can come forward. It seems that a huge number of mixed-use developments will be excluded by the total exclusion of housing. I do not want the Committee to get me wrong: I am not suggesting that housing projects be dealt with under the regime, but I wonder whether a tiny percentage should be included to enable, for example, a large mixed-use development to be addressed.
There is nothing to suggest that the Secretary of State will involve local authorities in deliberations about whether to include an application in the national infrastructure regime. Indeed, in the context of deliberating with local authorities—or not—will any notice be taken of the local plan and the consultation on which it is based? Will that be considered when the Secretary of State makes a decision about a referral to the national regime? I understand that a new consent service unit has been established with the task of improving co-ordination and communication among the Planning Inspectorate,
applicants and consenting bodies. It would be useful to know how large that will be, and how many people are expected to work in it. If a lot more applications are to go through the national regime, does the system have enough resources to cope with the uplift in activity?The Growth and Infrastructure Bill Committee discussed for a long time how helpful it would be for the Secretary of State’s decision about whether to accept an application under the national regime to be set out in writing, with clear reasons given. It would be enormously helpful if the Minister could address that.
2.52 pm
Nick Boles: I am grateful to the hon. Lady for her questions, which are always pertinent. I am always in awe of her ability to dissect these matters without the help of the team of fantastic officials I have. She started by questioning whether the six-week consultation that included the Christmas period was appropriate, or, rather, relayed a concern that had been expressed in the other place. I would not presume to comment on her Christmas plans, but I certainly find that after the third “Two Ronnies” repeat, the time for looking at something else is definitely available over the Christmas period. I am therefore not sure whether Christmas itself makes a six-week period not good enough for an adequate consultation.
The hon. Lady asked—as she did on the Growth and Infrastructure Bill Committee, so she is being entirely consistent—about the need for a national policy statement and why, when there is an expectation of national policy statements for other applications going through the nationally significant infrastructure regime, there would not be for the new categories. The answer remains as it was in the Bill Committee: we do not believe that a specific national policy statement is needed for two reasons. First, national policy statements tend to relate to a specific sector, usually an infrastructure sector. The hon. Lady will know that we have recently published a national policy statement for transport networks, and that there are others for different energy sectors and the like, whereas, by definition, the term “business and commercial projects” captures a great range of activities.
The second reason, however, is perhaps more important. We would not want to undermine the importance of either the national planning policy framework or the local plan in providing a policy basis for decisions on applications. It is important to underline that just because an application might go through the regime if it passes the “nationally significant” test, that does not mean that somehow the local plan is no longer an important policy basis for the decision. It is just as important as it would be if the local authority itself were taking the decision. We believe that the national planning policy framework and the local plans provide a sufficient policy basis for the applications that would take that route.
The hon. Lady asked about the risk of developments happening, as she put it, in the wrong place, close to AONBs, SSSIs and other protected land. In a sense, the answer to that is related, in that the protections for AONBs and SSSIs in the national planning policy framework would apply just as strictly to a decision made on an application taking the national route as it would to any application going through the local route.
I do not think that there is any reason to fear that somehow more developments in an inappropriate place would be liable to receive consent if they took the national route.The hon. Lady asked a very interesting question—one that I entirely admit I had not given an enormous amount of thought to, although I know that officials have—about what would happen if the developer applied for one thing, got the Secretary of State’s approval to have it considered to be nationally significant, and then moved the goalposts. There is less of an issue with the developer providing misleading information, because in consultation with the local authority, it should be pretty easy to flush out what in fact is being proposed, but it was interesting when the hon. Lady asked what would happen if the developer wanted to change the application dramatically. The answer, in a sense, is that it would not be very different from what happened in other circumstances. If you are changing your application dramatically—more than just on the very margins—it is a new application, and it will have to be considered afresh. If you want to take it through the route that we are discussing, you will have to make a new application to the Secretary of State. It is not that somehow you can get through the gate with one application and then completely reform it.
The Chair: Order. I thank the Minister for speaking directly to me, but I am not very much interested in the questions asked by the hon. Member for City of Durham. You have used “you” about five times, Minister. I let you off the first one; I might even let three go, but I ask you not to refer to me.
Nick Boles: I certainly would not presume to suggest that you are interested in the finer detail of planning regulations, Mr Hood, because frankly, I am not even sure whether I was before I was given this job. When I said “you”, I meant “one”, rather than you, Mr Hood, but I will try to correct my language. In this case, there would be no risk of an abuse of the system, and an abuse of the Secretary of State’s gate-keeping in approving an application as nationally significant.
Roberta Blackman-Woods: I am grateful to the Minister for giving way. Will he clarify who will decide that an application has changed so much that there will have to be a new application?
Nick Boles: If the hon. Lady allows me some in-flight refuelling, I will definitely answer that question. In the meantime, I will move on to the next, very good question that she asked. She suggested that the decision to accept an application as nationally significant relied too much on the discretion of the Secretary of State. The statement is clear about the criteria. The more that the Secretary of State creates a formula, the less likely it is that there will be a flexible system, and the more likely it is that applications will, effectively, not be captured when they should be. The key point to remember is that any decision by the Secretary of State could be challenged in the courts if it were thought that somehow the discretion had been unreasonably applied.
The hon. Lady welcomed the exclusion of open-cast mining for peat and coal from the regulations, and asked why the essentially not very different activity of mining for aggregates was nevertheless allowed. That was simply in response to consultation responses. There was a very strong welcome for the idea of including quarrying for aggregates, but there was great concern, as she said, about open-cast mining, and we have responded to what we heard in the consultation.
The hon. Lady then returned to a subject that received quite a lot of debate in the Growth and Infrastructure Bill Committee: the question of why residential applications were entirely excluded. She is right that there may occasionally be a development with just a caretaker’s flat and no more residential provision, but it is nevertheless a fundamental principle of the Government that plans for provision of housing are the responsibility of local authorities. There is an intensely local process of decision making, and we do not want to undermine it. We do not want in any way to give a green light that seems to suggest that you can sneak in a bit of housing if you wrap it up in something else; a developer might choose to do that. I am very sorry, Mr Hood; I am not yet managing to obey your strictures fully.
Finally, the hon. Lady asked about the local plan and whether it is relevant to the determination of whether an application is considered to be nationally significant. The answer is absolutely yes. It is a relevant consideration. It is not necessarily one that would overwhelm the other criteria, but it is absolutely relevant. I wanted to return to the hon. Lady’s question about what happened when a proposal changed its scale. The answer is that if a project were to change scale dramatically, the direction would no longer apply. It would apply only to the specific project originally proposed. I imagine that she would then say, “Well, who decides whether the change is significant?” That will have to be a judgment by the Secretary of State. I should like to be clear about this: we are creating this opportunity for genuinely nationally significant projects. We do not want it to be used as a way to evade a local plan process. If any changes are proposed, we will judge very strictly whether the criteria have still been met.
I conclude by reminding all hon. Members that this is in no way a compulsion on developers. It is simply an option. It may well be that very few applications go through this route. Often, developers prefer to go through the local authority route because that is where the relationships are, and it is the local authorities that they will have to deal with once the development is constructed. However, there may be cases where this route would make sense, and where local authorities feel that they do not have the resources in their planning department to deal with an unusually significant application. We therefore believe it is right to create this option.
That the Committee has considered the draft Infrastructure Planning (Business or Commercial Projects) Regulations 2013.