THIRTIETH REPORT
30 July 1998
By the Select Committee appointed to report whether
the provisions of any bill inappropriately delegate legislative
power, or whether they subject the exercise of legislative power
to an inappropriate degree of parliamentary scrutiny; to report
on documents laid before Parliament under section 3(3) of the
Deregulation and Contracting Out Act 1994 and on draft orders
laid under section 1(4) of that Act; and to perform, in respect
of such documents and orders, the functions performed in respect
of other instruments by the Joint Committee on Statutory Instruments.
ORDERED TO
REPORT—
PROPOSAL FOR THE DRAFT DEREGULATION (PIPE-LINES)
ORDER 1998
INTRODUCTION
1. This proposal,[1]
which was laid before Parliament on 15 June 1998, amends the Pipe-lines
Act 1962. The amendments relate to four proposed changes discussed
below. The 1962 Act regulates on shore pipe-lines in Great Britain,
except those of public gas transporters, water companies, the
Crown and some minor classes of pipe-line. The Act creates two
categories of pipe-line. "Cross country" pipe-lines
(exceeding 10 miles) require a pipe-line construction authorisation
(PCA) from the Secretary of State. A PCA carries deemed planning
permission. "Local" pipe-lines (not longer than 10 miles)
must be notified to the Secretary of State and require local authority
permission under the general planning legislation.
BURDEN AND
NECESSARY PROTECTION
(i) Written procedure for PCA applications
2. An applicant for a PCA has to publish
notice of his plans and serve notice on the local planning authority,
relevant landowners, etc. If there are objections the PCA cannot
be granted unless they are resolved by negotiation (and withdrawn)
or they have been heard by an Inspector in public. The proposal
is to allow the Secretary of State to choose to employ a written
representation procedure unless an objector does not agree to
this.
3. This proposal removes a burden
on applicants for a PCA. The Department estimate that the use
of written representations would save the applicant £20,000
to £40,000.
4. An objector can still insist on a public
hearing. An applicant can only object to the written procedure
being used if the Secretary of State proposes to use it after
embarking on the process of an inquiry or hearing. The Committee
has borne in mind the facts that all those who responded (including
those representing the interests of possible applicants) broadly
welcomed the proposal and that at present inquiries and hearings
to hear objections to applications under section 1 of the Pipe-lines
Act 1962 are rare since objections tend to be withdrawn following
negotiation between the parties. Applicants are also likely to
welcome the written procedure, since it is intended to be easier
and cheaper to use than an inquiry or hearing. The Committee therefore
considers that no necessary protection would be lost by
either an applicant or an objector to this part of the proposal.
5. The only doubts expressed during consultation
related to the absence of any criteria for the exercise of the
Secretary of State's power to determine the procedure. The Department
argue it is not possible to set out specific criteria and that
no necessary protection will be lost if the matter is left to
the Secretary of State's discretion. The Committee agrees with
this approach.
(ii) Repeal of section 2 (notification to
Minister before work begins)
6. Section 2 requires the Minister to be
notified not less than 16 weeks before work begins on the construction
of a pipe-line. Repeal is proposed because the Department makes
no use of the notification.
7. In the view of the Committee, this is
the smallest of burdens but its disuse provides the strongest
of cases for removing it. The aim behind section 2 was to allow
the Department to give notice of safety requirements under the
Act (safety is now ensured under other legislation) and to enable
the Department to consider whether the grant of any rights on
street or river works consent was necessary before construction.
The Department makes no use of the notification as it is up to
the applicant to obtain rights or consents from the appropriate
bodies or persons. The Committee concludes that there is thus
no loss of necessary protection. There were no dissents
during consultation.
(iii) Repeal of section 7 (supplementary
provisions)
8. The effect of section 7 is to apply section
1 of the Act to those who wish to join together existing pipe-lines
or to extend an existing pipe-line if, in either case, the result
is a pipe-line more than 10 miles long. The result of the repeal
is that the Act will apply to the proposed new pipe-line according
to its length without the addition of the length of existing pipe-lines
to which it will connect.
9. There will be a reduction of the burden
on the applicant if the new pipe-line is not more than 10 miles
long as he will not need a PCA.
10. The Explanatory Memorandum discusses
the concerns of respondents concerning necessary protection
and argues that no necessary protection would be lost because
the applicant would have to obtain planning permission and obtain
easements from the owners of the land through which the pipe-line
would pass.[2]
11. The Committee noted that in response
to the consultation exercise the Country Landowners Association
said that it thought promoters might prefer to use the PCA procedure
(see paragraph 62 of the Explanatory Memorandum). The consultation
process does not appear to have discovered objections based on
the loss of necessary protection, though the Explanatory Memorandum
reveals complex concerns about the proposed repeal of section
7. These concerns are set out in paragraphs 61 to 78 of the Explanatory
Memorandum.
12. The Committee sought—and received—written
reassurance from the Department on the question whether the requirement
to obtain a PCA imposed any requirement which could be seen as
necessary protection but would not be replaced by equivalent protection
under the alternative procedure (obtaining planning permission
and negotiating easements).[3]
(iv) Repeal of section 3 (diversion of pipe-lines)
13. Section 3 requires a pipe-line diversion
authorisation from the Secretary of State if a cross-country pipe-line
is diverted outside the corridor of 200 metres either side of
the median line proposed in the PCA for the original project.
The section also requires such an authorisation if a diversion
to a local pipe-line makes its total length more than 10 miles.
The result of repeal would be that any diversion would be treated
as a new pipe-line and would require a PCA only if the length
of the diversion exceeded 10 miles (this is the case only if section
7 is also repealed).
14. The Explanatory Memorandum (paragraph
33) says that the applicant would not have to prepare a full application
for a pipe-line diversion authorisation but only a planning application
"which should be more straightforward". In the view
of the Committee this is just sufficient to amount to a reduction
in a burden.
15. On necessary protection the issues
are similar to those in relation to the repeal of section 7 and
the Committee is satisfied that necessary protection would be
maintained. The Explanatory Memorandum deals with the issue in
paragraphs 34 and 35 and there is also relevant material in the
section on consultation (see paragraphs 79 to 81).
16. The Committee concludes that each
aspect of the proposal would remove a burden, and that necessary
protection could be maintained by each aspect of the proposal.
CONSEQUENTIAL AMENDMENTS
17. The proposal contains a number of amendments
consequential upon the main provisions. These are outlined in
paragraphs 86-100 of the Explanatory memorandum and concern provisions
relating to information, non-proliferation/third party access,
and emergency works.
18. The Committee considers that all the
additional amendments proposed can be said to fall within section
1(4)(b) of the Deregulation and Contracting Out Act 1994 ("such
modifications .... as .... are consequential upon, or incidental
to, the amendment or repeal of the relevant enactment"—ie
the enactment that imposed the burden which is to be removed or
reduced).
CONSULTATION
19. The first consultation paper was issued
on 7 February 1997 and requested responses by 2 May 1997. As a
result of those responses a second paper was issued on 2 March
1998 requesting responses by 27 April 1998. The lists of those
who were consulted (or volunteered comments) are set out in Annexes
A and B to the Explanatory Memorandum.
20. As has been mentioned above, the proposal
contains a number of amendments consequential upon the main provisions.
These were not included in the original consultation. The Department
has, however, written to all those consulted detailing the amendments
concerned.[4]
21. The Committee is satisfied that there
was adequate consultation on the proposal.
RECOMMENDATION
22. The Committee is satisfied that the
proposal for the Draft Deregulation (Pipe-lines) Order 1998 meets
the requirements of the Deregulation and Contracting Out Act 1994
and is appropriate to be made under it, without amendment.
1 The proposal was laid before Parliament in the form
of a draft of the Order and an Explanatory Memorandum from the
Department of Trade and Industry. Back
2
See paragraphs 19 to 26 of the Explanatory Memorandum. Back
3
The Department's note is printed at Annex A to this Report. Back
4
See Explanatory Memorandum, paragraph 85. Back
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