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Baroness Miller of Chilthorne Domer: My Lords, the amendment enables us to continue with an interesting discussion in Committee. I agree with the noble Baroness that a number of issues are involved. However, I have some misgivings about the amendment.

Compensation for the fishing industry is complicated considerably by the effect of the future of the common fisheries policy. Without doubt there will be established no fish zones, a limit on days fished and so forth. It is difficult to see how the compensation clauses in the Bill will fit in with that. That is a question which the Government may want to address.

Furthermore, as a supporter of renewable energy, there are arguments for the establishment of wind farms being in the public interest. The same argument could be run in terms of public access issues. In any case the arguments are not cut and dried. I think that everyone is agreed that the overriding public interest here must be to try to combat climate change.

On 18 March the Government sent a helpful reply on the issue of compensation stating that it would be tailored to each renewable energy installation and that the DTI would work with the fishing industry to establish in what circumstances fishing vessels could safely enter a safety zone, whether on size of vessel, type of fishing activity and so forth. That is a helpful and practical approach.

However, in the penultimate paragraph is an issue which I should like the Minister to clarify. The Government state that:

Given that the right to have a safety zone rests with the Secretary of State, as I raised with the Minister, and that it is by no means clear that all the applications for a safety zone would be granted, that raises two issues. First, who is liable if the application is not granted? Secondly, if it is granted, the Secretary of State thereby takes responsibility for the fact that that zone is necessary. As I have just quoted, it is up to the commercial judgment of the developer whether to give compensation. Surely, that is very curious and is a matter which in any case should be decided in this House and another place rather than left to the commercial judgment of the developer.

Lord Jenkin of Roding: My Lords, I should like briefly to follow the comments made by the noble Baroness, Lady Miller of Chilthorne Domer, and then

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to come back to the question of fishing. This is why I was rather keen to establish from Ministers that we are not talking just about little rings on the chart but about significant areas, from which fishermen, trawlers in particular, might need to be excluded. One comes back to the question of compensation for that.

I have re-read the debate held in Grand Committee and I understand the point then made by the noble Lord, Lord Whitty, that this is primarily, or at least in the first stage, a matter as between any fisherman likely to be affected by a proposal put by a developer, and the developers. Indeed, if there were a case for compensation for the fishermen, it would be for the developers to agree that before going ahead.

The noble Lord, Lord Whitty, also recognised that there may be cases where the developers are reluctant to agree to pay compensation yet where compensation may be necessary. However, my noble friend Lady Miller of Hendon failed to get from the Minister what would happen then. The noble Lord said that they might consider that as a reason for refusing consent to the developer. That would be a fairly extreme case. There might well be cases where, because of a traditional fishing ground for fishermen who have fished there for some time, it would be perfectly reasonable to grant permission for the development but to compensate the fishermen for being kept off their traditional fishing grounds.

The reason I raise these issues is because of the substantial report published by the Royal Society of Edinburgh—I declare an interest as an honorary fellow, of which I am very proud—which has considered the whole question of the future of the Scottish fishing industry. As noble Lords will know, the largest proportion of the fishing industry in the United Kingdom is in Scotland. As has been said, and was certainly said in Grand Committee, many other factors currently affect the fishing industry. It is not right for us to go into those today. However, paragraph 11 of Chapter 1 states:

    "In the whitefish sector, there has been a collapse in profitability as a result of quota restrictions. Although it catches a diversity of species, its difficulties have been dominated by cod and haddock".

It goes on to talk about the decline both in landings and employment.

If one is to find in addition an exclusion from what has hitherto been regarded as profitable fishing grounds because of the construction of a wind farm, it seems to me that in those circumstances the Bill should include a right to compensation. As I read my noble friend's amendment, it should cover compensation for that loss of fishing. I should like the Minister to confirm that that would, indeed, be the case and then to try to justify why that should not be put into the Bill. As the noble Lord, Lord Greenway, stated, there is no doubt that the fishing interests are considerably worried by what could happen to them as a result of the substantial expansion of wind farms in their traditional fishing grounds.

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It is not enough simply to rest this on the question of getting an agreement between the developer and the relevant fishing industry. The fact of the matter is that it could be a very unequal bargain. The developers are sometimes very large and powerful companies, and the fishermen, as is shown in this report, are often quite small partnerships of individuals who run their boats as individuals. To expect a fair result from that could be very difficult. So, it seems to me that there is a case for writing into the Bill a clear right to compensation for fishermen who are excluded from traditional fishing grounds as a result of developments given under consents by the Secretary of State. I hope that we shall get a very clear statement from Ministers that that will indeed be the case.

7.30 p.m.

Lord Whitty: Well, my Lords, I am sorry to disappoint the noble Lord, Lord Jenkin, again, and indeed the noble Baroness, Lady Miller. My understanding of the legal position, based on what I regard as good legal advice, remains the same.

I shall deal with the basic legal point first. We are talking about a public right of navigation. I shall turn in a moment to the special case of fishermen. The public right of navigation is in normal parlance and in English legal experience not a possession in the normal sense of the word. The noble Lord, Lord Kingsland, in a previous debate was clearly right that possession is an autonomous concept—that is, that Strasbourg can make up its mind at any given time about what is and what is not a possession. But it seems fairly unlikely that a public right of navigation would be regarded as a possession.

As the noble Baroness rightly pointed out, I said that—as lawyers frequently do, although I am not a lawyer—even if I am wrong on that and the public right of navigation were to be found to be a possession, the question would be whether its extinguishment is a deprivation or control of use, which is the more accurate situation in this case, and whether that would amount to a control of use for which compensation would be appropriate.

On the public right of navigation, we are talking about a restriction, which, if we have a turbine site with 200 or so turbines, relates to quite a sizeable turbine site. I think that there have been some serious problems in the course of today's debate, and to some extent in Grand Committee, between the zone—the site, which is awarded for exploration and other purposes to the contractor—and the actual installation, which would be substantially smaller. Even the biggest installations would leave plenty of space for most navigation channels to be achieved. Clearly, if installations threatened that achievement that would be a major factor in whether the consent was given in the first place. A turbine that was blocking the Humber, the Mersey or whatever, would be a major consideration that the Secretary of State would have to take into account before he granted the consent in the first place. I think the restriction would be pretty limited and therefore the

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degree of deprivation, which could be established in terms of commercial loss, would be fairly small in relation to the rights of navigation as such.

Therefore, I think it is extremely unlikely that any court would find that any compensation was appropriate in those circumstances. That is why I think the Bill as it stands remains in conformity with the European Convention on Human Rights.

In relation to the case of fishing, on which we had a separate debate in Grand Committee, the two issues have now become slightly elided. Clearly, a traditional fishing ground may or may not be a main channel of navigation in the sense of commercial traffic from fishermen, whether they are lobster or inshore fishermen. That might actually be a serious problem for them.

In those circumstances, compensation may or may not be appropriate. That situation is essentially no different—to answer the point made by the noble Baroness, Lady Miller, and supported by the noble Lord, Lord Jenkin—from a road scheme, where if a developer comes forward with a proposition which would effectively cut off the garage from access to the road, normally part of the deal is that compensation is paid to that garage owner, either by giving him a different site or by paying him cash. Those kinds of deals would no doubt be part of the development process. Either there will be a negotiated deal to the fishermen affected, if they could establish a reasonable case, or it could be—as I think I said in response to the noble Lord, Lord Jenkin, in the earlier debate—that one of the conditions of the consent was that such compensation should be paid.

Should the developer be less than willing to offer such compensation there could be an intervention, which effectively ensured that the developer did pay such compensation. As a former roads Minister, I have to say that that is not unknown in relation to developers of road schemes.

So, I think the principle is well established. It is not written in legislation but is part of development law and practice in general terms. Of course whether or not the fisherman actually suffered a loss is hugely complicated by the wider issues touched on by the noble Lord, Lord Jenkin, and the noble Baroness, Lady Miller, in relation to whether we are restricting fishing for other purposes, and whether or not that could actually be a benign proposition if they have moved away from one fishing site. That would have to be argued case by case. In other words, there could be situations where part of the developing consents, either voluntarily or as a condition of that consent, would be compensation. I do not think it is sensible for the Bill to provide for a general system of compensation.

I do not think that the limit of the right of navigation would give rise to compensation, and I think the situation of fishermen, and potentially others, would be dealt with in the same way as it is dealt with in other planning situations. I therefore do not think that we would need a scheme of compensation written in these terms into the Bill.

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