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Planning Bill

3.51 pm

The Parliamentary Under-Secretary of State, Department for Communities and Local Government (Baroness Andrews): My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.

Moved accordingly, and, on Question, Motion agreed to.

House in Committee accordingly.

[The LORD SPEAKER in the Chair.]

Clause 5 [National policy statements]:

Lord Dixon-Smith moved Amendment No. 41:

41: Clause 5, page 3, line 9, at end insert—

“( ) The policy set out in a national policy statement may not—

(a) identify any location or site as suitable (or potentially suitable) or unsuitable for a specified description of development;

(b) identify any individual statutory undertaker or undertakers as appropriate persons to carry out a specified description of development.”

The noble Lord said: This is so small a group of amendments that it is barely even an hors d’oeuvre for this session of the Committee. However, the two amendments in it raise an important point. They would remove the capacity, spelled out in the Bill, for national policy statements to be site specific. They are probing amendments, because there may be cases where it is appropriate to designate sites—I would be the first to acknowledge that. However, we need to do that with our eyes open.

The first and obvious question is how far, if we designate the sites, we are in effect pre-empting the whole planning process. If we are going to need seven nuclear power stations or reactors and we designate seven sites, is that designation not tantamount to granting permission? Perhaps that is what is intended. Of course, if the Minister can tell me that it is intended that 10 sites will be designated so that the commission has a choice, I will accept that the process is open and satisfactory, but there may be other people who would have concerns should that happen. Even worse would be the case where we knew that there was a demand for 10 sites but only seven were designated, which would leave people dissatisfied.

That is one aspect of the problem. We need also to be aware that any development of a power station is a long-term matter, not just in the process of development but in relation to the life of the power station. Circumstances may well change. I have tabled another amendment, with which the Minister’s noble friend will probably deal later, addressing heat recovery from power stations, but I will introduce the issue now because it is significant.

The electricity generating industry consumes more than 1,100 terawatts of energy to supply customers with somewhat more than 400 terawatts. The figures may have moved up or down since I last looked, but there is no variation in those proportions. Much of that difference is lost in the form of waste heat. We

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expect society generally to become more energy efficient. We see combined heat and power establishments able to work at an energy efficiency in excess of 80 per cent. If you buy a modern condensing boiler, it, too, will have a thermal efficiency of more than 80 per cent. The fact is that our generating industry is working at somewhere around the 40 per cent mark, if it can get that far. Can we afford to run industry at that level of energy inefficiency?

I know that the generators will be shocked when I say that, because the possibilities of using that waste heat have considerable expense attached to them. One obvious way in which to use the heat would be to supply it to communities, but the sort of sites that might be designated for nuclear power stations, in particular, might not be suitable for that because they are all inevitably in rather remote places. Another relevant planning implication is that we may be able to find an industrial use for that heat. However, that has further planning implications outside and outwith the site designation, because it may mean the creation of an industrial estate of some considerable size, given the volumes of energy that we are talking about, in an area where that would not perhaps be judged suitable because of the nature of the countryside and the remoteness of the area.

There are wide implications behind this decision on site specificity—if I can get my tongue around that word. We need to go into this with our eyes wide open, so it is worth discussing. I beg to move.

Lord Boyd of Duncansby: I oppose these amendments. Indeed, my concern is that the national policy statements might not be specific enough in certain respects. As I understand it, the Government have said that both nuclear and aviation will be site specific. I think that that is right. If the national policy statement designates an area for expansion of an airport, for example, or for a new airport, there are a lot of other components to it, particularly transport into the hub that is the new or expanded airport, with railway, road and other services. If the national policy statement is to be the bedrock of our policy and national infrastructure, a certain degree of specificity—I have the same problem as the noble Lord, Lord Dixon-Smith, in saying that word—and site specification is necessary.

The measure is important for two other reasons. It gives a degree of certainty not only to the nation but to communities affected by the national policy statement that identifies that location. In addition, it gives greater accountability to Parliament, because whatever system is used for parliamentary oversight on whether the national policy statement needs the formal approval of Parliament, nevertheless the policy statement will be debated. The identification of sites for infrastructure can be debated in Parliament in a way in which it has never been before, giving a much greater degree of specification, accountability and planning.

My worry is that national policy statements may not be specific enough. I hope that those statements that for various reasons are not site specific are couched in language that is as clear as possible, so as to remove any possible ambiguity. We are all familiar with policy statements that give a nod and a wink in different

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directions. It is vital that the Infrastructure Planning Commission has as clear guidance as possible on what the Government and Parliament wish for their future infrastructure needs.

4 pm

Lord Jenkin of Roding: We touched on this subject on the first day of Committee in the context of the role of the Infrastructure Planning Commission. On that occasion, I said why I thought—and I agree very much with the views of the noble and learned Lord, Lord Boyd—that in some cases site-specific indications would inevitably be in the national policy statement. I will not repeat what I said on that occasion, which I hope is of some relief to the Minister, who is asking us to make a little more progress. I have some sympathy with that, as I do not want to sit here all night. However, my noble friend raised some perfectly valid points and I look forward to hearing the Minister’s reply.

Lord Turnbull: I suspect that, like other Members of the Committee, I am finding it difficult to fathom the game plan of the opposition Front Bench in general on the Bill and on these clauses in particular. Two weeks ago, the leader of the Conservative Party announced a commitment to a big expansion of the high-speed rail network in this country. Surely he must be thinking that, should he ever come to power, it would be extremely valuable to have this Bill on the statute book, as he will not get those plans through with a tinkered-with version of the status quo. Likewise, I do not understand the objection to these clauses. The amendments were introduced by the noble Lord, Lord Dixon-Smith, with his customary moderation and courtesy, but the truth is that, if passed, they would be very damaging to the Bill.

First and foremost, the purpose of this part of the Bill is to reduce uncertainty and unnecessary delay in the planning system. One of the key causes of such delay arises from location—I use “location” rather than “site” because I do not think that “site” appears anywhere in this legislation, although it appears in the amendment. A developer can spend years and millions of pounds pursuing a particular proposal only to find at a very late stage that the location is deemed unsuitable.

Even worse, a developer can find himself caught in what I call the Nirex Fork. In developing its so-called Rock Characterisation Facility, Nirex initially canvassed a range of sites throughout the country, including one in the constituency of the Secretary of State for Energy at the time, which was probably a mistake. Quite naturally, there was uproar throughout the land. As only one of the sites would ever be chosen, much of the uproar was entirely unnecessary. Nirex then tried a different tack, which was to choose a suitable site and to make the case for it. It was rebuffed on the grounds that it had failed to establish whether the site was indeed the best location.

We also need to avoid the mistake made by British Rail in developing the route for the Channel Tunnel Rail Link. It put forward a whole series of options coursing across Kent, none of which was used in the end. The process caused major issues of blight and distress and claims for compensation.

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The noble and learned Lord, Lord Boyd, pointed out that there was a specific request in the other place that in some cases aviation and nuclear power NPSs should be location specific. But there is a misconception that a location-specific NPS would fix the outcome of the examination. That is not the case, because it would identify sites as unsuitable or potentially suitable for development, but would not go so far as to be site or project specific. These proposals need to be taken away as part of a wider rethink of what the Opposition want to get out of the Bill.

Baroness Hamwee: I, too, join the debate on location and site specificity at the start of the Bill. I take the point about the distinction between a site and a location. Nevertheless, appealing to tidy minds as it is to provide the possibility in every NPS of specific locations, that raises the question of the powers of the Infrastructure Planning Commission. That is where I have problems.

The noble and learned Lord, Lord Boyd, mentioned transport in connection with development of an airport. I declare an interest now, as we will come on to airports in more detail later: I live not far from Heathrow, under one of its flight paths, and am affected by ground traffic to the airport, both rail and road. The number of times that the level crossing near my home is down because of the amount of rail transport is extremely frustrating. These things have a knock-on effect a long way down the line.

I still find it almost impossible to understand how the Infrastructure Planning Commission, faced with a national policy statement that says that there will be expansion of an airport—not necessarily Heathrow—and properly going into the implications at ground level, will be able to say no to that application in the real world. Perhaps, however, the problems come at least as much in the powers of the IPC as they do in describing the scope of the NPS.

Baroness Andrews: I am grateful to the noble Lord, Lord Dixon-Smith, for giving us an opportunity to have this debate. It is an extremely important issue. I am also grateful to the noble Lord, Lord Jenkin, for flagging up our Front Bench’s concerns that we make progress. He did so beautifully; far better than I could have done by wagging my finger.

Discussing the two amendments in this group is important to clarify the nature of the debate on the degree of specificity needed within the NPS. Amendment No. 41 of the noble Lord, Lord Dixon-Smith, and the noble Earl, Lord Cathcart, and their Amendment No. 45 with the noble Lord, Lord Jenkin, would alter Clause 5 to remove the discretion of the Secretary of State to identify a particular location or site as suitable, potentially suitable, or unsuitable. They would also remove the discretion to identify an individual statutory undertaker as appropriate to carry out a specified description of development.

I understand that these are probing amendments and hope that I can address all the questions that have been raised. I am conscious that we are bedevilled by terminology and debating a rather elusive concept. We were helped greatly by the panel discussion we had last week, with different promoters and the CBI, about the interpretation of locations in terms of different demands

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and possibilities for different types of infrastructure. The noble Lord, Lord Turnbull, and the noble Baroness, Lady Hamwee, have already drawn attention to the difference between “location specific” and “site specific”.

NPSs are locationally specific and will indicate, as appropriate to the particular infrastructure they are concerned with, places which are suitable or potentially suitable locations for development. However, they will not identify specific sites. It will be for the developer to bring forward the site application, and for the IPC to determine whether that site meets the criteria. It will be left to the IPC to consider the detail of specific sites, layout, access and, of course, to weigh up the adverse impacts of the proposed project. I shall come to the important question of the noble Baroness, Lady Hamwee, on this a little later.

The case for some NPSs to address issues of suitable locations is simply logical. Although I take the point made by my noble and learned friend Lord Boyd, when planning for infrastructure it makes no sense to leave a policy vacuum and to leave the policy in the abstract. Certainly, although NPSs will differ in the detail they can offer about where certain infrastructure may or can go, they will be able to identify places which are unsuitable. I take the point made by the noble Lord, Lord Turnbull, about the way in which we have approached this issue in the past and the chaos and blight that have been caused by some of the ways in which it has been approached.

In their amendments noble Lords argue that it is inappropriate for NPSs to identify a location because this would amount to implied planning permission. It is not planning permission or implied planning permission because planning permission permits development of a certain description to go ahead in a particular location. Even outline planning permission establishes a principle that development can take place in a particular location. To specify a potential location does not establish any such principle, it simply means that a location may be suitable for a certain type of development.

In previous debates we have rehearsed at length the fact that NPSs will provide the primary reference point for the IPC, the strategic framework which draws together and integrates policy. By determining clear and predictable criteria they will also critically provide a clear and predictable framework for investment decisions. For all the reasons that the noble Lord, Lord Turnbull, pointed out, this is what we are all aiming to address. Some NPSs will be more locationally specific than others. Ministers have already given assurances in the other place that NPSs for nuclear and air transport—the two most contentious forms of development covered by the Bill—will be locationally specific. It is at this point of the deliberation that the national debate and the debate on area effects is bound to be most intense. While these national policy statements will exist to address the national need, they will also make it clear that they will be driven by logic dictated by geography, geology and demography, which will mean that certain places are more suitable for some developments than others. Making the reasons for that decision clear is very important as it will mean that the political judgment within which the IPC will in turn take the final decisions over the site has been

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set by Ministers and is subject to scrutiny by Parliament and to public consultation. However, it will be difficult and may not be appropriate to specify locations in all NPSs. The possible range of locations can be very wide for wind farms or gas-fired power stations. The NPS would not only not want to specify location, it would be impossible to cover all the options. This is where the broad areas might be indicated, but local considerations have to come fully into play.

There are other considerations as well. For other types of infrastructure there may be real issues of market flexibility and the ability of the market to respond to demand. Ports would fit into this band. Geography would be bound to narrow choices, but at the same time there needs to be scope and flexibility for market choice as well. If we specified locations which would imply a choice, we would intervene significantly in the marketplace. That could constrain competition, threaten our competitiveness and undermine the security of our energy supply.

As the noble Lord, Lord Turnbull, said, the crucial thing is clarity. In these instances where an NPS cannot be locationally specific we look to provide in the NPS as much guidance as possible to give as much certainty as is possible within all the constraints. Where an NPS does not identify locations as suitable, it will be up to it to provide criteria about suitable locations, which could be based on key physical, environmental and economic conditions, and the impact that might follow from those criteria, and to assess what would be suitable for development of specific types of projects. The NPS will also address the weight given to criteria.

Before identifying particular locations as potentially suitable, however, the Secretary of State must go through a careful process of considering the relevant evidence, involving appraisal of sustainability. He or she must also consult on the proposal, crucially with people in the local area, so that people are informed about the policy, understand the local implications, and have a chance to have their views taken account of before an NPS is designated. Clause 7(5) therefore provides that, where locations are identified, the Secretary of State must ensure that appropriate steps are taken to publicise the proposal, and Clause 8 requires him to consult local authorities in the affected areas about that publicity.

4.15 pm

The noble Baroness, Lady Hamwee, asked whether, when a location-specific NPS has undergone the process, the IPC has any real scope to reject an application. The clear answer is yes, it does. The IPC must balance the national tests with local tests and see how the criteria weigh up. Several tests must be applied and, if the application fails any of these tests, the IPC can refuse consent or, importantly, ensure that mitigating measures are put in place in the final order.

First, the application must be consistent with the NPS. Secondly, the application must not contravene any obligation under international or UK law. For example, applications must be consistent with European directives on air quality and noise, the habitats directive, and so on. Thirdly, the application must be in accordance with any matters prescribed in secondary legislation

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under Clause 101(2)(c). For example, particular types of development might give rise to special considerations by virtue of existing legislation, such as alterations to a listed building.

Finally, the IPC must be satisfied that the benefits of the proposal outweigh the impacts. In determining that, the IPC would have specific regard to the local impacts report from affected local authorities that we made provision for in the other place. It is a question of the IPC listening very carefully and weighing technical, social, environmental and economic evidence about the national interest being served in principle by a piece of infrastructure and the local impact. The IPC must mediate between those two sets of considerations. There will be benefits to most local infrastructure projects, and there will be aspects that need mitigation and which will be problematic. It is the job of the IPC to ensure that that debate is properly held at that point. If the application fails any of those tests, the Bill is clear that the application can be turned down.

On the second amendment, both the amendments would prevent the identification of a particular statutory undertaker as appropriate to carry out a development. We debated this matter on Monday, and I do not wish to detain the Committee unduly with this issue. I simply reiterate that we wish to retain the ability to identify certain developers, such as the Highways Agency or Network Rail, where that would be appropriate, and avoid the unwanted consequence that responsibility for any blight caused by the NPS would fall on the Secretary of State, rather than on the statutory undertaker who would provide the infrastructure and would therefore be expected to purchase the land in due course.

It is an important area of the Bill. I hope that noble Lords are reassured by my response. This was a useful debate, and I hope that the noble Lord will feel able to withdraw his amendment.

Lord Dixon-Smith: I shall just comment on one or two points. The noble and learned Lord, Lord Boyd of Duncansby, in raising the question of aviation, said that the solution has to be related to existing airports. I should not have to remind him that there is at least one person not too far from here who thinks that the solution to the aviation question, particularly so far as the south-east of England is concerned, lies in an area where there is no airport sited at present. There are other reasons why that may become a very real possibility. In this instance, site-specificity may not be as appropriate as the case that he mentioned.

I acknowledge the enormous experience and knowledge of government of the noble Lord, Lord Turnbull, but his choice of Nirex as an issue was not a particularly good one. I was involved in a peripheral way through local government, but I had no direct connection with Nirex. The noble Lord is right—it raised a lot of hairs and caused a lot of reaction. When finally a specific site was found, Nirex still managed to get its plan rejected. Here we are, 30 years later, still getting precisely nowhere. Therefore, an argument can be made both ways.

I accept that the purpose of the Bill is to reduce delay; heaven knows, I have lived with the planning system for most of my life through my experience in

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public life. I would be the first to acknowledge the need to reduce delay, but we need to do what we do with our eyes wide open. I am grateful to the noble Baroness for her conscientiousness and for the fullness of her reply, with which I am pleased. It was sufficient justification for this discussion. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Jenkin of Roding moved Amendment No. 42:

42: Clause 5, page 3, line 9, at end insert—

“( ) A statement issued before 1st January 2006 may not be designated as a national policy statement for the purposes of this Act.”

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