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Our overall policy aim is that the IPC will take on the role of examining and considering all aspects of an application that meets the definitions of a nationally significant infrastructure project. These definitions are set out in Part 3 and state clearly what scales of project will require development consent from the IPC. It is not our intention that promoters should be required to seek development consent for works which are not captured by these thresholds and which are not component parts of a greater project, by dint of them being judged as forming part of an NSIP. At the same time, however, we do not want to create a loophole that allows promoters to “salami slice” NSIP development into smaller chunks of work which could therefore slip under the thresholds.
I should also clarify that we have no reason to believe that the wording of this clause will prejudice the ability of the promoter to carry out works which are below the thresholds through existing permitted development rights as long as these do not form part of an NSIP.
In Amendment No. 157, the noble Lord, Lord Dixon-Smith, seeks to alter the wording of Clause 31(2)(a) to mean that the conversion of fuel sources in a power station should always be treated as a material change of use, and therefore require development consent under the Bill. I shall explain the background to this. The wording of Clause 31(2)(a) is intended to ensure
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Amendment No. 159 seeks to add a new category to subsection (3), to expand the definition of “development” to cover any works that are relevant to an NSIP. This is intended to cover the kind of works that would not otherwise constitute development; for example, internal building works. However, we believe there is a risk that this amendment would introduce real uncertainty as to the meaning of,
and therefore create confusion as to the range of matters requiring development consent. No works are carried out under Clause 14, as this clause simply sets out definitions for what constitutes a nationally significant infrastructure project. By including these matters within the definition of development, this amendment would create uncertainty and confusion as to the range of matters requiring development consent under Clause 30, which would have completely the opposite effect of what this Bill seeks to achieve.
The noble Lord’s Amendment No. 395 is intended to ensure that a person does not commit an offence under the enforcement clauses of the Bill if he is only measuring and marking out land. We believe that this amendment is unnecessary. As I understand it, the noble Lord is concerned to avoid the situation whereby an offence under Clauses 153 or 154 could be triggered by a person simply measuring up or marking out land. I understand that underlying this concern is case law that has developed around the meaning of when development is commenced for the purposes of Section 56 of the Town and Country Planning Act 1990. The courts have held that in some circumstances preliminary works can be material operations for the purposes of Section 56. However, for the purposes of the offences created by Clauses 153 and 154 of this Bill, the relevant question is not whether development has commenced, but whether a person has carried out development for which development consent is required, or whether he has carried out works in breach of the terms of a development consent order. To understand this fully, it is necessary to refer to Clause 30, which says that,
- “(“development consent”) is required for development to the extent that the development is or forms part of a nationally significant infrastructure project”.
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We do not consider that the measuring up or marking out of land by itself could ever conceivably amount to development forming part of a nationally significant infrastructure project.
It only remains for me to move Government Amendments Nos. 160 and 161, which are purely drafting points intended to clarify the workings of Clause 33. However, I can explain them fully if noble Lords wish.
Baroness Hamwee: I will read what the Minister said. One point, which I was trying to write down, seemed circular; I am sure that it was not. Regarding the provenance of my first amendment, I wish I had realised that the Law Society had proposed it, because then I could have checked its notes rather than agonising about what I meant. I am sure that it was a good idea at the time, but it is not necessarily that obvious when one gets to midnight on a Committee day. I am grateful for the explanation, which I will read. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 31 [Meaning of “development”]:
[Amendments Nos. 157 to 159 not moved.]
Clause 33 [Welsh offshore generating stations]:
Lord Adonis moved Amendments Nos. 160 and 161:
On Question, amendments agreed to.
Clause 33, as amended, agreed to.
Clause 34 [Direction in relation to projects of national significance]:
[Amendment No. 162 not moved.]
Lord Reay moved Amendment No. 163:
The noble Lord said: There seems to be no theme uniting this group of amendments as far as I can see. It seems to be a bureaucratic grouping, which I do not object to at all, but I shall speak only to my amendment, which deletes Clause 34(1)(d). This subsection concerns me because it appears to give the opportunity to the Secretary of State to lump together several projects. When none of them singly would be able to be categorised as a project of national significance, he can apparently lump them together and so decide that they become a project of national significance.
For example, it would appear that the Secretary of State might be able to decide that a group of wind farms which were individually beneath the threshold could be considered together and would become a nationally significant project. They would have nothing in common with each other at all; there is certainly nothing here to require anything that links the projects.
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The Deputy Chairman of Committees (Baroness Pitkeathley): I should tell the Committee that if the amendment is agreed to, I cannot call Amendments Nos. 164 or 165 for reasons of pre-emption.
Lord Dixon-Smith: My Amendment No. 164 is grouped with Amendment No. 163. It was really prompted by curiosity and by the drafting of Clause 34, which is quite interesting. Clause 34(1) says:
“This section applies if ... an application for a consent ... in relation to development”.
Paragraph (b) starts with the words “the development is” and paragraph (c) says “the development will”. Then paragraph (d), for some reason, states,
I fail to understand why paragraphs (a), (b) and (c) refer to “development”, then, suddenly, the Secretary of State is thinking about a “project”. There may be a rational reason for that, but I admit that I had some difficulty in thinking what it could be. I thought that the only way to find out what was in the Secretary of State’s mind was to invite the Minister to say why “project” is used when the rest of Clause 34(1) refers to “development”.
Baroness Hamwee: I have Amendments Nos. 165, 167 and 168 in this group. On Amendment No. 165, I share the concern of the noble Lord, Lord Reay. When the notion of covering more than a single field in this provision was introduced in the Commons, it was said that it would clarify drafting. I think I know the answer, but perhaps the Minister can clarify the position for me. Is a single application possible across more than one field? I think that the answer is “yes”.
Amendment No. 166 represents perhaps an obscure way of probing. I sent the question to the office of the noble Baroness, Lady Andrews, and I hope that it is not so obscure as to be impossible to answer. I suggested taking out,
because I do not understand the difference between paragraphs (a) and (b) in subsection (4). I have asked for the distinction to be explained.
On Amendments Nos. 167 and 168, in the Commons the Minister said that the power would be used only in rare circumstances and on the basis of clear criteria. I think that he was referring to this matter. It would be clearer if any future applicable legislation contained the provisions, rather than trying to anticipate them now. More importantly, it would be more appropriate
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Lord Adonis: We are on the last lap—for tonight. I begin with the issue raised by the noble Lord, Lord Reay, on Clause 34(1)(d), which allows the Secretary of State to direct either individual sub-threshold projects or a group or cluster of such projects to the IPC. In the case of a cluster of projects, referral to the IPC can be made on the basis that the projects, when considered together, are of national significance. This reflects the cumulative impact that such clusters of projects can have on an area. For example, a series of proposed offshore wind farms in a similar area might be below the 100 megawatt limit individually, but above the limit when taken together.
In response to the opening comments of the noble Lord, Lord Reay, we expect that the ministerial power of direction in this area would be exercised on the basis of clear criteria set out in a ministerial Statement, or possibly in the NPS itself. We would expect this power to be used comparatively rarely, to deal with circumstances which we would not be able to predict, such as changing technology, changing sectoral circumstances or situations where several projects come forward in close proximity such that they are likely to have cumulative impacts that require holistic consideration.
Amendment No. 164, in the name of the noble Lord, Lord Dixon-Smith, seeks to alter Clause 34(1)(d) so that the Secretary of State can direct a project to the IPC only if he believes that the “development” is of national significance, rather than if he believes the “project” is of national significance. Perhaps I should explain why we have used “project” in Clause 34.
The meaning of “development” in the Bill, as set out in Clause 31, is the same as in the Town and Country Planning Act, albeit with some modifications—that is, it relates specifically to physical and engineering works, such as construction, demolition and digging, and to material changes in the use of land. The reference to a “project” as opposed to a “development” is used in Clause 34 to permit the Secretary of State to take a wider view of various aspects of development work involved in a project when deciding whether it is of national significance. Therefore, we have used “project” to cover planned and linked pieces of development, and the Bill is chiefly interested in whether a project taken as a whole is of national significance.
Subsection (1)(d) relates to where a series of individual projects might be envisaged—perhaps promoted by different companies—but where the projects involve similar types of development work and are perhaps within close geographical proximity to one another. In such circumstances, the cumulative effect of these individual projects could exceed the thresholds of an NSIP, and we intend that it should be possible for the Secretary of State to conclude that the projects, taken together, are of national significance. Where a series of related applications or proposed applications clearly form a single project, Clause 34(1)(b) already achieves that result. In other cases, it might not always be possible to view the applications as part of a single
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I turn to the amendments in the name of the noble Baroness, Lady Hamwee. She will be pleased to hear that we believe that there may well be merit in her Amendment No. 165, which would ensure that the Secretary of State could direct a series of projects to the IPC only if they were within the same field—such as all being energy projects or transport projects and so on. We think that the noble Baroness raises a valid point in this area and, if she would be content not to move the amendment at this stage, we should be glad to discuss it with her further before Report to see whether some change is appropriate.
I fear that I cannot be quite so forthcoming on Amendments Nos. 167 and 168. In this context, it may be helpful to outline our intentions for subsections (4) and (5). We want to avoid the situation where the direction of an application to the IPC has unintended consequences, and we want to prevent a promoter having to restart the consent process for a project from square one if the Secretary of State directs an application to the IPC. For example, the Secretary of State might want to ensure that the pre-application consultation requirements apply in modified form to the application in question, or the Secretary of State might want to direct that certain procedures—for example, pre-application procedures—are treated as having been complied with in relation to that application. We believe that this would be justifiable to ensure that the promoter was not penalised because the Secretary of State ruled, relatively late in the process, that the application was of national significance.
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Amendment No. 166 asks whether the power of the Secretary of State in subsection (4) applies,
For the reasons I have already given, we believe that this wording is needed in order to allow the Secretary of State flexibility to vary the effect of a direction of a project to the IPC. On that note, I hope that I have dealt with most of the matters raised.
Lord Reay: I am grateful to the noble Lord for his reply, which I shall study carefully. He mentioned the possibility that this power could be used in the case of offshore wind farms that individually fell below the threshold. Will he say—if not immediately, then in writing—whether the Government can envisage that power being used in the case of onshore wind farms?
Lord Adonis: I shall deal with that point in correspondence if the noble Lord will permit me.
Lord Reay: I thank the Minister, and on that basis I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 164 to 168 not moved.]
Lord Patel of Bradford: I beg to move that the House do now resume.
Moved accordingly, and, on Question, Motion agreed to.
- House adjourned at 12.35 am.
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