| Previous Section | Back to Table of Contents | Lords Hansard Home Page |
Clause 43 [Categories for purposes of section 41(1)(d)]:
Baroness Andrews moved Amendment No. 192:
192: Clause 43, page 25, line 16, after “the” insert “applicant, after making diligent inquiry, knows that the”
The noble Baroness said: I have given notice of the amendments, so if the Committee will allow me, I shall speak swiftly to them because it is a rather large group and it is important that I put it on record. We have tabled the amendments in place of Clause 151. They fall broadly into two categories: setting out a legal position by which NSIPs relate to the common law on nuisance; and consequential technical amendments which flow from that, in terms of who promoters should consult and notify about applications. I hope to speak also to the stand part debate of the noble Lord, Lord Reay, on Clause 151 alongside the government group, and to the amendment laid in the name of the noble Baroness, Lady Hamwee, Amendment No. 394B.
16 Oct 2008 : Column 881
Let me begin by explaining the history of Clause 151. The text in the Bill was suggested by an amendment from the other place. It was designed to replicate the defence of statutory authority against nuisance claims which already exists for some of the infrastructure types which will be classed as NSIPs by the Bill. In particular, highways, railways schemes, ports schemes and airport schemes already benefit from such a defence against nuisance claims.
In practical terms, Clause 151 as drafted would prevent any nuisance proceedings from being brought in relation to development, works or operations authorised by an order granting development consent. Likewise, Clause 151 would prevent proceedings from being brought in relation to escape of things from land in relation to matters authorised by a development consent order. That is a very wide definition that would mean that a defence was available in more cases than currently.
We accepted the principle at the heart of the amendment originally, because we recognise that in the past, nuisance claims have sometimes been used aggressively to try to block developments that would provide great benefits to the wider society.
We certainly believe that it would be important that all NSIPs could benefit from a defence of statutory authority against nuisance claims, on the basis that the big decisions are now taken up-front. The main arguments around NSIPs will have been held in the context of the national policy statement itself. We want discussion on possible nuisance and impacts in relation to individual projects to take place in public at the examination. It would be inconsistent with that process if individuals could apply for subsequent injunctions to reopen these decisions.
However, after close consideration, we believe the clause as originally laid is too broad. We agree with the noble Lord, Lord Reay, that it tips the balance too far towards the promoter. It effectively blocks all nuisance proceedings, including those only “in relation to” development contained in a development consent order. Our amendments aim to maintain the balanced settlement that has allowed the development of such important infrastructure while ensuring that individuals can receive compensation for the effect on their land. Our new amendments replace and correct the text in Clause 151.
The prime amendment is the new clause in Amendment No. 394A, which has been drafted to replicate more closely the position of statutory undertakers under existing legislation such as the Transport and Works Act and the Harbours Act. In particular, it defines more narrowly that a defence of statutory authority exists only where the nuisance relates to carrying out development to which a development consent order has specifically consented and where any requirements or controls placed on the promoter through that order have been complied with. We have also included the ability for the IPC to make an order that does not grant a defence against nuisance claims if it believes it appropriate to do so.
The clause is also designed to operate within the framework of the existing common law provisions on nuisance. The default position set out in our amendment
16 Oct 2008 : Column 882
I reiterate that the amendments provide a statutory basis for a defence against nuisance by setting out a position in primary legislation. However, individual development consent orders can also vary the breadth of that defence through use of the IPC’s legislative powers. These are intended to cover individual circumstances specific to certain applications where the default position may not be appropriate. We do not believe that airport operators, for example, should benefit from a defence against nuisance claims unless they already comply with the air navigation order under Section 77 of the Civil Aviation Act 1982. Nor do we believe that there are any circumstances in which reservoir operators should have a defence against Rylands v Fletcher claims. I am sure that noble Lords are completely cognisant of that case, which I understand involves reservoirs. This case explains why we have introduced Amendment No. 389A, which is intended as a safeguard to ensure that a development consent order cannot alter certain strict liabilities, set out in legislation, which affect certain serious emissions from land.
We have also addressed compensation. Clause 151 prevents people pursuing nuisance claims without offering a route to claim other forms of compensation. We recognise that it may be impossible in some cases to mitigate all the potential impacts of the construction and/or operation of nationally significant infrastructure. It is vital in such cases to ensure that individuals affected can receive compensation. This is why one of the amendments clarifies that compensation for injurious affection will be available where the value of a person’s land depreciates as a result of the construction and use of a nationally significant infrastructure project.
Amendment No. 389B sets out that affected parties will be entitled to seek compensation on the ground of injurious affection under Section 10 of the Compulsory Purchase Act 1965, or under Part 1 of the Land Compensation Act 1973 where public works are given consent by development consent orders. Compensation will be assessed, as it currently is, on the basis of the depreciation in the value of the land owned by the claimant. An order cannot contain a provision that removes or modifies the principles encompassed in these Acts. Amendment No. 373 therefore ensures that there are no contradictory applications of Section 10 of the Compulsory Purchase Act 1965 in different clauses of the Bill.
The compensation provisions for injurious affection work well. Compared with the uncertainty of a nuisance claim, they are a quicker and more reliable way of enabling individuals to obtain relief where they have suffered loss. We therefore support the proposal that
16 Oct 2008 : Column 883
I hope that this explanation, complex though it is, will convince Members of the Committee that we have considered the position closely as regards nuisance. We believe that the amendments we have put down will ensure a right and proportionate balance between ensuring that nationally significant infrastructure progresses while maintaining the maximum protection for the rights of individuals affected by such works.
The national policy statements will require the IPC to look specifically at the possible sources of nuisance for every application in front of it. First, we intend that the text of the NPSs will give a strong steer to the IPC to consider placing strict requirements on the promoter, which are akin to planning conditions, where appropriate, in order to restrict and mitigate the levels of nuisance caused. We want the IPC to look specifically at the potential for noise, vibration, emissions, light pollution, smoke, smells, insects and so on to require that the potential for such nuisances is as low as possible, if not eliminated altogether. Requirements to control nuisances will be particularly important where they may be a risk to health.
Secondly, the IPC already has the ability to place requirements on the applicant, so that the latter conducts physical mitigation works, in order to reduce the potential effects of an NSIP on the local environment and communities; for example, installing double-glazing or embankment works. Thirdly, it should be emphasised that where a promoter does not abide by the strict controls and requirements placed on it by the IPC, it will not benefit from any defence against nuisance claims in the relevant area, quite apart from being liable to any enforcement actions provided for in Part 8.
Fourthly, the new clause in Amendment No. 394A makes it clear that the IPC has the ability to remove the defence against nuisance claims for a particular case if it believes it is appropriate to do so in light of the NPS and the evidence submitted. The IPC also will have the ability to make provision that modifies the application of any defence against nuisance claims in any particular case. So, for example, in order for there to be a defence to nuisance in relation to the operation of an airport, the promoter would have to continue to comply with the air navigation order.
The other amendments are largely consequential. Amendment No. 455A replicates this position in Scots law. Amendments Nos. 195 and 228 are consequential changes, which are based on the fact that a defence against nuisance claims exists. Since no one will subsequently be able to make a nuisance claim against an NSIP promoter, except in unforeseeable circumstances, it makes little sense to require an applicant to notify people who could make a claim. We are therefore deleting that category.
Amendments Nos. 192, 194, 224 and 227 also clarify that the onus on a promoter is to make diligent inquiry about who should be notified about a proposed application, which is where the interrelationship with the previous amendment, as raised by the noble Lord, Lord Jenkin, comes in. The Bill sets out a high standard
16 Oct 2008 : Column 884
I said that I would address the noble Baroness’s amendment, but we have had a useful exchange and I think that we have identified the problem. I am happy to leave it at that. I beg to move.
4 pm
Lord Reay: I shall speak to my amendment, which would leave out Clause 151. I put this amendment down some time ago and, later, I had the unusual experience of finding that the Minister had added her name to mine. In due course, I discovered that the Government have found something with which to replace it. I will now have to decide whether that will be a sufficient improvement on what was there before.
I was disturbed by Clause 151. As I think the noble Baroness explained, it was a last-minute addition to the Bill in another place as the result of a Back-Bench amendment which the Government accepted. It seems, however, to remove a basic human right to mount a legal challenge on the grounds of nuisance to any authorised development. No local council, for example, would any longer have been able to act on complaints from local people regarding nuisance caused by light, smell, flicker from wind turbines or noise in respect of any development once permission had been given for it to go ahead.
It so happens that infrastructure projects in the field of transport including aviation already enjoy, I believe, statutory protection from nuisance claims. What this clause would have done was to confer on energy and hazardous waste projects the same degree of protection. That would include electricity generating stations, some of which are small projects. The noble Baroness said that the big decisions would now be taken up-front and put that forward as a justification, but the threshold for onshore wind projects is set at 50 megawatts, which means 15 megawatts of annual production of electricity generated and suggests that they are only one-hundredth the size of a normal nuclear power station. They cannot be considered to be big projects.
It is not possible to list in statute all potential nuisances. “Nuisance” is a common law term and new nuisances arise all the time. In the case of wind turbines, some of the effects on nearby residents are only now coming to light and being recognised. Rulings have been made under existing legislation, and one can expect a growing rate of challenges and rulings as the number of development applications increases. In one case, a judge found that a property had decreased in value by 20 per cent following the erection of wind turbines nearby. In another case last July, the Lincolnshire Valuation Tribunal ruled that the authorities in Spalding had erred in not reducing the council tax banding of a house which was situated within one kilometre of wind turbines and whose owners had suffered dire
16 Oct 2008 : Column 885
The noble Baroness has decided to replace Clause 151 with the new clauses set out in Amendments Nos. 394A and 389B. These amendments were tabled only a matter of days ago and we need longer than we have had so far to examine their implications. Further, the noble Baroness with great courtesy and openness sent me in advance of this debate her speaking notes for this group, but again I have hardly been able to study them thoroughly. The purpose of the new amendments seems broadly to maintain the intention of Clause 151, which is to protect developers against claims for nuisance, except in the case of landowners, who will be given explicitly the right of compensation. That is the provision set out in Amendment No. 389B and I certainly welcome it. However, it would appear that no one except landowners will have a right to compensation or a claim for nuisance, so the rights that ordinary citizens who are not owner-occupiers but perhaps are tenants have today to bring proceedings on grounds of nuisance would be removed by the new clauses. I would like to consider very carefully what the noble Baroness has said and take a view in the days to come on whether to accept the new amendments.
Baroness Hamwee: The need for Amendment No. 394B disappears—or, at least, my argument for it disappears—if the clause is taken out. I, too, had an instinctive reaction against Clause 151 and my justification included not only discovering that the Minister was opposed to the clause standing part of the Bill but that the Equalities and Human Rights Commission was briefing against it, or at least had big question marks. I, too, was grateful to receive her speaking note. Once I had recovered from it—it was fairly daunting—my first reaction was that I am happy with the Government’s proposals.
As to Amendment No. 192, the next amendment, Amendment No. 193, was included in a previous group, as is the way of these matters, when the Minister gave my noble friend an assurance that the terminology “after making diligent inquiry” incorporates within it an obligation to make diligent inquiry. I assume—I would like her to confirm this—that the same goes for the new words to be inserted at her behest in Clause 43 and, indeed, in quite a number of other places throughout the Bill.
Baroness Andrews: I can confirm that that is the case.
16 Oct 2008 : Column 886
Lord Jenkin of Roding: I offer my warmest congratulations to my noble friend Lord Reay on the astonishing achievement of getting the Minister to oppose Clause 15.
I have listened to the Minister with great care. We shall obviously want to study this but she has gone a long way towards meeting the concerns which I received in a briefing from the Environmental Law Foundation and others. They made an overwhelming case and one is surprised that the clause got as far as it did. But the clause has been removed and we have these new clauses in its place.
I do not know whether the Minister is in a position to reply to this question, but in other countries, particularly France, it has for a long time been the practice that when a large infrastructure project—for instance, a power station—is erected in a particular area, there is provision for reduced electricity charges to people within a substantial range of the facility. This is a wise provision but it has never been followed here. The nearest we are getting to it, as I mentioned earlier, is in nuclear waste disposal, where a community is being asked to volunteer and to suggest benefits for the community which might compensate it for doing so.
I did not table amendments to this effect because one would have had to change the whole shape of the Bill and this is not the right place to do that. However, is there not a case for looking at that solution to the problem? Perhaps it would not be appropriate for electricity or gas charges because that is limited, but a reduction in the community charge that is levied could apply automatically to people within a particular area. If a promoter put forward the proposal that a significant body of people affected by nuisance would get some tangible financial benefit as a result, the whole question of compensation could be dealt with in an entirely different manner from the exceptional cases, whereas the provision in the Bill—which is I fully concede a great improvement on Clause 151—requires the commission to go into considerable detail as to who will be entitled to what. Has that ever been considered by the Government?
Baroness Andrews: The noble Lord is right, I cannot answer the question. As a good European, the suggestion sounds interesting and I shall refer it on to my noble friend the Minister for Energy and Climate Change.
On Question, amendment agreed to.
[Amendments Nos. 193 and 193A not moved.]
Baroness Andrews moved Amendments Nos. 194 and 195:
194: Clause 43, page 25, line 33, at end insert—
“This is subject to subsection (4A).
(4A) A person is within Category 3 only if the person is known to the applicant after making diligent inquiry.”
On Question, amendments agreed to.
Clause 43, as amended, agreed to.
Clause 44 [Timetable for consultation under section 41]:
[Amendments Nos. 196 to 198 not moved.]
16 Oct 2008 : Column 887
[Amendment No. 199 not moved.]
Clause 46 [Duty to consult local community]:
[Amendments Nos. 199A to 201 not moved.]
Clause 47 [Duty to publicise]:
[Amendment No. 202 not moved.]
Clause 48 [Duty to take account of responses to consultation and publicity]:
[Amendment No. 203 not moved.]
Clause 49 [Advice for potential applicants and others]:
Lord Dixon-Smith moved Amendment No. 204:
204: Clause 49, page 27, line 29, leave out “Commission may give advice” and insert “Secretary of State may by regulation make provisions about the giving of advice by an existing government body appointed for this purpose”
The noble Lord said: The Bill provides that the IPC should give advice to those who wish to submit a planning application to it on what the planning application should contain and the process by which the applicant should develop the final application. That, to me, is another one of these wretched cases of somebody acting as judge and jury in their own court. This group of amendments has one purpose solely: to give a third party—in this case the Secretary of State—the power to give the IPC guidance on exactly what advice it should or should not give.
I am well aware that there is one subsection that gives the Secretary of State power to intervene if it is thought necessary. We do think it is necessary and that the clause should be drafted slightly differently so that the Secretary of State advises the IPC on what it is to do and the IPC’s then passes that on. In that way, the advice is seen to be independent of the commission.
| Next Section | Back to Table of Contents | Lords Hansard Home Page |