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The third broad issue is concern whether, if a developer acquires land by CPO, the existing safeguards and protections for commons will remain, or whether a developer simply owns a common. If a common forms part of an area of land with development consent and has not gone through the procedure to deregister as a common, do the existing safeguards and protections for that common in the Commons Acts remain?
In a sense, this is a pale shadow of the debate that took place on Clauses 116 and 117. Clause 116 covered what may be included in the order granting development consent by the IPC. Schedule 5, with which my noble friend dealt, listed lots of things that can happen. In the case of commons, can the provision in Clause 116 and Schedule 5 sweep away all the protections for that land under the Commons Acts—for example, the protections that exist under Part 3 of the Commons Act 2006, which prohibits works on commons without consent and sets out the procedure for getting that consent? Having listened to that debate, I suspect that the answer is: yes it can and yes it may. If that is the
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I apologise to the Committee for detaining it on what might seem detailed and technical matters—because commons are detailed and technical matters—but they are important. Only two years ago, in the Commons Act, Parliament forcefully and vigorously established a new regime on commons and clearly stated that commons had to continue to be protected. It would be unfortunate if the Bill were to sweep away some of those protections.
I look forward to hearing what the Minister says. He may not have the technical detailed information there to reply to everything that I have raised; if not, I look forward to correspondence, and perhaps discussion, before Report.
5.45 pm
Lord Adonis: As the noble Lord said, restrictions are already in statute to prevent the compulsory acquisition of certain types of land. In the case of common land, open spaces or allotments, which are specifically raised by the amendments, the Acquisition of Land Act 1981 already specifies that such land—above a de minimisthreshold—can be compulsorily acquired only through special parliamentary procedure, unless the promoter proposes replacement land which the Secretary of State certifies as being equally advantageous to the users.
Amendment No. 379 requires some additional wording to be added to that test. I assure the noble Lord that all the evidence suggests that the test already works well at present. Clause 127(6) already requires the Secretary of State to notify interested persons before issuing a certificate and to invite representations. That allows interested persons to comment specifically on how advantageous the proposed replacement land would be to them. When assessing whether the replacement land is “no less advantageous”, one relevant consideration will be the location of the land. The further away the replacement land is from the common land in question, the less advantageous it is likely to be. The meaning of “no less advantageous” therefore already allows consideration of the location of the proposed replacement land.
Amendment No. 381 probes the test of whether replacement land will be “adequate” to compensate commoners and the public when a right over common land, open space or an allotment is compulsorily acquired. Again, in the clause we have replicated the existing test from the Acquisition of Land Act 1981, which has worked well and is commonly understood by practitioners.
Amendment No. 382 refers to cases where a development consent order extinguishes a public right of way. Clause 132 replicates the provisions of Sections 251 and 258 of the Town and Country Planning Act 1990, which provide that that can be done only if the decision-maker is satisfied that an alternative right
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The noble Lord asks for assurance that this would mean an alternative right of way that is no less advantageous to the existing users of that right of way. We do not disagree with his general point—we would expect that the IPC would ensure that any alternative right of way would provide that, based on the evidence submitted to it and the contents of the NPS. However, his specific suggested wording could lead to confusion, as it would be difficult for any diversion to a public right of way to be “no less advantageous” than the original one. We prefer to leave it to the IPC to decide on individual cases in the light of the evidence submitted to it and the guidance given in the NPS on the Government’s policy on rights of way.
The noble Lord also raised the issue of transfer of common land by agreement. We do not think that this will be especially relevant to the Bill. We expect that where a promoter of an NSIP wants to acquire common land, whether by agreement or otherwise, it would be deregistered as commons. There are already powers in paragraph 2 of Part 1 of Schedule 5 for the IPC to make provision for the suspension or extinguishment of or interference with rights over land. Where a promoter applies for the compulsory acquisition of common land, we expect the deregistration of commons to be an automatic part of the development consent order. Likewise, where the promoter has already acquired common land by agreement, we expect it to apply for the deregistration of commons as part of the application for a development consent order.
The noble Lord also made a number of points about the Housing and Regeneration Act.
Lord Greaves: To return to the point about deregistration, where land is acquired by compulsory purchase, the Bill makes provision for replacement common land and replacement common rights. Where land is either owned already or acquired by agreement, there is no provision for replacement land or replacement rights. That lack of provision is an omission in the Bill. It was an omission in the Housing and Regeneration Bill, but the Government put it right in that Bill.
Lord Adonis: I will look at the issue further and return to the noble Lord. I will also return to him on his points about the Housing and Regeneration Act. I confess that I am not briefed on those specific points. He is a great deal more knowledgeable about them than I am, and I wish to be equally knowledgeable before I reply to him.
On Question, amendment agreed to.
Clause 124, as amended, agreed to.
Clause 126 [National Trust land]:
Baroness Andrews moved Amendment No. 376:
376: Clause 126, page 65, line 41, leave out “an application for an” and insert “the application for the”
On Question, amendment agreed to.
Clause 126, as amended, agreed to.
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[Amendment No. 377 not moved.]
Clause 127 [Commons, open spaces etc: compulsory acquisition of land]:
[Amendments Nos. 378 and 379 not moved.]
Clause 128 [Commons, open spaces etc: compulsory acquisition of rights over land]:
[Amendments Nos. 380 and 381 not moved.]
Clause 132 [Public rights of way]:
[Amendments Nos. 382 and 383 not moved.]
Clause 138 [Diversion of watercourses]:
[Amendment No. 384 not moved.]
[Amendment No. 385 not moved.]
[Amendments Nos. 386 and 387 not moved.]
Clause 142 [Development of Green Belt land]:
[Amendments Nos. 388 and 389 not moved.]
Baroness Andrews moved Amendments Nos. 389A to 389B:
389A: After Clause 145, insert the following new Clause—
“Liability under existing regimes
An order granting development consent may not include provision the effect of which is to exclude or modify the application of—
(a) any provision of the Nuclear Installations Act 1965;
(b) section 28 of, and Schedule 2 to, the Reservoirs Act 1975 (liability for damage and injury due to escape of water from a reservoir constructed after 1930);
(c) section 209 of the Water Industry Act 1991 (civil liability of water undertakers for escapes of water from pipes);
(d) section 48A of the Water Resources Act 1991 (civil remedies for loss or damage due to water abstraction).”
389B: After Clause 145, insert the following new Clause—
“Compensation in case where no right to claim in nuisance
(1) This section applies if, by virtue of section (Nuisance: statutory authority) or an order granting development consent, there is a defence of statutory authority in civil or criminal proceedings for nuisance in respect of any authorised works.
(a) development for which consent is granted by an order granting development consent;
(b) anything else authorised by an order granting development consent.
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(3) A person by whom or on whose behalf any authorised works are carried out must pay compensation to any person whose land is injuriously affected by the carrying out of the works.
(4) A dispute as to whether compensation under subsection (3) is payable, or as to the amount of the compensation, must be referred to the Lands Tribunal.
(5) Subsection (2) of section 10 of the Compulsory Purchase Act 1965 (limitation on compensation) applies to subsection (3) of this section as it applies to that section.
(6) Any rule or principle applied to the construction of section 10 of that Act must be applied to the construction of subsection (3) of this section (with any necessary modifications).
(7) Part 1 of the Land Compensation Act 1973 (compensation for depreciation of land value by physical factors caused by use of public works) applies in relation to authorised works as if—
(a) references in that Part to any public works were to any authorised works;
(b) references in that Part to the responsible authority were to the person for whose benefit the order granting development consent has effect for the time being;
(c) sections 1(6) and 17 were omitted.
(8) An order granting development consent may not include provision the effect of which is to remove or modify the application of any of subsections (1) to (7).”
On Question, amendments agreed to.
Schedule 6 [Changes to, and revocation of, orders granting development consent]:
[Amendment No. 390 not moved.]
Baroness Andrews moved Amendments Nos. 391 to 393:
391: Schedule 6, page 165, line 5, at end insert—
“This is subject to sub-paragraphs (8A) to (8C).
(8A) If the development consent order was required to be contained in a statutory instrument, the power conferred by sub-paragraph (1) may be exercised only by order contained in a statutory instrument.
(8B) If the instrument containing the order is made by the Commission, the Statutory Instruments Act 1946 applies in relation to the instrument as if it had been made by a Minister of the Crown.
(8C) As soon as practicable after the instrument is made, the appropriate authority must deposit a copy of it in the office of the Clerk of the Parliaments.”
392: Schedule 6, page 165, line 12, at end insert “, or, if the change to the order is required to be made by order contained in a statutory instrument, the date specified in the order making the change”
393: Schedule 6, page 167, line 3, at end insert—
“(7) If a development consent order was required to be contained in a statutory instrument, an order changing or revoking the development consent order made in the exercise of the power conferred by paragraph 3(1) must also be contained in a statutory instrument.
(8) If the instrument containing the order is made by the Commission, the Statutory Instruments Act 1946 applies in relation to the instrument as if it had been made by a Minister of the Crown.
(9) As soon as practicable after the instrument is made, the appropriate authority must deposit a copy of it in the office of the Clerk of the Parliaments.”
On Question, amendments agreed to.
Schedule 6, as amended, agreed to.
Clauses 147 and 148 agreed to.
Clause 149 [Benefit of development consent order]:
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Baroness Andrews moved Amendment No. 394:
On Question, amendment agreed to.
Clause 149, as amended, agreed to.
Baroness Andrews moved Amendment No. 394A:
394A: After Clause 150, insert the following new Clause—
“Nuisance: statutory authority
(1) This subsection confers statutory authority for—
(a) carrying out development for which consent is granted by an order granting development consent;
(b) doing anything else authorised by an order granting development consent.
(2) Statutory authority under subsection (1) is conferred only for the purpose of providing a defence in civil or criminal proceedings for nuisance.
(3) Subsections (1) and (2) are subject to any contrary provision made in any particular case by an order granting development consent.”
On Question, amendment agreed to.
Clause 151 [Legal challenges relating to nuisance etc.]:
[Amendment No. 394B not moved.]
Clause 153 [Development without development consent]:
[Amendment No. 395 not moved.]
Clause 154 [Breach of terms of order granting development consent]:
Baroness Hamwee moved Amendment No. 396:
The noble Baroness said: Amendment No. 396 related to a short point that turned into two short points after an exchange with the Minister this morning. It takes us to Clause 154 in Part 8 on enforcement, and proposes that it would be an offence if, without reasonable excuse, a person carried out a development that was,
the development consent order. It seeks to probe what happens if the development as constructed is not precisely in accordance with the order. It comes after many years of experience—which I know will be shared around the Committee—of much smaller developments than those with which we are concerned. The departure from planning permission could be, for example, a new house that is a little higher than the plans had indicated. I seek to understand the extent of that.
The Minister asked me whether I was concerned about the project being left unfinished, which is a very good point and I am grateful to her for putting it in my mind. I look forward to hearing the position on that. I beg to move.
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6 pm
Earl Cathcart: Amendments Nos. 397 and 398 concern the right to enter land without a warrant under Clause 156. They were moved in Committee in another place. Clause 156(1) states that there is a right to enter land without a warrant if the,
- “local planning authority has reasonable grounds for suspecting that an offence under section 153 or 154 is being, or has been, committed on or in respect of the land”.
Subsection (2) states that the planning authority may authorise the entering of land without any notice. Subsection (3) states that a person may enter a “dwelling-house”, but,
Our two amendments would take out subsection (3) and the 24 hours’ notice for entering a “dwelling-house” and would apply it to the entering of any land. The issue does not simply apply to land and houses. There are lots of other types of buildings, such as factories, warehouses and offices, in between. The 24 hours’ notice should apply before one enters any land.
Before the Summer Recess, there was a debate on the types and numbers of rights of entry by government bodies—I recall something like 600 types. For my part, last year, my farm land was inspected about five times by various government bodies. Each time, I was notified of an inspection. Luckily, I ticked all the boxes. But my point is that it was much appreciated that they gave me 24 hours’ notice. If local planning authorities want to enter land or property, it would be good a thing for them to give 24 hours’ notice.
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