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6 Nov 2008 : Column 393

That ties up with what the Minister was saying earlier. Can he confirm that one of the adverse impacts that might offset the benefits of a development would be the fact that it did not contribute to the objectives about climate change? In that case, it seems that what he said earlier—that the overriding requirement of climate change cannot apply automatically to every application—must be right. There must be times when the national need for infrastructure must outweigh that. The Minister is nodding. Perhaps he can confirm that that is what the Bill means.

Lord Hunt of Kings Heath: My Lords, I think that is right. I am sure that is what is meant. Only two weeks ago, noble Lords were asking me about the so-called energy gap. We undoubtedly face a challenge in terms of the number of generating stations which are due to go out of business over the next 10 to 12 years. One way or another, we shall have to tackle that matter. Clearly, such issues must come into play as well. I hope that satisfies the noble Lord.

Lord Jenkin of Roding: It does indeed.

Lord Hunt of Kings Heath: Good; that is a good start, my Lords. The point about regional matters was very well put. I very much welcomed the comments of the right reverend Prelate and the noble Lord, Lord Taylor, on the government amendment relating to regional spatial strategies, which is a very straightforward amendment.

I again pay tribute to my noble friends Lord Howarth and Lady Whitaker in relation to government Amendments Nos. 23 and 37 on design. Although I was not present when design was debated, my noble friend Lady Andrews has kept me well informed about them. As someone who has worked very closely with CABE over the years, I am very glad that she has allowed me to speak to those government amendments. I believe that the amendments will considerably enhance the Bill.

As regards the amendment in the name of the noble Lord, Lord Reay, it is a great pleasure to debate these matters with him. We had a similar debate only yesterday. I very much understand the issues that he raises. His Amendment No. 37A seeks to amend government Amendment No. 37 by adding “respecting high quality landscape” to the requirement for the Secretary of State to,

and “achieving good design”. I do not know whether this will comfort him but the Government have always made it clear that wind farms should be located in appropriate places, and that local concerns should be listened to. I suspect the noble Lord, Lord Jenkin, thinks that local concerns have been listened to rather too much as regards those matters. None the less, we believe that the appropriate guidance has been given within the formal planning procedure. I understand that PPS22 on renewable energy of the Department for Communities and Local Government highlights the need to take account of environmental impacts in

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terms of landscape and visual effects. The noble Lord asked about sites of specific special interest. I am happy to write to him to give him further detail on that, but there are existing policies for those areas. There are clear duties on public bodies with regard to the statutory purpose of these areas when exercising or performing any function relating to or affecting land within them. However, as I say, I am happy to write to him to provide more detail.

I think I have made it clear that design and climate change considerations are component elements of sustainable development. I have no doubt that the desirability of preserving high-quality landscape is another. However, we run into what I call the list problem. One has to be careful of setting out a long list of component parts of sustainable development in the Bill. I reassure the noble Lord, Lord Reay, that impact on landscapes is among the impacts that will be assessed through the appraisal of sustainability, and we believe that it is captured by the notion of sustainable development, which we have discussed at length. I reassure noble Lords that I understand the importance of the new planning process being considered very much in the context of the challenge of climate change. There is no greater challenge that this nation or the world faces.

For the reasons that I have expressed, I hope that noble Lords will accept that there is a very germane reason why there still needs to be some flexibility for Ministers. There are some circumstances where climate change is not the only consideration. That is why the amendments that we tabled today probably meet the requirement of the right reverend Prelate. I am happy to have further discussions with the right reverend Prelate about this. I hope that, if he does not agree with me, at least he will accept that we are trying to sing from the same hymn sheet, if I may say that, on the importance of climate change.

The Earl of Caithness: My Lords, will the Minister give further consideration before the next stage to the amendment that was tabled by my noble friend Lord Reay? Good design is important, and I supported it in Committee, but landscape and siting are equally important. We were given a very good example at the meeting that the noble Baroness, Lady Andrews, held before Committee stage, of where a developer insisted on putting some structure on top of a cliff when it could have been moved down the hill and a couple of miles into a wood and been hidden. Not only would the design have been better, but the landscape would have been better. To some of us, the siting of major infrastructure is probably more important in some instances than the design. If the noble Lord would look this way and not just in his wing mirrors, and give a little help to this side of the House, it would be appreciated.

Lord Hunt of Kings Heath: My Lords, I have spent the past three weeks giving help to all sides of the House. The noble Earl is a very experienced parliamentarian, and he knows that it is easy for me to say that I am happy to consider the amendment between now and Third Reading. The danger is that noble Lords will think that that is tantamount to saying that I am prepared to give a concession.

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I am certainly happy to engage with the noble Lord, Lord Reay, after the debate and discuss it further with him, but I would not want the House to be under any misapprehension, and the Government think that landscape is essentially covered in the general consideration of sustainability as I described it earlier. We are very averse to adding more lists into the Bill, for all the reasons that noble Lords know. The more that you define through a list system, the more you exclude. If the noble Lord accepts that I will engage with him, but that I cannot hold out a promise of a government amendment on Third Reading, I am happy to do so.

The Lord Bishop of Liverpool: My Lords, I thank all noble Lords for their contributions to the debate on this group of amendments. I am particularly grateful to the Minister for clarifying his position. He raised many points that are worthy of more debate, but this is not the time to do it. I reassure him that I recognised the hymn sheet that he was singing from; some of the tunes were familiar and delightful, but I am unpersuaded on one or two things. I agree with the noble Lord that the ultimate responsibility lies with the Secretary of State; but because we have before the House a Bill with new powers and with unique authority being given to the Infrastructure Planning Commission, it is all the more important to send out a message. That message must be at the heart of what the Secretary of State says. The Secretary of State and the national policy statement must be bound into contributing to the mitigation of and adaptation to climate change. For that reason, I should like to test the opinion of the House.

4.44 pm

On Question, Whether the said amendment (No. 17B) shall be agreed to?

Their Lordships divided: Contents, 65; Not-Contents, 96.

Division No. 2


Addington, L. [Teller]
Anelay of St Johns, B.
Barker, B.
Bonham-Carter of Yarnbury, B.
Bowness, L.
Bradshaw, L.
Brookeborough, V.
Brougham and Vaux, L.
Butler of Brockwell, L.
Cameron of Dillington, L.
Carlile of Berriew, L.
Cathcart, E.
Cox, B.
Crickhowell, L.
Dixon-Smith, L.
Dykes, L.
Eccles, V.
Elton, L.
Falkland, V.
Falkner of Margravine, B.
Fowler, L.
Freeman, L.
Garden of Frognal, B.
Glasgow, E.
Goodhart, L.
Greengross, B.
Hamwee, B.
Hooper, B.
Howe of Aberavon, L.
Jenkin of Roding, L.
Liverpool, Bp.
Livsey of Talgarth, L.
Lucas, L.
McNally, L.
Maddock, B.
Marlesford, L.
Masham of Ilton, B.
Mayhew of Twysden, L.
Montrose, D.
Morris of Bolton, B.
Neville-Jones, B.
Northover, B.
Norton of Louth, L.
O'Cathain, B.
Parkinson, L.
Ramsbotham, L.
Redesdale, L.
Roberts of Llandudno, L.
Roper, L.

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Scott of Needham Market, B.
Seccombe, B.
Selkirk of Douglas, L.
Selsdon, L.
Sharp of Guildford, B.
Shutt of Greetland, L. [Teller]
Taylor of Holbeach, L.
Thomas of Swynnerton, L.
Thomas of Walliswood, B.
Thomas of Winchester, B.
Tordoff, L.
Tyler, L.
Verma, B.
Wallace of Saltaire, L.
Walmsley, B.
Wilcox, B.


Adonis, L.
Andrews, B.
Archer of Sandwell, L.
Bach, L.
Bassam of Brighton, L. [Teller]
Bernstein of Craigweil, L.
Billingham, B.
Blackstone, B.
Boyd of Duncansby, L.
Bradley, L.
Brett, L.
Bridges, L.
Brooke of Alverthorpe, L.
Carter of Barnes, L.
Chorley, L.
Christopher, L.
Clarke of Hampstead, L.
Clinton-Davis, L.
Cobbold, L.
Colville of Culross, V.
Corbett of Castle Vale, L.
Craigavon, V.
Crawley, B.
Davies of Oldham, L. [Teller]
Desai, L.
Donoughue, L.
Drayson, L.
D'Souza, B.
Dubs, L.
Elder, L.
Elis-Thomas, L.
Farrington of Ribbleton, B.
Faulkner of Worcester, L.
Ford, B.
Foster of Bishop Auckland, L.
Gale, B.
Grantchester, L.
Grocott, L.
Harris of Haringey, L.
Hart of Chilton, L.
Haskel, L.
Haworth, L.
Hilton of Eggardon, B.
Hollis of Heigham, B.
Howarth of Newport, L.
Howells of St. Davids, B.
Hunt of Chesterton, L.
Hunt of Kings Heath, L.
Jay of Paddington, B.
Joffe, L.
Jordan, L.
Judd, L.
Lea of Crondall, L.
Listowel, E.
Macdonald of Tradeston, L.
McIntosh of Haringey, L.
McIntosh of Hudnall, B.
MacKenzie of Culkein, L.
McKenzie of Luton, L.
Mallalieu, B.
Mandelson, L.
Mitchell, L.
Morgan of Huyton, B.
Morris of Handsworth, L.
Morris of Yardley, B.
Patel of Bradford, L.
Pitkeathley, B.
Ponsonby of Shulbrede, L.
Prashar, B.
Quin, B.
Rea, L.
Reay, L.
Rendell of Babergh, B.
Rooker, L.
Rosser, L.
Royall of Blaisdon, B.
Sawyer, L.
Scotland of Asthal, B.
Simon, V.
Soley, L.
Stone of Blackheath, L.
Strabolgi, L.
Taylor of Blackburn, L.
Temple-Morris, L.
Thornton, B.
Tunnicliffe, L.
Turner of Camden, B.
Vadera, B.
Wedderburn of Charlton, L.
West of Spithead, L.
Whitaker, B.
Whitty, L.
Wilkins, B.
Williamson of Horton, L.
Winston, L.
Woolmer of Leeds, L.

Resolved in the negative, and amendment disagreed to accordingly.

4.54 pm

Baroness Hamwee moved Amendment No. 18:

18: Clause 5, page 3, line 22, leave out “suitable (or potentially suitable)” and insert “potentially suitable”

The noble Baroness said: My Lords, I shall speak also to Amendments Nos. 19, 20, 22, 24, 26, 30, 124 and 125—a list which I hope is not as daunting as it sounds.

At the previous stage, I sought to take out the word “suitable”, as applying to a location, on the basis that

6 Nov 2008 : Column 397

any location could be no more than “potentially suitable”. In several places, the Bill uses the words “suitable (or potentially suitable)”. However, it does not seem to me that anything can be regarded as more than potentially suitable. I felt that the Minister made my case for me, and I shall refer to some of the things that she said on 6 October. She said that the terms were virtually interchangeable, but I do not agree. She added:

“They highlight that the suitability itself might be conditional on external factors. One cannot set out specific criteria for these situations in all cases”.

Indeed. Therefore, because of conditionality, the Bill should refer only to “potentially suitable”. The suitability of a location must be,

indeed, only potentially suitable.

“The IPC would have to look closely at the details ... It would have to look at the specific application and the precise siting of potential impacts to determine whether the application was appropriate to go in the place identified”.—[Official Report, 6/10/08; col. 105.]

I could go on, but I think I have probably made the point. I hope that the Minister can explain what I was missing the first time around and what I am still missing in understanding the desirability of both phrases—that to include “suitable” does not pre-empt other decisions that need to be made. That goes to Amendments Nos. 18, 19, 30, 124 and 125.

Amendment No. 20 would delete the identification of a statutory undertaker as appropriate to carry out a development. In Committee and in a very long letter sent to noble Lords since then, for which I thank her very much—it was daunting, but as one got into it, it was very readable—the Minister’s argument was that this would mess up Clause 172, which deals with blight. Under Clause 172 the person who bears responsibility for the blight is the statutory undertaker, if identified in the national policy statement. If one is not identified, then it is the Secretary of State. There is a degree of circularity here. If there is only one undertaker, the Secretary of State should sort out the financial matters with the undertaker and that should not override what I see as a certain lack of propriety in identifying one undertaker if there is more than one candidate. If a single candidate is to carry out a particular development as the statutory undertaker, there is no need to identify it anyway.

We did not discuss Amendment No. 22 in these terms in Committee, but it seeks some clarity in the Bill, which I hope does little more than reflect what we have already been told, which is to insert a provision that an NPS should set out the extent to which it supersedes any other government policy—that is, planning policy statement, planning policy guidance or other documentation providing planning policy. In other words, it makes the hierarchy clear and ensures that those who apply the policies are completely clear about which takes precedence. In the planning world, I think we are all used to the term “emerging policy”, which is a useful cop-out for, “We haven’t quite settled this, but this is the direction we are going in”. I should perhaps say that with apologies to some planners. It would be helpful to have complete clarity.

6 Nov 2008 : Column 398

5 pm

Amendment No. 24 goes back to suitability. It is an attempt to encompass the assurances that we have been given by the Government. It states:

“The identification of a location as potentially suitable”,

since I do not accept that any location can be suitable full stop,

in other words, is outside the IPC regime—

which would be within the IPC regime. We had many assurances that the IPC is independent and that it is required to pay proper attention to all proper planning matters and to pay attention—more than pay attention—to the local impact statement. I have a particular concern that, if the Secretary of State identifies a location or a site, no discretion will be left for the IPC or the planning authority and the local impact statement would be completely worthless. I believe that that is not what the Government intend, but it would be worth spelling out here or elsewhere precisely how the suitability point bites and where it does not bite. I beg to move.

Lord Judd: My Lords, at the outset of my remarks, it is appropriate to say to the noble Baroness that were she to decide to divide the House on this matter, I would not follow her into the Division Lobby, but I nevertheless think that yet again she has raised some significant issues. I hope my noble friend will accept that if we are to make a success of national strategy in planning—nobody is more in favour of that than I am—identification and ownership of the plan, right down to the immediate community level, is terribly important to enable people to identify with what is being planned so that the spirit is there in implementation. If not, we will have a minimalist approach to implementation, which would be very unfortunate. Where work is done by those with responsibility at local regional level, it is important that it is seen to be taken seriously before national decisions are made, otherwise there is resentment and a feeling that things are being forced upon people, and feet will be dragged. Undermining and “Operation Clawback” will begin. That would be very sad.

Baroness Andrews: My Lords, my noble friend is right that important issues have been raised by the noble Baroness. I am grateful for the opportunity to respond to them. She focused on the technical aspects of what an NPS is and does, which are set out in Clause 5. Amendments Nos. 18 and 19, together with consequential Amendments Nos. 30, 124 and 125, probe how far an NPS can go in identifying locations as suitable for development by removing the provision that an NPS may identify locations as suitable in the first place.

The noble Baroness made it clear that she believes that the Secretary of State should only be able to identify locations that are potentially suitable, making clear that the IPC will therefore have genuine discretion for an independent decision. I take the point she made.

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In Amendment No. 24 she wants to ensure that identifying a location as potentially suitable should not bring with it a conclusive decision about its suitability for a particular project.

I will come to her Amendments Nos. 20, 22 and 26 as I go through my speaking note, because I think that they are linked.

Perhaps I may deal with the key issue of “potentially suitable” as opposed to “suitable”—whether we are dealing with semantics or a serious concept. The noble Baroness has argued that, in logic, all locations identified in an NPS can only ever be potentially suitable, because the IPC will still need to consider local impact and the other matters in subsections (4) to (8) of Clause 102. If they outweigh the benefits, the application could be refused.

I do not think that I made a very good fist of explaining that in Committee, and as the noble Baroness read it back to me I became even more convinced of that, so let me take another stab at it. In the first place, although Clause 5 permits an NPS to identify a location as suitable, it certainly does not mean that the IPC will have no discretion to refuse an application for development at that location. As I said, the IPC will need to consider the issues raised as a result of the tests in Clause 102(4) to (8). However, as the noble Baroness will understand, Clause 5 relates solely to the Secretary of State’s view expressed in terms of policy on an NPS; it does not relate to any decision of the IPC. Clause 5 permits the Secretary of State to come to a clear view about locations that in his or her view are suitable, but the final decision about whether development can go ahead in a location rests with the IPC. That is governed by Clause 102, not Clause 5.

Let me be clearer than I think I was in Committee about the definition. There is a defensible difference between policy that identifies a location as suitable and that which identifies a location as potentially suitable. The former is, clearly, more certain; the latter suggests that certain conditions still need to be satisfied or obstacles overcome before a location becomes suitable. Perhaps I can explain this in the context of the IPC’s decision-making framework. If an NPS says that, in the Secretary of State's view, a location is suitable for a particular type of development, the IPC will be required to decide an application in accordance with the NPS unless one of the exceptions set out in Clause 102 (4) to (8) applies.

The starting point for the IPC in that case would be that the Secretary of State considers the location to be suitable, and weighed against that would be the issues raised by Clause 102(4) to (8). Those issues could include whether special consideration of alternative locations was required if it was a habitat site, how far alternative locations had been considered by the Secretary of State in coming to the view, and whether there were local adverse impacts that the Secretary of State had not taken into account in coming to that view. However, if an NPS says that a site is potentially suitable, the starting point for the IPC would be that there are matters that must be addressed before the site can be considered suitable. The IPC would still need to come to a view on those matters and would then need to

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weigh the complete package against the issues raised by Clause 102(4) to (8). I think that that is a solid distinction.

The amendments would restrict the Secretary of State’s ability to identify suitable sites for NSIPs in a national policy statement and, therefore, his or her ability to take responsibility and accountability for that policy. The noble Baroness will understand that I cannot accept that amendment.

Amendment No. 24 goes to the heart of the matter. I should be absolutely clear that if an NPS were to identify a location as suitable or potentially suitable for development, that would in no way predetermine the outcome of a decision whether to grant development consent.

The IPC will always be required to consider any application in the context of the provisions for the examination of applications set out in Clause 102, and will be able to refuse consent in the circumstances set out in the clause. However, the noble Baroness has made an important point, which I accept, about clarity and certainty. I understand the concerns, and will take the matter away and consider it further to determine whether we can do something to make this clearer. Clause 5 may not be the appropriate place for clarification, because, as I have said, it is important that we maintain the distinction between policy-making and decision-making. We may be able to clarify this to her satisfaction in the decision test. If she withdraws the amendment, I will give the matter more thought.

I will not be able to give the noble Baroness, Lady Hamwee, as much satisfaction on Amendment No. 20, which deals with statutory undertakers. In Committee, noble Lords argued that NPSs should focus on policy issues alone and should not be distracted by the detail of who should carry out development. I went into this in some detail in my letter, and it is hard for me to improve on that. We may simply have to agree to disagree.

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