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There is a pressing reason why this provision is necessary. Clause 5(5)(e) should be read alongside Clause 172, which defines appropriate authority, as she knows, for the purposes of Chapter 2, Part VI, of the Town and Country Planning Act. At the risk of déj vu, I must repeat that removing the provision to identify statutory undertakers would result in the Secretary of State, rather than the promoter, becoming liable under the blight provisions in Clause 172. The problem is that this could greatly restrict the content of an NPS, as identifying sites as potentially suitable for development would render the Secretary of State liable for compensation for any blight caused. This would not be appropriate, because it is the promoter who will ultimately benefit from any such development, so they, not the taxpayer, should bear the burden of compensation.

Amendment No. 26 would require the NPS to set out how the policy in it relates to the provisions of other policy statements. Noble Lords seek to ensure that NPSs are consistent with one another and have proper regard for the policies that each sets out. Noble Lords also seek to ensure that they reflect the reality of the rest of the planning system and are consistent with it. I certainly agree. Indeed, the Bill is a huge step forward in this regard. For the first time, nationally significant infrastructure will be planned for and decided

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according to a single consent process, rather than through the minefield of consent regimes that we have now. However, it is neither appropriate nor practical to require NPSs to set out how each relates to every other NPS.

It is clear that in some cases NPSs will have close links with other NPSs. I recall our debate in Committee on the amendments tabled by the noble Lord, Lord Berkeley—who unfortunately is not in his place at the moment—on the transport NPSs. In other cases, however, there will be little common ground. On the other hand, NPSs will be linked to a wide range of policies outside the new regime, and those relationships will often be critical. NPSs will have to justify their policy within the wider orbit of relevant policies on transport, energy, the environment and planning, with the objective of contributing to the achievement of sustainable development. NPSs will need to explain and give evidence of those relationships. However, they will be different in each situation and will therefore be complex, so it would not be practical to place a requirement in the Bill that would constrain them artificially.

Finally, Amendment No. 22 would require each NPS to set out the extent to which it supersedes policy in a planning policy statement or any other statement of government policy. I sympathise with the purpose of the amendment, but if an NPS were to render policy out of date, this should be clear. However, NPSs will usually be narrowly focused. They will set out policy only on certain types of infrastructure above the threshold. The main thrust of this policy will apply above the thresholds set out in the Bill, although obviously as statements of government policy they will influence the TCP system to a degree.

Planning policy statements and White Papers are fundamentally different as they are drawn up for different purposes. For the IPC, the NPS is the primary policy framework. When other planning policy statements and White Papers with their own particular purposes and functions are out of date, they are either revised or replaced with another document with a similar purpose. The problem with the amendment is that there is a blurring of the line between different types of policy statement, which is not very helpful. Under the TCP system, the decision must be made in accordance with the statutory development plan unless material considerations indicate otherwise. The point raised by the noble Baroness is rather complex and I have replied in a rather elaborate way. If she will allow, I should like to write to her on this point, which is important and should be placed on the record.

5.15 pm

Baroness Hamwee: My Lords, I am grateful for that. I will not press the point on the statutory undertaker, although I still think that Clause 172 should be sorted out instead of being prayed in aid as the excuse for keeping Clause 5 as it is. Clause 5 should not give a particular statutory undertaker an advantage if there are other candidates. Clause 22 is complex. We will have to have confidence that the NPS will make the position clear if there is scope for confusion, but I look forward to reading what the Minister might write.



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As regards Amendment No. 24 and the other amendments to which it is linked, in substance if not in drafting, I absolutely take the point that Clause 102, on the decision-making process, probably is the place to deal with that issue. I am pleased to hear what the Minister has said and I am even more pleased that she will think about it further. To have something in the Bill that says no more than we have heard from the Government but makes absolutely clear the position would be extremely helpful and would give a lot of reassurance to people who have more cynicism about these matters than I should wish to express at this point. On that basis, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 19 and 20 not moved.]

Earl Cathcart moved Amendment No. 21:

21: Clause 5, page 3, line 31, at end insert—

“( ) set out the flood risk of identified locations.”

The noble Earl said: My Lords, Amendment No. 21 on assessing flood risk adds to the list in Clause 5(5), so that it would read:

“The policy set out in a national policy statement may in particular ... set out the flood risk of identified locations”.

When the Housing and Regeneration Bill was debated in this House, I moved similar amendments on flooding. Your Lordships will be relieved that I shall not regurgitate all the arguments. The House is only too well aware of the arguments and the problems. So I shall cut to the chase. Earlier this summer, my noble friend Lord Rotherwick sponsored an excellent debate on flood management. Then the noble Lord, Lord Davies, repeated a Statement on the Pitt report. Following the floods in 2007, there have been a number of Questions on flooding.

Your Lordships will recall that after the floods in 2007, power was disrupted and bottled water had to be shipped into areas because installations were damaged. In this House, a Question was asked about how many similar installations there are in the country in danger of flooding. The noble Lord, Lord Rooker, answered that there were hundreds. Unfortunately, my amendment on flooding in the Housing Bill was not accepted by the Government. In Committee, the Minister used PPS25 in her defence. She said:

“The point about PPS25 is that it gives us, for the first time, a hierarchy of risk, which we identify in terms of where we can build with modification. How do we assess the nature of the risk and what do we have to do ... you cannot not build on flood areas in this country; you must assess the risk. That is where the Environment Agency comes in. PPS25 gives us a much more accurate tool than we have ever had before”.—[Official Report, 3/6/08; col. GC40.]

When I pressed my amendment on Report, the noble Lord, Lord Bassam of Brighton, responded for the Government by saying:

“The proper place for considerations such as these is within the planning regime. We will have the opportunity to debate this when the Planning Bill comes to your Lordships’ House later this month”.—[Official Report, 7/7/08; col. 566.]

So here we are.



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I agree with the Minister when she says that:

“You cannot not build on flood areas in this country”.—[Official Report, 3/6/08; col. GC40.]

Of course she is right, but where this happens, mitigating action should be undertaken to ensure that development is flood resilient and resistant where necessary. The noble Lord, Lord Rooker, said that there were hundreds of existing installations up and down the country that are in danger from flooding. We must not repeat past mistakes when considering future infrastructure installations. My amendment provides that when the IPC is considering an application, it must assess the flood risk so that any mistakes made in the past are not repeated.

There are two types of flood risk: heavy rain or rivers bursting their banks and, as my noble friend Lord Dixon-Smith said in Committee, flooding due to rising sea levels. He went on to say:

“The thought of a nuclear power station being inundated in half a century’s time ... A large load of radioactive material being lapped by the sea, would not be tolerable”.—[Official Report, 6/10/08; col. 97.]

Of course he is quite right. As an example my noble friend highlighted Dungeness which is located on the end of a long spit of very low-lying sand, all of which is susceptible to rising sea levels. Would we or should we build the next generation of nuclear power stations on a similar site? Perhaps not, if a flood risk assessment was made.

I am absolutely certain that the noble Baroness in responding to the amendment will fall back on PPS25 for her defence. First, can she guarantee that the IPC will as a matter of course be required to comply with PPS25 for all applications that come before it? Secondly, is PPS25 robust enough? I am sure that the Minister will argue that it is, but others are not so sure. In his review of flooding, Sir Michael Pitt concluded that there is a need to strengthen and reinforce the provision of PPS25 and the building regulations to ensure that flood resistance and resilience measures are fully built into all new developments where necessary. Sir John Harman, as chairman of the Environment Agency, said in response to the Pitt review that urgent review and consolidation of flood risk management legislation will, however, be needed if the recommendations are to be turned into action. Consideration by government of a new water Bill is, in our view, vital to rationalise outdated legislation and to give full effect to the recommendations.

I do not pretend to be an expert on flooding, but here we have two experts who say that the current legislation, and in particular PPS25, is not up to the job. The likelihood of the Government strengthening PPS25 or introducing a water Bill in the near future is remote, hence the need to have a requirement in the Bill to assess the flood risk of identified locations. I beg to move.

The Earl of Caithness: My Lords, I support my noble friend’s amendment. I referred to flooding at Second Reading and, given the weather and the prospects for flooding in this country, it concerns me that something about it is not on the face of the Bill.

My noble friend is right: the Government will run for cover, will not want to be helpful to us and will say that PPS25 is the answer. It is not the answer. It is not

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robust enough and will not solve the problems. It will not identify the situation clearly enough for major infrastructure projects.

The Government development in east London, where many houses were built on the flood plain when Mr Prescott was in charge—it was one of his not so good moves—is one example of where the Government have not a grip of what this policy is all about. I hope the Minister will reflect that this is a serious matter for major infrastructure. PPS25 is inadequate and something ought to be on the face of the Bill.

Baroness Ford: My Lords, I do not recognise the caricature of PPS25 in the way it has been described today. In my experience, not only is PPS25 robust but on at least two occasions it led to an organisation of which I was in charge to pull back from a planning application. Contrary to what was attributed to Sir John Harman, the statutory process of consulting the Environment Agency also provides an important flooding safeguard. Flooding is an enormously important issue, as the noble Earl said, but it is unfair to characterise government action—PPS25, in particular—and the role of the Environment Agency in quite the way that we have heard today.

Baroness Andrews: My Lords, I am grateful to my noble friend for that remark; she put the position more powerfully than I could. I have tried to be as helpful as I can throughout the course of the Bill. I shall continue to try to be helpful, including trying to explain to the noble Earl opposite, who makes a powerful and important case, why he can be reassured by not only PPS25 but other matters as well. I am glad to have another opportunity to reassure the House that the risk of flooding will be addressed when NPSs are being drawn up.

The August before last, I spent a considerable amount of time touring the country. My department deals with flood resilience and I spent a great deal of time looking into the damp and wet basements of people who had been flooded in South Yorkshire, Sheffield and Oxfordshire. We understand the human tragedy when people get flooded and the risks that are posed to some of our infrastructure. Therefore, when I say that the NPSs have to take into account the risk of flooding as part of national policy, I am very serious about it.

On the issue of PPS25, yes, of course the IPC will have to comply with it, as it will have to comply with all aspects of government policy. Sir Michael Pitt agreed with the Government and the Environment Agency that the policy in PPS25 is right and that it should be rigorously applied by local planning authorities. We intend to examine whether there any barriers to delivery which may be hindering local authorities from implementing PPS25. We are working closely with planning authorities, the Environment Agency and other stakeholders to make sure that that policy is in place on the ground. We issued a revised practice guide in June this year; set up regional workshops to deliver the message; we have made it compulsory to consult the Environment Agency on planning applications in flood risk areas; and we have issued a flooding

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direction which means that local planners cannot approve major schemes against Environment Agency advice without first checking with Ministers.

The NPS has to integrate, reflect and abide by relevant government policy at the time, including having regard to the policy and tests set out in PPS25 on the risk of flooding. It has to be applied where it is relevant.

What is key to what the NPS is able to do and say in areas where there might be issues such as flooding is the appraisal of sustainability. That will assess the various impacts of policy at a strategic level, and that includes flood risk. Where flooding is identified as a key risk, the appraisal will address the issue in detail. Some infrastructure will not be at risk of flooding, such as offshore wind farms—a very helpful example provided by the Box. Clearly it would not be right in all cases to require detailed assessment simply for the sake of it. However, consideration will be given to the risk of flooding for each NPS. It will be taken into account as part of the appraisal process and addressed as appropriate in the NPS.

Once we start identifying bits of policy here and there, we are open to what my noble friend Lord Hunt referred to as the list principle, refracting policy through individual policies. That is not what the NPS is about: it is about integration. Under Clause 5(6), Ministers,

It can also be expected that an explanation of these factors at this point will in some instances include flooding.

Finally, the NPSs will be subject to public consultation and parliamentary scrutiny, both of which are very alive to the issue of flooding. Those factors will make doubly sure that NPSs take full and proper account of all these matters, including the risk of flooding, before they are designated.

I hope that that reassures the noble Earl, Lord Cathcart, who has been a champion of this issue since we began proceedings on the Bill. I understand why he is doing it and hope that he will be reassured.

5.30 pm

Earl Cathcart: My Lords, I thank my noble friend Lord Caithness for his support. From the Minister’s reaction, I seem to have put my hand into a hornets’ nest. I say to the noble Baroness, Lady Ford, that the quotes from Sir Michael Pitt and Sir John Harman came straight from letters. The Minister probably has other such quotes.

This is a big issue, which was highlighted by the terrible events of last summer. We must learn those lessons. We must somehow react to the Pitt recommendations—there are 90 of them. That is a Defra responsibility, but responsibility also falls on the noble Baroness’s shoulders for planning and housing. Departments must get together and see how to work through the Pitt recommendations to find the right answers so that when we build housing or the large infrastructures that will be built over the next 10 years, we do not make the same mistakes that have been made in the past.



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Having stuck my hand into the hornets’ nest, I am reassured by the noble Baroness saying that the national policy statements and the IPC will have to take regard of PPS25 whether it is currently robust enough or not. That is heartening and I shall withdraw the amendment.

Baroness Andrews: My Lords, before the noble Earl withdraws the amendment, I should like to make a clarification to ensure that I have not misled the House. I said that the IPC would comply with aspects of government policy, particularly PPS25. The IPC will have to determine its policy in accordance with the national policy statement. That will not encompass the whole of government policy but will reflect the national policy statement that is relevant. The NPS will take account of government policy when it is relevant and that is what the IPC will take account of. I want to refine my rather bold statement to the relevance of policy.

Earl Cathcart: My Lords, I thank the Minister. I presume that the IPC would have to look at flooding and ask whether requirements had been complied with, whether the operation was resilient and whether flood risk had been mitigated as far as possible. The Minister is nodding. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 22 not moved.]

Baroness Andrews moved Amendment No. 23:

23: Clause 5, page 3, line 31, at end insert—

“(5A) If a national policy statement sets out policy in relation to a particular description of development, the statement must set out criteria to be taken into account in the design of that description of development.”

On Question, amendment agreed to.

[Amendment No. 24 not moved.]

Baroness Andrews moved Amendment No. 25:

25: Clause 5, page 3, line 33, at end insert—

“(6A) The reasons must (in particular) include an explanation of how the policy set out in the statement takes account of Government policy relating to the mitigation of, and adaptation to, climate change.”

On Question, amendment agreed to.

[Amendment No. 26 not moved.]

Clause 6 [Review]:

Lord Dixon-Smith moved Amendment No. 27:

27: Clause 6, page 3, line 40, at end insert—

“( ) The Secretary of State shall consider continuously whether each national policy statement should be reviewed.”

The noble Lord said: My Lords, one of the problems that we all face in relation to legislative timetables is when to put down amendments. I feel bound to say that I would not have put down this amendment if the plethora of government amendments in this group had been in front of it. It is fair to note that our debate in Committee has provoked the Government into action.

The Bill states that the Secretary of State must review each national policy statement whenever the Secretary of State thinks fit. There may be occasions when the Secretary of State does not think it fit other than for matters of necessity. We tabled our amendment

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to deal with that, and I have to move it in order for the Minister to get up and explain her amendments. I think that we will find that in doing so she answers the question. I beg to move.

The Earl of Caithness: My Lords, when the Minister speaks to her Amendment No. 28, will she explain why it is necessary to include new subsections (1B) and (1C) and say whether they are limiting? I would use the list-principle argument that she used against me on the previous amendment to ask whether the subsections restrict the Secretary of State. When there is a change of government and a new Secretary of State, there is bound to be a change in some of the national policy statements out of pure politics. If we go back to 1997, the new Labour Government would have changed the national policy statements on roads and nuclear power. When a new Secretary of State takes over for an incoming Government, he will review the national policy statement. There might have been a manifesto pledge to build more roads or whatever the infrastructure might be. I am concerned that new subsections (1B) and (1C) are a little limiting in that respect. I would therefore be grateful if the Minister paid particular attention to that. She will not have been surprised to hear what I have said, because I raised much the same point in Committee.

Baroness Hamwee: My Lords, I have Amendment No. 40 in this group. It would amend Clause 11, which lists points reflected in the Government’s amendments. We have seen the list before. My amendment would change Clause 11(2) to require the Secretary of State to suspend the operation if he thought that there had been a significant change in circumstances, that the change had not been anticipated and that, if it had been, policy would have been materially different. This should not be discretionary. One would expect that the Secretary of State must and should suspend the operation. I compare this clause with Clause 6, which is a “must” clause. It says:

“The Secretary of State must review each national policy statement whenever the Secretary of State thinks it appropriate to do so”,

and then “must do” one of the three things set out below.


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