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My noble friend also told us in Committee that the Government were about to revise planning policy guidance 15 on the historic environment and PPG16 on archaeology, unifying them into one planning policy statement, which,
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- “will in turn feed into the national policy statements and will be taken account of in IPC decisions”.—[Official Report, 8/10/08; col. 291.]
Those assurances are welcome and to an extent, valuable. I regret, however, that I do not draw sufficient comfort from them.
Regulations do not offer the same solidity of protection as statute. They can all too easily be altered by government or discarded. Parliament has no capacity to amend regulations; they are not subject to the same scrutiny as Bills; and they are rarely rejected. There could be enormous pressure to sweep aside anything as inconvenient as heritage when it stands in the path of proposed development, backed by powerful economic interests and other government departments that are not squeamish about heritage. Previous Governments have taken the view that protection of the historic environment is so important that it should be enshrined in statute and not left effectively to the discretion of the Secretary of State.
My noble friend made no specific mention in Committee of protection of registered parks, gardens and battlefields. At present they enjoy varying levels of protection. Parks and gardens are currently designated under a statutory scheme set out in Section 8C of the Historic Buildings and Ancient Monuments Act 1953. PPG15 says that preserving them should be a material planning consideration. It says the same about battlefield sites, although there is currently no statutory protection for them.
My noble friend has not promised new regulations to fill the void in protection of parks and gardens that the Bill would create. Instead, she has suggested that my proposed new clause would move us beyond maintaining current levels of protection and that, while she sympathises with that desire, she does not think it appropriate to do so in this Bill, using it to restructure or undermine a settlement that has been carefully worked out over time.
My response is that the Government have made it clear that that is exactly what they mean to do in the Heritage Protection Bill, which they have published in draft. In it, the Government have put forward their policy to extend the statutory duty to protect beyond listed buildings to other heritage assets in a new, unified system. The scope of the new unified system of designation and protection would include what are termed in the draft Bill “heritage open spaces” defined to include parks, gardens and battlefields.
We hope that the Heritage Protection Bill will be in the Government’s legislative programme for the next Session, but that is by no means a certainty. If it is included, the legislation will not be on the statute book for a year; if it is not, it may then not appear on the legislative programme for some years, if ever.
I also need to make the point that the Planning Bill and the Heritage Protection Bill ought to be consistent with each other. The development consent regime ought to be consistent with the Government’s policy on protection of the historic environment. The Planning Bill ought, therefore, to frame its provisions concerning heritage protection on the basis of the unified system that the Government proclaim they intend to bring in by means of the Heritage Protection Bill. If not,
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There is one more point that I want to emphasise. In my desire, which is widely shared as our debate in Committee demonstrated, to protect the heritage in the face of the extraordinarily powerful forces of development that the Bill foretells, I am not seeking to be intransigent or unreasonable. The proposed new clause requires only that the Secretary of State and the commission shall have special regard to the desirability of preserving heritage assets. It does not require that, when preservation of the heritage is in conflict with infrastructure development, heritage must prevail. My case is that heritage should never be destroyed without the most careful weighing of the costs and benefits. We need new infrastructure, we need faster processes for taking decisions, but we also need to guard against destroying heritage casually. We need speed of decision-taking, but not poverty of decision-taking.
There is an immense amount at stake here for the heritage. This proposed new clause does no more than what the Government have said they want to do. It introduces into the new regime existing protections for heritage, and it enacts some additional protection that has already been proclaimed by the Government in a draft Bill as their policy. It does these things more surely and completely than the Government have so far proposed. I beg to move.
Lord Williamson of Horton: My Lords, the noble Lord, Lord Howarth, has shown admirable persistence in seeking to persuade the Government to accept this provision on the regard that should be given to the national heritage within the new planning structure that the Bill introduces. I know that the Minister has accepted a number of requests for additional provisions within the Bill—for example, on the attention to be given to good design—and, no doubt, she does not want to overload the Bill. None the less, this debate on Report is, in practice, the last stage during the passage of the Bill when we can ask the Government to consider favourably the new clause proposed in Amendment No. 64, which is moderately drafted. Like the noble Lord, Lord Howarth, I would like to see it included in the Bill.
Lord Inglewood: My Lords, I add my support to the remarks of the noble Lord, Lord Howarth, and the sentiment behind them. When faced with large projects, the reality is invariably that the pressure seems to be behind those who wish to carry the project forward. It is almost by definition that once it has got that far, there is an enormously strong momentum. In those circumstances, the perennial tendency is for those things that cannot be reduced to figures in some sophisticated and more or less completely incomprehensible cost-benefit analysis to get swept to one side. As the noble Lord said, what is proposed is entirely in line with the proposed Heritage Protection Bill, and it would be inconsistent for the Government not to include it here.
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Lord Judd:My Lords, I support my noble friend warmly on this amendment and to make the point, which I have made on other amendments, that those of us who support the whole strategy of the Government and the importance of national planning to be able to make a success of our economy do so so that we have a society worth living in. If that society is to be worth living in, taking our heritage seriously and enjoying it must be priorities.
Lord Low of Dalston: My Lords, there is very little that the noble Lord left unsaid, but I add my voice in support of this moderate and reasonably framed amendment. I am sure that we are at one on the importance of preserving our heritage. There is no issue there. In Committee, the Minister was at pains to assure us that she is passionate about design, and I am sure the same is equally true with regard to her attitude to preserving our heritage. The only issue appears to be how best to do it. From that point of view, I hope that she will be sympathetic to this amendment so that its mover is essentially pushing at an open door.
All the amendment does is to apply to the new development consent regime the existing statutory protections for heritage that apply under the town and country planning legislation. For reasons that I do not entirely understand, they are disapplied by the Bill in relation to the new development consent regime for nationally significant infrastructure. I should have thought that the important thing is to achieve consistency between the two regimes—the town and country planning regime and the new development consent regime. That has already been stressed by noble Lords who have spoken. After all, heritage is heritage regardless of which route the planning application goes down. It is no less so just because it is dealing with a major infrastructure project. Indeed, it might be argued that it is all the more important to protect heritage when we are dealing with major infrastructure projects that can, if not handled correctly, constitute a bigger blot on the landscape—a greater eyesore—than smaller developments. I hope that the Minister will be able to see her way to accepting this amendment.
Baroness Whitaker: My Lords, I strongly support my noble friend’s reasonable amendment. The harm that could be done would be irrevocable; that is the problem. I implore the Minister to provide the safeguards that he seeks.
Lord Chorley: My Lords, in Committee I spoke in support of the amendment moved by the noble Lord, Lord Howarth. Since this is the first time I have spoken on Report, I declare a variety of interests in heritage organisations; I was formerly chairman of the National Trust and so on. There is not much more to be said in argument than the noble Lord, Lord Howarth, so comprehensively and devastatingly said in just a few minutes flat. The Minister was extremely good to the noble Lord, Lord Judd, and me in helping us out with national parks. In terms of the Bill, that was probably a simpler issue because it is was that national parks are planning authorities. Nevertheless by the same token, I hope that the Minister will see her way to giving—however it is done in the Bill—equivalent status and protection to heritage assets.
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Lord Reay: My Lords, the noble Lord, Lord Howarth of Newport, made an extremely powerful and reasonable argument. I support his amendment, and I hope the Minister will see her way to accepting it.
Lord Cobbold: My Lords, I add my name in support of this amendment for the reasons that have been expressed by all noble Lords. It is very important, and I hope the Minister will accept it.
Lord Neill of Bladen: My Lords, the logic of this amendment is irresistible. It is in line with many prior policies that we have decided in other enactments. This general provision would be an enormous addition and safeguard in the Bill.
Baroness Andrews: My Lords, I listened closely to what noble Lords said. We have returned to a topic that has been assiduously pursued by my noble friend in ways that I can well appreciate. There is little that divides us when we consider the importance that we attach to protecting our heritage. I listened to the contributions from all around the House, which clearly put an obligation on me to explain as clearly as I can why we cannot accept this amendment. In so doing, I want to give every assurance to noble Lords that the Bill and the protections that will be carried forward will be more than sufficient to safeguard what noble Lords are concerned about. I shall also address the other issues that arise in the course of the argument.
My noble friend raised similar points in Committee, since when my officials and I have been in contact with him several times. I had hoped that we had been able to offer him the reassurance for which he was looking that the system that we are creating under this Bill will continue to maintain the highest levels of protection for heritage assets.
I know that this House takes the issue extremely seriously and I was grateful that my noble friend gave me advance warning of what he was going to say on Report. Let me try again to reassure all noble Lords who, rightly, want to be absolutely sure that the Bill does not deliberately or inadvertently reduce the protection available to our precious heritage and, in so doing, also to reassure the voluntary heritage organisations that have joined the debate.
As the noble Lord, Lord Low, said, we all have a common aim of maintaining existing statutory protection for heritage under the new infrastructure regime proposed in the Bill. I am grateful to my noble friend for outlining the other legislation and sharing with us details about why he remains concerned that the Bill will not deliver that objective. He is right when he says that Sections 66 and 72 of the Planning (Listed Buildings and Conservation Areas) Act 1990 will not apply to the new regime, but he knows that there is nothing sinister in that, as we are disapplying many consent regimes in so far as the new single consent regime will replace them. The Historic Buildings and Ancient Monuments Act 1953, which he cited, is untouched by the Bill.
In contrast to what my noble friend and the noble Lord, Lord Low, said, Clause 33 does not specifically disapply the protections for heritage in the 1979 and
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I can do no more than reiterate in large part what I said in Committee. Under the Bill, a project that meets the threshold of a nationally significant project will require a single development consent. We have agreed across two days of debate on Report alone that that is one of the great prizes of the Bill. We are moving from the position where NSIP promoters need to secure a multitude of consents, including many, if not most, of the consents mentioned in Clause 33, to a position where a development consent order will cover all of them but will not require any consent under any of the existing consent regimes mentioned in Clause 33.
We certainly do not intend through the streamlining of consent regimes to undermine the vital protections that exist for heritage assets. Why should we take such a risk when we are completely in agreement about the unique value of our heritage and the need to be as vigilant as possible against any sort of vandalism? We intend through the Bill and secondary legislation to require that, when the IPC makes decisions on projects that would have implications for heritage assets, it must decide on those works in exactly the same way as a decision-maker under the Planning (Listed Buildings and Conservation Areas) Act 1990. We intend to replicate the tests set out in Sections 66 and 72 of that Act in the decision test in Clause 102 for the IPC and in Clause 103 for the Secretary of State by prescribing considerations set out in Sections 66 and 72 of the Act as matters to which the decision-maker must have regard. Clause 102(2)(c) gives the Secretary of State the power to do that by a set of regulations that prescribe matters to which the IPC must have regard and Clause 103(2)(b) provides an identical power for cases where the Secretary of State is the decision-maker.
In practice, the IPC, in considering whether to grant development consent that would affect a listed building, will have to have special regard to the desirability of preserving the building, its setting or any features of special architectural or historic interest that it possesses. It will be likewise for cases of major projects that affect conservation areas and scheduled ancient monuments.
My noble friend has argued that his advisers feel that regulations along the lines that I suggest will provide a significantly lesser level of protection than exists at the moment. I simply disagree with him. The fact that the protection is being enabled through regulations does not diminish or compromise its content or force. Decisions on works forming part of an NSIP that would affect listed buildings and other heritage assets will continue to be subject to the special considerations that form part of the existing heritage protection regime. That will be what the law requires.
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In practical terms, it would be as difficult to water down regulations about how NSIPs that affect heritage assets should be considered as it would be to water down primary legislation affecting them. I remind noble Lords that Clause 224(5)(e) makes it absolutely clear that regulations under Clause 102(2)(c) or Clause 103(2)(b) are subject to affirmative resolution. My noble friend knows as well as I do how seriously this House takes its responsibilities in scrutinising and voting on affirmative regulations. It would be a brave Minister indeed who—not least knowing the assurances that I have given on the record—attempted to revise the affirmative regulations that we intend to introduce under Clause 102(2)(c) in such a way as to dilute heritage protection.
I say one other thing to my noble friend and other noble Lords, because I know the level of concern in the Chamber. The protections in the Bill have not been designed and advocated simply by my department, which is responsible for planning. They have the full approval of DCMS, the national custodian of heritage, and of all Ministers in that department. They would not contemplate a dilution of protections.
I hope that noble Lords will be content with those joint assurances. I also hope that they address my noble friend’s specific concerns about the 1990 Act. I should add that of course our regulations will require the IPC to take into account the tests in the Ancient Monuments and Archaeological Areas Act 1979, where an NSIP site includes a scheduled monument.
The noble Lord, Lord Williamson, pointed out that we have included many amendments in the Bill. We have done so with good reason. The Bill has been significantly improved by the contribution of noble Lords across the House. It is not a question of overloading the Bill; it is a question of the impact of the amendment. The amendment would cause problems with national policy statements. In short, it would undermine the integrity of the NPSs.
As noble Lords know, we intend national policy statements to take account of and reflect the range of policy issues relevant to decisions on nationally significant infrastructure. The amendment risks undermining that balance, because it isolates heritage for special treatment. It would wrench around the direction of travel in which we want to proceed by adding special requirements for heritage that will not be placed on any other aspect of policy. Such a step would weaken the coherence and effectiveness of the NPSs. It would cut across our objective of creating a streamlined single consent regime.
It would also undoubtedly invite a host of similar, understandable requests from other sectors. I have already rejected, against strong arguments from noble Lords opposite, the possibility of identifying flood risk as a separate and paramount issue. Other issues are equally significant: biodiversity could make an equal claim, as the noble Baroness, Lady Young, intimated in Committee. If we follow the logic of specifying all important issues in the Bill, we would end up not only with an unwieldy list in primary legislation but with the NPSs not reflecting but refracting policy.
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I am grateful to my noble friend for reminding the House that we have already made it clear that we intend that NPSs will be required to take account of policy set out in planning policy statements where they are relevant, including the crucial ones on heritage and archaeology, PPS15 and PPS16. They will be doing so in future on the basis of revised, updated and stronger policy. That work is being undertaken now by my department in close conjunction with English Heritage. It will be an important opportunity to strengthen protection and to raise the profile of policy in relation to heritage and archaeology to ensure that it gets appropriate weight in decision-making.
My noble friend’s amendment also includes parks, gardens and battlefields specifically, from which I infer that he wants to provide them with comparable protection to that for listed buildings. Since we discussed this last week, he will not be surprised to hear that we do not believe that it would be appropriate to extend protections in this way. The Bill takes account of current legislation. The noble Lord is right that there is nothing on the statute book on parks and gardens that is similar to the specific consents that are required for works on listed buildings, scheduled monuments or conservation areas, but this is why the Bill does not mention them. The Bill is about nationally significant infrastructure projects and enabling them to obtain the consents necessary to allow them to proceed.
However desirable it may be, the Bill is simply not the place in which to rewrite the existing system or to extend the protection regime. Doing this would turn the Bill into a Pandora’s box of legislative opportunism. Our system of designation, combined with the opportunities provided through community consultation and the use of local lists, is designed to help us to make admittedly difficult judgments about what it is most important to preserve, and I do not wish to undermine that unintentionally.
The noble Lord knows that I cannot comment on future legislative Sessions, but I can say that the Bill has been drafted according to the current statute book and that putting parks, gardens and battlefields on to a national register would not confer any additional legal protection. It would send the signal that they should feature more prominently in any consideration, but that signal could also be strongly sent, if we so chose, in our revised and updated planning policy statements 15 and 16. That would bring parks, gardens and battlefields to the fore very effectively. It is not necessary to put into the Bill the protections that the noble Lord wants to achieve his objectives. His objectives can be achieved more appropriately in other ways.
Let me finish by giving a few more assurances. We have already put into the Bill—and have been delighted to do so—things that will strengthen the involvement of the national parks; we have clarified further how and when NPSs can be reviewed; we have provided for greater challenge in the examination process; we have made it clear that there must be a new appraisal of sustainability whenever an NPS is issued or revised; and we have clarified that the Secretary of State, when preparing NPSs, must have the objective of contributing to achievable sustainable development, which includes
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We envisage that all NPSs will explicitly address heritage issues that are relevant to the sectors covered by them and we will ensure that heritage protection bodies such as English Heritage and Cadw will be specified as statutory consultees in the NPSs. This recognises the arguments posed by the noble Lord and specifically secures heritage organisations such as English Heritage as partners in the creation and content of the NPSs. They will be statutory consultees for individual applications that could affect heritage assets.
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