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The noble and learned Lord, Lord Boyd of Duncansby, referred to the concept of the hierarchy and, as the noble Baroness, Lady Hamwee, said, there has to be a measure of local option. If you are going to make local government mean anything, it has to be in a position to make decisions. It is a question of what are the influences that will lead it to make a decision in a particular way. Where the IPC is dealing with infrastructure projects at the highest level, the same principles should apply at the local level. However, I am not entirely clear that the existing planning law provides for that. Throughout the Bill one has been very conscious of the influences of nimby. When I was Planning Minister at the Department of the Environment there was another one, NOTE—“not over there either”.
One has to recognise that there are often legitimate and powerful local pressures that will frustrate what most people would regard as being a national imperative. Somehow one has to deal with that. I always come back to the Hampshire experience of a plan for dealing with a major waste incinerator. There was total uproar and the plan was rejected. Waste incinerators generating power are useful instruments for both dealing with waste and generating power. Hampshire then set about a process of massive consultation within the county and, in the end, came up with a proposal which had sufficient support to get through. But behind it all there was, even then, a clear national policy that this ought to be encouraged and ought to happen. It was that which enabled it to drive the process forward and that is what I am asking for here.
I shall study what the Minister said and I hope that I will come to share his optimism that this will happen. Some of it will depend on government action independently of the Bill but following it, when the planning policy statements, the planning guidance
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Amendment, by leave, withdrawn.
Clause 37 [Applications for orders granting development consent]:
Baroness Andrews moved Amendment No. 70:
70: Clause 37, page 24, line 6, leave out from second “report” to end of line 10 and insert “giving details of—
(a) what has been done in compliance with sections 42, 47 and 48 in relation to a proposed application that has become the application,
(b) any relevant responses, and
(c) the account taken of any relevant responses.
(8) In subsection (7) “relevant response” has the meaning given by section 49(3).”
On Question, amendment agreed to.
Baroness Andrews moved Amendment No. 72:
On Question, amendment agreed to.
Clause 43 [Local authorities for purposes of section 42(1)(b)]:
Baroness Andrews moved Amendments Nos. 73 and 74:
74: Clause 43, page 26, line 4, at end insert—
“(g) a National Park authority;
(h) the Broads authority.”
On Question, amendments agreed to.
Clause 46 [Duty to notify Commission of proposed application]:
Baroness Andrews moved Amendments Nos. 76 and 77:
On Question, amendments agreed to.
Clause 47 [Duty to consult local community]:
Baroness Andrews moved Amendment No. 78:
On Question, amendment agreed to.
Baroness Andrews moved Amendments Nos. 80 and 81:
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81: After Clause 49, insert the following new Clause—
“Guidance about pre-application procedure
(1) Guidance may be issued about how to comply with the requirements of this Chapter.
(2) Guidance under this section may be issued by the Commission or the Secretary of State.
(3) The applicant must have regard to any guidance under this section.”
On Question, amendments agreed to.
Lord Berkeley moved Amendment No. 81A:
The noble Lord said: My Lords, I shall speak also to Amendments Nos. 81B to 81D. We are moving now to Chapter 3—“Assistance for applicants and others”—and, in particular, Clause 52, which is concerned with rights of entry. One of the objectives of the Bill, quite rightly, is to avoid promoters having to make multiple applications and I have been encouraged by the Society of Parliamentary Agents to table the amendments because we have identified gaps in the pre-application procedures when compared with those of the Transport and Works Act, with which noble Lords will be very familiar.
6.30 pm
The purpose of the amendments is to allow the IPC to give rights of entry to any person proposing to apply for development consent orders in relation to land not directly affected by a proposed project but which could be indirectly affected by it, possibly by displaced environmental effects. The amendment is necessary because Clause 52(2) currently limits a right of entry that the IPC can authorise before the application to land likely to be directly required for a project. The amendments also widen the scope of the clause as a whole so that, in addition to entry for surveying, taking levels, searching and boring, entry may be authorised for generally investigating the land and to carry out ecological and archaeological investigations. Apparatus may also need to be left on the land for any of those purposes.
It is important that subsection (3) makes clear that the surveys concerned include ecological surveys, in accordance with the TWA orders prescription. In addition, subsections (2)(a) and (b) are too limiting in terms of the scope of the surveys. To assess fully the impact of a proposed project it is often necessary to survey land adjacent or near to the project to check for possible displaced effects, which would not normally be land over which the promoter is intending to seek works or compulsory purchase powers.
We are talking about the pre-application stage. It is difficult to work out how an applicant can properly carry out an environmental impact assessment, an EIA, if access to land in the vicinity of the land to be acquired and used for the project is denied. As noble Lords will know, EIAs must consider all the effects of a project, including displaced effects. The scope of the clause should be expanded to cover generally investigating as well as surveying and taking levels. The clause should also cover ecological and archaeological
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All these activities are often necessary for the purpose of carrying out a thorough EIA. Again, they are commonly used and needed in TWA orders. I beg to move.
Lord Howarth of Newport: My Lords, I support one aspect in particular of Amendment No. 81D, which would extend the right of entry to carry out archaeological investigations. I have to get what I can for the heritage, where I can. What the amendment proposes is entirely consonant with PPG16, which, when it was originally introduced, made an enormous difference in giving archaeologists the opportunity to investigate sites where development was proposed. I think this would be useful, and I hope my noble friend will think likewise.
Baroness Andrews: My Lords, I hope I can give both my noble friends sufficient assurance on the points raised by the amendments. Essentially the group of amendments tabled by my noble friend Lord Berkeley seeks to change the current provisions in respect of the rights of entry to land set out in Clause 52, particularly those in respect of the right of entry in connection with a proposed application for an order granting development consent.
The amendments would add a provision that land may be entered for the purpose of investigating, as well as surveying, the land in connection with an application. In relation to a proposed application, they would add a provision for rights to enter land in the vicinity of the land that is the subject of the application, if it could be adversely affected by the proposals. They would also provide that a person authorised to enter on land should, as well as surveying, be able to carry out ecological or archaeological investigations and give them the power to place on, leave on and remove from land apparatus for use in connection with the exercise of any of those powers.
I understand that the amendments are based on provisions that are common in orders made under the Transport and Works Act 1992. Most recently, for example, Article 21 of the Felixstowe Branch Line and Ipswich Yard Improvement Order 2008 contains provisions similar to those my noble friend proposes. However, I emphasise that there is a clear difference between what Clause 52 seeks to achieve and such TWA orders as the one I have mentioned, in that TWA orders grant consent for works to be carried out. As such, they are the end product of the application process, and will already have undergone detailed examination to decide exactly what works should be carried out and where.
Having framed my response to the amendment in those broad terms, I shall now address the specific points raised by my noble friend. Amendment No. 81A would add a provision that land may be entered for the purpose of investigating it. I reassure him that we believe the amendment is actually met: the word “surveying” is sufficiently broad that it encompasses the meaning of “investigation”.
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Amendments Nos. 81B and 81C would apply in relation to a proposed application and add a provision for rights to enter land in the vicinity of the land that is the subject of the proposed application, if it could be adversely affected by the proposals. We think that that is too wide a power for such an early stage in the process—that is, before an application has been made. The precise detail of the works may change during the examination stage, and the final order may be different in important respects from what was envisaged at the pre-application stage.
I draw my noble friend’s attention to Clause 96, which makes clear that the examination procedure rules may provide for the examining authority, alone or with others, to enter on to land, including land owned or occupied otherwise than by the applicant, for the purpose of inspecting it as part of the examining authority’s examination of the application. Rules under Clause 96 can therefore provide for the IPC to enter land, including land neighbouring the land that is the subject of the application, to determine what the impacts of the works will be and how they should be mitigated. I hope that meets his second point.
Amendment No. 81D would provide that a person authorised to enter on land should be able to carry out ecological or archaeological investigations and place on, leave on and remove from land apparatus for use in connection with the powers in Clause 52(3). I have two points in relation to that. First, as I said earlier, “survey” should be understood broadly. I reassure my noble friends that it can certainly mean archaeological and ecological surveys. Secondly, I note that Clause 52(3) concerns the power to,
- “search and bore for the purpose of ascertaining the nature of the subsoil or the presence of minerals or other matter in it”.
That “other matter” means any other subsurface matter, including any archaeological features.
Clause 118 and Schedule 5 provide that development consent orders can make provision relating to matters ancillary to development, which can include the sorts of provisions about which my noble friend is concerned—for example, carrying out surveys or taking soil samples; the removal, disposal or re-siting of apparatus; and mitigation of the adverse impact of development on property. Therefore, at the stage when consent is granted, full rights of access to relevant land can be authorised.
I believe that this fully meets the intentions in my noble friend’s amendment. The Bill brings together a number of different consent regimes, as he knows. In doing so, it is necessarily similar to each in some ways and different in others. However, the provisions are robust and thorough, and effectively address the needs of promoters. I hope he agrees with me on that, and that he will be able to withdraw his amendment.
Lord Berkeley: My Lords, I am grateful to my noble friend for that detailed explanation. She gives me quite a lot of comfort, but I still worry. At an early stage when people are trying to develop a project and they know they have to do a full EIA that will be subject to the most detailed examination, not only by the people granting permission but by the opposition, they should be able to get on to adjacent land and do their measurements. I recall, when I was working on the Channel Tunnel
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I will read with great interest what my noble friend has said and see whether I am satisfied that it gives as good a basis for going forward with an application as the Transport and Works Act might do. In the mean time, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 81B to 81D not moved.]
Clause 54 [Acceptance of applications]:
Baroness Andrews moved Amendments Nos. 82 and 83:
82: Clause 54, page 32, line 15, after “to” insert—
“(a) the consultation report received under section 37(3)(c),
(b) ”
83: Clause 54, page 32, line 16, at end insert “, and
(c) the extent to which the applicant has had regard to any guidance issued under section (Guidance about pre-application procedure).”
On Question, amendments agreed to.
Clause 59 [Local impact reports]:
[Amendments Nos. 84 and 85 not moved.]
Lord Berkeley moved Amendment No. 85A:
85A: Clause 59, page 35, line 25, leave out subsection (6) and insert—
“(6) The deadline is the deadline that is prescribed, which must be such that the applicant and any other interested party are afforded a reasonable opportunity to make representations on the local impact report to a Panel or a single commissioner (as appropriate) before the deadline for completion of the examination of the application by the Panel or the single commissioner (see section 97).”
The noble Lord said: My Lords, my amendment may look a bit confusing, but it would bring forward the deadline that would be set out in regulations for the production of local authorities’ local impact reports. Interested parties such as promoters and objectors would have an opportunity to comment on the report to the IPC before the end of its examination period in relation to the application.
This is an issue that needs a lot of study, but it occurred to me that there does not appear to be any provision for a local authority’s local impact report to be seen and commented on by any other interested party. It is essential that there is such a provision in the interests of fairness and natural justice and so that the final decision is robust, particularly because the local impact report will be a key factor in the IPC’s decision, as confirmed in Clause 102. I felt that this defect could be mitigated by bringing forward the deadline provided in Clause 59(6) to some time before the end of the examination period. Perhaps the precise timing could be considered further and covered by regulations. I beg to move.
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Baroness Hamwee: My Lords, we have three amendments in this group. I support what underlies the amendment tabled by the noble Lord, Lord Berkeley—it also underlies my Amendment No. 88—although local authorities are going to have a pretty short time. It is right to ensure that interested parties have opportunities to comment but I would not want any constraints to result from the shortening of deadlines, which would make the process more difficult.
My Amendment No. 88 would provide that,
The words “on receipt” may be a bit too restrictive, but I hope that this will prompt the Minister to tell us that regulations will have something to say about this. Currently—I keep saying “currently”, as if we are abolishing the whole of the current process, but of course we are not—in the non-IPC regime, objectors, supporters and applicants have a chance to see the other representations that are made, which makes the process open and inclusive. I believe that that should be replicated in the IPC process.
Amendments Nos. 96 and 97 take us to the interpretation section for this chapter. My noble friend Lord Greaves talked about county and district councils at the last stage of our proceedings at a different point in the Bill, although it was under this chapter. He raised a point about the punctuation. The Bill refers to,
My noble friend rightly questioned the significance of the commas. I notice that when Hansard reported the debate, it did not use commas, saying,
- “a local authority means a county council or a district council in England”.—[Official Report, 16/10/08; col. 903.]
It may have known something that we did not. The Minister acknowledged that there might be some ambiguity and said that she was concerned to ensure that no unnecessary confusion was caused by the punctuation. It is confusing, but, more than that, for all the purposes of Chapter 4, local authorities should mean both county councils and district councils. Of course, if there is only a unitary, then it is that unitary that, in most cases, will be regarded as a district authority. Where there are two tiers, then both tiers should be involved.
6.45 pm
Baroness Andrews: My Lords, this group of amendments deals with the issues relating to the examination of applications. Amendment No. 85A in the name of my noble friend Lord Berkeley seeks assurances that there will be a sufficient gap between the deadline for the submission of the local authority’s local impact report and the end of the examination process to give the applicant and other interested parties a reasonable opportunity to comment on its contents. He has raised a serious question and I am glad that he has done so. Before I deal with the amendment, noble Lords might find it useful if I set out why the Bill provides for the commission to invite the relevant local authority or local authorities to produce a local impact report in the first place.
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