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We are absolutely clear that local authorities—the democratically elected representatives of the local community—should have a clear and important role
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Local authorities will be consulted by the promoter of a project before they submit an application under the provisions of Part 5. The IPC will have to have regard to any report on the adequacy of the promoter’s consultation—a very important point—received from a local authority consultee when deciding whether to accept an application. Local authorities will be interested parties to the examination of an application.
In addition, Clause 59 requires the IPC, on accepting an application for development consent, to invite the relevant local authority or local authorities to produce a report of the likely impact on their area of the proposed development being applied for. Clause 102 then requires that the commission must have regard to the local impact report when making its decision. Clause 103 requires the Secretary of State to do just the same in cases that she decides—for example, where she exercises the power of intervention.
In drawing up this notion of the local impact report, we saw it as a serious undertaking. We wanted to give local authorities the longest time possible, as these will be detailed documents. They will reflect the impact of the development on the local development plans. They will reflect the comments of the communities themselves, which is why the deadline is the same as that for the completion of the examination of the application by the commission.
I understand my noble friend’s concerns that the applicant and certain other interested parties must not be excluded from commenting on the content of the local impact report. They should at least have the opportunity to comment on the local authority’s provisional views. I accept that the provisions of Clause 59(6) may inadvertently suggest that the applicant may be kept in the dark about the views of the local authority, so I am happy to give my noble friend Lord Berkeley the assurance that I will consider this further, ahead of Third Reading.
Amendment No. 88, in the names of the noble Baroness, Lady Hamwee, and the noble Lord, Lord Greaves, would require the examining authority to publish all written representations. Noble Lords will know, because we have rehearsed this many times in our consideration of the Bill, that access to written representations is central to our aim of making the examination process more open to the public. The Government believe that many issues that need to be examined and decided by the IPC can, in principle, be settled through exchanges of written evidence, particularly technical issues.
Those exchanges will speed up the process, reducing the need for often lengthy and, frankly, repetitious oral evidence-giving. That will also improve the analysis of evidence, by allowing technical questions to be tested in greater depth, and make the process much more accessible to members of the public, as it would be easier to understand the issues without having to
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I do not think it appropriate to specify those sorts of matters in the Bill, for obvious reasons. However, I can certainly assure the House that we intend that written representations should be made available to interested parties: that, after all, is the key to the process. I am not sure that we should necessarily publish all the material or circulate it to all parties. There could be a huge amount of material, which might come in different formats and so on.
Baroness Hamwee: My Lords, I used the word “published” quite deliberately. It is important that interested parties should define themselves, rather than be defined by another body. These days, with the use of the internet, publication is quite easy. Could the Minister consider that aspect? I acknowledge that it is probably a matter for procedural rules, but I would not like to let this go by as if I agreed with that part of her comment.
Baroness Andrews: My Lords, I am not at all surprised that the noble Baroness rose to her feet at that point. There are practical difficulties and the procedural rules have to be as generous and sufficient as possible, but let me think how we might best address that issue. The IPC would certainly have to present whatever was available for public inspection, while anyone could submit an FOI request for representations, but there is clearly a matter of principle here and I will certainly be in touch with the noble Baroness about it.
I hope that I can clarify the meaning of “local authority”, but I am afraid that there is nothing in my long speaking note about the offending commas. Amendments Nos. 96 and 97 would clarify that the meaning of “local authority”, for the purposes of the Bill, includes both the county councils and district councils. I explored this and must defer to counsel’s drafting, but I am reassured that the intention is to provide that the meaning of “local authority” applies to both county councils and district councils. For example, where a county council and a district council are affected by the development, both will be invited to prepare a local impact report and both will be statutory consultees. I hope that putting that on the record is sufficient to reassure noble Lords that the point is properly addressed and that nobody will be in any doubt. I hope that it is sufficient, in short, for these amendments not to be pressed.
Lord Berkeley: My Lords, I am grateful to my noble friend for her positive answer. I thank her for what she said and look forward to further discussion, perhaps before Third Reading. It is always tempting to say that everything must be consequential with a Cabinet Office
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Amendment, by leave, withdrawn.
Clause 66 [Panel member continuing though ceasing to be Commissioner]:
Baroness Andrews moved Amendment No. 86:
86: Clause 66, page 39, line 9, leave out “the prescribed form” and insert “writing to each of the following—
(a) the chief executive of the Commission;
(b) the person appointed to chair the Commission, where the ex-Commissioner is not the person appointed to chair the Commission;
(c) the lead member of the Panel, where the ex-Commissioner is not the lead member of the Panel”
The noble Baroness said: My Lords, Amendment No. 86, and Amendment No. 87 in Clause 80, remove unnecessary delegated powers in the Bill. Clause 66 provides that if a commissioner was, immediately before ceasing to be one, serving on a panel that has not concluded its business, he may, provided that he makes an election in a prescribed form, decide to continue as a panel member until the panel completes its work, unless he is no longer a commissioner because the Secretary of State has removed him from office. Clause 80 is a similar provision to allow a single commissioner to continue dealing with the application, though ceasing to be a commissioner.
We consider it essential that commissioners should be able to finish cases that they are working on before standing down, to ensure that the consideration of applications for development consent for nationally significant infrastructure projects is not unnecessarily disrupted by changes in personnel. The noble Baroness, Lady Hamwee, tabled amendments in Committee challenging the Government to explain why the requirement that the,
was necessary. She felt that that was a little too prescriptive. Although this amendment was not debated in Committee—the noble Baroness kindly agreed not to move it, along with a number of other amendments, so that we had more time to debate the bigger issues that the Bill raises—I saw the point that she made and I agree with her.
Amendments Nos. 86 and 87 therefore remove these instances of delegated power and provide that the election is effective from Clauses 66 and 80 themselves, if notified in writing to the chair and chief executive of the commission, as well as to the lead member of the panel where the outgoing commissioner is examining the application as part of a panel. Whenever we are able, we seek to minimise the use of delegated power in this Bill. I hope that the noble Baroness feels that we have met the issue. I commend these amendments to the House. I beg to move.
Baroness Hamwee: My Lords, I thank the Minister.
On Question, amendment agreed to.
Clause 80 [Single Commissioner continuing though ceasing to be Commissioner]:
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Baroness Andrews moved Amendment No. 87:
87: Clause 80, page 43, line 41, leave out “the prescribed form” and insert “writing to each of the following—
(a) the chief executive of the Commission;
(b) the person appointed to chair the Commission, where the ex-Commissioner is not the person appointed to chair the Commission”
On Question, amendment agreed to.
Clause 89 [Written representations]:
Clause 92 [Open-floor hearings]:
Viscount Colville of Culross moved Amendment No. 89:
The noble Viscount said: My Lords, I must start by apologising for not being in my place last Thursday when this group of amendments was called. I was not consulted about the grouping, and was therefore receiving some extremely useful education on a recondite point that arises under the Regulation of Investigatory Powers Act 2000. I am not sure that I am all that much wiser, but it was well worth doing.
I also wish the Minister to understand that I am not trying, in what I am about to say, to go back to the days of interminable planning inquiries. I participated in many of those and entirely appreciate the purpose of the system being introduced in the Bill. Nevertheless, I am not alone in wondering about the process of the examination of these large and important matters. The Government have already made the concession about having an advocate to the authority, a point that I wished to raise, but perhaps it goes a little beyond that.
The word that Ministers use perpetually in this connection is “representations”. In the planning world, those are pretty lowly objects: the lowest form of trying to say something about a planning application. I do not think that is what is meant. We have just heard about interested parties from the noble Baroness, Lady Hamwee, and that is much more important. Interested parties are not always people who just want the project to go away so that it does not affect them—although there are many who do. There are some who really do challenge some of the technical aspects of the project for good reason, and they wish to bring evidence to establish their case. There is not a word in anything that has been said so far about evidence or witnesses from people who want to make representations about a project.
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I shall give just two examples. Noble Lords will all know about the City Airport, which was built in the Royal Albert Docks only after a very strict noise regime was worked out by a very skilful acoustics expert. It may have been modified as time has gone by, but it would never have happened if it had not been subject to conditions that imposed limits on the sort of aircraft, the time of flight and that type of thing. Those were conditions attached to the planning consent, which would now be requirements in the terminology of this Bill.
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I do not know how many of your Lordships have been involved in any detail in the subject of noise, but it is a very technical subject that requires a most skilled appreciation of the various techniques and various aspects of it before a sensible conclusion can be reached. I have no doubt that in one of the airport projects that are going to be specified in the national plan there will be different methods of building a runway, a terminal or whatever it may be. These will need to be tested, not least perhaps in terms of the creation of noise and the disturbance to the immediate vicinity. I suppose that there will be skilled members of the panel with a good grounding in noise—although I am bound to say that I doubt it, as it is a very technical subject and not many people know about it.
The other proposition that I wish to be considered is the major highway project. It could be a railway project, but I shall take as an example a highway project. It will be a big scheme, as defined in the Bill, and there will probably be proposed, as there usually are, a number of alternative routes, which have to be considered at the examination. People putting forward the alternative routes will probably wish to challenge the assumptions on the basis of which the chosen route was proposed, which often involves the consideration of a traffic model.
I myself have been involved in a number of public inquiries using computer models and, although the model itself is only a short line of algebra, the inputs to the various factors in it make all the difference. If you change them around or alter them in a small way, it can make a colossal difference to the end result. What is more, the model is then iterated through the computer, so that you have an aggregation of the effects of it—and, of course, if you go too far, the aggregation is such that the thing becomes completely intolerable. Therefore, you have to have some judgment about when you stop the iterative process.
Are members of the panel going to be able to involve themselves with sufficient knowledge to do that sort of testing? Probably not. It took me a fortnight to do that sort of testing at the London School of Economics when we challenged the four ring-roads in the Greater London development plan. Those four ring-roads included the M25, which was already there; the other three never materialised, because there was something wrong with the models. I do not say that it was entirely due to me, but it was found that they should not be built—and they still have not been built. It was a very difficult proposition to grasp, which is why I want to go a little further into the process of the examination.
In such circumstances, there could very properly be an advocate to the authority who will help with this sort of thing, but how is he going to get his instructions? If no one on the panel understands the matter, who else is going to tell him what questions to ask and what points need to be tested? That is why in the amendment, which I shall not move but which is still in the Marshalled List, I wrote “assessors”. The High Court can appoint an advocate to the court and assessors if there is a technical matter that needs to be considered. It would of course be the assessor who gave the instruction to
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No method mentioned so far will deal with that sort of complication. These are not “representations” but extremely skilled technical pieces of evidence, which will be put forward. They deserve to be treated with some respect and to be taken into account properly. Nothing I have seen so far indicates that that sort of process will take place, so I should like the Minister’s help to ensure that it will be properly dealt with. If it is not properly dealt with, there may be a judicial review, because the panel or the authority will be said not to have taken into account properly some of the things that it should have taken into account. If, on the other hand, it is left to a member of the panel to test these technical matters and he or she does not know enough about it to do it properly—or tries to do so, and then the panel comes down against the person objecting to the technical proposition that has been put forward—there will be a judicial review on the grounds of bias. It will be said that the panel decided beforehand, in the questions that were asked, which of the two propositions it prefers.
We have heard enough about judicial review in the proceedings of this Bill to know that we want to try to avoid that if we possibly can. The noble Lord, Lord Jenkin, talked about it last Thursday in relation to national strategic plans. We need to ensure that the actual process of the examination of an individual application is also proof, except in unusual circumstances, against challenge by judicial review, because that is not only long term but expensive and may mean that the whole thing is defeated.
I have not heard enough about this, and I am not the only person who is concerned. The current chairman of the planning Bar has spoken to me and other members of the House, including the Minister, raising these points. I am not asking to revert to the old form of massive planning inquiries, which take forever and ever, but these things are sufficiently difficult to require the right people with the right expertise to take part in the process. That is what my amendments are all about. I hope that the Minister will be able to reassure us that that will take place because, even if it is not on the face of the Bill, what she says in this House will be a valuable guide to those setting up the examination and those conducting it. I beg to move.
Baroness Hamwee: My Lords, I enthusiastically support the amendments. The noble Viscount used some very important terminology, including “evidence”, “test” and “witness”. “Evidence” is not just more or bigger representation; it is qualitatively quite different and it is proper that it should be tested. Witnesses are not just more people making representations. They speak to the evidence. There is little more that I can add, but the brevity of my remarks is qualitatively different from their strength.
Baroness Andrews: My Lords, I am very pleased to have the opportunity to address these issues, and I am sorry that the noble Viscount was discomforted by the groupings last week. It is excellent that we have been
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I was comforted by the great good sense that the noble Viscount demonstrated by not wanting to revert to the present system. We can get a better system, including one that tests evidence properly and more effectively, by not returning to the present system. I absolutely understand his need to have something on the record—which enables me to spell out some of the processes that we are intent on. Before I address the amendments, I should like to set out the context of how the hearings themselves will work, so that we can see that in relation to the two extremely important instances raised. I quite agree that acoustic engineering and the measurement of noise is a fine science and is not something that, with the best will in the world, can be solved by amateur guesswork. The same can be said of his other example.
Clause 92 provides that the examining authority must arrange an open-floor hearing if at least one interested party informs it within the deadline notified to the parties by the examining authority that it wishes to be heard. It also provides that each interested party is entitled, subject to the examining authority’s powers of control over the conduct of the hearing, to make oral representations at an open-floor hearing. The amendment would widen the purpose of these hearings by entitling all interested parties to call witnesses to give evidence. I hope to be able to assure the noble Viscount that the Bill, and particularly the procedural rules, will meet his concerns.
I shall first briefly describe the new process of examination, which allows for a series of opportunities for interested parties to provide both written and oral evidence. I want to reassure the noble Viscount and the chairman of the Bar, to whom I have spoken, that the Bill provides for the proper consideration and testing of all evidence presented. We have laid a great deal of emphasis on written representations. All interested parties will have the opportunity to submit evidence in written form. We would expect much of the evidence from applications to be given in written form as such evidence would reflect the technical nature of much of the development application. The two examples which the noble Viscount gave illustrate why it would be helpful for people who will be affected by an application to understand some of the considerations, measurements and methodologies that have gone into making these judgments. It will also speed up the process of considering an application. It will make the process more accessible to members of the public as it will make it easier to understand the issues without having to turn up physically at the public inquiry.
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I also want to stress that the Bill sets out very clear and explicit rights to be heard. The emphasis on written representations in Clause 89 is clearly subject to the requirements to hold hearings set out in Clauses 90, 91 and 92. The provisions in Clause 90 require the examining authority to hold oral hearings to probe
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