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The noble Lord, Lord Skelmersdale, posed me a challenge when he wondered why I did not table a prayer and call a vote which would revoke the regulations, as indicated on the Annunciator. However, I knew that I was pushing my luck and I did not think he would support me in the Lobbies, although I believe that Members of my own party would have done. I thought that I would put on the Order Paper the reasons for our disquiet with these backdating rules. A prayer does not tell the story, whereas my Motion does. It is not a fatal Motion because it is not a call to revoke the regulations; rather it asks the Government to revoke them. In that respect, it is quite a gentle proposal, but the word “deplores” in the opening line reflects our strength of feeling about these regulations. On that basis, I commend this Motion and I wish to test the opinion of the House.
8.39 pm
On Question, Whether the said Motion to resolve shall be agreed to?
Their Lordships divided: Contents, 54; Not-Contents, 84.
Addington, L. [Teller]
Barker, B.
Best, L.
Bonham-Carter of Yarnbury, B.
Bradshaw, L.
Burnett, L.
Cameron of Dillington, L.
Clement-Jones, L.
Cotter, L.
Craigavon, V.
De Mauley, L.
Dholakia, L.
Dykes, L.
Fearn, L.
Finlay of Llandaff, B.
Fookes, B.
Garden of Frognal, B.
Glasgow, E.
Greaves, L.
Greengross, B.
Hamwee, B.
Harris of Richmond, B.
Kirkwood of Kirkhope, L.
Knight of Collingtree, B.
Lee of Trafford, L.
Linklater of Butterstone, B.
Listowel, E.
Livsey of Talgarth, L.
Low of Dalston, L.
Lyell, L.
McNally, L.
Maddock, B.
Maginnis of Drumglass, L.
Mar and Kellie, E.
Meacher, B.
Miller of Chilthorne Domer, B.
Neuberger, B.
Nicholson of Winterbourne, B.
Oakeshott of Seagrove Bay, L.
Razzall, L.
Rennard, L.
St. John of Bletso, L.
Sharp of Guildford, B.
Shutt of Greetland, L. [Teller]
Smith of Clifton, L.
Teverson, L.
Thomas of Gresford, L.
Thomas of Winchester, B.
Tope, L.
Tyler, L.
Ullswater, V.
Wallace of Saltaire, L.
Walmsley, B.
Walpole, L.
Adams of Craigielea, B.
Adonis, L.
Anderson of Swansea, L.
Andrews, B.
10 Nov 2008 : Column 523
Bach, L.
Bassam of Brighton, L. [Teller]
Berkeley, L.
Billingham, B.
Bilston, L.
Blackstone, B.
Boyd of Duncansby, L.
Bradley, L.
Brennan, L.
Brett, L.
Brookman, L.
Campbell-Savours, L.
Carter of Barnes, L.
Carter of Coles, L.
Clarke of Hampstead, L.
Crawley, B.
Darzi of Denham, L.
Davidson of Glen Clova, L.
Davies of Coity, L.
Davies of Oldham, L. [Teller]
Donoughue, L.
Dubs, L.
Evans of Parkside, L.
Farrington of Ribbleton, B.
Ford, B.
Foster of Bishop Auckland, L.
Foulkes of Cumnock, L.
Gale, B.
Griffiths of Burry Port, L.
Grocott, L.
Harris of Haringey, L.
Hart of Chilton, L.
Haskins, L.
Haworth, L.
Hilton of Eggardon, B.
Hollis of Heigham, B.
Howarth of Newport, L.
Howells of St. Davids, B.
Hoyle, L.
Hughes of Woodside, L.
Hunt of Chesterton, L.
Hunt of Kings Heath, L.
Jay of Paddington, B.
Jones, L.
Jones of Whitchurch, B.
Kirkhill, L.
Layard, L.
Lea of Crondall, L.
McDonagh, B.
McIntosh of Haringey, L.
McIntosh of Hudnall, B.
McKenzie of Luton, L.
Malloch-Brown, L.
Maxton, L.
Moonie, L.
Morgan, L.
Morgan of Drefelin, B.
Morris of Handsworth, L.
O'Neill of Clackmannan, L.
Patel of Bradford, L.
Plant of Highfield, L.
Prosser, B.
Quin, B.
Rooker, L.
Rosser, L.
Rowlands, L.
Sawyer, L.
Simon, V.
Snape, L.
Soley, L.
Taylor of Blackburn, L.
Thornton, B.
Tunnicliffe, L.
Warner, L.
Warwick of Undercliffe, B.
West of Spithead, L.
Whitaker, B.
Whitty, L.
Young of Norwood Green, L.
Resolved in the negative, and Motion disagreed to accordingly.
Planning Bill
8.49 pm
Further consideration of amendments on Report resumed on Clause 102.
Baroness Hamwee moved Amendment No. 103:
103: Clause 102, page 53, line 8, after “relates” insert—
“( ) written and oral representations relating to the development”
The noble Baroness said: My Lords, I shall not take it at all amiss that everyone behind me on my Benches is leaving. They say that they cannot get out easily. Tough.
In speaking to this amendment, I shall speak also to Amendments Nos. 104, 105, 107, 108, 109 and 110. This brings us to the provisions on decisions on applications. Clause 102(2) sets out matters to which the IPC must have regard, and Clause 103 sets out those to which the Secretary of State must have regard when, respectively, they are making decisions. Amendments Nos. 103 and 108 would provide in each case that they should have regard to written and oral representations relating to the development. Similarly, Amendments Nos. 104 and 108 would provide that
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I have tabled these two pairs of amendments to spell out that the IPC and the Secretary of State should not filter out the representations made during the different stages of the process to the extent that they do not figure at the last stage. It is important that those who take part in the process should have trust in it and believe that their representations are taken seriously.
When we were discussing related matters in Committee, the Minister argued that such representations, if they were important and relevant, would remain within the frame for consideration by being within the referenced matters, which are important and relevant. I am not asking that all representations be accepted, because the phrase “have regard to” does not mean that: it means, literally, to have regard to or to think about. The local impact statement, to which regard must be paid, is referred to specifically. Who is to say that the whole of it will be important and relevant? I am asking the Government to think about where individual representations come in.
Amendments Nos. 105 and 110 take us back to the phrase “important and relevant”. I tabled this amendment in Committee, when I argued—and I maintain the view—that the order of the words should be “relevant and important”. First, one should consider whether an issue is relevant and, if it is qualified as such, whether it is important. I got the feeling that the Minister understood that point; she said that she would consider it, so this is her further opportunity to do so.
Amendment No. 107 proposes that the Secretary of State, when she or he takes decisions, should have regard to a national policy statement relating to development of a particular description. I may have missed this, either on the face of the Bill or in the logic of how all this applies, but it seemed to me odd if the Secretary of State does not have to have regard to her or his own policy statement. That could allow for all sorts of mischief. I beg to move.
The Parliamentary Under-Secretary of State, Department for Communities and Local Government (Baroness Andrews): My Lords, the House has now emptied and there is just our select band struggling with scrutiny. These are nicely forensic amendments, attached to two crucial clauses. The noble Baroness, Lady Hamwee, expressed this as not wanting to see people, evidence or representations filtered out and I take that point.
Noble Lords are seeking through Amendments Nos. 103, 104, 108 and 109 to ensure that people’s views—both written and oral—are taken into account at both the pre-consultation and the examination stages. Amendments Nos. 105 and 110 seek to ensure that the test for deciding which representations to take into account is fair. Amendment No. 107 asks why the Bill does not specify that the NPS is the prime factor for a decision where the Secretary of State is the decision-maker.
It is worth briefly stating the context for these amendments. The Bill provides a clear framework for decision-making. The relevant national policy statement,
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It is clear, however, from Clause 102 that the NPS will not be the only factor, because it provides that the IPC must also have regard to a local impact report from the local authority, to other matters that secondary legislation may set out and, indeed, to any other matters that the commission thinks are,
Even where a particular application for a proposed project is in accordance with the NPS, the IPC could decide that development consent should not be granted, because it would be unlawful or result in the UK being in breach of any duty imposed on it by or under an enactment. The IPC would also still consider issues specific to the application at the local stage, such as detailed layout, siting or access, as well as the environmental aspect. If it decides that the adverse impacts of the development outweigh the benefits, it can, as we know, refuse consent.
I have gone into that to reiterate some things that I said on Thursday about specificity. I welcome the opportunity to reiterate that, when an NPS is locationally specific, the IPC is not prevented from considering whether one or more of the factors identified in subsections (4) to (8) of Clause 102 apply. I wanted to put on record again the important point that I made on Thursday. I assure the noble Baroness that I am considering further what she said and looking at whether a clarification to that effect would be helpful ahead of Third Reading.
Amendments Nos. 105 and 110 challenge the phrase “important and relevant” in Clause 102(2)(d) and in Clause 103(2)(c), which refer to the additional matters that the decision-maker,
to its decision. These provisions are intended to require the decision-maker to consider matters that, although not identified in the NPS, the local impact report or the regulations prescribed by the Secretary of State, it considers still to be both important and relevant. Those will include issues specific to the application at the local stage, such as detailed layout, siting or access, as well as the environmental aspect. I understand the point that the noble Baroness makes, which is that somehow the Bill requires that the IPC must consider the importance of the matter before considering its relevance. However, that is not our intention.
I will explain, as I did in Committee, why the choice of terms is deliberate. We wanted, quite simply, to make the process more accessible. We intend that “important and relevant” will be used in a similar way to “material consideration” in town and country planning legislation, allowing the decision-maker to identify factors that are material to the decision. We did not want to use “material consideration” in the new regime because it is, frankly, rather arcane and often
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We consider that, by limiting the additional matters to which the decision-maker must have regard to those that it thinks are both “important and relevant” to the decision, the Planning Bill is clearer about what should, and should not, be taken into account by decision-makers. Also, it is right that those who are asked to make the decision should be the ones to decide what is important.
9 pm
I have gone back and looked at the sequence of wording in relation to the amendment—“important and relevant” as opposed to “relevant and important”. If the noble Baroness looks at Clauses 102(2)(d) and 103(2)(c), she will see that they require the decision-maker to have regard to other matters that are considered “both important and relevant”. In view of this, it does not matter whether the words “important” and “relevant” are reversed, as both factors need to be taken into account. That is probably about as sensible a conclusion as we can jointly come to and I hope that it will satisfy the noble Baroness.
On written and oral representation and responses to consultation, Amendments Nos. 103 and 108 would make explicit what is implicit in the Bill, flagging up the decision that the decision-maker has regard to all oral and written representations presented in relation to the application. Amendments Nos. 104 and 109 would extend the decision test further still to include responses to pre-application consultations undertaken by the applicants.
The noble Baroness seeks assurances that the commission will consider all relevant evidence in its decisions and that nothing will get filtered out. On oral and written representations, I think that she agrees that a distinction needs to be made between the process by which the commission carries out its examination and the factors that must form part of its decision. As a matter of process, we want to ensure that the commission examines and considers all the evidence presented before it in connection with an application for developing consent.
The Bill provides for this in a number of ways. The examination procedures ensure that those interested in, or who might be affected by, an application are given an opportunity to submit written representations on that application. That will be followed up by an opportunity to make oral representations, as I described in an earlier debate. The commission will need to consider all those representations to decide which are both important and relevant to its decision. That is sensible; there is a process of reduction here, given the weight of evidence, the job of the commission and the way in which decisions have to be formulated and justified.
Clause 102(2)(d) relates to the decision test, which requires the commission to have regard to these representations, among other things. Clause 103(2)(c) has the same effect in relation to decisions taken by the Secretary of State. This requires that the Secretary of State must have regard to any other matters that he or she thinks are important and relevant to his or her
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The decision test itself is a different issue, which is why we need to ensure that it is based on criteria of importance and relevance. This is a sifting issue for evidence. The IPC will have to analyse the evidence that it has received to determine that. I hope that noble Lords agree that, although it is right that all written and oral evidence should be considered in the process of examining the application, it makes sense that only the written and oral representations that are important and relevant to a decision should be considered in the decision test itself, under Clauses 102(2)(d) and 103(2)(c).
Responses to pre-application consultation and publicity will be treated differently. The pre-application consultation will provide for a dialogue between the promoter and the community, which will settle some differences and generally improve the proposal for development. That is the intention of creating this new stage of the process. For this reason, we have strengthened Part 5 of the Bill through important amendments tabled last Thursday to require the IPC to have regard to the account taken by the promoter of the responses received to pre-application consultation and publicity when it considers whether to accept the applications.
By themselves, those responses are unlikely to be the most important evidence for the IPC to consider because, as I said, the Bill provides for written and oral representations to be received at the examination stage. However, that is not to say that interested parties would be denied the opportunity to give evidence on how the applicant took account of the responses to the pre-application consultation and publicity at the examination stage if they thought that it was sufficiently serious and significant to be brought to the IPC’s attention. The facility is there, but they would need to set out those reactions in written and/or oral representations.
Finally, Amendment No. 107 probes the reasons why the NPS is not mentioned in Clause 103 or why the clause does not specify the test for departing from the NPS where the Secretary of State is the decision-maker. The reason for that is quite simple. A Secretary of State will usually take decisions on nationally significant infrastructure cases only because no relevant national policy statement is in place. Therefore, it would not often be possible to have regard to an NPS where the Secretary of State is the decision-maker or to require him to determine in accordance with it. It is a tautologous position.
In cases where there is a NPS, it is inconceivable that the Secretary of State would not have regard to his or her own policy. That is what this is all about. As we have not placed a duty on the Secretary of State to
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Baroness Hamwee: My Lords, I will take the Clause 49 representations first. I take the point. I am not surprised at the response, but I thought that I would give it a try. On the other representations, as I said in introducing the amendments, “must have regard to” does not mean accepting. The IPC and the Secretary of State will have to consider all representations before excluding any. The difference between us is where consideration becomes decision. That is where I am having some difficulty, because I see consideration of the representations as a bigger part of the decision-making process than the Minister has presented it.
On Amendment No. 107, as the Minister said, “usually” there will be no NPS, but one has to bear in mind the unusual. All things are conceivable in politics. There may have been a change of administration without a change of government. The Secretary of State may be reflecting on the process of reviewing the outcomes, in which case the whole review process of the NPS should be gone through. I am not sure where that leaves an application that is with the Secretary of State. I thought that it was probably an obvious answer that was staring me in the face and I am grateful to the Minister for spelling it out. I have made my points and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 104 not moved.]
[Amendment No. 104A had been withdrawn from the Marshalled List.]
[Amendment No. 105 not moved.]
[Amendment No. 105A had been withdrawn from the Marshalled List.]
[Amendment No. 106 not moved.]
Clause 103 [Decisions of Secretary of State]:
[Amendments Nos. 107 to 110 not moved.]
Clause 106 [Suspension during review of national policy statement]:
Baroness Andrews moved Amendments Nos. 111 to 113:
On Question, amendments agreed to.
Clause 107 [Intervention: significant change in circumstances]:
Baroness Andrews moved Amendments Nos. 114 to 116:
115: Clause 107, page 56, line 2, at end insert—
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(a) since the time when part of the national policy statement (“the relevant part”) was first published or (if later) last reviewed, there has been a significant change in any circumstances on the basis of which any of the policy set out in the relevant part (“the relevant policy”) was decided,
(b) the change was not anticipated at that time,
(c) if the change had been anticipated at that time, the relevant policy would have been materially different,
(d) if the relevant policy was materially different, it would be likely to have a material effect on the decision on the application, and
(e) there is an urgent need in the national interest for the application to be decided before the relevant part is reviewed.”
On Question, amendments agreed to.
Clause 110 [Power of Secretary of State to intervene]:
Baroness Andrews moved Amendment No. 117:
On Question, amendment agreed to.
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