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Clause 113 [Development for which development consent may be granted]:
Baroness Hamwee moved Amendment No. 118:
The noble Baroness said: This is another short point. It concerns the definition of “associated development” and the fact that development consent can be granted for it. At the previous stage I sought to probe what that meant. Clause 113(2)(a) refers to,
The noble Baroness referred to the single process. She did not say that it would be daft to have consecutive applications, although that is what she meant. She also said that if a development needed highways works, for example, that should be dealt with at the same time. My amendment seeks to add to associated development the requirement that it is necessary, which is what she said. My amendment would make the clause read that the development is associated,
I previously discussed the potentially wide scope of the phrase “associated with it”, and the noble Baroness said:
“Granting consent for associated works is therefore completely consistent and a logical element in that overall process”.—[Official Report, 20/10/08; col. 947.]
I agree, provided that the associated development is necessary. I beg to move.
Baroness Andrews: My Lords, the noble Baroness has come back with Amendment No. 118, which seeks to ensure that the grant of consent for associated development would be limited to development required to facilitate the development to which it is associated; in other words, that it is necessary. She is concerned—if
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Clause 112 states that when the decision-maker has decided an application for an order granting development consent, it must either refuse the application or make an order granting development consent. Clause 113 then provides that the development consent under such an order can be either for development where consent is required, and/or for associated development which the promoter has chosen to include in the application for development consent.
It is the Government’s intention that a promoter should be able to combine the “core element” of a nationally significant infrastructure project—that is, those works which meet the definitions in Clauses 15 to 30—with associated works into a single application. Such associated development might include ensuring that the new infrastructure is connected to other national networks, or other development which is needed to allow the new infrastructure to operate as intended. Associated development shall in no instance include the construction or extension of housing.
The expression “associated development” is new, and I think that that is part of the issue we are addressing. In England at the moment, however, the Secretary of State has the power to call in any application for planning permission, and this power can be exercised in relation to development closely connected with a major infrastructure project. Therefore, the concept is not new.
The Government’s firm intention is that promoters should not be able to abuse the facility to include associated development in an order granting development consent. The new single consents regime is about ensuring that works necessary to the development and operational effectiveness of new infrastructure can be consented through a single application. It is not the Government’s intention to create a mechanism to grant authorisations for works that are not in fact necessary for the development and operational effectiveness of nationally significant infrastructure.
The noble Baroness raises an important point and we have thought about how we can best address it. The most effective thing we can do is ensure that everyone is quite clear about this. To that end, the Secretary of State will set out guidance for a panel or for the council on what should or should not be considered an associated work, and that could form part of an order granting development consent. We will try to meet the point in that way, making sure that they are clear, and that will be put into guidance.
9.15 pm
Baroness Hamwee: My Lords, I thank the Minister for that, but I struggle to understand why it does not go in to the Bill. In many ways the more that is in guidance and not in the Bill, the worse it will be. Much was made earlier of the independence of the new
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Amendment, by leave, withdrawn.
Schedule 4 [Correction of errors in development consent decisions]:
Lord Patel of Bradford moved Amendment No. 119:
119: Schedule 4, page 156, line 38, leave out “applied for the order granting development consent” and insert “made the application”
The noble Lord said: My Lords, this group of amendments simply makes a number of drafting improvements to definitions of expressions used in the Bill and clauses setting out the Bill’s extent. I shall briefly address each amendment in turn.
Amendment No. 119 alters the meaning of the expression “applicant” for the purposes of Schedule 4, so that it covers any person who makes an application to which the decision relates.
Amendment No. 156 changes the definition of “land” in Clause 227, which applies for the purposes of Parts 1 to 10 and Part 12 of the Bill. The change is needed to make the definition consistent with clauses in Part 3 that provide for development offshore, including in the renewable energy zone.
The change to Schedule 12 made by Amendment No. 157 is consequential on the addition in Committee of gas transporter pipelines in England as a category of nationally significant infrastructure project. The amendment reflects the fact that a gas transporter pipeline does not count as a nationally significant infrastructure project to the extent that the pipeline is in Scotland, as Clause 20(6) and Clause 232(4) indicate.
Amendment No. 158 inserts a reference to Clause 20 in Clause 232(1), thereby reducing the extent of Clause 20 to England and Wales only.
Amendment No. 159 reduces the extent of Clauses 131, 145 and 146 to England and Wales only, so as to ensure consistency with provision made elsewhere in the Bill. Clauses 17, 145 and 146 indicate that Clauses 131, 145 and 146 do not apply to Scotland.
Amendment No. 160 also relates to the extent clause and simply corrects the drafting to reflect the fact that Clauses 197 and 198 are in fact in Part 10, not in Part 9.
Clause 233(1) provides that certain powers to make orders come into force on the day on which the Planning Bill is passed. An exception is made in the case of orders granting development consent. Amendment No. 161 confirms that the exception also extends to orders making changes to orders granting development consent.
Amendment No. 162 corrects an error in the commencement clause. A government amendment in Committee removed the reference in Schedule 13 to a repeal of a provision of the Planning Act 2008, but we omitted to remove the reference to this repeal in
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On Question, amendment agreed to.
Clause 118 [What may be included in order granting development consent]:
Lord Jenkin of Roding moved Amendment No. 120:
The noble Lord said: My Lords, the amendment is intended simply to add “with the consent of the Secretary of State” to the first line of Clause 118(5). This clause provides that an order granting development consent may,
- “apply, modify or exclude a statutory provision with relates to any matter for which provision may be made in the order”,
and so on. In other words, the orders made by the Infrastructure Planning Commission can change the law. When statutory instruments, which are subject to the full parliamentary process, do that, they are known as Henry VIII clauses. The clause gives the IPC power to do that. This may not be the first time, but it will be a major issue when an unelected body such as the IPC—the Minister will know that I have indicated throughout my support for the IPC and its powers—has been given the power to change the law, and that seems to go beyond what is reasonable.
I have had the advantage of receiving a bombardment, if that is the right word, of representations from Ministers, who make the point that not only is this measure essential, but there are admirable precedents. I would not dream of reading all of them out, but there are columns and columns and pages and pages of precedents under the Transport and Works Act and various other pieces of legislation. The point is that, as I understand it, and no doubt the Minister will correct me if I am wrong, all of those powers at some stage required the consent of the Secretary of State before they could take effect. If that is not right, I shall stand corrected.
The argument, therefore, is that if we had to require such consent for all the orders made by the Infrastructure Planning Commission, this would once more transfer a substantial part of the decision-making process to the Secretary of State, who would then be obliged to make sure that what he was being asked to approve was appropriate and correct, to ensure that he was not challenged in the courts.
I can understand part of that argument. When one looks at the details of the changes that have been made, for instance under the Transport and Works Act, one sees that many of them were completely reasonable, indeed inevitable, if an order was going to bring the necessary provisions up to date. You have to be able to change previous statutory provisions; I understand that. My fear is that this clause does not restrict it only to the run-of-the-mill statutory provisions that are to be amended and repealed. It in fact leaves it open to the IPC to make an order that could perhaps go well beyond something that has happened before,
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I hope the Minister can perhaps see a way of drawing a distinction between the mass of little projects, which would be fully in line with what has happened in the past under the Transport and Works Act and other similar legislation, and some way of identifying the major changes in the law that perhaps go beyond what has been done in the past and require the consent of the Secretary of State.
I have studied the papers that the noble Baroness very kindly sent me, together with all the arguments in her letter, in which she stressed the safeguards. I understand that and have refreshed my memory on the matter. Her letter sets out as the first safeguard:
“The IPC can only use powers ... where a promoter has applied for this, and the issue has been considered in public at the examination”.
That is clearly of some value. The second safeguard is:
“The form of the draft order would be based on model provisions set out by the Secretary of State and subject to Parliamentary scrutiny”.
Pausing there, I wonder whether, under the proposed model provisions, there is some way in which a distinction can be drawn, so that one is not simply leaving the IPC at large with a power to amend the law. Then her letter states:
“Development consent orders will not be able to authorise byelaws and offences”,
which the Transport and Works Act orders and Harbours Act orders can do. That, again, is another safeguard. Then it all has to be,
I appreciate that. Finally, the fifth safeguard is that,
if the draft order contravenes European law. If it contravenes European law, it will be invalid anyway, so it is right that the Secretary of State should see it to ensure that there is no serious error in that respect. Those are some safeguards but, to my mind, Parliament should look extremely closely at giving an unelected body an unlimited power to change the law.
As I said, I recognise the need for this clause, and obviously the precedents with which I have been furnished give a good deal of support to what the Government are doing, but somehow there must be a way of identifying what might be a major change in the law in order to allow the commission to give its consent order to make it effective. That would require intervention by a Minister, who is, after all, accountable to Parliament.
This is a difficult technical question and I am grateful to the Minister, who took time this morning to talk to me about it and to listen to my concerns. I much appreciated that. However, perhaps the Government can impose a limitation so that this is not done in the run-of-the-mill way, of which there are hundreds and hundreds of examples in the papers that I have been given. Perhaps they could impose, as it were, a trip wire that would require the intervention of the Secretary
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Lord Dixon-Smith: My Lords, my Amendment No. 121 is quite properly grouped with my noble friend’s Amendment No. 120. If he and I are playing soft cop/hard cop, my noble friend is playing the soft cop by giving the Government an option to look at this matter and I am playing the hard cop by removing what I would call the offending paragraphs. We are talking about a question of degree and, indeed, a degree of propriety. However, it seems to me that giving an appointed body what is apparently, although somewhat proscribed by the Minister’s letter, a fairly open-ended power to amend legislation in order to suit the administrative conveniences of a particular planning application could cause complications in respect of some regulation, if not legislation. I had not thought of the European angle, as my noble friend has done. To have an open-ended power to change legislation in this way is an unreasonable power for an appointed body without some authoritative check.
We have had this argument with the Bill before to a greater or lesser degree. I hope that the Government will listen to my noble friend’s plea. On the whole, I am sure that it is much tidier than my conclusion, which is simply to remove the power, and the problem, from the Bill. The problem would not exist, but I can foresee that that might create future problems in relation to a planning consent that the commission might wish to give. It is a question of degree, and I hope that the Government will listen to the plea. It is inappropriate—I shall not use the word improper—to give an appointed body this effective legislative power. I do not believe that it should rest in the hands of an appointed body. It should remain at the very least with the Secretary of State or some higher authority. I support my noble friend’s plea and hope that the Government are in a receptive mood.
9.30 pm
Lord Berkeley: My Lords, I shall speak to Amendments Nos. 121A to 121G and 121J in this group, which cover what we might call the other end of the spectrum from the amendments tabled by the noble Lords, Lord Jenkin and Lord Dixon-Smith, on the subject of by-laws and what is and is not included.
It would be helpful if I divided my remarks into three groups. The first refers to Amendments Nos. 121A, 121B and 121G, which refer directly to by-laws. They would allow development consent orders made by the IPC to include any necessary provision in relation to the making of by-laws by the promoter and the imposition of criminal offences, as was originally proposed when the Bill was introduced in another place. If accepted, Schedule 5 would need to be amended. Clause 119 would still apply with the necessary modifications in cases where the IPC was proposing to include in a development consent order provision in relation to the making of by-laws and/or the imposition of criminal offences, so giving a supervisory role for the Secretary of State, which is similar to the role he already has under Clause 119 in relation to legislation.
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Let us take the example of a typical Harbours Act or Transport and Works Act order. Promoters virtually always need to obtain provisions as to offences, such as offences for obstructing the construction of the works authorised by the order and offences tied with the incorporation in the order of the various clauses Acts, and they often obtain by-law-making powers. To say that in future promoters will still have to seek Harbours Act and/or Transport and Works Act orders for these provisions seems odd if the Government are trying to create the unified consents regime that the Bill gives us. It will mean that development consent orders will achieve less than Harbours Act or TWA orders.
There is the safeguard, if one is thought necessary, that Clause 117 could be expanded to give the Secretary of State a role in relation to a proposed development consent order containing provision for offences and/or by-laws. To me, by-laws are tertiary local legislation. In this group, we have already talked about the IPC, which will have extensive powers in respect of primary and secondary local legislation, yet apparently no powers in relation to tertiary legislation. I will be grateful to hear what the Minister has to say because by-laws are very important to the operation of the kinds of projects contemplated in the Bill, such as transport systems, large ports or harbour schemes.
The first thing I need to say about my next set of amendments is that there is a mistake in Amendment No. 121D, which probably makes it even less intelligible than some noble Lords thought it was already. It should read:
“Page 157, line 15, after ‘specified’ insert ‘dredging’”.
Unfortunately, line 16 also contains the word “specified”. The amendment makes sense when it relates to line 15. I told the Public Bill Office, Ministers and officials, and my remarks will be based on the amendment relating to line 15, not line 16.
The amendment is to do with Schedule 5 and what may be included in a DCO. It needs to be made clear that a development consent order can do things such as authorise dredging operations and the alteration and maintenance of dredging, as well as excavations, mining, quarrying and boring operations. I could go on defining these things in great detail, but one often finds that if one does not get the definition right, it is not possible to do something that is necessary. Finally, it authorises the alteration, repair, maintenance, demolition and removal of other works in addition to transport system works as well as their initial construction and provides for disputes to be resolved by other means in addition to arbitration, because arbitration is only one way of resolving disputes.
There needs to be a power to maintain these works. I know it is referred to in Clause 118(4) but experience in operating transport and works regimes since 1993 shows that it is hard to persuade officials to include in orders provisions that are not explicitly set out in Schedule 1 to the 1992 Act, which is the equivalent of Schedule 5 to the Bill. I suggest that getting Schedule 5 right is important, otherwise we will go back to the situation that I described when speaking to my previous set of amendments and it will be necessary to make a transport and works application in parallel with this process.
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There are also problems in relation to what is in Schedule 1 to the TWA and the need to include waterways, roads, watercourses, buildings and other structures in these things and any other civil engineering. I am sorry to have to go into so much detail, but it is important to get these right. I hope that the Minister can help me with that. There is experience in the London Gateway Port Harbour Empowerment Order 2008 and a need for these powers. It is important we get this right before we finally put the Bill to bed.
Finally, Amendment No. 121J changes the basis on which the IPC in a development consent order can disapply particular regulatory regimes specified in regulations that otherwise would apply in parallel to any requirements for further consents and approvals imposed by the order itself. Instead of requiring the consent of the body which would otherwise operate the particular regulatory regime, the IPC could disapply it where the IPC had included in the order alternative appropriate provisions for the protection of the relevant body and the interests that it represents.
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