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We are here referring not to operational consents, but to consents required under existing legislation in relation to the construction of works that could serve no useful additional purpose if they were to apply alongside the requirements of a DCO. Examples are harbour authority works and bridging licensing powers, such as the PLAs in Sections 66 to 73 of the Port of London Act 1968 and the Environment Agency's main river-works consenting mechanisms in the Water Resources Act 1991. It is very important that those are considered alongside the other provisions in this part, and I very much look forward to hearing my noble friend's comments on these rather detailed but, I suggest, important matters.

Viscount Colville of Culross: My Lords, will the noble Lord, Lord Berkeley, tell us who, under his Amendment No. 121G, is to say what is the maximum penalty for the summary offence? That is normally a matter for Parliament. If it were done under the European Communities Act, that Act provides for a maximum, but I do not know who will provide a maximum in this case.

Lord Berkeley: My Lords, the noble Viscount raises an interesting question, but those penalties come under by-laws, which is quite normal in transport activities, such as by-laws on the railways, which fix penalties for fare evasion and other things. I am not aware of who approves them, but there needs to be provision for making them and, if they need to be approved by the Secretary of State or by Parliament in some form, that clearly needs to happen. My point is that they need to be included to make the whole system work.

Lord Adonis: My Lords, here, as so often on the Bill, my noble friend Lady Andrews and I feel ourselves pulled in two contradictory directions. It would be good if we could divide soft cop and hard cop between us but, alas, the Government cannot divide our personality in the way that the Opposition can. I fear that we both have to be sensible, moderate cops on this, as on all issues, and I hope that, on this one, we are.

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My noble friend Lord Berkeley wants considerably to strengthen the powers to be given to the IPC, because he believes that they are inadequate. Noble Lords opposite say that they are too great. That reinforces me in my view that we have probably come out with a reasonably sensible centre course. I hope that I can explain to the House why that is the case, and seek to persuade the House that the provisions are sensible, moderate and necessary, if the IPC is to work effectively to deliver the single consent regime that is the Bill’s objective.

I start with the amendments of my noble friend Lord Berkeley, Amendments Nos. 121A to 121J, which, among other provisions, provide that development consent orders should be able to create by-laws and offences. I appreciate my noble friend's argument that, for some promoters, notably in the case of harbours and rail schemes, that would occasionally mean that the single consent regime under the Bill could not provide all the powers that they would want unless the additional powers he proposes were given to the IPC.

However, Harbours Act orders and Transport and Works Act orders differ from development consent orders in that, as the noble Viscount rightly said, we are transferring responsibility for development consent orders from the Secretary of State to an independent body. We do not believe that the creation of by-laws and offences is an appropriate function to be delegated to an independent body. Ordinary people would find it difficult to accept that criminal offences could be created, and fines imposed, on the authority of a body that is neither Parliament nor the Secretary of State. We are not denying that by-laws may be needed for new infrastructure—for example, to regulate traffic flows, to prevent trespass or to set up penalty fare regimes—but we believe that the Secretary of State should take responsibility for such decisions and that powers should be granted on his authority alone. This is why we have left it possible for Transport and Works Act orders or Harbours Act orders to be made under NSIPs where the relevant provisions could not be made under the powers in the Bill.

Offences and by-laws are usually needed to allow for the effective operation of the infrastructure. The key date is therefore the entry into service of the infrastructure, rather than the date on which development consent is granted. If the promoter applied for by-laws and offences during construction of the infrastructure, this would not delay the entry into service of the infrastructure, which I believe meets a good part of the concerns which my noble friend expressed.

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My noble friend made a series of other points in Amendments Nos. 121C to 121F about the content of Schedule 5. Again, these points are met by the Bill, given that the IPC can already include in an order provision on demolishing, altering and dredging as part of an NSIP and on the operation and maintenance of a transport system. I should also highlight that most maintenance work is consented under permitted development rights, which, as I mentioned in Committee, will still be available after the passage of the Bill.

My noble friend also asks about arbitration in his Amendment No. 121F. We expect the parties to be

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able to decide between themselves to whom they should submit disputes. Failing this, we expect that an order would specify that a senior and neutral person, such as the president of the Institution of Civil Engineers, would name an arbitrator. This is the position under the TWA, and the procedures that we envisage are sufficiently flexible to do what my noble friend intends.

In Amendment No. 121J, the noble Lord, Lord Berkeley, raises the issue of the London Gateway Port Harbour Empowerment Order, under which I understand the Secretary of State decided to give the PLA alone full plan-approval functions in relation to the works in question. However, we do not believe that it is the function of the IPC to make judgments about the operational regulation of the infrastructure to which it consents.

We know that there have been examples of TWA orders removing the need for Environment Agency consents, disapplying inter alia the normal requirement for the Environment Agency’s consent to placing structures in, over or under a main river. The general practice in TWA cases is for the parties to agree a series of protective provisions, which are incorporated as a schedule to the TWA order to demonstrate how interfaces between undertakers should work. The general rule is that the Secretary of State makes TWA orders, such as the DLR extensions, only on the basis of a consensual settlement between the parties. There may be exceptions in other regimes, but in constructing the single consent regime we have had to find a balance between the potentially conflicting interests of different parties. That is why we drafted Clause 147 so that it allows similar provisions to be made only where the relevant regulator agrees that its interests were satisfactorily addressed through the IPC process. It would be inappropriate for the IPC to decide for itself whether alternative appropriate provision is adequate to protect the interests protected by that regulator.

I hope that that meets the detailed points made by my noble friend and deals with his big point of principle about by-laws, the creation of offences and why we do not think it appropriate to extend that power to the IPC.

The noble Lords, Lord Dixon-Smith and Lord Jenkin, tabled amendments relating to the powers that we give in Clause 118. The noble Lord, Lord Jenkin, referred to the lengthy correspondence that he has had with my noble friend, and I thank him for his remarks about the assiduity of the Bill team, which has gone into the operation of these provisions in great detail to ensure that we had a well-informed debate. As he said, the Bill provides strong controls for Parliament and the Secretary of State over the use of the powers set out in Clause 118. These are, first, that the IPC can use powers under Clause 118(5) only where a promoter has applied for this and the issue has been considered in public at the examination. When we discussed this matter in Committee, the noble Lord asked me why it was so important that we placed emphasis on the promoter applying. It is because this is then subject to full public debate and consultation before the IPC makes a decision. It cannot be a decision of the IPC without public scrutiny and consultation.

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Secondly, the form of the draft order would be based on model provisions set out by the Secretary of State and subject to parliamentary scrutiny. Thirdly, development consent orders will not be able to authorise by-laws and offences for all the reasons I have set out. Fourthly, the decision-maker would be bound to decide the case in accordance with government policy as set out in the national policy statement. Finally, the Secretary of State has a power, under Clause 119, to review draft orders which would use the power in Clause 118(5) and can direct changes to any use of legislative powers if the draft order appears to him to contradict EC or ECHR law.

With those safeguards, we believe that the powers set out are appropriate. It would be a suboptimal position for there to be an independent decision-maker who does not have the ability to grant the powers and authorisations which are essential for many projects to be able to go ahead. We have included those powers in the single consent regime based on extensive experience of how and why they have been used in the consent regimes we are hoping to replace. Such powers are most frequently used by promoters of transport schemes, such as harbour or rail schemes, because they often find that there are statutory provisions—many are in very longstanding private Acts; for example, in the case of railways, Acts which established the railways in the 19thcentury—which regulate existing infrastructure that they intend to upgrade. Often, those provisions are inconsistent with proposals to upgrade or improve that infrastructure. Unless there is a power to alter this statutory framework, no upgrades of such infrastructure could be possible.

In the annex tables to the letter, which my noble friend sent to the noble Lord, Lord Jenkin, I have set out what we mean by this in practical terms. When the House directs itself to the practical application of these powers, the full reasonableness of them becomes apparent. For example, in table 2 we set out the alterations to statutory provisions included in the Network Rail (Thameslink 2000) Order 2006, which is a major TWA order in respect of a significant rail infrastructure project in London. That includes the revoking of,

I do not believe that that is the kind of issue on which people would regard it to be essential that the Secretary of State has to second-guess the IPC.

But I can go on. The order also involved the revoking of,

Noble Lords: Hear, hear!

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Lord Adonis: This variation was required in order to be able to provide the modernisation and extension of Thameslink. In Article 12 of the said order, there was also provision,

That is the nature of the decisions we are talking about in terms of the variation of existing statutory powers. To say that decisions of this kind—ones which are essential, but variations to what are to a significant degree private Acts of Parliament that were in effect planning consents for the establishment of the original infrastructure of the railways—cannot be varied without recourse in each individual case to the Secretary of State frankly makes a nonsense of the IPC regime as it is intended to be: a single development consent regime. I have developed that argument at some length.

The noble Lord, Lord Jenkin, has asked whether we could have some form of oversight or protection in respect of the model clauses to ensure that they are used for what I think he and I agree are perfectly reasonable purposes and not a Henry VIII-type process that might go wider. I understand his point, but in the time we have been able to devote to it so far, it is difficult to see how that would work. It would require the Secretary of State in each case to make a judgment about whether a provision fell within the model clauses and was reasonable in the circumstances or went beyond them. Our fear is that, if we go down that road, it would require the Secretary of State to substitute his judgment for that of the IPC in respect of each individual application of the power to vary statutory provisions. That would defeat the whole purpose of the IPC in this respect.

I am happy to continue looking at the issue, but I need to be frank with the noble Lord and the House and say that the attention we have given to it so far does not offer a credible way forward; that is, one that does not simply superimpose on the IPC a whole new review process with all that goes with it and which would fall to the Secretary of State. Our judgment continues to be that in the light of the safeguards I have set out—all powers must be applied for and considered in public, they must be based on model provisions set out by the Secretary of State, they cannot authorise by-laws and offences, decision-makers would be bound to decide in accordance with government policy as set out in national policy statements, and the provisions in Clause 119 in respect of the powers of the Secretary of State where orders appear to contradict EC or ECHR law—the powers are moderate and reasonable in the circumstances, and indeed essential if the IPC is to operate a single consent regime.

That is the position we have reached, but if further enlightenment comes to us, I would be happy to communicate with the noble Lord. However, I do not want to raise hopes that we can provide a way through this. We believe that that would be hard to achieve without unpicking a central feature of the IPC. I therefore ask the House to stand by the clause as it is.

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Lord Dixon-Smith: My Lords, the noble Lord has given a clear explanation of what I would call the obvious examples where it might be appropriate for these powers to exist in relation to laws that date back to the 19th century, and with which I am bound to say I have every sympathy, but has he thought about the other end of the scale? Could he give an example of a possible exercise of power that he might consider to be unreasonable, so that we can judge the breadth of the spectrum in this regard?

Lord Adonis: My Lords, with respect, the onus ought to be on the noble Lord to cite such an example to me. Our case is that we believe that, with the protections I have set out, this power would be used reasonably and we would not see examples of the kind he fears coming forward. If he wishes to put to me examples where he believes credibly that powers sought in TWA orders would have been excessive and might conceivably be applied by the IPC in a way that reasonable people like he and I would regard as inappropriate, I would be happy to look at them.

Lord Dixon-Smith: My Lords, I can only respond by declaring touché. I thought that with their expertise the Government might have thought of one, but with my lack of expertise I would not expect to be able to do so.

Lord Adonis: My Lords, I am sorry to labour the point, but it goes to the heart of the clause. The problem is that with all our expertise, a great deal of which is sitting to my left in the Box, we think that this is a reasonable provision that is not liable to the Henry VIII implications feared by the noble Lord and his noble friend Lord Jenkin.

Baroness Hamwee: My Lords, the serious point is to ensure that proper consideration is made of the matters before decisions are reached. Indeed, the noble Lord will have heard the reaction of these Benches when he mentioned Borough Market. In that connection, he referred to the need for the matter to be considered in public. Can he give an assurance that, more than being considered in public, there will be the opportunity for representations to be made?

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Lord Adonis: My Lords, I can give that assurance. It is important that the IPC can use powers under Clause 118(5) only where a promoter has applied for consent. The application should be considered in a public examination with all interested parties and members of the public having the right to make representations to the IPC. It is for that reason that we have introduced the safeguard.

Lord Jenkin of Roding: My Lords, the amendment has been justified and we have had a full and persuasive explanation of the Government’s policy from the Minister. As I said at the beginning, there was no argument over the great mass of the detail, which is essential for bringing into effect the infrastructure projects with which the first part of the Bill is concerned. However, there needs to be a long-stop and I wonder—we are not in Committee and so I cannot ask questions—whether there is a procedure whereby a decision of the commission could be challenged on the grounds that it may have made an unreasonable and disproportionate use of this power. If there was such a long-stop, where people could say that a matter was going too far and persuade a court that it was right to challenge a decision, then one would have the kind of protection that I am looking for, as against a major change in the law simply made by an appointed body.

I shall need to consider this matter. The Minister kindly said that he will continue to think about it. I will continue to think about it and we may need to come back to it at Third Reading. In the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 121 to 121B not moved.]

Schedule 5 [Provision relating to, or to matters ancillary to, development]:

[Amendments Nos. 121C to 121G not moved.]

Lord Patel of Bradford: My Lords, I beg to move that further consideration on Report be now adjourned.

Moved accordingly, and, on Question, Motion agreed to.

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