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Be that as it may, it seems that the noble Lord, Lord Greaves, has raised an important point. I am in no position to judge whether his analysis is correct but his arguments seem persuasive. Let there be no doubt about it, the historic common-land rights are important, as so eloquently expressed by the noble Lord, Lord Judd. I will listen with great care, therefore, to what the Minister has to say in reply. If there is any doubt on the issue, I hope she will agree even at this late stage to take it away and come back at Third Reading with an amendment that ensures that these special common-law rights are respected. If not, I will certainly support the noble Lord, Lord Greaves, if he seeks to test the opinion of the House.
Lord Brooke of Sutton Mandeville: My Lords, I add a brief but apposite moral tale. Many of our debates in Committee and on Report have been on the energy needs of the nation, to which this Bill partly applies. In 1982, the Wiltshire Record Societys annual volume recorded the judicial notebook of a resident magistrate of a hundred in central Wiltshire who tried 500 cases in a five-year period in the 1740s; that is enough to be statistically significant. Much the most frequent rural crime during those five years was the theft of firewood due to the enclosure of common land.
Lord Howarth of Newport: My Lords, we are undoubtedly in complex legal territory here, but I hope that we can all agree that the purpose of the noble Lord, Lord Greaves, in tabling the amendment is sound. Historic common lands ought to be cherished, and ought not lightly to be jeopardised. I very much hope that the Minister will be able to respond in that spirit.
The Earl of Sandwich: My Lords, I support the amendment in principle but am puzzled about the phrase open spaces. When she comes to reply, can the Minister provide the Governments understanding of the phrase? It has a technical and a wider meaning, and comes up again in the amendment of the noble Lord, Lord Dixon-Smith. There is a confusion with the concept of infill housing, for example, which could be affected by the amendment. I would like some clarification, if possible.
Baroness Andrews: My Lords, it has been a short and invigorating debate. I hope that I can give all the strong assurances that noble Lords across the House have sought on the important issue raised by the noble Lord, Lord Greaves. We had a short debate on this in Committee, and followed it up with an exchange of correspondence. I am glad to understand more about the important issues that he raised. I completely understand his concerns, and appreciate how he set out his case, not least the roll call of rights associated with this extraordinarily rich and unique part of our heritage. I hope that what I say now, about our having absolutely no intention of weakening what we have already achieved for the protection of commons in the Bill, will satisfy him.
I shall address some of the noble Lords questions in context. He sought reassurance that there would be no loophole in the Bill meaning that development could take place on common land which a promoter
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The noble Lord has a great deal of experience on this matter, and he knows that we share his values and are deeply sympathetic with the intentions of the amendment. We share certain core principles about how development consent orders should operate where they cover land designated as commons. In particular, we agree that consent will still be needed under Section 38 of the Commons Act where development consent orders grant authority for works on common land, except where the development consent order grants compulsory purchase under Clauses 129 or 130 of the Bill. If common land is compulsorily purchased under these clauses, it would clearly not be sensible to require a separate consent as well.
We also agree that development consent orders should not use the powers in Clause 118(5) to exclude or modify the application of the Commons Act in relation to land contained within the order. That would prevent a situation whereby provision of a development consent order could let a promoter off the requirement to provide just those replacement land rights which would otherwise be required when deregistering land under the Commons Act.
The noble Lord anticipates that we have found some problems with his amendment. They concern the complexity that has been referred to, not least by my noble friend Lord Howarth. These are extremely ancient and complex pieces of legislation. In particular, the amendment would apply the Commons Act to fuel or field garden allotments and open spaces that are not covered by the Act, which only refers to commons, and town and village greens.
Proposed new subsection (2) might also be interpreted as extending the scope of legislation on a specific common so that it covers all commons; we are indeed getting into deep waters. However, I shall consider this further and I hope that this will satisfy the House. I hoped to bring forward an amendment to deal with this, but it has not been possible in the time. I ask the noble Lord to be a little more patient and withdraw his amendment, so that we can consider further. We will table our amendment, which I believe will address the concerns that he articulated this afternoon, and the concerns expressed by all noble Lords. I will be happy to share our amendment with him ahead of time so that we can discuss it. I hope that that will do the trick.
The noble Earl raised the question of the definition of open land. I am advised that this is covered by Clause 129(12), which refers to the Acquisition of Land Act 1981. It is defined in Section 19(4) as any land,
Lord Greaves: My Lords, if the Minister asks me to be patient, I will always be patient, so long as my patience is not expected to go beyond the ultimate deadline of Tuesday next week. I am extremely grateful for what she has said. I remember that this problem arose earlier this year, when we were discussing the Housing and Regeneration Bill, and the Government came back with an amendment that they and the commons experts said met the concerns. I still do not understand it, but I was told that it met the concerns and I was happy to accept it. As far as concerns the definition of open space and fuel and field garden allotments, I was simply copying what was in what are now Clauses 129 and 130, which cover commons, village greens and town greens. I had never come across fuel and field garden allotments and did not know what they were. When I said this, my noble friend Lady Hamwee said, Oh, we had one of those in Twickenham and it was very interesting having to deal with it. I do not think it was the rugby field that she was talking about, but you never know.
The Minister invited me to withdraw my amendment. I am delighted to do so on the basis that we have been given a fairly strong idea that we will get a government amendment at Third Reading. I look forward to discussing that with her. I thank her very much for the positive approach that she has taken and beg leave to withdraw the amendment.
( ) compliance with any condition attached to an order granting development consent shall not of itself attract statutory authority.
The noble Baroness said: My Lords, I shall speak also to Amendment No. 123B. I declare an interest: the amendments were brought to me by the Chartered Institute of Environmental Health, of which I have recently become a vice-president. I hope that the notes that I sent to the MinisterI did not wish to deprive other noble Lords of the detail, but simply to shorten the processwill have assisted.
The amendments take us to Clause 155 on nuisance. They are amendments to the clause that the Government brought in Committee. That amendment took us a long way to dealing with anxieties about what was in the Bill, but a few anxieties remain.
My question is whether that implicitly authorises any activity, notwithstanding that it may be a nuisance, or in future come to be a nuisance or to be actionable in any other way. As the institute comments, if the world were a world of perfect conditions, this would not matter, but it is simply not realistic to think that we can anticipate everything that might happen. Its concern, which I share, is how it is in practice envisaged that adequate conditions can be set. Even if one could predict the range of nuisances likely to arise from a particular development, it would be much more difficult to quantify them. Setting abatement conditions is also a problem.
What is a nuisance can change over time. There can be advances in processes and advances in the technology applying abatement. There may, for instance, be a need for abatement if housing is built closer to a polluting site. We do not live in a static world.
If the terms of a condition applied by a development consent order operate as an implied consent, the operator just has to take sufficient precautions to stay within it; but if it does not do so, or if conditions become obsolete or if there is encroachment, what is to happen? There still seems to be uncertainty, which is at the nub of the amendment.
It seems that that would allow the IPC not only to remove a defenceit would support thatbut to relax a defence, which is what it is concerned about; in other words, to grant a greater immunity. As noble Lords will understand, that amounts to law-making by an administrative body. I understand that officials have commented that the European Convention on Human Rights would be an adequate protection. I am not confident about that, and that is not where it should be left. Therefore, the amendment would continue to provide for the removal of the defence, but it would not allow the defence to be extended. I beg to move.
Baroness Andrews: My Lords, these are technical matters, and we discussed much of this in Committee. I am delighted that we can return to the subject and offer more reassurance to those on behalf of whom the noble Baroness tabled the amendments. This should provide reassurance about what the new nuisance provisions will mean in practice.
The noble Baroness eloquently raised issues about how the IPC will be able to place requirements on development consent orders that adequately deal with potential nuisances, which can certainly get better or worse depending on technologies and different situations. How can this be future-proofed to ensure that the promoter must always use best practical means to avoid causing nuisance? The noble Baroness also raised the issue of the IPCs ability to make orders that contain what we might describe as contrary provisions.
The first concern raised by the noble Baroness was whether Clause 155(1)(b) might include observing a requirement. She has indicated that there is a concern that this interpretation might lead to a promoter of an NSIP being authorised to cause nuisances up to a level specified in a requirement, irrespective of whether technologies had advanced, such that this level of nuisance could be substantially reduced. That is clearly a rather absurd position. I am sure that she will understand that much will depend on how the IPC words any such requirement and, indeed, any other part of a development consent order.
The Government believe that the clause as it is currently drafted already ensures that promoters must make all reasonable precautions to avoid causing nuisance, including by adopting new quieter technology, for example, where appropriate. It might help if I gave an example. A requirement might be worded, The noise levels associated with a particular operation shall not exceed X decibels. That would grant a defence of statutory authority for such a level at the time the development consent order is granted. However, as I mentioned in Committee, we intend Clause 155 to work within the common law meaning of nuisance; that is, we do not believe that a defence would be operable if a promoter had not taken every reasonable precaution consistent with the exercise of the development consent order to prevent the nuisance from occurring. If technological advances in the future mean that the operation of an NSIP can be carried out more quietly, the promoter will benefit from the defence in this clause only if it has taken advantage of these new technological advances. The developer will still be operating within the terms of the development consent order if noise levels are less than the maximum specified by the requirement. Therefore, there is an onus on the developer to keep pace with changing technologies.
We do not believe that it would be appropriate for requirements to be phrased along specific lineswhether we are talking about levels or limitssuch as, The noise levels associated with a particular operation shall be X decibels. If we did that, it would mean that if a promoter tried to benefit from technological advances, it would not be able to rely on the defence of statutory authority. That creates a rather perverse situation. In the light of this, the noble Baronesss amendment raises uncertainty as to when compliance with a requirement could confer a defence of statutory authority in nuisance proceedings. As I said, a better solution is to ensure that requirements are worded appropriately. I hope that I can offer some assurance. I draw the Houses attention once again to the model provisions in Clause 38, which could certainly include models for requirements.
I hope that the noble Baroness and the Chartered Institute of Environmental Healthwhich, I think, was primarily concerned about thiswill take comfort from that assurance. When these are drawn up, bodies such as the institute will have a role in consultation as well.
Amendment No. 123B relates to the ability of a development consent order to depart from the default position on nuisance in Clauses 149 and 155. We included amendments in Committee for a default position, whereby a promoter should not be liable to nuisance claims in respect of nuisances which are the inevitable consequences of works authorised by a development consent order, and which cannot reasonably be avoided.
As I have set out, this would include where technology has progressed since the development consent order was granted. We believe that it would be appropriate for the IPC to have the flexibility to make a provision that sets out, for the avoidance of doubt, how this default position would work in respect of proceedings brought under the Environmental Protection Act. There are precedents. Examples of this approach can be found in a number of recent orders made under the Transport and Works Act. I am assured that Article 40 of the Felixstowe Branch Line Order (SI 2008/2512), Article 36 of the Network Rail (Thameslink 2000) Order (SI 2006/3117) and Article 46 of the DLR (Stratford International Extension) Order (SI 2006/2905) fulfil those criteria.
I should reiterate that we believe that this flexibility is more likely to be used to expand a developers exposure to nuisance actions than to restrict it, which I think is the point about which the noble Baroness is primarily concerned. She referred to the fact that the IPC would have to be compliant with the terms of the Human Rights Act. As such a provision could potentially engage a person's Article 8 rights, the IPC must be satisfied that this is justified; that is, that it is necessary in the interests of national security, public safety or the economic well-being of the country, will achieve its purpose and is proportionate. In addition, the IPC is under a general duty to act reasonably. I should also highlight that if a development consent order applied powers under Clause 118(5), the Secretary of State can review the terms of the order and direct changes where he or she finds that it would contravene ECHR rights.
Baroness Hamwee: My Lords, I am grateful for that. At a practical level, I take greatest comfort from the reference to the model provisions and the consultation which will precede them and, although the noble Baroness did not mention this, from the fact that legal advice will be available to the commissioners. Clearly, that legal advice will need to cover a great range of expertise. I am grateful for that and I beg leave to withdraw the amendment.
The noble Baroness said: My Lords, Amendment No. 127 is part and parcel of the same obligation so well set out by government Amendments Nos. 23 and 37, that good design should be integral to the process of planning. This amendment simply reflects that obligation, for the sake of consistency, in the other great area of planning decision-making, in the Town and Country Planning Act system at local level. This will affect the buildings which influence so much of our daily lives for better or worse, and will give local authorities the confidence to entrench good design into their procedures by the various means already available. It will give those who care about design more influence, pushing the whole system to have higher standards, and to implement PPS1 as a natural part of their operation. It is supported by the RIBA, for whose encouragement and technical advice I am extremely grateful, and by the Town and Country Planning Association.
All the same arguments that my noble friend advanced for the amendments to Clauses 5 and 10 apply. I am sure that it is unnecessary to repeat themor the consequences of not having these amendmentsto noble Lords who have so widely recognised the merits of putting design at the heart of planning. I therefore hope that my noble friend will put this last but crucial cog into the structure so well envisaged in Amendments Nos. 23 and 37 and accept it. I beg to move.
Lord Howarth of Newport: My Lords, I declare an interest as an honorary fellow of the RIBA. I am happy to acknowledge the technical advice and enthusiastic support that staff of the RIBA have given my noble friend Lady Whitaker and myself in the preparation of the new clause.
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