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Discussion on which of those options would be best would take place at the appropriate time, taking full account of the circumstances of the case. I am certainly not closing the door to the possibility of the United Kingdom Parliament deciding the planning issues relating to those infrastructure projects, but that would be by means of a private or hybrid Bill, requiring a Sewel motion; it would not be done through the IPC which, under the Bill, would not have powers in respect of the rail infrastructure required for cross-border projects. The issue of services is distinctly different. It relates to the contracting process with train operating companies for services which, as the noble Duke said, run from Glasgow, Edinburgh and other Scottish cities to south of the border.

The Duke of Montrose: My Lords, I am interested to hear the response of the Minister, but I am still puzzled. One knows perfectly well that planning is a devolved matter and, as I understand it, would require consideration of specific areas, items, routes or anything else within Scotland. Is it the Minister’s contention that national infrastructure is not a reserved matter and that, therefore, it is a proper matter for the Scottish Administration to consider? If so, does that relate only to national infrastructure as regards Scotland? The clauses at the beginning of the Bill apply to Scotland, so I would have thought that the Scots should be able to consider cross-border railways.

Lord Adonis: My Lords, it is our contention that the Scottish dimension of any rail infrastructure projects that cross the border are subject to the devolution settlement and, therefore, should either be decided by Scottish Ministers or, as I said, be subject to a private or hybrid Bill procedure, which, in turn, would require a Sewel motion.

The Duke of Montrose: My Lords, I find it difficult to plough my way through all this, but in the mean time I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 60 [Local impact reports]:

Baroness Hamwee moved Amendment No. 8:

8: Clause 60, page 37, line 14, at end insert—

“( ) The deadline shall allow reasonable time for the preparation of the local impact report”

The noble Baroness said: My Lords, Amendment No. 8 is grouped with government Amendment No. 9. They relate to the clause that provides for local impact

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reports. We support government Amendment No. 9, which takes away the deadline for the deadline—if I can put it that way—for the provision of the local impact report, which will not now be required to be the deadline for completion of the examination. We support the thinking on this, which is to allow the applicant and other parties to ask questions about the local impact report and test it.

However, it seems to me that there is a danger in leaving the matter open. In preparing the impact report, the local authority might find its time squeezed so that it has insufficient time to do justice to the matter—hence my amendment that the deadline must allow reasonable time for the preparation. I hope that the Minister can give me some assurances on that. Clearly, the commissioner needs to set a realistic timescale proportionate to the size of the task of the local authority. Ideally, there should be agreement between the parties—I use that term in its widest sense—on what is a reasonable time for the preparation of reports. I hope that the noble Baroness can assure me that common sense will apply and that the parties will all act as civilised adults in addressing the issue. I beg to move.

3.30 pm

The Earl of Caithness: My Lords, before the Minister moves her amendment, will she advise on how the Government will help local authorities with the preparation of this report? Will there be guidelines so that the reports will be consistent? What steps will be taken to ensure that all major items are included throughout the country on an equal basis, in particular agriculture?

Baroness Andrews: My Lords, I am glad that the noble Baroness welcomes the amendment. I will put on record some of the reasoning behind it and then address the amendment itself. I hope that I can reassure her. It may be useful if I set out why the Bill provides for the commission to invite the relevant local authority, or authorities, to produce a local impact report.

We are absolutely clear that local authorities, as the democratically elected representatives of the local community, have a vital role to play in the consent regime for major infrastructure, particularly in ensuring that national decision-makers, including the proposed IPC, take proper account of relevant local factors and considerations. Therefore, the Bill provides local authorities with a vital role in representing their communities in the new process and in ensuring that their local communities are adequately consulted. I say to the noble Earl, Lord Caithness, that we will certainly put out guidance and take early action with local authorities to ensure that they understand the process. This is an important question, because so much will rest on their understanding of what this offers their planning procedures.

Relevant local authorities will be consulted by the promoter of a project before they submit an application under the provisions of Part 5 of the Bill. The IPC must have regard to any report on the adequacy of the promoter’s consultation received from a local authority

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when deciding whether to accept an application. Relevant local authorities will be interested parties to the examination of an application. In addition, Clause 60 requires the IPC, on accepting an application for development consent, to invite the relevant local authority, or authorities, to produce a report on the likely impact on their area of the proposed development being applied for. Clause 104 then requires the commission to have regard to the local impact report when making its decision. Clause 105 requires the Secretary of State to do the same in a case in which she decides, for example, to exercise her power of intervention. This all adds up to the local impact reports being central to the IPC decision. As such, we have sought to give local authorities the longest time to prepare the reports, which will, I envisage, be quite detailed documents. They will reflect the impact of a development on the local development plans; they will reflect what the community feels and thinks.

However, the importance that the new process gives to local impact reports needs to be balanced against the need to ensure that the applicant and other interested parties are also given a reasonable opportunity to comment on the report to the IPC. We are looking for a balance of fairness and access. On Report, the noble Lord, Lord Berkeley, raised the concern that the Bill does not appear to provide for a local authority’s local impact report to be seen and commented on by the applicant and any other interested party before the end of the examination of the application by the IPC. My noble friend’s concerns arose from the provision in Clause 60(6), which provides that the deadline for submission of the local impact report is the same as the deadline for the completion of the examination of the application by the IPC. My noble friend made a compelling case and I gave an assurance that I would consider this further ahead of Third Reading, which I have done.

I accept that provisions in Clause 60(6) may inadvertently suggest that the applicant and other interested parties might not have an opportunity to comment on a local impact report. This was not our intention. Our Amendment No. 9 therefore removes subsection (6) of Clause 60 so that instead it will be for the commission to specify in each case the date by which the local impact report must be received. That will be subject to procedural rules made by the Lord Chancellor under Clause 97, which we expect will clarify that the deadline must give sufficient time for the parties to comment on the local impact report.

What we have are rules that will strike the right balance between giving local authorities the longest time possible to complete these detailed and important reports and ensuring that the applicant and interested parties are given a reasonable opportunity to see and comment on the report to the IPC before the completion of the examination of the application. I commend the amendment to the House.

Amendment No. 8, which was tabled by the noble Baroness, Lady Hamwee, would provide that the deadline in Clause 60 should allow reasonable time for the preparation of the local impact report. That is not necessary in the light of what I have said. I set out in some detail that it would be for the commission to

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specify in each case the date by which the local impact report must be received. That will be subject to procedural rules made by the Lord Chancellor under Clause 97, which, as I said, we expect will clarify that the deadline must give sufficient time for the parties to comment on the local impact report.

The noble Baroness asked me for reassurance that local authorities will also get reasonable time to comment and complete the local impact reports. I am happy to give her that reassurance because, above all, we will make sure that the procedural rules make it clear that the IPC should give local authorities the longest time possible to complete these reports and ensure that the applicant and the interested parties can see and comment on the report to the IPC. That will be achieved by procedural rules, which is the best way, because it allows for discussion. I hope that the noble Baroness will be satisfied with that.

Baroness Hamwee: My Lords, I asked for an impossible assurance. I do not know that any Minister could give an assurance that people will behave like civilised adults on every occasion. Experience suggests that that ideal is not always achieved. However, I am reassured by what she said, which put the importance of the local impact report well to the fore. What has been arrived at with that assurance and with reference to procedural rules gives the right balance and I am happy to beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Andrews moved Amendment No. 9:

9: Clause 60, page 37, line 15, leave out subsection (6)

On Question, amendment agreed to.

Clause 104 [Decisions of Panel and Council]:

Baroness Andrews moved Amendment No. 10:

10: Clause 104, page 55, line 19, leave out “the following subsections” and insert “subsections (4) to (8)”

The noble Baroness said: My Lords, we now turn to a small group of amendments to Clauses 104 and 105, which provide how decisions on applications are to be taken by the decision-maker. Government Amendments Nos. 10 and 11 clarify that NPSs that identify a location as suitable or potentially suitable for development do not pre-empt the IPC decision to grant development consent. Amendment No. 12, which was tabled by the noble Baroness, Lady Hamwee, would clarify that the fact that any relevant national policy statement identified a location as suitable or potentially suitable for a particular description of development would not prevent Clause 105(2) from applying where the Secretary of State was the decision-maker.

As context for these amendments, it is worth restating that the Bill provides a clear framework for decision-making, which, as noble Lords know, consists of the relevant national policy statement and the matters set out in Clauses 104 and 105, including matters to be prescribed in the statutory instrument or instruments that we will lay before Parliament in due course following consultation. Within this framework, the national interest, as developed in the national policy statement, will be the prime consideration for decisions. NPSs will set

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out our national policy on, and the national need for, infrastructure, but only after they have been consulted on and have been scrutinised by Parliament. As we know, national policy statements will vary in specificity depending on the sector to which they apply. In some cases, the relevant Secretary of State may decide that it makes sense to specify the location where it is considered that it would be appropriate for investment to take place. We have already stated that the NPSs for aviation and nuclear will be location-specific. That will help us to focus the task of the IPC.

It is important that I set out clearly at this point that NPSs will indicate, as appropriate to the particular infrastructure with which they are concerned, places that are suitable or potentially suitable locations for development. We discussed at earlier stages the difference between site and location. NPSs will not identify specific sites. The developer will bring forward the site application and it will be for the IPC to determine whether it is appropriate. It will be left to the IPC to consider the detail of specific sites, layout, access and, of course, local impacts.

It is clear from Clause 104 that the NPS will not be the only factor on which the commission’s decision is based, because it provides, as we debated on the previous amendment, that the IPC must also have regard to the local impact report from the local authority, other matters that may be set out in secondary legislation and any other matters that the commission thinks are important and relevant. We have made it clear that the commission will be able to take account of a range of other factors in its decision. The Bill requires the commission to take into account any matters that it believes are important and relevant. Where appropriate, it will be able to refuse consent for a development, notwithstanding the fact that the application accords with the relevant NPS.

Subsections (4) to (6) of Clause 104 provide that the IPC can, in reaching a decision, depart from the national policy statement where not do so would lead to the UK being in breach of its international obligations, would lead to the commission being in breach of any enactment or would be unlawful by virtue of any enactment. That will ensure, for example, that protection of sites under enactments such as the habitats directive is respected in the commission’s final decision.

Clause 104(7) allows the panel or the council to turn down an application that is in accordance with a national policy statement if it is satisfied that the adverse impact of the proposed development would outweigh its benefit. The IPC would still consider issues specific to the application at the local stage—detailed layout and so on—as well as environmental impact. If it decides that the adverse impact of a development would outweigh its benefit, it can refuse consent.

I have gone through that process for the last time because I wanted to show that the Bill clearly provides that the IPC can reject an application even where it accords with the relevant NPS in the circumstances outlined in subsections (4) to (8) of Clause 104. I make it clear that the provisions of Clause 104 apply to all decisions taken by the commission, whether or not the relevant NPS has identified suitable or potentially suitable locations for development.



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On Report, noble Lords, notably the noble Baroness, Lady Hamwee, sought an assurance that we would reconsider the wording of the Bill to make it clear that the IPC must consider the issues raised as a result of subsections (4) to (8) of Clause 104 in cases where the relevant NPS identifies locations that are suitable or potentially suitable for development. I accept that it is important to be quite clear about that. I assured the noble Baroness on Report that I would consider the point further ahead of Third Reading to see whether clarification in the Bill to that effect would be helpful.

Government Amendments Nos. 10 and 11 make clear in the Bill that to identify a location as either suitable or potentially suitable for development in an NPS will not pre-empt the IPC’s examination of the issues referred to in subsections (4) to (8) of Clause 104. The amendments will clarify that in all cases the IPC must have regard to the other factors provided for in subsections (4) to (8) of Clause 104 and that, if any of the circumstances outlined in those subsections apply, it can reject an application even if it is in accordance with the NPS. I hope that that will satisfy the noble Baroness. I am grateful for her help in enabling us to clarify that point. I beg to move.

3.45 pm

Baroness Hamwee: My Lords, I welcome the Government’s amendments. Throughout the passage of this Bill, the Minister has devoted time and a considerable degree of care to listening to noble Lords and responding to their concerns wherever possible. As ever, the wording which the Government have produced is considerably better than mine and I thank the Minister for the two amendments. In introducing them, she said quite rightly that there have been occasions when the term “site” has been used. In fact the Bill deals only with “locations”. We have all been guilty of referring to “sites”. There was even an occasion at the last stage when the Minister talked about “potentially suitable sites”. I am glad that that has been corrected and we have slightly broadened the issue.

Amendment No. 12 reflected my concern that the Secretary of State should be in the same position as the commission in cases where the Secretary of State takes a decision on matters to which he or she must have regard. I appreciate that it will be rare for there to be a national policy statement in place when there is a Secretary-of-State decision, but it is possible and the Bill allows for that. The Government’s drafting clearly includes confirmation—and I use that word rather loosely—of the status of the NPS vis- -vis other considerations. Having had it explained to me that it is in a different part of Clause 104 from those to which the panel and council must have regard, and that those parts of Clause 104 are not repeated in Clause 105, I can see that my concern is misplaced; that concern being that a court looking at the two clauses might say that Parliament had a different view as to how Clause 105 would operate and national policy statements would have a different status in that clause. Third Readings are useful occasions. I can see now that that should not apply. I am grateful for the time of the House and for the opportunity to explain my concern, as well as to thank the Minister and make sure that it is understood how the two clauses operate.



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Lord Howarth of Newport: My Lords, for reasons that the whole House understands and accepts, the noble Lord, Lord Reay, chose not to move his Amendment No. 1 about respecting high quality landscape. Is the Minister willing to elaborate a little on what she considers the clause as amended to mean for the duties of the panel and council and the Secretary of State as they arrive at their decisions in relation to respect for the landscape?

I am happy to see my noble friend Lord Hunt in his place and most grateful to him for his willingness to meet the noble Lord, Lord Reay, and me and for the letter that he has written to us. He said on Report that national policy statements will take account of all relevant government policy, including PPS7, and I appreciate that PPS7 confirms that great weight should be given to the designations of national parks and areas of outstanding natural beauty in planning policies and development control decisions. Can the Minister confirm that PPS7 will be among matters prescribed in subsection (2)(c) of Clause 104 or other matters which the panel and the council may consider important or relevant, as in subsection (2)(d)?

The major development test set out in paragraph 22 of PPS7 says that major developments should not take place in national parks and areas of outstanding natural beauty except in exceptional circumstances. Will my noble friend tell us a little more about how strong that protection is, and how strong the protection in PPS22 and its companion guide is? Some of us fear that it will be argued, for example, that the need to provide more renewable energy in coming years constitutes an exceptional circumstance, and that adverse effects on the quality of the landscape will be considered to be outweighed by other environmental, social and economic benefits, thus justifying the festooning of our most beautiful and treasured landscapes with wind-power apparatus. Can my noble friend reassure us to any extent on that point, and can she assure us that the forthcoming national policy statement on renewable energy will robustly protect important landscapes?

I appreciate that local authorities are instructed in PPS7 to take account of landscape quality in preparing local development documents, and that local authorities will be statutory consultees where national policy statements are location-specific, as well as for pre-application and examination processes in the development consent regime, and that they will have the opportunity to provide local impact reports to the IPC. Clause 104 refers to all this. My noble friend said in the debate on a previous amendment that local impact statements will be key.

Clause 104(4) applies,

Will my noble friend tell us whether the Government will regard the European Landscape Convention as being among those international obligations, and will she confirm that PPS1 reflects that convention and will be interpreted in that sense? Will she also confirm that the Government will pay very careful heed to the advice of Natural England, as a statutory consultee

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for all national policy statements? Such reassurances would be helpful, but they would remain somewhat flimsy.

So, finally, I ask my noble friend for two specific assurances. Will she assure the House—in terms that can be noted by the courts, which will interpret this law in due course—that, as an important environmental consideration, the conservation of the landscape falls within the scope of the Secretary of State’s duty to contribute to sustainable development in Clause 10? When, before designating a national policy statement, Ministers carry out an appraisal of its impact on sustainability, will they assess and take account of its impact on the landscape? The noble Lord, Lord Hunt of Kings Heath, gave the noble Lord, Lord Reay, and me such assurances in his letter, but it would be hugely helpful if my noble friend could place those assurances on the record in Hansard.

Baroness Andrews: My Lords, I thank the noble Baroness, Lady Hamwee, for interpreting and speaking to my amendment, which I shall say nothing more about.

I will answer quite a lot of the questions asked by my noble friend Lord Howarth by referring to the letter which my noble friend Lord Hunt of Kings Heath sent to the noble Lord, Lord Reay, but I will have to write him about others because they were even more detailed than some of the answers that he received. I will do my best not to weary the House by referring to the letter, which answers most of these questions.


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