| Previous Section | Back to Table of Contents | Lords Hansard Home Page |
Finally, I think that the Minister was talking about Clause 49(1)(a), about the plan. Clause 49(1)(b) is about the policies. The plan has to be constrained within the boundary; the submission here is that the policies must have regard to the effect that they are having beyond the boundary. Having said that, I beg leave to withdraw the amendment.
Baroness Hamwee: I am happy to move the amendment, but I had wondered what the name of the noble Lord, Lord Hanningfield, was doing here and why I had not put my name to it, unless I had changed personality in the eyes of the Public Bill Office.
The Minister of State, Department of Energy and Climate Change & Department for Environment, Food and Rural Affairs (Lord Hunt of Kings Heath): We had better clarify this. This is the beginning of a group starting with Amendment 89ZC in the name of the noble Baroness and the noble Lord, Lord Greaves. Is that clear?
Baroness Hamwee: My copy has the name of the noble Lord, Lord Hanningfield.
Lord Hunt of Kings Heath: We thought that it was the noble Baroness. We are relieved to see that she is here, ready to speak.
9 pm
Baroness Hamwee: Perhaps I should just get on with it. Amendment 89ZC uses the same language as Amendment 90ZC and is grouped with Amendments 89A and 90A. It deals with “relevant considerations”. Taking just one of the provisions, I was surprised to see that the Bill states:
“A marine plan must be in conformity with any MPS”,
I searched unsuccessfully for a definition of “relevant considerations”. The two long amendments are not my drafting—I would not have had the imagination to do more than delete the phrase—but they suggest the circumstances in which relevant considerations might apply, and those are listed. I shall not take your Lordships’ time by reading the four, and in the other case six, circumstances.
10 Feb 2009 : Column 1097
I may be told otherwise but I do not believe that the term has achieved an understanding in the way that in terrestrial planning “material consideration” has. I understand that the Government rejected the use of that term on the basis that we are looking at a new type of planning regime, perhaps a new type of planning and, as referred to by my noble friend Lady Miller, new planners, who do not yet exist—at least, they exist but they do not have the qualifications; they are to come.
I think that it is dangerous to have such a wide, undefined and uncircumscribed clause. To my mind, the term “relevant” is wider and looser than “material”, which I accept has case law behind it. It certainly does not mean as much as “significant”. A matter can be relevant but at the same time unimportant, yet, if it were unimportant but relevant, it would still appear to detract from the obligation for a marine plan to be in conformity with an MPS.
The Government may defend the wording by saying that we will have guidance, but that is the least that we should have. If we are to have guidance, I hope that they have begun to work on it and can share with your Lordships what it might say before we proceed too much further through the Bill. It seems to me that this matter needs to be pinned down far more than is the case at the moment. We cannot leave it to the good will of various authorities; it is too open to challenge. I beg to move.
Lord Taylor of Holbeach: These amendments, which we support, derive from the Link coalition of wildlife and environmental groups, and we are very grateful to it for suggesting them to us. The noble Baroness can be forgiven because, on the earlier list of amendments, the name of my noble friend Lord Hanningfield and not hers was attached to this one. That was a technical error, which is rare in this place, but she can be forgiven for being confused by it.
We feel a great deal of sympathy for the amendments, which are designed to clarify terms used in the Bill, making them more specific and transparent. The Committee has already spent much time on marine policy statements. The Minister described an MPS as a statement that will bring together all our maritime policies, covering social, economic and environmental considerations, set out a clear and consistent framework for coastal and marine regulators and users, and help everyone to work together towards common, agreed objectives.
That is no mean aspiration and, even if it might sound like motherhood and apple pie, I cannot disagree that this must be the objective. However, it is even more crucial that public authorities will be required to obey marine policy statements. If there are areas where “relevant considerations” can be used not to follow the marine provisions, they must be defined clearly and beyond doubt. If the marine planning statement is heralded as a truly uniting and effective document, it is necessary to ensure that marine plans will not be out of sync with it and that public authorities will be unable to disregard the appropriate marine policy statements without due cause as defined in the Bill.
We understand the Government’s desire for flexibility. Does the Minister not agree that too much room for manoeuvre will just mean that the Marine and Coastal
10 Feb 2009 : Column 1098
Lord Hunt of Kings Heath: I am grateful to the noble Baroness and the noble Lord for speaking to these amendments, as it allows me to clarify what is meant by “relevant considerations” and to say why they are the appropriate words in the Bill.
Amendments 89A and 90A follow the Planning Act in trying to pin down the meaning of relevant considerations and the circumstances in which they might justify a decision-maker departing from provisions of either a marine policy statement or a plan. Clearly, this is an important issue that goes directly to the degree of trust that people and organisations—the decision-makers—can place in those documents. I can well understand why the amendments have been tabled and what lies behind them.
Clause 49 requires a marine plan to be in conformity with the marine policy statement unless “relevant considerations” indicate otherwise. Similarly, Clause 56 requires certain decisions to be taken in accordance with the marine policy statement and plans unless “relevant considerations” indicate otherwise. This approach of a general duty of conformity, which also allows relevant or, indeed, material considerations to be taken into account, is familiar from terrestrial planning legislation, where it has worked effectively for many years.
I shall come back to that comparison with terrestrial planning legislation in a moment, but first I want to deal with Amendments 89ZC and 90ZC. They would impose a strict statutory duty on marine planning authorities and decision-makers to follow the content of the marine policy statement or marine plans without exception, regardless of any other factors that might suggest that perhaps another approach might be more appropriate. I understand that part of the reason for the amendments is to seek clarity, but they would cause a major problem by removing from planners and decision-makers the ability to take new science and evidence into account.
We have to face up to the fact that however hard we and our colleagues in the devolved Administrations endeavour in trying to prepare marine policy statements and marine plans, we will never be able to address every possible set of circumstances which may face marine planners and decision-makers when trying to apply those policies to real places, projects and people.
The noble Lord, Lord Taylor, said that the way in which this has been constructed gives too much room for manoeuvre, and I see where he is coming from. The problem was raised in our original debate when he posed the risk that in order to gain agreement, particularly in relation to the marine policy statement, everything is watered down. This is a worry here, too. If you
10 Feb 2009 : Column 1099
Amendment 96A seeks to add to Clause 59(4) a provision for challenges to be brought against the planning authority if a decision is taken which does not conform to the marine policy statement. I understand that that would follow from Amendment 89ZC, which would make marine plans always be in conformity with the marine policy statement. I want to point out that at Clause 59 the Bill recognises the importance of marine plan authorities to be able to make plans with relevant considerations in mind, which they feel are necessary and justifiable, without the fear of legal challenge being brought against them because they are not in total conformity with the marine policy statement.
Apart from the concern about an absolute duty, which would fetter any sensible use of discretion, there is also a question of timing. Clearly, circumstances change and sometimes it will not be possible to wait for a marine plan or marine policy statement to be amended. That is particularly so because Schedules 5 and 6 set out an extensive process which must be undertaken before either the MPS or the marine plan can be adopted. We therefore believe that there must be an opportunity for marine policy statements to be amended. It would mean that the marine plans were no longer in strict conformity, but a legal challenge in those circumstances will not be in anyone’s interest.
We debated the issue briefly at Second Reading. I said then that we do not expect marine plan authorities or decision-makers regularly to depart from the provisions in the MPS or marine plan. I fully accept that this should be very much the exception. Marine plan authorities are, in practice, the same Ministers who adopt the marine policy statement as policy authorities. They will not want to adopt a marine plan which contradicts their own policies as stated in the MPS unless there are very good reasons for doing so.
Similarly, for the whole integrity of this new system, we would not want decision-makers regularly to ignore the MPS or plan since, clearly, that would undermine the confidence of marine users who will want to use and understand these documents. That is why we have imposed a requirement in Clause 56(2); if decision-makers depart from the MPS or plan, they must give their reasons for doing so. I am sure that marine plan authorities will want to monitor decisions that do not follow the MPS or plans as part of their review of the effects and effectiveness of plans under Clause 58. I would be very surprised if the process of parliamentary scrutiny did not involve itself in such matters. Large numbers of decisions made otherwise than in accordance with the MPS or plans are likely to be a signal that those policies are not working in that area. They would trigger a review and amendment of a plan or even of the marine policy statement.
10 Feb 2009 : Column 1100
9.15 pm
Turning to Amendments 89A and 90A, I am not as expert as the noble Baroness or the noble Lord on the intricacies of the Planning Act, but Section 104 has already featured in our discussions. Notwithstanding some similarities between national policy statements under that Act and the marine policy statement under this Bill, there are key differences in the purposes of these documents and the way they will apply to decisions, which is why it is not always appropriate simply to transplant what is in the Planning Act into the Bill.
National policy statements will be the primary consideration for decisions by a single body on a small number of nationally significant infrastructure projects. These projects have been identified as being so significant to the national interest that a special planning procedure was needed to ensure that those national needs were given proper weight.In contrast, the marine policy statement and plans are more akin to terrestrial development documents designed to deal with the vast majority of everyday cases that are not nationally significant because they do not meet the threshold contained in the Planning Act.
Lord Greaves: I was wondering whether to intervene to make that point. Is it not the case that local development plans, as they were, and local development framework documents, as they will now be, have to have a certificate that they are in conformity with the regional spatial strategy, formerly the structure plans?
Lord Hunt of Kings Heath: That is helpful information, and I am grateful to the noble Lord. I do not claim to be an expert on the intricacies of the Planning Act. The point I was making is that there is a difference between the marine policy statement and the national policy statement that applies as a result of the Planning Act. The marine policy statement and plans will also affect decisions by a much larger number of organisations and a much wider range of projects than will be considered by the Infrastructure Planning Commission. As I said earlier, we expect the vast majority of decisions to be taken fully in accordance with the MPS and plans.
I shall now deal with Amendment 89A, although much of what I have to say applies to Amendment 90A as well. I agree with the noble Lord and the noble Baroness that many of the relevant considerations that they have suggested in these amendments, such as specific local or site circumstances, new data, evidence of adverse impacts, other legal obligations and so on, would be exactly the kind of relevant considerations that I expect planners and decision-makers to take into account. However, these lists are, and will almost always be, incomplete, even if supplemented by guidance. I take the point made by the noble Baroness about the importance of guidance, and I will certainly see what further information I can provide to noble Lords about the nature of the guidance that will be issued.
However, it is not possible to foresee and determine in guidance all the potentially relevant circumstances that might result in a planner needing to depart from the strict requirement to conform to the marine policy statement. The considerations and factors relevant to any decision will always depend on the circumstances.
10 Feb 2009 : Column 1101
On subsection (5B) in Amendment 89A, we are happy to commit to providing guidance to the Marine Management Organisation and other decision-makers on matters that may be relevant considerations. That is already common in terrestrial planning where planning and consenting decisions are made by a different body to that which develops and adopts the strategic policy framework. We will also draw on existing case law developed on application of material considerations in terrestrial planning although, as noble Lords have intimated, the sea is a very different environment.
We doubt that a specific statutory duty to provide guidance is either necessary or appropriate, especially in relation to conformity between the MPS and marine plans, as the authorities responsible for adopting both documents are the same. In essence, they would be producing guidance for themselves.
This is an important matter, and the debate will aid clarity. The safeguards that I have provided are, first, that use of the “relevant considerations” clause will not be taken lightly. Indeed, if there was evidence that it was being used frequently, that would in itself call into question either the marine policy statement or the relevant marine plan and, I am sure, lead to calls for its review. Secondly, in the next clause, the Bill makes clear that any departure must be brought to our attention, and therefore will be in the public domain. The problem with trying to define relevant considerations more tightly than in the Bill is that it simply leads to greater inflexibility, which we want to avoid.
Baroness Hamwee: I am grateful to the noble Lord, Lord Taylor of Holbeach. I should have attributed the two longer amendments to the Link Coalition. Like the Minister, I was a little concerned about starting a definition without being confident that one had gone far enough. The two short amendments to remove the phrase were mine before I knew what the Link Coalition was thinking, but it had had discussions with officials about the phrase “material considerations” as an alternative.
The noble Lord, Lord Taylor, said that the amendments set out what sort of relevant considerations would allow the MPS to be departed from. The clause does not distinguish between different relevant considerations. That is the problem: it includes all relevant considerations, not just a limited number.
My noble friend referred to the need for local development documents to conform.
Lord Hunt of Kings Heath: As information has reached me on that matter, perhaps I may inform the Committee that Section 36 of the Town and Country Planning Act, entitled “Local plans”, states:
“In formulating their proposals in a local plan the local planning authority shall have regard to any information and any other considerations which appear to them to be relevant or which may be prescribed or which the Secretary of State may in any particular case direct them to take into account”.
10 Feb 2009 : Column 1102
The important words are “shall have regard”.
Section 46, on the certificate of conformity, states:
“The proposals in a local plan shall be in general conformity with the structure plan”.
If the noble Baroness presses me to define what is meant by that, I will struggle.
Lord Greaves: I am grateful for that. We will all scrutinise the wording of this legislation very carefully.
Baroness Hamwee: I was not going to press the Minister on that point, but I was going to draw his attention to the well accepted distinction in terrestrial planning between general conformity and strict conformity. I was just about to talk about general conformity, because we were not referring to the national policy statements at all. I hope that the Government might be prepared to think about that a little, but if that is completely out of the question—if it is, I would be interested to know why—they need to find a way of putting into the Bill some reference to the relative weight of relevant considerations. I used the term “significance”, which may not be quite the right thing.
The Minister referred us to Clause 39. One of my concerns is that third parties might challenge whether considerations were truly relevant or of sufficient weight that they should have allowed the plan not to be “in conformity” with the marine policy statement, and could use Clause 59(4)(a), arguing that the document was not within the appropriate powers. Even if I am not right about that, I am sure that someone who was aggrieved would find a way to challenge it.
Lord Hunt of Kings Heath: I suppose one could argue the case the other way round and say that these matters will always be subject to judicial review and that, although on the one hand the noble Baroness can argue that a person might well go to court, on the other hand it is also a safeguard. It appears to me, as I have said already, that this provision will be used very sparingly and that the appropriate plan authority will be very aware of the potential for judicial review, for instance, which is why one can have some confidence in the way in which it has been drafted.
I suspect that the problem with relative weight is the same as the problem of having a list; it may be very difficult to define. However, I understand the importance of this, and at the very minimum I will write to the noble Baroness on the kind of guidance that we will produce on this matter, as it might inform her decision whether to take this further.
Baroness Hamwee: I am grateful for that. I merely add that judicial review is about procedure and is therefore very tedious. I am thinking about substance and the position the other way round.
Lord Hunt of Kings Heath: I am sorry to keep intervening, but this is a very important point. I realise that a person or organisation would have to think very carefully about taking judicial review proceedings, but my experience of government and working with agencies is that the possibility of judicial review proceedings
10 Feb 2009 : Column 1103
Baroness Hamwee: I appreciate that. My final point, which I might as well make, is that the situation could be the other way round in that a third party might argue that there are relevant considerations to be applied, not that there are not. I look forward to continuing this discussion, but for the moment, I beg leave to withdraw the amendment.
| Next Section | Back to Table of Contents | Lords Hansard Home Page |