Lord Ahmad of Wimbledon
“(3) If the original consent, or a section 33 consent that replaces it, is varied or replaced, section 31 does not apply to the development to which the consent as varied, or the replacement consent, relates (and so development consent is not required for that development).”
Lord Ahmad of Wimbledon
My Lords, I am afraid that this is a somewhat technical amendment, but I will do my best to explain what is intended in concise and accessible language. Clause 20 is about enabling projects that were authorised under the various major infrastructure consent regimes that preceded the Planning Act 2008 to go ahead without also requiring authorisation under the Planning Act in the form of a development consent order. It deals with cases where a developer’s plans for a project have changed and they need to have the original consent varied or replaced to take account of that change. We want to make it absolutely clear that in such a case, the variation or replacement of the original consent—for example, planning permission under the Town and Country Planning Act 1990—is all that is needed. The developer will not need to start again from scratch and apply for a development consent order under the Planning Act 2008 if they already have a validly varied or replaced consent under the relevant pre-Planning Act regime.
The reason for making the amendment is that new Section 237A, which Clause 20 would insert into the Planning Act, would still potentially leave projects authorised under pre-Planning Act legislation having to apply in some cases for a development consent order under the Planning Act. For example, the new section would not remove the need for a development consent order in a situation where a project had been built and it was necessary to make changes to the conditions of its original planning permission relating to operational matters. This seems wrong. As an additional benefit, the amendment also simplifies the drafting of new Section 237A of the Planning Act. I beg to move.
Lord Adonis
My Lords, the Minister’s explanation of the amendment was entirely persuasive, and we are content.
Lord Berkeley
“(4A) In section 150(1) (removal of consent requirements), for the words “consented to the inclusion of the provision” substitute “been consulted by the applicant about the inclusion of the provision”.”
Lord Berkeley
My Lords, I shall speak also to Amendments 75ZA and 75ZAA in this group. I shall not speak to Amendment 75, which probably should not be there because it has been superseded. As an introduction to these amendments, I will say that Amendments 72 and 75ZAA have the support of the British Property Federation, the Confederation of British Industry, the National Infrastructure Planning Association and the Royal Town Planning Institute—so noble Lords will see where I am coming from. I am grateful to the Minister for the meeting we had a week or two ago to discuss all these amendments. It was extremely helpful. I hope that we have made progress and will continue to do so.
All the amendments that I am speaking to are attempts to learn from the experience of the Planning Act 2008 and to take account of how the process has changed with the introduction of the changes made by this Government. I hope that many of the suggestions will be useful in trying to streamline and simplify the regime in order to reduce the delay, cost, uncertainty and risk in delivering some of these big projects. After all these years, and having tried hard to simplify things—both Governments of the past 10 years have tried to do that—there is still a long way to go. Steven Norris, the chairman of the National Infrastructure Planning Association, recently wrote in the Times:
“A modern economy needs a planning system that doesn’t smother democracy, but makes reasoned decisions in a reasonable timescale”.
Lord Jenkin of Roding
My Lords, I will start by putting all this in context for the House. We are addressing the need for national infrastructure. This is now widely accepted. It is not sufficient to talk about it and to produce lists of things that could be done. One has got to get ahead with it. Much of the Bill—and I welcome this—is clearly directed to that end; to try to remove some of the barriers, speed up the timetables, reduce the bureaucracy that has been involved, and in every way help those who are contemplating substantial infrastructure investment to achieve their objectives, of course while protecting important environmental and other interests. The CBI wrote in response to these questions that:
“Infrastructure investment is critical for boosting the economic performance of the UK and it is important that the right conditions are set to encourage the private sector to bring forward projects to boost growth. Infrastructure UK has identified a pipeline of more than 550 projects requiring more than £330 billion of investment by 2015 and beyond, with over 85% of this coming from private sector sources. At the same time significant investment is needed in other forms of commercial and residential property to boost business productivity and ensure an adequate supply of housing”.
I quote those figures to demonstrate just how enormous is the task that faces this country in trying to catch up with what under successive Governments has been a neglect of infrastructure investment in keeping our essential infrastructure up to date.
Lord Snape
I support the amendments so ably spoken to by my noble friend Lord Berkeley and supported by the noble Lord, Lord Jenkin. When the previous Government introduced what they said was a national planning agreement in 2008, many of us said, “About time, too”. The problem with major projects in this country is the length of time that they take. Any way of shortening that time taken, without withdrawing people’s democratic right to make proper objections, is to be welcomed. When the 2008 Act was passed, one of my perhaps more cynical colleagues said, “It’ll never happen”. Once you try to shorten the procedures, you immediately deprive the legal profession, to name but one group, of the opportunity—how does one put this as kindly as possible?—to spin out the process for as long as possible. It was said to me at the time that that profession would ensure that.
We have only to look at the inordinate time that all major projects in this country take. In my time as a transport spokesperson in the other place, I spent some time attending the Terminal 5 inquiry. The amount of time wasted, where lawyer after lawyer and group after group restated virtually the same matters day after day, month after month and, in the case of that project, year after year, was, to say the least, expensive and inordinate. Anything that can be done within the democratic process to shorten that period is to be welcomed.
The noble Lord, Lord Jenkin, mentioned housing problems. I am sure that both sides of your Lordships’ House agree that it is very difficult to build anywhere in this country. All parties accept that there is a housing shortage, but circumventing that shortage is difficult under existing planning law.
On Amendment 75ZA, my noble friend Lord Berkeley spoke of the necessity of ensuring that construction materials for major projects are able to be transported using water and rail. Those of us who served four or five years ago on the Crossrail Bill were anxious to see proposals of this kind enacted for that project. We were anxious to see as much of the material for that enormous project taken in and out by rail and water. My noble friend mentioned various other projects; he did not mention Crossrail during his speech on the amendment. I am sure that he would agree with me that that is an area where the scope for restricting the number of heavy goods vehicles, particularly coming in and out of London, would be covered if the amendment was adopted.
I do not wish to sound any sort of controversial note in concluding my comments in support of the amendments, but I am always struck by how quickly former Secretaries of State are converted to the idea that perhaps a little urgency should be injected into these matters once they have left office. That is not a criticism of the noble Lord, Lord Jenkin, who served as Secretary of State for the Environment, if my memory serves me right, for some years, but I suspect that it was that experience that leads him so enthusiastically to support the amendments standing in his name and that of my noble friend Lord Berkeley. I shall join him in that enthusiasm and refrain from any comment about wishing that he had behaved in the way envisaged in the amendments when he had had the opportunity to do so during his own distinguished career.
I hope that the Minister will look kindly on these amendments and agree with me and the other two speakers who were in favour of them that they have a great deal to commend them.
Lord Adonis
My Lords, I begin by echoing the tribute made by the noble Lord, Lord Jenkin, to Sir Michael Pitt, who is doing an excellent job of public service as chief executive of the Planning Inspectorate—and did so in his previous work at the Infrastructure Planning Commission. However, in the present economic downturn where businesses are under so much pressure, the Planning Inspectorate, like other parts of the public service, should seek to keep its costs and charges down to an absolute minimum. That is the first important issue raised in the amendments in the name of my noble friend Lord Berkeley and the noble Lord, Lord Jenkin.
The key issue in the first amendment in this group is to do with the basis on which PINS calculates fees for the processing of development consent order applications. The fees are set out in the Infrastructure Planning (Fees) Regulations 2010, which provides that PINS may charge for each day on which the examining authority examines the application in the period beginning with the start date and ending with the completion date of the examination. This provision has given rise to uncertainty as to whether PINS is entitled to charge a fee only for the actual days worked on the development consent order by the examining authority or for each day of the examination period, irrespective of the days on which the examining authority may have worked on the application.
PINS has adopted the second of these interpretations, which is hardly surprising because that gives it a larger income and of course it is under great pressure from the Government to maximise its private income so that it is less dependent on the department. However, it seems that any reasonable interpretation of the fees that should be paid by promoters would lead one to conclude that they should pay only for the actual days worked on the development consent order by the examining authority. This is not a minor matter. I talked about the issue with the National Infrastructure Planning Association, which told me that for larger projects fees run into hundreds of thousands of pounds and that even for smaller projects, were the interpretation that fees would be payable only for actual days worked by the examining authority rather than the entire examining authority period, savings to developers of £20,000 or £30,000 might not be uncommon.
My understanding is that the Government are sympathetic to the case that has been made in respect of fees. When the Bill was before the Commons, the Planning Minister said:
“Although I would not want to fetter the Planning Inspectorate’s already constrained ability to charge fees for the valuable work that it does, I nevertheless take on board the concern about how such fees are charged. I have already had conversations with the Planning Inspectorate about how exactly it measures time and whether that time measurement relates to work done rather than just the clock ticking, and I will be sure to keep on the case.”—[Official Report, Commons, Growth and Infrastructure Bill Committee, 4/12/12; col. 437.]
How far has the planning Minister been on the case since the matter was raised in the Commons? Can the Minister here today give any further comfort to developers that the fees charged to them by the Planning Inspectorate will be done on what appears to be a defensible basis, namely the days actually spent by planning inspectors in working on the DCO applications rather than, as I say, the entire period that they are before the examining authority?
The second issue raised by my noble friend is about consents that cannot be disapplied by a development consent order without the consent of the relevant body. My noble friend cited Sir Michael Pitt who said recently that 40% of the required consents were outside the development consent order regime, even though—as the noble Lord, Lord Jenkin, said—the Planning Act regime was intended to be a unified authorisation process and therefore a one-stop shop for the construction of major infrastructure. The issue here is whether to do as my noble friend and the noble Lord, Lord Jenkin, wish—that is, remove the requirement to obtain the consent of bodies such as the Environment Agency and Natural England in respect of their permissions and replace that simply with a right for them to be consulted—would lose essential safeguards for essential interests. I look forward to hearing what the Minister has to say about that issue because it seems to be the fundamental point at stake. My understanding is that a new consent service is being set up by the Planning Inspectorate which should help in this respect and that recently reissued guidance to promoters about development consent orders sets out a stronger onus on consenting bodies to consider including consents in the development consent order regime. I look forward to hearing from the Minister whether he thinks that is likely to be effective in meeting the concerns raised by my noble friend and the noble Lord, Lord Jenkin.
The third key issue raised by these amendments relates to the pre-application programme management system and the oversight by PINS. The proposition is that the PINS examining inspectors should perform a programme management or case oversight role, probably holding public hearings with the key parties to check on progress made and the next steps.
I know that PINS already does good work at the pre-application stage to help promoters. However, I simply report to the House that the CBI, the Royal Town Planning Institute and the National Infrastructure Planning Association all report that the support given by PINS is not sufficient at the pre-application stage. They cite a whole string of cases, with which I will not take the time of the House now, which appear to substantiate that point. Providing a greater degree of oversight by PINS could help to ensure greater success for the DCO regime.
I look forward to hearing the Minister’s response to the concerns raised by the CBI and others in this respect because, if this is a blockage, it is completely within the control of the Government, since, of course, the Planning Inspectorate is a government agency.
Lord Ahmad of Wimbledon
My Lords, I thank the noble Lord, Lord Berkeley, and my noble friend Lord Jenkin of Roding for tabling these amendments. In his introduction, the noble Lord, Lord Berkeley, apologised for the amount of detail as regards these amendments. I join him in that apology: I apologise in advance for the length of my response. However, unlike the noble Lord, Lord Berkeley, who had the benefit of riding tandem, while I have benefited greatly from riding tandem on this Bill with the noble Baroness, on this occasion I seek the Committee’s indulgence because my response to these amendments is very much a solo cycle. I also join my noble friend Lord Jenkin and the noble Lord, Lord Adonis, in paying tribute to the work of Sir Michael Pitt in this respect.
As has been said, the amendments address a number of important issues in relation to reform of the major infrastructure planning regime. The importance of this was well expressed by my noble friend Lord Jenkin of Roding. For the purposes of the Committee, I will address each amendment in turn. I recognise the intentions behind Amendment 72, which addresses the “one stop” element for major infrastructures. This amendment would mean that the Planning Inspectorate was likely to be required to deal with a much wider range of issues than it current deals with—issues which require detailed technical or specialist knowledge or relate to sensitive issues such as nuclear safety.
At present this expertise is held by a small number of departments and government agencies. It perhaps would be wasteful to replicate this wide range of expertise within the Planning Inspectorate, particularly on issues as sensitive and highly technical as, for example, nuclear safety. In addition, many of these consents require ongoing compliance activities and periodic review based on the results of the compliance work, and it would be undesirable to separate the permitting and compliance activities into different organisations.
That said, the Government certainly are sensitive to concerns about the challenge for developers, as was raised by the noble Lord, Lord Berkeley, of effectively co-ordinating various application processes for a range of consents across a range of departments and government agencies, and are taking forward a range of actions to address this concern. Clause 21 and parts of Clause 22 remove the need for the five separate certificates or consents currently required and allow them to be dealt with under the single development consent order, a change which has been widely and strongly welcomed.
I am pleased to report that we have also recently consulted on proposals to establish new arrangements to improve co-ordination and communication between the Planning Inspectorate, applicants and consenting bodies. The proposals are intended to make the consents process more efficient, while retaining the technical and legal expertise in consenting bodies such as the Environment Agency and Natural England.
We think that this approach provides developers with the additional support and service that they are looking for without, most importantly, watering down the protections which currently exist. While we recognise the appetite from some developers for the Government to let all consents be dealt with by the Planning Inspectorate alone, other bodies have highlighted the important role that bodies such as the Environment Agency and Natural England play in ensuring that adequate environmental protections are delivered.
My noble friend Lord Jenkin also highlighted the recently updated guidance on pre-application. I welcome his positive comments in this regard, which, of course, make it clear that non-planning consents can be included within the development consent and that the bodies normally responsible for granting these consents should make every effort to facilitate this. They should only object to the inclusion of such a non-planning consent with good reason and after careful consideration of reasonable alternatives.
I turn to Amendment 75ZAA, which addresses four distinct and important issues in relation to the operation of the nationally significant infrastructure regime. I will seek to address each of the four issues raised in turn and hope that my comments will provide noble Lords with some reassurance.
I turn first to the issue of fees—this was raised by several noble Lords, including the noble Lord, Lord Adonis—addressed by proposed new subsection (1) of Amendment 75ZAA. This amendment would restrict the ability of the Secretary of State to set appropriate fees for applications for nationally significant infrastructure projects. The Planning Inspectorate’s fees are currently set out in regulations, which include provision for day-rate charges that depend on the make-up of the examining authority. There is a smaller charge for cases where a single inspector is the examining authority and larger charges for panels of inspectors. These fees are intended to cover the work of the Planning Inspectorate, which supports the examination, including staff working in case management, case administration, environmental services, legal services and other relevant costs of the inspectorate, including those incurred during the recommendation stage, for which no separate fee is charged. This amendment would narrow the ability of the Secretary of State to set appropriate fees to reflect the costs of the application. This would, in effect, mean that the taxpayer would have to further subsidise the service that the Planning Inspectorate provides for nationally significant infrastructure projects. I strongly support the “user pays” principle in relation to major infrastructure fees and see it as entirely appropriate that developers of nationally significant infrastructure pay a reasonable fee for their planning applications. I would not want to curtail the ability to charge reasonable fees.
However, the noble Lord, Lord Adonis, pointed to the comments of my honourable friend the Planning Minister in the other place—specifically on the issue of fees. The Government recognise that some developers are questioning the current wording of the infrastructure fees regulations. The noble Lord asked whether the Planning Minister was on the case; knowing the Planning Minister as I do, I know that he is definitely on the case, has opened the case, and has investigated it fully. I can therefore update the noble Lord with the news that the Government intend to bring forward a statutory instrument later in the spring to make this position absolutely clear and remove any possible doubt.
Lord Adonis
It is not entirely clear to me what “this position” meant in what the noble Lord just said. What does it mean? Is it that the charges will now only be in respect of actual days devoted to the examination of the cases?
Lord Ahmad of Wimbledon
As I mentioned earlier, we have already said that there are specific fees which are charged for specific projects, so if a single inspectorate is being asked to look at that, that will be clear in the fee structure. Similarly, if there is a bigger application where a range of inspectors are involved, that will also be transparent. I also highlighted the issue of the day rate, which I mentioned earlier in my speech. In effect, all we are doing is highlighting the issue of transparency, which was mentioned earlier. The statutory instrument will address that point: it will outline the Government’s policy clearly. Again, I refer the noble Lord to what I said earlier about day rates also being charged as part of this policy.
Lord Berkeley
I am grateful to the Minister for giving way, but I seek further clarification on that. Will this statutory instrument clarify whether an inspector can charge two separate applicants for a day rate on the same day? Obviously, it is right that the applicants should pay the cost, but it would be wrong if two were paying the same costs on the same day for the same inspector. Let us hope that the statutory instrument would cover that as well, because I think that would be equitable.
Lord Ahmad of Wimbledon
I am sure that the noble Lord understands that I myself have yet to see the statutory instrument. I am sure that it will provide the clarity that he has requested. As it is published, it will be apparent to noble Lords, and I will take up the specific point that he has raised with my honourable friend.
The second part of Amendment 75ZAA addresses national policy statements. While I am afraid I will not be able to accept this amendment, I share noble Lords’ view that they are an important element of the nationally significant infrastructure regime. They provide the policy and decision-making frameworks for nationally significant infrastructure, giving certainty to developers by making clear the Government’s policy on different forms of infrastructure, helping to speed up the examination phase and guiding the decision-maker on the approach that should be taken on the main issues. Therefore, they remain central to the Government’s planning reforms, because they provide clarity of policy and predictability, as noble Lords have mentioned, for those wishing to invest in new infrastructure.
I assure noble Lords that there is no question of the Government moving away from their commitment to national policy statements as the bedrock of the nationally significant infrastructure regime. Thus far, the Government have designated the national policy statements on energy, ports, and waste water. We hope to designate the hazardous waste national policy statement in spring 2013.
As the noble Lord, Lord Berkeley, pointed out, the Department for Transport has currently put on hold the roads and rail national policy statement to concentrate on other priorities, specifically the roads strategy, which will be published later in spring, and to support the work of the independent airports commission, chaired by Sir Howard Davies. The Department for Communities and Local Government continues to work closely with colleagues in the Department for Transport to work towards roads and rail and aviation national policy statements in future.
I have been asked for a definition of “imminent”. I regret to say that my definition may not tie in with the noble Lord’s, and I hope that it is not envisaged in the way that he expressed. Nevertheless, I hope that I have underlined that the issue of national policy statements has been raised centrally. I am sure that our colleagues across government will follow the debate with keen interest.
The Government are also currently considering consultation responses on the question of whether to put in place a national policy statement or statements for proposed new business and commercial categories of development, and this is a subject we will come to later in the debate.
Therefore, I am afraid that I cannot accept this amendment, which would impose an obligation to publish all national policy statements by 31 March 2015 and to lay before Parliament, on or before 31 March 2014, a report explaining to Parliament what has been done and what will in future be done to comply with that requirement. The reasons are quite simple. I am sure that it is appreciated that much of this work taken forward cuts across the work of several departments, such as the Department for Transport on the transport strategy and the Davies commission on aviation, which is due to report in summer 2015. The aviation commission’s terms of reference make it clear that:
“As part of its final report in summer 2015, it should also provide materials, based on this detailed analysis, which will support the Government in preparing a national policy statement to accelerate the resolution of any future planning applications for major airports infrastructure”.
I understand the concerns raised about the potential impact of there not being a national policy statement in the meantime, but it is clear that the nationally significant infrastructure regime can operate effectively and quickly without the need for a national policy statement, as we have seen, for example, with the decision on the Ipswich rail chord.
I turn to the issues raised around pre-application oversight by the Planning Inspectorate—
Lord Berkeley
I am grateful to the Minister. I thought that he might welcome a short rest during his very long speech, which is very interesting; he apologised for it, but it is no longer than our introductory speeches. Before we leave this subject of national policy statements, I also have an interest in the fracking debate. The noble Lord, Lord Jenkin, asked whether there would be a national policy statement on fracking. Dare we ask when this might come, if it does?
Lord Ahmad of Wimbledon
I also asked that question. First, I thank the noble Lord for allowing me a gulp of water to clear the throat somewhat. There are no current plans for an NPS on fracking. That is because it is very much at its early stages of development, it is not clear how or when it will happen, and some of the issues around commercial viability are unclear. However, again, the points that the noble Lord has made and those made by the noble Lord, Lord Jenkin, have been noted.
Lord Jenkin of Roding
I recognise the problems that Ministers face on this, but they must realise that while DECC has restarted the exploration programme, attention is now totally focused on what may follow if the industry decides that commercial exploitation will become necessary. I beg Ministers to recognise that it is not too soon to start to think quite seriously as to what would go into that national planning statement. They will want to consult widely in advance, but it is not too soon to start now.
Lord Ahmad of Wimbledon
As ever, of course, I note with interest the comments made by my noble friend. These activities continue to be treated as kinds of oil and gas exploration, but he makes his point, as ever, based on his own experience of this field. I am sure that the points have been noted, and that we shall, as we look at other issues in this regard, return to this subject in the future.
I will now turn, with the permission of the Committee, to pre-application oversight by the Planning Inspectorate. Amendment 75ZA provides for the Planning Inspectorate to take on a more active oversight role during the pre-application phase of the nationally significant infrastructure planning regime. The Planning Inspectorate already offers a pre-application service to developers and other interested bodies during the pre-application phase of a nationally significant infrastructure project application. This can include regular meetings with developers and other interested bodies to discuss the project; advice on specific questions and clarifications about policy and process; and support in understanding the pre-application consultation requirements.
As I have already said, the Government have consulted on our approach to expanding and improving the idea of the one-stop shop for major infrastructure, including proposals to streamline the current list of statutory consultees set out in regulations, to reduce consultation burdens and to make the pre-application phase of the infrastructure planning route more effective and efficient, which, as several noble Lords have highlighted, is the desire of many developers. This includes a proposal to establish new arrangements to improve co-ordination and communication between the Planning Inspectorate, applicants and other consenting bodies to make the overall consents process more efficient. The Government are now considering a range of views expressed as part of that consultation exercise.
In addition, my department has conducted a light-touch review of guidance for the major infrastructure planning regime earlier this year. Revised guidance published in January this year has been well received by developers, and we are confident that it will make it clear that consultation should be proportionate to the type and scale of the project being proposed. It should give developers the confidence and certainty they need during the pre-application phase.
I will now turn to waivers within the pre-application procedure. Subsection (4) raises similar issues and proposes to allow developers the option of obtaining a “waiver” of certain procedures in the major infrastructure regime, subject to the discretion of the Secretary of State. I appreciate that the noble Lord has brought forward a more tightly drawn amendment in Amendment 75ZAA than the original proposition in Amendment 75. However, the amendment continues to capture a wide range of Planning Act 2008 requirements and would provide developers with an opportunity to seek waivers against many of the key elements of the major infrastructure planning process. This would potentially undermine the certainty and transparency of the regime. It is also not clear exactly what parts of the nationally significant infrastructure regime developers would want to see a waiver used for. As was indicated by my noble friend, while we remain in listening mode, thus far we have seen only limited evidence of a problem in this area.
As I have already highlighted, the Government are pressing ahead with a number of important changes to reduce bureaucracy and ensure that the major infrastructure regime is as efficient as possible, including work on the one-stop shop and the revised guidance on pre-application to make the major infrastructure process more user friendly. I therefore argue that this amendment is unnecessary.
The final amendment in this group relates to the use of rail and water transport for the movement of construction goods. I share the noble Lords’ commitment to ensuring that all sustainable modes of transport are maximized in major infrastructure developments and to encouraging better and more efficient transport of our goods and services, including construction materials, on transport services such as rail and shipping. Indeed, the noble Lord, Lord Snape, also referred to this issue.
The Government are clear that sustainable transport is a crucial part of our vision for sustainable, long-term economic growth. Nationally significant infrastructure projects will almost always be subject to the requirements of the environmental impact assessment directive, which requires developers to prepare an environmental statement. One of the things that is expected in an environmental statement is a transport assessment setting out how the transport impacts of a development will be managed and any environmental impacts mitigated. The noble Lords’ amendment would therefore potentially duplicate requirements already in place.
In addition, decisions on nationally significant infrastructure projects must be taken in accordance with national policy statements, where they exist. Other policy statements, such as the national planning policy framework or other government policy guidance, would be likely to be important and relevant considerations that the Secretary of State would also need to take into account in relation to a decision on a nationally significant infrastructure project, so the Government’s commitment to sustainable transport policies is already very clearly built into the framework for decision-making on nationally significant infrastructure projects.
The ports national policy statement, for example, sets out that applicants should carry out a transport assessment as part of their environmental statement and that,
“rail and coastal or inland shipping should be encouraged over road transport, where cost-effective”.
The national planning policy framework also makes clear:
“Encouragement should be given to solutions which support reductions in greenhouse gas emissions and reduce congestion”,
and is clear that plans and decisions should ensure that developments’,
“use of sustainable transport modes can be maximised”,
including for the efficient delivery of goods and supplies.
The Government’s policy guidance on strategic rail freight interchanges also sets out the benefits of transporting goods by rail, including reducing road congestion, reducing carbon emissions and supporting growth and creating employment. I argue, therefore, that this amendment is unnecessary and that the framework of national policy statements, the national planning policy framework and other government policy guidance make clear that the expectation is on developers to identify the most sustainable form of transport available.
A wide range of issues have been covered but I hope that with that rather detailed response I have at least given sufficient assurances for the noble Lord to deem it appropriate to withdraw his amendment.
Lord Adonis
My Lords, I am very grateful to the noble Lord for the marathon that he has run with such fortitude. I hope that I may return to the fees charged by PINS. Having reflected on what the noble Lord said, I think that he made a dramatic statement which did not contain a great policy shift. I understood the Minister to say that the order which will be prepared later this year will be transparent about the number of inspectors—I stress, the number of inspectors—who are engaged in examining a DCO application. I understand that there is not much difficulty in finding this out and that developers are well aware of the number of inspectors in respect of their application. The issue is not the number of inspectors, it is the number of days on which they are engaged on the application, which they are able to charge for. That is a distinctly different point. If the order simply requires transparency on the number of inspectors, there will be no effective change from the status quo. The essential issue is whether developers and applicants are being charged excessively for the work being undertaken by the inspectorate.
Lord Ahmad of Wimbledon
I thank the noble Lord again for his question. The content of the statutory instrument is currently being looked at, and I do not want to pre-empt the detail of it. I refer the noble Lord back to my earlier point: Planning Inspectorate fees are currently set out in regulations which include provision for day-rate charges which depend on the make up of the examining authority—that was the point I was making—but there is something within them specific to day rates. Current practice and policy are not expected to change. There have been concerns about clarity and transparency, and they will be addressed by the statutory instrument.
Lord Adonis
The longer the noble Lord speaks, the more opaque it becomes as to what the actual change will be, if, indeed there will be any change whatever in the statutory instrument he refers to. If it simply re-expresses the status quo, what is the purpose of producing it in the first place? Will there be a change of practice on the part of the Planning Inspectorate? The noble Lord’s briefing may not enable him to answer that question now, but perhaps he could write to noble Lords after Committee.
Lord Ahmad of Wimbledon
I can assure the noble Lord that there is a statutory instrument due in this respect. I take his point about greater clarity, but my understanding is that the current policy position is not expected to change. The current fees regulations include day-rate charges.
Lord Adonis
Will the noble Lord write to us, between Committee and Report, so that noble Lords properly understand what is being proposed and have the opportunity to work out whether we need to return to this matter on Report? Given the feeling in the Committee, we may well return to this matter unless there is some movement.
Lord Berkeley
My Lords, I thank all noble Lords who have spoken in this very long debate. Perhaps we should, in future, reflect whether amendments should be cut into bite-sized pieces to make it easier.
I am particularly grateful to my noble friend Lord Snape who reminded me about Crossrail which I had, of course, forgotten. The Minister was right that there was lots of regulation about environmentally friendly transport on that particular issue. However, I do not see why something the size of the Thames Tideway tunnel, which claims to be complying with all the latest regulations, can be using road transport for all the spoil when there is a river there. We can explore that in the future. With so many different issues having been discussed and responded to, I will need to read the Minister’s response, for which I am very grateful, very carefully. I beg leave to withdraw the amendment.
The Earl of Lytton
“( ) In section 58 (certifying compliance with section 56), subsections (3) to (7) are repealed.”
The Earl of Lytton
My Lords, I tabled this probing amendment following discussions with the Compulsory Purchase Association. It sits as a singleton and does not relate to the amendments I moved previously in connection with compulsory purchase. I hope I can be brief and that it will be recognised as an attempt to free up the processes and will have general support as it actually removes something from the statute book rather than adding something.
The background to the amendment relates to the certification process when the infrastructure planning commission has accepted an application for an order granting development. Noble Lords will doubtless know of the procedure. Section 56 of the Planning Act 2008 provides that notice is to be given to persons of a particular category and in the form prescribed. Section 58 then deals with compliance with that general provision and, in particular, states at subsection (3):
“A person commits an offence if the person issues a certificate which … purports to be a certificate under subsection (2), and … contains a statement which the person knows to be false or misleading in a material particular”.
It relates to “knowingly” doing something that is offensive. Subsection (4) states:
“A person commits an offence if the person recklessly issues a certificate which … purports to be certificate under subsection (2), and … contains a statement which is false or misleading in a material particular”.
I have bit of a philosophical battle regarding the difference between the use of “knowingly” and “recklessly” in other matters. I should mention that “recklessly” is always a materially reduced standard of proof; however, the practicalities of this in relation to nationally significant infrastructure projects are, of their very nature, complex and involve large numbers of interested persons. All such projects are listed in the 2008 Act, many of them under various headings. The very idea of attaching a criminal offence to something of that degree of complexity borders on the absurd.
My amendment seeks to remove subsections (3) to (7), which contain the provisions for this sanction. The Committee may feel that that is going a little too far and I am quite happy to hear from the Minister that that might be the case. However, while an infrastructure provider on a large and complex scheme, which perhaps covers a substantial geographical area and a lot of different interests, may be expected, not unreasonably, to use its best endeavours to notify to all interested parties, having a criminal sanction is going a step too far. The Compulsory Purchase Association certainly feels that the provision is an impediment and stands in the way of getting these things done in a timely manner, while everyone carries out their due diligence in order to try to make sure that there is nothing lurking there which, unbeknown to them, could give rise to this criminal sanction.
My argument pivots on the term “recklessly”, which indicates that the circumstances in which there might be some element of risk are known but that someone somewhere thinks that you have not done enough to take account of those risks. The standards of proof are not as robust in terms of a convicting authority as they would be otherwise. The amendment removes risk and possible abuse in the setting in place of various bear traps, tripwires and anything else that people might want. The amendment will shorten timescales and remove a sanction that ultimately is unnecessary. I beg to move.
Lord Ahmad of Wimbledon
My Lords, I thank the noble Earl, Lord Lytton, who has made a number of important points about the operation of the major infrastructure planning regime. Of course I share his concerns to ensure that unnecessary bureaucracy and, indeed, all such administrative burdens are removed wherever possible from the planning system.
Sections 56 and 57 of the Planning Act provide that an applicant for development must notify certain persons of an application for development consent, such as local authorities, environmental bodies or people with interests in land. This is a crucial part of the pre-examination phase of a nationally significant infrastructure project as it ensures that those bodies and individuals with an interest in the project are made aware of and are able to engage in the development consent order process. This is, of course, crucial for an effective, transparent and efficient examination process.
Section 58, to which this amendment pertains, provides that the applicant must certify that he has complied with these requirements. The noble Earl raised several concerns and, indeed, if an applicant issues a certificate containing false or misleading information, he may be guilty of an offence and liable for a fine. The Government consider that this position is appropriate given the nature of a nationally significant infrastructure project, being on such a scale and having considerable effects, both positive and negative, on not only the local area and local people but also on national and international infrastructure networks. It is vital that applicants comply with the notification and consultation requirements placed upon them so that interested people, organisations and authorities can exercise their right to be involved in the examination of the project. Since the onus is on the applicant to ensure that parties are informed that an application has been accepted, it is right that the Government have some sanctions at their disposal if it fails to comply.
However, the Government remain committed to listening to and addressing any future concerns raised about unnecessary bureaucracy or, indeed, barriers to growth. The Government are happy to discuss any further evidence of this particular provision which is cause for concern. Based on those assurances, I hope that the noble Earl will see fit to withdraw his amendment.
The Earl of Lytton
My Lords, I thank the Minister very much for his reply. It is a little bit of a disappointment. I simply make the point that, given the provisions for publicity that are also embedded in the 2008 Act, it is scarcely appropriate to have on top of that a criminal sanction. However, he very kindly offers the opportunity to discuss it. In fact, the Compulsory Purchase Association and I already have an appointment with to discuss matters with the department. Although it forms a separate matter from that particular body, I think it is entirely appropriate to leave it to that. While I may return to this at some later stage in the Bill, I beg leave to withdraw the amendment.