Localism Bill

Lord Boyd of Duncansby Excerpts

Monday 17th October 2011 Lords Chamber

These are two new points that stand a little apart from those of the noble Lord, Lord Berkeley, and the amendments are different from the amendments that I moved in Committee which I have not retabled. They have merit and I hope that my noble friend will consider them sympathetically.

[Lord Boyd of Duncansby]

My Lords, this is the first time that I have spoken on Report, so I repeat my declaration of interest: I am a solicitor in private practice and registered as a foreign lawyer in England and Wales, and some of my practice involves planning. I recollect that in Committee I stood to support amendments in terms very similar to those before the House this evening. I cannot now recollect in whose names the amendments stood, but I was pleased that the Minister, the noble Earl, Lord Attlee, offered to discuss that issue. It may be that I and others took our eyes off the ball, as it were, in following up the matter. I do not want to take the time of the House unnecessarily because both my noble friend Lord Berkeley and the noble Lord, Lord Jenkin, have gone through remarkably succinctly the detail of the amendments in the group.

The central issue is that the development consent order is expected to be an omnibus order that will encompass a range of other consents and will reduce the number of applications that a developer has to make, thereby making the development procedure that much easier.

The amendments address two issues seriously. The first is the range of further consents required beyond the development consent order. My noble friend Lord Berkeley listed the consents that are still needed—another 42 are still required, including 36 in Wales. Of course, there are occasions when you require specialist input that only specialist agencies can give—these are necessary safeguards—but, on the other hand, the policy behind this ought to be to reduce to the minimum the number of other consents that are required. That would be consistent with this Government’s approach to reducing regulation and removing red tape. There are a large number of these further consents that can be effectively removed without reducing the necessary safeguards. At Committee stage, I gave an example of the London Gateway Port Harbour Empowerment Order 2008, which is an order under the Harbours Act which included provisions for the benefit of the Environment Agency, and would be a model for that.

The second strand is the further consents and procedures necessary on top of what the IPC grants in a development consent order—in other words, the further consents from the Secretary of State where, for example, land of statutory undertakers is being compulsorily acquired or the special parliamentary procedure applies. This procedure is not one that is used very often, yet we find, as my noble friend Lord Berkeley said, that the first application to be granted by the IPC requires that further consent.

Some might say that we need to have a proper check and balance. I accept that when the Infrastructure Planning Commission, which the Government told us was an unelected quango, was making its decisions independently of any outside scrutiny, it might then have been appropriate to keep a number of other procedures and safeguards in process—safeguards which were accountable. Now that we have the Secretary of State giving the final decision, you can incorporate within that the necessary safeguards that some noble Lords may wish to see.

There are also, within this group, issues in relation to the discharge of requirements. I do not intend to take up the House’s time on that, but there are important issues in relation to ensuring that the regime that we create works effectively and that the transition from the Infrastructure Planning Commission, which makes the decision at present, to one where the Secretary of State is deciding on the recommendations of the major infrastructure unit of the Planning Inspectorate, is effective too.

I hope that the Minister will look at these issues seriously. They are important and they are designed to reduce the amount of bureaucracy and red tape that there is and make this a streamlined process.

I make one final point. A European Commission study into the consenting regimes for major infrastructure projects throughout the European Union commended the one-stop shop, which at the moment is encompassed within the Infrastructure Planning Commission, but which, when this Bill goes through, will still be there but with the Secretary of State. My understanding is that the European Commission is likely to make regulations to ensure the acceleration of the deployment of priority energy infrastructure projects by concentrating resources, simplifying and enhancing permission procedures and making use of innovative financial instruments. In order to enhance national permitting and granting processes, each member state will be required to create a competent authority—a one-stop shop—responsible for those tasks. Therefore, it looks as though we will get a seal of approval, if that is required, from the European Commission. We can make things better.

I hope that the Minister will take away these matters and look at them seriously.

[Lord McKenzie of Luton]

My Lords, it is unfortunate that a raft of technical amendments have come forward very late in the day, and seemingly in an environment where the promised engagement in Committee was not fully realised. That is not the best way for us to deal with these hugely important matters. It means that we are stacking up yet another issue to deal with at Third Reading. Whether we get through Third Reading in one day remains to be seen.

I hope that we all agree that, in relation to infrastructure, we want an efficient and effective system of dealing with planning. We have heard arguments about a one-stop shop and the extent to which we are some way from that. We have heard about the issues around the extent to which there should be a parliamentary process now that the Secretary of State is the ultimate decision-maker. I say to my noble and learned friend Lord Boyd and to my noble friend Lord Berkeley that I would need a bit of convincing to step aside from a parliamentary procedure just because the Secretary of State is making the final decision. We have debated the Bill in some detail and the issue of the powers of the Secretary of State has been a running sore in our deliberations, but I remain to be convinced on that.

Certainly I agree with and support the importance of having a one-stop shop on the raft of consents that apparently are still needed. However, the clock is ticking on Third Reading. This is an opportunity to sort out some issues, but we do not have much time in which to do it. It may be, as my noble and learned friend Lord Boyd said, that the EU could overtake us on this matter. We have a couple of weeks before Third Reading and there are very serious issues that have been raised tonight by all three noble Lords. The noble Lord, Lord Jenkin, also raised new points that we had not touched on before about who can make these qualifying requests, as well as issues around pre-application consultation. I hope that the Minister will be able to give us a full response on these issues. Generally, I find that we are in an unsatisfactory position on a hugely important issue for this country.

--- Later in debate ---

[Earl Attlee]

My Lords, I beg to move Amendment 232AB and will speak to Amendments 232AC to 232AR. I have a short speech and a very short speech. The sense of the House is rather for the latter. Amendments 232AB to 232AR amend Clause 218, which reforms the planning assumptions for compulsory purchase compensation. Amendments in this group extend the application of Clause 218 to Wales as well as England following a legislative consent Motion before the National Assembly. The other amendments, particularly Amendments 232AE and 232AR, make technical drafting changes so that the provisions work as intended. I beg to move.

[Lord Boyd of Duncansby]

My Lords, briefly, Clause 218 was put in without any debate in Committee. I simply thank the Government for having looked at the issue, bringing forward Clause 218 and then engaging with the Compulsory Purchase Association to discuss the amendments that are now being moved by the Government. I very much welcome this. Part 8 is an important part of the new Bill. I thank noble Lords for their time.

[Lord McKenzie of Luton]

I am grateful that noble Lords have heard the reassurance and thanks of my noble and learned friend Lord Boyd directly. We have relied on him for advice on the appropriateness of this and are happy to support the amendments.

Electricity Market Reform

Lord Boyd of Duncansby Excerpts

Tuesday 12th July 2011 Lords Chamber

[Earl Attlee]

My Lords, it is the turn of the Labour Benches.

[Lord Boyd of Duncansby]

My Lords, I want to ask one question, relating to the position of the devolved Administrations, particularly Scotland. The renewable obligations are executively devolved to Scotland and that has enabled the Scottish Executive—now the Scottish Government—to shape that as they wish. What role does the noble Lord anticipate that the Scottish Government will be able to play in the new feed-in tariffs with contracts for difference? What will be the relationship between the Scottish Government and the new institutions that he talked about?

[Lord Marland]

Naturally, we work very closely with the devolved Governments. We are all travelling down the same path. However, HM Treasury, rather than the Scottish Government, will be responsible for the renewable heat incentive funding. That is in the spirit of the union, I think.

Localism Bill

Lord Boyd of Duncansby Excerpts

Tuesday 12th July 2011 Lords Chamber

[Lord Berkeley]

My Lords, I support these amendments. In some ways they are no-brainers: it is so obvious that they need to be there to close the gap that my noble friend mentioned.

Proposed new subsection (1A)(b) in subsection (2) of the amendment covers flooding risk, which gets greater all the time. However, many local authorities, sadly, do not take that into account when they allow new developments. Going back 20 years, there was an amazing story in Cornwall where someone wanted to develop a site near the beach in St Austell Bay. The developer produced the plans and everything went fine but the local people said, “The sea will overtop it”—many tens of millions of pounds had been spent on this development by then—but the developer said no and the council said nothing. A week later the sea did overtop it and flooded a large area. It was a high tide, which happens every now and then. Five years on, planning permission was finally obtained for this enormous development but with a very much higher sea wall. The amount of money and time wasted by people not taking into account the risks of climate change are tremendous.

I remind the Committee that proposed new subsection (1A) means including policies to encourage walking, cycling, public transport and much less use of the car; and the location of schools, hospitals and other such places where there is so often a consolidation which means that people have to travel much further to use them through no fault of their own. These issues never seem to come into the assessment. I hope that when the Minister responds he will support the amendment or come back with one in his own words if he thinks it is defective in its drafting, which I have heard him suggest before.

[Lord Boyd of Duncansby]

This is the first time that I have spoken in this stage of the Bill so I declare an interest as a solicitor in private practice, mostly in Scotland but also to some extent in England. I want to make two quick points. First, the Climate Change Act establishes legally binding objectives and targets for the reduction of carbon emissions by 2050. The development plan is the way in which the built environment is shaped for the future. It is really important that we ensure a seamless see-through in meeting these targets. The development plan is an important element of that.

Secondly, the national policy statements on nationally significant infrastructure projects all have within them considerable sections targeted at climate change. The Government are to be congratulated on taking forward those national policy statements in that way. There is an argument that, if the national policy statements make such a priority of ensuring that developments meet the carbon target, surely the development plan fulfils a similar function.

[Lord Taylor of Holbeach]

I share the concern of those wishing to be ambitious in meeting the challenges of climate change. I also agree that planning has a big part to play. We have underlined this in the carbon plan, our response to the Environmental Audit Committee’s report on adaptation and—as the noble Baroness, Lady Smith, will know—the renewable energy road map published today. The national planning policy framework, which we will publish very shortly for consultation, will make tackling climate change a priority for planning.

We already have a climate change duty on plan-making which was introduced by the previous Government. That duty seemed to them to be sensible and I agree—let me explain why. The current, existing duty expects a local council’s development plan documents, taken as a whole as their local plan, to include policies designed to contribute to mitigating and adapting to climate change. Neighbourhood development plans will need to be in general conformity with the strategic policies in local plans, including policies on climate change. The national planning policy framework will be clear on planning’s important role in rising to the climate change challenge. On the point of the noble Lord, Lord Berkeley, the NPPF will be clear on the need to cut carbon emissions and properly adapt to the impacts of climate change, including flooding.

Local planning authorities must have regard to national policy in preparing their development plan documents, as well as in determining planning applications. Neighbourhood development plans will need to be appropriate, having regard to this national policy. The current duty is a sensible approach—I hope that the noble and learned Lord, Lord Boyd of Duncansby, will accept that. It reflects that places are different and will be able to make different contributions to tackling climate change. It also recognises that not every development plan document, as a component of the local plan, can make the same contribution. One of the anxieties I have about these amendments, for example, is how every local planning authority would ensure that development in their area achieves reductions of greenhouse gas emissions in line with the national carbon budgets. Places are very different. Some are able to make big contributions, others less so however hard they try. For instance, some have natural energy resources, be it geothermal or wind in more exposed rural areas, that other areas just do not have.

While I understand the direction of travel intended by the two amendments in this group, I do not believe it will help get us to where we want to be in a trouble-free way. For that reason, I cannot support these amendments. I reassure the noble Baroness, Lady Smith, that the combination of the existing duty and planning policy within the framework provided by the Planning and Compulsory Purchase Act 2004 makes this amendment unnecessary and I hope she will feel able to withdraw it, because I do not think there is any disagreement between us on the objectives we are seeking to achieve. It is just whether these amendments achieve that objective.

Wreck Removal Convention Bill

Lord Boyd of Duncansby Excerpts

Friday 13th May 2011 Lords Chamber

[Lord Boyd of Duncansby]

My Lords, I congratulate the noble Baroness on having brought this Bill to the House and so ably explaining it to us. She said that she was a novice; I believe that Dr Coffey is also a novice. It is good to see the Bill being piloted through Parliament by two such excellent novice pilots. To keep on this bad metaphor, I doubt that we are going to have a parliamentary shipwreck.

This convention is a welcome development in the law of the sea. I am not a maritime lawyer so I have to confess at the beginning that I am indebted to an article by Richard Shaw, senior research fellow at the University of Southampton’s Institute of Maritime Law for some background on this convention. The evolution of it goes back to the wreck of the “Torrey Canyon” in March 1967. As many noble Lords will remember, it came to grief off the Scilly Isles outside the then territorial limit of 3 miles. It hit a submerged reef, the Seven Stones, discharging slowly 115,000 tonnes of crude oil. The question was: how did the United Kingdom then deal with it? Eventually, it was dealt with by high explosives being dropped on the wreck, followed by napalm to set the oil alight. There were questions of the efficacy of such a procedure and of the legality of dealing with a wreck outside the territorial waters.

That wreck led to the 1969 International Convention on Civil Liability for Oil Pollution Damage and an International Convention Relating to Intervention on the High Seas in Cases of Oil Pollution Casualties. Yet under these conventions, the ability of the coastal state to intervene when faced with a major oil spill outside its territorial limits was severely limited. The United Nations Convention on the Law of the Sea in 1982 created a new sea area, the exclusive economic zone, within which there are certain limited rights, including the protection of the marine environment under Article 56 but, crucially, not the safety of navigation. The need for this convention is illustrated by an incident in 1984, when the French ship “Mont-Louis” collided with a passenger ferry outside Zeebrugge and came to rest on a sandbar—again, outside the territorial limits. The Belgian authorities served a wreck removal order on the owners of the ship but it was unclear whether they actually had the jurisdiction to do that. Fortunately, the issue was settled amicably but it raised the real issue of how one deals with wrecks outside the territorial limits.

The convention follows three principles. First, there is a grant of rights to a coastal state to remove a wreck from its exclusive economic zone if it represents a hazard to safe navigation or to the marine environment. Secondly, there is strict liability on a ship owner for the cost of reporting, marking and removing a wreck if required to do so by a coastal state. The third principle is of compulsory insurance and, crucially in this respect, the ability to take direct action against the insurers or those giving financial security on the equivalent provisions in the 1969 convention.

I appreciate that there have been some concerns raised, in particular by the Chamber of Shipping, and I anticipate that some of those may be raised later in this debate. In evidence to the Transport Select Committee in the other place, the Chamber of Shipping, although it supported the convention, expressed reservations about the consequences for light-dues payers as a result of passing obligations on to the general lighthouse authorities. At this point, I suppose that I should mention an interest as a past commissioner of the Northern Lighthouse Board. I am sure that if this matter comes to Committee with amendments, we shall deal with those concerns in more detail at that time.

However, the question of where liability should rest is of course important. Should it be with the General Lighthouse Fund and thus the industry or with the Exchequer? At Third Reading in the other place, Dr Coffey referred to the “Lagik”, which was grounded off the River Nene in 2000. The result was that it closed the port of Wisbech for 44 days. She asked the other place, quite pertinently, to imagine the resulting disruption if that had been Felixstowe. Of course, there would have been consequences for UK trade but there are other ports to which some of the cargo could no doubt be diverted. The main impact, I suggest, would be on the industry and it is right that the taxpayer should not have to bear these responsibilities.

Yet it is also right that the impact on the industry should be minimised, so far as possible, which is done by two particular aspects of the Bill and the convention. The first, as we have heard, is for the compulsory insurance of all ships over 300 gross tonnage and the second is the provision to allow the state to claim for costs arising under the convention to be brought directly against the insurer, thus minimising any exposure to the General Lighthouse Fund. Both those aspects seem to me to be important elements. It is also important that the lighthouse authorities themselves believe that these provisions will in fact mean a diminution in the costs on the General Lighthouse Fund as a whole and therefore, in consequence, on light dues. Once again, I fully support the convention and look forward to debating the Bill further in this House.

Marine Navigation Aids Bill [HL]

Lord Boyd of Duncansby Excerpts

Friday 21st January 2011 Lords Chamber

[Lord Boyd of Duncansby]

My Lords, I declare an interest as chairman of the Northern Lighthouse Heritage Trust and as a former commissioner of the Northern Lighthouse Board.

As other speakers have recognised, we have been here before—the same Bill had its Second Reading less than a year ago—but, nevertheless, like my noble friend Lord Reid, I pay tribute to the tenacity of my noble friend Lord Berkeley in bringing this issue of lighthouses before the House. As has been said, shipping is a vital part of our trade and it is important that these issues are looked at properly.

Much has happened since the Second Reading last February. First, there has been an agreement between the British and Irish Governments on the so-called subsidy to the Commissioners of Irish Lights. The Minister, Mr Penning, can take real credit for having reached that agreement, particularly in the face of the difficulties that the Irish Government face. Of course, the Minister was building on work that had been done by his predecessors, but, nevertheless, to have secured that deal last week is significant.

The second major thing that has happened since last February is the publication in March 2010 of the Atkins report. I am sorry that my noble friend did not say more about that, given that the new Government quickly accepted most of the report’s recommendations, which have now been implemented or are in the process of being implemented. The report was established by the previous Government to look at the structure and funding of lights in the UK and the efficiencies that could be made by the general lighthouse authorities. We now have a joint strategic board, which I understand has settled down well after a shaky start and is producing real benefits. The authorities are now monitoring each other’s business plans with a view to co-ordination. Another recommendation that has been accepted is the rationalisation of the buoy yards, with a buoy yards study addressing significant overcapacity in Harwich and Swansea.

The RPI minus X formula, which is designed to produce a year-on-year reduction in running costs, has also been accepted. Each GLA has its own value for X because they start from different bases. The Commissioners of Irish Lights, as I understand it, has accepted a target of just over 6 per cent given the need to achieve a significant reduction in manpower. For the Northern Lighthouse Board, the target is just over 3 per cent. To be clear, that means that, if the RPI is under 3 per cent—which may be just a hope at the present time—there will be real and absolute savings through efficiencies. The savings will be 17.4 per cent over the next four to five years. I understand that the recommendation on light dues was not accepted by the Government, but Mr Penning has made it clear that there will be no increase in light dues for at least the next three years, which is to be welcomed.

What should happen to this Bill? First, I commend my noble friend on his decision to drop the restructuring of the general lighthouse authorities and the establishment of a marine navigation aids commission and office of marine navigation aids regulation. For various reasons that I will not go into now, I believe that to be the right decision. However, I will make one comment, which is that, given the deal that has been reached between Mr Penning and the Irish Government, it is important that we bolster the Minister and make sure that we are not accused of bad faith by trying to restructure the general lighthouse authorities.

My noble friend has informed the House that he contemplates a radical restructuring of the Bill. Of course I bow to the Clerks and the House authorities on whether those changes are within the scope of the Bill, but I draw to the attention of noble Lords that the purpose of the Bill is to,

“Establish a Marine Navigation Aids Commission; to establish an Office of Marine Navigation Aids Regulation; to amend the Merchant Shipping Act 1995; and for connected purposes”.

We are now informed that the purpose of this Bill is to be significantly altered. However, I make no complaint that I did not receive the letter, as I did not put my name down to speak in this debate until yesterday and the letter was in fact passed on to me by friends in the Northern Lighthouse Board, so I was aware of it.

As I understand it, there are two elements to the amendments that my noble friend wishes to make to the Bill. The first would require the Government to reduce the light dues for ships entering UK ports by codifying reduction targets annually for a five-year period. The second would require the Government to cease providing the Irish subsidy by a certain date. In my submission, the second proposal is now otiose, given the agreement between the UK and Irish Governments. I do not see any merit in providing some sort of legal backbone to the agreement, because there is no reason to suppose that the Irish Government will renege provided that we keep our side of the bargain. On the proposal to issue some kind of reduction target, I have to say that I am always sceptical of attempts in legislation to impose rigid budget constraints, which require us to attempt to look into the future to see how financial circumstances may or may not change.

A better method would be to give some stability in the setting of light dues—I have already welcomed the announcement of the freeze that is to apply for at least the next three years—and to ensure that operating costs are reduced so that efficiencies are obtained. We have already seen that with the progress that has been made on implementing the Atkins recommendation on RPI minus X. That will produce real and significant savings. I accept that progress has to be monitored, which will happen through the lights users committee and the work of the department.

Mention has been made of different funding methods such as those that are used in Australia. It is clear that our system of funding is now unique—in other countries, the funding comes out of general taxation—but I think that we should be careful when we seek to draw analogies between different systems of funding. It may be that there is time to look at whether the current method is the right one for the future, but I have to say that many of us would be concerned if we moved away from the principle of the user pays to placing a burden on the general taxpayer. However, that is a debate for another day on a different Bill.

I believe that the right course for my noble friend would be to withdraw this Bill and to bring forward legislation in a more proper form that we can debate on its merits.