Localism Bill

Debate between Lord Boyd of Duncansby and Lord Jenkin of Roding

Monday 31st October 2011 Lords Chamber

[Lord Jenkin of Roding]

My Lords, the noble Lord, Lord Berkeley, spoke to his amendment so comprehensively that I want to add only one point. As my noble friend on the Front Bench indicated, the Government’s own amendment came to light only a week ago. I should like to say a very warm thank you to him and to the officials who recognised so swiftly that there had to be a change to the 2008 Act to prevent quite unnecessary use of the special parliamentary procedure, or SPP.

I endorse what the noble Lord, Lord Berkeley, said: there are still too many examples where such procedures will or could need to be invoked. If anybody makes an objection—for instance, where one is dealing with local authority land—and that objection is sustained, it will have to go through this special parliamentary procedure. While the decisions on major infrastructure projects were being taken by the Infrastructure Planning Commission, a quango, that may have been a necessary parliamentary protection. However, as the noble Lord, Lord Berkeley, has said, under the new procedure, perhaps from April 2012, these decisions will be taken by a Minister accountable to Parliament. This changes the nature of the necessity for these other protective procedures to be built in.

Like the noble Lord, Lord Berkeley, I would very much welcome an indication from my noble friends on the Front Bench that they will look at this again. I understand that, in the short time that we have had to deal with this—it came up only on Report in this House—it has been difficult for Ministers to go as far as we would perhaps like. However, with the review coming up, there seems to be an opportunity to have another look at this so that it gets somewhat nearer the one-stop shop that was originally offered by the Ministers in the previous Government as being the major benefit of the new Infrastructure Planning Commission. It most manifestly is not a one-stop shop at the moment. Maybe it never could be a one-stop shop but it could certainly have fewer than the 42 consents that are necessary for these major projects. I hope my noble friends will be able to give us some reassurance that they are sympathetic to this and will, in the review, look at it very carefully with a view to coming somewhat nearer the original objective that was held out to Parliament when the 2008 Act was introduced.

[Lord Boyd of Duncansby]

My Lords, I declare an interest as a Scottish solicitor who is registered as a foreign lawyer in England and Wales. I also have an interest in planning. I thank the noble Earl for bringing forward Amendment 53, which deals with a real anomaly. I also support my noble friend on Amendments 87 and 88. Much of what I would say has already been said, but I shall just add a couple of points.

On the special parliamentary procedure, on Report my noble friend Lord McKenzie expressed some reservations about the abolition of what was perhaps seen as a protection. However, the point that my noble friend Lord Berkeley has made is that it is a heavier regime than that which pertained under the Transport and Works Act and the Harbours Act. Therefore, it seems curious that we have made the development consent orders regime more onerous than it was under those two Acts. I do not suppose that my noble friend will press his amendment tonight. However, I hope that the Minister will confirm that the operation of the special parliamentary procedure will be part of the review. Perhaps that will give us an opportunity to look at it and reassure those who are sceptical about removing the protection, giving them some comfort that the protections will still be there in the role of the Secretary of State and his accountability to Parliament.

Amendment 88 would do away with the large number of consenting regimes that are still in place, or at least significantly reduce them. It is not the case that doing away with these consenting regimes somehow removes protections, because protective provisions will be put into the development consent order. That is the crucial thing, and there are plenty of examples, again under transport and works orders, of protective regimes being put into place. I gave an example earlier in the proceedings of this House.

We have to strive to get a one-stop shop. If there is bureaucratic inertia to addressing this issue, then it is up to Ministers to argue the case in government against those who are suggesting that we cannot do anything about that. We need to get a more streamlined process, so that development is not held up simply because we have to go through yet another procedure. I welcome the forthcoming review, and I hope that will give us an opportunity to clear up some of these anomalies that have been left over from previous systems and planning regimes.

Localism Bill

Debate between Lord Boyd of Duncansby and Lord Jenkin of Roding

Tuesday 19th July 2011 Lords Chamber

[Lord Jenkin of Roding]

My Lords, in moving Amendment 166D, I wish to speak to a large number of amendments in this group. With this amendment we turn to Schedule 13, which covers amendments to the Planning Act 2008 dealing with the new arrangements to replace the Infrastructure Planning Commission with a new process whereby the members of the commission are transferred to the planning secretariat. However, the decisions on these major infrastructure projects will be made by a Minister who is accountable to Parliament. At Second Reading, I remarked briefly that I was extremely pleased with the way that the members of the IPC have conducted themselves and with their readiness to accept the new process. However, there is still a lot of anxiety which has been expressed to me by the CBI and by lawyers at a City firm in London who have expressed considerable doubts as to whether the Bill adequately provides a seamless transition from the old process as set up in the 2008 Act to the new process set out in Schedule 13 to the Bill.

The Committee will be relieved to hear that I will not discuss this large group of amendments in detail. I have discussed the matter with my noble friend on the Front Bench. It is clear that she and her department are well aware of the arguments that have been advanced. I have been given an assurance that she and her department are very ready to speak to those who have put their views to me and which are reflected in these amendments.

The purpose of the amendments is, first, to ensure, as I said, a seamless transition, but it goes wider than that. The amendments also seek to remove the need for parallel and separate consent requirements so that the development consent orders regime is truly a one-stop shop, which was what was originally promoted by the previous Government when they brought forward the 2008 Act.

Secondly, they seek to introduce some limited flexibility regarding compliance with what is currently a one-size-fits-all set of procedures and requirements for applications. Thirdly, we want to clarify the ability to modify draft development consent orders as they are going through the process and to replicate other order-making regimes in terms of what criminal offences development consent orders may include; and generally remove what is regarded as unnecessary gold plating now that decisions are being returned from the Infrastructure Planning Commission—a quango—to Ministers. This was something for which a number of us argued fiercely during the passage of the 2008 Act. I am delighted that it is now being implemented in this Bill. That is what we are aiming to do here.

I shall not go through the details of all the amendments, but I should like to say that I am grateful for the offer made by my noble friend on the Front Bench that the Government will consider this matter. I am sure that we will be told that the Bill in fact provides the seamless transition from the old to the new. Nevertheless, anxieties remain. It is a hugely important matter that concerns all major national infrastructure projects such as major airports, new power stations, major transmission lines and so on. It is very important that there should be no hiatus in the process that transfers from the existing system the new.

Before I sit down, one amendment in this group also amends the Planning Act 2008 and concerns minor electricity distribution lines. The Act originally made provisions relating to a new transmission or distribution line that was,

“expected to be less than 132 kilovolts”.

My Amendment 166VZA suggests that it should,

“be 132 kilovolts or less”.

It may seem that there is no difference, but there is in fact a considerable difference. I am told on good authority that Ministers in the Department for Energy and Climate Change are wholly in favour of that amendment, and I hope that perhaps it might be accepted.

However, the bulk of amendments in my name in this group refer to the matters that I have described—the need for a seamless and, I hope, simpler transition from the existing responsibilities of the Infrastructure Planning Commission to make planning decisions for these major projects to its different role of preparing the matter and making recommendations; and the Secretary of State will make the decisions. I beg to move.

[Lord Boyd of Duncansby]

My name is also associated with Amendment 166U. At one stage, I had thought that I had put my name to one or two of the other amendments and it indeed appeared in earlier versions of the Marshalled List. However, for some reason my name seems to have been disassociated with those amendments. Nevertheless, I support the thrust of the amendments of the noble Lord, Lord Jenkin, and I emphasise the need for a seamless transition.

I do not want to take up the time of the Committee at this hour of night but I wish to mention two amendments in particular. The first, Amendment 166R, raises an important point of principle on the extent to which a development consent order can deal with all the consents—the one-stop shop that the noble Lord, Lord Jenkin, mentioned. This was particularly important in the setting up of the Planning Act regime. Noble Lords will recall from the debates at that time that the Terminal Five proposals involved 37 different applications under, I think, different pieces of legislation. The beauty of the development consent order is that it was supposed to bring all this together. The problem is that quite a number of consents are outside this process, particularly those involving the Environment Agency and Natural England. For example, under Section 109 of the Water Resources Act, the Environment Agency deals with consent issues where there is construction work in or near principal water courses. Thereby, if a nationally significant infrastructure project is next to a water course, there is a separate application to the Environment Agency.

I submit that that does not make sense. Adequate protection can be given within the development consent order. By way of example, if the Minister is taking this away to think about it, I mention the London Gateway Port Harbour Empowerment Order 2008, which was made under a similar process: the Harbours Act 1964, where adequate provision is made for the Environment Agency consents.

I mention a second matter. Amendment 166J concerns Section 114 of the 2008 Act. At present, there is concern among developers that, in effect, you get one chance to get the application right. If you have to make amendments to it, the issue then becomes whether they are substantial and, if they are, there is no way of amending the proposal properly in the process. In effect, you go back to square one. It is a bit like snakes and ladders, except that they all go back to the beginning.

I do not expect Ministers to comment on live cases, but one issue has arisen in the past few days with an application before the Infrastructure Planning Commission. It has refused to allow an amendment to an application. Does the developer then go back to square one to propose a development that the applicant presumably believes is inferior to the one they seek? I ask the Ministers to take that away to see whether they can give any flexibility in the process.