Growth and Infrastructure Bill

Lord Faulkner of Worcester Excerpts

Monday 4th February 2013 Lords Chamber

[Lord Greenway]

My Lords, I shall speak also to Amendments 75B, 77ZA, 77ZB and 77ZC. The amendments are to do with safeguarding port land.

Amendments 75A and 75B to Clause 22 are intended to preserve the possibility of special parliamentary procedure in relation to compulsory acquisition of land of certain types of transport statutory undertakers. Clause 22 relates to Section 128 of the Planning Act 2008, which provides for development consent orders authorising the compulsory acquisition of land of local authorities and statutory undertakers to be subject to special parliamentary procedure. As currently drafted, Clause 22 would repeal the whole of Section 128. The amendments would instead remove the reference to local authorities and the general reference to statutory undertakers in that section and restrict its application to land of harbour and railway undertakers. These are providers of infrastructure for public benefit, and it is important that land required for these purposes should continue to enjoy the additional level of protection which this procedure confers. Since Section 128 is not to be repealed in its entirety, Section 129 of the Planning Act, which relates to the operation of Section 128, will continue to need to apply. Amendment 75A would also remove its repeal.

Amendment 77ZA would delete subsection (4) of Clause 22, which repeals provisions which also relate to Sections 128 and 129 of the Planning Act. The proposal that these provisions remain makes repeal unnecessary.

Amendments 77ZB and 77ZC follow on from the previous amendments. Clause 23 modifies and limits the scope of special parliamentary procedure in relation to compulsory acquisition of land in certain cases where the Bill is not removing the process altogether; that is, in cases where special parliamentary procedure is triggered under what the Bill describes as a “special-acquisition provision”. It is accepted that if special parliamentary procedure is still to apply under Section 128 of the Planning Act in relation to land of transport undertakers, it should be subject to the same limitations. These amendments would include Section 128 in the definition of special-acquisition provision. This means that the modifications to the procedures would apply to any case in which special parliamentary procedure was triggered by Section 128.

These are in the way of probing amendments. I am seeking assurance that the Government realise the importance of safeguarding port land. If the Minister can give me reassurance on this, and says that the amendments are unnecessary and that the Government are content with the status quo, I will be happy with that. I beg to move.

[Lord Faulkner of Worcester]

My Lords, I start by thanking the Ministers—the noble Baroness, Lady Hanham, and the noble Lord, Lord Ahmad of Wimbledon—for taking the time to see me with their officials last Thursday to talk about the amendments I have tabled to Clause 23 in the next group and also about my objections to the inclusion of Clause 22 in the Bill.

Your Lordships may recall that I spoke about special parliamentary procedure—SPP—at Second Reading. That was based on my experience of serving on the Rookery South Joint Committee. I shall not repeat the arguments that I used then, other than to repeat the point that SPP has been triggered very rarely—only three times since 1990. While the eventual majority decisions of the Rookery South Joint Committee were not ones I supported—both the noble Lord, Lord Geddes, and I felt that the promoters of the resource recovery facility had a case to answer in terms of demonstrating the need for such a large project—I believe that the public interest was served in our deliberating in a Joint Committee. Had this Bill been an Act last year, with Clauses 22 and 23 contained within it, the Rookery South Joint Committee would not have taken place.

Since Second Reading, I have been sent two pieces of briefing on why Clause 22 should be removed from the Bill. The first relates to a battle against road-builders in High Wycombe in 1965. The redoubtable Kate Ashbrook, general-secretary of the Open Spaces Society, has described what happened on her blog, from which I shall quote some extracts:

“Wycombe Rye is a stretch of public open space on the east side of High Wycombe, Bucks, extending alongside the River Wye … The rye is a treasured spot, 68 acres of land vested in Wycombe District Council and its predecessor body … since 1927 … Looking at it now you might think it had always been safe. Not so. In 1962 part of the land was threatened with a compulsory purchase order, to enable the inner-relief road to be built across it”.

That road had been approved following a public inquiry. She goes on:

“There was a further inquiry into the appropriation of 2.4 acres of open space, but on the inspector’s recommendation, the minister”—

of the day—

“confirmed the appropriation order, under the Acquisition of Land (Authorisation Procedure) Act 1946, on 5 February 1965. Fortunately no land was offered in exchange, so the order was subject to special parliamentary procedure … That meant that objectors could petition parliament and present their case to a joint committee of both houses ... Magnificently, the committee ruled that the orders be annulled. The rye has remained intact to this day, saved by legislation which gives parliament the final say on the theft of open space where no suitable alternative is provided”.

However, that protection will disappear if Clause 22 remains in the Bill because,

“instead of such cases being referred to a parliamentary committee, the Secretary of State for Communities and Local Government himself can decide the fate of open space. In future, when compulsory purchase of open space is proposed for development which the government thinks should go ahead quickly, and there is no suitable exchange land or that land is considered to be too expensive, the minister can cast aside SPP and rule that the development proceeds without regard to the open space”.

Powerful arguments in favour of retaining SPP have also come from the Inland Waterways Association, which makes the point that the Canal & River Trust, the body set up following the passage of the Public Bodies Act, holds the waterways it cares for in trust on behalf of the nation in perpetuity. If the CRT is threatened by a compulsory purchase proposal, it has at present the option to go down the SPP route. This, says the Inland Waterways Association, makes the authority threatening compulsory purchase treat the CRT with greater respect and encourages constructive discussion. It claims that if the Bill is passed, the CRT will lose the right to request an SPP. Will the Minister confirm whether it is right in that assertion? If it is, how does he explain the anomaly whereby the National Trust retains the right to call for an SPP on its own land but the Canal & River Trust is denied that? It appears to be the case that the Government are, by their amendment to Clause 22, strengthening the position of the National Trust but at the same time doing nothing to give protection to other bodies with heritage responsibilities. As the Inland Waterways Association puts it, how can the Minister justify the situation where the River Wey Navigation, which is owned by the National Trust and dates back to the 17th century is protected, but the River Lee Navigation, which is five centuries older, is not?

Finally, if Clauses 22 and 23 stay in the Bill, a decision, which was vested in Parliament, will now be taken by the Executive. I caution the Minister to take care in what he wishes for. One advantage from the Government’s point of view about SPP is that it cannot be subject to judicial review and does not apply to decisions taken by the Secretary of State, which can be challenged by JR and will take far longer to resolve than SPP. Certainly, if the Government are threatening open space, they should anticipate the possibility of numerous judicial reviews. I suggest that the Government should now drop Clause 22, take it back for further consideration and perhaps come forward with fresh suggestions on Report.

[Lord Jenkin of Roding]

My Lords, Amendments 76 and 77 are in the names of the noble Lord, Lord Berkeley, and myself, and this perhaps is the moment when I should make my contribution to the debate. I read the speech made by the noble Lord, Lord Faulkner, at Second Reading and his reference to Rookery South. I approach this issue from a rather different angle. If one looks at the history of that energy-from-waste project in Bedfordshire, the SPP—a post-consent process; planning consent had already been given—simply allows the objectors a further opportunity to object. A lot of people feel strongly about energy-from-waste projects.

The noble Lord says that that gives rise to parliamentary accountability. I have to say that until I had studied the briefs on these two clauses, I had been entirely unaware as a Member of Parliament of the activities of the noble Lord and some of his colleagues—the noble Lord, Lord Geddes, was mentioned. I know that my noble friend Lord Brabazon has been involved in similar SPP processes and has regarded them as very long and drawn out.

This Bill is about encouraging growth and investment in the infrastructure. It really cannot make sense to continue with these, as it were, statutory procedures for delaying decisions and action on applications for which consent has already been given after the normal processes. I have to confess to the noble Lord, Lord Faulkner, that I have not studied closely the condition of the waterways, as he obviously has, or, perhaps I may say to the noble Lord, Lord Greenway, the ports.

These two amendments are concerned about, as am I, the application of the special parliamentary procedure for what is called common land,

“open space, fuel or field garden allotment”.

The Planning Act currently provides that a development consent order which authorises compulsory purchase of open space land or a right over such land will be subject to the SPP unless the Secretary of State has issued a certificate confirming that certain prescribed circumstances will apply. I have already said that this is a post-consent approval stage that certainly has the potential to result in—and in some of the cases, not least that of Rookery South to which the noble Lord, Lord Faulkner, has referred, has actually resulted in—very considerable delays for a project that had already achieved planning consent. The procedure can be very costly for the applicants—and, I dare say, for some of the objectors—and hold back the provision of infrastructure projects that support economic growth.

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[Lord Ahmad of Wimbledon]

My Lords, I am grateful to all noble Lords for the amendments they have tabled, in particular the noble Lords, Lord Greenway, Lord Jenkin and Lord Berkeley, for setting out their proposed amendments to Clause 22. Questions have been raised about the Government’s position in putting forward Clause 22. It may be helpful if I first set out the issues that the Government are trying to address through this clause.

Clause 22 amends the provisions in the Planning Act 2008 which set out when special parliamentary procedure will apply to a development consent order which authorises the acquisition of specially protected land. It also repeals the separate certification process required in certain cases. The Planning Act 2008 brought together a range of different consent regimes for nationally significant infrastructure into a single development consent order. The overall aim of this regime is to provide a more efficient and quicker consenting regime for very large infrastructure projects. Development consent orders can include authorisation for the compulsory acquisition of land, but when certain categories of specially protected land are acquired, special parliamentary procedure can be triggered. The decision by the Secretary of State that such land is to be compulsorily acquired is then transferred to a Joint Committee of Parliament for confirmation. While the special parliamentary procedure is undertaken, the development consent cannot come into effect and work on the infrastructure project cannot start.

The noble Lord, Lord Greaves, talked about the reasoning behind such measures. Delays to infrastructure projects can have a significant knock-on impact in delaying benefits to the local and, indeed, national economy. In the case to which the noble Lord, Lord Faulkner, referred—the Rookery South project in which he was involved—the special parliamentary procedure was triggered for an infrastructure project under the Planning Act. The special parliamentary procedure added more than a year to the consent process. I understand that during this period no work was possible on the project, delaying the creation of up to 300 construction jobs and 80 permanent jobs that would have resulted when the project was up and running.

[Lord Faulkner of Worcester]

I am grateful to the noble Lord for giving way. Has he any estimate of how long it would have taken if the decision had been taken by the Secretary of State and been subjected to judicial review, which was the alternative to the SPP?

[Lord Ahmad of Wimbledon]

That would be speculating but I will come to the specific issue of judicial review in a moment and perhaps address the question at that time.

In more general terms, there is also the strong argument that has been made about the threat of delay, for whatever reason, impacting on the confidence of investors and developers. We are, after all, looking at infrastructure which is supporting the economic growth of our country. In total, new infrastructure creates thousands of new jobs and billions of pounds of new investment, as we all know. Consents for such infrastructure must be provided as quickly and efficiently as possible. We cannot afford to lose those jobs and investment because of delays in finalising consents.

The Government are committed to reform of the SPP and want to ensure that in future SPP is used only in cases where there is a genuine need for further scrutiny by Parliament of a particular ministerial decision. We therefore consider that SPP under the Planning Act should be limited to cases where there is a need for further scrutiny, as I have said. As my noble friend Lord Jenkin rightly said, it should be invoked where there is a real need for further scrutiny based on public interest and, indeed, a general need to weigh up competing public interests of allowing infrastructure development and the protection of certain types of specially protected land.

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Moved by

[Lord Faulkner of Worcester]

77ZD: Clause 23, page 25, leave out lines 8 to 26

[Lord Faulkner of Worcester]

My Lords, I shall speak also to Amendments 77ZE and 77ZF. I have also given notice that I wish to oppose the Question that Clause 23 should stand part of the Bill. This is, in a sense, a continuation of our previous debate on Clause 22. Perhaps I may first respond to the Minister’s generous offer to convene a meeting with the Canal & River Trust. I am delighted to accept, as, I am sure, the trust will be; I look forward to the meeting.

I shall not repeat the arguments that I put forward regarding Clause 22 but seek simply to state that what the Government propose in Clause 23 goes further than what the two chairmen—the Chairman of Ways and Means in another place and our Chairman of Committees—recommended in their special report on the Rookery South order, when they considered the promoters’ challenges to the locus standi of the petitioners against the order. In paragraph 28 of their report, the two chairmen concluded:

“We urge the Government to amend either the Statutory Orders (Special Procedure) Act 1945 or the Planning Act 2008—or both—so as to ensure a consistent statutory framework for the consideration of future Development Consent Orders subject to Special Parliamentary Procedure. In drawing up revised provisions, the Government will need to consult with the relevant authorities of the two Houses. In the meantime, no further orders of this type should be laid before Parliament until the statutory framework has been amended to resolve these inconsistencies”.

In its proceedings on Rookery South, the Joint Committee decided at the outset that it wished to hear evidence on the whole of each of the petitioners’ cases. The amendments proposed by Clause 23 would have prevented the Joint Committee from doing so. It is likely in future cases, once Clause 23 is in force, that any attempt to petition on issues that are not related to the acquisition of the special land are likely to be challenged at the preliminary stage before the two chairmen.

Despite that, it remains to be seen whether petitioners will be able to raise issues that are not directly related to the acquisition of the land. It has always been a central tenet of compulsory acquisition law that the applicant for the powers must demonstrate that there is a compelling case in the public interest for the land to be acquired compulsorily—a point made with great force by the noble Lord, Lord Greaves, in the previous debate. Those words are embodied in Section 122(3) of the Planning Act. In order for a petitioner to demonstrate that there is no compelling case in the public interest, he should be able to bring evidence to bear about the benefits of the proposals as a whole, compared with the injury that he will suffer when losing his land.

As I said, Clause 23 goes further than the request made by the two chairmen, who limited their remarks to the 2008 Act. No issue has been raised as regards the compatibility between the Acquisition of Land Act 1981—and other statutes that authorise compulsory acquisition—and the 1945 Act; yet the clause seeks to limit the scope of SPP in the 1981 Act and the other examples in the same way as it does for 2008 Act cases. I should be grateful if the Minister can explain why the Government have decided that this should be the case. My amendments would have the effect of limiting the changes proposed to the SPP procedure so that they apply only to development consent orders under the Planning Act 2008. I beg to move.

[Lord Greaves]

My Lords, I wish to put on record that I support the amendments of the noble Lord, Lord Faulkner.

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Although there has been detail, I have not gone into extended detail on the provisions in this clause. However, it does ensure that, where a provision makes clear that SPP is to be limited to the consideration of the compulsory acquisition of special land, that aim is achieved. Ensuring that such legislation operates as intended is crucial to getting in place the vital infrastructure that this country needs. I therefore hope, based on my reassurances and comments, that the noble Lord, Lord Faulkner, is willing to withdraw his amendment.

[Lord Faulkner of Worcester]

My Lords, I can start with the easy bit, which is to thank the noble Lord, Lord Greaves, for his support. What the Minister has said is incredibly complicated. I will need to read it with great care and, I suspect, take advice from people who are much cleverer in this area than I am. I am grateful for the trouble that he has gone to in explaining the Government’s position and, indeed, the whole approach of the Government on the SPP in Clauses 22 and 23. I think that I am in a minority in your Lordships’ House about the need to preserve the significant elements of the SPP operation. However, for the moment, I am happy to withdraw the amendment if the Committee agrees.

Amendment 77ZD withdrawn.