Growth and Infrastructure Bill

Debate between Lord Faulkner of Worcester and Lord Greenway

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 Since Section 128 is not to be repealed in its entirety, Section 129 of the Planning Act, which relates to the operation of Section 128, will continue to need to apply.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.