Growth and Infrastructure Bill

Baroness Hanham Excerpts

Monday 4th February 2013 Lords Chamber

Moved by

[Baroness Hanham]

77ZAA: Clause 22, page 24, line 26, leave out “To ensure that” and insert “In”

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Moved by

[Baroness Hanham]

77ZG: Clause 23, page 29, line 25, leave out from “(5)” to “after” in line 27 and insert “, so far as it applies to orders granting development consent, applies to any such order made”

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[Lord Berkeley]

My Lords, I will speak to Amendment 78 in this group, which is in my name and that of the noble Lord, Lord Jenkin of Roding. It is yet another attempt to change the definition of what type of project could be included in the extent of the Planning Act. It relates to commercial and business developments that require consent under the national significant infrastructure regime.

The issue that I would like to raise is that of mixed-use schemes that have some housing or retail element. They should be able to take advantage of the regime for nationally significant infrastructure projects. Any retail element is excluded from the proposed list of development types set out in annexe A of the recent CLG consultation on extending the Planning Act regime. I imagine that this could always be reversed if the Government were minded to do so, but the Bill prevents any housing element being included in regulations.

I believe there is a large number of potentially significant business and commercial developments that will have some retail and certainly some housing element in them, even if it is only a caretaker. In theory, if there is just one property in a development, it cannot qualify for going down the nationally significant route. It is important for such developments to be able to include some housing element and to go for the nationally significant approach. An awful lot of time and cost could be saved if this were possible. The original prohibition of housing was well intentioned, and clearly big housing projects are not what the nationally significant definition is for, but it is a problem because if there were just one or two houses in a big development, it would be excluded.

That is what this probing amendment seeks to achieve. I hope that the Minister is willing to look at this again. Perhaps we can discuss whether there is some better wording that could be applied on Report.

[The Parliamentary Under-Secretary of State, Department for Communities and Local Government (Baroness Hanham)]

My Lords, this group of amendments seeks to set out in the Bill the types of development and development sites which can and cannot be considered nationally significant under Clause 24. A number of specific amendments have been moved, and I will attempt to address the issues in each.

As noble Lords are aware, the purpose of Clause 24 is to extend the existing powers within the Planning Act to direct sub-threshold forms of energy, waste, transport, water and waste-water schemes into the Planning Act regime, to new forms of business and commercial development. Our intention is not to bring new development into the regime automatically but to provide an alternative planning route where proposed development is of national significance. We have recently consulted on the types of business and commercial developments, and we are now in the process of considering the responses to that consultation.

Amendments 77ZJ and 77AB would rule out proposed schemes using the regime if they were on sites of special environmental or historic importance or if they involved minerals extraction, or quarrying. These amendments would apply equally to the existing types of infrastructure, such as energy, transport and water, as well as to new forms of business and commercial schemes.

An example of the effect of Amendment 77ZJ is that a sub-threshold energy scheme of national significance that might otherwise be considered via the Planning Act route could not be the subject of a direction if part of the site had an environmental designation. We do not consider this to be a sensible approach. If a scheme is of national significance and is directed into the regime, the Secretary of State will have to consider all the issues that are important and relevant, including any impacts on the historic or natural environment, before reaching his decision. To exclude large tracts of land without consideration of the planning merits or otherwise of the proposed development could discourage developers bringing forward much needed infrastructure or economic developments.

I will explain our thinking on minerals a little bit more. As we recognised in the National Planning Policy Framework, minerals are essential to support sustainable economic growth and quality of life. Without minerals, our building industry would grind to a halt. It is essential that there is a sufficient supply of material to provide the infrastructure, buildings, energy and goods that the country needs. We therefore consider that some minerals schemes could be capable of being of national significance, but again we wish to consider the consultation responses before we reach final conclusions about the forms of development.

Amendments 78ZA, 77AA, 77AC and 77BA seek to place the types of commercial and business development in the Bill. I am pleased that the noble Lord, Lord Adonis, broadly agrees with the types of development on which the Government consulted recently in connection with the proposals to extend the infrastructure planning regime to business and commercial projects. Nevertheless, we consider that this amendment is premature. We believe that a broad range of types of development of national significance could benefit from using the infrastructure planning regime and that further public and parliamentary scrutiny on how this new power should be used is appropriate. That is why we are now considering the responses to this consultation and why the accompanying regulations will be subject to the affirmative procedure.

Amendment 78, in the names of the noble Lord, Lord Berkeley, and my noble friend Lord Jenkin, also seeks to remove the exclusion in the Bill on dwellings from being prescribed in regulations. I listened carefully to the remarks made on this point by the noble Lord, Lord Berkeley. The Government have a clear position that planning for housing should remain a core responsibility of local councils. As the Government set out in the National Planning Policy Framework, local councils should be planning to deliver a wide choice of high-quality homes and wider opportunities for home ownership and creating sustainable, inclusive and mixed communities.

Many of the responses to the consultation exercise that we carried out recently supported the exclusion of housing from the infrastructure planning regime. Again, we are considering these responses, but we believe that housing should be and remain a core responsibility of local authorities.

[Lord Jenkin of Roding]

I did not intervene in the debate, because the noble Lord, Lord Berkeley, made the point. When will the Government publish the full response to the consultation? It has been represented to me that there were quite a lot of objections to the exclusion of housing. Of course one agrees that housing cannot be a main purpose of an application that goes directly to the Planning Inspectorate, but there are a lot of mixed developments now that usefully and importantly will include a housing aspect. It ought to be possible for an applicant to use the new procedure to have his application referred directly to the inspectorate.

[Baroness Hanham]

My Lords, I think that I made clear in my remarks that we are considering the results of the consultation that has just taken place. At present, the intention is to continue to have housing dealt with by local authorities. We are analysing the responses at the moment. While we already have a summary of the issues, we will publish a full response in due course. The summary of the issues may be helpful to us for the next stage.

I hope that noble Lords will agree the Government have set out a sensible approach that will enable new forms of nationally significant development to benefit from the Planning Act regime, that the noble Lord feels able to withdraw his amendment, and that other noble Lords do not press the amendments in their names, mainly probing as I understand them to be.

[Lord Greaves]

My Lords, I did not quite catch what the Minister said. Will a published summary of the issues encompass a summary of the Government’s views and their response to the consultation, and did she say we would perhaps have that before Report? Some of us did not put down detailed amendments on Clause 24 because we were waiting for some clearer indication of exactly what it means in detail. If we do not get at least a summary or broad overview of the Government’s views on this before Report, we might be tempted to take up more time on Report by putting new amendments down than the Minister would perhaps prefer.

The other questions I wanted to ask were about minerals. Will Clause 24 make a difference, for example, to the way in which planning permission or development consent is given for things such as quarries in national parks—the quarrying of limestone in the Peak District, for example—which are highly controversial and at the moment are done by the local planning authority, the national park? Are decisions like that going to be moved to the Secretary of State and the infrastructure planning regime?

The other question was specifically about the development of fracking for unconventional gas, which is going ahead slowly in Lancashire. Lots of different consents have to be obtained for that, notably from the Department of Energy and Climate Change, which takes place at a national level. However, the development that has taken place so far and the scale of it means that the planning permission, as I understand it, is the responsibility of the county council; in the case of the fracking that is taking place, or is about to resume, at the moment on an experimental basis in Lancashire, that will be Lancashire County Council.

It seems to me that with something like fracking, there are two crucial sets of decisions to be made. One is the question of whether the drilling, the fracking and the extraction of the gas should be allowed to take place. Then there are all the environmental issues related to that on the surface, such as the screening of developments and whether pipes from the different wellheads, which are quite close to each other, should be underground, overground or whatever, which is a matter of the local landscape and local planning. I would be quite appalled if the decisions over that kind of local planning were taken away from the local planning authority—in this case Lancashire County Council, as it is a minerals development—and put in the hands of a national authority, which I really do not think would have the local understanding or the ability to do the job properly. There are two separate issues there. Would it be possible for them to be separated, because they are dealing with quite different aspects, and for the decisions about whether the drilling and fracking goes ahead—and I should say that it seems to me that this is development which ought, at least on a pilot basis, to proceed as far as a viable commercial scheme—to be taken nationally through the infrastructure planning process but for the local details of the environmental protection and amelioration connected with it, and how that works on the surface, to be left with the local planning authority?

[Baroness Hanham]

My Lords, I thank noble Lords for those questions. The noble Lord, Lord Jenkin, asked about the summary of responses. We have that summary of responses, and I think it has already gone to the noble Lord, Lord Adonis; if not, it is on its way. We can make sure that Members of the Committee receive a copy and will put it in the Library, so that it will be available for consideration at the next stage.

We are thinking about the responses to the consultation and whether fracking should be included in the infrastructure planning regime or, as the noble Lord said, stay with the local planning authority. At the moment, a request will have to be made to the Secretary of State to use the major planning infrastructure regime, and the Secretary of State will be interested in it only if the whole proposal was going to raise issues of national rather than local significance. Fracking is a developing area and things may change but, as I understand it, that is the situation at the moment. I hope with those explanations that the noble Lord may be willing to withdraw his amendment and that noble Lords will not press the others when the time comes.

[Lord Greaves]

I will perhaps take up the question of fracking with the Minister outside the Chamber. However, the important thing before Report is not to get the summary of responses—although that would obviously be useful—but to get the Government’s view of the responses and their view of the way forward.

[Baroness Hanham]

I understood that that was what the noble Lord, Lord Greaves, was getting at. I have committed to giving him the summary of the responses and have been told that the Government’s response will come in due course. That does not sound to me as if it will come before Report, but if it does, I will let noble Lords know that it is coming.

[Lord Adonis]

My Lords, the noble Lord, Lord Greaves, raises a point of some substance. I have read the summary of responses which the noble Baroness very kindly sent to me a short while ago. It is supremely uninformative. Question 3 asks:

“Do you agree with our assessment of the factors that the Secretary of State would need to take into account when considering whether a project is nationally significant?”.

The summary of responses says:

“A number of respondents thought the assessment factors were broadly right whilst others commented that they were not detailed enough or were not supported at all”.

I could go through them, but it is a profound exercise in waffle and does not really help us very much. To be fair to the Government, in annexe A of their consultation paper, they set out both specific types of development and very specific criteria in terms of the square metreage for the thresholds that would need to be met before these projects are deemed to be of national significance. That is crucial in informing our view as to whether we think this clause should proceed without requiring further limitation, although I think there is quite a strong preference for seeking to put provisions in the Bill. It would be extremely helpful if the noble Baroness were able, before Report, to indicate whether the Government stick by their proposals in annexe A or are minded to amend them in any form. If that does not come before Report, we will of course have no chance to assess the Government’s intended course of action before this Bill becomes law.

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[Baroness Hanham]

My instinct would say that if it is there, then the Government are going to introduce it and are probably not going to amend it. If there is any change to that, I will let the noble Lord and the Committee know.

[Lord Adonis]

I beg leave to withdraw the amendment.

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[Baroness Parminter]

My Lords, I support my noble friend’s contention that this clause do not stand part of the Bill. I will not repeat the questions raised by noble Lords, which I feel deserve an answer from my noble friend the Minister. I am sure that we will get answers, because she has shown herself throughout this process to be very open and willing to engage with us.

The one issue I would like to expand on a little further is that of fracking, and bringing that into the fast track process. The Minister rightly said that this is a developing area, and it is therefore important that this House has time to consider all the possible implications. Like the noble Lord, Lord Jenkin, and others, I think it is appropriate for the Government to introduce a national planning policy statement for this. As my noble friend Lord Greaves said, this is an important new area with major implications, particularly in the north-west. Given the scale of fracking and the Government’s commitment to press ahead with it, it would seem illogical not to give the Planning Inspectorate further clarity as it takes this issue forward.

The Minister said that there will be between 10 and 20 cases a year, a point raised by the noble Baroness, Lady Young. She cited evidence given by Friends of the Earth; I choose instead to cite evidence given to the House of Lords inquiry into EU energy policy last month, when Professor Jonathan Stern of the Oxford Institute gave his assessment of the implications of fracking in the United Kingdom. In the committee’s evidence session, Professor Stern stated:

“The US drills 45,000 wells every year of which 80% are fracked... people in Europe just do not understand the scale on which the drilling has taken place. In the future, it may be possible to reduce the scale of that drilling but I think what you can say is, if in any specific country you have drilled 100 wells, you may know something about the resource base. If you are going to produce shale gas on any scale, you probably need to be drilling somewhere between 300 and 500 wells a year, every year”.

I quote those figures because I think it is beholden upon my noble friend to answer—and I am sure she will do her best to do so—why the Government seem to think there will only be 10 to 20 cases emerging through this fast-tracking process if fracking is brought forward. There is a disparity which needs urgent clarification. Yes, it is a developing area, but if the Government are going to proceed with fracking, and take it forward as part of the energy mix in the short to medium term, then not only is there a case for a national policy statement, but there needs to be far greater clarity about the implications—particularly the resource implications—that would accrue for the Planning Inspectorate.

[Baroness Hanham]

I thank those noble Lords who have taken part in this rather interesting and short debate. I will try to pick up some of the matters raised, either as we go through or subsequently. Perhaps it would be helpful if I explain the Government’s rationale for Clause 24 and the reforms within it. As we have said on many occasions, one of the Government’s top priorities is to get the economy growing by creating the right conditions for growth. This includes ensuring that the planning system is operating in the most efficient and effective way. Clause 24 will support this aim by allowing developers of nationally significant business and commercial development to request to use the streamlined planning regime set out in the Planning Act 2008.

The noble Baroness’s Amendments 77A, 77B and 78A would remove the ability of the Secretary of State to issue a direction for prescribed forms of business and commercial development in response to a request from a developer. I have listened to views expressed that business and commercial planning applications should be determined by the local planning authority, and we have no difficulty with that. The Government agree that that is the right approach in the vast majority of cases. However, there will also be a small number of projects that will be of national economic importance and, in certain circumstances, it will be right that a decision on such proposals is taken at the national level by democratically elected Ministers.

We are not proposing that that should be a mandatory route for developers; it is optional. Developers of major projects will choose to request to use the infrastructure planning regime only if it offers other benefits which the local authority cannot provide, such as statutory timetabling—the noble Baroness asked me what it would be—and the one-stop shop, which will be useful where multiple consents are required.

Any request made to use the infrastructure planning regime will also be subject to the agreement of the Secretary of State, who will have to be satisfied that the proposed project is of national significance. Under Section 35(10) of the Planning Act, the Secretary of State is required to give reasons for his decision when making a direction, and that requirement is carried forward in new Section 35ZA(10) in Clause 24. That is why we cannot accept Amendment 77ZK, which is unnecessary.

My noble friend Lord Jenkin spoke to Amendment 78B, which would limit who can make a request that an application or proposed application for energy, transport, waste, water or waste water projects below the Planning Act thresholds should be directed into the nationally significant infrastructure planning regime. I understand why the amendment has been tabled and am sympathetic to its aims, but perhaps I may explain why we have set out a different approach in the Bill for business and commercial schemes.

The Planning Act sets specific thresholds for energy, transport, water, waste and waste water projects. Any proposal for a development which meets those thresholds must seek planning consent through the nationally significant infrastructure planning regime. Section 35 of the Planning Act allows a request to be made to use the regime for projects which are below the thresholds. We have not sought to limit who can make a Section 35 request for infrastructure projects as we recognise that other parties may hold information which could indicate that the project was one of national significance and should be directed into the regime. However, for business and commercial schemes, the Government have been very clear that for developers of major schemes this is an optional route. Therefore, the limitation on who can make a request is not there. We believe that it should be for a developer or applicant to determine whether the advantages of using the infrastructure planning regime outweigh the usual route of making a planning application to the local planning authority. The Secretary of State will direct a project into the regime only if he considers that it is of national significance.

Concerns have been expressed that if we do not accept the amendment the Secretary of State will be inundated with requests from third parties, or that there will be delay to the application being submitted or to the local authority decision-making process. We think that this is unlikely. We are aware of only a very small number of such requests having been made to date. The impact assessment states that the figure is likely to be between 10 and 20 a year. We will have to see how that works out.

If an application or proposed application is directed into the nationally significant infrastructure regime, this does not mean that local opinions will be ignored. Developers will have to consult local communities, and local authorities will continue to play an important role. The consultation requirements of the Planning Act, as noble Lords will know, are rigorous. Local authorities will also be invited to prepare a local impact report. The Secretary of State must have regard to the report as well as to other matters that are both important and relevant in making his decision on the development consent order application. The local plan, for example, is likely to be both important and relevant, as indeed is the National Planning Policy Framework.

It is essential that sustainable development should go ahead with the minimum of delay. That is why we have brought forward this new power. We also think that it is appropriate to have further public and parliamentary scrutiny on how this new power should be used. That is why we have consulted recently on the types of development and why the regulations that follow and prescribe the types of development will be subject to the affirmative procedure.

Other matters were raised. The noble Baroness, Lady Young, who tabled some of the amendments in this group, has had a letter from my honourable friend Nick Boles which I think addresses most of the questions that she raised, but I understand why she would want those responses on the record.

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[Lord Greaves]

If there are letters floating around which are being debated here, I wonder whether we might all have sight of them.

[Baroness Hanham]

My Lords, the letter in question was to the noble Baroness. If she is happy for it to be made available to the Committee, then, of course, I would be happy, too. I presume that my honourable friend at the other end was expecting at least most of it to be made public because it is a very public response to the questions asked. I do not think that there would be any disagreement with my saying that the local plan and the National Planning Policy Framework are both likely to be important and relevant in these matters. We have issued a consultation paper on extending the regime to business and commercial schemes, seeking views on whether one or more national policy statements should be prepared. These matters are relevant to today’s debate and the answers are the Government’s answers.

I do not think that moving business and commercial applications to the infrastructure regime will be a blow to local authorities. As I have said, we expect only a small number of applications to come forward and for most of them to be dealt with by local authorities.

I was also asked by the noble Baroness, Lady Young, and the noble Lord, Lord Greaves, whether we had any evidence that change is necessary. Over the past four financial years, the proportion of large-scale major applications for commercial and industrial projects taking more than 52 weeks to be decided by local authorities has increased from 8% to 13%, which is quite a significant rise.

We are not proposing to make mandatory this route for developers—it is optional—and there will be a timetabled approach. Developers will have to decide for themselves whether to use the infrastructure regime.

As we set out in our recent consultation document on the new business and commercial category of development, the Government do not consider the case to be strong for one or more national policy statements for this category of development. The consultation closed in January and we are considering the responses to that, including on whether national policy statements should be prepared. I think that we will discuss those later during our consideration of the Bill.

I was asked whether there will be sufficient resources. We are discussing the resource implications with the Planning Inspectorate at the moment.

We also had a question on fracking, which has come up quite a bit through the course of the Bill. It is clearly a developing situation. The information that the noble Baroness, Lady Parminter, gave us was interesting and begins to put a scale on what the ultimate development could be. At present, fracking applications will not be taken out of the hands of local authorities. Any developer will have to consult the local community and local people and the local authority will have the right of determination. A request would have to be made to the Secretary of State to use the infrastructure regime and he would agree to such a request only where the proposal raised issues of national significance. It may be that national significance and fracking will be one and the same but that gives an indication that at present we would expect this to be dealt with locally and local people would have a big say in what was to happen.

I think that covers the questions I was asked. The noble Baroness, Lady Parminter, also asked about fracking and, as I said, gave us very helpful figures from the report. I ask the noble Baroness, Lady Young, whether she would be happy for the letter from my honourable friend Nick Boles to be circulated. If so, I will make it available but if she does not wish that we will no doubt discuss the issues again at a later stage.

[Baroness Young of Old Scone]

Can the Minister respond to an issue raised by a number of noble Lords on the question of when we might hear the Government’s response to the consultation? It is very important for a variety of reasons that that happens before the Report stage. “In due course” does not seem a terribly firm timescale.

[Baroness Hanham]

We have a number of consultations coming through to fruition, so I am not able to stand here now and say that the Government’s response will be available by Report. I hope that we will have an indication of what more we can discuss on this. If the response can be made available then I will certainly see that it is but I am not in a position to say that it will be. I note what the noble Baroness said.

[Lord Jenkin of Roding]

I listened with great care to what my noble friend said on the question of who can make an application to the Secretary of State for an NSIP treatment. I will read very carefully what she said but, having listened, I am still puzzled as to why there is a difference between the existing applications and the new ones for business and commercial. Perhaps I might leave that there. I will read very carefully what she said and decide how we should proceed after that.

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[Baroness Hanham]

I hope I did not speed over the amendment or that the noble Lord, Lord Adonis, had not gone to sleep with excitement over it. I said that the Secretary of State is required to give reasons for his decision when making a direction. That requirement is carried forward in Clause 24. That is why I said I was not able to accept his amendment: it is not necessary.

[Lord Greaves]

Will my noble friend comment on my request for some more detailed statistical information on these matters?

[Baroness Hanham]

If I can get what my noble friend requires, I will make sure he and the Committee get that before Report.

[Lord Adonis]

I beg leave to withdraw the amendment.