Localism Bill

Lord Berkeley Excerpts

Tuesday 19th July 2011 Lords Chamber

[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.

[Lord Berkeley]

My Lords, I support the noble Lord, Lord Jenkin, and my noble and learned friend Lord Boyd on these amendments. They are terribly important to help to provide, as near as possible, the one-stop shop for big developments and to give business confidence in the process. As we have said in previous days in Committee, that is one of the most important things: to help get projects developed quickly—and the reason for the 2008 Planning Act and the changes proposed through the Bill.

I shall speak to two groups of amendments in my name. The first is Amendments 166UAA, 166BA, 166 UBB, 166UCA and 166UE, which concern the proposal that the national policy statements should be approved by both Houses of Parliament rather than just the House of Commons. It is interesting that, yesterday, the House of Commons debated and approved the six national policy statements for energy. They have been around for a long time in draft form and been subject to consultation, and it is good that the House of Commons debated them, but I suggest that there is an equal need for this House to debate such national policy statements, because there is a great deal of expertise among your Lordships about issues that are likely to come within the national policy statement framework. It seems equitable that we should debate them too. I am sure that noble Lords will have good contributions to make, and I hope that the noble Lord or the noble Baroness—I do not know which of them will reply—will take that seriously. It should have happened under the 2008 Act, but it did not, so here we are today.

The other amendment in my name, Amendment 166VZB, was proposed to me by Network Rail—which, as the Committee will know, is in the private sector but receives about £4 billion of public money. As the Committee will also know, the Government are rightly putting great pressure on Network Rail to save money. It is involved in a large number of usually quite small investments to create more capacity, meet growing demand and improve network reliability. Of course, many of these investments require planning permissions and other consents to deliver the works effectively on time and within budget. This amendment is designed to facilitate the process and, clearly, to reduce costs.

I am afraid that I have to go into a little of the background on this. Network Rail is the statutory successor in title to the original railway companies and it has fairly extensive permitted development rights, or PDRs, which confer the necessary planning authority, subject to prior approval in some cases, for works. However, it is often necessary to seek additional powers to supplement those powers both for related works outside the existing rail corridor and to acquire land and rights over land.

The methods for seeking authority for railway works has historically been by means of Private Bills—which we do not often see these days, other than for very big projects and then they tend to be hybrid Bills—and more recently under the Transport and Works Act 1992. In England, the procedure is currently also covered by the Planning Act 2008, which requires consent for developments that are, or form part of, a nationally significant infrastructure project, or NSIP, to be authorised by a development consent order. An NSIP is a project for the construction or alteration of a railway, but not where the alteration of a railway is authorised by permitted development rights. Of course, there is no national policy statement for railway projects at the moment. Whether there will be in the future, we do not know, so further guidance is not available. Therefore, many of the Network Rail schemes will not be covered by PDRs, and it will need to seek development consent in addition to using existing PDRs.

It is interesting that, for example, Network Rail is, as noble Lords will know, in the middle of a project to electrify the Great Western main line. It involves demolishing a number of bridges, some track widening and lots of little bits of work over 100 miles or so of track—two track or four track. Discussions with the IPC and the Department for Transport have revealed some questions about the interpretation of the rules in relation to the delivery of rail projects. Most of them are covered by PDRs but some elements of this scheme may not be. They may include a mixture of works authorised by PDRs and those to be authorised in other ways. Where works are covered by PDRs, the Planning Act is not clear whether they can be, or whether they have to be, included in a development consent application as part of an NSIP. That is causing delay and quite a lot of concern.

Network Rail clearly needs flexibility. If it takes, say, two or three years to go through a process between a design being sufficiently advanced and the start of construction, that is going to cause a lot of delay to its projects. Experience to date suggests that the time to be allowed for the full IPC process, from consultation to authorisation, is approximately 30 months. Whether the process would be quicker with a hybrid Bill, as is proposed for the new high-speed line, I do not know. I suspect that it is a bit quicker but no one is suggesting a hybrid Bill for the Great Western.

A procedure carried out by means of permitted development rights can be completed within a matter of weeks where proposals are notified as a matter of policy. Where prior approvals are required, it may take a little longer, but it is also a lot quicker.

There is also the question of minor works. There is no threshold for rail schemes requiring development consent. Where PDRs do not exist, minor works such as alterations to structures, which are not nationally significant, might be caught up in the definition of an NSIP and therefore require consent. Therefore, this all needs clarification.

I am pleased that Network Rail welcomes the changes that the Localism Bill will make to the planning Act, but there need to be further discussions between the Department for Transport and Ministers to clarify some of the issues which I raised and which this amendment would help to satisfy. I look forward to hearing what the Minister has to say in response. I am happy to have more discussions, but I hope that they will take Network Rail’s concerns seriously in this regard.

[Lord McAvoy]

My Lords, I support my noble friend’s amendment. I declare an interest in that my eldest son, Thomas, is a ganger with Network Rail; he is not in the high echelons of management, but he is a ganger with firsthand experience of working on the line, doing maintenance and improvements. No one wants a situation in which Network Rail, or any organisation, can disrupt public services by not fulfilling its tasks properly. Carelessness can lead to other things. Nevertheless, Network Rail, like many other companies, needs the process to be transparent and speedy. I know that it is difficult to get planning applications—or indeed any applications, such as applications for improvements to the rail network—processed speedily, but speed is needed. Anything that improves that must be a good thing. I hope that the Minister will be able to give my noble friend a positive response.

--- Later in debate ---

I have spoken to the key amendments that I wanted to highlight. I support my noble friend Lord Berkeley's amendments. I understand and support the thrust of what the noble Lord, Lord Jenkin, is doing with his amendment. I believe that the point covered by the noble Lord, Lord Greaves, in Amendment 166UAB is probably already catered for—but the Minister may put me right on that. This seems to be a sensible collection of amendments. They will make sure that we have the proper transition from the current arrangements to the future. I hope that the Minister will be able to give comfort to noble Lords who tabled them.

[Lord Berkeley]

Perhaps I might follow up something that my noble friend Lord McKenzie asked the Minister about the timetable of national policy statements. As I said earlier, the energy ones were published and agreed yesterday, which was great. We have heard nothing yet on ports, airports and interchanges, which will come out of transport. We do not even have any dates for their publication. Perhaps the port statement is in draft form—I am not sure—and there are probably other NPSs coming from other departments. I do not expect an answer from the Minister now, but it would be good to have a letter with an expected timetable. At the moment, industry sees the prospect of several years of vacuum with no policies to work to. It would be very helpful to have firm timetables.

[Earl Attlee]

My Lords, this large group contains a range of amendments that seek to amend various provisions in the Localism Bill that amend the Planning Act 2008. The noble and learned Lord, Lord Boyd of Duncansby, has not moved his amendment, which addresses a drafting flaw in the Localism Bill, because government Amendment 166VE deals with it. I am grateful that the noble and learned Lord did not worry us with moving his amendment.

The noble Lord, Lord McKenzie, asked when the full NPS will be available. The noble Lord, Lord Berkeley, asked about the ports and the timetable for other such important NPSs. I will write to noble Lords on that and on any other technical issues that I do not cover in my response.

My noble friend Lord Jenkin has tabled a range of important technical amendments that aim to ensure that the new major infrastructure planning regime is as efficient as possible. These address matters such as: land subject to compulsory purchase, Amendments 166D, 166E, 166L, 166M 166N and 166P; notification where a deadline is extended, Amendments 166G and 166H; the power to amend an application after submission, Amendments 166J and 166K; the power to waive compliance with regulatory requirements, Amendment 166Q; the application of Section 150, Amendment 166R; offences, Amendments 166S and 166T; transitional provisions, Amendment 166U, which was also spoken to by the noble and learned Lord, Lord Boyd of Duncansby; judicial review, Amendment 166V; discharge requirements, Amendment 166W; and the decision-making period, Amendment 166VCA.

I can assure my noble friend that, as he suggested, we share the same goals. It is vital for the future of the UK that the major infrastructure planning regime must be as efficient as possible. If my noble friend will permit, I would like to consider the points he has raised in more detail and consult him and others between now and Report to see whether anything further can be done on the issues he has raised. With that assurance, I hope he will not move these amendments at the appropriate point.

Amendment 166KA, tabled by the noble Lords, Lord Greaves and Lord Tope, would remove certain types of development usually connected with underground projects from the definition of associated development in the Planning Act 2008. The ability to grant consent for associated development is critical to the operation of the single consent regime. The amendment would require developers to seek multiple planning consents for major projects, adding to the cost and complexity of making the application, which is precisely the situation we are trying to avoid, so I hope the noble Lords will not pursue this amendment too far.

Amendment 166UAB, which is also tabled by my noble friends Lord Greaves and Lord Tope, seeks to require a national policy statement to address carbon emission targets and national policy objectives on assessing and adapting to climate change. I fully sympathise with my noble friends’ concerns regarding climate change and carbon reduction, but the requirements of the Climate Change Act 2008 are binding on Ministers in the exercise of any of their functions, including national policy statements. Moreover, the Planning Act 2008 already places significant requirements in relation to climate change on Ministers when carrying out their functions in relation to national policy statements. I therefore do not believe this amendment to be necessary.

Amendments 166UZA, 166UZB, 166UAA, 166UBA, 166UBB, 166UCA and 166UE in the name of the noble Lord, Lord Berkeley, and Amendments 166UA, 166UB, 166UC and 166UD in the name of my noble friends Lord Greaves and Lord Tope, seek to provide for positive approval of national policy statements by both Houses of Parliament and remove the 21-sitting day timetable for consideration.

The 2008 Act provides both Houses with a full scrutiny role in relation to national policy statements and indeed this House has already undertaken a very detailed scrutiny of the first of them, including those on energy and waste water. This role will not change. The noble Lord, Lord Berkeley, asked about debates on NPSs. The 2008 Act provides for a Committee of either House to scrutinise national policy statements and, if they recommend it, for a debate to be held on the Floor of the House. The key point to note is that the Localism Bill supplements this with a requirement for approval in the other place.

National policy statements are policy documents, not legislation. This House has never had a role in approving policy documents and it does not automatically follow that because the Localism Bill provides for the other place to have such a role, this House should also. If both Houses had the authority to approve a national policy statement, but one were to reject it and the other approve it, this would call into question the legal standing of the document and any planning decisions that were to rely upon it. This could lead to extensive delay to both the national policy statements and the provision of vital infrastructure.

The discretion to approve a national policy statement using the negative procedure and the introduction of a timetable of 21 sitting days are intended to ensure that the approval process is both efficient and flexible. Their removal could ultimately result in further delay. It is important to note that the DPRRC raised no concerns about these provisions. Given this, and the explanations I have given, I hope that noble Lords will not press their amendments.

Amendment 166VZA, in the name of my noble friend Lord Jenkin, and Amendment 166VZB, in the name of the noble Lord, Lord Berkeley, would amend provisions of the 2008 Act which relate to electricity lines and railway projects respectively. I have considered these proposals carefully and concluded that in both cases the amendments could be effected by amending Part 3 of the Planning Act. The procedure already exists in secondary legislation to achieve this and therefore there is no need to adopt these amendments. On electricity lines, I would of course be delighted to facilitate a discussion between my noble friend Lord Jenkin and colleagues in the Department for Energy and Climate Change. On railways, I would be equally happy to meet the noble Lord, Lord Berkeley, and my officials in the Department for Transport to discuss the process further. In short, if there is a problem that needs to be ironed out, I am up for it.

Government Amendments 116VA, 116VB, 116VC, 116VD and 187A extend the new power in Section 116 of the Bill to Wales to cover non-devolved matters and provide greater flexibility in the acceptance of applications.

I hope that I have given sufficient reassurance to the Committee on the matters that concern noble Lords to allow them to withdraw the amendments they have proposed, and I hope the House will agree to the government amendments in the name of my noble friend Lady Hanham when the Question is put.