Lord Berkeley
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Lord Berkeley
“(3A) After subsection (2)(b) insert—
“(ba) in the case of an application for an order including provision authorising the compulsory acquisition of—(i) statutory undertakers’ land(ii) local authority land,(iii) National Trust land, or(iv) land forming part of a common, open space or fuel or field garden allotment,the effect of the compulsory acquisition of any such land”.”
Lord Berkeley
My Lords, I shall speak to Amendment 223ZA and the other amendments in this group. I first apologise to the House for bringing these amendments forward comparatively late in the day. I will be as quick as I can although the amendments are fairly technical, with some pretty detailed arguments behind them.
The amendments stem from the issue of the change in responsibility for decision-making from the Infrastructure Planning Commission to the Secretary of State and provide that Parliament, in the form of the House of Commons only, approves the national policy statement series that is supposed to underpin the new regime. There have already been some minor changes to improve the process of planning major infrastructure projects and to streamline the whole process. I suspect that now that the Secretary of State will be the final decider—that is a political decision—rather than an official, many of the checks and balances that were in the original Act could possibly be dispensed with or reduced in scope to try and simplify the procedures.
I know that these points have been made to officials quite frequently over the past few months and that the noble Lord, Lord Jenkin of Roding, moved similar amendments in Committee. When the noble Earl, Lord Attlee, responded to the noble Lord on 19 July, he said:
“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”.—[Official Report, 19/7/11; col. 1319.]
I am not aware of any meetings that have taken place since then, which we probably all regret in retrospect. I will try to go through these various issues as quickly as I can and hope that we can all have a meeting with the Minister between now and Third Reading to see whether any of these particular issues can be resolved. The Government could then bring back some amendments at Third Reading.
To go through them quickly, starting in not quite the right order, Amendment 223ZD refers to Section 127 of the Planning Act, which requires a separate consent to be sought from the Secretary of State in some circumstances when it is proposed to acquire statutory undertakers’ land compulsorily. Again, now that the decision has been transferred back to the Secretary of State, this is probably an element of gold-plating. I suggest it would be sufficient if the Secretary of State was required to take into account the views of the undertakers.
Amendment 223ZE refers to Sections 128 to 132 of the Planning Act, concerning the special parliamentary procedures which are available if there are objections from various organisations and authorities which end up having to go through a Joint Committee of Parliament, which could take quite a long time to resolve. The restoration of the Secretary of State’s decision-making power could allow these provisions to be removed and for it to be left to the Secretary of State to decide whether to grant consent for an application that affects these types of special land holders. The SPP seems to be unnecessarily complex and gold plating.
Amendment 223ZF refers to Section 137 of the Planning Act, which requires a separate consent to be sought from a statutory undertaker or the relevant Secretary of State in some circumstances where the undertaker’s apparatus is installed. Again, the same comments could apply to that. Amendment 223ZG refers to Section 138 of the Planning Act. It inserts an additional test and a consent from the relevant Secretary of State where the undertaker’s rights to use land are being extinguished.
All these separate consents, which will often involve other Secretaries of State as well, fly in the face of one of the main purposes of the Planning Act regime, which was to create as far as possible a single consents regime. There are many examples I can quote but it is well known to your Lordships’ House and Ministers. It seems that the Planning Act provisions set out in these texts go much further than the two key order-making procedures that the Act replaces—TWA and harbour orders. Taking them as precedent there is an argument for saying that there is a bit of gold plating in here.
It is interesting that on 13 October we heard the first IPC decision which was to allow Covanta’s proposed energy from waste project in Bedfordshire. It was made within the statutory timescale of nine months. I am sure we are all happy to see the IPC sticking to its timetable. However, 43 of the 96 plots of land to be purchased are owned by statutory utilities or local authorities and they have made representations about the project. The Planning Act requires the project to be subject to the special parliamentary procedure which could add six to nine months to the programme, which for a big project is actually quite serious. There is an opportunity to put this right and to incorporate some of these amendments to simplify the process and accept that because we now have the Secretary of State making all the decisions he can take all these issues into account.
I will now mention one or two other items as briefly as possible. There are a large number of things that we really cannot go through at this time of night but there is one issue that refers to the construction of these big projects. It means that regulations made under Section 150 of the Planning Act still require the promoters to seek myriad other consents and regulators before they can start construction. The Infrastructure Planning (Miscellaneous Prescribed Provisions) Regulations 2010 lists 42 separate agencies or authorities from which permissions have to be sought and a further 36 for Wales only, which I find quite interesting. Why is Wales so much more complicated? Again, it would be an enormous help to these projects if there could be just one consent which went through the IPC process.
I could spend a lot more time going through the detail of the technical issues. I hope that it might be possible for those of us who take an interest in this to have a meeting with Ministers before Third Reading to see whether we can encourage the Government to make some changes at that stage. I am sure that the noble Lord, Lord Jenkin of Roding, and perhaps other colleagues, would wish to participate fully in such a meeting. I beg to move.
Lord Jenkin of Roding
The noble Lord, Lord Berkeley, has masterfully reduced what could have been a very long speech into one that lasted less than 10 minutes. There has been some confusion about this whole matter. The group of amendments that I moved in Committee on 19 July contained a large number of separate and discrete subjects. The amendments that I moved were concerned primarily with ensuring a seamless transition from the existing IPC procedure to the NSIP procedure. I will not go into the details now but my noble friend Lord Attlee very kindly said that there should be discussions on this. Those who were advising me on this matter did have discussions with officials in the department. The result was that when we approached Report stage, when I asked them whether they had achieved what they were looking for, they said yes. Therefore, I have not retabled those amendments. However, as the noble Lord, Lord Berkeley, has rightly said, there were other amendments, a lot of which were aimed at the proposition that there should be a one-stop shop.
As I understand it—I am open to correction—for some reason the meeting with officials did not take place until last week. There was a misunderstanding about who was seeking to organise the meeting and make sure that proper discussions could take place. I think that the meeting took place on 13 October, with the result that the large number of amendments in the name of the noble Lord, Lord Berkeley, were tabled only on Friday and appeared with an asterisk in this morning’s revised Marshalled List. I had not realised that they would appear on the Marshalled List. I have made inquiries and I have a great deal of information on this issue but most of them are the same as those we discussed on 19 July in Committee, although there are one or two additional ones to which no doubt attention will be drawn at some stage. Whether it was the fault of my noble friend on the Front Bench or of those who have been advising us, the fact of the matter is that there have not been the discussions that there should have been and that my noble friend offered when he wound up the debate on 19 July. Therefore, we are in a slight difficulty on this. I hope that the request of the noble Lord, Lord Berkeley, that serious meetings should be held before Third Reading so that we can, if necessary, retable the amendments, or some of them, at that stage and have them debated will be taken note of.
Lord Berkeley
My Lords, I am extremely grateful to the Minister for a very full response on this group of amendments. It is incredibly helpful to have it on the record. I am sure we will be happy with the response on some of the amendments, but it will certainly be necessary to read in detail what the Minister said to see the extent to which it is worth taking the amendments further to try to simplify the objective of a one-stop shop.
Before I withdraw the amendment, I want to put on record that I do not think any of us were trying to blame the Minister for not having a meeting. We are all guilty, or we are all innocent. We did not have it, and we have a lesson to learn from that. I am sure that, if we find something we would like to discuss before Third Reading, the Minister will, as usual, be pleased to see us. I beg leave to withdraw the amendment.
Lord Berkeley
“Directions relating to railway projects
(1) In the Planning Act 2008 after section 35A insert—“35B Directions relating to railway projects
(1) Subsection (2) applies if a project for the construction or alteration of a railway includes—
(a) development which is within section 14(1)(k), and(b) development which is permitted development and which is to be carried out wholly in England.(2) The Secretary of State for Transport may, in response to a qualifying request, direct in the case of any specified development within subsection (1)(b) that—
(a) development consent is not required for the specific development, or(b) development consent for development within subsection (1)(a) may also be granted for the specific development.(3) A direction under subsection (2) can only be made if the Secretary of State for Transport thinks that the making of the direction will promote the efficient and timely development of the rail network.
(4) Subsection (5) applies if—
(a) a project consists of development which is within section 14(1)(k), and (b) the Secretary of State for Transport thinks that the project, taking into account its size, its potential effect on the railway network and all other relevant circumstances, is not of national significance, whether by itself or when considered with any other related project or proposed project in the same field.(5) The Secretary of State for Transport may, in response to a qualifying request, direct the development to be treated for specified purposes or generally as development for which development consent is not required.
(6) If the Secretary of State for Transport decides to give a direction under subsection (2) or (5), the Secretary of State for Transport must give reasons for the decision.
(7) In this section “qualifying request”, in relation to any development, means a written request which is made by the person proposing to carry out the development and which specifies the development, and—
(a) in the case of a request for a direction under subsection (2), explains why the conditions in subsections (1) and (3) are met; and(b) in the case of a request for a direction under subsection (5), explains why the conditions in subsection (4) are met.”(2) In section 15(5) (development for which development consent may be granted) after “associated development” insert “or development in respect of which a direction has been given under section 35B(2)(b)”.”
Lord Berkeley
My Lords, I assure the House that I shall be quicker than the last group of amendments. This is something that has come up quite recently, when we have tried to see how the IPC and the Planning Act 2008 should be applied to railway projects. It appears that there is no minimum size for railway projects to have to go to the IPC under the Planning Act. The example that has been brought to my attention is the electrification of the Great Western main line between Airport Junction, which is near Heathrow, and Cardiff, where Network Rail may have to demolish certain bridges or do other works. It mainly has the permitted development rights for those works but some of them may creep a few yards outside those rights. It has been suggested that any such creep would need permission through the IPC, so the amendment suggests that it would be nice if the Secretary of State were minded to direct that specific and maybe small developments outside the limits of permitted developments could proceed without any other process, on the basis that they were quite small.
It is not just about the electrification of the Great Western main line. The East West Rail project, roughly between Oxford and Milton Keynes, has found two places where the existing railway has never had permission. One little connection between two lines was built in the last war and nobody can find the documentation giving it permission; it may be with the British Rail Property Board but it has not found it. There is another place where the route that got permission went through a farm and the actual railway went round it; clearly the person owning the farm at the time saw somebody all right and there was a gentle deviation, which of course was no problem 150 years ago. Quite rightly, the promoters of this line want to get the legal situation correct before they start building.
There is a problem here which requires some change to the Planning Act, probably to Section 14. Perhaps the Secretary of State might be minded to bring forward regulations to find a way of getting some smaller railway projects permissions in a process outside of the IPC, which is meant for big projects and takes a long time to do. One can debate whether the problems here are with the Transport and Works Act, an ordinary planning application or something else, but I am sure the Minister will understand them. Maybe he has a better solution. I am grateful to him for the meeting that he arranged some time this summer. I cannot remember when it was now but we had a good discussion about this. What we do not want is for our new Secretary of State for Transport to turn round in six months’ time and say that the electrification is held up for a couple of years because they cannot get permission for a couple of yards’ extension to a bridge and that it has to go to the IPC. On that basis, I beg to move.
Lord McKenzie of Luton
My Lords, my noble friend has brought forward what seems to be an entirely reasonable proposition. I look forward to the Minister’s reply. I add only that I do not know whether the same issue arises in relation to projects other than railway projects. Perhaps the Minister can cover that as well.
Earl Attlee
My Lords, first, I thank the noble Lord, Lord Berkeley, for his work in this area. In answer to the noble Lord, Lord McKenzie of Luton, I have really considered this matter only in respect of railways but I think that noble Lords will find my answers satisfactory. The noble Lord and I did indeed have a meeting on this—ironically, I turned up a few minutes late.
Amendment 223A would amend the provisions of the 2008 Act which relate to railway projects. The amendment seeks to introduce two new powers. The first relates to a case where a railway project contains both development for which consent is required under the 2008 Act and development for which permitted development rights exist. In this case, the amendment seeks—on application from the promoter—to permit the Secretary of State for Transport to direct that the permitted development should be dealt with under the Planning Act along with the development for which consent is required under the Act. I confirm that Section 35 of the Act already provides a power of direction capable of achieving this. A new power is not necessary. The second relates to a situation where development consent is required for a railway project under the 2008 Act. In response to a qualifying request, if the Secretary of State for Transport thinks that the project is not of national significance, he may direct that the development should be treated as development for which consent under the Planning Act is not required.
My DCLG officials have discussed this matter with the Department for Transport and Network Rail, and have agreed that a carefully considered threshold would be preferable to such a power, as it would provide greater clarity on what should be considered major infrastructure. We have therefore agreed that secondary legislation should be brought forward under Section 14 of the Planning Act to set a suitable threshold for rail projects, as suggested by the noble Lord, Lord Berkeley. This will be taken forward by the Department for Transport. With this assurance, I hope that the noble Lord will be prepared to withdraw his amendment.
Lord Berkeley
I am extremely grateful to the Minister for that very positive response. Perhaps I could tell my noble friend Lord McKenzie that it applies only to railways because in other major project areas under the Planning Act there is always a minimum threshold. For some reason, one was not done at the time for railways—everybody thought that railways were big ones, and nobody picked it up. I suppose I should ask the Minister when the regulations will be tabled, but I am sure that he recognises the importance of that for certain projects. If it would help in drafting these things I am happy to meet with him, along with people from Network Rail and other infrastructure managers if they are interested. However, that seems to be a very good way forward and I am very grateful to him. On that basis, I beg leave to withdraw the amendment.
Lord Berkeley
“Hydraulic fracturing of underground rock
(1) Within 12 months of this Act being passed, the Secretary of State shall, by order, amend the Planning Act 2008 as follows.
(2) In section 14(1) (nationally significant infrastructure projects: general), at the end insert—
“(q) the hydraulic fracturing of underground rock”.”
Lord Berkeley
My Lords, this is a completely different subject; it is to do with something which is colloquially called fracking. I raised it very briefly in Committee, but we were short of time then and I am grateful to the noble Baroness for the letters that she wrote, dated 5 September. Since that time I have had further thoughts about it. I have had quite an amazing amount of correspondence from people on the basis of a very short entry in Hansard. That is why I have tabled this amendment tonight, because it needs a different solution.
Very briefly, fracking comprises drilling a hole that is probably several kilometres under ground, pumping in water and unspecified chemicals, and sometimes apparently causing an explosion in the hope that gas will come up to the surface. There have been some pretty horrendous stories from the United States, where this is apparently quite common. There, houses have collapsed or settled seriously while water sources, and therefore water supplies, have allegedly been poisoned. In one instance, I believe that gas came out of the water tap, which must have been quite frightening.
I am not saying that that is going to happen here. However, the press release relating to what I believe is the first attempt at fracking in this country, somewhere near Blackpool, by a company called Cuadrilla Resources—the noble Lord, Lord Browne, an ex-chairman of BP, is apparently its chairman—said that it was excited because that could produce 200 trillion cubic feet of gas. I do not know what that means to the ordinary person in the street but it would be something like 30 years of gas. It all sounds very nice, with mouth-watering profits. But what will happen to the people who might be affected not by just the drilling and the things that I have mentioned, but by extra traffic on the roads, construction work and everything like that?
I know that there would be licensing from DECC and others. But if it were to happen around the country, I do not think that one can expect a local planning authority to have the resources to give something that is pretty technical due consideration, especially when it is balanced by potentially exciting numbers of new jobs and extra revenue from rates. It would be unfair to expect local planning authorities to give it the consideration that it deserves. I believe that the right solution is to make another change to Section 14 of the Planning Act to create a new type of project to include hydraulic fracturing of underground rock —it is not called “fracking” in the amendment.
This new type of project would then be subject to the IPC process but, equally importantly, it would have to have a national policy statement in which all these questions that I have been suggesting and more could be investigated, responded to, debated in the House and consulted on. We would all then have confidence that if this process could be done safely with minimum upset to local residents, it could go ahead on a national basis. If not, it will be in trouble. That is the purpose of my amendment. I beg to move.
Lord Jenkin of Roding
My Lords, it is right that the noble Lord, Lord Berkeley, has brought this matter back to the attention of the House. I have attended a number of lectures and presentations about the development of shale gas. As he said, it is perfectly true that there are substantial areas of shale several kilometres or more under the surface of this country, which could be, in appropriate circumstances, a source of gas for this country. However, a good many people have said to me, “But you would never be able to deal with this properly in a country that is as crowded and as fully populated as the United Kingdom”.
It has happened in the United States—indeed, it is happening on a very substantial scale—but there are wide open spaces there. It is apparently likely to happen in Poland where, again, there are substantial areas where it could be done without interfering with the life of the normal population. But in the crowded areas of western Europe and the United Kingdom, there is a widespread view that this is not likely to happen.
I, too, have had correspondence from a farmer in west Lancashire who has written in terms of being extremely anxious about what is happening. Yes, we had the small earthquake outside Blackpool, which is perhaps a foretaste of what may come. But the real concern is the huge amount of surface activity that has to go on at regular intervals. There is a limit to the amount you can drill horizontally before you need to drill another hole down and have all the equipment and plant at the top to deal with it.
There is quite a movement now to say that there should be a moratorium on this until it has been examined a great deal more thoroughly. I do not know enough about it. The noble Lord, Lord Browne of Madingley, clearly regards it as very important: he is the chairman of Cuadrilla, which is the only company that I am aware of that is drilling so far in this country. One needs to treat this very seriously, as it is a serious prospect. If we could find an acceptable process for recovering very large quantities of shale gas, that would replace a lot of the North Sea gas, which appears to be coming towards the end of its life. At the same time, however, if there are enormous disturbances of local populations and communities because of a huge rash of surface activity, this solution would seem to be worse than the problem.
I do not know what the answer is—whether it is a moratorium, or it is simply sufficient to say that it will come under the NISP process. As I said to the lady who wrote to me, it is going to be jolly interesting to learn what the Minister says in answer to this amendment. All I know is that there is a widespread view that it is not going to catch on in this country for the reasons I explained a few moments ago. I look forward hearing my noble friend’s response.
Earl Attlee
My Lords, I am sure my ministerial colleagues in the Department of Energy and Climate Change will take all relevant matters into consideration.
Lord Berkeley
I am grateful to noble Lords who have participated in the debate. It has been a good debate in which a number of different views have been expressed. The noble Lord, Lord Greaves, made a good point about thresholds. As I raised it in a previous amendment in respect of railway projects, I think it is relevant to learn from something that possibly went wrong before.
I am grateful to the Minister for agreeing to speak to his ministerial colleagues and, if appropriate, to bring this matter forward by secondary legislation. I am therefore pleased to withdraw the amendment.