Growth and Infrastructure Bill

Lord Berkeley Excerpts

Tuesday 12th March 2013 Lords Chamber

Moved by

[Lord Berkeley]

46B: Clause 21, page 22, line 31, at end insert—
“(4A) In section 150 (removal of consent requirements) subsection (1), for the words “consented to the inclusion of the provision” substitute “been consulted by the applicant about the inclusion of the provision”.”

[Lord Berkeley]

My Lords, I shall also speak to Amendment 55, which is grouped with Amendment 46B. I asked for these amendments to be degrouped, because I thought that we would have a better discussion that way, but they have not been, so I am happy to plough on with both amendments unless other noble Lords indicate that they would rather debate them separately.

I would like first to express my gratitude to the Minister for probably several meetings that we have had on various issues relating to the amendments that are in my name and that of the noble Lord, Lord Jenkin of Roding. I am also grateful for the letter that she sent us yesterday with a number of attachments. I was able to study some of them but I am sure that there will be other things that we will want to debate further on.

I turn first to Amendment 46B, which is the same one as was moved in Committee. It is another attempt to provide for the NSIP/DCO regime to be the one-stop shop for all construction-related consents that was initially promised in the 2007 White Paper which led to the Planning Act 2008. It was one of the many proposals to try to speed up the process for getting consents for major projects. I think that one could call the present regime a bit of a bazaar. I hope that that is not insulting to those dealing with it. However, Sir Michael Pitt, of PINS, recently referred to the fact that some 40% of all construction-related consents were outside the DCO regime.

It is not intended and never has been intended by this amendment to cover operational consents, such as nuclear site operating licences or nuclear safety and environmental permissions. However, the point that did not come out in Committee is one of principle. How can it ever be right that an outside body such as the Environment Agency or Natural England has a veto on what a Minister can include in a DCO made by him or her? Section 150 of the 2008 Act gives these outside bodies such a veto. It may have been appropriate in the days of the IPC but it is no longer so when the decisions on the proposed DCOs are taken by democratically elected and accountable Ministers. Surely it is a fundamental principle that no one should be able to dictate what goes into a DCO? They can make representations, as this amendment proposes, but I suggest that, ultimately, the decision must be the Minister’s alone with reference to PINS’ recommendations.

The key point here is that the regime needs to be flexible. It needs to allow the promoter in discussion with the regulators to come up with a proposed consents regime that is right for each individual project. That may require some consents to be wrapped up in the DCO, by the DCO disapplying them, and other consents to be retained separately. However, there is a precedent for this, because disapplying consents by orders—and indeed by Acts such as the Crossrail Act 2008 and the Channel Tunnel Rail Link Act 1996—is not the new concept that observers of the debate in Committee might have been led to believe. It is commonplace in the Transport and Works Act and the Harbours Act regimes. In many cases separate consents is disapplied in exchange for protective provisions for the benefit of the regulator concerned being included in the order, such as provisions requiring the regulator to approve detailed plans of the project before construction starts. These protective provisions often then go on to provide for subsequent monitoring and compliance with them to be enforced by the regulator concerned, such as protective provisions in the TWA orders for the benefit of the Environment Agency.

I suggest that the same approach could be adopted in the case of DCOs. A single consenting regime for the construction phase of large projects can deliver real benefits and efficiencies, which I am sure is what the Government are looking for. For example, in 2008 the Department for Transport decided in response to the application for the harbour empowerment order to authorise the London Gateway port—which is now under construction; there were great pictures last week of what I think is one of the biggest cranes in the world being floated into it—that it was appropriate to disapply through the order much of the Environment Agency’s consenting regime, because it was already the case that the Port of London Authority would have to approve detailed plans of the project before construction could start. It did not make any sense to duplicate this, and add to the promoters’ burden, by requiring plans also to be approved by the Environment Agency. In this case, the EA would be able to feed its comments into the PLA before the plans were approved by the PLA, which had a whole host of environmental obligations in addition to its conservation role. It can reasonably assume that the preconstruction approval process would have been even more complex, taken longer and been more expensive had the EA had full plan approval rights. I think that if one were to ask the promoters of the London Gateway port, they would say just how successful this regime has been. It has probably cost them a lot of money but it has happened a lot more quickly than it would otherwise have done.

--- Later in debate ---

On balance, we consider that we have achieved a proportionate balance between fairness to those parties who might have expected special parliamentary procedure provisions to operate as currently set out in the Planning Act and the need to reform the way in which those procedures work as quickly as reasonably possible. Given these reassurances, I hope that the noble Lord, Lord Berkeley, will be minded to withdraw his amendment.

[Lord Berkeley]

Before the noble Lord sits down, I asked him whether he had any evidence of consultation or anything else on this balance between fairness to the affected people and the need to remove the barriers to growth and the desirability of avoiding delays in respect of nationally significant infrastructure projects. If he has, it would be good for us to have it—if not now, then before Third Reading.

[Lord Ahmad of Wimbledon]

If I may, I will write to the noble Lord about that.

[Lord Berkeley]

I am grateful to the Minister for his comprehensive answer. I shall certainly need to read very carefully what he said. I was pleased with some of his comments; the Government have moved a bit on this. Whether they moved enough for what I believe is right, I shall see when I read the debate. I am still surprised that the Environment Agency, in particular, would not be satisfied with a structure that was apparently successfully adopted for the London Gateway. I am grateful to the Minister for his comprehensive response and beg leave to withdraw the amendment.

Amendment 46B withdrawn.