Growth and Infrastructure Bill

Lord Faulkner of Worcester Excerpts

Tuesday 8th January 2013 Lords Chamber

[Lord Faulkner of Worcester]

My Lords, I am pleased to follow the noble Lord, Lord Burnett, on one particular theme: the question of democratic accountability and the role of Parliament. I will speak briefly about Clauses 22 and 23, which deal with special parliamentary procedure. I believe that I am right in saying that only the Minister in her introductory speech referred to these clauses in the debate this afternoon. I do so as one of three of your Lordships’ representatives who have served from last October, meeting virtually every Wednesday, on the Rookery South Joint Committee, with three Members from another place. We have considered petitions against an application from a company called Covanta to build a resource recovery facility—a waste disposal incinerator and power station generating electricity from burning refuse—in a former brickyard pit in Bedfordshire. Although we have one further meeting scheduled, on 16 January, the conclusions of the committee have been made known to all the parties, and I am therefore not breaching any confidences in speaking today about our deliberations.

My starting point is that if this Bill is enacted as it stands, there will be no more Joint Committees operating in the way that we have done on Rookery South, and as a result there will be significantly less parliamentary scrutiny in future.

SPP—special parliamentary procedure—was introduced by the Statutory Orders (Special Procedure) Act 1945. It is an additional procedure that must be followed when compulsory purchase is authorised under various enactments. It is triggered when what is called special land—local authority, statutory undertaker, commons and open spaces, and National Trust inalienable land—is acquired and the landowner objects.

SPP is not triggered very often, and in the majority of cases when it is, the orders are unopposed in Parliament. Since 1990, only three SPP orders, of which Rookery South is one, have been opposed and have had to be dealt with by a Joint Committee. Since 2000, 10 other SPP orders have gone through without opposition.

The 2008 Act set out a new procedure for authorising nationally significant infrastructure projects. This is achieved by the making of development consent orders by the Secretary of State, following examination of the order by an inspector. These can include powers of compulsory acquisitions, and, like CPOs under the 1981 Act, are subject to SPP if they allow the acquisition of special land.

Clause 22 of this Bill repeals Sections 128 and 129 of the 2008 Act. Subsection (1) will ensure that SPP will no longer apply in the case of the acquisition of local authority and statutory undertakers’ land. That is why the Rookery South order would not have been subject to SPP had these proposed repeals been made earlier.

Clause 23 in this Bill applies to all orders—not just development consent orders—that remain subject to SPP. So it will apply not only to nationally significant infrastructure projects but also, for example, to road schemes where public open space land is acquired compulsorily using the 1981 Act procedures.

When a compulsory purchase order or a development consent order provides for the compulsory acquisition of special land, the current position is that if certain conditions are met, the order is referred to special parliamentary procedure. Clause 23 will change that to the extent that in the case of a CPO of local authority, statutory undertaker or National Trust land, SPP will be triggered only if the owner objects to the acquisition of the land. As the law stands, SPP could be triggered if the owner objected to the order even if they did not object to the acquisition of the land.

The powers of Parliament, however, once the SPP process is under way, will change as a result of this Bill. The owner—or anyone else with sufficient interest—would still be able to petition against a CPO or DCO that was made subject to SPP and which authorised the acquisition of special land, but the scope of such a petition would be limited to that part of the order which authorised the compulsory acquisition of the land. As the law stands, a petition could be made against the whole order or any part of it.

The powers of the Joint Committee which would consider the order if there were petitions will be similarly limited. The committee could decide that the order be amended so as to remove or amend the power to acquire the special land, but it could go no further. At present, the committee could decide that the whole order should not proceed, or could amend parts of the order unrelated to the acquisition of the inalienable land. Similarly, the powers of each House to annul the order by resolution will change. Instead of being able to resolve to annul the whole order, the Houses will be able only to resolve to annul that part of the order which authorises the acquisition of the special land.

I apologise to your Lordships. This is a complicated point. I can see some noble Lords nodding, so I think they are following this. Had those changes already been made, it could have made a considerable difference to how the Rookery South order deliberations were conducted. I say “could have”, because the Joint Committee by majority vote decided that the promoters had no case to answer on the main petition lodged by the local authorities. The noble Lord, Lord Geddes, and I both took the view that they had a case to answer. We both felt that it was necessary for the need for the new resource recovery facility to be proven, given convincing evidence that there was already sufficient capacity to deal with waste at existing plants within the stated catchment area.

The committee was told that the new facility would generate more than 1,100 heavy lorry movements per day, despite the fact that it is to be located adjacent to the Bedford to Bletchley railway line, and a feasibility study had demonstrated that a private rail siding could be constructed to bring in the waste by rail. Members of the committee saw the location for the rail access when we spent a day visiting the site and the surrounding area on 28 November. Unfortunately, as I said, the noble Lord, Lord Geddes, and I were not able to convince a majority of our fellow members of the Joint Committee that issues needed to be considered. It is important that these matters should be subject to parliamentary scrutiny. In future, if Clause 23 remains in the Bill, that opportunity will be lost.

I would be grateful, therefore, if the Minister could advise me whether petitioners will still be able to raise issues which are not directly related to the acquisition of the land but are to do with the public interest. It has always been a central tenet of compulsory acquisition law that the applicant for the powers must demonstrate that there is a compelling case in the public interest for the land to be acquired compulsorily. Those words are contained in Section 122(3) of the Planning Act. In order for petitioners to demonstrate that there is no compelling case in the public interest, they should be able to bring evidence to bear about the benefits of the proposals as a whole, compared with the injury that they will suffer when losing their land.

I also hope that the Minister will be able to answer the points made by the Open Spaces Society, which is particularly concerned about Clause 22. It points out that the clause provides that, where an open space is threatened with a DCO and compulsory purchase and there is no suitable exchange land, or the exchange land is deemed too expensive, the Secretary of State for Communities and Local Government may himself decide that the DCO need not be subject to SPP. As the Open Spaces Society states in its submission, Parliament will no longer have the final say; its power is relinquished to the Executive.

Open space is any land,

“used for the purposes of public recreation”.

Therefore, according to the Open Spaces Society, the provision potentially puts at risk all open spaces enjoyed by the public, formally and informally. They include the many acres of land registered as access land under the Countryside and Rights of Way Act 2000.

Special parliamentary procedure is rarely invoked, so why do away with it? It is there as the final safeguard when people’s rights over open space are threatened, and when wider consideration needs to be given to major planning projects. I hope that the Minister will be able to provide good reasons why this change is needed. I am sure that we will return to this issue in Committee.