Committee stage in the Lords
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The Parliamentary Under-Secretary of State, Department for Communities and Local Government (Baroness Andrews)Labour- Quote
- My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill. Moved accordingly, and, on Question, Motion agreed to. House in Committee accordingly. [The LORD SPEAKER in the Chair.] Clause 111 [Development for which development consent may be granted]:
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Baroness HamweeLiberal Democrat- Quote
- moved Amendment No. 337:
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Lord Jenkin of RodingConservative- Quote
- Grouped with these amendments is the Question whether Clause 114 should stand part of the Bill, tabled in my name. I should say straightaway that I have tabled this in order to give the Minister an opportunity to clarify and explain the purpose of the new procedure for a legal challenge against a decision made by the IPC. I referred in earlier debates to the process for judicial review, which has become such a notable feature of our constitutional arrangements, in marked contradistinction to what was happening as recently as 20 years ago, and I am puzzled why this process is thought more appropriate than the customary statutory challenge made under Section 288 of the Town and Country Planning Act 1990. That has seemed to be a reasonable and effective method of challenge and I cannot believe that resorting to judicial review will necessarily expedite such actions. The clause prescribes as the deadline for bringing a judicial review a short period of only six weeks from the day on which the order or statement of reasons for making the order is published. That compares with the period of three months allowed under the statutory challenge, which of course is based on normal civil procedure rules. I suggest to the Minister that the shorter period will encourage more people than is the case at present to pursue judicial review against decisions taken by the commissioners in order to get through the gate before it closes. I cannot believe that that is what the Minister wants. This is a new area of uncertainty which has been introduced into the system and I am puzzled why the Government have done it. I hope the Minister will be able to explain the position.
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- Baroness AndrewsLabour
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- This is a fascinating group of amendments and I am pleased that we are kicking off with it in our debates today. I shall respond first to Amendments Nos. 337 and 338, tabled by the noble Baroness. They would remove the provision in Clause 111 for an order granting development consent to be able to cover associated development as well. In effect, that would mean that an order could grant development consent only for development that is or forms part of a nationally significant infrastructure project, as described in Clauses 14, 30 and 31. The noble Baroness made it clear that she is concerned about the scope of this provision. She feels that it is inappropriately wide and seeks reassurance that it will not be misused or used inappropriately. We are seeking to ensure that the new regime has clear boundaries and does not allow unrelated development to sneak through the back door. That is the burden of it. I understand the noble Baroness’s concerns, but before I address her specific questions I shall say a little about the scope of the clause. Removing the provisions, as the amendments propose, would have serious consequences. Essentially, it would mean that development that was not part of a nationally significant infrastructure project but needed to facilitate it—for example, highways works and works in mitigation—could not be granted development consent by order. Any associated works would therefore need planning permission through the TCP system as it stands. As has been described in previous debates in Committee, the whole point of the Planning Bill is to make a single process out of what is now a disparate, contradictory and awkward one. The amendment would take us away from the spirit of the Bill by introducing another fragmentation. It would be inefficient and completely contrary because the Bill seeks to rationalise the various different regimes that currently exist and introduce a new single consent regime so that developers could make a single application. Granting consent for associated works is therefore completely consistent and a logical element in that overall process. We want to ensure that a promoter can combine the “core element” of a nationally significant infrastructure project together with associated works in a single application. Such associated works might include ensuring that the new infrastructure is connected to other national networks, for example, or other development which is needed to allow the infrastructure to operate as intended. I stress that associated works do not include the construction or extension of housing. I can reassure the noble Baroness that, to ensure that this provision is not misused, the Secretary of State will set out guidance on what should or should not be considered an associated work which could form part of an order granting development consent. Where doubt remains, the IPC—which we know is independent and impartial—will decide the issue based on the guidance set out by the Secretary of State. If the IPC does not believe that the proposed works count as associated development, they will not be included in an order granting development consent. I hope that I can answer categorically the two questions raised by the noble Baroness, of which she was kind enough to give me forewarning. She asked whether consent can be all or nothing. She is right up to a point. The IPC can grant consent on a different basis from that put forward by the developer—for example, in mitigation. If the IPC decides that the alignment of a runway needs to be corrected, to take an exaggerated example, it will have the flexibility to do that. That flexibility is extremely important. The IPC will be able to take a middle way, shall we say, between all or nothing. It will also deal with associated development at the same time as part of the attempt to streamline the process. On the question of whether the guidance will be limited to necessary or associated development, the answer is that it must be necessary, because the guidance itself must be relevant. It is unlikely that it will have too broad a scope and take itself into fields that are not necessary. It will have to cover that point in the kind of criteria that it works through. As the noble Baroness will know, guidance is found in Clause 111, in Part 6. I hope that that takes care of both those details.
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- Baroness HamweeLiberal Democrat
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- Before the Minister moves on, the part that puzzles me is her reference to something like “highway required for the project to be able to function”. I understand that a road extension or whatever may be needed for the project to function, but should that not be part of the original application? One reason why I am concerned about this is the danger, if it is not included in the original application, of consultation on it not being adequate because people will not have their minds directed to it.
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- Baroness AndrewsLabour
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- The noble Baroness is right in that respect. The purpose of a single consent regime is to present an application that is coherent and sustainable and takes into account all the implications, unlike some of the applications we have had where you find yourself further down the line looking at highway requirements that are significant but were not addressed in the original application.
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Lord Dixon-SmithConservative- Quote
- I hesitate to interrupt, but would the Minister mind answering a question about a different subject? It is related to associated development, and I have raised it with her before. I am talking about carbon dioxide pipelines, and the reason for raising the subject once again is that over the weekend there were reports that some generating companies were considering putting in applications for further coal-fired electricity generation across the country. That is fine. All these generating stations are to be carbon-sequestration compatible, whatever that may mean; we do not know if carbon sequestration will either work or be economical if it does work. We know it is technically possible, but that is the limit of our knowledge at the moment. Those pipelines, if they are part of the original application, will undoubtedly, under the Minister’s explanation, be associated development and will cause no problem. Associated development they may well be, though. But because no one knows whether this will work, and may not know for a decade, would that be considered part of the original application when it eventually arose, or would it have to be a completely separate application? For the sake of those who might be thinking these things through, it is essential to have that defined so they know what ground they are standing on before they start on this particular type of enterprise.
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- Baroness AndrewsLabour
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- The noble Lord has partially answered the question. As he says, we do not know at the moment what technologies are going to be needed to carry this form of whatever one calls it. So long as that is the case, it is difficult to be categorical. However, I feel sure that the principle would apply that, if we have the technology and we can do this, which would be very useful, then in due course that would count as “associated development” because it would be part of making the infrastructure itself function. I would rather take advice on this from my colleagues in BERR and write to the noble Lord, to see if we can give him a more specific answer.
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- Lord Dixon-SmithConservative
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- If I may clarify the question, it is not so much whether the pipelines would be associated development but whether, if it was some years later, they would require a completely separate application.
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- Baroness AndrewsLabour
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- I do not know the answer to that; it would depend a bit on the scope of the original application. I should like to think about that because there are some significant implications there. I turn to the issues raised by the noble Lord, Lord Jenkin. We have had a related debate on the role of judicial review at different points in our consideration of the Bill and I am sure that he will remember the arguments that we have put forward. He has asked me a slightly broader question: why, as I understand it, we are not providing for an appeal mechanism under the other arrangements that we have. The answer is that we have created a process that is very thorough and is iterative at all stages. When we come to the decision that is made by the IPC, we do not think that at that point it makes sense to create an opportunity for a right of appeal that would reopen the process and would involve the appellant body standing in the shoes of the original decision-maker. Throughout this process we are trying to create something that is rather different from anything we have had before, and which is thorough and robust. We believe, therefore, that judicial review is the best and most appropriate step after that. The noble Lord also asked about the timetable. He will know that one of our concerns is about creating a process which can be trusted because it is transparent and thorough but which also removes unnecessary delays. The six-week deadline for filing a claim form is, I believe, reasonable, because it will come at the end of a process which has been unusually thorough and different from what we have in the planning system at the moment. We are intent on making sure that those processes are fair. The six-week time limit for putting in a claim will not come out of the blue; there will be issues which will have been very well rehearsed and attitudes which will have been taken, and I think that the timetable is appropriate. However, it is not an entirely new provision: the six-week time limit for challenges is similar to that which currently exists for statutory challenges to certain development control decisions taken by the Secretary of State under the TCPA. We are not creating a new process, as there is a relevant precedent. Finally, government Amendments Nos. 344 and 345 will remove the need for orders granting development consent to be made under the seal of the commission or the Secretary of State. On reflection, we do not think that orders need to be made under seal, and SIs are not generally made under seal. As such, we do not think it would be sensible to require this in the Bill. However, it remains the case that the IPC may enter into deeds which, by law, still need to be made under seal in the case of a body corporate. The Bill therefore retains the provision relating to seals in paragraph 23 of Schedule 1. Amendment No. 345 will also remove the requirement for interested parties to be sent a copy of the order granting development consent. We believe that that would quite simply be an unnecessary expense; interested parties will already receive a copy of the decision letter and statement of reasons under Clause 112.
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- Lord Jenkin of RodingConservative
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- Before the noble Baroness, Lady Hamwee, withdraws her amendment, as I suspect she may, let me say that I would like to study what the Minister has said. I am not wholly convinced by her arguments; she rattles along at a fair old pace, and although I try to hear everything she says, it is right that I should study what she has said in Hansard. We may need to come back to this on Report.
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- Baroness HamweeLiberal Democrat
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- I, too, will study what the noble Baroness has said. She agreed with my points, which has led me to the conclusion that highways, to take one example, would be part of the original application, so I do not see that it is associated development. However, I think we can pursue this outside the Chamber if I am still getting it wrong. I beg leave to withdraw the amendment. Amendment, by leave, withdrawn. [Amendment No. 338 not moved.] Clause 111 agreed to. Clause 112 [Reasons for decision to grant or refuse development consent]: [Amendments Nos. 339 to 341 not moved.] Clause 112 agreed to. Clause 113 [Orders granting development consent: formalities]: [Amendments Nos. 342 and 343 not moved.]
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- Baroness AndrewsLabour
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- moved Amendments Nos. 344 and 345:
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- Baroness AndrewsLabour
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- moved Amendment No. 347:
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- Baroness AndrewsLabour
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- moved Amendments Nos. 348 and 349:
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- Baroness AndrewsLabour
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- moved Amendments Nos. 352 to 354:
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- Baroness AndrewsLabour
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- moved Amendments Nos. 355 to 357:
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Lord Patel of BradfordNon-affiliated- Quote
- I beg to move that the House do now resume. Moved accordingly, and, on Question, Motion agreed to.
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