Planning Bill

I was dealing first with the issue of the ancillary matters for which consent can be given alongside a development consent order. The noble Lord is now anticipating the second part of this debate, which relates to the exercise by the IPC of legislative powers. These are distinctly differently issues. The first concerns the range of matters, as set out in Schedule 5, over which the IPC has power when granting consent on matters ancillary to a development consent order. The noble Lord raises the point that I now wish to come on to—that is, the ability for the IPC to exercise so-called legislative powers. These provisions are again modelled closely on the powers already available to the Secretary of State in making orders under Section 5 of the Transport and Works Act 1992 and are an essential part of the single consent regime. The issue is whether existing powers that reside with the Government should be available to the IPC. It might be worth taking a moment to reflect on why the 1992 Act and the Harbours Act 1964 contain the legislative provisions that we have incorporated into the Bill, before I come to the issue of safeguards, which the noble Lord, Lord Jenkin, has, quite rightly, raised. In the past, promoters of nationally significant infrastructure projects have found that there are statutory provisions regulating existing infrastructure that they propose to upgrade or improve. In particular, railway infrastructure is frequently covered by one or more private Acts of Parliament, which gave the original promoters of the railway the ability to construct it in the first place. Often the provisions of the existing legislation are inconsistent with proposals to upgrade or improve infrastructure. For example, Network Rail might be under a statutory obligation to provide or maintain a certain infrastructure—for example, a bridge or a footway—that would be incompatible with the provisions to upgrade a railway. It is also commonly necessary when authorising railway projects under Transport and Works Act orders to apply certain provisions of public Acts with suitable modifications. This may be because the legislation in question would not otherwise apply to the projects, but it should desirably do so, or because its application needs to be adapted to give a sensible outcome. Most typically, this has arisen in the context of compulsory purchase and compensation provisions, but it has arisen in other contexts as well. It was with precisely this problem in mind that Parliament previously granted the Secretary of State the extensive powers in Section 5 of the Transport and Works Act 1992, including the ability to make an order that can, "““apply, modify or exclude any statutory provision which relates to any matter as to which an order could be made””," under that Act. The 1992 Act also permits the Secretary of State to make amendments, repeals and revocations of statutory provisions of local application as appear to him to be expedient in connection with an order. The Harbours Act mentioned by the noble Baroness, Lady Hamwee, makes similar provisions in respect of local Acts in relation to harbour developments. Clause 116(5) is based on the wording in Section 5 of the Transport and Works Act 1992 and the similar provisions in the Harbours Act. As we have seen in Part 3, many types of project to which the 1992 and 1964 Acts apply will, in future, be classified as nationally significant infrastructure projects and, as such, will require development consent under the Bill. Clause 32(2) has specifically excluded the 1992 or 1964 Act orders from authorising development of those projects. That will prevent the use of orders under those Acts to amend legislation in relation to such projects. However, it is because we recognise precisely the points raised by the noble Lord, Lord Jenkin, about the powers being exercised by an independent body that we have provided for a number of safeguards in the Bill to ensure that these essential powers are not used inappropriately or without proper scrutiny. First, and most basically, the only pieces of legislation that can be altered are those that the promoter includes in the application. The IPC will not be able to make orders on a subject other than those in the application. Secondly, the form of the draft order will be based on model provisions that will be set out for the Secretary of State by order under Clause 33. These are likely to be similar to the model provisions currently set out in the Transport and Works (Model Clauses for Railways and Tramways) Order 2006. Members of both Houses will be able to scrutinise those model provisions and force a parliamentary debate on them, providing the precise oversight that the noble Lord, Lord Jenkin, seeks to ensure applies. Thirdly, as the Committee will see from the provisions of Clause 116(8), this provision will prevent any development consent order containing provisions that make or modify by-laws or criminal offences. We do not believe that it would be appropriate for an independent body to make such orders. Fourthly, the decision-maker will be able to approve the application and make an order only when that is in accordance with the relevant national policy statement. Any provisions in a development consent order relating to existing legislation will be only those that are in line with government policy—policy for which the Government are fully accountable to both Houses. Fifthly, where the IPC intends to use the powers in Clause 116(5), it will be required first to send a copy of the draft order to the Secretary of State. If the Secretary of State thinks that the terms of the order would contravene Community law or any of the convention rights, he has a power in Clause 117 to direct or require the IPC to change the terms of the order to prevent such contravention. The noble Lord, Lord Dixon-Smith, has tabled an amendment that would delete the safeguard. I presume that it has been tabled as a consequential amendment to his Amendment No. 306A. I say to him that, for precisely the reasons that we have been discussing this afternoon, Clause 117 provides a crucial means by which the Secretary of State can exercise control against any possible misuses of legislative powers that could bring this country into conflict with our international obligations. In general terms, we believe that it is a vital step to ensure that there is thorough scrutiny of any use of legislative powers on any matter. After the noble Lords, Lord Jenkin and Lord Dixon-Smith, and the noble Baroness, Lady Hamwee, have had a chance to look more closely at the matters I have set out, and before Report, I should be happy to discuss the matter further with them. We believe that, subject to transferring the granting of development consent orders to the IPC, there are adequate safeguards. On the specific issue of the IPC’s ability to take into account existing statutory provisions in making its decisions, oversight provisions already exist in respect of both the Secretary of State and Parliament where orders to this effect are being made.