Planning Bill

My Lords, the House has now emptied and there is just our select band struggling with scrutiny. These are nicely forensic amendments, attached to two crucial clauses. The noble Baroness, Lady Hamwee, expressed this as not wanting to see people, evidence or representations filtered out and I take that point. Noble Lords are seeking through Amendments Nos. 103, 104, 108 and 109 to ensure that people’s views—both written and oral—are taken into account at both the pre-consultation and the examination stages. Amendments Nos. 105 and 110 seek to ensure that the test for deciding which representations to take into account is fair. Amendment No. 107 asks why the Bill does not specify that the NPS is the prime factor for a decision where the Secretary of State is the decision-maker. It is worth briefly stating the context for these amendments. The Bill provides a clear framework for decision-making. The relevant national policy statement, the provisions of Clause 102 and the statutory instrument that the Government will, in due course and after consultation, lay before Parliament will set out that framework. Within that framework, the national interest, as developed in the national policy statement, will be the prime consideration for decisions. NPSs will clearly set out our national policy on and need for infrastructure, but only after they have been consulted on and scrutinised by Parliament. It is clear, however, from Clause 102 that the NPS will not be the only factor, because it provides that the IPC must also have regard to a local impact report from the local authority, to other matters that secondary legislation may set out and, indeed, to any other matters that the commission thinks are, "““important and relevant to its decision””." Even where a particular application for a proposed project is in accordance with the NPS, the IPC could decide that development consent should not be granted, because it would be unlawful or result in the UK being in breach of any duty imposed on it by or under an enactment. The IPC would also still consider issues specific to the application at the local stage, such as detailed layout, siting or access, as well as the environmental aspect. If it decides that the adverse impacts of the development outweigh the benefits, it can, as we know, refuse consent. I have gone into that to reiterate some things that I said on Thursday about specificity. I welcome the opportunity to reiterate that, when an NPS is locationally specific, the IPC is not prevented from considering whether one or more of the factors identified in subsections (4) to (8) of Clause 102 apply. I wanted to put on record again the important point that I made on Thursday. I assure the noble Baroness that I am considering further what she said and looking at whether a clarification to that effect would be helpful ahead of Third Reading. Amendments Nos. 105 and 110 challenge the phrase ““important and relevant”” in Clause 102(2)(d) and in Clause 103(2)(c), which refer to the additional matters that the decision-maker, "““thinks are both important and relevant””," to its decision. These provisions are intended to require the decision-maker to consider matters that, although not identified in the NPS, the local impact report or the regulations prescribed by the Secretary of State, it considers still to be both important and relevant. Those will include issues specific to the application at the local stage, such as detailed layout, siting or access, as well as the environmental aspect. I understand the point that the noble Baroness makes, which is that somehow the Bill requires that the IPC must consider the importance of the matter before considering its relevance. However, that is not our intention. I will explain, as I did in Committee, why the choice of terms is deliberate. We wanted, quite simply, to make the process more accessible. We intend that ““important and relevant”” will be used in a similar way to ““material consideration”” in town and country planning legislation, allowing the decision-maker to identify factors that are material to the decision. We did not want to use ““material consideration”” in the new regime because it is, frankly, rather arcane and often misunderstood. It sometimes hinders rather than assists effective decision-making and has generated a lot of case law. We consider that, by limiting the additional matters to which the decision-maker must have regard to those that it thinks are both ““important and relevant”” to the decision, the Planning Bill is clearer about what should, and should not, be taken into account by decision-makers. Also, it is right that those who are asked to make the decision should be the ones to decide what is important. I have gone back and looked at the sequence of wording in relation to the amendment—““important and relevant”” as opposed to ““relevant and important””. If the noble Baroness looks at Clauses 102(2)(d) and 103(2)(c), she will see that they require the decision-maker to have regard to other matters that are considered ““both important and relevant””. In view of this, it does not matter whether the words ““important”” and ““relevant”” are reversed, as both factors need to be taken into account. That is probably about as sensible a conclusion as we can jointly come to and I hope that it will satisfy the noble Baroness. On written and oral representation and responses to consultation, Amendments Nos. 103 and 108 would make explicit what is implicit in the Bill, flagging up the decision that the decision-maker has regard to all oral and written representations presented in relation to the application. Amendments Nos. 104 and 109 would extend the decision test further still to include responses to pre-application consultations undertaken by the applicants. The noble Baroness seeks assurances that the commission will consider all relevant evidence in its decisions and that nothing will get filtered out. On oral and written representations, I think that she agrees that a distinction needs to be made between the process by which the commission carries out its examination and the factors that must form part of its decision. As a matter of process, we want to ensure that the commission examines and considers all the evidence presented before it in connection with an application for developing consent. The Bill provides for this in a number of ways. The examination procedures ensure that those interested in, or who might be affected by, an application are given an opportunity to submit written representations on that application. That will be followed up by an opportunity to make oral representations, as I described in an earlier debate. The commission will need to consider all those representations to decide which are both important and relevant to its decision. That is sensible; there is a process of reduction here, given the weight of evidence, the job of the commission and the way in which decisions have to be formulated and justified. Clause 102(2)(d) relates to the decision test, which requires the commission to have regard to these representations, among other things. Clause 103(2)(c) has the same effect in relation to decisions taken by the Secretary of State. This requires that the Secretary of State must have regard to any other matters that he or she thinks are important and relevant to his or her decision. In that way, both the commission and the Secretary of State will have regard to the representation submitted as part of the examination process. I hope that noble Lords can see that the commission must examine and give proper consideration to all relevant evidence that it receives, by way of both written and oral representations, except those representations that it reasonably considers vexatious or frivolous. That is a basic requirement of administrative law and one that we certainly do not seek to alter. The decision test itself is a different issue, which is why we need to ensure that it is based on criteria of importance and relevance. This is a sifting issue for evidence. The IPC will have to analyse the evidence that it has received to determine that. I hope that noble Lords agree that, although it is right that all written and oral evidence should be considered in the process of examining the application, it makes sense that only the written and oral representations that are important and relevant to a decision should be considered in the decision test itself, under Clauses 102(2)(d) and 103(2)(c). Responses to pre-application consultation and publicity will be treated differently. The pre-application consultation will provide for a dialogue between the promoter and the community, which will settle some differences and generally improve the proposal for development. That is the intention of creating this new stage of the process. For this reason, we have strengthened Part 5 of the Bill through important amendments tabled last Thursday to require the IPC to have regard to the account taken by the promoter of the responses received to pre-application consultation and publicity when it considers whether to accept the applications. By themselves, those responses are unlikely to be the most important evidence for the IPC to consider because, as I said, the Bill provides for written and oral representations to be received at the examination stage. However, that is not to say that interested parties would be denied the opportunity to give evidence on how the applicant took account of the responses to the pre-application consultation and publicity at the examination stage if they thought that it was sufficiently serious and significant to be brought to the IPC’s attention. The facility is there, but they would need to set out those reactions in written and/or oral representations. Finally, Amendment No. 107 probes the reasons why the NPS is not mentioned in Clause 103 or why the clause does not specify the test for departing from the NPS where the Secretary of State is the decision-maker. The reason for that is quite simple. A Secretary of State will usually take decisions on nationally significant infrastructure cases only because no relevant national policy statement is in place. Therefore, it would not often be possible to have regard to an NPS where the Secretary of State is the decision-maker or to require him to determine in accordance with it. It is a tautologous position. In cases where there is a NPS, it is inconceivable that the Secretary of State would not have regard to his or her own policy. That is what this is all about. As we have not placed a duty on the Secretary of State to determine applications in accordance with the NPS, it does not make sense to specify when he or she can depart from it. I hope that the noble Baroness agrees that that makes a lot of sense.