Planning Bill

My Lords, I shall speak to Amendments Nos. 121A to 121G and 121J in this group, which cover what we might call the other end of the spectrum from the amendments tabled by the noble Lords, Lord Jenkin and Lord Dixon-Smith, on the subject of by-laws and what is and is not included. It would be helpful if I divided my remarks into three groups. The first refers to Amendments Nos. 121A, 121B and 121G, which refer directly to by-laws. They would allow development consent orders made by the IPC to include any necessary provision in relation to the making of by-laws by the promoter and the imposition of criminal offences, as was originally proposed when the Bill was introduced in another place. If accepted, Schedule 5 would need to be amended. Clause 119 would still apply with the necessary modifications in cases where the IPC was proposing to include in a development consent order provision in relation to the making of by-laws and/or the imposition of criminal offences, so giving a supervisory role for the Secretary of State, which is similar to the role he already has under Clause 119 in relation to legislation. Let us take the example of a typical Harbours Act or Transport and Works Act order. Promoters virtually always need to obtain provisions as to offences, such as offences for obstructing the construction of the works authorised by the order and offences tied with the incorporation in the order of the various clauses Acts, and they often obtain by-law-making powers. To say that in future promoters will still have to seek Harbours Act and/or Transport and Works Act orders for these provisions seems odd if the Government are trying to create the unified consents regime that the Bill gives us. It will mean that development consent orders will achieve less than Harbours Act or TWA orders. There is the safeguard, if one is thought necessary, that Clause 117 could be expanded to give the Secretary of State a role in relation to a proposed development consent order containing provision for offences and/or by-laws. To me, by-laws are tertiary local legislation. In this group, we have already talked about the IPC, which will have extensive powers in respect of primary and secondary local legislation, yet apparently no powers in relation to tertiary legislation. I will be grateful to hear what the Minister has to say because by-laws are very important to the operation of the kinds of projects contemplated in the Bill, such as transport systems, large ports or harbour schemes. The first thing I need to say about my next set of amendments is that there is a mistake in Amendment No. 121D, which probably makes it even less intelligible than some noble Lords thought it was already. It should read: "““Page 157, line 15, after ‘specified’ insert ‘dredging’””." Unfortunately, line 16 also contains the word ““specified””. The amendment makes sense when it relates to line 15. I told the Public Bill Office, Ministers and officials, and my remarks will be based on the amendment relating to line 15, not line 16. The amendment is to do with Schedule 5 and what may be included in a DCO. It needs to be made clear that a development consent order can do things such as authorise dredging operations and the alteration and maintenance of dredging, as well as excavations, mining, quarrying and boring operations. I could go on defining these things in great detail, but one often finds that if one does not get the definition right, it is not possible to do something that is necessary. Finally, it authorises the alteration, repair, maintenance, demolition and removal of other works in addition to transport system works as well as their initial construction and provides for disputes to be resolved by other means in addition to arbitration, because arbitration is only one way of resolving disputes. There needs to be a power to maintain these works. I know it is referred to in Clause 118(4) but experience in operating transport and works regimes since 1993 shows that it is hard to persuade officials to include in orders provisions that are not explicitly set out in Schedule 1 to the 1992 Act, which is the equivalent of Schedule 5 to the Bill. I suggest that getting Schedule 5 right is important, otherwise we will go back to the situation that I described when speaking to my previous set of amendments and it will be necessary to make a transport and works application in parallel with this process. There are also problems in relation to what is in Schedule 1 to the TWA and the need to include waterways, roads, watercourses, buildings and other structures in these things and any other civil engineering. I am sorry to have to go into so much detail, but it is important to get these right. I hope that the Minister can help me with that. There is experience in the London Gateway Port Harbour Empowerment Order 2008 and a need for these powers. It is important we get this right before we finally put the Bill to bed. Finally, Amendment No. 121J changes the basis on which the IPC in a development consent order can disapply particular regulatory regimes specified in regulations that otherwise would apply in parallel to any requirements for further consents and approvals imposed by the order itself. Instead of requiring the consent of the body which would otherwise operate the particular regulatory regime, the IPC could disapply it where the IPC had included in the order alternative appropriate provisions for the protection of the relevant body and the interests that it represents. We are here referring not to operational consents, but to consents required under existing legislation in relation to the construction of works that could serve no useful additional purpose if they were to apply alongside the requirements of a DCO. Examples are harbour authority works and bridging licensing powers, such as the PLAs in Sections 66 to 73 of the Port of London Act 1968 and the Environment Agency's main river-works consenting mechanisms in the Water Resources Act 1991. It is very important that those are considered alongside the other provisions in this part, and I very much look forward to hearing my noble friend's comments on these rather detailed but, I suggest, important matters.