Planning Bill

My Lords, here, as so often on the Bill, my noble friend Lady Andrews and I feel ourselves pulled in two contradictory directions. It would be good if we could divide soft cop and hard cop between us but, alas, the Government cannot divide our personality in the way that the Opposition can. I fear that we both have to be sensible, moderate cops on this, as on all issues, and I hope that, on this one, we are. My noble friend Lord Berkeley wants considerably to strengthen the powers to be given to the IPC, because he believes that they are inadequate. Noble Lords opposite say that they are too great. That reinforces me in my view that we have probably come out with a reasonably sensible centre course. I hope that I can explain to the House why that is the case, and seek to persuade the House that the provisions are sensible, moderate and necessary, if the IPC is to work effectively to deliver the single consent regime that is the Bill’s objective. I start with the amendments of my noble friend Lord Berkeley, Amendments Nos. 121A to 121J, which, among other provisions, provide that development consent orders should be able to create by-laws and offences. I appreciate my noble friend's argument that, for some promoters, notably in the case of harbours and rail schemes, that would occasionally mean that the single consent regime under the Bill could not provide all the powers that they would want unless the additional powers he proposes were given to the IPC. However, Harbours Act orders and Transport and Works Act orders differ from development consent orders in that, as the noble Viscount rightly said, we are transferring responsibility for development consent orders from the Secretary of State to an independent body. We do not believe that the creation of by-laws and offences is an appropriate function to be delegated to an independent body. Ordinary people would find it difficult to accept that criminal offences could be created, and fines imposed, on the authority of a body that is neither Parliament nor the Secretary of State. We are not denying that by-laws may be needed for new infrastructure—for example, to regulate traffic flows, to prevent trespass or to set up penalty fare regimes—but we believe that the Secretary of State should take responsibility for such decisions and that powers should be granted on his authority alone. This is why we have left it possible for Transport and Works Act orders or Harbours Act orders to be made under NSIPs where the relevant provisions could not be made under the powers in the Bill. Offences and by-laws are usually needed to allow for the effective operation of the infrastructure. The key date is therefore the entry into service of the infrastructure, rather than the date on which development consent is granted. If the promoter applied for by-laws and offences during construction of the infrastructure, this would not delay the entry into service of the infrastructure, which I believe meets a good part of the concerns which my noble friend expressed. My noble friend made a series of other points in Amendments Nos. 121C to 121F about the content of Schedule 5. Again, these points are met by the Bill, given that the IPC can already include in an order provision on demolishing, altering and dredging as part of an NSIP and on the operation and maintenance of a transport system. I should also highlight that most maintenance work is consented under permitted development rights, which, as I mentioned in Committee, will still be available after the passage of the Bill. My noble friend also asks about arbitration in his Amendment No. 121F. We expect the parties to be able to decide between themselves to whom they should submit disputes. Failing this, we expect that an order would specify that a senior and neutral person, such as the president of the Institution of Civil Engineers, would name an arbitrator. This is the position under the TWA, and the procedures that we envisage are sufficiently flexible to do what my noble friend intends. In Amendment No. 121J, the noble Lord, Lord Berkeley, raises the issue of the London Gateway Port Harbour Empowerment Order, under which I understand the Secretary of State decided to give the PLA alone full plan-approval functions in relation to the works in question. However, we do not believe that it is the function of the IPC to make judgments about the operational regulation of the infrastructure to which it consents. We know that there have been examples of TWA orders removing the need for Environment Agency consents, disapplying inter alia the normal requirement for the Environment Agency’s consent to placing structures in, over or under a main river. The general practice in TWA cases is for the parties to agree a series of protective provisions, which are incorporated as a schedule to the TWA order to demonstrate how interfaces between undertakers should work. The general rule is that the Secretary of State makes TWA orders, such as the DLR extensions, only on the basis of a consensual settlement between the parties. There may be exceptions in other regimes, but in constructing the single consent regime we have had to find a balance between the potentially conflicting interests of different parties. That is why we drafted Clause 147 so that it allows similar provisions to be made only where the relevant regulator agrees that its interests were satisfactorily addressed through the IPC process. It would be inappropriate for the IPC to decide for itself whether alternative appropriate provision is adequate to protect the interests protected by that regulator. I hope that that meets the detailed points made by my noble friend and deals with his big point of principle about by-laws, the creation of offences and why we do not think it appropriate to extend that power to the IPC. The noble Lords, Lord Dixon-Smith and Lord Jenkin, tabled amendments relating to the powers that we give in Clause 118. The noble Lord, Lord Jenkin, referred to the lengthy correspondence that he has had with my noble friend, and I thank him for his remarks about the assiduity of the Bill team, which has gone into the operation of these provisions in great detail to ensure that we had a well-informed debate. As he said, the Bill provides strong controls for Parliament and the Secretary of State over the use of the powers set out in Clause 118. These are, first, that the IPC can use powers under Clause 118(5) only where a promoter has applied for this and the issue has been considered in public at the examination. When we discussed this matter in Committee, the noble Lord asked me why it was so important that we placed emphasis on the promoter applying. It is because this is then subject to full public debate and consultation before the IPC makes a decision. It cannot be a decision of the IPC without public scrutiny and consultation. Secondly, the form of the draft order would be based on model provisions set out by the Secretary of State and subject to parliamentary scrutiny. Thirdly, development consent orders will not be able to authorise by-laws and offences for all the reasons I have set out. Fourthly, the decision-maker would be bound to decide the case in accordance with government policy as set out in the national policy statement. Finally, the Secretary of State has a power, under Clause 119, to review draft orders which would use the power in Clause 118(5) and can direct changes to any use of legislative powers if the draft order appears to him to contradict EC or ECHR law. With those safeguards, we believe that the powers set out are appropriate. It would be a suboptimal position for there to be an independent decision-maker who does not have the ability to grant the powers and authorisations which are essential for many projects to be able to go ahead. We have included those powers in the single consent regime based on extensive experience of how and why they have been used in the consent regimes we are hoping to replace. Such powers are most frequently used by promoters of transport schemes, such as harbour or rail schemes, because they often find that there are statutory provisions—many are in very longstanding private Acts; for example, in the case of railways, Acts which established the railways in the 19th century—which regulate existing infrastructure that they intend to upgrade. Often, those provisions are inconsistent with proposals to upgrade or improve that infrastructure. Unless there is a power to alter this statutory framework, no upgrades of such infrastructure could be possible. In the annex tables to the letter, which my noble friend sent to the noble Lord, Lord Jenkin, I have set out what we mean by this in practical terms. When the House directs itself to the practical application of these powers, the full reasonableness of them becomes apparent. For example, in table 2 we set out the alterations to statutory provisions included in the Network Rail (Thameslink 2000) Order 2006, which is a major TWA order in respect of a significant rail infrastructure project in London. That includes the revoking of, "““powers conferred on, or obligations imposed on, Network Rail by the London, Chatham and Dover Railway (Metropolitan Extension) Act 1860 in relation to the disused bridge piers alongside the Blackfriars railway bridge. For the purposes of constructing a new station canopy spanning the Thames, Network Rail will need to alter or remove the disused bridge piers in ways which would conflict with the provisions of the 1860 Act””." I do not believe that that is the kind of issue on which people would regard it to be essential that the Secretary of State has to second-guess the IPC. But I can go on. The order also involved the revoking of, "““provisions of sections 62 and 63 of the Charing Cross Railway Act 1859 to the extent that they would be inconsistent with the powers conferred on Network Rail for the construction of a new railway viaduct at Borough Market. In particular, section 63 provides that any land not required for the construction of the original Borough Market viaduct ‘shall forever … be part of the Market Place of the Borough Market’””."