Jim Fitzpatrick (Parliamentary Under-Secretary, Department for Transport; Poplar & Canning Town, Labour)

I beg to move amendment No. 347, in clause 30, page 15, line 41, after ‘one’ insert ‘or more’.

John Butterfill (Bournemouth West, Conservative)

With this it will be convenient to discuss Government amendment No. 348

Jim Fitzpatrick (Parliamentary Under-Secretary, Department for Transport; Poplar & Canning Town, Labour)

Clause 30 allows the Secretary of State to intervene in an application for consent for an infrastructure project in England that has been made to a body other than the commission. In such a case, if the Secretary of State thinks that the project is of national significance, even if it does not meet the statutory thresholds set out in clauses 13 to 26, he or she may direct the authority that is considering the application to refer the application to the IPC instead of dealing with it itself. The Secretary of State can only direct an application to be considered by the IPC if the project forms part of one of the fields mentioned in clause 13(5)—energy, transport, water, waste water or waste. Amendment No. 347 is designed to clarify the drafting and provide that a direction by the Secretary of State can be made when the development is part of more than one of the fields mentioned in clause 13(5).

Amendment 348 is designed to improve the drafting for clause 30. It ensures that where the Secretary of State directs an application to the IPC from another authority, the application is to be subsequently treated as if it were an application for development consent, and the development that forms the subject of the application is to be treated as development for which development consent is required under the terms of the Bill.

Amendment No. 348 also provides the Secretary of State with a power, in such cases, to direct that certain requirements of the Bill are modified in relation to the proposed development, or are to be treated as having been complied with. The ability to modify the Bill’s requirements in relation to an application, or to deem that such requirements have been satisfied, is essential. If it did not exist it would mean that a promoter could  be required to re-do all the work involved in the pre-application stage simply because the Secretary of State directed the case after the application was submitted to the local planning authority. That is not to say that further work to the application would not be needed on the part of the promoter. Indeed, in many cases it will be necessary for a promoter to alter an application so that it becomes an application for an order granting development consent. An example of that might be rewording the application to fit the format of an order, as set out in clause 32.

The promoter may also need to engage more fully with the IPC and local communities under part 5, to reflect the revised application more fully. To that end, there is no obligation on the Secretary of State to include the provisions in clause 30(2)(c) in a direction referring the case to the IPC. Nevertheless, the principle should remain that a promoter should not be unreasonably penalised through having to do additional work because the Secretary of State has decided that an application made in good faith to a local planning authority should be referred to the IPC.

Bob Neill (Shadow Minister, Communities and Local Government; Bromley & Chislehurst, Conservative)

There is one question on which I would like the Minister to be a little more specific. Does he anticipate circumstances in which—perhaps he will give a practical example—an application has commenced under the Town and Country Planning Acts regime, but it fits the nationally significant infrastructure projects criteria and the power of direction will have to be used? He said that clause 29 means that anything that comes within the national infrastructure projects criteria will have to be commenced under that regime. Perhaps it is my fault, but I am struggling to understand the circumstances in which a project might commence outside the regime but could subsequently be brought under it. Is it a question of size thresholds? We are concerned that the measure has the potential for mission creep as far as the IPC is concerned. Will the Minister explain a little more about the rationale behind the measure?

David Jones (Shadow Secretary of State for Wales, Wales; Clwyd West, Conservative)

Further to that question from my hon. Friend, I note that the provisions apply in England only and not in Wales. Will the Minister explain why a similar power is not given to Welsh Ministers to make the direction that the Secretary of State can make in England? The normal mantra is that the Government are reluctant to disturb the devolution settlement but, if anything, such a provision would enhance and strengthen the devolution settlement. Given that the thrust of the legislation is to streamline and generally to speed up the processes involved with consent application, there is no good reason why an equivalent power should not be devolved to Welsh Ministers.

Jim Fitzpatrick (Parliamentary Under-Secretary, Department for Transport; Poplar & Canning Town, Labour)

I take the hon. Gentleman’s point. It looks like there is an inconsistency but, having devolved the power to Welsh Ministers, it is for them to make a judgment call. We discussed that only a few moments ago, and the position is that they have used the power under the 1992 Act or the 1989 Act and they will make a judgment on what is appropriate for Wales. I apologise for saying that the settlement allows them to do that—we do not intend to disturb the settlement because it is working very well. It would be a matter for them to judge an application as to which direction they recommend.

The Secretary of State would use the power mentioned by the hon. Member for Bromley and Chislehurst only in rare circumstances and on the basis of clear criteria. There might be a situation in which a series of proposed projects that are individually beneath the thresholds collectively represent a nationally significant project. For example, a series of offshore wind farms might be below the 100 MW limit individually, but above the limit when taken together. Directing such applications to the IPC would allow a better examination of the collective benefits and impacts of such a project.

As part of the White Paper consultation, we questioned whether it was appropriate for Ministers to be able to specify projects for consideration by the IPC by means of a direction, and a large majority of those who commented on the proposal believed that it was appropriate as long as the power was used sparingly and on the basis of clear criteria.

David Jones (Shadow Secretary of State for Wales, Wales; Clwyd West, Conservative)

The Minister’s example of a series of offshore wind farms amounting to one large wind farm would not be subject to the devolution settlement. In those circumstances, why should the Secretary of State not make such a direction even if the wind farm is off the Welsh coast?

Jim Fitzpatrick (Parliamentary Under-Secretary, Department for Transport; Poplar & Canning Town, Labour)

I do not have anything to add on the difference between the powers given to Ministers in the Welsh Assembly Government and those given to the Secretary of State to direct.

Daniel Rogerson (Shadow Minister (Arts, Culture and Heritage), Culture, Media & Sport; North Cornwall, Liberal Democrat)

I beg to move amendment No. 165, in clause 30, page 15, line 42, at end insert ‘and’.

John Butterfill (Bournemouth West, Conservative)

With this it will be convenient to discuss the following amendments: No. 239, in clause 30, page 15, line 43, leave out from ‘England’ to end of line 44.

No. 260, in clause 30, page 15, line 44, leave out ‘project’ and insert ‘development’.

Daniel Rogerson (Shadow Minister (Arts, Culture and Heritage), Culture, Media & Sport; North Cornwall, Liberal Democrat)

I am sure that the Minister will correct me if I am wrong, but my reading of the clause is that there is provision for the Secretary of State to step in and take something away from a local authority and take it to the IPC. We are concerned that, although the Bill has already set out in what circumstances that should happen, there is an extra facility for the Secretary of State to do so. The amendment seeks to probe the Government on this issue. We have heard why they feel that this power is needed, but I am yet to be convinced that we should allow the Secretary of State further powers to remove things from local authority consideration and give them to the IPC.

Although the Minister was not leading for the Government when we debated the IPC, he will know that there is considerable concern among all Opposition  parties about whether the provision is necessary. Having passed that part of the Bill, we are concerned that the IPC will gather in more powers or that more applications will go to it than necessary. Amendments Nos. 165 and 239 were tabled to test the Government on which measures it is appropriate to remove from local authorities and give to the IPC. I hope that the Minister will be able to reassure me that this power will not be used very often.

Bob Neill (Shadow Minister, Communities and Local Government; Bromley & Chislehurst, Conservative)

May I refer to amendment No. 260 in this group? I understand the point that the hon. Member for North Cornwall made about his amendments. Our amendment makes a slightly different point, but I do not disagree with his observations. We are trying to seek clarity about definitions in this part of the Bill. As we observed when we started discussing this part of the Bill, the meaning of “development”—a well-known phrase for all who are involved in these matters—is sensibly restated in clause 28 as being defined in the normal Town and Country Planning Act terms. We are intrigued as to why it is appropriate to move away from the normal test for development, which requires planning permission, to something else, which is called “a project” and requires development consent. What is the difference in practical and legal terms between a development and a project? If something is a project, does that not automatically involve development? What is the distinction?

My hon. Friend the Member for Clwyd, West raised the further issue of whether the Minister was saying—and it seemed to be the case—that a number of adjacent areas of development can amount to a project. Who is to decide that? Are they not individual projects? Are they not all developments? It is not entirely clear why the Government chose to use the word, “project”, which is a novel term to bring into the legislation, as opposed to “development”, which is tried and tested as far as the courts and all those involved in planning are concerned.

Jacqui Lait (Shadow Minister, Communities and Local Government; Beckenham, Conservative)

Without in any way wishing to enrich his professional friends, may I ask my hon. Friend to tell us how the word, “project”, should be defined in the Bill, so that people do not confuse projects with developments and hence have reason to take the matter to the court?

Bob Neill (Shadow Minister, Communities and Local Government; Bromley & Chislehurst, Conservative)

I am grateful—I think—to my hon. Friend for that intervention. The Minister said that we are working as a team and team members are always keen to test each other’s mettle, as my hon. Friend’s question shows.

Let me give an example. Many people would refer to the Thames Gateway as a project, but it is clearly a series of developments. I hope that nobody would pretend that the developments at Barking Reach at the London end of the gateway are part of the same project, for planning law purposes, as the development of the port facilities at Shell Haven or a barrage at Sheerness, if one is ever to be built. People might argue—and it is common parlance for the man in the street—that they are part of the Thames Gateway project, but they are all significant developments in their own right, and some of them could qualify as nationally significant infrastructure projects. That is one example of a negative application of the term, “project”.

The implication is that a project involves more than one piece of development. I can see that that might work if multiple consents are required—for instance, when we deal with a pipeline to a refinery or an energy plant—but that seems the only sensible reason for using the provision, which would allow all the consents to be rolled up together. I would be grateful if the Minister would amplify that point, because there is a risk of confusion in the public’s mind. I do not think that that was the Government’s intention—and I am sure that they had a lot of advice from lawyers on the use of the “project”—but because the term is a novel departure, I would be grateful for a clear justification for its use before some of my erstwhile colleagues find themselves extremely busy litigating on the definitions.

Jim Fitzpatrick (Parliamentary Under-Secretary, Department for Transport; Poplar & Canning Town, Labour)

With respect, I urge the Committee to reject the amendment. We believe that amendments Nos. 165 and 239 go together. They are intended to remove the need for the Secretary of State to be satisfied that a project that is the subject of an application to a body other than the commission is of national significance before directing it to the IPC. We are not sure why hon. Members believe that that is a good idea, because there seems to be little justification for calling in small projects from local authorities for a decision by a national body. As the Committee knows, we intend the single consents regime to be reserved for the biggest and most important infrastructure projects. Only projects of national significance should go through that regime. Others are best decided by local planning authorities.

Amendment No. 260 would require the Secretary of State to be satisfied about the national significance of a “development”, rather than a “project”, before directing an application to the IPC. Again, with respect to the hon. Member for Bromley and Chislehurst, we believe that it is not necessary. The single consents regime will work on the basis of projects being nationally significant, as can be seen in clause 27(1). Development consent will be required for development

“to the extent that the development is or forms part of a nationally significant infrastructure project.”

Clause 30(1)(a) and (b) make it clear that the application that the Secretary of State is considering directing to the IPC must refer to “development” that is or forms part of a relevant “project”. I am advised that the word, “project”, covers development and matters that are not currently treated as development, such as listed building consent. It is designed to cover many types of consent, including associated works such as connection to the electricity network for a power station.

David Jones (Shadow Secretary of State for Wales, Wales; Clwyd West, Conservative)

Is it the Minister’s understanding that a “project” should be an undertaking mounted by one individual or a series of individuals acting in concert? If so, how can his example of a series of separate applications for offshore wind farms be regarded as one project, if the applications were made by different developers?

Jim Fitzpatrick (Parliamentary Under-Secretary, Department for Transport; Poplar & Canning Town, Labour)

The hon. Gentleman makes a good point, and I am happy to consider it, now that I fully understand where he is coming from. The judgment about whether to refer is a matter for the Secretary of State, but I shall consider the arrangement that the  hon. Gentleman describes, whereby different developers may collectively be in a similar area, and whether that constitutes a description of a project. I hope he will forgive me, as I am not in a position to respond to that point now, but I shall come back to him. Having explained our interpretation of the amendments, which do not meet the arrangements requested by the hon. Member for North Cornwall, and having explained the definition of “project” and “development” in the Bill, I hope that the hon. Gentleman and the hon. Member for Bromley and Chislehurst will not press their amendments further.

Daniel Rogerson (Shadow Minister (Arts, Culture and Heritage), Culture, Media & Sport; North Cornwall, Liberal Democrat)

I thank the Minister for his explanation, and I beg to ask leave to withdraw the amendment.

Daniel Rogerson (Shadow Minister (Arts, Culture and Heritage), Culture, Media & Sport; North Cornwall, Liberal Democrat)

I beg to move amendment No. 166, in clause 30, page 16, line 7, leave out from ‘application’ to end of line 8 and insert

‘for a period of up to three months’.

The amendment relates to my previous point, but obviously when I tabled it, we had yet to have that debate. However, our concern is that if the Secretary of State considers whether an application should be moved from one regime to another, a time limit ought to be imposed. Later facets of the Bill impose draconian time  limits on everyone else regarding consultation, presumably in the hope that applications can be dealt with swiftly. My concern is that there might be an opposite effect, and that an application that might have proceeded fairly well under the old regime will stall while the Secretary of State decides whether to move it to the IPC. I seek the Government’s reassurance that they will take any such decision very swiftly so that the developers and local communities affected are reassured that the application will not hang over them for a great length of time.

Jim Fitzpatrick (Parliamentary Under-Secretary, Department for Transport; Poplar & Canning Town, Labour)

I hope that I can provide the hon. Gentleman with the appropriate reassurance so that he will not feel it necessary to press the amendment, which is an attempt to secure reassurance about time frames. He and his hon. Friends would like the Secretary of State to decide as soon as possible whether to direct an application to the IPC, and they would consequently impose a time limit on the length of time in which the Secretary of State could instruct the relevant authority that held an application not to proceed with it.

We intend that any decision will be made speedily. There is no benefit to anyone involved if an application is held in limbo for a long period. At the same time, however, putting a time limit in the Bill would not be appropriate. The Secretary of State will, in all cases, make a decision as quickly as is reasonably possible about whether to direct an application to the IPC.

The power to direct a local planning authority not to proceed with an application is not new. The Secretary of State already has similar powers through directions under article 14 of the general permitted development orders under the Town and Country Planning Act 1990, and there is no time limit on how long those orders can last. On that basis, I hope that the hon. Gentleman will feel able to withdraw the amendment.

Daniel Rogerson (Shadow Minister (Arts, Culture and Heritage), Culture, Media & Sport; North Cornwall, Liberal Democrat)

I am pleased to hear the Minister say on record that the Secretary of State would seek to take such a decision as speedily as possible. Although I am no lawyer, I understand that if a provision in a Bill were to be tested or explored in a court, our discussions in this Committee about the intention of the legislation might inform the decision. On that basis, I will not press the amendment to a Division, and I beg to ask leave to withdraw the amendment.

Jim Fitzpatrick (Parliamentary Under-Secretary, Department for Transport; Poplar & Canning Town, Labour)

I beg to move amendment No. 349, in clause 30, page 16, line 11, after ‘decide’ insert—

‘(a) ’.

John Butterfill (Bournemouth West, Conservative)

With this it will be convenient to discuss Government amendment No. 350.

Jim Fitzpatrick (Parliamentary Under-Secretary, Department for Transport; Poplar & Canning Town, Labour)

Clause 30 allows the Secretary of State to direct an application for consent for an infrastructure project in England that has been made to a body other than the commission. In such a case, if the Secretary of State thinks that the project is of  national significance, even if it does not meet statutory thresholds set out in clauses 13 to 26, he or she has the power to direct the authority that is considering the application to refer the application to the IPC, instead of dealing with it itself.

The primary purpose of the amendments is clarification. The Secretary of State can require the authority considering the application to provide information to allow him or her to decide whether or not to direct an application to be referred to the IPC.

The amendments also clarify that information can be used by the Secretary of State to decide the terms in which such a direction should be given. That reflects the fact that the Secretary of State may specify in the direction that some of the requirements of the Bill are to be deemed to have been complied with, as detailed in Government amendment No. 348. The Secretary of State might make a direction in such terms if he or she was satisfied that work already done while making an application to the authority would substantially satisfy the requirements in the Bill on pre-application consultation in chapter 2 of part 5. That works on the principle that a promoter should not be unreasonably penalised through having to do additional work because the Secretary of State has decided that an application made in good faith to a local planning authority should be referred to the IPC. I commend the amendments to the Committee.