Further consideration of amendments on Report resumed on Clause 102.

moved Amendment No. 103:

Clause 102, page 53, line 8, after "relates" insert—

"( ) written and oral representations relating to the development"

My Lords, I shall not take it at all amiss that everyone behind me on my Benches is leaving. They say that they cannot get out easily. Tough.

In speaking to this amendment, I shall speak also to Amendments Nos. 104, 105, 107, 108, 109 and 110. This brings us to the provisions on decisions on applications. Clause 102(2) sets out matters to which the IPC must have regard, and Clause 103 sets out those to which the Secretary of State must have regard when, respectively, they are making decisions. Amendments Nos. 103 and 108 would provide in each case that they should have regard to written and oral representations relating to the development. Similarly, Amendments Nos. 104 and 108 would provide that they have regard to relevant responses made under Clause 49, responses to which the applicant had to have regard at an earlier stage.

I have tabled these two pairs of amendments to spell out that the IPC and the Secretary of State should not filter out the representations made during the different stages of the process to the extent that they do not figure at the last stage. It is important that those who take part in the process should have trust in it and believe that their representations are taken seriously.

When we were discussing related matters in Committee, the Minister argued that such representations, if they were important and relevant, would remain within the frame for consideration by being within the referenced matters, which are important and relevant. I am not asking that all representations be accepted, because the phrase "have regard to" does not mean that: it means, literally, to have regard to or to think about. The local impact statement, to which regard must be paid, is referred to specifically. Who is to say that the whole of it will be important and relevant? I am asking the Government to think about where individual representations come in.

Amendments Nos. 105 and 110 take us back to the phrase "important and relevant". I tabled this amendment in Committee, when I argued—and I maintain the view—that the order of the words should be "relevant and important". First, one should consider whether an issue is relevant and, if it is qualified as such, whether it is important. I got the feeling that the Minister understood that point; she said that she would consider it, so this is her further opportunity to do so.

Amendment No. 107 proposes that the Secretary of State, when she or he takes decisions, should have regard to a national policy statement relating to development of a particular description. I may have missed this, either on the face of the Bill or in the logic of how all this applies, but it seemed to me odd if the Secretary of State does not have to have regard to her or his own policy statement. That could allow for all sorts of mischief. I beg to move.

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.

My Lords, I will take the Clause 49 representations first. I take the point. I am not surprised at the response, but I thought that I would give it a try. On the other representations, as I said in introducing the amendments, "must have regard to" does not mean accepting. The IPC and the Secretary of State will have to consider all representations before excluding any. The difference between us is where consideration becomes decision. That is where I am having some difficulty, because I see consideration of the representations as a bigger part of the decision-making process than the Minister has presented it.

On Amendment No. 107, as the Minister said, "usually" there will be no NPS, but one has to bear in mind the unusual. All things are conceivable in politics. There may have been a change of administration without a change of government. The Secretary of State may be reflecting on the process of reviewing the outcomes, in which case the whole review process of the NPS should be gone through. I am not sure where that leaves an application that is with the Secretary of State. I thought that it was probably an obvious answer that was staring me in the face and I am grateful to the Minister for spelling it out. I have made my points and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 104 not moved.]

[Amendment No. 104A had been withdrawn from the Marshalled List.]

[Amendment No. 105 not moved.]

[Amendment No. 105A had been withdrawn from the Marshalled List.]

[Amendment No. 106 not moved.]

Clause 103 [Decisions of Secretary of State]:

[Amendments Nos. 107 to 110 not moved.]

Clause 106 [Suspension during review of national policy statement]:

moved Amendments Nos. 111 to 113:

Clause 106, page 55, line 12, after "later)" insert "the statement or any part of it was"

Clause 106, page 55, line 12, after first "reviewed" insert "all or part of"

Clause 106, page 55, line 14, leave out "of the national policy statement"

On Question, amendments agreed to.

Clause 107 [Intervention: significant change in circumstances]:

moved Amendments Nos. 114 to 116:

Clause 107, page 55, line 31, after "(2)" insert "or (2A)"

Clause 107, page 56, line 2, at end insert—

"(2A) The condition is that—

(a) since the time when part of the national policy statement ("the relevant part") was first published or (if later) last reviewed, there has been a significant change in any circumstances on the basis of which any of the policy set out in the relevant part ("the relevant policy") was decided,(b) the change was not anticipated at that time,(c) if the change had been anticipated at that time, the relevant policy would have been materially different,(d) if the relevant policy was materially different, it would be likely to have a material effect on the decision on the application, and(e) there is an urgent need in the national interest for the application to be decided before the relevant part is reviewed."

Clause 107, page 56, line 3, after "(e)" insert ", or (2A)(d) and (e),"

On Question, amendments agreed to.

Clause 110 [Power of Secretary of State to intervene]:

moved Amendment No. 117:

Clause 110, page 56, line 28, after "107(2)" insert "or (2A)"

On Question, amendment agreed to.

Clause 113 [Development for which development consent may be granted]:

moved Amendment No. 118:

Clause 113, page 58, line 7, at end insert "and is required to facilitate it"

This is another short point. It concerns the definition of "associated development" and the fact that development consent can be granted for it. At the previous stage I sought to probe what that meant. Clause 113(2)(a) refers to,

"development which ... is associated with the development ... or any part of it".

The noble Baroness referred to the single process. She did not say that it would be daft to have consecutive applications, although that is what she meant. She also said that if a development needed highways works, for example, that should be dealt with at the same time. My amendment seeks to add to associated development the requirement that it is necessary, which is what she said. My amendment would make the clause read that the development is associated,

"and is required to facilitate it".

I previously discussed the potentially wide scope of the phrase "associated with it", and the noble Baroness said:

"Granting consent for associated works is therefore completely consistent and a logical element in that overall process".—[Hansard, 20/10/08; col. 947.]

I agree, provided that the associated development is necessary. I beg to move.

My Lords, the noble Baroness has come back with Amendment No. 118, which seeks to ensure that the grant of consent for associated development would be limited to development required to facilitate the development to which it is associated; in other words, that it is necessary. She is concerned—if she was not, she would not have brought the amendment back—that this provision may be abused by promoters to sneak through additional development which is not in fact necessary for the operational effectiveness of nationally significant infrastructure, and which should therefore be dealt with by the appropriate planning regime. I hope that I can again reassure her on this point.

Clause 112 states that when the decision-maker has decided an application for an order granting development consent, it must either refuse the application or make an order granting development consent. Clause 113 then provides that the development consent under such an order can be either for development where consent is required, and/or for associated development which the promoter has chosen to include in the application for development consent.

It is the Government's intention that a promoter should be able to combine the "core element" of a nationally significant infrastructure project—that is, those works which meet the definitions in Clauses 15 to 30—with associated works into a single application. Such associated development might include ensuring that the new infrastructure is connected to other national networks, or other development which is needed to allow the new infrastructure to operate as intended. Associated development shall in no instance include the construction or extension of housing.

The expression "associated development" is new, and I think that that is part of the issue we are addressing. In England at the moment, however, the Secretary of State has the power to call in any application for planning permission, and this power can be exercised in relation to development closely connected with a major infrastructure project. Therefore, the concept is not new.

The Government's firm intention is that promoters should not be able to abuse the facility to include associated development in an order granting development consent. The new single consents regime is about ensuring that works necessary to the development and operational effectiveness of new infrastructure can be consented through a single application. It is not the Government's intention to create a mechanism to grant authorisations for works that are not in fact necessary for the development and operational effectiveness of nationally significant infrastructure.

The noble Baroness raises an important point and we have thought about how we can best address it. The most effective thing we can do is ensure that everyone is quite clear about this. To that end, the Secretary of State will set out guidance for a panel or for the council on what should or should not be considered an associated work, and that could form part of an order granting development consent. We will try to meet the point in that way, making sure that they are clear, and that will be put into guidance.

My Lords, I thank the Minister for that, but I struggle to understand why it does not go in to the Bill. In many ways the more that is in guidance and not in the Bill, the worse it will be. Much was made earlier of the independence of the new commission; so for it to be required to look to guidance seems to go a little way to undermining that concept. I appreciate that the Minister has taken this seriously, and I shall not pursue it. I have made my point. I hope that no one ever has to consider it. I have said what I need to say. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Schedule 4 [Correction of errors in development consent decisions]:

moved Amendment No. 119:

Schedule 4, page 156, line 38, leave out "applied for the order granting development consent" and insert "made the application"

My Lords, this group of amendments simply makes a number of drafting improvements to definitions of expressions used in the Bill and clauses setting out the Bill's extent. I shall briefly address each amendment in turn.

Amendment No. 119 alters the meaning of the expression "applicant" for the purposes of Schedule 4, so that it covers any person who makes an application to which the decision relates.

Amendment No. 156 changes the definition of "land" in Clause 227, which applies for the purposes of Parts 1 to 10 and Part 12 of the Bill. The change is needed to make the definition consistent with clauses in Part 3 that provide for development offshore, including in the renewable energy zone.

The change to Schedule 12 made by Amendment No. 157 is consequential on the addition in Committee of gas transporter pipelines in England as a category of nationally significant infrastructure project. The amendment reflects the fact that a gas transporter pipeline does not count as a nationally significant infrastructure project to the extent that the pipeline is in Scotland, as Clause 20(6) and Clause 232(4) indicate.

Amendment No. 158 inserts a reference to Clause 20 in Clause 232(1), thereby reducing the extent of Clause 20 to England and Wales only.

Amendment No. 159 reduces the extent of Clauses 131, 145 and 146 to England and Wales only, so as to ensure consistency with provision made elsewhere in the Bill. Clauses 17, 145 and 146 indicate that Clauses 131, 145 and 146 do not apply to Scotland.

Amendment No. 160 also relates to the extent clause and simply corrects the drafting to reflect the fact that Clauses 197 and 198 are in fact in Part 10, not in Part 9.

Clause 233(1) provides that certain powers to make orders come into force on the day on which the Planning Bill is passed. An exception is made in the case of orders granting development consent. Amendment No. 161 confirms that the exception also extends to orders making changes to orders granting development consent.

Amendment No. 162 corrects an error in the commencement clause. A government amendment in Committee removed the reference in Schedule 13 to a repeal of a provision of the Planning Act 2008, but we omitted to remove the reference to this repeal in Clause 233(4)(d)(v) at the same stage. We are now putting right that omission. I beg to move.

On Question, amendment agreed to.

Clause 118 [What may be included in order granting development consent]:

moved Amendment No. 120:

Clause 118, page 61, line 21, at end insert "with the consent of the Secretary of State"

My Lords, the amendment is intended simply to add "with the consent of the Secretary of State" to the first line of Clause 118(5). This clause provides that an order granting development consent may,

"apply, modify or exclude a statutory provision with relates to any matter for which provision may be made in the order", and,

"make such amendments, repeals or revocations of statutory provisions", and so on. In other words, the orders made by the Infrastructure Planning Commission can change the law. When statutory instruments, which are subject to the full parliamentary process, do that, they are known as Henry VIII clauses. The clause gives the IPC power to do that. This may not be the first time, but it will be a major issue when an unelected body such as the IPC—the Minister will know that I have indicated throughout my support for the IPC and its powers—has been given the power to change the law, and that seems to go beyond what is reasonable.

I have had the advantage of receiving a bombardment, if that is the right word, of representations from Ministers, who make the point that not only is this measure essential, but there are admirable precedents. I would not dream of reading all of them out, but there are columns and columns and pages and pages of precedents under the Transport and Works Act and various other pieces of legislation. The point is that, as I understand it, and no doubt the Minister will correct me if I am wrong, all of those powers at some stage required the consent of the Secretary of State before they could take effect. If that is not right, I shall stand corrected.

The argument, therefore, is that if we had to require such consent for all the orders made by the Infrastructure Planning Commission, this would once more transfer a substantial part of the decision-making process to the Secretary of State, who would then be obliged to make sure that what he was being asked to approve was appropriate and correct, to ensure that he was not challenged in the courts.

I can understand part of that argument. When one looks at the details of the changes that have been made, for instance under the Transport and Works Act, one sees that many of them were completely reasonable, indeed inevitable, if an order was going to bring the necessary provisions up to date. You have to be able to change previous statutory provisions; I understand that. My fear is that this clause does not restrict it only to the run-of-the-mill statutory provisions that are to be amended and repealed. It in fact leaves it open to the IPC to make an order that could perhaps go well beyond something that has happened before, in the sense that some of the infrastructure projects likely to be the subject of consent orders under the Bill could be very large and complex developments indeed, which might require the repeal or amendment of substantial parts of the statute book.

I hope the Minister can perhaps see a way of drawing a distinction between the mass of little projects, which would be fully in line with what has happened in the past under the Transport and Works Act and other similar legislation, and some way of identifying the major changes in the law that perhaps go beyond what has been done in the past and require the consent of the Secretary of State.

I have studied the papers that the noble Baroness very kindly sent me, together with all the arguments in her letter, in which she stressed the safeguards. I understand that and have refreshed my memory on the matter. Her letter sets out as the first safeguard:

"The IPC can only use powers ... where a promoter has applied for this, and the issue has been considered in public at the examination".

That is clearly of some value. The second safeguard is:

"The form of the draft order would be based on model provisions set out by the Secretary of State and subject to Parliamentary scrutiny".

Pausing there, I wonder whether, under the proposed model provisions, there is some way in which a distinction can be drawn, so that one is not simply leaving the IPC at large with a power to amend the law. Then her letter states:

"Development consent orders will not be able to authorise byelaws and offences", which the Transport and Works Act orders and Harbours Act orders can do. That, again, is another safeguard. Then it all has to be,

"in accordance with Government policy set out in the national policy statement".

I appreciate that. Finally, the fifth safeguard is that,

"the Secretary of State has a power ... to review", if the draft order contravenes European law. If it contravenes European law, it will be invalid anyway, so it is right that the Secretary of State should see it to ensure that there is no serious error in that respect. Those are some safeguards but, to my mind, Parliament should look extremely closely at giving an unelected body an unlimited power to change the law.

As I said, I recognise the need for this clause, and obviously the precedents with which I have been furnished give a good deal of support to what the Government are doing, but somehow there must be a way of identifying what might be a major change in the law in order to allow the commission to give its consent order to make it effective. That would require intervention by a Minister, who is, after all, accountable to Parliament.

This is a difficult technical question and I am grateful to the Minister, who took time this morning to talk to me about it and to listen to my concerns. I much appreciated that. However, perhaps the Government can impose a limitation so that this is not done in the run-of-the-mill way, of which there are hundreds and hundreds of examples in the papers that I have been given. Perhaps they could impose, as it were, a trip wire that would require the intervention of the Secretary of State if there were a change—an amendment, modification or repeal—in the law which, as a parliamentary statute, had been passed by Parliament. That is what I am groping for and I hope that somehow the Minister will be able to help. I beg to move.

My Lords, my Amendment No. 121 is quite properly grouped with my noble friend's Amendment No. 120. If he and I are playing soft cop/hard cop, my noble friend is playing the soft cop by giving the Government an option to look at this matter and I am playing the hard cop by removing what I would call the offending paragraphs. We are talking about a question of degree and, indeed, a degree of propriety. However, it seems to me that giving an appointed body what is apparently, although somewhat proscribed by the Minister's letter, a fairly open-ended power to amend legislation in order to suit the administrative conveniences of a particular planning application could cause complications in respect of some regulation, if not legislation. I had not thought of the European angle, as my noble friend has done. To have an open-ended power to change legislation in this way is an unreasonable power for an appointed body without some authoritative check.

We have had this argument with the Bill before to a greater or lesser degree. I hope that the Government will listen to my noble friend's plea. On the whole, I am sure that it is much tidier than my conclusion, which is simply to remove the power, and the problem, from the Bill. The problem would not exist, but I can foresee that that might create future problems in relation to a planning consent that the commission might wish to give. It is a question of degree, and I hope that the Government will listen to the plea. It is inappropriate—I shall not use the word improper—to give an appointed body this effective legislative power. I do not believe that it should rest in the hands of an appointed body. It should remain at the very least with the Secretary of State or some higher authority. I support my noble friend's plea and hope that the Government are in a receptive mood.

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.

My Lords, will the noble Lord, Lord Berkeley, tell us who, under his Amendment No. 121G, is to say what is the maximum penalty for the summary offence? That is normally a matter for Parliament. If it were done under the European Communities Act, that Act provides for a maximum, but I do not know who will provide a maximum in this case.

My Lords, the noble Viscount raises an interesting question, but those penalties come under by-laws, which is quite normal in transport activities, such as by-laws on the railways, which fix penalties for fare evasion and other things. I am not aware of who approves them, but there needs to be provision for making them and, if they need to be approved by the Secretary of State or by Parliament in some form, that clearly needs to happen. My point is that they need to be included to make the whole system work.

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 19thcentury—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'".

Noble Lords:

Hear, hear!

This variation was required in order to be able to provide the modernisation and extension of Thameslink. In Article 12 of the said order, there was also provision,

"to release Network Rail from any obligation under section 9 of the South Eastern Railway Act 1896 to provide, maintain or light a footway in the London borough of Lewisham. Part of the footway in question had not existed for many years, being submerged under other developments, and the remainder was blocked off".

That is the nature of the decisions we are talking about in terms of the variation of existing statutory powers. To say that decisions of this kind—ones which are essential, but variations to what are to a significant degree private Acts of Parliament that were in effect planning consents for the establishment of the original infrastructure of the railways—cannot be varied without recourse in each individual case to the Secretary of State frankly makes a nonsense of the IPC regime as it is intended to be: a single development consent regime. I have developed that argument at some length.

The noble Lord, Lord Jenkin, has asked whether we could have some form of oversight or protection in respect of the model clauses to ensure that they are used for what I think he and I agree are perfectly reasonable purposes and not a Henry VIII-type process that might go wider. I understand his point, but in the time we have been able to devote to it so far, it is difficult to see how that would work. It would require the Secretary of State in each case to make a judgment about whether a provision fell within the model clauses and was reasonable in the circumstances or went beyond them. Our fear is that, if we go down that road, it would require the Secretary of State to substitute his judgment for that of the IPC in respect of each individual application of the power to vary statutory provisions. That would defeat the whole purpose of the IPC in this respect.

I am happy to continue looking at the issue, but I need to be frank with the noble Lord and the House and say that the attention we have given to it so far does not offer a credible way forward; that is, one that does not simply superimpose on the IPC a whole new review process with all that goes with it and which would fall to the Secretary of State. Our judgment continues to be that in the light of the safeguards I have set out—all powers must be applied for and considered in public, they must be based on model provisions set out by the Secretary of State, they cannot authorise by-laws and offences, decision-makers would be bound to decide in accordance with government policy as set out in national policy statements, and the provisions in Clause 119 in respect of the powers of the Secretary of State where orders appear to contradict EC or ECHR law—the powers are moderate and reasonable in the circumstances, and indeed essential if the IPC is to operate a single consent regime.

That is the position we have reached, but if further enlightenment comes to us, I would be happy to communicate with the noble Lord. However, I do not want to raise hopes that we can provide a way through this. We believe that that would be hard to achieve without unpicking a central feature of the IPC. I therefore ask the House to stand by the clause as it is.

My Lords, the noble Lord has given a clear explanation of what I would call the obvious examples where it might be appropriate for these powers to exist in relation to laws that date back to the 19th century, and with which I am bound to say I have every sympathy, but has he thought about the other end of the scale? Could he give an example of a possible exercise of power that he might consider to be unreasonable, so that we can judge the breadth of the spectrum in this regard?

My Lords, with respect, the onus ought to be on the noble Lord to cite such an example to me. Our case is that we believe that, with the protections I have set out, this power would be used reasonably and we would not see examples of the kind he fears coming forward. If he wishes to put to me examples where he believes credibly that powers sought in TWA orders would have been excessive and might conceivably be applied by the IPC in a way that reasonable people like he and I would regard as inappropriate, I would be happy to look at them.

My Lords, I can only respond by declaring touché. I thought that with their expertise the Government might have thought of one, but with my lack of expertise I would not expect to be able to do so.

My Lords, I am sorry to labour the point, but it goes to the heart of the clause. The problem is that with all our expertise, a great deal of which is sitting to my left in the Box, we think that this is a reasonable provision that is not liable to the Henry VIII implications feared by the noble Lord and his noble friend Lord Jenkin.

My Lords, the serious point is to ensure that proper consideration is made of the matters before decisions are reached. Indeed, the noble Lord will have heard the reaction of these Benches when he mentioned Borough Market. In that connection, he referred to the need for the matter to be considered in public. Can he give an assurance that, more than being considered in public, there will be the opportunity for representations to be made?

My Lords, I can give that assurance. It is important that the IPC can use powers under Clause 118(5) only where a promoter has applied for consent. The application should be considered in a public examination with all interested parties and members of the public having the right to make representations to the IPC. It is for that reason that we have introduced the safeguard.

My Lords, the amendment has been justified and we have had a full and persuasive explanation of the Government's policy from the Minister. As I said at the beginning, there was no argument over the great mass of the detail, which is essential for bringing into effect the infrastructure projects with which the first part of the Bill is concerned. However, there needs to be a long-stop and I wonder—we are not in Committee and so I cannot ask questions—whether there is a procedure whereby a decision of the commission could be challenged on the grounds that it may have made an unreasonable and disproportionate use of this power. If there was such a long-stop, where people could say that a matter was going too far and persuade a court that it was right to challenge a decision, then one would have the kind of protection that I am looking for, as against a major change in the law simply made by an appointed body.

I shall need to consider this matter. The Minister kindly said that he will continue to think about it. I will continue to think about it and we may need to come back to it at Third Reading. In the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 121 to 121B not moved.]

Schedule 5 [Provision relating to, or to matters ancillary to, development]:

[Amendments Nos. 121C to 121G not moved.]

My Lords, I beg to move that further consideration on Report be now adjourned.

Moved accordingly, and, on Question, Motion agreed to.

House adjourned at 10.03 pm.