Part of Levelling-up and Regeneration Bill - Committee (13th Day) – in the House of Lords at 3:45 pm on 18 May 2023.
My Lords, I will speak to three amendments in my name in this group: Amendments 378A, 378B and 386A. They are designed to try to ensure that this part of the Bill works effectively, and I hope will be regarded as helpful by my noble friend on the Front Bench. Not everything I have had to say has always been helpful, but I hope this is—it is all intended to be helpful, of course.
I remind the Committee of my registered interest as chair of the Cambridgeshire Development Forum. In that context, members of the forum from BDB Pitmans helped me with the construction of these amendments. Amendment 378A relates to Clause 142(3), which provides for informing the public and for “adequate public engagement” to take place in relation to the exercise of functions under this part. The effect of this new provision could be to extend public consultation requirements to the exercise of permitted development rights, because of the use of “proposed relative consent”. These are consents.
The present situation does not require such consents to be the subject of such a consultation requirement. In the legislation as it stands, adequate public engagement does not imply no public engagement. This would therefore increase the burdens on utilities, for example, in exercising a consent for a permitted development right in relation to telecommunications, highways, rail, et cetera. Amendment 378A would enable the Secretary of State to disapply the requirement where it would impose a disproportionate burden on development. Alternatively, page 174 mentions
“proposed relevant consent or proposed relevant plan” in relation to “adequate public engagement”. If “proposed relevant consent” was replaced with “EOR regulations”, it would serve the purpose perfectly well, and save the problem that might otherwise arise.
Amendment 378B relates to Clause 142(1) on non-regression. It is a pleasure to welcome back to his place my noble friend Lord Randall of Uxbridge. We have heard from him about the
“overall level of environmental protection”.
This is defined by reference to the European Union law when this Act is passed. My Amendment 378B would enable the Secretary of State to take into account, in exercising this responsibility to maintain the level of environmental protection, any urgent need for energy resilience. It is worth remembering that Section 20 of the Environment Act 2021 provides for environmental legislation to be introduced with a statement that
“will not have the effect of reducing the level of environmental protection provided for by any existing environmental law”.
There is then in that section a statutory provision enabling the Secretary of State to make
“provision that is different from existing environmental law” and
“might provide for the same or a greater level of environmental protection”.
Why then is there no equivalent provision in relation here to the making of EOR regulations? The inflexibility of this provision is particularly illustrated by the prospect in the European Union of the introduction of a streamlined environmental assessment process for low-carbon technologies. I have reflected this in the phrase
“urgent need for energy resilience”.
This would enable Ministers to take account of such a process to advance low-carbon technologies and not be tied specifically to a level of environmental protection defined by current environmental law. I encourage my noble friend to consider either my amendment or something similar to the provision in Section 20 of the Environment Act 2021.
Amendment 386A refers to Clause 150, which makes the consequential amendments to this part. It is about the proposed repeal of Section 71 of the Town and Country Planning Act 1990, which is what provides for environmental assessments. As it stands, that section will be repealed two months after this Bill passes into law. Existing environmental impact assessment regulations will then subsist from that moment until such time as the EOR regulations can be made, following the entry into force of those regulations.
But how long is the gap? How long will it be between this Act coming into force and the making of the EOR regulations? It could easily be well over a year and possibly two. For the greater part of that period, no power would remain to amend the environmental impact assessment regulations, pending the environmental outcomes reports regime. The EOR power is not able to amend the EIA regime until that stage.
My Amendment 386A would link the repeal of Section 71 of the TCPA 1990 to the first making of EOR regulations. That would therefore enable the current regime to be amended, if need be, before the point at which the EOR regulations first used create a new power that would be able to amend the existing EIA regulations or introduce EOR regulations. I commend those amendments to my noble friend.