Baroness Coffey:

Moved by Baroness Coffey

17: Clause 3, page 5, leave out lines 28 to 32Member’s explanatory statementThis is to probe why it is necessary for Government-imposed NSIPs to have no planning consent or public engagement.

With Amendment 17 I will also debate Amendments 18 to 23 in my name. These have been described as a “redirection”; I am not exactly sure what that means, but there is a theme that I hope will become clear. I thank my noble friends on the front bench for adding their names to Amendments 17 and 23.

As the Explanatory Notes and various bits of memoranda make clear, this Clause is designed to try to speed up aspects of planning, and I understand that flexibility may be wanted. I was a bit surprised when Minister Pennycook in the other place suggested in Committee, talking about offshore generation, that perhaps the MMO could become the planning authority in that regard. The MMO is simply not big enough to get into that.

The theme through my amendments is the fact that a Secretary of State has some literally very special powers, called special development orders. That is why I have tabled some quite detailed amendments. While the narrative, including in Committee and in various memoranda, has been that it can go to an alternative consenting authority, the reason I have tabled these amendments is that there is an alternative consenting authority: the Secretary of State himself or herself.

Amendment 17 tries to probe why the Bill refers to Section 59. You do not need to go through the NSIP and DCO process because the Secretary of State could, more or less, just authorise this tomorrow, without any public consultation, engagement and all sorts of things. The Secretary of State already has the power to do that. I expect that it is usually used for things such as MoD land, so the reasons may be somewhat related to national security infrastructure and so on, but I am concerned that this hands a heck of a lot of power to the Secretary of State, and we should at least be considering that carefully.

That is particularly true when thinking about nuclear and other energy generation, which my Amendment 23 covers. The amount of land taken by most energy projects is pretty significant, not just land for the station itself or the transmission network but the preparation land. That is why I would like to see a commitment, ideally in law, that this will never apply to where a Secretary of State themselves can, on request, give planning permission to something from a developer.

I turn to another aspect of my amendments. This is a novel process—I think that is the explanation in various memoranda—and it will be done by regulations. Putting in the Bill three months for the Secretary of State to make a particular decision seems reasonable if the whole point of this is that it be done quicker. By the way, that is just considering whether something should go through the DCO process or an alternative consenting authority.

In the debate on the first group, I clumsily mentioned the Minister’s commitment to write. It was actually Minister Pennycook, in the House of Commons Committee where this was considered, who pledged several times in the debate on this clause to write to the Committee. That letter may have been sent to the members of the Committee, but it certainly has never appeared on the Bill website or been deposited in the Libraries of either House. He pledged to give more examples of how this would work in practice. The reason for me probing this today is that we could end up with some kind of Stalinist Secretary of State who is determined to build whatever they like anywhere and everywhere. As it stands, through this amendment and this new clause, we will give them the powers to do that, and I do not think we should. That is why I wanted to look at this clause.

I turn to Article 6 of the convention on human rights. Again, a back-up memorandum says:

“These alternative consenting regimes are likely to be … the Town and Country Planning Act 1990, Highways Act 1980, Transport and Works Act 1992 and the Harbours Act 1964”.

But it does not say that it will be only that, which, again, is part of my concern.

So, in a variety of ways, this is probing to see whether we can properly get, in effect, a commitment from the Government on the Floor of this House or through a letter from the Minister—if it is not in legislation—that can candidly be used in a future court case when somebody might want to oppose the Secretary of State doing something so draconian. It would show that it was made clear to this House and this Parliament that that would never happen. So far, none of the back-up memoranda or Explanatory Notes makes that explicit, and that is what I hope to achieve today.

I am particularly concerned about energy projects. The noble Lord, Lord Hunt, is no longer in his place, but I explained on the previous group that I have extensive experience of trying to handle NSIPs as a Member of Parliament and now as a Peer in this place, and I am still very concerned about my local community and what is happening in that regard. With that, I beg to move.

My Lords, I thank my noble friend Lady Coffey for explaining this group. That leaves me no need to go through it again, but I am pleased to support her Amendments 17 and 23. I will be brief, but I wanted to say something about both of them, especially Amendment 17. This amendment is vital because it probes the fundamental issue of democratic accountability and local consent. If the government-imposed national significant infrastructure projects can proceed without planning consent or public engagement, we risk undermining public trust by excluding communities from decisions that directly affect them. This also weakens local accountability by sidelining local authorities and stakeholders, and it increases the risks of legal and political challenges, as the lack of consultation may well lead to resistance or even to judicial review.

Probing this issue is essential to ensure that any such powers are used only when they are truly justified—when they are proportionate to the situation and exercised with true transparency. I raised this concern in the opening group today, and it is one on which we really need some clear answers. I ask again, why is it necessary for government-imposed NSIPs to bypass both planning consent and public engagement? How is this consistent with the Government’s continued claims that localism is protected?

My Lords, I apologise for not preceding the noble Baroness, Lady Scott.

Amendment 17 would remove the required consent for the construction of or extensions to a generating station for electricity. Can the Minister explain why, in this instance, the government proposal is that it be disapplied from the existing requirements for going through a proper process? It is important to understand the reason. If it is for timeliness, what causes the delays? If it is for reasons of cost, is that related to timeliness? Is there another way to have accountability and public discourse without creating delays and cost pressures? Otherwise, why would we want to disapply the current requirements for consent? Again, there is a thread of accountability running through this: there is a tension, as the noble Lord, Lord Hunt, mentioned, between getting things done and accountability for local communities.

With those few comments, I look forward to a detailed answer from the Minister.

I thank the noble Baroness, Lady Coffey, for tabling these amendments. As she said, they are probing amendments, and I hope to be able to give her an explanation. She again mentioned the letter that Minister Pennycook promised. I have asked to be informed whether that letter was sent. If it was, I will provide the noble Baroness with a copy, but it would not be usual, I suspect, for copies of letters that were circulated to a committee in the other place to be automatically circulated here. If that letter exists, I will send it to her.

All the amendments in this group, tabled by the noble Baroness, Lady Coffey, seek to amend the operation of the redirection process as set out in Clause 3, including the replacement of regulation-making powers with time limits or statutory guidance. I recognise that Amendment 17 is probing, so I will first seek to explain how the redirection process has been designed before addressing some of her concerns head on and then turning to Amendment 23. I apologise if these explanations seem very detailed, but it is important to take the time to explain properly.

The NSIP regime was designed to provide a single route through which to consent all types of large-scale infrastructure schemes. As we know, on occasion this one-size-fits-all approach is not proportionate for specific developments. Clause 3 seeks to address this by creating a new power for the Secretary of State to issue a direction disapplying the requirement for schemes above the NSIP thresholds to seek development consent. Clause 3 sets out the circumstances in which a request for a direction may arise, what a request may contain and the steps the Secretary of State must follow in responding. Crucially, the Secretary of State may direct development out of the NSIP regime only if they consider an alternative consenting route to be appropriate given the particular circumstances of the development in question. Enhancing the flexibility of the planning system in this way should reduce burdens on applicants which are otherwise disproportionate and support the Government’s ambitions to have a streamlined planning system. This level of flexibility already exists under the Planning Act.

Section 35 enables the Secretary of State to direct into the NSIP regime those projects which fall outside of the statutory thresholds but which have none the less requested to follow the process for nationally significant infrastructure schemes. This has been invaluable, as we know, for enabling numerous water schemes to progress.

Clause 3 provides that flexibility but in the other direction. It may be that a transport scheme is located in an area with a supportive local authority and does not require the acquisition of land. Instead of requiring the entire scheme to become an NSIP, an applicant could now request to follow the route that is most appropriate to their project. As the Government’s working paper on proposals to streamline the consenting process for infrastructure acknowledged, the existing thresholds have not kept pace with technological advancements. This has held back projects from coming forward—for example, medium-sized schemes—because the process of obtaining development consent was out of kilter with the relatively straightforward nature of the scheme.

Clause 3 is intended to be flexible so that the Secretary of State may choose the appropriate consenting route depending on the particular requirements of a scheme. As noble Lords have pointed out, this means the power could be used to direct a scheme for a local decision under the Town and Country Planning Act. It may direct a scheme to seek consent under the Highways Act or the Transport and Works Act. As the Housing Minister explained in the other place, the Government will publish policy setting out the key factors the Secretary of State will take into account when making a decision as to whether or not to give a direction. Given that the intent of the power is to increase flexibility, it is critical that potentially viable planning routes are not excluded.

Amendments 17 and 23 seek to prevent the power being used to redirect an NSIP project to be consented via a special development order. Amendment 23 goes further. It would also require all redirected onshore energy generation NSIP projects to be consented through the Electricity Act 1989. Additional steps are outlined in cases where a Secretary of State is the applicant for an NSIP project being redirected. We recognise that the noble Baroness’s concerns stem from an interest in protecting a local and national democratic say in the consent of important projects. However, similarly to other types of consents, development orders are an established part of the planning system in England. They are made by statutory instrument and are laid before Parliament under the negative procedure. Development orders have in the past been used to grant permission for certain classes of development—for example, for the purpose of national defence.

An alternative example may be that a commercial development that could otherwise be consented through a special development order also requires an access road which, under existing legislation, could be consented only through a development consent order. This power would enable that project to be consented under a process which is proportionate to the complexity of the scheme.

Amendments 17 and 23 would not only remove the option of a development order but would force an onshore energy generation scheme redirected out of the NSIP process to be consented via the Electricity Act 1989. This process under Section 36 of that Act is outdated and was not designed to deal with modern energy demands. That is why it was replaced by the Planning Act 2008.

In keeping with the spirit of the noble Baroness’s amendment, the Government agree that, where appropriate, we should ensure that onshore electricity generation can be consented through other appropriate consenting routes, which might enable local decision-making. However, this amendment would not deliver this in practice.

The proposed amendment would remove the ability to handle a request for an NSIP project to be directed into an alternative consenting route where it is the Secretary of State who proposes to carry out the development. This would require them to make a written request for a direction to themselves. This is clearly impractical and unnecessary. Noble Lords can rest assured that, if those circumstances were to arise, the Secretary of State would follow the planning propriety guidance in the same way as already happens for planning casework decisions.

I turn now to amendments 18, 19, 20 and 22, also tabled by the noble Baroness, Lady Coffey. Clause 3 empowers the Secretary of State to make provision by regulations about the time limit, including the extension of such a time limit, for determining requests for redirection. These amendments instead would set a fixed three-month time limit in primary legislation and would enable a further period of a month after the initial determination to consider further interventions before reaching a final decision. The Government want requests for redirection to be determined promptly. However, proportionality and flexibility are needed to ensure decisions can be made in a timely fashion and fairly. The most appropriate timeframe will depend on a number of factors, including the demand from applicants and the complexity of projects coming forward.

By taking a power to make regulations, the Government can adjust the timetable as they learn more about the types of requests they are likely to receive. Setting out the timeframe in primary legislation may disincentivise the Government from improving and speeding up decision-making over time. Not only would this amendment introduce greater rigidity by effectively requiring decisions to be taken in three months when perhaps they might be able to be taken sooner, which is what we all want to see in certain cases, but it could result in an unrealistic or unworkable time limit in, for example, particularly complex decisions. The Government plan to lay regulations to set a timeframe as quickly as possible, when parliamentary time allows.

I come to Amendment 21, the final amendment to Clause 3, tabled by the noble Baroness, Lady Coffey. Clause 3 gives the Secretary of State the power to make regulations about the timetable for deciding requests for direction. This includes the timetable for the provision of information to the Secretary of State in order to make such a decision. The proposed amendment would replace this provision with a requirement for the Secretary of State to publish statutory guidance about the timetabling of information required to decide a request for direction.

Making a decision to direct a project out of the NSIP regime would be a significant endeavour. It is right that the Government can be clear about when such information will be required from applicants, to enable robust and fair decisions to be made. It is the Government’s view that specifying this information in statutory guidance would reduce certainty for those making a request. The Government want to ensure that requests can be made and determined quickly, and that qualifying persons have certainty about when information is needed for such requests. It is therefore important that the Government retain the ability to make such provision in regulations. These will operate alongside non-statutory guidance to provide further detail about this measure as a whole.

I hope the noble Baroness, Lady Coffey, has found helpful my explanation of the operation of this clause and the justification for why these regulation-making powers are unnecessary. I therefore kindly ask her to withdraw her amendment. I apologise for the length of the explanation, but it is a complex area.

I thank the Minister for her comprehensive response. On Amendment 19, I gently say that it would be “within” three months, so ideally it could be within a day—however, I do not want to quibble unduly.

There is definitely concern about what sort of development orders could be in place. The Government are currently publishing in the Bill, and elsewhere, all sorts of things about devolution, and there is still some anxiety about whether local development orders or simplified planning zones could become part of this when they would not necessarily be suitable. Perhaps I will write to the Minister and we can have nice cup of tea and chat further. With that, I beg leave to withdraw the amendment.

Amendment 17 withdrawn.

Amendments 18 to 23 not moved.

Clause 3 agreed.

Clause 4: Applications for development consent: removal of certain pre-application requirements