I welcome the panel members. I will start by asking for your opinions about the consequences of implementing clause 21, which is about bringing commercial and business into the national infrastructure policy.
Robbie Owen: We believe that clause 21 could be beneficial for the right sort of projects, because the Planning Act 2008 regime is beginning to work well and a number of cases are now coming through under it. The regime’s ability to deal with complex projects within, to a large extent, a fixed time scale are two benefits that could be applied to the right projects that otherwise would be considered under the Town and Country Planning Act 1990 regime. The impact assessment published last week makes some fair points here. In relation to complex projects, perhaps spanning more than one local planning authority, and where there is a risk of delays by appeals and call-ins, we consider that the 2008 Act regime could be beneficial.
Angela Knight: To add to what has been said, we are concerned about one issue to do with the clause, while supporting the generality of the clause. As it is drafted, there could be an out-of-town business park with, say, an associated combined heat and power but they cannot be considered together. It is important that there is holistic consideration of some schemes. It may not be the intention of the Bill, but the way that the clause is drafted results in an infrastructure project and a commercial project not being considered together. We urge that they are considered together.
Pamela Learmonth: As per the prior information that we submitted to the Committee, our principle interest is in clause 7. If there are any particular questions about other clauses that you would feel interested in our answering, as broadband providers, we can come back to that. But that is where our focus is on the Bill.
Okay. Can I just pick up on a point made by Mr Owen? I was struck by your saying, “the right sort of projects”. Some of us are struggling with what the right project might have to be to be caught under the clause, and particularly what the threshold might be to move something from local to national determination. Can you help the Committee by saying what might be appropriate?
Robbie Owen: There are probably two issues here. First, we have heard from the Minister that a consultation exercise is due to be held on the terms of a draft statutory instrument, setting out the types of development. Certainly, based on the Planning Act experience, we do not think it should be that difficult to set out the types of development with the size, thresholds and descriptions as was done in the Planning Act. It may then need to be changed. That has already happened in the context of the Planning Act. Some of those thresholds have been changed, and more have been proposed to be changed. However, we do not think it is impossible to do. I entirely support the point that there is the rather odd exclusion of dwelling houses, as the Bill makes clear, which would rule out any mixed-use schemes from the scope of the Bill. We do not understand the logic of that.
Secondly, it is important to leave a degree of flexibility so that when developers approach Government and say, “We have this particular scheme,” it is caught by the prescribing regulations. The Government can then say, “We consider it to be of national significance. Would you please designate it so we can go down the Planning Act route?” The way in which the designation process works needs more attention in terms of how the Bill is drafted. At the moment, the sole criterion is whether the scheme is of national significance. We should consider whether it is right that that is the only criterion, or whether other issues should be taken into account by the Secretary of State, such as complexity, whether there is more than one local authority or whether there is a time urgency. That, together with the classes of development that you prescribed to make these schemes eligible in the first place, should provide a way to determine which are the right schemes to send down the process.
It is important to distinguish between the Planning Act, where, if you are caught, you are caught and you have no choice but to go down the Planning Act route for national infrastructure, and this proposal, which will give developers a choice. If they, in consultation with the local authority, think it is important and appropriate for their scheme to go down this route, they can go to the relevant Government Department and seek to persuade them and ultimately the Secretary of State of that. However, it is not compulsory.
Pamela Learmonth: As the Committee will know, unfortunately the consultation against clause 7 has not yet been published by the Department for Culture, Media and Sport. When we see those full proposals, we and the companies and organisations we work with will comment in full detail. However, our understanding is that clause 7 will make it easier for the Government to install broadband street cabinets and overhead broadband lines. The companies we work with have absolutely no interest in placing cables or street cabinets in areas that are not supported by the associated local areas. However, we understand that in taking forward these proposals, there will be an associated code of practice and there will still be a notification window of 28 days. The broadband stakeholder group and companies we work with are supportive of that.
We do not see this as a planning free-for-all—that is certainly not what we are calling for—but we think that these measures are necessary because the current regime results in a delay by process. As such, if we can liberalise the regime and develop a feasible code of practice alongside this, we think that will help both speed and efficiency of broadband roll-out. It will also work for local communities and ensure that infrastructure is sensitively placed and does not obstruct or denigrate conservation areas or national parks.
Pamela Learmonth: The Government are behind the roll-out of superfast broadband to areas where the market is not reaching at the moment. That is the intention behind the Government’s public investment programme and the BDUK roll-out programme. Hopefully, that will get under way shortly, once the final state aid issues have been resolved. We all have an interest in getting that out as quickly as possible. The companies that win those contracts want to deliver that in line with the Government’s 2015 target. But there is an issue at the moment. There can be inconsistencies between local authorities. BT has said that some 2,500 cabinets have been taken out of their programmes as a result of the current planning regime. If we are keen to get this infrastructure out to communities that are crying out for that connectivity and are lobbying their MPs and the Government to do so, we think that the changes can make a real impact on the ground and ensure that the connectivity gets out there as efficiently as possible. At the moment, there can be some inconsistency between planning authorities. We have some anecdotal evidence of people being asked for fees even just to meet local authorities to discuss where cabinets are to be sited. These sorts of things will naturally get in the way of an efficient and quick roll-out.
As I said, we still need to see the details from the DCMS consultation, but we are very much behind the intention of this. We think this is exactly the sort of thing that the Government should be doing to help the private sector invest more quickly. We think this can make a real difference on the ground. The industry is committed to working with other stakeholders around a code of practice to assuage some of the concerns that have been voiced about whether this is a planning free-for-all, or whether it will lead to infrastructure being sited in areas that local inhabitants do not wish it to be. That is not what we want. We need more certainty around planning regimes so that we can get on and deliver the connectivity that the Government and your constituents want the industry to do.
There has been a lot of talk about how everything could be put underground. I understand why people would say that about optic fibre and similar. One of the benefits of 4G surely must be mobile broadband, which, in my constituency, I would consider will be absolutely critical. Do you have concerns that there are barriers to more infrastructure above ground at the moment, which this legislation can help with?
Pamela Learmonth: As we understand it, the consultation that will come out from DCMS that will say what it will use clause 7 to do will relate only to the siting of broadband street cabinets and overhead lines. Other elements that are important in terms of mobile infrastructure, we do not understand are being taken forward under clause 7, but will be taken forward by other means. With EE just announcing 4G, it is starting out with 16 cities and will move from there. We are very much looking at that fixed in quite a lot of ways, in terms of getting fixed connectivity out. I think there is a job to be done in ensuring that planning does not get in the way of more rural areas getting 4G when that is deployed.
In terms of the two elements we understand that clause 7 will do—broadband street cabinets and overhead lines—Virgin Media did a trial in Berkshire with overhead lines. It found that it was very cost-effective and seemed to work well with the consumers they were working with. But in that instance, they were able to agree terms with private land and triallists. They did not have to go through the planning regimes to do it. There is potential for overhead to be used, which should get connectivity out at a much cheaper rate. Again, some sort of planning barriers have got in the way of that. In that instance, if clause 7 was used to drop the planning permission need for overhead—obviously still with an associated code of practice to offer safeguards—that could be a positive development in allowing the private sector to innovate with new ways of deploying infrastructure. It can do it on a more commercially viable basis, and it gives end users more opportunity to receive connectivity.
Can I have a quick follow-up? I am interested that you keep talking about planning barriers. I wonder whether the local community would ever think of these as legitimate concerns about what cabinets might look like. After all, we are talking about very environmentally sensitive areas. Would you accept that there should be better ways of negotiating with local communities on what is appropriate for areas of outstanding natural beauty or national parks? Would you accept that clause 7, as it is written, will not limit itself to broadband?
Pamela Learmonth: First, in terms of when we are saying there are planning restrictions, obviously if there is a genuine case of viable opposition to the siting of a street cabinet, and that is very much coming from the local community, that is something that BT and others will want to listen to. We are not calling for a planning free-for-all here; and, as we understand it, in the consultation that will come out there will be safeguards applied to this, so there will still be a 28-day notification requirement around street cabinets, and also the development of a code of practice, I think, similar to the format of what already exists in terms of the siting of mobile masts.
So we are not calling for a planning free-for-all. That is not to say that industry cannot make mistakes and propose something that might not work; so we are not calling for that. What we are saying is that in experience so far there has been a lack of consistency in applying planning principles between planning officers; there has been a lack of consultation from a local authority before it rejects an application—decision making taken to the absolute deadline. These are real issues that the industry is facing, and they need more certainty to be able to plan for confidence. We are not asking for that. We just think that clause 7 does allow for much improvement to the current regime.
I think it is also worth pointing out that when we are talking about the extension of removal of prior approval into an extended piece of area, this all relates to what we would call the final third deployments, so hopefully there is already synergy there, in terms of local authorities making their broadband plans; they are the people that are leading their bids to, in the UK, roll out superfast broadband in their communities. We would hope that there is already buy-in there, of rolling out that infrastructure, and obviously they are the experts; they will know the concerns of those living in the local area. So we are hoping that, actually, this is just very much tying into what is already there in terms of local authorities leading the way in developing their own broadband plans, and then working effectively with industry that will come to deliver that.
Your final question was do I think that clause 7—
Pamela Learmonth: Our understanding of that is, that is the way that it has to be drafted to ensure technology neutrality—to be specific around which part of electronic communications there, is not something that is feasible in legal drafting. However, we understand that, as I said, once associated consultation is issued by Government, which we are eagerly waiting for—I am more than happy to come back to the Committee once we have seen it—it will make clear their intention of how to use that in relation to this specific clause. I would hope that would offer you clarification and assurances that what clause 7 is aimed to do is to make the siting of broadband street cabinets easier to do—and deployment of overhead lines.
I also understand it is going to be a sunset clause that will run for five years from 2013, so I think this is very much focused on trying to facilitate roll-out of superfast broadband in the next five years and allowing industry to get on and deliver that connectivity that we are always being lobbied to deliver, but with associated safeguards in terms of code of practice and 28-day notification windows, too.
Miss Knight, your members generate more than 90% of UK electricity and supply up to 26 million homes, I am given to understand. I am particularly interested in clause 22, “Postponement of compilation of rating lists to 2017”. I am also interested in your letter to the Secretary of State for Communities and Local Government, and to the Business, Innovation and Skills Minister, who joins us this morning. You wrote on 29 October:
“Government policy and regulatory certainty is crucial. The decision to postpone appears to have been made without consultation and is likely to have an adverse impact on many of our members…there is a risk of plant closure. High business rates may well lead to higher wholesale prices, which will ultimately be passed through to business and residential customers. This will not be welcomed at a time when household budgets are already squeezed…We would urge that this matter is reconsidered”.
You conclude by saying that you would welcome the opportunity to discuss this issue. Have the Ministers come forward and discussed the matter with you?
Angela Knight: A discussion took place between officials and representatives of Energy UK yesterday, and I have also received a holding letter from the Minister. It is a matter that is pertinent to some, but not all, of the power stations in the country, as I think that I made clear. The concern relates particularly to some of the older stations, where the situation now is rather different from the last valuation. At the same time, I recognise that these things are quite complicated. Business valuations and ratings usually have a number of interconnecting parts, so we look forward to continuing the discussion on these issues.
Angela Knight: No. The discussion that took place yesterday between officials and representatives of Energy UK was, I gather, informative. I have not had a full report back from that, and we will have to look at some of the calculations again. There are still, therefore, concerns on the table, but I cannot give a conclusion as to where we are at this stage. I am quite happy to write to you when the discussions have concluded.
You said in your letter that the proposed break in precedent has the potential to lead to less certainty at a time when that is important to business. The Government are claiming that the postponement of business rate revaluation is providing certainty; your letter clearly states that it is providing uncertainty. Which is it?
Angela Knight: There was an anticipation that a revaluation would be taking place, and the assumptions that a number of entities had plugged in was that, if the revaluation was undertaken in the same way as the previous one, it would result in a lower bill for themselves. That is, of course, important for all industry. I cannot yet give you confirmation—yes or no—on whether the discussions that have now taken place between officials confirm that. As soon as we know the outcome of those discussions, I will of course write to you and the Committee with pleasure.
Angela Knight: I think that there is a risk of plant closure for a number of reasons, not least a series of further directives that are coming in from Europe that apply to some plants. We have to recognise that. There are a number of reasons that we require certainty as far as the energy industry is concerned, and predominantly they relate to the significant investment required in this area. Planning is a part of that, but by no means the whole story.
I think that the public will be surprised to learn that you believe the value of energy networks and power stations has fallen by more than average when their bills are shooting through the roof. Can you explain why you think your business rates would fall?
Angela Knight: Yes. As you know, there is of course a significant difference between the economy now and the economy when the previous rating took place. Demand is therefore down, and that relates back into the method by which power stations are valued for the purposes of rating valuation. Because there is an activity element and quite a significant amount of documentation that supports it, whereas the anticipation was that some power stations, particularly the older ones, would get a reduction in their business rates, the concern is that that is no longer going to take place. As I think that you are well aware, much of the debate around energy, which is clearly very important for all our customers, both individuals and businesses, is a strong and important one. A lot of the price of energy relates to what is happening in world prices, so it is outside the control of the UK.
Can I bring the panel back to clause 21 and raise four specific issues? First, on the definition, could you give us your view on how to best define which projects should be treated as of national significance and brought within the regime? Secondly, on exclusions and separate regimes, which you have already alluded to, there is the exclusion of housing, which would compromise mixed-use developments and the separate regime where there is an energy component. Thirdly, there is the need for national policy statements, which was very much stressed by Dr Ellis from the Town and Country Planning Association in his earlier evidence, which you may have heard. Do you agree with that? If there is not a national policy statement, how can the inquiry be limited, as it should be under the 2008 Act regime? Fourthly, could you give any views that you may have on how this will impact on the implementation of policy in relation to town centre as against out-of-town development. Sorry, that is a very big range. I thought that it was better to give you the questions and let you come back, rather than do follow-ups.
Robbie Owen: Thank you. Let me take those four questions in turn and, I hope, answer them comprehensively.
First, in terms of how and where those schemes that could go under the Planning Act by virtue of clause 31 could be defined, there are two stages here. First, the intention is that those projects that will be eligible to be considered to go under the 2008 Act regime would be set out in a statutory instrument. The Government have committed to prepare a draft and consult on that. I do not see a difficulty in terms of setting out in the draft statutory instrument the kind of projects that will be covered and their size, nature, description and purpose, just as the Planning Act does at the moment in relation to the types of energy, transport, water and waste infrastructure that it covers.
That is the first step, but secondly, you have to go through the stage of applying to the Secretary of State for a designation, if the Secretary of State considers that your project is—albeit one within that list in the statutory instrument—of national significance. It is a two-stage process. The first stage is the statutory instrument and the second is the judgment by the relevant Secretary of State as to whether your scheme is of national significance. As I remarked earlier, whether that is the right and only test is a matter that the Committee will no doubt want to consider, because there may be other criteria, such as complexity when more than one local authority is involved.
On the second question, which is on exclusions, first, I do not immediately understand why the current exclusion in the Bill in relation to dwellings is there, especially if mixed-use schemes are intended to be covered, because mixed-use schemes will always include housing, whether it is affordable or otherwise. That merits further consideration. It may be that the Bill might be better expressed to be something where you cannot prescribe under the SI a project that consists wholly or mainly of dwellings, but to rule out any project that includes even one dwelling seems a bit extreme in my view.
Secondly, I do not immediately understand why separate regimes apply to energy, because the huge benefit of the Planning Act regime and those projects sent down that route under this process is that that regime is—not entirely, but by and large—a one-stop shop. Therefore, you can wrap up in it all of the other separate consents you would normally need, so would not need separate consents. It may be that I have not fully understood that point, but that would be my response.
Angela Knight: Yes, I can with pleasure. It may well be that the Bill, as it is written, does not have this intention. In clause 21, where we support the way and thrust that that clause is drawn of bringing business and commercial projects together, as we understand it, the Government perceive that a project is of national significance on its own or in combination with projects of the same kind, although an infrastructure project and a commercial project cannot be considered together even though they are linked. That effectively means that you have a project that is linked, but you end up without being able to consider them together.
So often, if I can speak from a personal viewpoint, seeing things together and thinking about them together is vital. There is something about that necessity as well as a clear process and procedural issue, which makes common sense, and that that which makes up the project is considered together from a planning perspective rather than in individual chunks.
Robbie Owen: I think that that is a fair point, and it goes to the detailed drafting of clause 21. It would be beneficial to make it more flexible in terms of who can make a “qualifying request”—the language that is used—so that you could cater for the situation that Angela Knight is concerned about.
I turn now to your third and fourth questions on policy. It is perfectly true that one of the main planks of the 2008 Act regime was to take policy out of the process by having policy set in advance by Ministers through a series of national policy statements, now, as we know, under the Localism Act 2011, approved by Parliament as opposed to Parliament just being consulted on them. The idea behind that was that we could then avoid debates on the national need for a certain type of infrastructure when we came to promoting particular schemes through the Planning Act process. That said, the Planning Act anticipates that there might be cases when decisions come to be made under the process and when there is no national policy statement in effect. In that situation, the legislation obliges the Secretary of State, as the decision maker on the individual scheme, to have regard to a list of other things, particularly any other matters that the Secretary of States thinks are both important and relevant to the decision.
It is worth noting, in fact, that the first two decisions that have come out of the new process following the abolition of the Infrastructure Planning Commission to schemes for Network Rail were both made in the absence of any national network or policy statement, so the system has already been shown to be one that can work in the absence of a national policy statement. In that case, we have to ask whether we need a national policy statement for clause 21 to work effectively. The answer to that really depends on what type of development is it intended for clause 21 to deal with, because the list at the moment is quite broad. We have seen in the impact assessment and when the Minister gave evidence to the Select Committee in October that, when that list is confirmed in a draft SI, we will be better able to take a view whether, in fact, it would be pretty difficult to take schemes through the Planning Act process without a national policy statement.
At one extreme, we are looking at a broad category of commercial mis-development, and it is hard to contemplate how the Government could sensibly produce a national policy statement on that wide variety of schemes, whereas, for example, if it were more focused on research and development, big business parks or mineral extraction, it would be easier to contemplate a national policy statement that dealt with those issues.
The impact on town and city policy should be taken care of, because the national planning policy framework is certainly something that can be taken into account when making a decision under the 2008 Act, under the reference that I mentioned earlier of anything that is both important and relevant. Were there to be no NPS for a particular scheme that was going through under the 2008 Act because of clause 21, what the NPPF had to say on the matter would be relevant and important, taken into account and could certainly be used to maintain the town and centre first policy.
Can I pursue that? Given the controversial nature of many such developments—I am thinking particularly of out-of-town developments—which might be seen to be undermining the viability of the local town centre, what do you think is the likelihood of judicial review, because of the number of uncertainties, which, in a sense, you have alluded to in your evidence and which have come out in our earlier discussion?
Robbie Owen: The spectre of judicial review is perhaps used a bit too often as a reason not to do things. Yesterday’s announcements were interesting and relevant in this respect. So far as planning judicial reviews are concerned—using “planning” in its broader sense—there has not really been an increase in planning judicial reviews for a long time. The big increase has been on immigration and similar cases. I do not see clause 21 and the increase in judicial review cases as being at all linked. Experience has shown that big projects proceeding under the Planning Act and its predecessors are virtually always dealt with without judicial review. I do not think that it is that relevant.
In view of the fact that we have not taken up all our allotted time, unless there are any other themes that anyone wishes to raise, I thought it might be appropriate, if the witnesses felt that there were any areas they had come prepared to cover and have not had the opportunity to do so, they could add to what they have already said. There is no obligation.
Pamela Learmonth: I want to reiterate and clarify some of my earlier comments. We are still awaiting a consultation from the DCMS on clause 7, which will give us more detail on that. We are awaiting that, as I am sure you all are. We are more than happy to provide more information once we have seen that detail. However, as we understand the intention of that clause, it is not to initiate a planning free-for-all, but trying to streamline the process, so that the siting of street cabinets and the use of overhead broadband lines is easier to do, to help the private sector to roll out the connectivity that we are all crying out for in a more efficient and effective way. We very much support the intention of that. We have been calling for this since 2007, so this is very welcome, and we very much support the clause and the intention of the Bill.
Robbie Owen: May I make two additional points that relate to the brief memorandum that I submitted in advance? The first relates to clauses 19 and 20 and the vexed subject of the special parliamentary procedure, which is a rarely used and, in consequence, not well understood. We support the Government’s wishes to curb the application of special parliamentary procedure in a number of cases, both to prevent it from applying in cases involving the compulsory acquisition of land belonging to a local authority or statutory undertaker and—this is about clause 20—when it does apply, to restrict its scope to just the compulsory acquisition issues that have given rise to it applying in the first place. We have the current unhappy experience of the Rookery South development consent order, which is subject to SPP at the moment.
We feel, however, that the Bill does not go far enough, in that clause 19 should also remove altogether the prospect of the special parliamentary procedure applying in a case involving the acquisition of open space, as distinct from National Trust land, commons and allotments. Open space can be any land that is used as a matter of fact for public recreation. It does not have to be publicly owned, and in my experience, it comes up a lot with linear infrastructure projects. Given the broad scope of the 2008 Act process and how projects are examined, we feel that there is no need for the additional check or balance of SPP applying in cases involving open space.
The other point I want to make is that we think things could be added to the Bill to improve yet further the workability of the 2008 Act for national and significant infrastructure projects. In essence, those provisions should be to facilitate even more of a one-stop shop. Secondly, they should allow the regime to be a bit more flexible and proportionate, as opposed to being one size fits all.
Thirdly, and perhaps most importantly, we think that the benefit of the regime’s having fixed time scales for examinations and decisions could be applied to the pre-application stage as well by having a degree of more active programme management, or case management, by the Planning Inspectorate, to make sure that the pre-application period, when all the consultation and assessments are done, is no longer necessary. At the moment, it can be a period of up to three, four or five years before projects even get before the inspectorate, and therefore even trigger the fixed time scales. We hope the Committee will consider adding to the Bill in those respects.
Angela Knight: As an energy industry, our predominant interest in the Bill lies in the technical changes that are made in some of the clauses relating to old legislation. Apart from clause 21, our interests are much more of a detailed nature. One point that I want to make is that we are supportive of the thrust of the way that the legislation has gone in planning, because there are some major projects—energy projects—that are coming forward, as you know, and there is a need to get that proper balance between the local consultation and the real issues that the local communities are experiencing, but to enable the projects to go ahead as appropriate in the national interest. As I said, we are supporters of the broad thrust of the way the legislation in this area has been changing and of this Bill.