Clause 19 - Special parliamentary procedure in cases under the Planning Act 2008

Growth and Infrastructure Bill – in a Public Bill Committee at 10:30 am on 4th December 2012.

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Photo of Nicholas Boles Nicholas Boles The Parliamentary Under-Secretary of State for Communities and Local Government 10:30 am, 4th December 2012

I beg to move amendment 79, in clause 19, page 20, line 10, leave out ‘(3)(a)’ and insert ‘(3)’.

Photo of George Howarth George Howarth Labour, Knowsley

With this it will be convenient to discuss the following:

Government amendments 80 to 83.

Government new clause 3—Removal of Planning Act 2008 consent and certification requirements.

Photo of Nicholas Boles Nicholas Boles The Parliamentary Under-Secretary of State for Communities and Local Government

Once again, it is a pleasure to serve under your chairmanship, Mr Howarth. The group of amendments will expand the one-stop-shop approach to consents for nationally significant infrastructure projects and ensure that the application of special parliamentary procedure applies in the way originally intended.

Clauses 19 and 20 fulfil the Government’s commitment to reform special parliamentary procedure. Clause 19, to which the amendments would be made, limits the use of the special parliamentary procedure, which requires further scrutiny by Parliament of decisions on the compulsory acquisition of special land, where it is not considered that it is necessary, or where there are good reasons for it not to take place.

As part of the Prime Minister’s housing and planning growth announcement on 6 September, the Government set out their intention to expand the one-stop-shop approach for consents for nationally significant infrastructure projects. On 26 November, I published a consultation setting out  our proposals for delivering that, while also giving notice to bring forward the new clause and the supporting amendments to the Bill.

Getting the infrastructure that this country needs delivered as quickly and efficiently as possible is absolutely crucial to the Government’s commitment to creating the conditions for sustainable long-term growth. As part of that commitment, we need to ensure that the development consent regime for crucial infrastructure projects works as smoothly and efficiently as possible. Wherever we can, we will remove the bureaucracy and barriers that stand in the way of growth.

The group of amendments removes a number of separate certification and consent processes currently set out in primary legislation. The amendments remove the requirements for additional consents and certificates to be issued set out in sections 127, 131, 132, 137 and 138 of the Planning Act 2008. Sections 127, 131, 132 and 138 all relate to certificates or consents required from the Secretary of State. Section 137 is different. It applies to consents issued by statutory undertakers and communications code operators affected by the development consent order in certain circumstances.

The development consent order process offers ample opportunity for these issues currently considered and certified separately to be dealt with effectively. The examining authority and the Secretary of State taking the decision on the development consent order will still have to consider the material issues and will have to set out in the order that he is content that any of the relevant tests set out in legislation—for example, that rights can be purchased without serious detriment to the carrying on of the undertaking—have been met. However, the requirement for an additional certificate or consent—another piece of paper to add to the pile—will no longer be needed, providing a streamlined, more efficient process.

If the Secretary of State is minded to issue a certificate under sections 131 or 132, disapplying the requirement for special parliamentary procedure where an order authorises the acquisition of commons, open space or fuel or field garden allotments, he is required to go through a number of unnecessary procedural requirements. However, it is important to emphasise that the main examination process will still allow interested parties to make representations about these matters, for example, regarding the adequacy of exchange land where common land is acquired. I therefore consider those additional procedures to be duplicative and burdensome.

In addition, in respect of the changes to section 137 of the Planning Act 2008, statutory undertakers and other bodies potentially affected will be able to make representations as part of the examination process. Their representations are already taken into account by the examining authority and the Secretary of State when considering the development consent order. Additional protections offered through this additional bureaucratic process are unnecessary, given the ample opportunity provided for affected bodies to make representations through the development consent order process.

Therefore, I commend amendment 79 and ask for the Committee’s support when we are asked to add the other amendments in this group and new clause 3 to the Bill.

Photo of Roberta Blackman-Woods Roberta Blackman-Woods Shadow Minister (Communities and Local Government)

It is not my intention to speak against the amendments, but the Committee should note that the unnecessary procedural requirements, as the Minister chooses to characterise them, are often there for the protection of important open spaces. I accept, however, that some streamlining is necessary regarding special parliamentary procedure. With the Minister’s assurance that representations from statutory undertakers can still be made during the process, the Opposition can accept the amendments.

Amendment 79 agreed to.

Amendments made: 80, in clause 19, page 20, leave out line 12 and insert ‘the words from “unless” to the end substitute “unless—

(a) the Secretary of State is satisfied that one of subsections (4) to (5) applies, and

(b) that fact, and the subsection concerned, are recorded in the order or otherwise in the instrument or other document containing the order.”,’.

Amendment 81, in clause 19, page 20, line 34, at end insert ‘, and

(c) omit subsections (6) to (10) (provision about certificates under subsection (3)(b)).’.

Amendment 82, in clause 19, page 20, line 38, leave out from second ‘allotment’ to ‘after’ in line 39 and insert ‘)—

(a) in subsection (2) (special parliamentary procedure does not apply if Secretary of State certifies that one of subsections (3) to (5) applies) for the words from “unless” to the end substitute “unless—

(a) the Secretary of State is satisfied that one of subsections (3) to (5) applies, and

(b) that fact, and the subsection concerned, are recorded in the order or otherwise in the instrument or other document containing the order.”,

(b) ’.

Amendment 83, in clause 19, page 21, line 10, at end insert ‘, and

(c) omit subsections (6) to (10) (provision about certificates under subsection (2)(b)).’.—(Nick Boles.)

Question proposed, That the clause, as amended, stand part of the Bill.

Photo of Roberta Blackman-Woods Roberta Blackman-Woods Shadow Minister (Communities and Local Government)

I want to ask the Minister a few questions. I am sure he will accept that we are discussing a particularly difficult and dense set of clauses, and I want to be absolutely certain about the Government’s intentions.

Special parliamentary procedure means that when land of a specific type is compulsorily purchased as a result of a development consent order, the case has to be heard in Parliament. Clause 19 repeals the current provision for certain types of land to be protected by special parliamentary procedure, by allowing the Secretary of State to issue a certificate disapplying such procedure in cases concerning open spaces and land to be compulsorily purchased by a specified body. On Second Reading, the Secretary of State said that that was necessary due to the “poor drafting” of the Planning Act 2008. Indeed, from what the Minister said earlier, it would appear that poor drafting is part of the reason for bringing amendments forward, but streamlining is perhaps most pressing in the Government’s mind. The United Kingdom Major Ports Group noted in its written evidence:

“It is unlikely that the retention of special parliamentary procedure in the 2008 Act was as a result of ‘poor drafting’. If that were the case the Government has since had ample opportunity to correct such ‘poor drafting’, for example, through the Localism Act 2011. It is far more likely that the draftsman of the 2008 Act recognised, as did the Government of the day, the vital importance of land belonging to statutory undertakers and that such land should not lightly be removed”.

Special parliamentary procedure was brought in to show the value of open land, but that is not to say that the process has no issues. We know the problems faced by the Rookery South project in Bedfordshire, where it took many months for a Committee to be formed for the special parliamentary procedure to get under way. Has the Minister’s Department considered any steps to improve the efficiency of special parliamentary procedure, rather than watering it down? Also on “poor drafting,” can the Minister explain what is meant in proposed new section 131(4B) of the 2008 Act, as set out in clause 19(2), by acquisition

“for a temporary (although possibly long-lived) purpose”?

The meaning of that is not clear to us.

Will the Minister answer the question posed in the evidence from the National Infrastructure Planning Association on why the Bill does not go further? NIPA, in contrast to other organisations, said:

“We feel…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.”––[Official Report, Growth and Infrastructure Public Bill Committee, 20 November 2012; c. 116, Q268.]

To what extent does the Minister feel that open space, defined in section 19 of the Acquisition of Land Act 1981 as

“any land laid out as a public garden, or used for the purposes of public recreation, or land being a disused burial ground”,

is a useful designation? Perhaps such drafting leads a number of organisations, including the Royal Society for the Protection of Birds, to think that the clause, as currently structured, is too complicated and would best be deleted, with the whole process being outlined again elsewhere in a more straightforward manner.

On Second Reading, the Secretary of State said that the Bill retains

“safeguards for land with genuinely “special” historic and parliamentary protection”.—[Official Report, 5 November 2012; Vol. 552, c. 602.]

I assume that is why National Trust land, commons and allotments are exempt.

Bearing in mind NIPA’s comments, will the Minister confirm whether his Department has decided that general open space is not genuinely important and that, in reality, it would like to remove all open space protection in favour of other protections such as designation as a local green space? Or does the Minister still believe that open space designation under special parliamentary procedure has some importance? If so, will he explain in what way and in what circumstances the designation is still held to be a valuable tool?

There is concern that removing the special parliamentary procedure for open space will remove an incentive for developers to provide replacement open space. What steps has the Minister taken to ensure that that is not the case? The Open Spaces Society has said:

“Ministers must be required to provide good examples of why this change is needed in the public interest.”

I totally agree.

Photo of Nicholas Boles Nicholas Boles The Parliamentary Under-Secretary of State for Communities and Local Government

If you will forgive me, Mr Howarth, I am going to speak at some length, because, as the hon. Lady has pointed out, this is a complicated provision that addresses quite a complicated inherited position. It might assist the Committee, and indeed myself, if I talk through the clause in some detail to ensure that we are no longer as confused as perhaps we, and certainly I, have sometimes been.

Clause 19 amends the provisions in the 2008 Act on the circumstances in which the special parliamentary procedure will apply. The development of world-class infrastructure is vital to the economic vitality of this country and can create thousands of new jobs and billions of pounds of new investment, so consents for infrastructure need to be provided quickly and efficiently.

The 2008 Act brought together a range of consent regimes for major infrastructure into a single development consent order that includes any decisions on the compulsory acquisition of land. But where certain categories of specially protected land are acquired, special parliamentary procedures may be triggered.

Under the special parliamentary procedure, the decision on whether such land may be compulsorily acquired under an infrastructure consent is transferred to a Committee of MPs and peers for further examination. While the SPP process is undertaken, the development consent cannot come into effect and work on the infrastructure project cannot start. The Government believe there is a strong argument for the special parliamentary procedure to be limited to situations where there is a real need for further scrutiny by Parliament: for example, where there is a genuine need to weigh up the public interests of allowing infrastructure development to take place at the expense of the loss of certain types of very specially protected land. However, in the one case so far where the special parliamentary procedure has been triggered for an infrastructure project under the Planning Act, the project had already been delayed by over a year since the initial consent was issued. We do not consider such delays to be acceptable given the importance of new infrastructure to growth.

Clause 19 therefore seeks to limit the circumstances in which the special parliamentary process would apply to infrastructure projects under the Planning Act. First, it repeals sections 128 and 129 of the Planning Act. That would remove the requirement for the SPP in cases where land belonging to a local authority, or acquired by a statutory undertaker for purposes of their undertaking, is compulsorily acquired, and a representation made against the acquisition by the local authority or undertaker is not withdrawn. That would bring the Planning Act in line with similar consenting legislation for infrastructure such as the Transport and Works Act 1992.

I should stress that that does not mean that land of that type will be compulsorily acquired without any opportunity for local authorities or statutory undertakers to present a case against acquisition. First, anyone can make representations regarding the proposed acquisition of land. Furthermore, existing provisions for hearings on the acquisition as part of the public examination of the infrastructure project are unchanged. Those with an interest in the land being acquired will still be able to require that a hearing is held and make representations regarding the acquisition, which will be taken into account in the recommendations made to the Secretary of State and in his subsequent decision. The requirement under section 122 of the Planning Act for a compelling public interest for the land to be compulsorily acquired will remain unchanged.

Clause 19 inserts new subsections into sections 131 and 132 of the Planning Act. Section 131 sets out the circumstances in which the Secretary of State can issue a certificate so that, in a particular case, the compulsory acquisition of commons, open spaces and what are known as “fuel and field garden allotments” do not trigger the special parliamentary procedure. Currently, such certificates can be issued in very limited circumstances. Section 132 covers the issuing of certificates where the compulsory acquisition is of rights over commons, open space and allotments.

Two new circumstances in which the Secretary of State may issue such certificates are proposed in new subsections (4A) and (4B) to section 131 of the Planning Act. These relate only to open space. New subsection (4A) allows the Secretary of State to issue a certificate where open space is compulsorily acquired and suitable exchange land for the land being acquired is not available, or only available at prohibitive cost. In such cases, a certificate could be issued if it is strongly—I emphasise strongly—in the public interest for the development to start sooner than would be the case if it were subject to the special parliamentary procedure.

New subsection (4B) allows the Secretary of State to issue a certificate where open space is compulsorily acquired for a temporary, although possibly long-lived, purpose. The hon. Member for City of Durham made a reference to this slightly curious concept, and I accept that there may appear to by oxymoron, but I think she will understand that “temporary” means that it is not for ever. There is a limit to the time, but it is not necessarily just a matter of months; the time could be reasonably extended, although it will not be permanent. That is what we are trying to clarify, but I understand that she may not be entirely satisfied by that explanation. As such purposes could vary considerably depending on the project concerned, we have not attempted to specify a time period for any temporary need of open space.

Two new sub-sections are also added to section 132 of the Planning Act, which covers compulsory acquisition of rights over special land. These subsections replicate those added to section 131. New subsection (4A) allows the Secretary of State to issue a certificate where no suitable land is available to be given in exchange for the acquisition of a right over open space, or is available only at prohibitive cost. Again, this would be subject to a test that it must be strongly in the public interest for  the certificate to be issued. Subsection (4B) allows a certificate to be granted where a right over open space land is to be acquired only on a temporary basis.

I stress again that we are not removing all opportunity for people to make representations on the compulsory acquisition of special land. Such representations will continue to be considered as part of the examination of an infrastructure project and in Ministers’ decisions on consents. The proposals set out in clause 19 will ensure that essential infrastructure projects are not delayed unnecessarily by the need for special parliamentary procedure. Our proposals strike a fair balance between the need for protection of certain types of land and the need for new infrastructure to support growth.

Photo of Nicholas Boles Nicholas Boles The Parliamentary Under-Secretary of State for Communities and Local Government

I will try to deal with some of the questions that the hon. Lady has raised, but I am happy to give way to her if she wants to pose further questions.

Photo of Roberta Blackman-Woods Roberta Blackman-Woods Shadow Minister (Communities and Local Government)

The Minister’s comments are very helpful in helping us to understand why this clause has been included in the Bill. Could he also help the Committee by informing us of the way in which the phrase, “strongly in the public interest”, will be assessed and whether that has already been set out in the legislation or whether the Government intend to do so in the future?

Photo of Nicholas Boles Nicholas Boles The Parliamentary Under-Secretary of State for Communities and Local Government

I thank the hon. Lady for that question. May I return to it in a moment? I would just like to deal with a couple of the questions that she raised previously. She made the point that the Secretary of State had referred to poor drafting as one of the motives for these clauses. He was referring to some inconsistencies between different legislation relating to the special parliamentary procedure. That is what we are dealing with through clause 20. I do not think that anyone is suggesting that poor drafting is the only reason. The hon. Lady herself referred to streamlining. We are building on the streamlining that took place in the Planning Act 2008 to create the single development consent order. We are trying to give that more effect and tidy up some of its interactions with the special parliamentary procedure.

The hon. Lady referred to comments by the National Infrastructure Planning Association on open space. We recognise the issues that it raises and its desire for these changes to go further. However, we believe that the clause, although complex, strikes the right balance and ensures that the special parliamentary procedure will work properly in the future. It is important that we have the SPP, as it provides an important level of protection for the most precious spaces, which is why we are retaining it with regard to certain kinds of land. We believe that this measure will simplify matters. Even if the clause is not simple, the hope is that the procedures that Government and infrastructure projects will have to go through will be simpler as a result.

The hon. Lady asked about the assessment of the phrase, “strongly in the national interest”. As is always the case when making planning decisions, the Secretary of State is acting in a quasi-judicial capacity. There is a whole history of precedent and case law, often tested in court by judicial review, establishing whether one has  made the case that something is strongly in the public interest or not. It is better to leave some discretion as to how that is determined, knowing that it can always be challenged through judicial review, through the courts, if it is inconsistent with previous decisions. I think that that is probably a better way and a slightly more—dare I say it?—English way of proceeding than necessarily setting out the detailed criteria. One always finds that those criteria miss something, so practice is the best guide, but of course that is open to challenge.

I hope that those explanations have reassured the hon. Lady on some points. I therefore commend the clause to the Committee.

Question put and agreed to.

Clause 19, as amended, accordingly ordered to stand part of the Bill.