Clause 21 - Time limit on deemed planning permission

High Speed Rail (London - West Midlands) Bill – in a Public Bill Committee at 2:00 pm on 1 March 2016.

Alert me about debates like this

Photo of Andy McDonald Andy McDonald Shadow Minister (Transport) 2:00, 1 March 2016

I beg to move amendment 14, in clause 21, page 9, line 30, after “by order” insert—

“by up to a further 5 years”.

Under clause 21 planning permission for a scheduled work to be undertaken is valid for 10 years, unless the Secretary of State extends the period under subsection (2) by a statutory instrument. This amendment would limit each extension to a further five years.

Subsection (2), as drafted, reads :

“The Secretary of State may, in relation to any such development, by order extend the period within which the development must be begun”.

My amendment would limit each such extension to a further five years at the conclusion of the initial 10 years from the date of the passing of the Act. Ten years after the Bill has been enacted as an initial time limit on the commencement of works is extremely generous, given that the scheduling of works means that the service is expected to start in 2026.

It should be noted that that time limit is for the commencement of works, not their completion. The clause is not saying that the deemed planning permission lasts for 10 years, during which time the works must be completed; it is simply saying that they must be started. If we assume that the Bill is passed in 2016 and that works are completed as scheduled, works starting in each of the years from the end of 2016 right up until the end of 2026 would, by virtue of subsection (1), be deemed to have planning permission.

It is hard to imagine any works within the current contemplation of the promoter that will not have been commenced by 2025 at the very latest—and that is a stretch, to imagine that nothing would start before 2025. I would have thought that all the scheduled works will have been long since started by such a late date. If I have got that wrong, perhaps the Minister will identify any works with such a late start date in the 10-year construction period that need the protection of an unlimited extension period.

The words in the Bill are “must be begun”, so their commencement is the determining factor, not their completion. For any works started by 2023, 2024 or 2025—so long as they have been started—the deemed planning permission will be effective, notwithstanding the fact that they will not be completed by 2026. Indeed, for those examples the permission will be effective until 2033, 2034 or 2035, a maximum of nine  years beyond the date on which it is expected that the service will be not only ready for use, but up and running.

There is, in effect, plenty of run-on time. For example, if the project slipped very badly for reasons that we cannot currently envisage—be that the disastrous management of the economy over the intervening years by the current or subsequent Governments, or some world economic downturn the consequences of which delayed matters so badly that the key component works had not been commenced by 2026—surely that would put the entire project at risk. It would be such a different scenario that the people of the United Kingdom and its Parliament would be entitled, and indeed duty-bound, to conduct a root-and-branch review. If we are able to stick to timescales and costs within proper and reasonable parameters, it would be entirely proper for the matter to come back before Parliament for further consideration. To grant open-ended permissions, or have the ability to grant them, would go way beyond what was originally contemplated and would treat the public with disdain. If we cannot commence the necessary works by the time our timetable envisages the system being up and running, something will have gone badly wrong.

The promoter and the nominated undertaker will know now what works are necessary to build HS2. Clearly, elements of the scheduled works are properly sequenced, but the scheduled works themselves will have commenced, or certainly should have done, long before the end of the 10-year permitted construction period. Of course, the final fixings and other ancillary works will necessarily start later than the date on which the initial scheduled works commence. Those final fixings and ancillary works surely do not need deemed planning permissions in their own right; they are simply part of the scheduled works themselves.

There may be run-ons that we cannot predict. In his remarks on clause 16, the Minister alluded to the need to use roads to facilitate contractors revisiting the site of works in the event of necessary amendment, maintenance or repair. He has used the example of ongoing hydrogeological works and, presumably, hydrogeological surveying. To say that deemed planning permission—I stress that phrase—can effectively be extended indefinitely is to stretch the point beyond its natural elasticity. There has to be an end point. As it is, works can be commenced at the eleventh hour, as against the 10-year post-assent construction period, and be deemed to have planning permission. The Secretary of State can simply extend that initial 10-year period without limit. However, that would only serve to create great uncertainty, if landowners within the scope of the works, or landowners and occupiers not within the scope of the works but affected by them, were not sure whether any such proposed works were taking place. Given the flexibility within the Act with regard to phase 1 works, the provision has the potential to create considerable anxiety, which my amendment attempts to address.

However, we can understand the argument and the need for the Secretary of State to have the power to extend the period within which works should be commenced and therefore have the benefit of deemed planning permission. All we are saying is that there should be a reasonable cap on the extent to which such an extension can be granted. Our amendment proposes a limit to each extension to a further five-year period. We think  that is eminently reasonable. As currently configured, it would cover developments from the anticipated start date of 2016, initially to 2026 and by extension to 2031, a total period of 15 years from the date of Royal Assent.

The process through which that would be achieved, namely the negative procedure, is also agreeable. We would know the issue from the outset and the ability to reject the statutory instrument by resolution is more than sufficient in such circumstances, and it would not be necessary to deploy the affirmative procedure and require the measure to be the subject of debate. As it is, we are concerned that there is no specified time limit for each extension and believe that limiting each extension to a further five-year period would be sufficient. [Interruption.]

Photo of David Hanson David Hanson Labour, Delyn

Order. I am grateful to the noble Lord, but he is trespassing on a Commons Committee .

Photo of Andy McDonald Andy McDonald Shadow Minister (Transport)

It is currently estimated that HS2 will be completed and ready for general use by 2026, which is 10 years after the Bill receives Royal Assent, and a five-year extension would take us to 2031, which is surely a more than sufficient amount of time for a planning permission extension. As long as the Government do not anticipate significant delays to the construction of HS2, planning permission being valid for 10 years after Royal Assent, with a potential additional five-year period, would be more than ample and would allay any concerns that the Secretary of State was acquiring an unnecessary power.

Photo of Robert Goodwill Robert Goodwill Parliamentary Under-Secretary (Department for Transport)

Let me say at the outset that we would never treat the people of this country with disdain. Indeed, the way that this project has been presented and how we have engaged with people, particularly on the line of route, has shown the utmost respect for people’s rights, particularly their property rights.

Clause 21 sets out as a condition of deemed planning permission a time limit of 10 years after Royal Assent within which the authorised works must have commenced. The clause also allows the Secretary of State by order to extend the period by which any work must be commenced. Such an order is to be made by a statutory instrument that is subject to a negative resolution procedure.

The hon. Member for Middlesbrough asked, “Why 10 years?” It is important to stress that the maximum period of 10 years would be deployed only in unusual circumstances. We are talking about unforeseen events, and I certainly cannot foresee an event that would delay the project for that long, but the length of any extension would be up to the Secretary of State’s judgment. It is not 10 years or nothing; it is a case of what sort of extension could be chosen. It is a reasonable maximum period of time and it is normal for major infrastructure projects such as phase 1 of HS2.

The current build programme is 10 years, meaning that it is possible, with our current plan, that some of the works included in the Bill will not commence until up to 10 years from Royal Assent. Indeed, specific elements of the project may not be commenced until the very end. One example is the provision of the electricity supply for the trains, which would be one of the last elements to put in place. Another such element is the  environmental reinstatement, which would be done right at the end of the project. Indeed, much of the excavated material may take some time to be stabilised before that environmental work can be carried out.

Our promise to provide better rights of way, including cycle paths, as part of HS2 would also form one of the final elements, perhaps meaning that planning consent would be actioned only at the very end of the project. Even a small slippage in time could result in the 10-year period being eaten up. Indeed, some of the work could be carried out once the line is operational. For example, I would expect the environmental work to be going on for quite some time after the line is opened.

The proposal provides flexibility for the programme. While our current plan is for construction to be completed within 10 years, unforeseen events could disrupt the programme. We need to be able to manage such events while still constructing the railway. We will know how much more time we require only at the point of seeking an extension, and any such order will be subject to parliamentary procedure.

On amendment 14, the hon. Gentleman mentioned some unforeseen circumstances. The nature of unforeseen circumstances is that it is very hard to foresee them, but they could include things such as natural disasters, a significant contraction in the supply of core materials and so on, so it is not just economic shocks that may require the power to be enacted.

A maximum extension period is not specified in the clause because we will not know how much more time we require until the point of seeking an extension. To specify a maximum duration of five years would risk requiring the promoter to incur significant costs and disruption if an unforeseen event resulted in a delay of more than five years and the promoter needed to obtain new powers. Any such order will be subject to parliamentary procedure. Even in the event of an extension of the planning permission beyond five years, all the controls and environmental minimum requirements would still apply.

We stress that it is not intended that the power in this clause will be exercised, as it is planned that works will start promptly after Royal Assent. Projects such as the channel tunnel rail link and Crossrail are demonstrating this country’s capacity to deliver projects on time. None the less, allowing flexibility to cope with unforeseen events is prudent and necessary, and I hope that my clarification will reassure the hon. Gentleman that he can withdraw his amendment.

Photo of Andy McDonald Andy McDonald Shadow Minister (Transport) 2:15, 1 March 2016

The Minister talks about things that we cannot anticipate. We know that the unknowns are unknown, so we have to live with that on a daily basis. He describes the provision as presenting a reasonable maximum time; I suggest that it does no such thing. A reasonable maximum means an end point expressed in years, months, hours or minutes. If the provision simply says “extend the period,” there is no delineation of what the maximum may be. I kindly say to him that it cannot be both. In the Minister’s defence, I take the point about the potential run-ons.

The environmental reinstatement issue is perhaps the most valid, but I cannot see that powering electricity to works that have already commenced is a separate  development in its own right. The work has already started. It is not a new undertaking or brand-new construction work, so it is something that continues. He also made the acceptable point that some environmental reinstatements may continue when the operation is up and running.

I am also slightly concerned about the Bill containing a power that the Minister says will not be used, which is difficult to reconcile.

Photo of Robert Goodwill Robert Goodwill Parliamentary Under-Secretary (Department for Transport)

I was just speculating on what might be the outcome if this clause were not accepted and if the hon. Gentleman’s amendment were to be included in the Bill. We could end up in the situation that we often see with developers, which will build a property up to floor level to action the planning consent and then leave it for a while before the work continues. I would not want to engineer a situation in which aspects of HS2 are commenced merely to action the planning consent, with the land not being developed further until such stage in the project as it becomes necessary. That could mean that those whose land is being given up might find that they have their land for less time before it is taken away from them. That is dangerous if we are not careful. Without this power, we could end up with people having their land taken from them so that work can commence to action the planning consent but then be put on ice until such a time as that work can be completed.

Photo of Andy McDonald Andy McDonald Shadow Minister (Transport)

The Minister almost got me over the line, and then he introduced that new concept. I was about to sit down.

Photo of Andy McDonald Andy McDonald Shadow Minister (Transport)

But helping me with that sows seeds of even greater doubt that we might reach the end of a period just to anchor the land and secure the plot. If we get into a situation where that sort of behaviour is taking place with HS2, which is so heavily regulated, it will be a sorry state of affairs. I have sufficient faith in the promoter of the clause to be sure that that sort of activity will not happen, but I can see that he is itching to speak.

Photo of Robert Goodwill Robert Goodwill Parliamentary Under-Secretary (Department for Transport)

The hon. Gentleman is absolutely right that that would be a sorry state of affairs. The clause means that no one would even be able to contemplate doing so, because an extension could be sought if necessary.

Photo of Andy McDonald Andy McDonald Shadow Minister (Transport)

I am continuing to dig. I will call a draw. Respectfully, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 21 ordered to stand part of the Bill.