UK: Lords Committee - Some Movement On Infrastructure Amendments

Last Updated: 11 February 2013
Article by Angus Walker

Today's entry reports on the House of Lords' consideration of the infrastructure amendments to the Growth and Infrastructure Bill.

Yesterday, the fourth and penultimate day of the committee stage for the Growth and Infrastructure Bill took place in the House of Lords, which covered proposed amendments to the infrastructure-related clauses. The current version of the bill can be found here, and the amendments can be found here. The debate can be found here, but as ever, here is a summary.

In short, three minor technical government amendments were accepted and none others were, but there were signals that the government might take action on a couple of them, whether by amending the bill later or otherwise.

One stop shop

For the government, Lord Ahmad resisted the amendment to replace outside bodies' veto over including their consents in a development consent order (DCO) with consultation, saying that this would require duplication of existing expertise within bodies such as the Environment Agency (EA) with new expertise within the Planning Inspectorate (PINS), and that bodies such as the EA and Natural England (NE) had an important role to play to considering applications.

I would answer that the argument misses the point.  The EA and NE do have an important role to play but can still play it if their consents are contained in the main DCO.  The duplication of expertise point contradicts the government's own guidance that bodies should have good reason to exercise their vetoes (see paragraph 19), which would require PINS to have the expertise should the vetoes not be exercised.  As far as I am aware PINS do have that expertise anyway.

The figure of 40% of consents being outside the Planning Act regime was used a couple of times, with Sir Mike Pitt given as the originator of this remark.  He didn't actually say that (I was there), he said that for one particular application, 60 out of 100 consents were able to be included in the DCO, and 40 weren't, rather than anything more general.

Fees

Lord Ahmad promised that a statutory instrument (SI) would be brought forward to amend the fees regulations to make them clearer.  He and Lord Adonis for Labour clashed on the content of such an SI, with Lord Ahmad appearing to say it would clarify the number of inspectors.  Lord Ahmad said that he would write to Lord Adonis before the next stage (report stage, 27 February) on the point.

Lord Ahmad also said the following on fees: 'These fees are intended to cover the work of the Planning Inspectorate, which supports the examination, including staff working in case management, case administration, environmental services, legal services and other relevant costs of the inspectorate, including those incurred during the recommendation stage, for which no separate fee is charged.'  Any costs not met by the applicant were met by the taxpayer, he said.

I suspect the SI will change the definition of the fee to mean each working day during the examination.  That would confirm the higher fee for applications going forward, but wouldn't deal with applications already examined.

National Policy Statements (NPSs)

On the amendment to produce the remaining NPSs by 2015, Lord Ahmad seemed to speak both for and against them.  On the one hand he said that NPSs remained central to government planning reforms, that the hazardous waste NPS would be designated this spring, and that "The Department for Communities and Local Government continues to work closely with colleagues in the Department for Transport to work towards roads and rail and aviation national policy statements in future."

On the other hand, he said "it is clear that the nationally significant infrastructure regime can operate effectively and quickly without the need for a national policy statement, as we have seen, for example, with the decision on the Ipswich rail chord."

On the third hand, when Lord Berkeley asked that consideration of rail and water freight be a requirement for applications, the response was that "decisions on nationally significant infrastructure projects must be taken in accordance with national policy statements, where they exist".  So they do have some use, after all!

All in all, I still detect some diffidence from the government on infrastructure NPSs.

Later in the debate there was an amendment about NPSs for business and commercial projects. Baroness Hanham said that the government's preference was not to have any, but they were considering responses to the consultation on the issue that closed last month and would come back on it, although she wouldn't promise that this would be before the next stage of the bill.

She said that when making decisions, the Secretary of State already had to take into account "other matters he considers both important and relevant. This could include the local plan and the National Planning Policy Framework", (that little word 'could' won't be very popular) adding that "The reason that I have said the national planning statement is not being looked at with favour for building commercial is simply because the expectation is that it will be of very little use and that there are other documents and evidence that will be good enough to help in this matter."  Calling it a national planning statement is a bit of a Freudian slip - it does have a wider purpose.

Waivers and pre-application oversight

Lord Ahmad resisted procedural waivers on the ground that they would "potentially undermine the certainty and transparency of the regime."  That seems a bit of an overstatement, considering that they are in place for the Transport and Works Act 1992 regime.

He also used the government's current work on the one stop shop as an excuse for not introducing pre-application oversight or waivers, but to me those two issues aren't really 'one stop shop' issues.

Certification offence

Earl Lytton pressed for the removal of the offence of wilfully or recklessly getting wrong the certification that everyone had been served with acceptance of the application.  Lord Ahmad yielded a little, saying he would welcome further evidence on the effect of that provision.

Tolling

Earl Attlee for the government (there was a bit of a relay race of ministers) agreed to look further at the amendment to release tolling in a DCO from having to be of the tollbooth plaza type, so I think we can expect a government amendment on that later.  Lord Berkeley said that he was sure it would be better than his one.  Huh.

There was an amusing exchange when Lord Snape said that tollbooths were a mediaeval practice and should be abolished along with other mediaeval practices. Lord Adonis cautioned that doing so might involve the abolition of the House of Lords. Ex-MP Lord Snape retorted that at least he had been elected occasionally.

Special parliamentary procedure (SPP)

Lord Greenway asked that on his amendment about reinstating SPP for port and railway land that he was merely seeking an assurance about the importance of port land, which he got, as well as a mention of a letter from ports minister Stephen Hammond about safeguarding port land.

Rookery DCO committee member Lord Faulkner conducted a spirited defence of SPP, but it fell on deaf ears. He asked whether in the case of Rookery South, judicial review would have taken longer than SPP (presumably seeking the answer that it would have done).  That is not entirely relevant since SPP is not a substitute for JR.  Lord Ahmad gave a rather technical and impenetrable response (my way of saying I didn't understand it) about whether SPP should be restricted to the issue that triggered it or could consider the whole application.

To the amendment that only designated open space should be subject to SPP, Lord Ahmad said that preserving open space in the context of compulsory purchase involved different considerations from the context of deciding whether to designate it in some way.

Business and commercial projects

To the Labour amendment to specify the types of business and commercial project on the face of the Bill, Baroness Hanham said that this would be premature, given the recent consultation on the subject.

She said that she had provided a summary of the consultation responses to Lord Adonis, who retorted that the summary was 'a profound exercise in waffle' and did not help very much. 

For example in response to the question: "Do you agree with our assessment of the factors that the Secretary of State would need to take into accountwhen considering whether a project is nationally significant?", the summary said "A number of respondents thought the assessment factors were broadly right whilst others commented that they were not detailed enough or were not supported at all".  I see what he means.

What I did think was telling was that Baroness Hanham used the phrase 'national economic importance' in the context of the business and commercial projects that might use the regime.  Perhaps that might find its way into regulations or guidance.

Baroness Hanham resisted restricting applications for upgrading infrastructure projects to the applicant, saying that the difference with business and commercial projects was that the latter were optional while the former were compulsory, and so the latter shouldn't be forced by a third party.  In proposing the amendment, Lord Jenkin may have had a visit to the bar on his mind when he called the Infrastructure Planning Commission the IPA.

I think we all need a drink after ploughing through that lot.  As always with Parliamentary debates, however, there are a few nuggets of information that can be gleaned and Kremlinological nuances suggesting how the government is thinking.

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