Planning Bill

moved Amendment No. 192: 192: Clause 43, page 25, line 16, after ““the”” insert ““applicant, after making diligent inquiry, knows that the”” The noble Baroness said: I have given notice of the amendments, so if the Committee will allow me, I shall speak swiftly to them because it is a rather large group and it is important that I put it on record. We have tabled the amendments in place of Clause 151. They fall broadly into two categories: setting out a legal position by which NSIPs relate to the common law on nuisance; and consequential technical amendments which flow from that, in terms of who promoters should consult and notify about applications. I hope to speak also to the stand part debate of the noble Lord, Lord Reay, on Clause 151 alongside the government group, and to the amendment laid in the name of the noble Baroness, Lady Hamwee, Amendment No. 394B. Let me begin by explaining the history of Clause 151. The text in the Bill was suggested by an amendment from the other place. It was designed to replicate the defence of statutory authority against nuisance claims which already exists for some of the infrastructure types which will be classed as NSIPs by the Bill. In particular, highways, railways schemes, ports schemes and airport schemes already benefit from such a defence against nuisance claims. In practical terms, Clause 151 as drafted would prevent any nuisance proceedings from being brought in relation to development, works or operations authorised by an order granting development consent. Likewise, Clause 151 would prevent proceedings from being brought in relation to escape of things from land in relation to matters authorised by a development consent order. That is a very wide definition that would mean that a defence was available in more cases than currently. We accepted the principle at the heart of the amendment originally, because we recognise that in the past, nuisance claims have sometimes been used aggressively to try to block developments that would provide great benefits to the wider society. We certainly believe that it would be important that all NSIPs could benefit from a defence of statutory authority against nuisance claims, on the basis that the big decisions are now taken up-front. The main arguments around NSIPs will have been held in the context of the national policy statement itself. We want discussion on possible nuisance and impacts in relation to individual projects to take place in public at the examination. It would be inconsistent with that process if individuals could apply for subsequent injunctions to reopen these decisions. However, after close consideration, we believe the clause as originally laid is too broad. We agree with the noble Lord, Lord Reay, that it tips the balance too far towards the promoter. It effectively blocks all nuisance proceedings, including those only ““in relation to”” development contained in a development consent order. Our amendments aim to maintain the balanced settlement that has allowed the development of such important infrastructure while ensuring that individuals can receive compensation for the effect on their land. Our new amendments replace and correct the text in Clause 151. The prime amendment is the new clause in Amendment No. 394A, which has been drafted to replicate more closely the position of statutory undertakers under existing legislation such as the Transport and Works Act and the Harbours Act. In particular, it defines more narrowly that a defence of statutory authority exists only where the nuisance relates to carrying out development to which a development consent order has specifically consented and where any requirements or controls placed on the promoter through that order have been complied with. We have also included the ability for the IPC to make an order that does not grant a defence against nuisance claims if it believes it appropriate to do so. The clause is also designed to operate within the framework of the existing common law provisions on nuisance. The default position set out in our amendment does not confer a defence against any of the statutory nuisances set out in Section 79(1) of the Environmental Protection Act 1990, in so far as they involve matters outside what would constitute nuisance in common law. It is possible, however, for individual development consent orders to confer a defence for any of these activities, as Transport and Works Act orders sometimes do. Likewise, we intend the common law test that is applied by the courts for acts or omissions specifically authorised by statute to apply where the clause confers statutory authority. I reiterate that the amendments provide a statutory basis for a defence against nuisance by setting out a position in primary legislation. However, individual development consent orders can also vary the breadth of that defence through use of the IPC’s legislative powers. These are intended to cover individual circumstances specific to certain applications where the default position may not be appropriate. We do not believe that airport operators, for example, should benefit from a defence against nuisance claims unless they already comply with the air navigation order under Section 77 of the Civil Aviation Act 1982. Nor do we believe that there are any circumstances in which reservoir operators should have a defence against Rylands v Fletcher claims. I am sure that noble Lords are completely cognisant of that case, which I understand involves reservoirs. This case explains why we have introduced Amendment No. 389A, which is intended as a safeguard to ensure that a development consent order cannot alter certain strict liabilities, set out in legislation, which affect certain serious emissions from land. We have also addressed compensation. Clause 151 prevents people pursuing nuisance claims without offering a route to claim other forms of compensation. We recognise that it may be impossible in some cases to mitigate all the potential impacts of the construction and/or operation of nationally significant infrastructure. It is vital in such cases to ensure that individuals affected can receive compensation. This is why one of the amendments clarifies that compensation for injurious affection will be available where the value of a person’s land depreciates as a result of the construction and use of a nationally significant infrastructure project. Amendment No. 389B sets out that affected parties will be entitled to seek compensation on the ground of injurious affections under Section 10 of the Compulsory Purchase Act 1965, or under Part 1 of the Land Compensation Act 1973 where public works are given consent by development consent orders. Compensation will be assessed, as it currently is, on the basis of the depreciation in the value of the land owned by the claimant. An order cannot contain a provision that removes or modifies the principles encompassed in these Acts. Amendment No. 373 therefore ensures that there are no contradictory applications of Section 10 of the Compulsory Purchase Act 1965 in different clauses of the Bill. The compensation provisions for injurious affection work well. Compared with the uncertainty of a nuisance claim, they are a quicker and more reliable way of enabling individuals to obtain relief where they have suffered loss. We therefore support the proposal that similar compensation should be available for schemes approved by the IPC, as currently exists for those which receive statutory approval. I hope that this explanation, complex though it is, will convince Members of the Committee that we have considered the position closely as regards nuisance and believe that the amendments we have put down will ensure a right and proportionate balance between ensuring that nationally significant infrastructure progresses while maintaining the maximum protection for the rights of individuals affected by such works. The national policy statements will require the IPC to look specifically at the possible sources of nuisance for every application in front of it. First, we intend that the text of the NPSs will give a strong steer to the IPC to consider placing strict requirements on the promoter, which are akin to planning conditions, where appropriate, in order to restrict and mitigate the levels of nuisance caused. We want the IPC to look specifically at the potential for noise, vibration, emissions, light pollution, smoke, smells, insects and so on to require that the potential for such nuisances is as low as possible, if not eliminated altogether. Requirements to control nuisances will be particularly important where they may be a risk to health. Secondly, the IPC already has the ability to place requirements on the applicant, so that the latter conducts physical mitigation works, in order to reduce the potential effects of an NSIP on the local environment and communities; for example, installing double-glazing or embankment works. Thirdly, it should be emphasised that where a promoter does not abide by the strict controls and requirements placed on it by the IPC, it will not benefit from any defence against nuisance claims in the relevant area, quite apart from being liable to any enforcement actions provided for in Part 8. Fourthly, the new clause in Amendment No. 394A makes clear that the IPC has the ability to remove the defence against nuisance claims for a particular case if it believes it is appropriate to do so in light of the NPS and the evidence submitted. The IPC also will have the ability to make provision that modifies the application of any defence against nuisance claims in any particular case. So, for example, in order for there to be a defence to nuisance in relation to the operation of an airport, the promoter would have to continue to comply with the air navigation order. The other amendments are largely consequential. Amendment No. 455A replicates this position in Scots law. Amendments Nos. 195 and 228 are consequential changes, which are based on the fact that a defence against nuisance claims exists. Since no one will subsequently be able to make a nuisance claim against an NSIP promoter, except in unforeseeable circumstances, it makes little sense to require an applicant to notify people who could make a claim. We are therefore deleting that category. Amendments Nos. 192, 194, 224 and 227 also clarify that the onus on a promoter is to make diligent inquiry about who should be notified about a proposed application, which is where the interrelationship with the previous amendment, as raised by the noble Lord, Lord Jenkin, comes in. The Bill sets out a high standard for consultation with landowners, the local authority and the local community, including widespread publicity. However, it is still possible that a promoter can inquire diligently but still not be able to identify every person interested in a particular piece of land. We believe that it would be unfair for such a person to reveal himself at a much later date to challenge the application on grounds of not being notified. I said that I would address the noble Baroness’s amendment, but we have had a useful exchange and I think that we have identified the problem. I am happy to leave it at that. I beg to move.