Marine and Coastal Access Bill [HL]

I am grateful to the noble Baroness and the noble Lord for speaking to these amendments, as it allows me to clarify what is meant by ““relevant considerations”” and to say why they are the appropriate words in the Bill. Amendments 89A and 90A follow the Planning Act in trying to pin down the meaning of relevant considerations and the circumstances in which they might justify a decision-maker departing from provisions of either a marine policy statement or a plan. Clearly, this is an important issue that goes directly to the degree of trust that people and organisations—the decision-makers—can place in those documents. I can well understand why the amendments have been tabled and what lies behind them. Clause 49 requires a marine plan to be in conformity with the marine policy statement unless ““relevant considerations”” indicate otherwise. Similarly, Clause 56 requires certain decisions to be taken in accordance with the marine policy statement and plans unless ““relevant considerations”” indicate otherwise. This approach of a general duty of conformity, which also allows relevant or, indeed, material considerations to be taken into account, is familiar from terrestrial planning legislation, where it has worked effectively for many years. I shall come back to that comparison with terrestrial planning legislation in a moment, but first I want to deal with Amendments 89ZC and 90ZC. They would impose a strict statutory duty on marine planning authorities and decision-makers to follow the content of the marine policy statement or marine plans without exception, regardless of any other factors that might suggest that perhaps another approach might be more appropriate. I understand that part of the reason for the amendments is to seek clarity, but they would cause a major problem by removing from planners and decision-makers the ability to take new science and evidence into account. We have to face up to the fact that however hard we and our colleagues in the devolved Administrations endeavour in trying to prepare marine policy statements and marine plans, we will never be able to address every possible set of circumstances which may face marine planners and decision-makers when trying to apply those policies to real places, projects and people. The noble Lord, Lord Taylor, said that the way in which this has been constructed gives too much room for manoeuvre, and I see where he is coming from. The problem was raised in our original debate when he posed the risk that in order to gain agreement, particularly in relation to the marine policy statement, everything is watered down. This is a worry here, too. If you could never depart from what was in the MPS, the risk is that there would be a perverse incentive and that the MPS and plan would be so vague that any marine plan or decision could be said to be in accordance with it. As we argued earlier, that would achieve nothing. We would therefore be most worried about an amendment that removed any flexibility whatever. Amendment 96A seeks to add to Clause 59(4) a provision for challenges to be brought against the planning authority if a decision is taken which does not conform to the marine policy statement. I understand that that would follow from Amendment 89ZC, which would make marine plans always be in conformity with the marine policy statement. I want to point out that at Clause 59 the Bill recognises the importance of marine plan authorities to be able to make plans with relevant considerations in mind, which they feel are necessary and justifiable, without the fear of legal challenge being brought against them because they are not in total conformity with the marine policy statement. Apart from the concern about an absolute duty, which would fetter any sensible use of discretion, there is also a question of timing. Clearly, circumstances change and sometimes it will not be possible to wait for a marine plan or marine policy statement to be amended. That is particularly so because Schedules 5 and 6 set out an extensive process which must be undertaken before either the MPS or the marine plan can be adopted. We therefore believe that there must be an opportunity for marine policy statements to be amended. It would mean that the marine plans were no longer in strict conformity, but a legal challenge in those circumstances will not be in anyone’s interest. We debated the issue briefly at Second Reading. I said then that we do not expect marine plan authorities or decision-makers regularly to depart from the provisions in the MPS or marine plan. I fully accept that this should be very much the exception. Marine plan authorities are, in practice, the same Ministers who adopt the marine policy statement as policy authorities. They will not want to adopt a marine plan which contradicts their own policies as stated in the MPS unless there are very good reasons for doing so. Similarly, for the whole integrity of this new system, we would not want decision-makers regularly to ignore the MPS or plan since, clearly, that would undermine the confidence of marine users who will want to use and understand these documents. That is why we have imposed a requirement in Clause 56(2); if decision-makers depart from the MPS or plan, they must give their reasons for doing so. I am sure that marine plan authorities will want to monitor decisions that do not follow the MPS or plans as part of their review of the effects and effectiveness of plans under Clause 58. I would be very surprised if the process of parliamentary scrutiny did not involve itself in such matters. Large numbers of decisions made otherwise than in accordance with the MPS or plans are likely to be a signal that those policies are not working in that area. They would trigger a review and amendment of a plan or even of the marine policy statement. Turning to Amendments 89A and 90A, I am not as expert as the noble Baroness or the noble Lord on the intricacies of the Planning Act, but Section 104 has already featured in our discussions. Notwithstanding some similarities between national policy statements under that Act and the marine policy statement under this Bill, there are key differences in the purposes of these documents and the way they will apply to decisions, which is why it is not always appropriate simply to transplant what is in the Planning Act into the Bill. National policy statements will be the primary consideration for decisions by a single body on a small number of nationally significant infrastructure projects. These projects have been identified as being so significant to the national interest that a special planning procedure was needed to ensure that those national needs were given proper weight. In contrast, the marine policy statement and plans are more akin to terrestrial development documents designed to deal with the vast majority of everyday cases that are not nationally significant because they do not meet the threshold contained in the Planning Act.