My Lords, I have some amendments in this group. In view of the discussions that are likely to take place today, I think I should add some interests to those I declared at the beginning of the Committee: namely, as a patron of the Friends of the Lake District and of the British Mountaineering Council, of whose access and environment committee I am a member, and as a vice-president of the Open Spaces Society.
I have tabled amendments to remove or leave out subsections (2), (3), (4), (6) and (7), really to draw attention to the particular protected areas that this clause is aimed at, and where it weakens that protection in the case of communications equipment. It does that by amending the National Parks and Access to the Countryside Act 1949, in the case of English and Welsh national parks. It refers to conservation and amenity lands in Northern Ireland, of which I know very little but I am sure they are important, the Norfolk and Suffolk Broads Act 1988—the broads are a national park in all but name—and the similar protection given to areas of outstanding natural beauty in the Countryside and Rights of Way Act 2000 and to national parks in Scotland in the National Parks (Scotland) Act 2000. It is slightly odd that we are legislating here about cabinets and overhead wires in Scotland in view of the existence of the Scottish Parliament and the Scottish Government, but it is just one of the anomalies of the devolution settlement.
I shall concentrate on national parks in England and Wales because they are the most important as far as England and Wales are concerned—clearly, national parks in Scotland are of equal importance—without in any way saying that other areas are not very important, and I shall look at what the proposed changes to the legislation do and whether they are necessary for developing broadband or for what the Government want to do. It is not clear to me that the sort of in-principle amendment to the national parks Act that the Government want to carry through will prevent them doing most of what they want to do in the electronic communications code and in the matters they refer to in their consultation document, which I read for the first time this morning.
Clause 8 amends Section 109 of the Communications Act, which is headed, “Restrictions and conditions subject to which code applies”. The Government want to add to Section 109(2),
“the need to promote economic growth in the United Kingdom”,
which is very different from all the others. They are constraints and this is an encouragement, so I am not sure that it belongs here, but I am not arguing about that particular aspect. I do not really mind it being added; the problem is what the Government are doing as a result.
Section 109(2) states:
“In exercising his power to make regulations under this section it shall be the duty of the Secretary of State to have regard to each of the following”,
and subsection (2)(b) refers to,
“the need to protect the environment and, in particular, to conserve the natural beauty and amenity of the countryside”.
As I understand it, that is not being changed and applies to all applications, not just to these special
areas. In a sense, the Government will say that that remains. Section 109(2)(da) states that they have to have regard to,
“the need to ensure that restrictions and conditions are objectively justifiable and proportionate to what they are intended to achieve”.
That qualification seems to remain and will allow the broadband position to go ahead.
I am never sure whether I live in a rural area or an urban area, because when I look out of the back window I see the town, and when I look out of the front window I see the countryside. I live in an old industrial village on the edge of the town, and the sooner fast broadband comes, the better, because we are in an area where on Saturday night and Sunday night, when lots of our neighbours are watching movies on broadband, our broadband just closes down completely, so roll it on. I think everybody is of this view, but the question is whether this legislation is necessary to achieve that, particularly in protected areas.
4.45 pm
In the consultation document, the Government claim that the conditions and restrictions in the list in Section 109(2) paragraphs (a) to (e) plus sub-paragraph (da), which makes six, to which the code applies, are to be given equal weight. This seems to be why they then want to remove the special provision in the national parks Act about the national parks. The consultation document says at paragraph 3.2:
“In order to amend the Code, we believe it is appropriate to amend the Communications Act 2003. Section 109 (2) (b)”,
states, as I have just said,
“that the Secretary of State should have regard for the need to protect the environment … when exercising powers under the Code. We intend to add an additional consideration to the list … so that the Secretary of State is obliged to consider the need to promote economic growth”—
in Clause 8(1)—
“alongside, and with equal weight with, the other considerations”.
I challenge the concept that in a list such as that, everything has to be given equal weight in every case. Clearly, an initial look at the list suggests that all of them have to be looked at equally. However, depending on where the area is and the local circumstances, surely different weights are given to different considerations. For example, if you are siting one of these cabinets on the edge of a fairly run-down industrial area, you are not going to give much weight to the local environment. You are not going to spend a lot of time deciding whether it should be there or 100 yards further down the street to protect the environment, because it is a fairly grotty area anyway. If you are siting it in a Lake District village, surely you give considerable weight to exactly where it is, the circumstances and the relationship to the rest of the local built and natural environment.
The idea that the amendments to the national parks Act and other Acts are required to make sure that everything is given equal weight and nothing is given more than equal weight is nonsense. The whole of planning legislation is based on the idea that different weight is given to different things in different localities and particular circumstances. Outside the statutory designation areas of special protection, local plans
often say that in that part of the authority, special consideration must be given to materials: natural stone may have to be used, or the roofs may have to be blue state or local pantiles, all of which are going to be more expensive than simple, what I would call bog-standard, materials that would be used in the absence of any such consideration.
That kind of thing permeates the whole of the planning legislation, system and practice. Invariably, it all costs a bit more in each circumstance. The argument in the consultation and elsewhere is that it is 50% more expensive to bury lines rather than put them overhead. Well, yes, perhaps it is; but that is the legitimate cost of having national parks and areas like that. Once we start to say that the whole planning system cannot involve that kind of extra cost in myriad circumstances but particularly in statutorily protected areas, we start down a very slippery slope.
The Government want to make Section 11A(2) of the National Parks and Access to the Countryside Act 1949 not apply to national parks. Section 11A(1) says:
“A National Park authority … shall seek to foster the economic and social well-being of local communities”.
Of course that is what they do. After that, crucially, Section 11A(2) says:
“In exercising or performing any functions in relation to, or so as to affect, land in a National Park, any relevant authority shall have regard to the purposes specified in subsection (1) of section five of this Act and, if it appears that there is a conflict between those purposes, shall attach greater weight”—
not “total weight”, but “greater weight”—
“to the purpose of conserving and enhancing the natural beauty, wildlife and cultural heritage of the area comprised in the National Park”.
That is what the Government want to remove for a limited number of years in the case of cabinets and overhead lines for broadband. We have heard a lot of evidence around the Committee and outside that the present restrictions will not stop broadband coming into the national parks. That is a practical argument; there is a fundamental philosophical element here about the purpose of national parks. If every time a special interest comes along or there is a special need for the development of a particular system or project, or whatever it is, in a national park, and people can come along and say, “Yes, we agree with the principle but not in this case”, the principles underlying the existence and purpose of national parks, what they are there for and how they operate are completely undermined. Of course, the consultation document is full of the fact that it will be only temporary, for five years. The legislation and the rules might be temporary, but the cabinets and overhead lines will not be—they will still be there in 20 years’ time. So I do not find convincing the idea that making it temporary is somehow a concession.
The Government would have everything they want, and people in national parks would have everything they want, with broadband if, with regard to subsection (1) of this clause, the Government saw sense and said that they had made a fundamental mistake and that they would have to claw back and take it out on Report.