I thank my noble friend for his intervention, but I do not agree with him on this point. We are not seeking to do away with the procedure altogether: we are ensuring that the procedure is still in place and can be invoked where there is a genuine public interest. This is not about sweeping the procedure away, although perhaps, on this occasion, we have different ways of looking at what is in front of us.
Clause 22 would repeal those sections of the Act that require special parliamentary procedure where land belonging to a local authority or land acquired by a statutory undertaker is compulsorily acquired. Repeal of these provisions would bring the Planning Act into line with other, similar consent regimes, such as the Transport and Works Act 1992.
The Planning Act 2008 already provides extensive opportunities for representations from local people, local authorities and statutory undertakers to be made about the compulsory acquisition of land. There are also comprehensive requirements for pre-application consultation. Examination of an application provides opportunities for parties to make representations as to whether the proposed acquisition of the land should proceed. These include hearings as part of a public examination. Persons whose land is acquired can require such a hearing to take place and, importantly, relevant representations will continue to be taken into account in the recommendations made to the Secretary of State and will inform his subsequent decision. I stress that the requirement, under Section 122 of the Planning Act, for there to be a compelling case in the public interest for the land to be compulsorily acquired, will also remain unchanged. This will be a crucial factor for the Secretary of State when reaching a decision on whether to authorise the compulsory acquisition.
The noble Lord, Lord Greenway, very clearly set out the effect of his amendment. It would mean that transport undertakings would still see the compulsory acquisition of land acquired by them for the purposes of their undertaking being subject to SPP, but the land of other statutory undertakers and local authorities would not be. I understand the noble Lord’s concern about the removal of statutory undertakers’ land from those types of land which can give rise to SPP. It would, however, be wrong to think that such land can be compulsorily acquired without any opportunity for
statutory undertakers to present their case against the acquisition before the decision is made. There are ample opportunities to do so. I therefore hope that noble Lords will understand why the Government consider there to be no need for an additional level of scrutiny for such land through special parliamentary procedure.
I move on to the other provisions in Clause 22 and will address the amendments tabled by the noble Lord, Lord Berkeley, and supported by my noble friend Lord Jenkin. These would amend the definition of an open space used for the purposes of considering whether such land would trigger special parliamentary procedure under the Planning Act. Clause 22 also amends the provisions in the Planning Act 2008 which cover the compulsory acquisition of commons, open space land and what are known as “fuel and field garden allotments” or the compulsory acquisition of rights over those types of land. The Government have considered carefully the extent to which SPP should apply when open space is compulsorily acquired or a right over such land is acquired in respect of nationally significant infrastructure projects. At present, the main situation where the Secretary of State can decide that SPP should not apply is when replacement land is given in exchange for the land subject to the compulsory acquisition. However, the Government consider that there could be a very limited number of cases where such exchange land may not be available or, if it were available, would be available only at a prohibitive cost.
Clause 22 therefore proposes extending the circumstances, under the Planning Act 2008, in which the Secretary of State can decide that the compulsory acquisition of open space or rights over such land should not trigger SPP. The proposals would allow the Secretary of State to decide that SPP should not apply where open space is compulsorily acquired and suitable replacement land for the land being acquired is not available or available only at prohibitive cost. This would, however, apply only where it is demonstrated to be strongly in the public interest for the development to start sooner than is likely to be the case if it were subject to SPP. We expect that, in most cases, developers will continue to provide suitable replacement land to avoid the need for SPP. However, there may be limited occasions, such as in heavily urbanised areas, when such land is not available. Given the importance of infrastructure to growth, there may be cases where development should be able to proceed promptly without going through SPP.
I thank the noble Lord, Lord Berkeley, for his general support for government proposals in the Bill on infrastructure. Turning to his amendment, the current definition of open space, used in the Planning Act is,
“any land laid out as a public garden, or used for the purposes of public recreation, or land which is a disused burial ground”.
The noble Lord’s amendment would have the effect of amending the definition of open space for the purposes of triggering SPP under the Planning Act. Such a distinction does not reflect the rationale for open space being given special status in terms of compulsory acquisition. The need for additional scrutiny through SPP in cases involving open space derives from the public use of such land and the wider public interest in
its continued availability for such use. Whether such land is designated for such purposes is immaterial in this context.
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Before I conclude, I will say a few brief words about the government amendments and pick up on a couple of questions raised by the noble Lord, Lord Faulkner. The Government are not making any changes to circumstances where compulsory acquisition of National Trust land and common land triggers SPP. These types of land are nationally and historically significant. The government amendments to Clause 22 are minor and will ensure that this remains the case. In particular, where land acquired is held both inalienably by the trust and is also a common, open space or fuel or field garden allotment, SPP will continue to apply under the provisions in the Planning Act governing National Trust land, even where the Secretary of State has reached a view that it should not apply under the provisions covering commons, open space or a fuel or field garden allotment.
The noble Lord, Lord Faulkner, raised the issue of the Canal and River Trust against the issues with the National Trust. The Government recognise the points he has raised. There is a special status attached to the National Trust because of the extent of the land it owns. Therefore, it occupies a special position, including its benefit in relation to SPP. That said, I hear what the noble Lord has said and it would be useful to arrange to sit down with him and the Canal and River Trust to establish exactly what the issues are and discuss the matter further.
Clause 23(10) is a minor and technical amendment that the Government are making to clarify the effect of subsection (10). As amended, this provides that Clause 23, like Clause 22, may apply to any development consent order under the Planning Act made after the clause has commenced. The amendment removes reference to other compulsory purchase orders as it is not our intention to apply the changes in Clause 23 to such orders where proceedings have started prior to commencement.
The noble Lord, Lord Faulkner, also raised the issue of judicial review and asked a specific question about whether decisions taken which were not subject to SPP would be subject to judicial review, and whether this was the Government’s intention. Our current view is that the 2008 Act provides for judicial review of decisions on development consent orders and it is right that errors of law or procedural failures should be subject to challenge where necessary. We are not seeking to alter this, but it is important to note that judicial review will not happen in respect of every order authorising the acquisition of special land, and someone wishing to bring such a challenge would need the specific permission of the court to do so.
The noble Lord, Lord Greenway, made a point about safeguarding of lands and ports. The specific matter of safeguarding policy has been taken up with Ministers in the Department for Transport. I know that my honourable friend Stephen Hammond has written specifically on this letter. I am not sure whether he has seen that particular letter but we can perhaps bring it to his attention as well.
In conclusion, the proposals set out in Clause 22 will help ensure that essential infrastructure projects are not delayed by the need for the additional scrutiny required through SPP where this is not considered necessary. Notwithstanding the point made by my noble friend Lord Greaves, we have struck a fair balance between the protection of certain types of land and the need for new infrastructure to support growth. I therefore hope that, in view of my explanations and the Government’s amendments to Clauses 22 and 23, other noble Lords will be minded to withdraw or not move their amendments.