My Lords, I rise to speak to Amendments 77A, 77B and 78A, and to the question of whether Clause 24 should stand part of the Bill, which are down in the Marshalled List in my name and that of the noble Lord, Lord Greaves. I am afraid mine will not be quite as swift and simple as the amendment in the name of the noble Lord, Lord Adonis, because I want to give a pretty full exposition of why Clause 24 should be deleted, or at least amended in a way that would remove the extension of the major infrastructure regime to business and commercial projects.
I am afraid that my subtext will be the same as for previous amendments I have put forward: this is another unnecessary clause in an unnecessary Bill. We still lack evidence of substantial numbers of large-scale projects being delayed under the current system. Using DCLG’s own statistics, local authorities are already determining and approving 87% of relevant, large-scale, major applications that might fall within the categories of Clause 24 within one year, which is the same period as the fast-track timetable that DCLG heralded when the Bill was published. Once again, we urge the Minister to present to the House the evidence for substantial delays or other reasons that would justify Clause 24.
The Minister Nick Boles, when briefing Peers, very kindly indicated that there would be only 10 to 20 applications to the Secretary of State each year under Clause 24. Therefore, one could take the view that it is hardly worth legislating for, especially as this is a centralising proposal that flies in the face of the Government’s commitment to localism. The Secretary of State has call-in powers if necessary. Indeed, if
local authorities struggle with some of these larger-scale proposals, the Planning Advisory Service is available to support them. What additional benefits does the Minister believe are provided by the provisions in the clause beyond those already available?
Clause 24 is all the more unsatisfactory because of the point already raised by the noble Lords, Lord Adnois and Lord Greaves, about the consultation on how business and commercial developments will be defined in terms of type and scale. It has only just been completed. I, too, have read the summary of responses and, as the noble Lord, Lord Adonis, said, it was not hugely illuminating. Indeed, all the types of development that the consultation proposed would have major local impacts and need to be dealt with by local government. I add my voice to those who already urge the Minister that we see not only the summary of responses, but the Government’s reply and their intentions in terms of the clause, before Report. I ask the Minister to commit to producing the Government response before Report—otherwise we are being asked to buy a pig in a poke.
Of particular concern is that the proposals under Clause 24 also include the extractive industries: deep-mined coal, large onshore gas, oil and other mining and quarrying above certain thresholds. They would be brought within the major infrastructure planning system without robust guarantees that the considerable environmental impacts of these developments can be addressed through the planning system. They are usually dealt with through specific local, national park or county-level policies and procedures governing mineral planning issues. It is also unsatisfactory to propose that deep-mined coal be included in the proposed fast-track process because this seems at odds with the presumption against new coal that is included in the National Planning Policy Framework. It does not say much for commitment to addressing climate change if we regard these types of energy generation as sufficiently important to bypass the normal planning system.
One could say that there might be safeguards for decisions made under the national infrastructure procedure. National policy statements are the main basis on which nationally significant infrastructure projects on energy, transport, water or waste are decided. These have major advantages in that they are scrutinised by Parliament before being agreed. However, we do not yet know as a result of the consultation process whether Ministers will change their minds about formulating national policy statements for business or commercial schemes. The consultation was on the basis that there would be no national policy statements for these schemes, but I see from the consultation response summary that there has been some pressure to develop further national policy statements in these areas. Can the Minister give the House some clarification on the Government’s position on national policy statements for business and commercial schemes, and could we have that clarification before Report?
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There is a fundamental problem with the clause because it tries to imply that there is national significance for business and commercial schemes that are intrinsically
local. Concocting national policy statements for these areas of business and commerce will be pretty difficult because they are not really national in their significance. It seems that they are being artificially designated simply to enable developers to chance their luck with the Secretary of State rather than the local planning authority. Of course, the Minister will say in response that there are other safeguards surrounding the impacts of business and commercial projects decided under the major infrastructure proposals. These include local plans and the National Planning Policy Framework.
However, a letter that the Minister sent, clarifying the Government’s position on the local plan, still made it pretty clear that there is no legal requirement for the Secretary of State to give weight to the local plan. Therefore, in the absence of a national policy statement, the Secretary of State can legally give weight to almost anything. Even where there is a local plan, the Secretary of State’s consideration will take account of a whole range of factors, only one of which will be the local plan. That is a considerable departure from the principle of the planning system, which is of a plan-led approach. At the very minimum, will the Minister undertake to look at amending the clause to ensure that the local plan is afforded pre-eminence in the absence of a national policy statement?
The other safeguard that the Minister will no doubt want to put forward is the role of the NPPF. The Government made it clear in the consultation document that, in the absence of a national policy statement, the NPPF and other local policy and material consideration could form the policy framework for decision-making on these schemes. However, in practical terms, the NPPF does not lend itself to the national infrastructure planning process. It was written to inform the decisions of local planning authorities in their plan-making and development management functions under the Town and Country Planning Acts. Throughout the NPPF, the references to the planning system and planning law are really references to the Town and Country Planning Acts, not to the 2008 national infrastructure regime. The very wording of the NPPF says that local authorities should do this and should do that, not that the Secretary of State should do this and should do that. This makes the NPPF difficult to apply outside the specific context of local planning. To give one example, the presumption in favour of sustainable development could not be applied to the Secretary of State’s decisions under the national infrastructure procedure because the whole of this policy in the NPPF is set in the context of what local authorities will do in the local plan.
Therefore, the Secretary of State might not have a national policy statement to guide him, can choose to give as little or great weight to the local plan as he may, and the NPPF does not give him much help, if my analysis is correct. This does not exactly seem a policy and plan-led decision system, which gives certainty to developers, fairness to local interests and swiftness to decisions.
I could go on for hours about Clause 24—some might say I already have—but there are a few other things that I should like to put as weights in the scale. The process itself for national infrastructure planning
is not particularly satisfactory in the absence of a national policy statement or a pre-eminent authoritative local plan for a number of reasons. Local authorities can be asked for a local impact statement but these are pretty expensive and complex, and there is no requirement on the local authority to produce one. Depending on the volume of these cases, we might well find that local authorities become less and less keen, as they are not the deciding authority, to produce these.
There is also a particular issue with developers making significant changes to their applications following the pre-application consultation. That is admirable in that developers are responding to local input, but the big problems with the national infrastructure procedural hearings are that they are very tightly timetabled and there are no formal rights to cross-examine developers. There are real questions about whether there is real community involvement when such changes are happening through the NSIP procedure. This is particularly so since the decisions will not be made by the democratically elected local planning authority.
I may be about to pre-empt something that the noble Lord, Lord Greaves, may say—I am sorry for putting words into his mouth if he does not intend to say this—but I must admit that when he capitulated on Clause 1 and said it would not affect very many councils so it was probably not worth arguing against, I had a bad night afterwards. Just because a clause will not affect many people, that does not make bad law good law, so I encourage him not to capitulate in future.
Let us also look at volume. The Minister has said that this provision is not likely to involve more than 10 to 20 cases per year. I, too, am concerned about volume for a number of reasons; for example, the shale gas fracking issue, where we know that potentially 800 well-heads are predicted in the north-west. These are well-heads of a limited duration; they move on fairly rapidly after a few years, so multiple applications are likely to come up in the future. In the light of predictions—for example, Friends of the Earth believes that there is a potential pool of projects of all sorts that could well come within the criteria, which are currently being consulted on and might total between 300 and 500 per year—it would be useful to know whether Ministers are still of the view that only 10 to 20 applications per year would come through under this process.
My concern is that one might live with a very small number of projects if one were the noble Lord, Lord Greaves, but one would not live with a very large number of projects if one believed that this clause was not a good clause. This would also raise the question, which I leave with the Minister, of whether sufficient resources and measures are being put in place to ensure that the Planning Inspectorate can cope.
I hope that noble Lords are totally convinced by my long exposition of why Clause 24 is pretty horrible and should be amended.