My Lords, I shall also speak to Amendment 55, which is grouped with Amendment 46B. I asked for these amendments to be degrouped, because I thought that we would have a better discussion that way, but they have not been, so I am happy to plough on with both amendments unless any other noble Lord indicates that they would rather debate them separately.
I would like first to express my gratitude to the Minister for probably several meetings that we have had on various issues relating to the amendments that are in my name and that of the noble Lord, Lord Jenkin of Roding. I am also grateful for the letter that she sent us yesterday with a number of attachments. I was able to study some of them but I am sure that there will be other things that we will want to debate further on.
I turn first to Amendment 46B, which is the same one as was moved in Committee. It is another attempt to provide for the NSIP/DCO regime to be the one-stop shop for all construction-related consents that was initially promised in the 2007 White Paper which led to the Planning Act 2008. It was one of the many proposals to try to speed up the process for getting consents for major projects. I think that one could call the present regime a bit of a bazaar. I hope that that is not insulting to those dealing with it. However, Sir Michael Pitt, of PINS, recently referred to the fact that some 40% of all construction-related consents were outside the DCO regime.
It is not intended and never has been intended by this amendment to cover operational consents, such as nuclear site operating licences or nuclear safety and environmental permissions. However, the point that did not come out in Committee is one of principle. How can it ever be right that an outside body such as the Environment Agency or Natural England has a veto on what a Minister can include in a DCO made by him or her? Section 150 of the 2008 Act gives these outside bodies such a veto. It may have been appropriate in the days of the IPC but it is no longer so when the decisions on the proposed DCOs are taken by democratically elected and accountable Ministers. Surely it is a fundamental principle that no one should be able to dictate what goes into a DCO? They can make representations, as this amendment proposes, but I suggest that, ultimately, the decision must be the Minister’s alone with reference to PINS’ recommendations.
The key point here is that the regime needs to be flexible. It needs to allow the promoter in discussion with the regulators to come up with a proposed consents regime that is right for each individual project. That may require some consents to be wrapped up in the DCO, by the DCO disapplying them, and other consents to be retained separately. However, there is a precedent for this, because disapplying consents by orders—and indeed by Acts such as the Crossrail Act 2008 and the Channel Tunnel Rail Link Act 1996—is not the new concept that observers of the debate in Committee might have been led to believe. It is commonplace in the Transport and Works Act and the Harbours Act regimes. In many cases separate consents is disapplied in exchange for protective provisions for the benefit of the regulator concerned being included in the order, such as provisions requiring the regulator to approve detailed plans of the project before construction starts. These protective provisions often then go on to provide for subsequent monitoring and compliance with them to be enforced by the regulator concerned, such as protective provisions in the TWA orders for the benefit of the Environment Agency.
I suggest that the same approach could be adopted in the case of DCOs. A single consenting regime for the construction phase of large projects can deliver real benefits and efficiencies, which I am sure is what the Government are looking for. For example, in 2008 the Department for Transport decided in response to the application for the harbour empowerment order to authorise the London Gateway port—which is now under construction; there were great pictures last week of what I think is one of the biggest cranes in the world being floated into it—that it was appropriate to disapply through the order much of the Environment Agency’s consenting regime, because it was already the case that the Port of London Authority would have to approve detailed plans of the project before construction could start. It did not make any sense to duplicate this, and add to the promoters’ burden, by requiring plans also to be approved by the Environment Agency. In this case, the EA would be able to feed its comments into the PLA before the plans were approved by the PLA, which had a whole host of environmental obligations in addition to its conservation role. It can reasonably assume that the preconstruction approval process would have been even more complex, taken longer and been more expensive had the EA had full plan approval rights. I think that if one were to ask the promoters of the London Gateway port, they would say just how successful this regime has been. It has probably cost them a lot of money but it has happened a lot more quickly than it would otherwise have done.
7.30 pm
The draft regulations in the letter which the noble Baroness kindly sent to Peers yesterday do not make any difference to the case for this amendment. They implement what the CLG proposed in its consultation paper of 26 November 2012, and amend the schedule to the Infrastructure Planning (Miscellaneous Prescribed Provisions) Regulations 2010. That schedule contained lists of consents and authorisations prescribed for the purposes of Section 150(1) of the Planning Act 2008, meaning the consents that can be disapplied by a DCO only with the agreement of the regulator concerned.
There is a lot of shuffling between Part 1 of the Schedule and Part 2 concerning what is to be done in England and Wales and what is to be done in Wales only. I do not think that the House would want to hear from me on that tonight. However, the 16 consents removed from the England list are those that are either redundant or unlikely to apply to applications for development consents, so I suggest that this change will have little effect although it is clearly a useful tidying-up exercise.
Given the Government’s continuing commitment to major infrastructure projects—we hear good, welcome news from different Ministers on that on an almost weekly basis—I urge Ministers to take these points seriously. If the Minister cannot agree today to these amendments, perhaps we can have further discussions before Third Reading. I hope that the Minister will be able to come back with the Government’s own amendment before then.
I am sorry if this is taking a little time but I shall move on to Amendment 55, which concerns the timescale for the commencement of certification for the special parliamentary procedures reform. Again, this is something which we discussed in Committee but I remain concerned about when the right time is for this clause to come into effect. The reason for this amendment is that the Government have announced that the reform of SPP will apply only to projects where the applications were made after the Bill was introduced on 18 October 2012, and that the reform of certification requirements will apply only to applications that are made after the provision comes into force.
Two live applications are likely to be affected by the delayed introduction of Clauses 22 and 23, while further applications may be affected by the delayed introduction of Clause 21. This means that much needed infrastructure could suffer at least a year’s delay as that process is undertaken, despite Parliament having legislated for it to be removed. The two applications are, first, the Able marine energy park on Humberside, which I believe to be one of the proposed land ports for the development of offshore wind farms—farms which I suggest will be quite important within the next year or five in ensuring that we have enough electricity to keep the lights on—and, secondly, the proposed Fieldes Lock power station in Hertfordshire. Similar comments might apply there.
The rationale for not applying the changes to these projects is that they would allegedly be retrospective if they did apply, since the applications would have been made before the provisions of the Bill reducing SPP were known. There may be a bit of a misconception here, for three reasons. First, the intention to reform SPP was indicated on Budget Day last year, 21 March 2012. The infrastructure delivery update says at paragraph 5.1 that,
“the Government … will remove duplication in the consenting regime for major infrastructure development by bringing forward legislation to adjust the scope of Special Parliamentary Procedure”,
so they have had the best part of a year’s warning. Budget 2012 was delivered before the Fieldes Lock application was made and during the representation period for the Able marine energy park. It could not therefore be said that there was no knowledge of the changes as far as the interested parties were concerned.
Secondly, the trigger for SPP to be invoked, according to Section 128 of the Planning Act 2008, is a future event in relation to these two cases: the making by a Minister of,
“An order granting development consent”,
which,
“authorises the compulsory acquisition of land to which this section applies”.
An order granting development consent is the order that is actually made, so this trigger applies only once an order has been made in response to an application rather than before that. In the case of Able marine, the decision on whether to make the order will be made on about 24 May, which is likely to be after this Bill receives Royal Assent. The decision on Fieldes Lock will be made after that. The trigger will therefore apply after that receipt of Royal Assent, so applying these reforms to these two cases would not be retrospective legislation.
Thirdly, the Fieldes Lock examination has not occurred yet, so there will be a full opportunity to consider the issues that would trigger SPP during that examination without any prejudice to any party. Although the Able marine examination has taken place, in fact it considered compulsory purchase issues at two hearings held in October where the bodies likely to trigger SPP made oral representations to the examining authority.
We have also received copies of some advice from the department on retrospective applications. The note I have says that,
“the Department took into account the potential for retrospective provisions to give rise to unfairness, and the need to mitigate this as far as reasonably possible. This included taking into account … the need to ensure that affected persons were given notice of the changes and given a further chance, where appropriate, to make representations. It balanced this against the need to remove barriers to growth and the desirability of avoiding delays in respect of Nationally Significant Infrastructure Projects”.
That is all very fine, but is there a document setting out how this balance was achieved and who said what to whom? Is it the result of any consultation or do we just have to take it from the Government that they know what is best? This is a very important matter. I conclude that that is a very conservative interpretation and approach to retrospective legislation. We have the experience of the Rookery South SPP, which took more than 500 days and effectively delayed the construction of that project. The one on the Humber is of particular concern because the DCO application was heavily opposed by Associated British Ports on competition grounds, resulting in the largest number of hearings so far for a DCO, so ABP can be expected to take full advantage of the current SPP route. This could probably take an awful lot longer than 500 days —maybe two years or even longer, if the Joint Committee decided to hear the case. Two years plus—is that a sensible time to rerun what is effectively a second-time-round planning application when there is a need for a shore base for an offshore wind farm? I should be very interested to hear what the Minister has to say in response. I beg to move.