This is entry number 287, published on 18 October 2011, of a blog on the Planning Act 2008 infrastructure planning and authorisation regime. Click here for a link to the whole blog.
Today’s entry reports on the final day of Report Stage of the Localism Bill in the House of Lords.
The Localism Bill is nearing the end of its passage through Parliament, and is being heavily amended as it goes. Yesterday was the final of seven days of 'Report Stage' in the House of Lords. All that remains is Third Reading on 31 October (although given the number of issues that were deferred to Third Reading there may be a second day), and the to-ing and fro-ing between the Commons and Lords to agree on the same version of the Bill known as 'ping pong'. Oh, and not forgetting Royal Assent, although the last time this was withheld was in 1708.
Yesterday was also the day where the infrastructure planning regime was considered for further amendment. No amendments were made, but the government representative Earl Attlee made some clarifying remarks and also agreed to redefine the threshold for railway projects to be considered nationally significant. The relevant Hansard is here (starting at column 101), but here are the main issues.
Galvanised by the practical example of the first project approved by the Infrastructure Planning Commission having to be subjected to 'special parliamentary procedure' (SPP) with its attendant delays, another attempt was made to remove additional consents. This point was swatted away by Earl Attlee, who said '[T]he existing protections embodied in these sections of the Planning Act are well established in existing compulsory purchase law. The proposed amendments would significantly weaken them, effectively creating a two-tier system for compulsory purchase with a stronger set of protections existing outside the major infrastructure system than within it, and I just do not think that that can be right.'
I just do not think that that can be right. The Planning Act is all about creating a two-tier system. The whole point is for there to be a different, streamlined system for nationally significant infrastructure projects (NSIP) compared with non NSIPs.
To demonstrate that the Planning Act contains too many controls over compulsory purchase of statutory undertakers' land, look at sections 127 and 128. Under the former, if you want to acquire such land, you can get a certificate from the government to say that there is no significant harm in doing so. Whether or not you do that, under the very next section, you have to undergo SPP if you are taking the same land. Section 127, which you might have thought would be control enough (or too much), is rendered pointless by section 128.
I hope that discussions between the sides, about which there was much discussion during the debate about why there hadn't been any, do now take place before Third Reading. Of all the points made during the debate, this one - and section 128 in particular - is going to affect the most projects and hold them up the most. If the government's growth agenda is going to be thwarted because infrastructure planning in the Localism Bill is considered to have had enough 'air time', regardless of the merits of further change, then there is something wrong with the system. OK, rant over - I think that may be the first one since I started the blog.
The other type of additional consent is the list in regulations where you can include them in your Planning Act application but only if the body that would otherwise have consented agrees to this. Unsurprisingly, most bodies do not agree to give up their control over a project; even if they did, it is more onerous to ask them to include the consent in the Planning Act application and then have the IPC consider it as well, than simply asking the original body to decide it.
Apparently this process 'provides clarity to potential applicants that certain consents should not ordinarily be absorbed into the major infrastructure planning process ... this is a complex issue and a better solution has not presented itself'. In other words, you aren't supposed to use this power and we haven't thought of a better way of doing it.
Upgrade of projects
Lord Jenkin argued that the replacement power in the Localism Bill to 'upgrade' a project to become an NSIP was too wide (where its predecessor in the Planning Act was too narrow). His argument was both on who could do this (it has gone from just the government to anyone) and when it can be done (it has gone from only after an application has been made to any time). Earl Attlee rebuffed this one as well, saying 'it may be that third parties with expertise in particular areas, such as environmental requirements, possess information which they think may elevate a proposed development from one of sub-national significance to one of national significance Transitional provisions ... If someone were to make a vexatious request simply to slow down the local planning process, the Secretary of State would be quickly able to provide a response in the negative. The scope for delay is therefore minimal'.
One size fits all
One amendment was to allow procedures that would be unnecessary, impossible or impracticable to be waived for certain projects, the idea being that the same panoply of requirements should not need to apply to the whole range of projects covered by the Act. The Earl replied that 'Orders made under the Planning Act may already provide for such a waiver procedure if it is deemed necessary.' OK, good, although I'm not entirely sure where that provision is.
The next issue was one that I raised in an earlier blog entry, namely that the government is only giving itself power to provide for seamless transition over projects that have effectively started their pre-application consultation, when there are other projects that have taken earlier steps that might have to be re-taken.
On this issue, at least we have a declaration that in the government's view the amendment is unnecessary: 'Where the IPC has issued a screening or scoping opinion or has authorised someone to serve a notice under Section 52 of the Planning Act, these actions will generally stand as authorised after transition as the IPC was the body with legal authority to carry out those actions at the time. Screening and scoping opinions and authorisation to obtain information about interests in land will not have to be given again'.
I am not completely convinced, unfortunately. The clause already applies to some applications before they are made - by what logic do they need transitional provisions but earlier projects don't? At least the government is going to assume that such projects can carry on seamlessly, but this might get challenged in the courts by a dedicated opponent of a particular project, when it could easily be put beyond the reach of such a challenge. It is also quite cool to raise an issue in this blog and have it debated in Parliament 12 days later.
The final issue was about the threshold for rail projects to be considered nationally significant. Lord Berkeley said that there wasn't a threshold, which is one way of putting it, although there is one in the Planning Act that says that if a rail project cannot rely on permitted development rights, then it is nationally significant.
Finally, the government conceded that the threshold, if it was one, was too low. Earl Attlee said 'We have therefore agreed that secondary legislation should be brought forward under Section 14 of the Planning Act to set a suitable threshold for rail projects'. Watch this space. Note that the government would prefer to vary the threshold rather than introduce a procedure where an NSIP can be 'downgraded' out of the regime.
A consultation on varying section 14 to add 'waste water transportation' so that the Thames Tunnel can use the regime, closed a couple of weeks ago, the first time that a change to projects and thresholds has been mooted.
So, the Localism Bill trundles on towards enactment. The Bill will now be renumbered to incorporate all the changes at report stage - I am afraid that all the clause numbers you know and love will change once again (one reason why they are called clauses and not sections). Here is the latest version of the Bill. Will Third Reading yield any more amendments? Watch this blog.