Last night the House of Lords had their nearly final go at amending the Growth and Infrastructure Bill infrastructure provisions.  Those  who were there worked hard - the debate started at 3 p.m. and ended at 10.48, albeit with a break in the middle.  Also yesterday the government published one consultation response document and circulated a number of other documents to peers. The documents are:

  • Regulations 'clarifying' the calculation of fees for examinations
  • Regulations slimming down the consents that require consent to disapply in a Development Consent Order (DCO)
  • Regulations slimming down the consultees and notifiees for applications
  • A response to the 'one stop shop' consultation
  • An interim response to the 'business and commercial' consultation

The documents can all be found from the links above, except for the interim response to the business and commercial consultation, but I can supply it on request.  The Hansard report of last night can be found here: the relevant part starts at column 203.

Fee changes

The government claims that the changes do not make any difference, but merely clarify the law.  This is so that they don't have to hand out any refunds to promoters who might claim they have been overcharged.

Let's play a game of spot the difference.  See if you can detect any differences in these allegedly equivalent provisions:

Old provision:

In this regulation “relevant day” means a day on which the Examining authority examined the application, in the period beginning with the start day referred to in section 98(2) (timetable for examining, and reporting on, application) and ending with the completion of the examination.

New provision:

In this regulation “relevant day” means a day in the period beginning with the start day referred to in section 98(2) (timetable for examining, and reporting on, application) and ending with the completion of the examination, excluding—

(a) a Saturday or a Sunday, Christmas Day, Good Friday or a day which under the Banking and Financial Dealings Act 1971 is a bank holiday in England and Wales, unless any such day was required for the handling of the application;

(b) any day in respect of which in relation to the application there was a suspension under section 108 (suspension during review of national policy statement) or regulation 16 or 17 (accepted applications) of the Infrastructure Planning (Environmental Impact Assessment) Regulations 2009( ); or

(c) any day which, in relation to the application, the Secretary of State notifies the applicant under regulation 9(1) was not a relevant day due to sickness or such other circumstances as he may notify to the applicant.

I will maintain an air of studied neutrality and leave you to consider whether these words have the same effect or not.

During the debate, Lord Jenkin quoted Michael Humpries QC, treasurer of the National Infrastructure Planning Association (NIPA) who had opined that the charging for examinations by the Planning Inspectorate (PINS) was incorrect.  Lord Adonis said that if one assumed that single inspectors worked four days out of five on an application, three inspectors worked nine days out of ten and five inspectors worked 19 days out of 20, then over £460,000 too much had been charged by PINS to date.  The government resisted the amendment and it was withdrawn.

One stop shop changes

The amending regulations move 16 of the consents in the list that require the consenting body to agree that you can include them in a DCO from the England and Wales list to the Wales-only list.  Good news as far as it goes, but these are the consents that are unlikely to be needed or have actually been repealed, such as seal licences and deer licences.

The England and Wales list now has 26 entries, and the Wales-only list 52 entries.

The consultation response confirms that the new Consents Service Unit will be up and running by April and will help to co-ordinate and shepherd 12 consents that might be needed as part of a project.  PINS are going to publish a 'prospectus for developers' about this, which will presumably list the consents involved, because we are not privy to this yet.

For all the consents that still need the agreement of the original body to include in a DCO, those bodies are strongly encouraged to reply to requests with 'yes, if' rather than 'no'.

In last night's debate I am pleased to see my coinage of the opposite of a one stop shop used in Parliament - a bazaar. In response to the amendments, Lord Ahmad for the government said that the government 'does not consider that it would be efficient to change that position as part of the current reforms', but said that further changes might be possible in the major review of the Planning Act regime timetabled for next year.

Consulting and notifying list reduction

The list of bodies that need to be consulted about National Policy Statements and applications and notified of accepted applications is to be cut down to remove bodies that no longer exist, never reply or don't want to be consulted, and to update bodies that have changed their names.  The insidious footnote that brings in bodies that 'neighbour' the location of the project is also to be removed.

However this only applies to applications where no step has yet been taken by the time the regulations come into force on 6 April. The circulated draft has '11th draft' in its title so it must have taken some working out.

The Marine Management Organisation has replaced the Marine and Fisheries Agency, but it also needs to be removed from the Planning Act itself to complete the change.

Commencement of SPP provisions

An amendment last night sought to commence the special parliamentary procedure (SPP) reforms as soon as the Act got Royal Assent.  Lord Ahmad resisted this, saying "That could mean that there were bodies making representations on the basis that provisions on special parliamentary procedure, or the consent procedures affected by these clauses, would apply to an application as currently set out in the 2008 Act, but then finding that significant changes had been made as a result of this Bill"

He said that only one project would be caught, but it is actually two.  He undertook to write to Lord Berkeley about how the government had struck the balance between fairness and the need for growth, so I look forward to seeing that.

Lord Faulkner, Rookery South SPP committee veteran, moved a 'sunset' clause, where the SPP reforms would only last for five years. The government resisted this.

Other amendments

Further attempts to introduce pre-application hearings and waivers were unsuccessful. An amendment to elevate Canal and River Trust land to the status of National Trust land and subject it to SPP was made by Lord Hodgson.  In reply, Baroness Hanham said that CRT land would be 'statutory undertakers' land' and so still subject to additional protection.

Lord Adonis moved amendments to exclude quarrying and open-cast mining from being considered business and commercial projects, or land of special environmental or historical importance, and to allow some housing to be included.

Baroness Hanham in reply said that there was likely to be a debate on the secondary legislation setting out the types of business and commercial projects (to which Lord Adonis replied that it would be all or nothing as statutory instruments cannot be amended in Parliament).  She hinted that although the response to the consultation had not yet been published, the government were still not intending to have any national policy statements for business and commercial projects.  She resisted housing being brought in as this was the 'core responsibility' of local authorities and consultees had tended to support this (despite it not being a consultation question).

Lord Jenkin put forward an amendment from the Corporation of London that would mean business and commercial projects in London would have to be big enough to be able to be called in by the Mayor before they could use the Planning Act regime.  This is because the City of London has a higher threshold for that - 100,000 square feet - than the rest of London - 40,000 square feet, the same as is being proposed for b&c projects.  Lord Ahmad noted that the bill had been amended so that the Mayor already must consent to a project in London using the regime.

Finally, a government amendment has increased the flexibility of the Planning Act regime with respect to road user charging.  This will help forthcoming projects such as the Silvertown Tunnel and the A14.

There is one more day of Report Stage on 20 March, which will mainly consider the employment clause, and then Third Reading will ensue on 26 March. Agreement to Lords Amendments by the Commons has just been timetabled for 22 April, and Royal Assent is expected on 1 or 2 May.