Infrastructure Bill [Lords]

Alan Whitehead Excerpts

Monday 8th December 2014 Commons Chamber

[Mr Hayes]

That is a fair question, and one which has already been put to me by those in local government. I will look closely at that, but I am anxious—the right hon. Gentleman is a great expert, given his experience as a Minister and, beyond that, his understanding of house building—and keen to ensure that this does not create unnecessarily bureaucratic or over-regulatory delay. The point he makes is a good one and I will certainly go away and consider it during the passage of the Bill. I say to my right hon. Friend the Member for Wokingham—who has intervened twice and might have another go in a minute, who knows?—that this is a very good example of the Government taking action to make the system more straightforward and less bureaucratic, so that decisions can be made in a timely way and be acted on with appropriate promptness. Wise as they are on these things, I am sure the Opposition will not disagree. Likewise, when they reflect on much of the Bill, I suspect they will appreciate it is the right thing to do in the national interest—but we will hear from them in a few moments.

Public sector land is an important source of land for development, and we have already released land with the capacity for 90,000 new homes, but to make that happen we propose to allow a Government arm’s length body to transfer disused surplus land directly to the Homes and Communities Agency or the Greater London authority, rather than having first to transfer it back to the parent Department. This measure will once again reduce bureaucracy in the transfer of land, meaning that disused Government-owned land can be brought to the market more quickly to build homes and improve communities.

As you know, Mr Speaker, the Government are committed to England’s public forest estate remaining in public ownership—[Hon. Members: “They are now.”] I know Labour is in the woods, but we are committed to the past, present and future of our forests. Hon. Members, including my hon. Friend the Member for Forest of Dean (Mr Harper), have raised their constituents’ interests several times in the House and have influenced the decision to amend the Bill to ensure the measure will not apply to them.

The move to digitise and centralise local land charges and free up the Land Registry to take a wider role will ultimately help people buying and selling their homes. The Government aim to make dealing with property quicker, cheaper and easier. The Land Registry is well placed to help achieve that aim because it is already at the centre of the conveyancing process and is the largest single source of property information. The changes in the Bill will stop the wider disparities in charging, currently ranging from approximately £3 to £76, and will lead to a more efficient service for searches as people access a single provider rather than one of 348 separate providers. We need modern systems to underpin the property market.

On zero-carbon homes, we have already tightened building regulations to make new homes more energy efficient. Today’s new homes save people about £200 on average—

[Dr Alan Whitehead (Southampton, Test) (Lab)]

rose—

[Mr Hayes]

I give way to the hon. Gentleman, who is such a distinguished member of the Energy and Climate Change Committee.

[Dr Whitehead]

Given the Minister’s concern for linguistic exactitude, will he reflect that he is talking about “zero-carbon homes”, yet he must be clear that the provisions in the Bill mean that no zero-carbon homes will be built now or in the future? Would he care to rephrase his contribution to something such as “slightly less energy leaky homes”, or some such locution, to make his language exact?

[Mr Hayes]

Even if I believed that, such an ugly turn of phrase would fit ill on my lips, and I could not possibly bring myself to issue it. To that end, I will stick with my own choice of words.

The hon. Gentleman knows, because he is a great expert on these matters—far more expert than I am, I have to acknowledge—today’s new homes save £200 on average on their energy bills compared with homes built before the coalition came to power. He knows that new homes are more energy efficient. I want that energy efficiency to grow, however, so new homes will have net zero-carbon emissions from energy used to heat and light them, and there will be a higher efficiency requirement that may be augmented by on-site renewable energy measures such as solar panels.

Where that is not possible, however, to abate all carbon emissions on-site, the Government will allow developers to offset remaining emissions through off- site carbon abatement measures known as “allowable solutions”—precisely what the hon. Gentleman was referring to—which is a cost effective and practical way of dealing with carbon. I know it does not appeal to the purists, but it is deliverable. Either we want to hit these targets and get to our destination, or we do not.

--- Later in debate ---

[Nick Herbert]

Local authorities are clearly nervous. They fear that if they do not give planning permission in response to a speculative application—although their plans are in the process of being developed—if that is overturned by the planning inspector, costs will be awarded against them. They feel that there is no equality in the process.

I do not resile from the importance of providing a great deal more housing, because it is clearly needed. The issue is how that can best be provided. I think that the early adoption of neighbourhood plans by consent shows that, given power and responsibility, communities provide the necessary housing, while top-down intervention of the kind that Government Members have always criticised can undermine that provision.

The third issue that I want to raise relates to the proposals in part 5 of the Bill to provide access to subterranean land for the purpose of fracking. This is a live issue in my constituency. An application to drill in an area of beautiful countryside that is very close to a national park was turned down by West Sussex county council, but is the subject of an appeal by the company involved.

Two sets of issues related to fracking concern local communities, and I think that we should try to separate them. First, there are the environmental concerns about the impact of the activity that takes place below ground. As many Members on both sides of the House have said, those concerns need to be addressed by means of proper regulation and controls, and we should discuss the importance of ensuring that they are adequate.

Secondly, there are the issues that relate to what happens on the surface, and the choice of sites for drilling. In my constituency, the choice of sites has been crucial. Opposition to the drilling does not just come from communities who are concerned about the environmental impact below the ground. Rural communities fear that they will experience significant lorry movements through their villages—which they would not otherwise have experienced —over an extended period. Wise site location which minimises disruption to communities on the surface is a second way in which the industry could address much of the concern about these proposals.

We now have a specific proposal in this legislation on trespass, which seeks to deal with the land ownership issues. That comes against the background of great concern about the activity. It is true that members of the public have largely misheard the proposals so far. In my constituency, I fear that many people believe that the proposals will license invasion on the surface of their land by those who wish to drill, without them giving permission and without any of the regulatory controls which exist. The Government must continue to reassure local people that in fact these proposals relate to deep subterranean activity and do not change any of the requirements for permission to be given by a landowner as to whether they want drilling on their land, nor any of the regulatory requirements.

[Dr Whitehead]

rose—

[Nick Herbert]

I will give way in a moment

On the specific proposal for subterranean drilling, there is a question mark over the way in which compensation is to be given to landowners via some kind of community fund, and one of the issues that needs to be explored is whether the compensation should go directly to the landowners who are affected. I think that might be a better way to ensure there is confidence in this procedure. It has been proposed not only by the Country Land and Business Association but by one oil company, INEOS. I hope the Government will consider that proposal carefully as a means to ensure that communities and individuals are properly compensated for these activities.

In conclusion—

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[Robert Neill (Bromley and Chislehurst) (Con)]

I hope that the hon. Member for Stoke-on-Trent North (Joan Walley) will forgive me if I do not pursue the points that she has raised, because I want to concentrate on part 4 of the Bill. It is an important Bill and, overall, one that I welcome; I shall be supporting it tonight. I shall concentrate on planning and related matters.

My first point relates to the arrangements for national infrastructure policy. I welcome the changes, which represent a logical development from what is currently in place and fit logically with the work that has already been done on the national planning policy framework. I should like to make a few observations. I have taken an interest in this area, both when I was a Minister in the Department for Communities and Local Government and subsequently. Professionals to whom I have spoken, including representatives of the National Infrastructure Planning Association and of the Compulsory Purchase Association, welcome the steps that the Government are taking in the Bill.

It is worth noting that development consent orders are a key element of the process, and it is valuable to tighten up the way in which they operate. There is a feeling, however, that we should be prepared to go still further in due course. I am not suggesting that that should be done in this Bill, but I hope that Ministers will bear in mind that, helpful though these changes are, there is a strong feeling among many professionals in the sector that they will not be a substitute for a comprehensive review of the operation of our compulsory purchase and land compensation legislation and its associated case law, and that such a review should be undertaken before too long.

Some of the legislation is fairly elderly by now and I hope that in the next Parliament we will take a comprehensive look at the way in which land compensation works. My right hon. Friend the Member for Arundel and South Downs (Nick Herbert) pointed out that other jurisdictions, such as France, deal with major infrastructure projects partly through quality of design and partly through much swifter and sometimes more generous land compensation arrangements when compulsory acquisitions are required. We may need to consider that in this country.

Clause 26 deals with planning conditions and deemed consents, which we discussed when I was a Minister. On balance, I support the proposed changes, which are necessary. It is worth taking a step back and remembering that planning conditions are an important part of the system. They are imposed essentially to make what might otherwise be unacceptable development acceptable, so they have a legitimate and proper role. The issue that arises here is not the legitimacy of the role, but the efficiency thereafter. There is a genuine issue that needs to be addressed.

Concern was flagged up as long ago as the Killian Pretty review of 2008 that one of the worst causes of delay is the post-consent process. There will come a time when conditions either have been complied with or are no longer necessary for various reasons and ought to be discharged. There is no reason, therefore, why speeding up the discharge of conditions should be a problem in terms of the principle of planning law. We need to make the process more efficient. Killian Pretty was clear about the problems that remained, and my right hon. Friend the Minister, in introducing the Bill, highlighted the fact that that remains a difficulty.

As well as looking at deemed consents imposed by the planning authority, we should pay particular attention to the situation where the planning authority has imposed a condition at the behest of a statutory consultee. It is sometimes difficult for planning authorities themselves, who may be caught between the devil and the deep blue sea—the legitimate desire of a developer to get on with important development. There are all too often delays by the statutory consultees in responding to the inquiries made of them. Part 1 happens to deal, in a different context, with one statutory consultee, but frequently the Highways Agency and the Environment Agency have been among the worst offenders in this regard, and local authorities are in a difficult position.

As well as doing what the Government are doing, which I support, I hope we might consider going further and deal with a situation where, in relation to applications, discharge of conditions and potentially also appeals, a statutory consultee fails to respond by the time limit. In such a case, why should there not be a provision deeming that the statutory consultee has no objection to the proposal involved? Such deemed assent by the statutory consultee would speed up the process and remove a pressure from the local planning authority that it cannot otherwise effectively control. Another mechanism that might be considered is some cost penalty against statutory consultees that delay the process.

During my time as Minister for the Thames gateway, I was repeatedly frustrated by the delay in getting decisions out of the Highways Authority about important aspects such as removing the tolling booths at the Dartford tunnel, when we were using technology that any Londoner had known about for many years, or the necessary improvements on the A13 between the DP World site, a nationally significant infrastructure site, and the Dartford crossing. I hope that whatever new arrangements we have for the highways company, as it is now to be, there will be a greater sense of the commercial imperative to speed up decisions.

I remember one important housing site, which everybody agreed was the right site for housing; an otherwise properly prepared and robust local plan by the planning authority for the area was suddenly thrown into disarray at the very last minute by the Environment Agency’s raising an issue about habitats, which ought to have been foreseen much earlier in the process. We need to put more pressure on statutory consultees not only to do their duty, but to do it properly and efficiently. I hope we might be able to strengthen the provisions of that part of the Bill.

I turn to two more technical areas, which are important. The first relates to easements, which I racked my brains about when doing planning law, but I eventually got to the bottom of it. These are particularly important in the context of London, so I speak now as a London Member of Parliament. Clause 28 makes changes to easements affecting land. The changes are good as far as they go. A particular problem arises in London, and I draw it to Ministers’ attention in the hope that we can address it in Committee. We all know that it is important that easements run with the land; that is a fundamental concept. I refer to the overriding powers of the Greater London authority, the Homes and Communities Agency and now mayoral development corporations, which I hope we may see replicated with joint authorities outside London. Allowing these bodies to benefit their successors in title will be hugely important for unblocking development, as is already the case in the capital.

Developers and specialist lawyers in the field have significant concerns that the law threatens development sites. That was an omission from the Housing and Regeneration Act 2008, which clause 28 is designed to tackle—and it does so, up to a point. However, it is not retrospective. Usually I am not a fan of retrospective legislation, but in London we have a specific issue. Some key development land, in particular land in the docklands area, was transferred from the London Development Agency in 2012. A lot of land around the Olympic park, the lower Lea valley, was part of the land for debt swap that some right hon. and hon. Members will remember.

As the Bill is drafted, that will not be covered so there will not be the legal certainty that successors in title will benefit when the land is sold on down the development chain. I hope the Minister will look specifically at the Mayor of London’s request that the Government delete subsections (11) and (12) of clause 28. That will enable it to operate retrospectively in relation to those areas of development land in London that had already been transferred, before the Bill becomes operative. It is a technical matter but a very important one, because it affects some of the most significant housing and commercial development land in our growing capital.

The final technical area to which I shall refer relates to clause 32 and the allowable solutions arrangements for offsite carbon abatement measures. Clause 32 is a sensible clause and very useful, as far as it goes. The principle of allowable solutions is a fair one because not every site will permit a mitigation measure onsite, so a degree of flexibility is sensible. However, there is an issue in relation to the geography. Again, it applies particularly to a large strategic planning authority, such as London. Unless there are some additional protections from London’s point of view, the Mayor of London and the Greater London authority are concerned that the scheme could see investment draining out of London, because it would be cheaper for developers to provide their offsite alternative solutions in areas of lower land value—in other words, outside the capital, rather than within it.

[Dr Whitehead]

rose—

[Robert Neill]

I shall give way in a moment, when I have developed the point.

It is important that there is some means of making sure that the investment is captured within the capital. There is some evidence to support that. Unintended consequences have occurred under the energy companies obligation scheme, so that the capital has received proportionately less in funding than it should receive. For example, about 13% of the national share of housing is in the capital but in the first year of the ECO scheme London received only 6.4% of the spending. That system, once in place, could generate about £90 million per annum, so it is important that London gets a fair share of it.

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[Mr Peter Lilley (Hitchin and Harpenden) (Con)]

I get two kinds of letters about infrastructure. The first kind says: “The infrastructure in this country is inadequate. It is the cause of congestion, housing shortage and economic inefficiency. We must invest heavily and speedily in more infrastructure.” The second kind objects to any specific item of infrastructure being built or proposed. Those letters say: “A new road? No. We should be investing in rail,” or “A new rail line? No. We should be relying on short-haul aircraft,” or, “More airport capacity? No. We should be staying at home,” or, “Build more homes? No. We can’t build more homes because we haven’t got the infrastructure to support them.” We suffer from infrastructural schizophrenia in this country. To some extent, that has been exemplified in the debate.

I congratulate the Minister of State, Department for Transport, my right hon. Friend the Member for South Holland and The Deepings (Mr Hayes), who has responsibility for roads, on finding the one piece of infrastructure that does not arouse antagonism: the widening of the A1(M), for which my hon. Friend the Member for Stevenage (Stephen McPartland) has campaigned so hard with my support. That has won near-unanimous support in our part of Hertfordshire, not least because it is economical, it will be done on an existing hard shoulder, it involves minimal disruption and it can be done rapidly.

I want to focus on the element of the Bill that empowers drilling under other people’s land. When I initially heard those proposals I was worried, although I am sympathetic to promoting and developing the shale oil and gas industries in these countries. The proposals sounded like an unprecedented invasion of people’s property and an act of trespass, but they are far from unprecedented. The London underground runs under the street where I live in London. I can often hear the rumble, even though we live a couple of floors above it. I doubt whether the owners of my property should have had the right to prevent the building of the London underground.

The tube is a maximum of 100 feet beneath the ground. Coal mining involves massive and relatively shallow tunnels, which can cause subsidence. Sewerage, water and other underground networks also run under other people’s property. By contrast, a lateral gas or oil well is usually just a 7-inch bore about 1 mile below ground. It can cause no conceivable disturbance to the surface landowner.

[Dr Whitehead]

The right hon. Gentleman observes that lateral drilling and fracking for gas takes place a mile underground, so why do provisions in the Bill deem deep-level land to be 300 metres underground?

[Mr Lilley]

Well, 300 metres is 10 times as deep as the London underground. The Bill states that deep-level land is at least 300 metres down, but normally drilling will be about a mile down because—as the hon. Gentleman will know from serving on the Energy Committee—about 7,000 feet of rock is needed to compress the shale sufficiently to turn it into gas or oil.

Rightly or wrongly, mineral resources in this country were nationalised before the war and, unlike in the USA, landowners do not have the right to extract them. I do not see why landowners should have the right to prevent the extraction of a national resource that is collectively owned by us all. After all, we do not have the right to prevent aircraft from flying over our property, although frankly the chance of an aircraft falling on our property is rather greater than that of anything welling up through a mile of rock and affecting our homes.

In theory we could revert to the pre-war situation, as in America, and give landowners rights over subsurface minerals and their exploration. If we did so, the general taxpayer, who stands to benefit from a 61% tax on profits from any shale gas, not to mention royalties and fees, would be the loser, while landowners lucky enough to own land above any of that natural resource would become richer—I am not sure whether that is the direction in which the parties of Keir Hardie or the hon. Member for Brighton, Pavilion (Caroline Lucas) are going, but I think we should keep things as they are. The resource is collectively owned; let us open it up for sensible, properly regulated and environmentally sound exploitation.

In the USA, when landowners are given the choice between preventing or allowing the exploitation of land from which they will profit, they overwhelmingly say yes. Despite strong campaigns to discourage the development of the fracking industry in north America, 2.5 million wells have been drilled and not a single person has been poisoned by contaminated water, nor a single building damaged by the minute seismic tremors that fracking can cause.

A lot of letters I receive say, “But this is against the laws of trespass. This is terrible. You’re trespassing under my land, which is as bad as trespassing on it.” Actually there is a great deal of misunderstanding about the law of trespass. My father did not have many political opinions but he was a libertarian. When we went out in the country and saw a sign saying, “Trespassers will be prosecuted”, he would say, “My son, as a free-born Englishman, you have the right to go anywhere as long as you do not cause damage. The landowners are bluffing and cannot stop you.” He was right, of course. Subsequently, Mr Fagan wandered into Buckingham palace and the Queen’s bedroom, but he could not be prosecuted because he had done no damage.

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[Dr Alan Whitehead (Southampton, Test) (Lab)]

Unlike the hon. Member for Castle Point (Rebecca Harris), I do not rise to support every single part of this Bill.

Earlier in the debate, the Bill was described as a kaleidoscopic vision. I would prefer to describe it as a rag-bag. One dictionary definition of “ragbag” is “a confused assortment; a jumble”. Perhaps that is a little harsh, so I prefer an alternative definition: “a bag in which small pieces of cloth are kept for use in mending”. I am afraid that time prevents me from pulling more than a couple of pieces of cloth out of the ragbag to examine. I will therefore concentrate my remarks on just two pieces, neither of which seems to have been designed to mend anything in particular.

The first piece of cloth I want to pull out is the question of the so-called moves towards zero-carbon homes. I say “so-called” advisedly. The explanatory notes to the Bill clearly state:

“The Government is committed to introducing a zero carbon emissions standard for new dwellings in England from 2016.”

However, the Government have now made three attempts to knock down the original version of what would have been moves towards zero-carbon homes by 2016. As hon. Members will remember, that arose from the 2006 code for sustainable homes. There were rising levels of sustainability going up to code level 6, and homes were supposed to be getting towards that level by 2016. I accept that there could have been allowable solutions under certain circumstances when it might have been difficult to get homes up to that level, but they should have been the exception. The code level should have got as close to 6 as possible before those allowable solutions came about.

This is a very important infrastructure issue. If one is pursuing a major project to try to make sure that all the homes that are standing by 2050 are as energy-efficient as possible—as the Government claimed they had been doing with the energy companies obligation and the wider issues of energy efficiency in homes—it seems nonsensical and perverse not then to seek to build new homes that are as energy-efficient as possible to replace the ones that they were trying to make as energy-efficient as possible in the first place. However, that is what seems to be on offer in this Bill.

The Zero Carbon Hub is a group consisting of, among others, the National House Building Council, the Federation of Master Builders, the Home Builders Federation and major house building companies, all of which said that allowable solutions should be put in place only after the code for sustainable homes went up to something like a 60% improvement over part L of the building regulations. Yet the Government have simply said, “That’s not feasible—there’s no evidence. Lets put it down to 40%-odd over part L.” Indeed, the explanatory notes state:

“The intention is therefore to set a maximum on-site carbon dioxide emission standard for new homes and for the remainder of the zero carbon target to be met by house builders supporting off-site carbon abatement measures”.

What that means is that those homes will be built to nowhere near the zero-carbon-emission standard. Relatively modest improvements will have to be made over and above the part L building standard commitments and it will be possible to pay money to get out of that particular commitment.

Although the Government appear to be arguing, despite having no evidence, that the standard is unobtainable, the additional cost of building zero-carbon homes has halved since 2011. The payback for that additional cost takes only a few years in terms of the lower energy bills in homes built as close as possible to a zero-carbon standard, but the Government have decided that they do not wish to pursue that course.

Let us be clear that, under the Bill, a major element of infrastructure—new housing—is moving away from being zero or low-carbon in the future. The allowable solutions suggested by the Bill are not just applicable to circumstances in which it is not easy to make the homes zero carbon, but act as an excuse for making sure that those homes are nowhere near zero carbon. Moreover, the regulations are very unclear about the amount of money builders will have to put into the fund if they do not make their homes zero carbon. As we have heard, that may leak out from planning authorities and may not go towards alternative zero-carbon proposals for retrofit. That rag needs to be looked at.

A number of other hon. Members have addressed the other rag that needs to be seriously examined, namely fracking. We need to be clear that the relevant clauses are all about trying to make sure that fracking can be undertaken as speedily and with as little examination as possible, as opposed to making sure that there are proper environmental safeguards and that concerns are properly addressed if fracking is to go ahead at all. I mentioned in an intervention that fracking usually takes place at least 1 mile, possibly 2 miles, underground, so what could be the harm in that? Unfortunately, however, the Bill suggests that anything below 300 metres—a third of a kilometre, not even a third of a mile—will be regarded as deep underground and therefore available for fracking.

It will be possible for there to be access beneath the land on which people live. As we have heard, regardless of assurances about safety, there are no proposals for any kind of baseline or environmental impact assessment. Even if concerns are correctly expressed, such as the question of what might happen to the land should there be a fault with it that could lead to some damage being done, we do not know who would be responsible, because there will not be that baseline assessment.

We also do not know—there is nothing about this in the Bill or elsewhere—what the position will be regarding the accumulation of such holdings. It appears that the regime envisaged will simply enable drilling after individual planning permission is given and accumulation will not be an issue as far as water or fracking fluid are concerned. Indeed, it is not even an issue with regard to where fracking goes.

The Bill’s proposals fall far short of the very minimum that one might expect from any sort of regime that would make fracking an assuredly safe procedure as far as the public are concerned. It is of paramount importance that public concerns about the safety of the fracking process should be addressed. If we persist in putting through legislation that appears to suggest the opposite to the public, it will not be surprising if they continue to raise very serious objections about what is going on behind the whole process and ask whether the design of the process is in their interests at all or in someone else’s interests entirely.