Levelling-up and Regeneration Bill

Lord Stunell Excerpts

Committee stage
Monday 24th April 2023 Lords Chamber

[Lord Moylan (Con)]

My Lords, I declare my interest as a member of the board of the Ebbsfleet Development Corporation.

Designation as an NSIP, a nationally significant infrastructure project, has a blighting effect. It differs from a normal planning permission in that the Government become something akin to a co-partner in a project that is designated an NSIP, supporting it because of its national significance. But what responsibilities fall on the Government as a result of this co-partnership, sponsorship or promotion of a particular project? In particular, what obligations fall on them to avoid or mitigate any persistent blight that might ensue?

An egregious example is the expansion of Heathrow Airport. Noble Lords may not know that I have been a long-standing opponent of the expansion of Heathrow Airport for over 10 years. More importantly, not only do I oppose it but I think it is unworkable and undeliverable: it involves either moving the M25 or building a runway over it, its cost would exceed £18 billion when the whole market value of the airport is significantly less than that, and so on. But there it is: the designated status remains present for Heathrow Airport’s expansion, and the blighting of the area—the effect that it has on the surrounding villages, on housing and on other land uses—remains.

An example from Ebbsfleet relates to the Swanscombe peninsula, a large triangle of land that, so to speak, protrudes into the Thames. It is within the red line of the Ebbsfleet Development Corporation as a planning authority, but the corporation does not own it. Proposals for a privately funded resort, of the character of a Disneyland or whatever, were given nationally significant infrastructure project status as long ago as 2014. Very slowly, the company promoting it advanced to a position in 2021 of being able to submit a DCO. In the meantime, it suffered the bolt from the blue of Natural England turning up out of nowhere—or, specifically, out of Ebbsfleet International railway station—and designating it a site of special scientific interest. This ability of Natural England to appear out of nowhere and designate sites as SSSIs at the same time as they are nationally significant infrastructure projects is worth exploring in a different debate. Then the DCO was rejected by the planning inspectors for, among other things, not having a transport plan attached to it—a point that had been made repeatedly to the company by the corporation in its role as planning authority. Now I read in the newspapers that the company recently went into administration.

However, the blight on the land and—while there are not many of them—on the existing industrial occupants of the land continues. I do not mean by this any criticism of the developer and I do not regard its failure to deliver the project, at least to date, as a criticism of it. Private sector projects inherently involve the taking of risk. It is right that we have an economy where risk is taken, but one of the corollaries of taking risk is that not all businesses or projects succeed, so the fact it has have not succeeded is not a criticism of it.

However, that is not my point; my point is to ask where the Minister is in all this. Where is the department that agreed to the designation, all of nine years ago? It is true that the Minister has written recently to the company, asking how it plans to progress. But since the company is in administration, I am not sure what answer he expects to get. Apart from that, it is hard to see how the Government have engaged with furthering this project, which they regard as nationally significant.

My amendment is intended to be very gentle. It places very little obligation on the Government but it would require them, three years after designating an NSIP, to review progress—that is all—“and annually thereafter”, with a view to seeing whether the project is actually going to be delivered. It then says that the Secretary of State may decide to cancel the designation. That power to cancel is already in existing legislation—the Planning Act 2008, as amended—so I am not conferring a new power. I am simply implying that he or she should consider it as a result of a review of progress. This would at least show that the Government share a responsibility for the progress of projects which they have designated as nationally significant. It would help to mitigate the blight that they cause, in effect, by showing that degree of engagement, review and possible cancellation.

I regard this as a very modest amendment, and one that it would be easy for my noble friend on the Front Bench simply to accept as drafted. I look forward to her response and hope that that is indeed what she agrees to do.

[Lord Stunell (LD)]

My Lords, I give three-quarters support—I was going to say half-hearted support—to what the noble Lord, Lord Moylan, has moved by way of his amendment. The nationally significant infrastructure projects programme was quite a radical change when it was introduced. It was seen as a way of what one might call railroading—except that would perhaps be unfortunate given some of the projects—or delivering national projects which would be perpetually trapped in the local planning system should they go by the conventional route.

It is something of a planning bulldozer, and I absolutely share the concern of the noble Lord, Lord Moylan, about the expansion of Heathrow; we are on the same page as far as that goes. It is equally clear that, if a project such as Heathrow was ever to go forward, it would not survive the local planning processes, so the existence of a nationally significant infrastructure project mechanism for delivery is certainly well justified in the legislation. The question is: what happens when a project begins to fade from the priority list of the Government or, for that matter, that of investors in a private project? The noble Lord has produced two examples, known very well to him from his personal work experience and career, which illustrate the point.

I say to the Minister that surely there should be some process of project review in central government. The Built Environment Select Committee—I was a member until January—considered that in some detail, in looking at some evidence that we received in relation to reports. The committee took evidence from various parties. Who is actually in charge of the oversight of whether projects will proceed, are proceeding or are making progress? The committee was not convinced at that time that the Government had a viable and clear process for deciding that a project was or was not a priority, what that priority might be or what its consequences might be. The idea that there is a national pipeline, with projects neatly lined up going in at one end and coming out completed at the other, is fanciful. However, that is the way that the thinking, and often the public expression, about having a national infrastructure plan is expressed.

I am with the noble Lord, Lord Moylan, and this amendment, but I see it much more as being about hearing from the Government that they have a review process, that the review process is capable of taking a hard decisions, and that, when it takes a hard decision, it makes it operational on the ground so that we do not have huge areas, such as those around Heathrow, that are blighted. Indeed, on the peninsula on the Thames estuary, to which the noble Lord, Lord Moylan referred, progress is going in no direction. In the presence of a Section 35 designation, nobody else can go there either. It is essentially a dead development area, which I would have thought the Government would be anxious to avoid.

I am keen to hear what the Minister believes the mechanism is and whether, in the judgment of the Government, it is effective. If it is effective, it should be quite easy to answer the question put by the noble Lord, Lord Moylan, on how long it will be before the Ebbsfleet peninsula is de-designated. I suspect that it would be difficult for the Minister to de-designate Heathrow at the Dispatch Box today for a variety of reasons, but I hope that it is clear the direction from which I am coming, and that the Minister in replying can give us some satisfaction on this before we proceed further.

[Lord Kennedy of Southwark (Lab Co-op)]

I will come in very briefly. I certainly see the point of the amendment tabled by the noble Lord, Lord Moylan, and of the three-year review. I am not convinced that yearly after that is necessarily the right way to go; it could be a longer period between the reviews. However, I see the point he is making, and the problems it causes if things do not happen in an area.

I will leave it there, other than to say that I have always been a backer of Heathrow expansion. I want to put that on record because we have had a couple of people opposed to it. I think it would be good for the economy and that we should get on with it.

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[The Parliamentary Under-Secretary of State, Department for Levelling Up, Housing & Communities (Baroness Scott of Bybrook) (Con)]

My Lords, I thank my noble friend Lord Moylan for tabling Amendment 284. I shall not be commenting on any individual planning case at all. Obviously it would not be correct for me to do so.

Amendment 284 seeks to ensure that the progress of applications, in circumstances where a Section 35 direction has been made, is monitored and kept under review by the Secretary of State. I agree that developments, especially nationally significant infrastructure projects, should enter our planning system efficiently, and doing so is crucial for ensuring that local communities and businesses can express their views on the real impacts that these projects can have on them.

The NSIP consenting process has served the UK well for more than a decade for major infrastructure projects in the fields of energy, transport, water, waste and wastewater, and has allowed these projects to be consented within an average of around four years. Some of these projects enter the NSIP planning system under a Section 35 direction. This is the beginning of the planning process for some projects and offers prospective applicants certainty that they can take their projects through the NSIP consenting process. This consenting mechanism has been used successfully by 18 developers and allowed them to capitalise on the benefits that the NSIP regime offers.

Very occasionally, applications for development consent can be delayed or even withdrawn. This applies to applications that either automatically qualify as an NSIP under Part 3 of the Planning Act or are directed in through Section 35. This often occurs to allow developers time to ensure that applications entering the system are of the standard needed to efficiently and robustly undergo the scrutiny required. I acknowledge that this can translate into uncertainty for some communities, businesses and investors that have the potential to be affected by such projects.

Under Section 233(2) of the Planning Act, the Secretary of State already has the power to revoke a direction to treat a project as an NSIP, and thus no longer allow the project in question to enter the NSIP planning system through these means. The Secretary of State may consider using this power, for example, if it becomes clear that the rationale or basis on which the Section 35 direction was made has changed, so this is no longer the correct and appropriate consenting option for the project in question. I appreciate why my noble friend has raised this amendment, and I hope he will withdraw it following the reassurances I have provided.

The noble Lord, Lord Stunell, and others brought up the interesting issue of oversight. We are currently working to set this up. Minister Rowley is setting up an IMG which will look at the cross-cutting issues on projects, but he cannot get involved in the specifics on projects, in order not to prejudice, obviously, future decision-making, particularly as a Planning Minister. I will also take on board the issue that the noble Baroness, Lady Hayman of Ullock, brings up about the capacity within local planning authorities to deal with these very big projects. I think it is something we can feed back in and I will do so.

[Lord Stunell (LD)]

I thank the noble Baroness for a very helpful answer. Will she say something about the actual timeline for this group formally starting work? She suggested that it was going to start work in the fairly immediate future: perhaps some sort of timescale could be provided.

[Baroness Scott of Bybrook (Con)]

I do not have a timescale tonight, but I will talk to Minister Rowley and try to get one for the noble Lord and let him know. As I say, I hope my noble friend will withdraw the amendment following the reassurances I have provided.

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Moved by

[Lord Stunell]

285AA: Clause 123, page 156, line 37, leave out lines 37 to 39 and insert—
“(d) a Combined Mayoral Authority with devolved planning powers.”Member's explanatory statement
This amendment removes the power in the bill to make incidental provisions in relation to devolved competencies, and inserts combined Mayoral Authorities with devolved planning powers into the exemptions that regulations may not make provision in relation to.

[Lord Stunell]

I speak to Amendment 285AA, which refers to Clause 123. It is by way of a probing amendment, and I would have explained to the noble Lord, Lord Moylan, had he been here, that the missing quarter last time was about how probing or speculative it was. I make no secret of the fact that mine is a probing amendment. The first few lines of Clause 123 were the red flag that made me put down this amendment. It reads:

“The Secretary of State may by regulations make such amendments and modifications of the relevant enactments as in the Secretary of State’s opinion facilitate, or are otherwise desirable”.


There follows a long list of things to which the Secretary of State may, if in their opinion it is useful, make changes. It is another clause with very wide-ranging powers given to the Secretary of State, and the purpose of giving them to the Secretary of State is not at all transparent.

What is perhaps relevant, and is certainly the reason for tabling the amendment, is that subsection (7) contains some exceptions. It reads:

“Regulation under this section must not make any provision which is within”—


Scotland, Wales or Northern Ireland,

“unless that provision is a restatement of provision or is merely incidental”

and so on. It is a clause with wide-ranging powers which do not apply in Scotland, Wales or Northern Ireland, unless, again, the Secretary of State has the opinion that they are a restatement or merely incidental.

My amendment removes the exceptions to that, so there is proper devolution to the three national legislative bodies in those three nations, and adds a fourth exception to the application of the clause, which is for combined mayoral authorities. I could have added a whole lot more as well, but the amendment is in the spirit of devolution and making sure that we do not allocate to the Secretary of State powers which are not needed and which, in the hands of a different Secretary of State, might be abused or misused and might have unforeseen bad consequences.

I want to hear in clear terms from the Minister: why we need the clause at all; why it has to be in such wide-ranging terms; and, with regard to the exceptions for the three national Administrations, why even within that, there is an exception built in which allows him or her to impose powers. Why does he not take the opportunity to make devolution in England mean something more substantial by saying that, in combined mayoral authorities, such powers as may be needed in Clause 123 may be exercised within that authority and not simply cascaded down from Whitehall?

I see that the noble Lord, Lord Carrington, has given notice of his intention that the clause do not stand part of the Bill, and I would say that that is very much of a piece with my amendment. We have here a clause which is neither necessary nor useful and absolutely not contributing to levelling up in any way. I beg to move.

[Lord Carrington (CB)]

My Lords, I declare my interests in farming and land ownership as set out in the register. I agree with every word that the noble Lord, Lord Stunell, has said; I would perhaps go a little further in some areas.

My understanding of Clause 123—and, therefore, my reason to seek its removal—is that, through its inclusion in the Bill, it seeks to give authority to any Government to amend primary legislation that underpins planning and compulsory purchase legislation through the means of secondary legislation. Such changes might have a profound impact on the way planning is delivered. It is not appropriate that this legislation gives such a wide remit to the Government to change primary legislation for an objective that is yet to be determined without the full scrutiny of Parliament through debates in both Houses.

In other words, Clause 123, which gives the Government the ability to consolidate and amend compulsory purchase legislation, should be deleted from the Bill as it gives the Government too wide a remit to encroach on property rights without a clear objective. It could lead to changes in compulsory purchase legislation that tip the balance further towards the developer and away from protecting the home owner’s and landowner’s rights. The ability to amend more than 25 key pieces of primary legislation, described as “relevant enactments” in Clause 123(2), in any way that any Government see fit—potentially with limited consultation or scrutiny—must raise very serious concerns.

Additionally, it is premature to propose amending compulsory purchase legislation before, as I understand it, the Government have received the outcome of the Law Commission’s review into compulsory purchase reform. There is also the matter of the lack of a government response to the consultation on compulsory purchase compensation, which is still awaited despite the Government including some of these controversial measures in this Bill. The department is clearly in breach of the consultation principles, which state that it should:

“Publish responses within 12 weeks of the consultation or provide an explanation why this is not possible. Where consultation concerns a statutory instrument publish responses before or at the same time as the instrument is laid, except in very exceptional circumstances (and even then publish responses as soon as possible). Allow appropriate time between closing the consultation and implementing policy or legislation”;


that last point is relevant in this particular case. Planning legislation is the foundation of so much, particularly in the rural economy. There is a real risk that growth of the rural economy and housing delivery could be held back by amendments that have gone through without proper scrutiny.

I look forward to hearing the Government’s response and reasons.

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As we have been discussing in relation to much of the rest of this part, the Government want to give more clarity to participants in the planning system. As I have said, these amendments start addressing the legislative barriers to this by providing powers to make technical changes to prepare for future consolidation. Any changes made under these powers can come into effect only where there is a subsequent consolidation Act, and the use of these powers would be subject to the affirmative procedure before your Lordships’ House and the other place. I hope I can reassure noble Lords that this is not an attempt to circumvent the proper scrutiny of this highly complex exercise. I repeat: these powers are to support consolidation, which does not extend to changing the policy effect of legislation. Noble Lords can be reassured that the regulations cannot come into effect without a connected consolidation Bill being enacted.

[Lord Stunell (LD)]

I thank the noble Earl for taking us through what for some of us is a kind of grade 1 learning experience, which he has dealt with very effectively. I have some considerable concerns which remain. I wonder whether he could go back to a point that he made in response to the noble Baroness a few minutes ago: that it was so complex and there were so many different pieces of legislation that it was not possible to give a list of all the complexities and so on which were involved. He also spoke about trust, and how the whole system might be undermined by opaqueness. If I connect those two remarks, he will perhaps see that to some extent the opacity means that the trust is not present on this side of the Chamber at the moment.

[Earl Howe (Con)]

I am sorry to hear that. The point I was seeking to make is that the general public need to trust the law and know what the law is, as does anyone dealing with the planning system. That is why the Government’s ambition is to put in train a consolidation exercise, which may take a considerable time. I have been quite frank with the Committee that there are not only 50 Acts that we know about which deal with planning and compulsory purchase, but—as my notes say—innumerable other Acts which cross-reference those 50 Acts. It will require a major legal exercise to bring all the threads together.

I cannot commit to a timescale for consolidation from the Dispatch Box today. There is a large amount of work to do before we can get to that stage and that will naturally have to be balanced against the wider legislative programme. It is for that reason that we are asking for this power to prepare the way—I think that is the best way of putting it—to make the ultimate consolidation a more achievable exercise.

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[Earl Howe (Con)]

Consolidation by definition does not extend to changing the policy effect of legislation.

[Lord Stunell (LD)]

My Lords, I think the noble Earl will have detected a degree of unease right around the Chamber about how this clause will take effect, not just in the course of this Administration but in the hands of a different one at a future date. I have heard the discussion and learned a lot. I will need to read Hansard and the noble Earl’s letter when it comes and take a view on whether this is something to take further forward. In the meantime, I beg leave to withdraw the amendment.

Amendment 285AA withdrawn.