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The noble Lord, Lord Skelmersdale, posed me a challenge when he wondered why I did not table a prayer and call a vote which would revoke the regulations, as indicated on the Annunciator. However, I knew that I was pushing my luck and I did not think he would support me in the Lobbies, although I believe that Members of my own party would have done. I thought that I would put on the Order Paper the reasons for our disquiet with these backdating rules. A prayer does not tell the story, whereas my Motion does. It is not a fatal Motion because it is not a call to revoke the regulations; rather it asks the Government to revoke them. In that respect, it is quite a gentle proposal, but the word deplores in the opening line reflects our strength of feeling about these regulations. On that basis, I commend this Motion and I wish to test the opinion of the House.
In speaking to this amendment, I shall speak also to Amendments Nos. 104, 105, 107, 108, 109 and 110. This brings us to the provisions on decisions on applications. Clause 102(2) sets out matters to which the IPC must have regard, and Clause 103 sets out those to which the Secretary of State must have regard when, respectively, they are making decisions. Amendments Nos. 103 and 108 would provide in each case that they should have regard to written and oral representations relating to the development. Similarly, Amendments Nos. 104 and 108 would provide that
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I have tabled these two pairs of amendments to spell out that the IPC and the Secretary of State should not filter out the representations made during the different stages of the process to the extent that they do not figure at the last stage. It is important that those who take part in the process should have trust in it and believe that their representations are taken seriously.
When we were discussing related matters in Committee, the Minister argued that such representations, if they were important and relevant, would remain within the frame for consideration by being within the referenced matters, which are important and relevant. I am not asking that all representations be accepted, because the phrase have regard to does not mean that: it means, literally, to have regard to or to think about. The local impact statement, to which regard must be paid, is referred to specifically. Who is to say that the whole of it will be important and relevant? I am asking the Government to think about where individual representations come in.
Amendments Nos. 105 and 110 take us back to the phrase important and relevant. I tabled this amendment in Committee, when I arguedand I maintain the viewthat the order of the words should be relevant and important. First, one should consider whether an issue is relevant and, if it is qualified as such, whether it is important. I got the feeling that the Minister understood that point; she said that she would consider it, so this is her further opportunity to do so.
Amendment No. 107 proposes that the Secretary of State, when she or he takes decisions, should have regard to a national policy statement relating to development of a particular description. I may have missed this, either on the face of the Bill or in the logic of how all this applies, but it seemed to me odd if the Secretary of State does not have to have regard to her or his own policy statement. That could allow for all sorts of mischief. I beg to move.
The Parliamentary Under-Secretary of State, Department for Communities and Local Government (Baroness Andrews): My Lords, the House has now emptied and there is just our select band struggling with scrutiny. These are nicely forensic amendments, attached to two crucial clauses. The noble Baroness, Lady Hamwee, expressed this as not wanting to see people, evidence or representations filtered out and I take that point.
Noble Lords are seeking through Amendments Nos. 103, 104, 108 and 109 to ensure that peoples viewsboth written and oralare taken into account at both the pre-consultation and the examination stages. Amendments Nos. 105 and 110 seek to ensure that the test for deciding which representations to take into account is fair. Amendment No. 107 asks why the Bill does not specify that the NPS is the prime factor for a decision where the Secretary of State is the decision-maker.
It is worth briefly stating the context for these amendments. The Bill provides a clear framework for decision-making. The relevant national policy statement,
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It is clear, however, from Clause 102 that the NPS will not be the only factor, because it provides that the IPC must also have regard to a local impact report from the local authority, to other matters that secondary legislation may set out and, indeed, to any other matters that the commission thinks are,
Even where a particular application for a proposed project is in accordance with the NPS, the IPC could decide that development consent should not be granted, because it would be unlawful or result in the UK being in breach of any duty imposed on it by or under an enactment. The IPC would also still consider issues specific to the application at the local stage, such as detailed layout, siting or access, as well as the environmental aspect. If it decides that the adverse impacts of the development outweigh the benefits, it can, as we know, refuse consent.
I have gone into that to reiterate some things that I said on Thursday about specificity. I welcome the opportunity to reiterate that, when an NPS is locationally specific, the IPC is not prevented from considering whether one or more of the factors identified in subsections (4) to (8) of Clause 102 apply. I wanted to put on record again the important point that I made on Thursday. I assure the noble Baroness that I am considering further what she said and looking at whether a clarification to that effect would be helpful ahead of Third Reading.
to its decision. These provisions are intended to require the decision-maker to consider matters that, although not identified in the NPS, the local impact report or the regulations prescribed by the Secretary of State, it considers still to be both important and relevant. Those will include issues specific to the application at the local stage, such as detailed layout, siting or access, as well as the environmental aspect. I understand the point that the noble Baroness makes, which is that somehow the Bill requires that the IPC must consider the importance of the matter before considering its relevance. However, that is not our intention.
I will explain, as I did in Committee, why the choice of terms is deliberate. We wanted, quite simply, to make the process more accessible. We intend that important and relevant will be used in a similar way to material consideration in town and country planning legislation, allowing the decision-maker to identify factors that are material to the decision. We did not want to use material consideration in the new regime because it is, frankly, rather arcane and often
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We consider that, by limiting the additional matters to which the decision-maker must have regard to those that it thinks are both important and relevant to the decision, the Planning Bill is clearer about what should, and should not, be taken into account by decision-makers. Also, it is right that those who are asked to make the decision should be the ones to decide what is important.
I have gone back and looked at the sequence of wording in relation to the amendmentimportant and relevant as opposed to relevant and important. If the noble Baroness looks at Clauses 102(2)(d) and 103(2)(c), she will see that they require the decision-maker to have regard to other matters that are considered both important and relevant. In view of this, it does not matter whether the words important and relevant are reversed, as both factors need to be taken into account. That is probably about as sensible a conclusion as we can jointly come to and I hope that it will satisfy the noble Baroness.
On written and oral representation and responses to consultation, Amendments Nos. 103 and 108 would make explicit what is implicit in the Bill, flagging up the decision that the decision-maker has regard to all oral and written representations presented in relation to the application. Amendments Nos. 104 and 109 would extend the decision test further still to include responses to pre-application consultations undertaken by the applicants.
The noble Baroness seeks assurances that the commission will consider all relevant evidence in its decisions and that nothing will get filtered out. On oral and written representations, I think that she agrees that a distinction needs to be made between the process by which the commission carries out its examination and the factors that must form part of its decision. As a matter of process, we want to ensure that the commission examines and considers all the evidence presented before it in connection with an application for developing consent.
The Bill provides for this in a number of ways. The examination procedures ensure that those interested in, or who might be affected by, an application are given an opportunity to submit written representations on that application. That will be followed up by an opportunity to make oral representations, as I described in an earlier debate. The commission will need to consider all those representations to decide which are both important and relevant to its decision. That is sensible; there is a process of reduction here, given the weight of evidence, the job of the commission and the way in which decisions have to be formulated and justified.
Clause 102(2)(d) relates to the decision test, which requires the commission to have regard to these representations, among other things. Clause 103(2)(c) has the same effect in relation to decisions taken by the Secretary of State. This requires that the Secretary of State must have regard to any other matters that he or she thinks are important and relevant to his or her
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The decision test itself is a different issue, which is why we need to ensure that it is based on criteria of importance and relevance. This is a sifting issue for evidence. The IPC will have to analyse the evidence that it has received to determine that. I hope that noble Lords agree that, although it is right that all written and oral evidence should be considered in the process of examining the application, it makes sense that only the written and oral representations that are important and relevant to a decision should be considered in the decision test itself, under Clauses 102(2)(d) and 103(2)(c).
Responses to pre-application consultation and publicity will be treated differently. The pre-application consultation will provide for a dialogue between the promoter and the community, which will settle some differences and generally improve the proposal for development. That is the intention of creating this new stage of the process. For this reason, we have strengthened Part 5 of the Bill through important amendments tabled last Thursday to require the IPC to have regard to the account taken by the promoter of the responses received to pre-application consultation and publicity when it considers whether to accept the applications.
By themselves, those responses are unlikely to be the most important evidence for the IPC to consider because, as I said, the Bill provides for written and oral representations to be received at the examination stage. However, that is not to say that interested parties would be denied the opportunity to give evidence on how the applicant took account of the responses to the pre-application consultation and publicity at the examination stage if they thought that it was sufficiently serious and significant to be brought to the IPCs attention. The facility is there, but they would need to set out those reactions in written and/or oral representations.
Finally, Amendment No. 107 probes the reasons why the NPS is not mentioned in Clause 103 or why the clause does not specify the test for departing from the NPS where the Secretary of State is the decision-maker. The reason for that is quite simple. A Secretary of State will usually take decisions on nationally significant infrastructure cases only because no relevant national policy statement is in place. Therefore, it would not often be possible to have regard to an NPS where the Secretary of State is the decision-maker or to require him to determine in accordance with it. It is a tautologous position.
In cases where there is a NPS, it is inconceivable that the Secretary of State would not have regard to his or her own policy. That is what this is all about. As we have not placed a duty on the Secretary of State to
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Baroness Hamwee: My Lords, I will take the Clause 49 representations first. I take the point. I am not surprised at the response, but I thought that I would give it a try. On the other representations, as I said in introducing the amendments, must have regard to does not mean accepting. The IPC and the Secretary of State will have to consider all representations before excluding any. The difference between us is where consideration becomes decision. That is where I am having some difficulty, because I see consideration of the representations as a bigger part of the decision-making process than the Minister has presented it.
On Amendment No. 107, as the Minister said, usually there will be no NPS, but one has to bear in mind the unusual. All things are conceivable in politics. There may have been a change of administration without a change of government. The Secretary of State may be reflecting on the process of reviewing the outcomes, in which case the whole review process of the NPS should be gone through. I am not sure where that leaves an application that is with the Secretary of State. I thought that it was probably an obvious answer that was staring me in the face and I am grateful to the Minister for spelling it out. I have made my points and I beg leave to withdraw the amendment.
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