Town and Country Planning (Fees for Applications, Deemed Applications, Requests and Site Visits) (Development Management Procedure and Section 62A Applications) (England) (Amendment) Orders 2013 - Secondary Legislation Scrutiny Committee Contents


Twenty Eighth Report


Instruments Drawn to the Special Attention of the House

The Committee has considered the following instruments and has determined that the special attention of the House should be drawn to them on the ground specified.

A.  Draft Town and Country Planning (Fees for Applications, Deemed Applications, Requests and Site Visits) (England) (Amendment) Regulations 2014

Date laid: 18 December 2013

Parliamentary Procedure: affirmative

Town and Country Planning (Development Management Procedure and Section 62A Applications) (England) (Amendment No. 2) Order 2013(SI 2013/3194)

Date laid: 20 December 2013

Parliamentary Procedure: negative

Summary: These instruments relate to applications for development, which may include "fracking", to extract oil or natural gas from underground. The Order provides that, in relation to development of land which is underground only, the applicant is no longer required to notify each owner and tenant individually. The Regulations clarify that fees for such applications should be calculated on the basis of the area of the above-ground works only. There are several shortcomings in the presentation of these instruments to Parliament, and we are not persuaded that the Department has adequately thought through its policy implementation.

We draw these instruments to the special attention of the House on the ground that they may imperfectly achieve their policy objectives.

1.  The Department for Communities and Local Government (DCLG) has laid these two instruments, each with an Explanatory Memorandum (EM). Both relate to what is described in the EMs as development "consisting of the winning and working of oil or natural gas in relation to land to be used solely for underground operations": such operations include the process commonly called "fracking", or hydraulic fracturing - injecting liquid at high pressure into subterranean strata in order to force fissures open and extract oil or gas.

TOWN AND COUNTRY PLANNING (DEVELOPMENT MANAGEMENT PROCEDURE AND SECTION 62A APPLICATIONS) (ENGLAND) (AMENDMENT NO. 2) ORDER 2013 (SI 2013/3194)

2.  The Order amends the requirements for applicants in relation to the notification of owners and others of land for applications for such development. Currently, for development involving the winning and working of minerals by underground workings, an applicant must notify the owners and the tenants of the land to which the application relates by serving each owner and tenant with a notification, publishing a notice in a local newspaper, and putting up a local site notice in each parish in which the land is situated. In the EM, DCLG states the Government's view that, due to the different character of the underground workings, it is not reasonable or practicable to require applicants for planning permission for underground oil or natural development to serve individual owners or tenants of land across such a widely drawn area. By amending existing secondary legislation,[1] the Order provides that, in relation to development of land which is underground only, the applicant is no longer required to notify each owner and tenant individually, but must publish a notice in a local newspaper and put up a local site notice in each parish or ward (where the land is unparished) in which the land is situated.

3.  In the EM, DCLG states that currently all planning applications, except those concerned with mining operations or the winning and working of mineral deposits, must be submitted on a form published by the Secretary of State; and that the Government see significant advantages in providing a single application form. The Order therefore also provides for the Secretary of State, not the local planning authority, to publish the form of planning applications for oil or natural gas by underground operations.

4.  DCLG laid the Order on 20 December 2013, during the Parliamentary recess, and brought it into force on 13 January 2014, a week after the end of the recess. The timing which the Government followed for laying the Order and bringing it into force left scant opportunity for Parliament to scrutinise the instrument before it took effect. Given that "fracking" is a highly controversial technique, and that the Order streamlines procedures for notifying interested parties whose land may be affected by the technique, we find it regrettable that the opportunity for Parliamentary scrutiny was curtailed in this way.

DRAFT TOWN AND COUNTRY PLANNING (FEES FOR APPLICATIONS, DEEMED APPLICATIONS, REQUESTS AND SITE VISITS) (ENGLAND) (AMENDMENT) REGULATIONS 2014

5.  As DCLG explains, these draft Regulations qualify the way in which fees are calculated for applications or deemed applications for operations connected with drilling for oil or natural gas by excluding from the calculation of fees any part of the site area required solely for underground operations. The Department says that guidance on calculating planning-related fees is set out in Circular 4/2008;[2] while this states that, for the winning and working of minerals, the site area should include all the land under which any of the workings are to take place, development of oil and gas reserves is regarded as above-ground working in this context. Since the Government know of individual instances where such interpretation has not been followed, the Regulations clarify that fees should be calculated on the basis of the area of the above-ground works only.[3]

CONSULTATION

6.  DCLG consulted on its proposals for "Revised requirements relating to planning applications for onshore oil and gas"[4] in September and October 2013, allowing six weeks for responses. The Government's Consultation Principles of July 2012, on the timing of consultation processes, include the statement that "for a new and contentious policy, such as a new policy in nuclear energy, the full 12 weeks may still be appropriate". We reiterate the point that streamlining procedures in relation to "fracking" might very well be seen as a new and contentious policy: given that the Government allowed only six weeks for this consultation, it is hard to imagine what policy considerations might lead them to allow 12 weeks or longer for a consultation.

7.  The Department failed to publish a detailed analysis of consultation responses when it laid these instruments before Parliament in December. We have repeatedly made it clear to Government that we regard this as unacceptable, and that such analyses should be provided at the same time as statutory instruments are laid to make sure that Parliamentary scrutiny is properly informed.[5] In this case, after we pressed the Department to make the consultation analysis available, we received the document on 24 January and were told that the Department would publish it on 27 January.[6]

8.  In the EM to the Order, DCLG states that 285 responses were received from a range of bodies including: nine from local authorities and public agencies; 10 from Non-Governmental Organisations (NGOs); 13 from business, developers and private sector organisations; and the remainder from individuals. The Department says that there were 162 respondents to the question of notification arrangements. Those in favour of the changes were largely from industry and other private sector organisations, who considered that it would be impractical to serve notice individually on all owners given the scale of subsequent underground workings. In contrast, those against the changes were from NGOs, local authorities and individuals who felt that the proposal would risk landowners being left unaware of any subsurface activity on land which they owned, and who also considered that the proposal could hasten or abet acts of trespass.

9.  DCLG does not further enumerate respondents on notification arrangements in the EM or in the consultation analysis, but it has told us that there were seven responses in favour and 155 against. Those opposed include, for example, the National Trust which has published its own response,[7] stating: "… notification to landowners of a planning application relating to their land is an important principle underpinning the balance of interests which is struck by the planning regime. We should move away from it only in cases where it is clear that it can be of no material interest to the owner of land whether such development is likely to take place. That is not the case for onshore oil and gas extraction." DCLG's intentions were not influenced by such points, however, and the Order gives effect to the proposals set out in the September 2013 consultation paper.

10.  DCLG states that the overwhelming majority of respondents agreed with the principle of introducing a standard application form, as now facilitated by the Order.

11.  There were 105 responses on the proposals to clarify fee arrangements. In the EM, DCLG states that those in favour of the changes were largely from industry and other private sector organisations; and that the UK Oil and Gas Association offered an increase in fees by 10% for all phases of onshore oil and gas development in recognition of the increased public scrutiny of applications. Those who disagreed included local authorities, individuals and NGOs, who considered that the level of fees were insufficient to cover the cost of dealing with complex and contentious issues, including underground elements they considered relevant to planning. The Department has subsequently told us that seven respondents supported the fee proposals and 98 opposed them. DCLG makes it clear that the Government intend to implement the proposed changes, and to accept the industry's offer of an increase in application fees, while keeping the question of fees under review.

IMPACT

12.  DCLG did not publish impact assessments for these instruments at the time that they were laid. In the EM to the Order, DCLG undertook to publish an impact assessment "once it has been validated". We are clear that the absence of an impact assessment is a significant shortfall in the information desirable for effective Parliamentary scrutiny. As with the consultation analysis, we pressed the Department to remedy this shortfall, and received the impact assessment on 24 January.

13.  DCLG states that, while the amendments in the Order will have a small positive impact for businesses, there is no envisaged impact on the public sector. In the EM to the Regulations, the Department says that changes to the fee regime will have a very small impact on business, but is silent on the impact on the public sector. Yet, at paragraph 8.3, the EM says that the UK Oil and Gas Association offered an increase in fees by 10% for all phases of onshore oil and gas development in recognition of the increased public scrutiny of applications, an offer which the Government propose to accept; and, at paragraph 8.4, it acknowledges concerns expressed by some respondents that the level of fees would not cover the cost of dealing with complex and contentious issues, including underground elements relevant to planning. DCLG has told us that it has not formally assessed the impact of an increase in fees to meet handling costs, and that the final cost will be influenced by the location, scale and complexity of the application concerned. As submitted, the Explanatory Memorandum's treatment of this issue appears both fragmentary and apparently inconsistent. The additional information now received shows that the Government have not systematically evaluated the financial impact on the public sector of the new arrangements, even though respondents, both supportive of and opposed to the proposals, acknowledged that applications would require an increased level of scrutiny by planning authorities.

CONCLUSION

14.  In the EM to the Order, the Department states that the Government want to ensure that application requirements for onshore oil or natural gas development are fit for purpose and appropriate. In the EM to the Regulations, it says that timely decisions on planning applications give applicants the confidence to submit planning applications for development, give businesses the confidence to invest, and give greater certainty for communities. It is clear, however, that the overwhelming majority of respondents to the consultation exercise of autumn 2013 are not persuaded that the changes made by these instruments meet these objectives; rather than making application requirements "fit for purpose", they are concerned, as the National Trust has commented, that they reduce the ability of the planning regime to strike a balance of interests.

15.  Given the shortcomings which we have described in the way in which these instruments have been presented to Parliament, we are not persuaded that the Department has adequately thought through its implementation of the underlying policy, and we therefore consider that the instruments may imperfectly achieve their policy objectives.

Other Instruments of Interest

DRAFT NATIONAL MINIMUM WAGE (VARIATION OF FINANCIAL PENALTY) REGULATIONS 2014

16.  In the Explanatory Memorandum to these Regulations, the Department for Business, Innovation and Skills (BIS) says that the financial penalty on employers that underpay their workers in breach of the national minimum wage (NMW) legislation is calculated as a percentage of the total NMW arrears for all workers specified in the notice of underpayment issued by an Her Majesty's Revenue and Customs officer. The Secretary of State has the power by regulations to substitute a different percentage for calculating the financial penalty, and also to increase the cap of the financial penalty from £5,000. BIS states that the Government want to increase these financial penalties, in order to deter such employers and ensure that workers are correctly paid. The effect of these Regulations is to increase the percentage from 50% to 100%, and also to increase the maximum financial penalty from £5,000 to £20,000.

17.  We obtained additional information from BIS about the background to these Regulations, and we are publishing that information at Appendix 1.

MOBILE HOMES (SITE RULES) (ENGLAND) REGULATIONS 2014 (SI 2014/5)

18.  These Regulations, laid by the Department for Communities and Local Government (DCLG), set out the detail of the new procedure for making site rules, under provisions inserted into the Mobile Homes Act 1983 by the Mobile Homes Act 2013 ("the 2013 Act"). In the accompanying Explanatory Memorandum, DCLG states that the Regulations aim to increase transparency in relation to site rules and prevent site-owners from being able to use rules inappropriately to the disadvantage of home-owners. The Department explains that, while rules can be an important aid in maintaining good estate management and community cohesion, there is evidence that rules, usually unilaterally imposed by site-owners, have been used to oppress home-owners' rights and to give site-owners unfair advantages or economic benefits.

19.  DCLG carried out consultation on a number of issues related to mobile homes over six weeks in April and May 2012.[8] It received between 200 and 300 responses to questions relating to site rules, including whether existing site-owners should need to consult before changing rules; whether new site-owners should be prevented from imposing new rules unilaterally; and whether certain rules should be banned from being made. Those agreeing with these proposals were in the overwhelming majority in each case.

20.  These Regulations are one of a number of statutory instruments which DCLG is laying to implement the 2013 Act. We published information about the Mobile Homes (Selling and Gifting) (England) Regulations (SI 2013/981), which came into force in May 2013, in our Second Report of the current Session (HL Paper 8).

Instruments not drawn to the special attention of the house

The Committee has considered the instruments set out below and has determined that the special attention of the House need not be drawn to them.

Draft instruments subject to affirmative approval

  Automatic Enrolment (Earnings Trigger and Qualifying Earnings Band) Order 2014

  Industrial Training Levy (Engineering Construction Industry Training Board) Order 2014

  National Minimum Wage (Variation of Financial Penalty) Regulations 2014

    Tribunal Security Order 2014

Instruments subject to negative procedure

SI 2014/4  Architects Act 1997 (Amendments etc) Order 2014

SI 2014/5  Mobile Homes (Site Rules) (England) Regulations 2014

SI 2014/8  Port Security (Port of Plymouth) Designation Order 2014

SI 2014/10  Pension Protection Fund and Occupational Pension Schemes (Levy Ceiling and Compensation Cap) Order 2014

SI 2014/17  Lymington Harbour (Works) Revision Order 2014

SI 2014/44  Local Government Pension Scheme (Miscellaneous Amendments) Regulations 2014

SI 2014/48  Building Societies (Accounts and Related Provisions) (Amendment) Regulations 2014


1   Namely, the Town and Country Planning (Development Management Procedure) (England) Order 2010 (SI 2010/2184) and the Town and Country Planning (Section 62A Applications) (Procedure and Consequential Amendments) Order 2013 (SI 2013/2140). Back

2   See: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/7685/10.pdf Back

3   This clarification is provided by amending the Town and Country Planning (Fees for Applications, Deemed Applications, Requests and Site Visits) (England) Regulations 2012 (SI 2012/2920). Back

4  See: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/236945/Revised_requirements_relating_to_planning_applications_for_onshore_oil_and_gas_-_Proposals_for_comment__2_.pdf Back

5   See our 17th Report of the current Session (HL Paper 75), on "The Government's Review of Consultation Principles". Back

6   On 27 January the Department laid a revised Explanatory Memorandum for the Regulations which referred to the analysis as published. Back

7   See: http://www.nationaltrust.org.uk/document-1355808439859/

 Back

8   DCLG has published a summary of the consultation at:

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/11086/2238637.pdf

 Back


 
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