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Planning Bill

moved Amendment No. 123A: 123A: Clause 155, page 80, line 32, at end insert— ““( ) compliance with any condition attached to an order granting development consent shall not of itself attract statutory authority.”” The noble Baroness said: My Lords, I shall speak also to Amendment No. 123B. I declare an interest: the amendments were brought to me by the Chartered Institute of Environmental Health, of which I have recently become a vice-president. I hope that the notes that I sent to the Minister—I did not wish to deprive other noble Lords of the detail, but simply to shorten the process—will have assisted. The amendments take us to Clause 155 on nuisance. They are amendments to the clause that the Government brought in Committee. That amendment took us a long way to dealing with anxieties about what was in the Bill, but a few anxieties remain. The clause provides statutory authority, in other words, if something is not nuisance, for, "““doing anything else authorised by an order granting development consent””." My question is whether that implicitly authorises any activity, notwithstanding that it may be a nuisance, or in future come to be a nuisance or to be actionable in any other way. As the institute comments, if the world were a world of perfect conditions, this would not matter, but it is simply not realistic to think that we can anticipate everything that might happen. Its concern, which I share, is how it is in practice envisaged that adequate conditions can be set. Even if one could predict the range of nuisances likely to arise from a particular development, it would be much more difficult to quantify them. Setting abatement conditions is also a problem. Additionally, statutory nuisance controls are not currently fixed in advance. The Environmental Protection Act provides that operators must apply, "““the best practicable means to minimise nuisance””." What is a nuisance can change over time. There can be advances in processes and advances in the technology applying abatement. There may, for instance, be a need for abatement if housing is built closer to a polluting site. We do not live in a static world. If the terms of a condition applied by a development consent order operate as an implied consent, the operator just has to take sufficient precautions to stay within it; but if it does not do so, or if conditions become obsolete or if there is encroachment, what is to happen? There still seems to be uncertainty, which is at the nub of the amendment. Amendment No. 123B arises from a concern about subsection (3), which provides that the rest of the clause is, "““subject to any contrary provision made in any particular case by an order granting development consent””." It seems that that would allow the IPC not only to remove a defence—it would support that—but to relax a defence, which is what it is concerned about; in other words, to grant a greater immunity. As noble Lords will understand, that amounts to law-making by an administrative body. I understand that officials have commented that the European Convention on Human Rights would be an adequate protection. I am not confident about that, and that is not where it should be left. Therefore, the amendment would continue to provide for the removal of the defence, but it would not allow the defence to be extended. I beg to move.