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Planning Bill

My Lords, these are technical matters, and we discussed much of this in Committee. I am delighted that we can return to the subject and offer more reassurance to those on behalf of whom the noble Baroness tabled the amendments. This should provide reassurance about what the new nuisance provisions will mean in practice. The noble Baroness eloquently raised issues about how the IPC will be able to place requirements on development consent orders that adequately deal with potential nuisances, which can certainly get better or worse depending on technologies and different situations. How can this be ““future-proofed”” to ensure that the promoter must always use best practical means to avoid causing nuisance? The noble Baroness also raised the issue of the IPC’s ability to make orders that contain what we might describe as contrary provisions. The first concern raised by the noble Baroness was whether Clause 155(1)(b) might include observing a requirement. She has indicated that there is a concern that this interpretation might lead to a promoter of an NSIP being authorised to cause nuisances up to a level specified in a requirement, irrespective of whether technologies had advanced, such that this level of nuisance could be substantially reduced. That is clearly a rather absurd position. I am sure that she will understand that much will depend on how the IPC words any such requirement and, indeed, any other part of a development consent order. The Government believe that the clause as it is currently drafted already ensures that promoters must make all reasonable precautions to avoid causing nuisance, including by adopting new quieter technology, for example, where appropriate. It might help if I gave an example. A requirement might be worded, ““The noise levels associated with a particular operation shall not exceed X decibels””. That would grant a defence of statutory authority for such a level at the time the development consent order is granted. However, as I mentioned in Committee, we intend Clause 155 to work within the common law meaning of nuisance; that is, we do not believe that a defence would be operable if a promoter had not taken every reasonable precaution consistent with the exercise of the development consent order to prevent the nuisance from occurring. If technological advances in the future mean that the operation of an NSIP can be carried out more quietly, the promoter will benefit from the defence in this clause only if it has taken advantage of these new technological advances. The developer will still be operating within the terms of the development consent order if noise levels are less than the maximum specified by the requirement. Therefore, there is an onus on the developer to keep pace with changing technologies. We do not believe that it would be appropriate for requirements to be phrased along specific lines—whether we are talking about levels or limits—such as, ““The noise levels associated with a particular operation shall be X decibels””. If we did that, it would mean that if a promoter tried to benefit from technological advances, it would not be able to rely on the defence of statutory authority. That creates a rather perverse situation. In the light of this, the noble Baroness’s amendment raises uncertainty as to when compliance with a requirement could confer a defence of statutory authority in nuisance proceedings. As I said, a better solution is to ensure that requirements are worded appropriately. I hope that I can offer some assurance. draw the House’s attention once again to the model provisions in Clause 38, which could certainly include models for requirements. I hope that the noble Baroness and the Chartered Institute of Environmental Health—which, I think, was primarily concerned about this—will take comfort from that assurance. When these are drawn up, bodies such as the institute will have a role in consultation as well. Amendment No. 123B relates to the ability of a development consent order to depart from the default position on nuisance in Clauses 149 and 155. We included amendments in Committee for a default position, whereby a promoter should not be liable to nuisance claims in respect of nuisances which are the inevitable consequences of works authorised by a development consent order, and which cannot reasonably be avoided. As I have set out, this would include where technology has progressed since the development consent order was granted. We believe that it would be appropriate for the IPC to have the flexibility to make a provision that sets out, for the avoidance of doubt, how this default position would work in respect of proceedings brought under the Environmental Protection Act. There are precedents. Examples of this approach can be found in a number of recent orders made under the Transport and Works Act. I am assured that Article 40 of the Felixstowe Branch Line Order (SI 2008/2512), Article 36 of the Network Rail (Thameslink 2000) Order (SI 2006/3117) and Article 46 of the DLR (Stratford International Extension) Order (SI 2006/2905) fulfil those criteria. I should reiterate that we believe that this flexibility is more likely to be used to expand a developer’s exposure to nuisance actions than to restrict it, which I think is the point about which the noble Baroness is primarily concerned. She referred to the fact that the IPC would have to be compliant with the terms of the Human Rights Act. As such a provision could potentially engage a person's Article 8 rights, the IPC must be satisfied that this is justified; that is, that it is necessary in the interests of national security, public safety or the economic well-being of the country, will achieve its purpose and is proportionate. In addition, the IPC is under a general duty to act reasonably. I should also highlight that if a development consent order applied powers under Clause 118(5), the Secretary of State can review the terms of the order and direct changes where he or she finds that it would contravene ECHR rights. I hope that gives the assurances that the noble Baroness, and the people who raised the issue with her, seek.