HL Deb 31 January 1989 vol 503 cc1067-74

7.49 p.m.

The Parliamentary Under-Secretary of State, Department of Energy (Baroness Hooper) rose to move. That the draft regulations laid before the House on 29th July 1988 be approved [35th Report from the Joint Committee, Session 1987–88].

The noble Baroness said: My Lords, 1 beg to move the first Motion standing in my name on the Order Paper. It may be for the convenience of the House if at the same time I speak to the other Motion standing in my name.

The House will recall that last July Parliament debated and approved the majority of the United Kingdom regulations on environmental assessments for development projects which put into effect what we had agreed to do as European Community members and which implement the Directive on Environmental Assessments. The regulations before your Lordships today fill in the gaps and represent the final tidying up stage. The regulations are in two parts: the first set relates to my department, the Department of Energy, and the second to the Department of Transport.

As regards my department, the regulations apply to nuclear and other power stations, overhead electric lines and oil and gas pipe-lines, where the Secretary of State for Energy is the authorising Minister under the electricity and pipe-lines Acts. This is the distinction between these and the previous regulations, which are under the Town and Country Planning Act.

The transport regulations fill a minor loophole where harbour works developments are carried out to certain existing harbours. New harbours and some existing harbours are already covered by the regulations debated last summer.

Your Lordships may wish to know the implications on the energy regulations that arise from the electricity privatisation Bill which is currently being considered in another place. The position is that the new regulations reflect the electricity industry as it is today. They refer therefore to existing electricity Acts, which subject to the parliamentary process, will be repealed by the Electricity Bill. I anticipate in consequence that it will be appropriate to make technical changes to these regulations after the passage of the privatisation Bill in order to reflect the consent procedures for power stations and overhead lines that are provided for in Clauses 33 and 34 of that Bill.

Though I realise that your Lordships will be familiar with the form of these regulations from the previous discussion, there are three main features of these energy regulations to which I shall refer. First, they set out those categories of projects for which an environmental statement is mandatory—this includes all major power stations—and those categories where an environmental statement may be required if the Secretary of State so determines. Secondly, the regulations describe in the schedule those features of the application which the applicant must include in his environmental statement. Thirdly, they set out the way in which the applicant must make the statement available to the public.

Both sets of regulations under consideration today are therefore the final part of the implementation of the European Community directive that I know has been welcomed in principle by the House in the light of the importance that we all attach to the environmental consequences of large developments. It is on this basis that I commend these regulations to your Lordships.

Moved, That the draft regulations laid before the House on 29th July 1988 be approved [35th Report from the Joint Committee, Session 1987–88]. —(Baroness Hooper.)

Lord Underhill

My Lords, I welcome the opportunity to deal with both regulations at the same time and I am pleased that we are doing so. 1 welcome any steps to consider the environmental impact of development projects. In these cases, as the noble Baroness has said, we are dealing with electricity and harbour works. I also give a general welcome to the comprehensive information required of the environmental effects of electricity projects that are set out in the schedule of that regulation.

As the noble Baroness has explained, both regulations arise from EC directives. In my view there appear to be certain differences. It may be that I have not properly read the regulations and not properly understood the memoranda attached to each of them. If I may paraphrase the situation as regards harbour works, Regulation 3 applies only to works not subject to planning control. Regulation 4(5) states that the appropriate Minister decides finally whether the proposed works do not fall within the EC directive.

If within the terms of the directive an environmental assessment is required, under Regulation 5 the appropriate Minister will take steps to secure the necessary information and the developer has to give appropriate publicity under Regulation 6. Under Regulation 7 the Minister may direct that the information be supplied to bodies that the Minister may specify as having environmental responsibilities. He may decide as he thinks fit whether an inquiry should be held. So far I have no objection to the points as regards the harbour regulations.

But there appear to be some differences concerning the electricity projects. Under Regulation 3 the Secretary of State shall not give consent unless he shall first have taken environmental assessment into consideration. The noble Baroness made it quite clear that this refers to major projects only. In paragraph (2) of that regulation, an environmental statement shall be required only when the Secretary of State determines in his opinion that there would be significant effects on the environment. Then presumably Regulation 5 comes into effect. But the Secretary of State will have already made an important decision, deciding in his own opinion that there would be significant effects on the environment.

In Regulation 4 a person who has the intention to seek approval of proposed developments may make a written request as to whether the Secretary of State would wish to take an environmental statement into account. Though paragraph (4) makes a statement, it is only when the Secretary of State considers that he has sufficient information that he shall consult the local planning authority. Yet as far as I can understand the regulations and the accompanying memorandum, the Secretary of State may have already made his decision under Regulations 3(2) and 4(1). With whom will the Secretary of State consult before deciding that he has sufficient information on the environmental assessment?

Regulation 6 outlines the publicity that must be given when the application is accompanied by a statement. But is there to be opportunity for representations to be made by bodies or persons who may consider that they have a concern? It may be that I have misinterpreted certain aspects of the regulations but these differences will be rather important. I look forward to hearing what the noble Baroness has to say in reply to the various points that I have raised.

Lord Northfield

My Lords, the noble Baroness said that we had discussed this matter in July. Though she was not here at the time, she has no doubt read the report of the proceedings on that occasion. She will know that, together with my noble friend Lord McIntosh, I was very upset at the way in which the Government have been handling parts of the implementation of this particular directive. My concerns have not decreased since that day despite a helpful letter that was received the day after the debate from the noble Earl. Lord Caithness. He was obviously very upset himself that there had been such a noisy scene in the Chamber on that date in July when we found the replies of the Government so very unsatisfactory.

I begin by saying that I still remain suspicious and I will return to wider suspicion in a moment. I wish to take up one problem as regards these two orders right away. There is an inconsistency between what is in the regulation concerning harbours and what is said about harbours in the wider regulations under town and country planning. The noble Baroness mentioned that there are two halves to this matter—one that falls under the town and country planning rules and one that does not. We are dealing with the one that does not, and there has to be this special regulation.

Under the town and country planning law the threshold is clearly mentioned; namely, that we are dealing here with harbours that can take ships of 1,350 tonnes. That is very clearly mentioned in the body of the regulation. What is so puzzling is that the threshold has now disappeared from the second regulation. I wish to know why it has been left out. It is leaving out an important point that is in the directive from Brussels. Annex 1 of the directive, which is the obligatory and mandatory part of it, says that "there shall be". There is no question about it. The annex states that there shall be an environment impact assessment when a harbour is capable of taking ships of 1,350 tonnes or more. Why has that not been stated quite clearly in this regulation before us this evening when it is stated in the regulations as regards the town and country planning system concerning harbours?

This may be part of the problem that is worrying my noble friend on the Front Bench. He said that a good deal now seems to be devolved to the Minister. However, the Minister cannot make a decision on this one. Where a harbour is capable of taking ships of that size it must be, under the directive, subject to an environmental impact assessment.

I have no complaint about the rest of the regulation. It follows carefully and properly the lines of all the others in the way that the system is to work. I have no complaint about the other one which deals with power stations. I note in passing that the threshold is carefully stated. It is taken straight from the directive and put in the regulation. It applies, and must apply, to power stations with an output of more than 300 megawatts. It is curious that the threshold is left out of the regulation on harbours.

The noble Baroness made a puzzling and worrying point. She said that the regulations wipe up everything, that they clear up the backlog, that we are now at the end of the road and that with the two proposed regulations the directive will be put fully into force. They do not do that at all. That is the most worrying statement she made this evening. I do not want to stray too far from the regulations, but the Government have sidestepped and evaded the agricultural land points in the directive. I shall give an example. The regulations about the drainage of land cover land whether or not it is to be grant-aided. I concede that point which we raised during the July debate. However, they apply only to the drainage of land carried out by statutory authorities. The regulations will not cover drainage of land, which can have a large impact on areas of wild land, carried out by private owners and not by statutory authorities. The Government are evading that part of the directive.

The only way in which the directive will apply to afforestation is when the Government, through the Forestry Commission, make a grant for initial afforestation. The Government's excuse is that there will not be much afforestation without government grant so they do not need to worry about it. However, that is not so. A good deal of afforestation may be carried out by private owners without government grants. There is nothing in the regulations to carry out that part of the directive.

I am not alone in my concern. The Nature Conservancy Council has protested vigorously about the way in which the forestry part of the directive is being carried out. It calls it a minimum measure. I quote from the Daily Telegraph of 10th August 1988: The Nature Conservancy Council said yesterday that it had not succeeded in persuading the Government to require environmental assessments for forestry projects on all areas of semi-natural vegetation—meaning on all moorland and blanket bog. It maintains that conifer forestry has caused drastic changes to the ecology of the wilder moorland and peatland areas of Britain, and. where planted inappropriately, acidifies rivers and watercourses". The article goes on to mention the kinds of areas which concern the Nature Conservancy Council. It refers to the flow country, the Western Isles, particularly Islay, the Borders, Kintyre, Galloway, and around the Cambrian and Breadalbane environmentally sensitive areas. There is nothing in the regulations to deal with private afforestation unless it attracts government grants through the Forestry Commission. A good deal of afforestation may take place over the years—I am sure we shall not return to this issue for some years—without government grants.

My other point on agriculture relates to changes in land use. When working in the Commission in Brussels 1 was surprised that the Government swallowed the parts of the directive dealing with changes in land use. I now discover why they swallowed them. They had no real intention of carrying them out. They say that they do not need to have controls and environmental impact assessments over changes in agricultural land use simply because, as the noble Earl, Lord Caithness, said in his letter to my noble friend Lord McIntosh and to me, they are not likely to occur in this country. We are told that most of our holdings are pretty settled in size and that with overproduction of foodstuffs today if there are changes they are likely to be in favour of increasing rather than reducing the wildlife areas of our agricultural land.

However, the position can change very rapidly. It could be the other way round in a few years' time. In addition, it does not take care of marginal cases where concern arises. Land may well be reclaimed from wildlife and from conservation use to be put into agricultural production. It cannot be assumed that no such environmentally important land will be reclaimed and put to intensive or more intensive production. It is not good enough to evade the intention and the letter of the directive by having in those three areas—drainage, afforestation and changes in land use—an excuse that does not really hold water, linking the matter only to things which are done by statutory authorities or attract government grants.

I cannot make much more of this point this evening because to do so would be wholly out of order. However, I feel bound to protest strongly because the noble Baroness said that this is the end of the road and that there will be no more regulations to carry out the directive. Some of us will have to carry on protesting. I hope that in the end the matter can be settled. The Council for the Protection of Rural England is now waiting for a decision to see whether it can challenge under European law some of the missing parts of the implementation. Unless we do something about these areas in which we have not carried out the directive, either there will be fights in the European Court or the Commission will be bound to intervene and point out to the British Government that they are not carrying out the directive as finally agreed by the Council of Ministers.

I am not wholly unhappy with the two regulations but I was extremely unhappy to hear the noble Baroness say that this is the last we shall hear of the subject and that from now on she will be calling the matter closed as regards implementation of the directive.

Baroness Hooper

My Lords, I am grateful to the noble Lords, Lord Underhill and Lord Northfield, for their comments, and, if I may put it this strongly, for their welcome on the whole for the regulations. I shall endeavour to respond to the questions that were asked. The noble Lord, Lord Underhill, questioned the area of consultation with local authorities. I can reassure him that the Secretary of State will have the views of the local planning authorities under the administrative procedures which are provided for and shown in form B. These apply to all applications under the electricity Acts. So far as concerns representations, major electricity projects are required to be advertised. The Electricity (Publication of Applications) Regulations 1957 are the relevant regulations and they set out the manner in which representations may be made to the Secretary of State.

As regards the concerns expressed about the harbour regulations, perhaps I should reiterate that the regulations which are before the House are supplementary regulations and Regulation 3 limits the scope to harbour works below the low water mark which are not subject to planning control and which have not been specifically authorised by legislation.

Perhaps I may say here that major port developments almost always turn out to need legislation. The Community directive excludes from its scope projects which are specifically authorised by national legislation. The harbour works draft regulations contained in 3(c) therefore exclude works under local Acts. I understand that at present about 15 Bills are before Parliament seeking powers for harbour authorities. Moreover, these may or may not be environmentally significant projects. But, in that case, it is for Parliament, and in particular the Select Committee which examines each Bill, to decide whether to call for an environmental assessment.

In the cases with which these regulations are concerned, the appropriate department will ask developers for more information where necessary and from that the department will decide and inform him whether the project needs environmental assessment and consent. From there on, as with other procedures under the directive which involve advertisement and the possibility of a public inquiry and consent with or without conditions, such applications will follow in the same form.

The noble Lord, Lord Northfield, expressed particular concern about harbour works and about the application of these regulations. I should point out to him that Annex 1 to the directive applies to new harbours only and that these regulations which are before us now are concerned essentially with modifications of harbours which are listed in Annex II to the directive.

I must say that I am sorry to have missed the previous discussion which took place last July when many points were raised on all the regulations which were then going through the House. I understand that in total they came to something like 18 separate sets of regulations. However, I am glad to hear from the noble Lord, Lord Northfield, that he was somewhat reassured by the information which he subsequently received.

In regard to his comments on agricultural land requirements, I must say that those are outside the scope of the regulations which are before the House tonight. Nevertheless, I shall draw his comments to the attention of my relevant right honourable and honourable friends who are concerned with the matter. But I wish to emphasise that drafts or copies of all the regulations, both those which were agreed last July and the present draft regulations, have been submitted to the European Commission in Brussels. Further, so far as I am aware we have not had any objections at all as regards the manner of our implementation of this important directive.

I should add that in relation to our implementation of the directive overall we are actually well ahead in the field. I believe that only France and the Netherlands have passed the necessary legislation completely ahead of us. Our provisions will enable us to carry out the principle and the spirit of the directive most adequately.

Lord Northfield

My Lords, perhaps I may ask the noble Baroness whether she would be good enough to write to me further on the point about the 1,350 tonnes. I should have thought that if the effect of the works under these regulations made the harbour capable of taking 1,350 tonnes it would then be within the spirit of Annex 1 of the directive and therefore have a compulsory assessment. In that case, would it not be better to have some threshold, as there is in nearly all the other parts of these regulations? As I said, the thresholds which are in the directive have been reproduced in the regulations. However, if I may say so, I am still puzzled—despite the noble Baroness's attempt to explain this—as to why there is no threshold in this one and why it is left to so much ministerial discretion. If the noble Baroness will write to me on that point I shall be most grateful.

Baroness Hooper

My Lords, I shall be delighted to look again at what the noble Lord said. If there is any way in which I can attempt to reassure him further, I shall certainly do so. In the meantime, I commend both sets of regulations to the House.

On Question, Motion agreed to.