§ 7.48 p.m.
§ Baroness Farrington of Ribbleton rose to move, That the draft order laid before the House on 28th October be approved [11th Report from the Joint Committee].
§ The noble Baroness said: My Lords, I am pleased to have the opportunity of inviting this House to approve an affirmative order under the Transport and Works Act 1992 (TWA for short). This order involves minor, but useful, amendments to the original 1992 order and should not, I believe, be controversial.
§ It would doubtless be helpful if I first explain to the House the background and purpose of the proposed order.
§ Although the TWA is mainly concerned with new railway and tramway schemes, it also enables other types of projects in England and Wales which would previously have been authorised by private Acts to be approved by ministerial orders. Those include inland waterways and projects which interfere with rights of navigation, such as, for example, river barrages.
§ The order-making system is set out in Part I of the Act. Section 3 enables the Secretary of State to make an order for the carrying out of works which would interfere with rights of navigation and are of a 531 description prescribed by order made under Section 4. The legislation was framed in this way to ensure that the powers were sufficiently flexible to enable the order-making procedure to extend to novel or unforeseen projects without further primary legislation. In hindsight, the Act might have been framed so as to permit any types of works to be approved under Section 3 without the need for specific descriptions. But there was concern at the time that the scope of the order-making powers should be carefully circumscribed.
§ The first Section 4 order—the Transport and Works (Descriptions of Works Interfering with Navigation) Order 1992—prescribed 10 categories of works. The effect of the order is to enable promoters of the prescribed works to make an application under Section 3 of the TWA. It does not mean that works of such description will necessarily be approved. The case for approving particular projects is considered only in relation to specific applications made to the Secretary of State under Section 3.
§ The first order sought to cover the full range of projects which might interfere with rights of navigation, but works projects have been developed more recently which were not foreseen at the time. We have in mind in particular proposals for certain millennium works in Portsmouth Harbour which require a Section 3(1)(b) order and are not prescribed in the existing Section 4 order. These projects include a retail development to be constructed on a piled platform, an observation tower and an illuminated water fountain sending out jets of water periodically across the harbour. The amending Section 4 order prescribes these types of works.
§ We have undertaken a public consultation exercise on the proposed changes. Those consultees who responded have generally been supportive or have offered no comments. Two organisations questioned the need for the order but their concerns appear to be based on misunderstandings about the overall purpose and nature of the TWA order-making process. One of those two respondents thought that the order would enable works to be authorised by Section 3 order which would more appropriately be approved under other statutory powers. The proposed order was therefore an unnecessary duplication. The second objector argued that by not prescribing the proposed categories of works in the first Section 4 order, Parliament had indicated that such works should continue to be authorised by Private Bill and there was no compelling case for enabling them to be subject to approval by TWA order rather than by an Act of Parliament.
§ On the first point, the TWA procedure is permissive. It is for promoters to decide whether they need the statutory powers and protection from actions in nuisance afforded by a Section 3 order. They are unlikely to apply for such an order if there is another more convenient and appropriate means of approving a project. Moreover, the Secretary of State can refuse to make an order where he considers that the necessary powers could be obtained by other means—Section 13(2) of the Act. In the case of the proposed works in Portsmouth Harbour, we are satisfied that a Section 3 order under the TWA is the appropriate mechanism for obtaining statutory 532 authorisation. Having regard to Section 3(2) of the TWA, which prevents the Secretary of State from making a Section 3 order if the primary object could be achieved by means of an order under the Harbours Act 1964, we are satisfied that a harbour order is not suitable because the proposed works are not for a harbour purpose and the promoters do not have a substantial interest in the harbour as required under the 1964 Act.
§ Turning to the second point, Parliament decided in enacting the TWA that it was no longer appropriate for infrastructure projects, involving as they do consideration of detailed and local planning issues, to be the subject of Private Bills. Sections 2 and 4 of the Act were therefore inserted to enable the range of projects coming within Sections 1 and 3 to be prescribed and extended by order with the aim of ensuring that all works schemes are normally determined by the TWA procedure where the only alternative would be a Private Bill. Parliament clearly envisaged that there might need to be more than one order made under Sections 2 and 4 by referring in these sections to "orders" in the plural.
§ It is worth repeating that, by bringing forward the order, the Government are not necessarily signalling their support for any of the proposed projects covered by the extended descriptions of works. Each application under Section 3 of the TWA will be considered on its merits, after taking into account any objections to the proposals. What we are saying is that, in line with the whole thrust and purpose of the 1992 Act, the proposed works in Portsmouth Harbour and other similar projects should be subject to the TWA statutory approvals process where the only alternative would be a Private Bill. That is what this order, if made, will ensure. I commend the order to the House.
§ Moved, That the draft order laid before the House on 28th October be approved [1Ith Report from the Joint Committee]—(Baroness Farrington of Ribbleton.)
§ Lord Brabazon of Tara
My Lords, very briefly and rather frivolously, the noble Baroness said that she hoped that the order would be non-controversial. The explanatory note on the back of the order says that it amends the meaning of "pier". Provided she keeps to that spelling of "pier", it will be non-controversial.
§ Lord Inglewood
My Lords, I am most grateful to the noble Baroness for her comprehensive overview of the circumstances bringing about the tabling of the order. Speaking purely personally, I have always been in favour of fountains. If the order makes it easier to bring about the creation of new fountains where it is everyone's wish that there should be such things, I am sure everyone will be in favour of it.
§ On Question, Motion agreed to.
§ Moved accordingly, and, on Question, Motion agreed to.
§ [The Sitting was suspended from 7.56 to 8.35 p.m.]