Services

vfbdgdn
 

Blog

‘dinghies passing dinghies in the night’, “drill, baby, drill”, and…progression?

Bhalindra BathThe UK Government’s “Infrastructure Bill”[1] – Second Reading on the 18th of June 2014: their noble Lordships, ‘dinghies passing dinghies in the night’, “drill, baby, drill”, and…progression?

General disclaimer: the following constitutes the written view of the author and in no way constitutes actual legal advice or a legal opinion and so no reliance may be placed upon the content hereinafter contained by any reader of this document in any way whatsoever. In the event that legal advice or opinion is sought, please contact the author of this opinion at the contact details below. The view below is expressly confined to matters as they stand at 2 July 2014.

 

 

On the 18th of June 2014 their noble Lordships in the UK’s House of Lords responded to the first reading of the Infrastructure Bill sponsored by the UK Government’s Baroness Kramer through debate, which has been separately written upon by this author recently, spearheaded by Lord Adonis[2] of the opposition Labour Party.

 

In summary their points raised the following:-

(a)    Fracking

The main point from their noble Lordships, was, where were the statutory provisions promised?  Lord Jenkin of Roding quite rightly pointed out that there is presently a consultation paper out and in relation to which clarity on the Government’s aims are expressed, also written about by this author recently[3].

(b)   Highways Agency special purpose vehicle and reformation of the Passenger Focus into a “Passengers’ Council”

Their Lordships argued that it might be unnecessary to incorporate a vehicle to carry out a functions outlined under the “hotch-potch”[4] Bill as the Highways Agency in some views already operates on an arms-length basis with Lord Adonis particularly citing in his view the, “…unhappy experience with the Ministry of Defence government company in the Defence Reform Bill..”.  Others of their Lordships stated the ability of the Agency to manage its own affairs was a good concept, but Lord Whitty wished to ascertain whether the new company set up was going to be allowed to raise its own money by ‘going to market’ for bond investment.  Funding the vehicle to be set up was a key issue discussed during the second reading, and current/capital spending was debated by Lord Skidelsky to get this point to the forefront of considerations on the merit of the company.  As to whether the UK Government would underwrite or guarantee the obligations of the vehicle was the proposition Lord Whitty wished to test.  Lord Skidelsky may have been summarising the position in relation to the re-branding of Passenger focus by saying that the Bill is mainly to do with, “…rearrangement of Whitehall agencies..”.  Lord Adonis was somewhat sceptical about whether the quango would have the clout, despite being backed by the Office of the Rail Regulator, that Ministers currently have in relation to Highways issues.  Some of the other issues raised were the lack of any tolls or fees mentioned in the bill with Viscount Hanworth citing the example of the more costly than income-generating M6 Toll. Lord Hodgson of Astley Abbotts pointed to institution of a sovereign wealth fund to pay for infrastructure given the Norwegian success in the use of this model, however, this it is respectfully submitted, would more likely make it into a future consultation and the set topics in the present Bill, are all that will be enacted upon, unless the underground drilling consultation progresses apace so as to merit inclusion.

(c)    Invasive species

From the example of Canadian Crayfish ousting local crayfish to mink, the examples of marine ballast water bringing in more troublesome Japanese WireWeed (as opposed to the oft loathe to be seen, Japanese KnotWeed), their Lordships were generally in agreement that measures were required to preserve local species and habitats both on- and off- -shore.

(d)   Centralising local land charges registers to HM Land Registry

Whilst generally welcomed, a more detailed analysis by Lord McKenzie of Luton, pointed out that although the Bill would centralise the Register of local land charges, the CON29 inquiries relating to queries for local authorities on a strip of land would remain under the remit of local authorities, and so fragmentation of local authority questions from the local land charges check was put forward as meriting further investigation over cost-implications for local authorities, especially if they decided to abandon/outsource their duties.  Debate over whether or not the Land Registry would be privatised was confirmed by Baroness Kramer as being something to be left for a future consultation but that the issue would in any event not make it into the Bill.

(e)   Deemed discharge of planning conditions –

Lord Adonis called for evidence for a need to legislate on this area requesting data that shows planning authorities are actually delaying matters or are sufficiently slow as to warrant Government to spend time legislating on the matter.

(f)     Community Energy Right –

Their Lordships generally recognised the merits in community engagement in 5+MW renewable energy projects limited to a 5% capped total investment as it might incentivise local residents to get involved at an early stage and accept the development.  Lord Oxburgh cited his experience as chairman of Falck Renewables when Falck engaged with the community in just such a way so that the members of the community rather than resisting development, bought into project.  Lord Hunt of Chesterton also cited Denmark for being adherents to community stakeholding in renewable energy projects.  Others of their Lordships, bemoaned the amount of time this form of social inclusion in this sector has taken to become a point worthy of debate.  Given the Climate Change Act and the Energy Act, the consolidation of all points that failed to make it into other Acts but may merit inclusion within the next piece of legislation may well be debated further at the next Committee stage which commences tomorrow[5].

 

Following this stage, a usual path will be a report stage, a third reading and then consideration of any amendments to the Bill by both Houses, which if passed would allow the Bill to be presented for Royal Assent which today means usually that it would then pass for enactment.

 

Article by Bhalindra Bath– Infrastructure Projects. London, 2 July 2014. 


To find out more on how My Business Counsel can assist you on planning, energy, real estate, corporate, commercial or project agreements on infrastructure projects, please contact the Infrastructure Projects Team today on info@mybusinesscounsel.com or by calling +44 (0) 203 507 0152.


[4] Column 858, Lord Whitty, at FN2 above.