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Planning Bill

Volume 704: debated on Monday 20 October 2008

House again in Committee on Clause 116.

359A: Clause 116, page 60, line 13, leave out subsection (3)

The noble Baroness said: Amendment No. 359A is in a large group, in which I have a great number of amendments. If I lose my place, I hope that Members of the Committee will forgive me. The juggling required for this sort of group is physical and it is not within the normal repertoire of politicians.

Amendment No. 359A is an amendment to Clause 116(3), which provides that a development consent order,

“may make provision relating to … matters ancillary”.

However, in Clause 145 we learn that the development consent order may remove the requirement for consent by a “relevant body”. Through this amendment I seek an assurance from the Government that this is not directed at operational consents. The Government will be aware of the concern of the Environment Agency, which has contacted me with regard to this provision. It has said that it would be unlikely to agree to transfer operational consents save in exceptional circumstances and that the urgent need to streamline the planning system for major infrastructure coupled with the complexities of the consents regime has meant that the Bill is unable to draw a clear distinction between those consents necessary to implement infrastructure projects and regulation of the subsequent operation of the infrastructure.

Amendment No. 360 probes the extent of Clause 116(5) and registers some concerns about it. The Delegated Powers and Regulatory Reform Committee commented that it was not aware of comparable legislative powers being given to anyone other than a Minister or to be exercisable other than by statutory instrument. As the committee points out, the Government are clear that the ability of the IPC to overwrite statutes is in fact at the heart of the Bill, and thus is perhaps not unrelated to Clause 101 on which we considered amendments last week and to which we might return.

I am not entirely comforted by there being an order by statutory instrument which is not subject to parliamentary procedure. To what scrutiny is it likely to be subject? In the Commons the Committee was told that the only pieces of legislation that can be altered are those that the promoter includes in the application; that any Member will be able to scrutinise the model provisions and force a parliamentary debate on them, and that the IPC as the decision-maker, although sometimes the Secretary of State,

“will only be able approve the application and make an order when that is in accordance with the relevant national policy statement”.—[Official Report, Commons, Planning Bill Committee, 29/1/08; col. 488.]

I have some difficulty in following all this. Paragraph 25 of the Government’s response to the DPRR Committee says that the clause is very tightly worded so as to allow the amendment or exclusion of statutory provision only where it is “strictly necessary”, but Clause 116(5)(b) does not use such words; rather it states “necessary or expedient”. That is a very different position. I should be grateful for an explanation of this.

Amendment No. 362 and the subsequent raft of amendments take us to Schedule 5 entitled:

“Provision relating to, or to matters ancillary to, development”,

I ask the Government to justify their inclusion. The first amendment concerns the provision to allow the IPC to provide for:

“Charging tolls, fares and other charges”.

This is interesting and perhaps goes beyond what one might have expected the IPC to be able to do. Will it be able to provide for them in principle or regulate them? How will this operate? If the IPC gets into the realm of tolls, it will be going further than most readers of what has been going on would expect.

All of these amendments seek to take out the relevant provisions. Amendment No. 363 relates to,

“The operation and maintenance of a transport system”.

Is it really the IPC’s job to become involved in operating and maintaining a transport system? Amendment No. 364 relates to,

“Entering into an agreement for the provision of police services”.

We seem to be moving further and further away from planning. I can understand that some of the projects which are the subject of the Bill will be very sensitive in terms of security and might need special protection, but, again, this seems to take us a long way forward.

Similarly, Amendment No. 365 relates to,

“The creation of a harbour authority”,


“Changing the powers and duties of a harbour authority”.

Amendment No. 366 relates to,

“The transfer of property, rights, liabilities or functions … The transfer, leasing, suspension, discontinuance and revival of undertakings”.

This is not linked to anything. Transferring property, rights, liabilities and functions, is again extreme. I wonder why they are in there.

Amendment No. 367 relates to,

“The payment of contributions … The payment of compensation”.

Amendment No. 368 relates to,

“The alteration of borrowing limits”.

Having spent many hours in this Chamber arguing about central government control of matters such as borrowing limits, where it should not get involved, giving this away in a schedule to the Bill requires some explanation.

Amendments Nos. 384 to 387 raise similar points in the main part of the Bill. Amendment No. 384 relates to ignoring the effect of a bridge or tunnel. I am not an engineer, but is it possible in this context for the IPC to be told that it must ignore the effect of a bridge or tunnel? Amendment No. 385 relates to highways and a toll regime. Amendment No. 386 relates to harbours. Clause 140(5) states that the provision may include, in particular, certain matters. I should be grateful if the Minister could tell me what else might be included. Amendment No. 387 seeks to probe Clause 140(5)(b), which gives wide powers to a harbour authority.

Perhaps the kind question—I am being a little scathing—is to ask whether this provision replicates existing legislation. I see lots of nods coming from the Government Front Bench so I have not disgraced myself entirely. We will have that on the record. If it were an entirely novel provision, it would require to be justified. I beg to move.

Amendment No. 360A, to which my noble friends on the Front Bench have added their names, is in this group. If I may say so, the noble Baroness has expressed herself with unnecessary moderation on an issue that warrants much stronger words than she used. Clause 116(5)(a) and (b) say that,

“An order granting development consent may … apply, modify or exclude a statutory provision which relates to any matter for which provision may be made in the order”,


“make such amendments, repeals or revocations of statutory provisions of local application as appear to the decision-maker to be necessary or expedient”,

and so on.

I find this horrifying. We are setting up a body, the IPC, that will be making an order, and somewhere in that order it is going to alter statutes. I cannot believe that that is what is intended. It is bad enough when we hear about Henry VIII clauses, where Ministers—who, after all, are accountable to Parliament—are empowered to alter statutes by order, orders having frequently to come before Parliament, but here there is nothing of the sort. No Minister is responsible and there is no parliamentary process; the IPC, when it makes its order granting consent, can actually change the effect of the existing law. I simply cannot believe that is right.

It may be that I have misunderstood the language and the Minister will be able to explain that I have got it all wrong. I should be greatly relieved to be assured of that. As it stands, though, this wording appears to give the IPC the power to change the law. My amendment would take out the two sections about altering and amending the law so that they would not apply. As an alternative, it could be that if the order needed to change the law in order to have proper effect given to it, it should ask the Minister to introduce an order that would then come before Parliament, which could express its view on it. Simply to leave the commission with the power to change the law when it issues its consent order seems to be wholly unacceptable. This is the sort of matter about which Parliament needs to come in and say, “Look, this is contrary to the rule of law and we will not have it”.

I support my noble friend in his amendment, to which we have added our names. The issue he has raised is a fundamental one, about which I am sure we would all have the gravest concern, as he does. I hope the Minister can give us some explanation that suggests that what we are reading is not what is intended. Unfortunately, whatever she may say in exculpation, my own view is that the wording in the Bill is the wording that we have to deal with. If that is the case, some revision here will be required. I hope that on reflection the Minister might find that it is possible to give us reassurance, and to say that the Government will reflect on that wording and possibly come up with some mechanism that ensures that the commission itself cannot at a stroke amend the wording of legislation, because that would not be proper.

In this group of amendments I have also tabled a debate on whether Clause 117 should stand part. I do not intend to take the time of the Committee on that debate; it is a consequence of some earlier amendments of ours that we have not dealt with at the moment, and there is no point in dealing with them here.

Amendment No. 371A in my name is in this group of amendments but deals with a slightly different subject. I hope that the Committee will bear with me while we yet again go off at a tangent and lose the thread of a very important debate on Clause 116.

My amendment relates to Clause 118 on compulsory purchase. As a result of Clause 118, there is a danger that the positive decision to acquire land compulsorily will be seen as a natural consequence of a positive decision in favour of a project on planning grounds. That is worrying because it is contrary to the existing position, where any impediment to the grant of planning permission will weigh against the likelihood of obtaining compulsory purchase powers but the availability of permission does not in itself justify the exercise of compulsory powers.

While the Government cite the need for a more streamlined decision-making process for major projects of national importance, no justification has been advanced for treating the affected parties differently in respect of taking or otherwise affecting land. It is important that there is consistency in the treatment of those affected by potential dispossession.

That brings me to my amendment, which would delete subsection (2) of Clause 118. The clause deals with the purposes for which land may be compulsorily acquired, and appears to have been pulled together from various Acts, with particular reference to the nature of the projects involved. For these reasons, it is expressed very broadly and provides little guidance on the justification of the use of powers. It is on that guidance that I seek the Minister’s help. It relies on the meaning of the word “required” in Clause 118(2)(a), which was used in the compulsory purchase powers provided in Section 226(1)(a) of the Town and Country Planning Act 1990, along with the requirement that the land should be “suitable”. The reference to the compelling case in the public interest is a reference to the test applied by the High Court in considering challenges to the confirmation of CPOs. Again, it does not help to establish the justification for exercising specific powers relative to the project under consideration by the decision-maker.

A further example of the vagueness of this provision is that there is no indication of the timescale over which the powers may be exercised. As the Minister will know, most similar powers have a life of three years, but hybrid Bills and orders under the Transport and Works Act 1992 may seek longer periods, which will be granted only if justified. The purpose of my amendment, therefore, is to seek more information from the Minister on how this part of Clause 118 will be implemented.

All these amendments relate to the range of issues that can be covered by an order granting development consent. Our principle of action in relation to them all is simple: the IPC should be able to make provision in development consent orders for all the matters required to develop a nationally significant infrastructure project.

Clause 116 and Schedule 5 itemise a large number of such matters and the noble Baroness, Lady Hamwee, went through quite a number. However, I can assure the Committee that they are all rooted in matters that are already available in current legislation on infrastructure development and which experience has shown are necessary for promoters to build the infrastructure for which consent is being given.

The specific provisions have been drawn very closely from Schedule 1 to the Transport and Works Act 1992 and from the Harbours Act 1964, although all the other existing consent regimes have had an influence on the provisions of both Clause 116 and Schedule 5.

Amendments Nos. 359A and 360 to 368 raise the issue of matters ancillary to development. The test of whether something is ancillary to a development depends on the functional relationship between that matter and the development. A certain amount of common sense needs to be applied to the question, but, in general terms, something will be “ancillary” if it is needed for a development to proceed in practical terms. As with existing Transport and Works Act orders, there should be flexibility for development consent orders to cover these matters and other particular issues relevant to an application. The key here is flexibility, without which the single consent regime will not work.

I have a table which I can pass to the noble Baroness, Lady Hamwee, and the noble Lord, Lord Dixon-Smith, of all the matters itemised in Schedule 5 on page 162 of the Bill, a number of which the noble Baroness went through. They are closely modelled on existing provisions. I will write to the noble Baroness and the noble Lord, as well as to the noble Lord, Lord Jenkin, who takes a keen interest, and other Members of the Committee, with a whole list of the powers and show how they are drawn, but I shall run through a few to give a flavour of our approach.

The first paragraph in Schedule 5—

“The acquisition of land, compulsorily or by agreement”—

is modelled closely on Schedule 1 to the Transport and Works Act 1992 and Schedule 2 to the Harbours Act 1964, because the compulsory acquisition of land is almost always required for the construction of a nationally important infrastructure project. Such orders are very common provisions in Transport and Works Act and Harbours Act orders. They have been used recently in the case of, for example, the River Tyne (Tunnels) Order 2005, the Network Rail (Thameslink 2000) Order 2006 and the London Gateway Port Harbour Empowerment Order 2008.

The second paragraph in Part 1 of Schedule 5—

“The creation, suspension or extinguishment of, or interference with, interests in or rights over land (including rights of navigation over water), compulsorily or by agreement”—

is again modelled closely on Schedule 1 to the Transport and Works Act 1992 and Schedule 2 to the Harbours Act 1964, because interference with rights over land is a common provision in Transport and Works Act and Harbours Act orders. The three examples that I gave in respect of the first matter—that is,

“The acquisition of land, compulsorily or by agreement”—

all apply in relation to the second.

Paragraph 4 of the schedule—

“Carrying out specified excavation, mining, quarrying or boring operations in a specified area”—

is closely modelled on Section 5 of the Gas Act 1965, because it is a specific consent required from the Secretary of State where mining operations are planned in the vicinity of an underground gas storage facility. It would not make sense for promoters of nationally strategic important infrastructure projects to require this power from the Secretary of State when the relevant consideration can be handled by the IPC.

I could go through the list. I hope that I have thereby satisfied the Committee that we are seeking to move to the IPC the power to give consents on matters ancillary to developments. It is closely modelled on the existing regime that applies in legislation governing consents in particular areas, of which the most important examples are the Transport and Works Act 1992 and the Harbours Act 1964. However, I shall circulate the whole list to Members of the Committee. If they wish to engage in a dialogue with me about specific items in it before Report, I would be glad to do so.

The Minister slid very quickly over the provisions that I quoted from Clause 116. I listened to what he said about the ancillary matters which are dealt with in the schedule, and I would be most grateful to have the letter. However, I am told very firmly that, in the Transport and Works Act, if there is any question of amending the law, which is what the two provisions really mean, an order will be laid before Parliament and subject to the negative resolution procedure. I suspect that that would be a much more acceptable approach in this case. If that is thought to be too time-consuming, why cannot we at least have a Minister taking responsibility for changing the law? Giving this power to the commission is a novelty. If the Minister can convince me that that has been put into previous legislation, I shall listen with interest to what he says, but he did not say so when he first replied.

I was dealing first with the issue of the ancillary matters for which consent can be given alongside a development consent order. The noble Lord is now anticipating the second part of this debate, which relates to the exercise by the IPC of legislative powers. These are distinctly different issues. The first concerns the range of matters, as set out in Schedule 5, over which the IPC has power when granting consent on matters ancillary to a development consent order. The noble Lord raises the point that I now wish to come on to—that is, the ability for the IPC to exercise so-called legislative powers.

These provisions are again modelled closely on the powers already available to the Secretary of State in making orders under Section 5 of the Transport and Works Act 1992 and are an essential part of the single consent regime. The issue is whether existing powers that reside with the Government should be available to the IPC. It might be worth taking a moment to reflect on why the 1992 Act and the Harbours Act 1964 contain the legislative provisions that we have incorporated into the Bill, before I come to the issue of safeguards, which the noble Lord, Lord Jenkin, has, quite rightly, raised.

In the past, promoters of nationally significant infrastructure projects have found that there are statutory provisions regulating existing infrastructure that they propose to upgrade or improve. In particular, railway infrastructure is frequently covered by one or more private Acts of Parliament, which gave the original promoters of the railway the ability to construct it in the first place. Often the provisions of the existing legislation are inconsistent with proposals to upgrade or improve infrastructure. For example, Network Rail might be under a statutory obligation to provide or maintain a certain infrastructure—for example, a bridge or a footway—that would be incompatible with the provisions to upgrade a railway.

It is also commonly necessary when authorising railway projects under Transport and Works Act orders to apply certain provisions of public Acts with suitable modifications. This may be because the legislation in question would not otherwise apply to the projects, but it should desirably do so, or because its application needs to be adapted to give a sensible outcome. Most typically, this has arisen in the context of compulsory purchase and compensation provisions, but it has arisen in other contexts as well. It was with precisely this problem in mind that Parliament previously granted the Secretary of State the extensive powers in Section 5 of the Transport and Works Act 1992, including the ability to make an order that can,

“apply, modify or exclude any statutory provision which relates to any matter as to which an order could be made”,

under that Act. The 1992 Act also permits the Secretary of State to make amendments, repeals and revocations of statutory provisions of local application as appear to him to be expedient in connection with an order.

The Harbours Act mentioned by the noble Baroness, Lady Hamwee, makes similar provisions in respect of local Acts in relation to harbour developments. Clause 116(5) is based on the wording in Section 5 of the Transport and Works Act 1992 and the similar provisions in the Harbours Act. As we have seen in Part 3, many types of project to which the 1992 and 1964 Acts apply will, in future, be classified as nationally significant infrastructure projects and, as such, will require development consent under the Bill. Clause 32(2) has specifically excluded the 1992 or 1964 Act orders from authorising development of those projects. That will prevent the use of orders under those Acts to amend legislation in relation to such projects.

However, it is because we recognise precisely the points raised by the noble Lord, Lord Jenkin, about the powers being exercised by an independent body that we have provided for a number of safeguards in the Bill to ensure that these essential powers are not used inappropriately or without proper scrutiny. First, and most basically, the only pieces of legislation that can be altered are those that the promoter includes in the application. The IPC will not be able to make orders on a subject other than those in the application.

Secondly, the form of the draft order will be based on model provisions that will be set out for the Secretary of State by order under Clause 33. These are likely to be similar to the model provisions currently set out in the Transport and Works (Model Clauses for Railways and Tramways) Order 2006. Members of both Houses will be able to scrutinise those model provisions and force a parliamentary debate on them, providing the precise oversight that the noble Lord, Lord Jenkin, seeks to ensure applies.

Thirdly, as the Committee will see from the provisions of Clause 116(8), this provision will prevent any development consent order containing provisions that make or modify by-laws or criminal offences. We do not believe that it would be appropriate for an independent body to make such orders.

Fourthly, the decision-maker will be able to approve the application and make an order only when that is in accordance with the relevant national policy statement. Any provisions in a development consent order relating to existing legislation will be only those that are in line with government policy—policy for which the Government are fully accountable to both Houses.

Fifthly, where the IPC intends to use the powers in Clause 116(5), it will be required first to send a copy of the draft order to the Secretary of State. If the Secretary of State thinks that the terms of the order would contravene Community law or any of the convention rights, he has a power in Clause 117 to direct or require the IPC to change the terms of the order to prevent such contravention.

The noble Lord, Lord Dixon-Smith, has tabled an amendment that would delete the safeguard. I presume that it has been tabled as a consequential amendment to his Amendment No. 306A. I say to him that, for precisely the reasons that we have been discussing this afternoon, Clause 117 provides a crucial means by which the Secretary of State can exercise control against any possible misuses of legislative powers that could bring this country into conflict with our international obligations. In general terms, we believe that it is a vital step to ensure that there is thorough scrutiny of any use of legislative powers on any matter.

After the noble Lords, Lord Jenkin and Lord Dixon-Smith, and the noble Baroness, Lady Hamwee, have had a chance to look more closely at the matters I have set out, and before Report, I should be happy to discuss the matter further with them. We believe that, subject to transferring the granting of development consent orders to the IPC, there are adequate safeguards. On the specific issue of the IPC’s ability to take into account existing statutory provisions in making its decisions, oversight provisions already exist in respect of both the Secretary of State and Parliament where orders to this effect are being made.

I am grateful to the Minister for giving way. I seek some clarification. On the authority and power being given to the Infrastructure Planning Commission, the Minister said that the fourth safeguard was the national policy statement. Therefore, the IPC operates under an authority granted it by the NPS. I draw the Minister’s attention to Clause 101, which sets out the parameters of the decision-making of the panel and council. Subsection (3) states:

“The Panel or Council must decide the application in accordance with any relevant national policy statement, except”.

Then, in subsection (7), the exception is,

“if the Panel or Council is satisfied that the adverse impact of the proposed development would outweigh its benefits.”

It seems to me that what is being argued is that there is to be an exception to the national policy statement. Who determines the benefits or losses to the project or the community? We are given no suggestion about that in the legislation. However, it shows those of us who are concerned about the authority accruing to the Infrastructure Planning Commission that not only is it able to set aside certain orders, it can also set aside the national policy statement. Can the Minister give an undertaking to rethink that proposal as well?

It cannot set it aside. This is an issue that it must weigh. The whole purpose of the IPC is to weigh the balance of pros and cons of an application when one is made, but it must do so in accordance with national policy statements.

An exception is stated explicitly in Clause 101(3). It is difficult to understand what the grounds for those exceptions are. I am simply asking for some clarification about the exception granted to the national policy statement and therefore to the Infrastructure Planning Commission.

The right reverend Prelate has raised an interesting matter, and I shall study what the Minister has said about it. However, I come back to subsection (5). The Minister did not seem to recognise that there is a difference between the earlier Acts that he quoted—where the Secretary of State has the power to amend, alter, modify and so on—and the Bill, under which this unelected body would have that power. To rely, as the Minister has done, on the earlier legislation is a grave mistake, because this does not say that. In those cases, the Secretary of State makes an order and, for some of them, under the Transport and Works Act 1992, he must then put an order before Parliament.

I understand that the Government’s purpose here is to accelerate the process, something that has been recognised on all sides of the Committee as desirable and, indeed, necessary. However, changing the law should not be a function of a body like the IPC. At least, it should not do so without the consent of the Minister; that should be part of the formal process. It is insufficient to say, “the Minister may scrutinise”, or “Parliament may scrutinise”. Parliament cannot do anything about it under the law. If Parliament had more powers—over the national planning statements, as I have argued previously—that might make a difference. Currently, however, this is all made by policy being promulgated. Scrutiny by itself, without any powers, is not enough.

I hope that the Minister will look at this again, and assure him that we will come back to it on Report. Of course we shall study what he has said and the various precedents. At the moment, however, I am wholly unconvinced.

I accept that the noble Lord has concerns, but it seems to me that they in fact go to the whole basis on which the IPC has been established. These powers are in line with all its other powers. The safeguards that are in place we regard as very robust. They include a safeguard for the Secretary of State where the Secretary of State believes that the terms of any order would contravene community law or any of the convention rights. As I say, there is a scrutiny role for the House of Lords. So the noble Lord’s points on decisions that would be made on these matters are no different from the fact that we would be transferring this power in respect of the development consent orders themselves. We can, of course, rehearse these issues on Report.

The noble Earl, Lord Caithness, made some remarks on compulsory purchase orders. We have the ability to issue guidance on compulsory purchase orders. This will give greater detail on how the IPC will treat cases of compulsory purchase orders, which I took to be his concern.

I am grateful for that response. The noble Lord has the power. Is he going to exercise it and, if so, when? Will he confirm that the basis of compulsory purchase law is now changing in the way that I said?

I have not hitherto taken part in this debate, but listening to the interesting exchanges between the Minister and the noble Lord, Lord Jenkin, it seems that the noble Lord has a point. The status of the IPC has inadvertently been revealed. In this case, it is to be an agent of government. That was not my understanding of the original purpose of the IPC.

It is not the agent of government. It has to consider applications on their merits, subject to the national policy statements that are issued under this Act by the Secretary of State. The IPC then has to exercise its judgment on the matters before it in the way that any body set up by statute operating under guidance does.

In response to the noble Earl, it is our intention to issue guidance, but I do not know when.

I hesitate to intervene again. This has been a detailed and interesting discussion. I know the Minister is doing his best to be helpful, but in being helpful, he has read out a list of qualifications to a part of the Bill that is unqualified. I am aware of the impact on legislation of what is said in Parliament. We need to have some fairly serious discussions, which the Minister offered, before Report in order to try to find out what lies behind this. At the moment, I remain unconvinced that the position is sufficiently clear. Before the Bill departs this place, we need to be satisfied that it is sufficiently clear for there to be no misunderstanding.

I come back again because there is another point that the Minister has not answered. It is whether Clause 118 changes the presumption about compulsory purchase in the way that I suggested when I spoke to my amendment.

Not as far as I am aware, but I shall confirm that matter in correspondence with the noble Earl.

The noble Lord, Lord Dixon-Smith, said that we need to be perfectly clear about what lies behind all this. In a non-technical fashion, I am perfectly clear about what lies behind all this. I am grateful for the offer of the detailed explanation. I was going to ask for it, but the Minister offered it.

I picked up a couple of things that he said. First, he spoke about Transport and Works Act orders. The word “orders” is important. The noble Lord, Lord Jenkin, forcefully spoke about the constitutional position. The Minister also said that the key is flexibility. What is flexibility if you are the Government is probably too loose when you are the Opposition. Flexibility is the problem as well as the key.

I was not clear from the Minister’s explanation of the ancillary matters whether the current inspectorate would say yes to the different ancillary matters that I went through fairly quickly. When he writes, it would be helpful if the Minister could cover that because if it is not a precise analogy, the Government’s defence is that much weaker. The examples he gave were not ones that I challenged in any of my amendments, and I am not clear that energy and waste matters, for instance, would come within the Transport and Works Act provisions that he was talking about in the direct way that he was dealing with them. I think they are different matters.

As regards the safeguards he mentioned, the waiving of a statutory provision would have to be in the initial application. However, if I may say so, in terms of what we are questioning here, so what? We could debate model provisions, but those would simply be models in line with a national policy statement. We spent some time considering whether national policy statements should be approved by Parliament. I shall, of course, read carefully what the Minister said, but I am not convinced that his argument is as strong as it might appear on first hearing it.

I am glad that the noble Lord, Lord Jenkin, spoke to Clause 116. My amendment was more extensive than his and I probably did not do it full justice, knowing how many amendments I had in this group. However, I blinked and blinked again when I read the paragraphs to which he referred, which was why I sought to delete them from the Bill. My probing amendment is a substantial probe in this case. However, for the moment, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 360 and 360A not moved.]

Clause 116 agreed to.

Schedule 5 [Provision relating to, or to matters ancillary to, development]:

361: Schedule 5, page 162, line 15, leave out paragraphs 8 and 9

The noble Lord said: The first two amendments in this group concern the status of green-belt land where it is affected by a development proposal under a national infrastructure project scheme. I understand that the Minister can give us assurances on this matter. If that is the case, there will be no need for us to take it further. I look forward to hearing what he has to say. I beg to move.

I believe that the noble Lord seeks assurances from me on the development of green-belt land. I think that I am in a position to give him those assurances. Indeed, my speaking note says that there is not a cigarette paper between him and the Government on the overall aims. I hope that is always true of the detail.

The term “green belt” relates to land that is designated as green-belt land in accordance with the 1938 green belt Act. Under that Act, local authorities were given powers to hold certain land surrounding London and other metropolitan areas on trust, and development of that land is subject to restrictions over and above those imposed by the Town and Country Planning Act. Where land is designated as green-belt land for the purposes of the 1938 Act, a separate consent is required from the Secretary of State to enable the land to be developed. It might be helpful if I refer to this as statutory green-belt land.

There is a second category of land, which is land designated as green-belt land by a local authority in its local development plan. Such land is currently protected from development by both local and national planning policy, which prohibit inappropriate development in the green belt except in very special circumstances. This type of designated green belt is not the same as statutory green-belt land as designated under the 1938 Act. While the development of this designated green-belt land requires planning permission in the usual way, it does not also require a separate consent from the Secretary of State under the 1938 Act.

The Planning Bill deals with both these types of land by means of the single consent regime. As noble Lords will see from Clause 32, the single consent regime means that promoters will make a single application to the IPC instead of separate applications under the 1938 Act and the Town and Country Planning Act. An order granting development consent could, depending on the circumstances, authorise the development of both statutory green-belt land and land designated as green belt in a local development plan. An order granting development consent in relation to green-belt land will therefore have a similar effect to a combination of a planning permission and a separate consent from the Secretary of State under the 1938 Act.

However, I can assure the noble Lord that it is our intention that the commission and the Secretary of State will be required to adhere to the policies set out in any relevant national policy statement, particularly in relation to the protection of green-belt land, whether statutory or non-statutory, and to take into account such other factors as may be prescribed in all decisions on whether to grant consent for a development in the green belt.

We intend that national policy statements will explicitly reflect existing policy on green belt as set out in PPG2, thereby requiring the IPC to reach a decision on the same basis as local planning authorities currently do on applications in the green belt. We also intend to make subsequent regulations that require the commission or the Secretary of State to take into account the purpose for which green-belt land is held when deciding whether to grant consent for NSIP development on green-belt land. In that way, the special status of green-belt land will be protected to the full extent that the noble Lord would wish to see.

I am most grateful to the Minister for that response, which removes our concerns. It was a probing amendment, and we have probed successfully. I intend to withdraw the amendment—

Perhaps I may speak to my Amendment No. 406. It comes at the beginning of Chapter 2 of the Bill, which is entitled, “Other changes to existing planning regimes”. Given this opportunity, I felt that it was important to raise an issue about which I feel strongly, which I have raised with the noble Baroness, Lady Andrews, and with her predecessors on several occasions. I declare an interest in that I am a landowner in the green belt in Hertfordshire.

I fully accept the five purposes of the green belt as set out in paragraph 1.5 of PPG2, which are,

“to check the unrestricted sprawl of large built-up areas … prevent neighbouring towns from merging into one another … to assist in safeguarding the countryside from encroachment … to preserve the setting and special character of historic towns; and … to assist in urban regeneration, by encouraging the recycling of derelict and other urban land”.

Those principles have been most effective and have preserved the countryside wherever they exist. One problem, however, is that they freeze all development in villages and hamlets that fall within a green belt; thus, except in very special circumstances, the natural evolution of those villages and hamlets is blocked. As I said on Second Reading, there are many small and medium-sized sites in green-belt locations where a modest, well-designed and appropriate development could be permitted without threatening the openness of the surrounding green belt. According to paragraph 1.4 of PPG2, openness is the most important attribute of the green belt.

There will be differing views on what is appropriate development, and they will vary depending on the characteristics of the particular site. There is likely to be demand for affordable housing to enable the next generation of village dwellers to stay in the area; but appropriateness should not be limited to affordable housing. Some infilling and freestanding housing should not be ruled out provided that, as the amendment states, it is,

“of a quality and design that preserves the character of the area”.

The amendment is designed to give a degree of flexibility to local planning authorities in aiding the natural evolution of villages and hamlets in the green belt, without compromising the five purposes of including land in green belt as set out in PPG2.

I am not a landowner in the green belt, but I support the amendment proposed by the noble Lord, Lord Cobbold, who spoke convincingly on this subject at Second Reading, when he drew the picture of a blanket freeze on all development in villages and hamlets in the green belt, making it sound like a blight that they were suffering from. He provided quite a contrast to the experience of almost any other village in this country in the past 20 years. The amendment is cautious and the noble Lord surrounds the prospect of development with every sort of condition, and I would have thought that his amendment could be supported.

I am sorry, but I was trying to discover where we were. The solution is that the Chamber did not give my noble friend leave to withdraw his amendment, which we are still discussing. I wish to comment on the interesting point made by the noble Lord, Lord Cobbold. As Secretary of State, I was heavily involved with this issue and I published proposals for planning authorities, when drawing the boundaries of green belts around small towns and villages, to leave enough space for the kind of natural development to which the noble Lord referred. I was immediately howled down by all the environmental interests: they said that I was proposing to cover the green belt in concrete. That was complete nonsense, although the matter is of course sensitive.

However, I am sure that I was right and it is wrong to draw a line that follows the existing houses all the way around a village and to state that everything outside it is the green belt, subject to all the extra restrictions. That is nonsense and I hope that the Government will recognise, in continuing to administer green belt policy, that natural development should be allowed. My chief official used to say that the man who gets the last house at the end of the road at the edge of the green belt becomes the secretary of the local conservation society.

The Government share the concerns of the noble Lords, Lord Cobbold and Lord Reay, that communities should be able to evolve over time for precisely the reasons also set out by the noble Lord, Lord Jenkin. However, we are in no doubt that the existing controls set out in PPG2 already provide robust protection to the green belt and local flexibility to enable proportionate development in villages. PPG2 places a presumption against inappropriate development in the green belt, which has played, and will continue to play, a crucial role in preventing urban sprawl and encroachment on the countryside.

However, PPG2 does not preclude all development in the green belt and specifically recognises the need for some development in villages. I would draw the Committee’s attention to the policy—

They may say that, but the policy, under paragraph 2.11 of PPG2, enables local planning authorities, through their development plans, to set out policies allowing infill development if such development would not have an adverse effect on the character of the village concerned. That precisely meets the point made by the noble Lord. Of course, we cannot substitute our judgment for the judgment of local planning authorities in this matter, but PPG2 does provide precisely the flexibility that the noble Lords, Lord Reay, Lord Cobbold and Lord Jenkin, sought. Therefore, existing planning policy guidance meets their concerns.

Furthermore, to help meet the specific needs of local communities for affordable housing, local planning authorities may set out a rural exception site policy in their development plan. Such a policy enables the authority to release small sites which would otherwise not be released for housing, within and adjoining existing small rural communities in the green belt, to provide affordable housing to meet local needs in perpetuity. So the person who buys the last house in the village and becomes secretary of the local conservation society might be in for a rude shock.

I thank the Minister for that reply, but I know what is in the box of existing villages in PPG2—it is very out of date; this issue needs to be restated and the Bill is an ideal opportunity for that.

I apologise to the noble Lord, Lord Cobbold, for forgetting that he had an amendment in this group. It is a significant group and the Minister has dealt with it as best he can. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 362 to 368 not moved.]

Schedule 5 agreed to.

Clause 117 [Exercise of powers in relation to legislation]:

[Amendments Nos. 369 to 371 not moved.]

Clause 117 agreed to.

Clause 118 [Purpose for which compulsory acquisition may be authorised]:

[Amendment No. 371A not moved.]

Clause 118 agreed to.

Clause 119 agreed to.

Clause 120 [Guidance about authorisation of compulsory acquisition]:

[Amendment No. 372 not moved.]

Clause 120 agreed to.

Clause 121 [Application of compulsory acquisition procedure provisions]:

373: Clause 121, page 62, line 29, at end insert—

“(aa) section 10 (compensation for injurious affection);”

On Question, amendment agreed to.

Clause 121, as amended, agreed to.

Clause 122 agreed to.

Clause 123 [Statutory undertakers' land]:

[Amendment No. 374 not moved.]

Clause 123 agreed to.

Clause 124 [Local authority land and statutory undertakers' land: general]:

374A: Clause 124, page 64, line 34, at end insert—

“( ) An order granting development consent may include provision authorising an electric line to be kept installed above ground only if the decision-maker is satisfied that no person will be exposed to any risk to their health arising from exposure to electric and magnetic fields with a frequency of between 30 to 300 Hertz.”

The noble Lord said: I do not think that this amendment, on the hazards of exposure to magnetic fields, has been debated. As everything that can be said about the matter has been said, I do not intend to move the amendment. However, I am grateful for the Minister’s assurances that she will keep an eye on what is going on.

[Amendment No. 374A not moved.]

375: Clause 124, page 64, line 40, leave out “an application for an” and insert “the application for the”

The noble Lord said: I shall speak also to Amendment No. 376 and reply to the other amendments in this group tabled by the noble Baroness, Lady Hamwee, and the noble Lord, Lord Greaves. With the leave of the Committee, I shall first speak briefly to my amendments and then reply to the others after the noble Lord, Lord Greaves, has spoken to them. It may be as well if I reply to him rather than seek to pre-empt what he has to say.

Amendments Nos. 375 and 376 are technical drafting amendments. Clauses 124 and 126 deal with applications for development consent orders which would involve compulsory acquisition of land or rights over land owned by local authorities or statutory undertakers or by the National Trust. In both cases we want the relevant local authority or statutory undertaker or the National Trust to be able to make representations against the relevant application. However, the current wording of the clause allows for representations about any application. These amendments remove confusion about which application is being referred to. I beg to move.

My noble friend Lady Hamwee and I tabled Amendments Nos. 379 and 382 and have given notice of our intention to oppose the Question that Clauses 127 and 128 should stand part. Most of this is about commons. Some of us remember fondly the passage of the Commons Act 2006 through this House. It seems that ever since then we have had one Bill or another each Session in which the issue of commons bubbles up. I welcome the noble Lord, Lord Adonis, to the commons corner and to the technicalities of what is often seen as a side issue, though it is quite important.

Amendments Nos. 379 and 382 were originally tabled as holding amendments so that we had something on these clauses in the Marshalled List. Amendment No. 382 is about rights of way. My purpose—it may well be a technical issue that can be answered afterwards in writing—is to find out what difference this clause and the Bill will make to the procedures on non-vehicular rights of way as regards extinguishment, diversion and so on. How will this work under the new system compared with how it works under compulsory purchase orders at the moment? I am not talking about normal procedures but about compulsory purchase orders under existing legislation. How will this change it, if at all?

The rest of the points refer to commons. Clause 126 concerns compulsory purchase orders for existing commons or for replacement land where an existing common is to be compulsorily purchased and used for something else. Clause 127 is a very similar provision about the compulsory purchase of rights over commons. Of course, the ownership of a common and the people who have commoners’ rights and other rights on the common are two separate and different things. I want to probe the relationship between the two and the changes from the provisions in the Commons Act 2006 and in previous commons legislation—Section 9 of the Acquisition of Land Act 1981 and, most recently, the Housing and Regeneration Act 2008. Your Lordships' House last discussed commons during passage of the latter legislation.

There are three broad issues. The first is how Clauses 126 and 127 vary, if at all, from the existing provisions in Section 9 of the Acquisition of Land Act 1981. I have had a good look at this legislation and can find only one variation, though there may be others; it concerns the Secretary of State’s decision on whether to order a public inquiry into a proposal to compulsorily purchase a common. Section 9 of the Act requires the Secretary of State to consider any representations made before deciding whether to have a public inquiry. That provision seems to have been missed out of this Bill. I would like to know whether that is so, and, if so, why it is. It is a small point, but it is a safeguard.

The then Housing and Regeneration Bill had very similar provisions on the compulsory purchase of commons—in that case, by the Homes and Communities Agency, which may be the other major national organisation that the Government are setting up with new planning powers. Why are there differences between the way in which the Housing and Regeneration Act, particularly in Section 9 and Schedule 2, deals with the compulsory purchase of commons and the way in which it is being done in this legislation?

The Housing and Regeneration Act provisions seem easier to read, simpler and more elegant. Perhaps we have had two lots of parliamentary draftsmen inventing the wheel together and coming up with different shaped wheels. It is not clear to me why, in two Bills that have gone through Parliament so closely together and everyone accepts are very closely linked in how development, regeneration and planning powers are to be used, we have two different ways of setting out the proposals.

There is a second broad issue which we also raised when discussing the Housing and Regeneration Act, when the Government came up with a satisfactory solution as the legislation went through your Lordships' House. We have to tackle the same issue here—that the provisions for the acquisition of commons by people carrying out development appear to apply only to acquisition by compulsory purchase, not to acquisition by agreement. As I said, the issue was resolved satisfactorily during passage of the Housing and Regeneration Act though it seems to need to be resolved again here. Part 2 of Schedule 2 to the Housing and Regeneration Act contains the provisions included as a result of representations raised here.

One problem is the question of how replacement land or rights—either land or rights over land that the developers already possess—are to be provided if a common is acquired by agreement rather than compulsion. How it should happen if there is a CPO is all set out in the Act: as a condition of that CPO, replacement land or replacement rights must be there. If the land is acquired by agreement, they do not have to be. That is the fundamental issue that needs sorting out.

If land has been developed that has not gone through the proper procedure of registration and replacement land being provided, that land may remain as a common and people who are occupying that land for whatever purpose may find that those common rights still exist and have not been removed. There does not seem to be a procedure in the Bill for adequately removing them.

The third broad issue is concern whether, if a developer acquires land by CPO, the existing safeguards and protections for commons will remain, or whether a developer simply owns a common. If a common forms part of an area of land with development consent and has not gone through the procedure to deregister as a common, do the existing safeguards and protections for that common in the Commons Acts remain?

In a sense, this is a pale shadow of the debate that took place on Clauses 116 and 117. Clause 116 covered what may be included in the order granting development consent by the IPC. Schedule 5, with which my noble friend dealt, listed lots of things that can happen. In the case of commons, can the provision in Clause 116 and Schedule 5 sweep away all the protections for that land under the Commons Acts—for example, the protections that exist under Part 3 of the Commons Act 2006, which prohibits works on commons without consent and sets out the procedure for getting that consent? Having listened to that debate, I suspect that the answer is: yes it can and yes it may. If that is the case and that is how it is going to work, that sweeps away protection for commons that has existed since the Law of Property Act 1925. If it is possible to carry out development on a common without providing alternative common land or alternative rights on land that may be owned otherwise, that is a serious setback to the protection of commons in this country.

I apologise to the Committee for detaining it on what might seem detailed and technical matters—because commons are detailed and technical matters—but they are important. Only two years ago, in the Commons Act, Parliament forcefully and vigorously established a new regime on commons and clearly stated that commons had to continue to be protected. It would be unfortunate if the Bill were to sweep away some of those protections.

I look forward to hearing what the Minister says. He may not have the technical detailed information there to reply to everything that I have raised; if not, I look forward to correspondence, and perhaps discussion, before Report.

As the noble Lord said, restrictions are already in statute to prevent the compulsory acquisition of certain types of land. In the case of common land, open spaces or allotments, which are specifically raised by the amendments, the Acquisition of Land Act 1981 already specifies that such land—above a de minimis threshold—can be compulsorily acquired only through special parliamentary procedure, unless the promoter proposes replacement land which the Secretary of State certifies as being equally advantageous to the users.

Amendment No. 379 requires some additional wording to be added to that test. I assure the noble Lord that all the evidence suggests that the test already works well at present. Clause 127(6) already requires the Secretary of State to notify interested persons before issuing a certificate and to invite representations. That allows interested persons to comment specifically on how advantageous the proposed replacement land would be to them. When assessing whether the replacement land is “no less advantageous”, one relevant consideration will be the location of the land. The further away the replacement land is from the common land in question, the less advantageous it is likely to be. The meaning of “no less advantageous” therefore already allows consideration of the location of the proposed replacement land.

Amendment No. 381 probes the test of whether replacement land will be “adequate” to compensate commoners and the public when a right over common land, open space or an allotment is compulsorily acquired. Again, in the clause we have replicated the existing test from the Acquisition of Land Act 1981, which has worked well and is commonly understood by practitioners.

Amendment No. 382 refers to cases where a development consent order extinguishes a public right of way. Clause 132 replicates the provisions of Sections 251 and 258 of the Town and Country Planning Act 1990, which provide that that can be done only if the decision-maker is satisfied that an alternative right of way has been or will be provided, or that an alternative right of way is not needed.

The noble Lord asks for assurance that this would mean an alternative right of way that is no less advantageous to the existing users of that right of way. We do not disagree with his general point—we would expect that the IPC would ensure that any alternative right of way would provide that, based on the evidence submitted to it and the contents of the NPS. However, his specific suggested wording could lead to confusion, as it would be difficult for any diversion to a public right of way to be “no less advantageous” than the original one. We prefer to leave it to the IPC to decide on individual cases in the light of the evidence submitted to it and the guidance given in the NPS on the Government’s policy on rights of way.

The noble Lord also raised the issue of transfer of common land by agreement. We do not think that this will be especially relevant to the Bill. We expect that where a promoter of an NSIP wants to acquire common land, whether by agreement or otherwise, it would be deregistered as commons. There are already powers in paragraph 2 of Part 1 of Schedule 5 for the IPC to make provision for the suspension or extinguishment of or interference with rights over land. Where a promoter applies for the compulsory acquisition of common land, we expect the deregistration of commons to be an automatic part of the development consent order. Likewise, where the promoter has already acquired common land by agreement, we expect it to apply for the deregistration of commons as part of the application for a development consent order.

The noble Lord also made a number of points about the Housing and Regeneration Act.

To return to the point about deregistration, where land is acquired by compulsory purchase, the Bill makes provision for replacement common land and replacement common rights. Where land is either owned already or acquired by agreement, there is no provision for replacement land or replacement rights. That lack of provision is an omission in the Bill. It was an omission in the Housing and Regeneration Bill, but the Government put it right in that Bill.

I will look at the issue further and return to the noble Lord. I will also return to him on his points about the Housing and Regeneration Act. I confess that I am not briefed on those specific points. He is a great deal more knowledgeable about them than I am, and I wish to be equally knowledgeable before I reply to him.

On Question, amendment agreed to.

Clause 124, as amended, agreed to.

Clause 125 agreed to.

Clause 126 [National Trust land]:

376: Clause 126, page 65, line 41, leave out “an application for an” and insert “the application for the”

On Question, amendment agreed to.

Clause 126, as amended, agreed to.

[Amendment No. 377 not moved.]

Clause 127 [Commons, open spaces etc: compulsory acquisition of land]:

[Amendments Nos. 378 and 379 not moved.]

Clause 127 agreed to.

Clause 128 [Commons, open spaces etc: compulsory acquisition of rights over land]:

[Amendments Nos. 380 and 381 not moved.]

Clause 128 agreed to.

Clauses 129 to 131 agreed to.

Clause 132 [Public rights of way]:

[Amendments Nos. 382 and 383 not moved.]

Clause 132 agreed to.

Clauses 133 to 137 agreed to.

Clause 138 [Diversion of watercourses]:

[Amendment No. 384 not moved.]

Clause 138 agreed to.

Clause 139 [Highways]:

[Amendment No. 385 not moved.]

Clause 139 agreed to.

Clause 140 [Harbours]:

[Amendments Nos. 386 and 387 not moved.]

Clause 140 agreed to.

Clause 141 agreed to.

Clause 142 [Development of Green Belt land]:

[Amendments Nos. 388 and 389 not moved.]

Clause 142 agreed to.

Clauses 143 to 145 agreed to.

389A: After Clause 145, insert the following new Clause—

“Liability under existing regimes

An order granting development consent may not include provision the effect of which is to exclude or modify the application of—(a) any provision of the Nuclear Installations Act 1965;(b) section 28 of, and Schedule 2 to, the Reservoirs Act 1975 (liability for damage and injury due to escape of water from a reservoir constructed after 1930);(c) section 209 of the Water Industry Act 1991 (civil liability of water undertakers for escapes of water from pipes); (d) section 48A of the Water Resources Act 1991 (civil remedies for loss or damage due to water abstraction).”

389B: After Clause 145, insert the following new Clause—

“Compensation in case where no right to claim in nuisance

(1) This section applies if, by virtue of section (Nuisance: statutory authority) or an order granting development consent, there is a defence of statutory authority in civil or criminal proceedings for nuisance in respect of any authorised works.

(2) “Authorised works” are—

(a) development for which consent is granted by an order granting development consent;(b) anything else authorised by an order granting development consent. (3) A person by whom or on whose behalf any authorised works are carried out must pay compensation to any person whose land is injuriously affected by the carrying out of the works.

(4) A dispute as to whether compensation under subsection (3) is payable, or as to the amount of the compensation, must be referred to the Lands Tribunal.

(5) Subsection (2) of section 10 of the Compulsory Purchase Act 1965 (limitation on compensation) applies to subsection (3) of this section as it applies to that section.

(6) Any rule or principle applied to the construction of section 10 of that Act must be applied to the construction of subsection (3) of this section (with any necessary modifications).

(7) Part 1 of the Land Compensation Act 1973 (compensation for depreciation of land value by physical factors caused by use of public works) applies in relation to authorised works as if—

(a) references in that Part to any public works were to any authorised works;(b) references in that Part to the responsible authority were to the person for whose benefit the order granting development consent has effect for the time being;(c) sections 1(6) and 17 were omitted.(8) An order granting development consent may not include provision the effect of which is to remove or modify the application of any of subsections (1) to (7).”

On Question, amendments agreed to.

Clause 146 agreed to.

Schedule 6 [Changes to, and revocation of, orders granting development consent]:

[Amendment No. 390 not moved.]

391: Schedule 6, page 165, line 5, at end insert—

“This is subject to sub-paragraphs (8A) to (8C).

(8A) If the development consent order was required to be contained in a statutory instrument, the power conferred by sub-paragraph (1) may be exercised only by order contained in a statutory instrument.

(8B) If the instrument containing the order is made by the Commission, the Statutory Instruments Act 1946 applies in relation to the instrument as if it had been made by a Minister of the Crown.

(8C) As soon as practicable after the instrument is made, the appropriate authority must deposit a copy of it in the office of the Clerk of the Parliaments.”

392: Schedule 6, page 165, line 12, at end insert “, or, if the change to the order is required to be made by order contained in a statutory instrument, the date specified in the order making the change”

393: Schedule 6, page 167, line 3, at end insert—

“(7) If a development consent order was required to be contained in a statutory instrument, an order changing or revoking the development consent order made in the exercise of the power conferred by paragraph 3(1) must also be contained in a statutory instrument.

(8) If the instrument containing the order is made by the Commission, the Statutory Instruments Act 1946 applies in relation to the instrument as if it had been made by a Minister of the Crown.

(9) As soon as practicable after the instrument is made, the appropriate authority must deposit a copy of it in the office of the Clerk of the Parliaments.”

On Question, amendments agreed to.

Schedule 6, as amended, agreed to.

Clauses 147 and 148 agreed to.

Clause 149 [Benefit of development consent order]:

394: Clause 149, page 78, line 17, leave out subsection (4)

On Question, amendment agreed to.

Clause 149, as amended, agreed to.

Clause 150 agreed to.

394A: After Clause 150, insert the following new Clause—

“Nuisance: statutory authority

(1) This subsection confers statutory authority for—

(a) carrying out development for which consent is granted by an order granting development consent;(b) doing anything else authorised by an order granting development consent.(2) Statutory authority under subsection (1) is conferred only for the purpose of providing a defence in civil or criminal proceedings for nuisance.

(3) Subsections (1) and (2) are subject to any contrary provision made in any particular case by an order granting development consent.”

On Question, amendment agreed to.

Clause 151 [Legal challenges relating to nuisance etc.]:

[Amendment No. 394B not moved.]

Clause 151 negatived.

Clause 152 agreed to.

Clause 153 [Development without development consent]:

[Amendment No. 395 not moved.]

Clause 153 agreed to.

Clause 154 [Breach of terms of order granting development consent]:

396: Clause 154, page 79, line 16, after “of” insert “or not fully in accordance with”

The noble Baroness said: Amendment No. 396 related to a short point that turned into two short points after an exchange with the Minister this morning. It takes us to Clause 154 in Part 8 on enforcement, and proposes that it would be an offence if, without reasonable excuse, a person carried out a development that was,

“not fully in accordance with”,

the development consent order. It seeks to probe what happens if the development as constructed is not precisely in accordance with the order. It comes after many years of experience—which I know will be shared around the Committee—of much smaller developments than those with which we are concerned. The departure from planning permission could be, for example, a new house that is a little higher than the plans had indicated. I seek to understand the extent of that.

The Minister asked me whether I was concerned about the project being left unfinished, which is a very good point and I am grateful to her for putting it in my mind. I look forward to hearing the position on that. I beg to move.

Amendments Nos. 397 and 398 concern the right to enter land without a warrant under Clause 156. They were moved in Committee in another place. Clause 156(1) states that there is a right to enter land without a warrant if the,

“local planning authority has reasonable grounds for suspecting that an offence under section 153 or 154 is being, or has been, committed on or in respect of the land”.

Subsection (2) states that the planning authority may authorise the entering of land without any notice. Subsection (3) states that a person may enter a “dwelling-house”, but,

“only if 24 hours’ notice of the intended entry has been given to the occupier of the building”.

Our two amendments would take out subsection (3) and the 24 hours’ notice for entering a “dwelling-house” and would apply it to the entering of any land. The issue does not simply apply to land and houses. There are lots of other types of buildings, such as factories, warehouses and offices, in between. The 24 hours’ notice should apply before one enters any land.

Before the Summer Recess, there was a debate on the types and numbers of rights of entry by government bodies—I recall something like 600 types. For my part, last year, my farm land was inspected about five times by various government bodies. Each time, I was notified of an inspection. Luckily, I ticked all the boxes. But my point is that it was much appreciated that they gave me 24 hours’ notice. If local planning authorities want to enter land or property, it would be good a thing for them to give 24 hours’ notice.

That brings me to a number of other points. Our amendments concern proportionality in respect of rights of entry. The Bill allows entry without a warrant into a dwelling only if 24 hours’ notice has been given. That is not a lengthy period, especially if the occupier is away. Clause 158 deals with compensation if damage is caused to land or chattels. Presumably, a local authority is allowed to break and enter, which seems to be rather a sledgehammer to crack a nut in most instances.

There is a safety net under Clause 158(2), which states:

“A person commits an offence if the person wilfully obstructs a person acting in the exercise of a relevant right of entry”.

One has to question whether the entering of dwelling houses is compatible with Article 8 of the European Convention on Human Rights; that is, the,

“right to respect for family and private life”.

That is certainly debateable.

Would it be disproportionately onerous for the authorities to obtain a warrant in advance for entering houses? After all, Clause 157, “Right to enter under warrant”, refers to the,

“reasonable grounds for suspecting that an offence under section 153 or 154 is being, or has been, committed”.

That is the very thing that Clause 156 deals with.

In Committee in another place, the Minister said:

“The clause is about enforcement ... It gives the local planning authority the element of surprise”.—[Official Report, Commons Public Bill Committee, 29/1/08; col. 513.]

I might be splitting hairs, but the right to entry is not about enforcement per se, it is about obtaining entry to ascertain the facts. Has an offence been committed as regards the planning permission or not? It is a fact-finding operation. Enforcement will take place only once it has been ascertained that an offence has been committed, if it has.

Why does the local planning authority need an element of surprise? A development without planning permission or in breach of planning permission under Clauses 153 and 154 is not easy to disguise. I shall half-answer that myself. There may be instances where an element of surprise is necessary to obtain drawings and documents before they are removed. But, presumably, a warrant under Clause 157 will be used for that.

Amendment No. 396A, in my name, would make sure that there is an effective time limit for the new criminal offences introduced by the Bill. Clause 155 places a four-year time limit on bringing charges for committing the new offences of carrying out development without consent or breaching the terms of an order which was granted consent. However, the clause also states that a person could be charged with one of the offences after the expiry of that four-year limit if the local planning authority has applied for an injunction under Clause 164 or if the local planning authority has served an information notice on a person under Clause 160. It is that aspect which gives rise to the problem to which I would like to draw attention.

The information notice would require the person to provide information about any operations they are undertaking to enable the authority to determine whether one of the new criminal offences has been committed. Whether or not the information process is proceeding, the threat of a criminal offence will continue to hang over that person. A local authority which, for example, is strongly opposed to the development of a major infrastructure project could use these powers to pursue the developer or operator over a considerably longer period than the statutory four-year limit. It must be quite rare in a major development not to be able to find some infringement at some time during the development project.

The result is that the four-year time limit could mean that a person is served with an information notice or an injunction shortly before the expiry of the four-year time limit and could be faced with all the uncertainty of the threat of legal proceedings under one of the new criminal proceedings, which could continue indefinitely. There is no limit on the length of time that that could hang over the developer’s head. The continuing uncertainty facing a person in that position cannot have been intended. Perhaps this is a consequence of the drafting of the Bill which may not have been anticipated.

In my view, the enforcement provisions in respect of development consent orders should more closely follow the enforcement provision which is already set out in Section 171B of the 1990 Act. Ministers ought to look at this point before we reach the Report stage. I hope that I will get a sympathetic reply.

Three specific issues have been raised in relation to the new enforcement regime established under Part 8. I shall speak, first, to Amendment No. 396 tabled by the noble Baroness, Lady Hamwee, and the noble Lord, Lord Greaves, which seeks to amend Clause 154. Before I do that, however, it may be helpful if I provide a little information on the nature of IPC consents and the two offences provided for in Clauses 153 and 154.

An order granting development consent will provide all the necessary consents needed to construct a nationally significant infrastructure project. As well as giving consent for the main development, the IPC can also make provision for ancillary matters, such as an electricity line to connect a generating station to the grid, or grant consent for associated development connected to the project, such as an access road. As part of this, the IPC can place conditions on the promoter, such as requirements that might mitigate the negative impacts of a project. To ensure that development on a nationally significant infrastructure project does not take place before an order is granted, Clause 153 makes the carrying out of such works without consent an automatic offence. We believe, as I am sure do noble Lords, that it is important that such projects should come about only after a promoter has made full disclosure of his plans and that these have been tested for their compatibility with national policy and with legal and environmental requirements. To ensure that promoters work within the terms of an order, Clause 154 makes it an offence to breach those terms without reasonable excuse.

The noble Baroness, Lady Hamwee, asked whether under Clause 154 a development built not in precise accordance with the terms of an order granting development consent would constitute an offence. I think I can reassure her on this matter, and on her other point about what would happen if a project is only half-built. Essentially, it is a matter of proportionality. Part 8 establishes an enforcement regime that allows a relevant local authority, where it suspects an offence under Clauses 153 or 154, to take steps to determine whether there is substance to that suspicion. This might be under Clause 160, where the local authority can require information by serving an “information notice”, or by authorising a person under Clauses 156 or 157 to enter the land in question, both issues that are subject to the other amendments tabled by Members on the Benches opposite.

Where a breach of the terms of an order granting development consent is identified, we would expect the local authority to discuss this with the promoter and agree what steps should be taken to remedy the breach. Local authorities are not unused to enforcement and we are confident that when investigating possible offences under the Bill, they will continue to use good common sense.

Where a promoter fails to take steps requested by a local authority, or perhaps if the breach is serious enough, the relevant local authority might decide to issue formal legal proceedings against the promoter under Clause 154. In either case, the local authority would need to have sufficient evidence that an offence had been committed before bringing a prosecution. In addition, Clause 154 provides that a person commits an offence only where they have failed to comply with an order granting development consent without “reasonable excuse”. The offence is not one of strict liability and a prosecuting authority would be mindful of this before commencing proceedings. As a consequence, I would not expect a promoter to be found guilty of an offence for a minor or accidental breach except where they had failed to rectify that breach. I would also expect promoters of such large-scale projects to be fully reputable, and no doubt they will take the terms of an order extremely seriously.

Amendment No. 396 might also have an unintended consequence, as adding the words “fully in accordance with” could be interpreted to mean that partial completion of a project would amount to an offence under Clause 154. My noble friend Lady Andrews raised this matter with the noble Baroness earlier today, and she thought it would be a good idea to explain for the record the position for half-completed projects, perhaps because of a lack of finance. I am happy to oblige.

I should stress that these are major undertakings that require considerable planning and funding. I would certainly expect the IPC to consider whether the necessary finance was in place before proceeding with an order to grant development consent. I would be surprised if any promoter decided to abandon a project after investing the amount of capital that would be required. In the unlikely event that a promoter could not complete a project, we would expect an agreement to be reached with the relevant local authority by agreeing, for example, to construct only part of the project, such as one section of a proposed new railway line, or to construct a smaller gas storage facility. This might need to be supplemented by an application to the IPC under the provisions in Schedule 6 to modify the original order granting development consent, and possibly by a separate consent from the local planning authority where the resulting development did not meet the thresholds for an NSIP.

I turn now to Amendment No. 396A tabled by the noble Lords, Lord Jenkin and Lord Dixon-Smith, and the noble Earl, Lord Cathcart. The amendment seeks to remove one of the mechanisms by which a local authority can extend the period in which enforcement can be brought against a promoter. As I have just set out, local authorities have powers to require information under Clause 160 and to investigate land under Clauses 156 and 157 where they suspect that an offence may have been committed under Clauses 153 or 154. A local authority can also apply to the High Court or county court for an injunction under Clause 164 where it feels that activity is taking place which constitutes an offence under the aforementioned clauses. These powers provide local authorities with the tools necessary to investigate and restrain any unauthorised development.

In general, we believe that four years provides the necessary time to exercise proper oversight of any development authorised by the Infrastructure Planning Commission. However, this period sets out when legal proceedings can be brought against a promoter. As such, we need to cater for when an offence, or potential offence, has been identified towards the end of this period. In such a scenario, it would not be proportionate or cost-effective to require a local authority to bring immediate legal proceedings. For instance, a local authority might have insufficient evidence collected at that point, in which case it would be left with the difficult choice of bringing expensive legal proceedings or losing the ability to do so altogether. Such a cut-off point would also remove any chance of discussions between the local authority and the promoter, and would make recourse to the courts an option of first rather than last resort. It is for this reason that we have provided local authorities with the ability to extend this initial four-year period by either seeking an injunction or serving an information notice.

Noble Lords are seeking to remove the latter of these, and I would urge them to reconsider. What would a local authority do if prohibited development has already taken place and is noticed only towards the end of the initial four-year period? Without the ability to collect further evidence via an information notice, and thus provide additional time to investigate, the local authority would again be left with the same difficult choice we are seeking to avoid; that is, whether to bring expensive legal proceedings either for an injunction or for an offence under Clause 153 or 154 without all the evidence, or lose the ability to prosecute altogether.

Can the noble Lord respond to the important point that if the period is extended, it is without limit? There will be no time limit on when proceedings can be brought. I cannot believe that that is what is intended. I apologise for coming back to an earlier point, but I did ask that Ministers might look at this again and see whether that really is what they intend.

The issue of time limits was debated in the other place, and following concerns raised by Robert Neill MP, the Government agreed that it would be not be right for local authorities to be able continually to extend the period in which legal proceedings could be brought and so keep the threat of enforcement hanging over a promoter. The Bill has been amended to preclude this, but the noble Lord makes an important point that we need to be really clear: the period must not act as a hangover. Without making any promises, it would be helpful if he would allow me to re-examine the issue.

Finally, I turn to Amendments Nos. 397 and 398 in the names of the noble Lord, Lord Dixon-Smith, and the noble Earl, Lord Cathcart. Clause 156 gives a relevant local planning authority the power to authorise a person to enter land if it has reasonable grounds to suspect an offence is being, or has been, committed under Clauses 153 or 154. The amendments would restrict the ability of local authorities to investigate potential offences. Where a local planning authority wishes to enter land without a warrant, it would need to give 24 hours’ notice in all cases. At the moment, Clause 156(3) ensures that 24 hours’ notice of entry must be given to the occupier only when the property to be entered is a building used as a dwelling house. In most cases it will be dealing with big sites with considerable amounts of construction activity taking place. We normally would not expect dwelling houses to be present on such land.

A relevant local planning authority will need to have a reasonable suspicion that a nationally significant infrastructure project is being developed on the site before ever contemplating using these rights of entry. In these circumstances, it is inappropriate for local planning authorities to be required to give 24 hours’ notice before undertaking a site visit. Worse still, the effect of Amendments Nos. 397 and 398 may, in practice, be to frustrate the entire enforcement system. Giving 24 hours’ notice would enable a landowner who had commenced an offence under Clauses 153 and 154 to remove evidence of the offence.

As regards entry to a person’s private home, authorisation can be given to enter a dwelling house only where it is on land being used for the construction of a nationally significant infrastructure project and only after 24 hours’ notice has been given. It would not relate to land off the main construction site; for example, the home of a developer or engineer in order to seize documents or plans. Ministers believe that the clause as it stands strikes the right balance between the need to respect the rights of individuals to quiet enjoyment of their property and the need to ensure that the regulatory regime for major infrastructure is properly enforced.

I hope noble Lords have found the information that I have provided useful and that I have managed to answer all the points made. I hope that the noble Baroness will be content to withdraw the amendment.

I am grateful to the Minister for his explanation and for having spotted a point which I was able to ask about and which he was able to answer. He said that no promoter would enter into a large-scale development unless the finance was absolutely secure. The events of the past few weeks have probably taught us all not to be too naïve about these matters.

The Minister commented that local authorities are used to enforcement. Indeed they are, but the availability of resources for enforcement is a serious issue. The London Borough of Hillingdon has four enforcement officers—I may be wrong by one or two— and Heathrow Airport within its boundaries. There have been matters at Heathrow that it has not been able to pursue because of lack of resources. So we should not be too dependent on local authorities being able to pick up the pieces. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 154 agreed to.

Clause 155 [Time limits]:

[Amendment No. 396A not moved.]

Clause 155 agreed to.

Clause 156 [Rights to enter without warrant]:

[Amendments Nos. 397 and 398 not moved.]

Clause 156 agreed to.

Clauses 157 to 166 agreed to.

[Amendment No. 399 not moved.]

Clause 167 [Planning obligations]:

399A: Clause 167, page 85, line 8, at end insert—

“( ) in subsection (1) omit the words “interested in land in the area of a local planning authority”;”

The noble Lord said: The amendment concerns the question of who can enter into Section 106 agreements under the 1990 Act and suggests that the words,

“interested in land in the area of a local planning authority”,

should be removed. The noble Baroness has been kind enough to send me a note to make it quite clear that if that were done there would be considerable disadvantages. However, it does not address the problem that has been drawn to my attention. Perhaps I may spend a moment on that.

An example of what is envisaged concerns the promoter of a major infrastructure project who wants to enter into a planning obligation—that is, a Section 106 obligation—and the kind of difficulties that he might face in the absence of the wider powers intended. If there is a power under the consent to acquire land by means of compulsory purchase—for example, for the site of a power station—then, as the Bill stands, a promoter could enter into an obligation only after he had exercised that compulsory power. That would be rather difficult. I give a different example. A promoter proposes to install an overhead power cable or an underground pipeline. In such a situation, he would have no interest in the land at the time of the application for development consent; he would have an interest in the land only after the development consent had been obtained and he had exercised his compulsory purchase power. It would be only then that a Section 106 agreement could be considered.

That does not seem right. Where there is an intention compulsorily to purchase land for a development, there should be some provision which would enable the application to be accompanied or followed by negotiations for a Section 106 agreement in advance of the developer gaining possession of the land. That is the point at which the amendment is aimed. I would not dream of pressing it in view of the horrible consequences that would follow, as was spelled out in the note that the Minister attached to her letter, but there is a problem that needs to be addressed. I beg to move.

As the noble Lord, Lord Jenkin, has raised the spectre of the amendment, I shall put on the record some of the arguments we addressed in the note that we sent to him.

The amendment would allow a person to enter into a planning obligation agreement with a local planning authority on an area of land in which it has no interest. The noble Lord alluded to the fact that it fails to address the purpose of Section 106 agreements, which is to create covenants that bind land. Planning obligations are created to run with land so that they can be enforced against both the original covenanter and his or her successors in title. Allowing someone without an interest in land to restrict development or the use of land, or require payments to be made to an authority through a Section 106 agreement, creates an unfair expectation on the land for those who have an interest in it, whether current or subsequent. That was the key reason why we had a problem with the amendment.

If the intention of the amendment is to allow some kind of obligation to be created, a contract agreement can be made between the applicant and the local planning authority without bringing Section 106 into it. The noble Lord asked me specifically about compulsory purchase, but I am not briefed on that in the context of the amendment. I have a note that says that if a Section 106 agreement is not attached to particular land, there is no difference between it and a normal contract governed by normal contract law. Therefore, the promoter must hold land before a Section 106 agreement can be concluded. That seems to meet the point in relation to compulsory purchase. With the noble Lord’s agreement, I should like to read what he has said and see whether there is any way to make that even clearer so that he can go back to the people who were concerned about this issue and address the point properly.

I am most grateful to the Minister. It might be helpful if the staff of her department were to get in touch with the Law Society, which was the organisation that suggested this to me. It is often better to discuss issues with the people who are primarily concerned with them.

I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 167 agreed to.

Clause 168 [Blighted land: England and Wales]:

[Amendments Nos. 400 and 401 not moved.]

Clause 168 agreed to.

Clause 169 [Blighted land: Scotland]:

402: Clause 169, page 88, line 2, after “construction” insert “(other than by a gas transporter)”

403: Clause 169, page 88, line 19, after “construction” insert “(other than by a gas transporter)”

404: Clause 169, page 89, line 40, after “(c. 58);” insert—

““gas transporter” has the same meaning as in Part 1 of the Gas Act 1986 (see section 7(1) of that Act);”

On Question, amendments agreed to.

Clause 169, as amended, agreed to.

Clause 170 agreed to.

405: After Clause 170, insert the following new Clause—

“Grants for advice and assistance: Scotland

(1) The Secretary of State may make grants for the purpose of assisting any person to provide advice and assistance in connection with any matter which is related to the application of this Act to Scotland.

(2) The Secretary of State may, as respects any such grant, provide that it is to be subject to such terms and conditions as the Secretary of State thinks appropriate.”

The noble Lord said: I shall be brief. Amendments Nos. 405 and 458 give the Secretary of State the power to make grants to assist with the provision of advice and assistance in connection with any matter that is related to the application of the Planning Bill to Scotland. The new clause inserted is equivalent to Clause 170 of the Bill, which relates to the giving of grants for advice and assistance in relation to projects in England and Wales. Clause 170 was included in the Bill so that grants could be given to bodies such as Planning Aid in connection with nationally significant infrastructure projects. There would be concerns about fairness if people in some parts of the UK had access to advice and assistance in connection with an application for development consent or a proposed national policy statement but people in other parts of the UK who were similarly affected did not. Amendments Nos. 405 and 458 resolve that problem.

Amendment No. 456 relates to Schedule 12. The amendment modifies Clause 163(3) to (5) in so far as those subsections apply to Scotland. I beg to move.

I am grateful to see the Government’s consideration that the Scottish planning authorities might need some assistance, although as I have followed the Bill—I must apologise that my stamina was not up to that of those who were here when these matters were considered around midnight last Tuesday—it has seemed to me that much of what might happen in Scotland is actually excluded in the way the Government have drawn it up. Obviously it is nice to have an umbrella clause to protect any assistance that might need to be given, but it struck me as strange under Clause 13, where the Bill allows for any legal challenge, that Scotland is excluded. I know the law is different in Scotland, but a great many of the issues that are included in the national infrastructure are for non-devolved issues. At some points Scotland will be involved, and I am grateful that it is being taken care of in this case.

I, too, was fascinated by this clause, and I would like a little more clarification from the Minister. Subsection (1) of the new clause in Amendment No. 405 says:

“may make grants for the purpose of assisting any person”.

Am I “any person” if I live in Scotland, and what sort of grant am I entitled to?

The grant is most likely to go to something like Planning Aid for Scotland. The information is to give people an opportunity to find out information about the project where they normally would not have any. This will allow groups that are excluded and traditionally would not have access to that information—say, minority groups, Travellers, people on low incomes or unemployed people—to have free advice, but certainly would not benefit anyone who was commercially involved.

On Question, amendment agreed to.

[Amendment No. 406 not moved.]

Clause 171 [Delegation of functions of regional planning bodies]:

407: Clause 171, page 91, line 3, at end insert—

“( ) Notwithstanding any arrangements made under subsection (1), the RPB retains the final authority and responsibility for the preparation of all regional planning documents.”

The noble Lord said: In moving this amendment I believe that I am reflecting significant concern that exists out there in the real communities about delegating any of the functions of the regional planning body wholly to the regional development agencies. The clause as it stands seeks to give RPBs the ability to make arrangements to delegate to the RDAs the exercise of any of their functions. I shall focus on the specific function of the production of the regional spatial strategy, a key regional planning document. Other noble Lords have identified other functions that give them similar cause for concern.

RDAs, unlike the RPBs, lack democratic accountability. Their decision-making boards are composed only of appointed members, and this delegation could well herald a move to a fundamentally less broadly based inclusive approach to planning, something that is likely to foster cynicism about our commitment to the spirit of democratic accountability at all.

RDAs have as their most significant task the promotion of economic growth within their regions. I endorse that priority without hesitation. However, as currently constituted, RPBs take into account social and environmental factors, especially through their social, economic and environmental partner arrangements. That is vital, because it is the RPB that brings to bear on planning and other regional spatial issues the necessary wider democratic input as well as environmental and social factors, all of which are crucial to reaching balanced decisions that have wide support, especially in the communities affected by those decisions.

The RPB also gives clear democratic representation to local authorities and to the voluntary and community sectors, significantly reducing the risk that the entire process will be disproportionately influenced in favour of economic development alone, with those seeking a more balanced approach reflecting environmental factors automatically at a disadvantage.

The clause seems possibly to pre-empt the outcome of the sub-national review of economic development and regeneration that the Government currently have under consideration. While I realise that the Government’s most recent consultation document, Prosperous Places, also proposes that planning functions are transferred to RDAs, many key parts of civil society have strongly opposed that in their responses.

It is perhaps not for this discussion, but it is worth noting that an alternative approach—the creation of regional sustainable development agencies—has been put forward by some of the critics. As proposed, these agencies would have a wider remit, giving proper weight to both environmental and economic issues, as well as incorporating democratically accountable membership.

We must unquestionably have a strong economy, but a strong economy for what? Surely the qualitative dimensions of society are central to sustaining civilisation itself. I do not believe that that is to overstate the case. I suggest that it is not appropriate, therefore, that the Planning Bill should seek to build upon a draft proposal which has met with such significant opposition and may subsequently change. I take this opportunity to say, yet again, how much I appreciate the very full way in which my noble friend tries to clarify in correspondence points that may be at issue. I have noted the reassurance in her letter to me that this clause only enables the delegations of functions. She also points out that the ultimate responsibility remains with the RPB. But my noble friend knows, as I know—and I suspect most noble Lords know—that in reality, all too easily, delegation becomes transfer of powers unless a robust determination that it should not do so is on the face of the Bill.

My noble friend also makes the important point that under existing planning legislation, the RPBs can delegate regional planning functions to local authorities. I have no issue with this, because local authorities are rightly subject to the democratic checks and balances, including objective consideration of social and environmental factors, which do not apply to RDAs. Frankly, I am not reassured by the duty laid on those exercising the regional planning function that they have to do so with the objective of contributing to the achievement of sustainable development. This somewhat nebulous and often misused term might well allow RDAs to regard a healthy economy as the sole indicator of whether development can be regarded as sustainable and still be compliant with the legislation. My amendment is intended to strengthen this part of the Bill—I say again how much I welcome the Bill—by making it absolutely clear, which I consider it is not as the clause is drafted, that the responsibility and accountability remain with the RPB.

Planning is obviously central to the well-being of us all. This surely demands that the maximum number of people and the widest possible cross-section of the community should identify with what is being done. I beg to move.

The noble Lord, Lord Judd, has pretty much said it all, but I go further in seeking to take the clause out of the Bill altogether. It was explained in the Commons, but not why it is there. I am aware that the shelf life of the regional assemblies may be limited; if that is the case, it would be better to have the constitutional structure of changes for the full package together. I assume that this is not the package because the RPBs’ delegation is discretionary. I do not believe that the RDAs are the right bodies to take on planning functions, sponsored, I assume, by BERR. I would not say that their regeneration focus is necessarily inappropriate, but I do not think it is complete. Most importantly, they are appointed bodies and not representative of their communities.

At this stage, I am seeking an explanation regarding what I now remember was called by the Bill team “transitional provisions” on a list of groupings. I should have been suspicious of that when I saw it.

As a subsidiary question, what would the position be in London where there are different governmental arrangements, and in the London Development Agency, where the Mayor of London stands in the position of the Secretary of State vis-à-vis all the other development agencies?

I support both proposals, but probably more so the Question whether the clause should stand part. I have a problem with the clause from both ends, as it were. Who are the RPBs—or, rather, who will they be? In the debate in the other place, the Minister repeatedly referred to regional assemblies, seemingly without realising that the Government had already decided to abolish them. So my first question is: how will the RPBs be constituted in the future? I expect that there are others here who know the answer. I ask that not to call into question or doubt the ability of local government to co-ordinate itself on a regional basis. More and more work is being done on a cross-border basis on a whole range of work. What worries me is that unless the RPBs are properly constituted bodies, which remain in being in spite of the fact that they might have delegated their powers, how or when might a looser arrangement be able to regrasp these powers?

That brings me to the other side of the equation. I do not believe, as others have stated, that RDAs are suitable to take on this role. They are economically focused; they have a big regeneration budget and can drive an economic agenda but they are not democratic. All too often they seem to think that they know best. They have a reputation in many areas of not listening very hard. They can drive an agenda without any democratic recourse and are not usually very popular organisations. They are, as the noble Lord, Lord Judd, said, focused on economic regeneration, often at the expense of the social and environment factors—what the noble Lord loosely referred to as a quality of life agenda.

I do not think that this delegation is a good idea. Incidentally, the few RDA board members to whom I have spoken are not particularly keen on it either. They do not think that they are really equipped to take on these responsibilities. If the RPBs were to delegate powers to the RDAs on a temporary basis, how could the RPBs, or whatever they may be in the future, be certain of being able to wrest those powers back again?

I am grateful to my noble friend Lord Judd for enabling us to have this debate. This is an important clause and he has raised very important issues. As usual, I agree with much of what he has said; I do not agree with his amendment but I agree with the issues that he has raised, which are served by the Bill and by the clause. Let me explain why and take on board the questions that have been raised by the noble Baroness, Lady Hamwee, and the noble Lord, Lord Cameron.

The concern that has been expressed, particularly by my noble friend Lord Judd, is that given their remit to promote economic development, regional development agencies will naturally tend to focus on economic issues rather than promote sustainable development and housing supply. The motive behind trying to bring together our intention to replace regional economic and regional spatial strategies with a single regional strategy was precisely to make sure that we have in the future sufficient agencies in our regions to take advantage of every economic opportunity and, in the present economic conditions, to be sure that they are as robust and as focused on doing what they can as is possible.

We have debated this in the context of the Bill as a whole and we cannot have a strong economy without having a sustainable economy. Regional development agencies have concentrated on economic issues in the past—that has been their raison d’être—but they will not be able to develop the single strategy with its purpose as we want it unless they address issues of sustainable development and housing supply.

As to how planning responsibilities might be organised in the future, the regional development agency, if it were to be the planning agency, would have to operate the full range of planning legislation. That means sustainable planning legislation, which is at the very heart of our planning arrangements. PPS1, as I have quoted many times in this Chamber, has the responsibility for sustainable development. It is therefore tempting, but quite problematic, to pose these ideas as oppositional. The regional development agencies have to address issues of sustainability and, if they become responsible for planning in some shape or form, they will have to take on issues to do with sustainable development through the planning apparatus.

Does the Minister accept that if the change to which she refers takes place, the point of the noble Lord, Lord Cameron, is well made; that is, that present regional boards simply are not equipped for this role, and will need quite different expertise and experience? What steps do the Government propose to take to ensure that?

Perhaps I may develop my argument, because the second part was essentially about the extension of democracy that we want to see and why that is compatible with what we are proposing. I rather jumped into my argument back to front; I should start with the story and then try to answer the questions.

I remind noble Lords that in the sub-national review published last year we announced our intention, subject to consultation, to replace regional economic and regional spatial strategies with a single regional strategy and to transfer the regional planning functions of the assemblies—which of course are voluntary bodies; there was no question of our abolishing them—to regional development agencies following appropriate legislation.

We have consulted on those proposals. There is widespread support for the principle of a single regional strategy, which would obviously make sense. However, there have been concerns about how best to secure this. Throughout this process, our intention has been to create a foundation for the future which strengthens partnership working between regional agencies and local authorities. We are carefully considering our response to the consultation to ensure that we obtain the best mechanism for taking the regional strategy forward. I say to my noble friend Lord Judd that there is no loss of democracy here. We are extremely keen to ensure that local authorities play the fullest possible part and that the balance of concerns meets both economic and social imperatives, which is what planning is about.

Clause 171 was drafted simply to enable the regional assembly to delegate regional planning functions to the regional development agency if—but only if—both parties agree. The clause is effective, therefore, only where the regional assembly chooses to use it and the RDA agrees. This provision is important because we simply want to facilitate closer working between regional assemblies and RDAs. I have reassured my noble friend in writing but shall do so again now. Clause 171 only enables delegation. It does not bring a transfer of function. As he will see, under subsection (7) the regional planning board can take back its delegated powers at any time. The powers will not be permanently transferred but facilitate something that we think is extremely important.

Will the Minister give us an absolute assurance that the Government will not provide any incentives or bribes in the form of money or greater powers to those who transfer compared with those who do not?

The Minister mentioned regional assemblies five or six times. As I understand it, they will cease to exist next year. If they have delegated their powers, who will then get them back?

Perhaps I may go into a bit of detail. The powers of regional assemblies will be transferred in 2010. As I say, they are not statutory bodies; they can choose to have a life of their own and take on other functions. In the north-west, for example, the regional assembly has been formally abolished and 4NW has been established in its place with a leaders’ forum for the north-west area. The Secretary of State has designated 4NW as the regional planning body for the north-west. It has received grant from CLG on the basis that it undertakes the activities of the previous regional assembly. In Yorkshire and Humberside, the regional assembly recently resolved to wind itself up with effect from the end of March 2009 and to replace itself with a leaders’ forum. Discussions on the details of that are now being undertaken by the Government Office for Yorkshire and the Humber and regional partners. Each region can come to its own democratic decision on how best to be configured in the future. The leaders’ forum is an idea that has been put forward and is an option. The important thing is to ensure that local authorities decide for themselves how best to exercise their partnership, which may take different forms.

In the mean time, it is certainly the Government’s intention to continue to fund the functions undertaken by the regional planning body to ensure, for example, that the RSS reviews are completed and that work on preparation for the single regional strategy is commenced. It underlines that we are essentially trying to achieve or facilitate through other configurations better democratic partnership in place of regional assemblies, ensuring that the local authority is smaller but has a driving power in that regional arrangement. As noble Lords will know, once the consultation is completed we shall in due course bring forward legislation to bring to life the SNR.

The clause leaves essentially unchanged the ultimate responsibility for regional planning of regional assemblies whose membership is drawn predominantly from elected local government. I hope that I have reassured my noble friend that it is not a transfer of powers but delegation, and that we are alive to the importance of ensuring that democratic control continues.

Do I understand that the Minister will not answer my question? I do not blame her if she does not.

I am so sorry; I had no intention of not answering the noble Lord’s question. We are not in the business of bribing anybody. The benefits that local government will see in becoming engaged in new regional planning arrangements are so self-evident that we do not need to create any artificial incentives. It will happen because it will be seen as the effective way forward, particularly when one considers the way that we need to look at our sub-regions as well as our regions.

The noble Baroness, Lady Hamwee, asked me why we are doing this. Clause 171 not only achieves what she wants but improves on the current options available to regional assemblies. We made it clear in the sub-national review consultation document, Prosperous Places, that we wanted to facilitate closer working. The clause exists because, under existing legislation, there are limits on what RDAs can do in relation to planning. There are a number of situations where local authorities, regional assemblies and the RDAs want to work more closely together. The problem is that the RDAs cannot currently employ staff to engage in functions assigned to regional assemblies. They cannot support them and cannot facilitate them even where there is a desire on the part of both agencies to work more closely together. That is one reason for the clause. We know that some regions are interested in pursuing staff exchanges or joint appointments, for example. They cannot do that; they do not have an agency that allows them to do that. So we want them to be able to take some positive options, which is why the delegation powers are there.

We want, too, to avoid the risk that regional assemblies and RDAs devise solutions that might be deemed legally unsound because they exceed the existing limit on what the RDAs do. Clause 171 simply makes it possible for closer working where it is sought; it means that they can get on with the job of sharing skills. The question asked by the noble Lord, Lord Cameron, is very important—that is, who will be on the regional planning boards? I cannot answer that directly because we have yet to see how some of these new arrangements will work. Clearly, there will have to be a balance of democratic partners and skills and experience as well. To reiterate what I said more incoherently earlier, any work done by RDAs on planning must be done within the range of planning law obligations, and so on—and, therefore, the imperatives of sustainability as well.

I hope that my noble friend is a bit comforted by that. The measure is timely and something that will enable us to plan more confidently for the future, if we can establish some better democratic relationships between the RDAs and the existing regional assemblies and their successor bodies.

I thank my noble friend for her characteristically full reply. I know that she is wrestling with this problem very seriously. I also thank all those who have participated in an interesting little debate. I hope that all the points will be taken seriously.

My noble friend emphasised the importance of sustainability. Here is the rub. Sustainability does not necessarily give priority to the qualitative dimensions of society. The point about the regional assemblies—and, presumably, what will be characteristic about the RPBs—is that they are an endeavour to bring together a meaningful cross-section of those who have a wider concept of what society is about and, as I put it repeatedly, why we need a strong economy to support society.

My noble friend said a lot of things that obviously point in the right direction. I liked what she said about the significance of local councils. I shall go away and look very carefully at her remarks. I certainly hope that we can find some way of getting more explicitly on the record at this stage the Government’s commitment to the qualitative dimensions—environment, heritage, amenities and the rest. I will take advantage of the offer that she kindly made in her letter to me that I should meet with officials and work out some way in which this could be convincingly done, other than by seeking to amend the Bill at Report. But I hope that she will take it in the best possible spirit that I shall need to be convinced; otherwise, I regard this as so important that I shall want to come back to it at Report.

I hope that the Committee will forgive my saying that my formative young years in politics were in the post-war period. What struck me, and has always remained with me during subsequent years, is that we had a desperate task to rebuild the economy—but central in the counsels and deliberations of our leaders was the need for quality in that society. Hence, we had the Town and Country Planning Act and hence the national parks, with which I am associated, and the rest. We are now faced with a dire economic situation, which it will need all our resolve to overcome. I just wish that we could have it explicitly and clearly in the message to the nation that this is in order to have a worthwhile society. Therefore, in everything that we are doing about planning, those wider considerations should be as explicit and given as much priority as they were in the post-war years.

I thank my noble friend for what she has said, and I will take her arguments very seriously as I read them again in Hansard. I may well ask to have a meeting with her officials. I reserve the right to come back to this matter at Report. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 171 agreed to.

Clause 172 [Local development documents]:

[Amendments Nos. 408 to 409C not moved.]

Clause 172 agreed to.

Clause 173 [Development plan documents: climate change policies]:

[Amendment No. 409D had been withdrawn from the Marshalled List.]

Clause 173 agreed to.

[Amendments Nos. 410 and 411 not moved.]

Clauses 174 to 176 agreed to.

412: After Clause 176, insert the following new Clauses—

“Publicity for planning applicationsPublicity for applications affecting conservation areas and setting of listed buildings

(1) The Planning (Listed Buildings and Conservation Areas) Act 1990 (c. 9) is amended in accordance with subsections (2) and (3).

(2) For subsections (1) to (8) of section 67 (publicity for applications affecting setting of listed buildings) substitute—

“(1) This section applies where an application for planning permission for any development of land is made to a local planning authority and the authority thinks that the development would affect the setting of a listed building or the character or appearance of a conservation area.

(2) The local planning authority shall—

(a) for not less than seven days display on or near the land a notice indicating the nature of the development in question and naming a place within the locality where a copy of the application, and of all plans and other documents submitted with it, will be open to inspection by the public at all reasonable hours during the period of 21 days beginning with the date on which the notice was first displayed, and(b) where the authority maintains a website, publish the notice on its website.(3) In a case where the land is situated in England, the local planning authority shall send a copy of the notice to the Commission.”

(3) Section 73 (publicity for applications affecting conservation areas) is repealed.

(4) The Planning (Listed Buildings and Conservation Areas) Regulations 1990 (S.I. 1990/1519) are amended in accordance with subsections (5) and (6).

(5) Paragraphs (2), (3), (5), (6) and (7) of regulation 5A are revoked.

(6) Paragraph (4) is amended as follows—

(a) the words “Subject to paragraph (7)” are omitted;(b) the words “both of the following periods have elapsed, namely” are omitted;(c) for the words from “in paragraph (2)” to the end of paragraph (b) there is substituted “in section 67(2) of the Act has elapsed”.”

The noble Baroness said: This is a long and fairly disparate group. I shall speak to my amendments and make one comment on the Minister’s.

Amendments Nos. 412 and 413 took much longer in the drafting than I need to take in the explanation. These are matters that were brought to me by the Local Government Association, dealing with what it hopes can be a more efficient and economical way of publicising applications. Currently, applications must be publicised in local newspapers. The ODPM’s review in 2004 encouraged local planning authorities to use council websites and proposed that the regulations be amended to allow for newspaper or online advertisements. In 2007, the Lifting the Burdens Task Force also recommended removing outmoded prescriptive requirements, such as newspaper notices. The Minister’s department undertook to consider that as part of the review of the general development procedure order. However, not all the requirements for publicising planning applications are contained in that order. Hence my amendments—which, unusually, I accept would, by using the mechanism of primary legislation, amend some secondary legislation. It is really a matter of using the Bill as a legislative opportunity. In doing so, it will save local authorities quite a lot of money. I understand that a recent survey of 70 district councils found that, in the last financial year, publicity for planning applications cost each council on average £26,000. That is quite a lot of money for a district authority.

I shall speak to my other amendments in this group but, taking it chronologically, I should point out that the next amendments in the group were tabled by Ministers. The noble Lord, Lord Cameron, has tabled an amendment to government Amendment No. 417 that I support. My antennae twitched very rapidly at the number of times the word “prescribed” is used in government Amendments Nos. 416 and 417. Although the Minister’s amendments may be happier provisions than the original clauses, I hope that she can justify this amount of prescription.

I am grateful to the Minister for her letter on Amendments Nos. 425, 427 and 428. She said that my first amendment would require that consideration be given to any other change of any degree of significance which might have been made, and that the clause itself is intended to stop the cumulative impact of a number of minor changes to the original permission leading to a material change occurring. In response to that I say: exactly. I think that we want to do the same thing. I am not convinced that my amendment is unhelpful.

On Amendments Nos. 427 and 428 and whether an interest in land is required for subsequent changes to permission, the Minister wrote that for very minor changes it seems right that the ability to request a change is limited to someone with an interest in its implementation and that a local planning authority should not be able to use this provision to impose a minor change. I agree with both comments. However, it seems to me that at the stage when this is relevant the applicant might not still have an interest in land. I wonder whether the Government are being overcautious about this.

Amendment No. 432A covers a point that was brought to my attention towards the end of last week. I have passed the paperwork on to the Minister’s office. Although I understand that her officials may not have had an opportunity to consider this fully, I shall speak to the amendment in order, I hope, to enable her to give some assurances about the Government taking the point seriously.

The point was brought to me by the London Fire and Emergency Planning Authority, the successor to the London Fire and Civil Defence Authority. The earlier authority was able, as a precepting authority, to develop land for operational purposes, free from the risk that the proposed use could be prevented by enforcement of restrictive covenants. Although it may well have been an error, the LFEPA, which is not a precepting authority, lost that advantage. The importance of the issue to the LFEPA is that the authority has a programme of reviewing fire station provision, particularly through a major PFI initiative. Through my previous membership of the London Assembly, I am very well aware of the importance of that. The absence of an ability to override covenants means that the site reports prepared for some properties which identify covenants mean that they are not realistic prospects. The authority cannot risk investing in a site that could be the subject of an injunction. I am seeking to put the LFEPA back into line with the other fire and rescue services and, incidentally, with smaller organisations such as the Inner Temple. If the Inner Temple can have this benefit then London’s fire authority should, too. I beg to move.

I shall speak very briefly to Amendment No. 413ZA and deal also with Amendments Nos. 413B and 432B, which are in the next group, since they all concern the identical issue of discrimination against Gypsies and Travellers. My noble friend’s intention to omit Clause 177, which I welcome most warmly, does away with the need for the first two amendments. Regarding the third amendment, she has kindly written to me to explain safeguards to avoid discrimination, which will be attached to the criteria for determining the procedure provided for by Clause 190. I am extremely grateful for that too, so I shall not be moving any of these three amendments.

I rise to speak to my Amendment No. 417A, mentioned by the noble Baroness, Lady Hamwee. I thank the Minister for tabling her two clarifying amendments to Clause 183. As I represent rural interests, I hope that she will not mind if I probe a bit more.

These generally permitted development order rights are important to small farmers, particularly in the western half of the country where I come from. On the whole, these permitted rights—and this is probably a huge generalisation—do not affect larger farmers quite so much as their desired development mostly comes above the size limits of the buildings. Most of them are not so much engaged in small-scale part-time diversification projects, but for smaller farmers these rights can make or break their business.

I add that the Government have, rightly, greatly encouraged, and been very helpful to, diversification by farmers and landowners, possibly reducing their reliance on government subsidies and other government support. Suffice it to say that many farmers—and it is not only the farmers because some rural tourist businesses are also affected—rely on the use of these permitted development rights to carry out modest scale developments that are essential to the running of their business. We are talking about the temporary use of land, such as the odd day’s game or clay pigeon shoot, holding a motocross day or a car boot sale, allowing two or three caravans to park in a spare field, or erecting very small agricultural or forestry buildings.

Local planning authorities can issue Article 4 directions to bring specific developments within planning control in specific areas. Currently, they require the Secretary of State’s approval and there is a liability to pay compensation if the permitted right is withdrawn. These safeguards are entirely appropriate. It is interesting to note that the Department for Communities and Local Government has recently undertaken an internal review of permitted development rights to see what scope there is to relax them even further. Perhaps I have misread Clause 183 in its amended form, but it would seem to me that it is going slightly in the opposite direction. On the other hand, reading between the lines of the debate in the other place, in response to the amendment of Mr David Curry MP to this clause, I got the impression that it was not the Minister’s intention to undermine permitted development rights for small family farms or for agriculture and forestry in general. I seek confirmation of this fact.

Amendment No. 429A introduces a new clause in relation to the use class orders, which neatly follows the speech of the noble Lord, Lord Cameron, as it is concerned primarily with rural areas. I hope that Members on all sides of the House will share my concern that they are not ignored in this very important Bill.

There is a welcome emphasis, which I think is shared by all sides of the House, for the way the Government are seeking more local determination and community involvement. It is important to establish that we all share enthusiasm for the revival of localism and greater responsibility for locally elected councillors. Most of the Bill has been concerned with major development projects and policies, but my proposed new clause is specifically aimed at the more immediate concern of residents of particular areas, of their communities and their elected representatives. They must surely be given renewed confidence that they can discuss and determine the appropriate planning policies for their own areas.

My proposed new clause may well help many communities to do just that. However, as the Minister may be aware, my especial concern is for a problem peculiar and critical to areas of Cornwall, Devon, Somerset, Dorset and, indeed, the Lake District, Wales and other parts of the United Kingdom. In those remote, scattered communities, which are very popular for second homes, there is a huge problem in need of urgent attention relating directly to the planning system.

There is no problem with second homes in some parts of the country, notably in London. However, it is clearly true in some communities—not least those in north Cornwall that I represented in the other place—that second homes reach a point where they are simply so excessive in proportion to the natural housing stock, when they so dominate a town or village, that they present social, economic and planning problems. I remember one particular parish council area reaching well over 30 per cent second homes. When that parish council—Crantock, near Newquay in Cornwall—surveyed other councils in other parts of Cornwall, it found some also in excess of 30 per cent. At that point, the school is no longer viable; the post office and shop close; services such as bus services collapse; the police cover is reduced; and the health centre is removed. There is a “ghost village” in winter. This is a direct responsibility of the planning authority, because there is a major drain on local authority services.

The noble Lord, Lord Jenkin, earlier referred to nimbys: the “Not in my back yard” people. They are often the most recent arrival to a village. This is writ large in those communities where the nimby representatives have a second home. The last thing that they want is any development for additional social or affordable housing. It is a huge problem, and getting worse.

I emphasise to the Minister that this is a proper responsibility for the planning authority. Unless the Government come forward with some specific new powers, or new ways in which a planning authority can obtain that power, there will be a continuing escalation of this problem. There is no power at the moment. The full-time residence and the second home are in the same use class, so no consent is required to transfer from one to the other—despite planning conditions in many parts of the country insisting that a particular development is only for holiday use. It is therefore perfectly possible to do this, it is just that the Government have not been prepared to follow that precedent.

As I am sure the Minister and others would agree, the last thing that we would want is a blanket restriction on second homes. We want those communities faced with the problem on such a scale that it reduces social cohesion to be prepared and able to take some responsibility for finding a solution. Hence the use of the use class order in certain circumstances. We do not want “The man in Whitehall knows best”; not least, the Minister will be glad to hear, “The woman in Whitehall knows best”. We want locally elected representatives to be enabled to initiate locally the application of the use class order only when and where that may be necessary. It may be a very restricted area, but it is extremely important in those areas.

There are two well researched reports—still on the desk of either the Prime Minister or the Secretary of State—on rural housing, one prepared by Elinor Goodman, the other by Matthew Taylor, MP. They have laid great stress on the importance of doing something to provide affordable housing for rural communities. So far, the Government have failed to respond. I hope that the Minister may be able to do that this evening.

Some people seem to think that the current housing crisis will alleviate this. Not so. While those seeking substantial investment opportunities away from the roller-coaster stock market may well put more money into investing in second homes in the expectation that scarcity will give them additional value over the long-term, they will of course continue to outbid local people by paying generous prices for second homes that will be quite out of the reach of those on modest incomes.

In north Cornwall, when I represented communities there in the other place, we had the biggest affordability gap in the whole of the United Kingdom. The average local incomes in the area were way out of the average local house prices. I recall the day after the devastating floods of August 2004 in north Cornwall, when Boscastle was an appalling mess. We were very lucky not to have any loss of life. I took the Deputy Prime Minister there, and he asked about the long-term situation for coastal villages like Boscastle. I explained to him that young coastguards, RNLI crews, police and emergency personnel—the very people he had been congratulating on saving lives and saving that community—simply cannot afford to live anywhere near the coast in areas like Cornwall. That is true of many other parts of the United Kingdom. So much of the housing stock there has been bought up by those from outside wishing to establish a second home.

I hope that there will be sympathy for my position from the Conservative Front Bench. With their newfound interest in these areas of the rural economy, I am sure that the Conservatives will recognise what a major problem this is. I hope that no Members of the Committee will be inhibited by being personally interested as having a second home from expressing a view on this extremely important issue. Principally, however, I hope that the Minister will be prepared to indicate this evening what, precisely, the Government are prepared to do for what is now becoming a devastating problem for a small number of communities. Unless we are prepared to address it as a Parliament, it will get a great deal worse.

I look forward to the Minister’s response a great deal. She has been kind enough to give me a slight indication of what it might be in the form of a letter. I hope that she will forgive me if I quote from it.

“There is a lot that local planning authorities can do already to influence land uses in sensitive areas by using powers already conferred by the Use Classes order, backed by suitable policies in their local plans”.

There is no such power for second homes. We need that power, and we need it now.

I support the noble Lord, Lord Cameron of Dillington, in particular. I ask the Minister, when she comes—

As I have five amendments in this group, I thought I might have a chance to speak to them before my noble friend started picking up points. I might accidentally say something of interest to him; although I do not think that I will, because—

The explanation for that is simple: the noble Baroness has taken the trouble to write to me on those amendments. I am grateful for that letter. Unfortunately, I received it only this morning. I have read it and it looks as though it has answered the points that we raised in those amendments. I give the Minister warning that I need to study it properly, but I do not propose to go any further this afternoon.

I have every sympathy with what the noble Lord, Lord Tyler, is saying. I recognise that he is discussing a very real difficulty. I have been trying quite hard to make a connection between that and national infrastructure, but I may be rather less sympathetic than the Minister.

I was delighted to give way to my noble friend Lord Dixon-Smith. I was not certain whether he was going to get up before or after the Minister, so I went for the gap. I did not have the benefit of reading the letter that my noble friend has received from the Minister.

I support what the noble Lord, Lord Cameron of Dillington, said. It is extremely important to the farming industry to have consistency the treatment of farmers by local authorities. My concern about the Minister’s Amendments Nos. 415 to 417 and 419 is that we could get a varying regime throughout the country. I hope that the Government’s eagerness to tackle the possible residential problem in Westminster under permitted development does not lead by accident to the closing down of businesses in the country. If farmers are prevented using their existing permitted development rights, there could be serious problems, particularly, as the noble Lord, Lord Cameron, said, for smaller farmers.

However, it is more complicated than that because farms do not follow planning boundaries. Part of a farm could be targeted by the local authority under the provisions of the Government’s amendment, and the other part of the farm, in another planning authority, would not be subject to the same restrictions. I hope that the Minister will give a firm commitment that what she is outlining in her amendments will still permit agriculture, as we know it today, to continue with its general permitted development rights. If my memory serves me right, they go back to the 1947 Act which, once upon a time, I knew quite well, but which I have forgotten about.

This has been an interesting debate because so many amendments raise significant problems in different ways. I am grateful to the noble Lord, Lord Dixon-Smith, for not speaking to his amendment. I shall summarise what I said so that we can have it on the record. I have a very long speaking note, but I am conscious of the time and that there is business waiting. I shall try not to speak so fast that I am incoherent. I shall take it steady.

Amendments Nos. 412 and 413 insert new clauses that allow local planning authorities to advertise planning applications on the internet rather than in local newspapers. I understand the problem of accessibility and the case about cost. There is merit here, and I understand why the LGA is concerned. It may be that readership levels of local newspapers are not as high as they once were. However, they still serve a useful purpose, and I do not think we should exclude people because they are not online. My local newspaper has a tremendous following. This is an important point, and we will consider the publicity requirements for planning applications generally as part of the review and simplification of the Town and Country Planning (General Development Procedure) Order 1995. We are taking on board the issues raised by the noble Baroness. If we need to make a change, there is no need to do so in primary legislation. We could do it in secondary legislation. I hope the LGA will be satisfied with that.

Amendments Nos. 415, 416, 417 and 419 are government amendments, and the noble Lord, Lord Cameron, tabled Amendment No. 417A. I was grateful that the noble Lord, Lord Tyler, raised local determination. Much of this is about how we get more local determination through the local planning system and the GPDO. Amendments Nos. 415 to 417 and 419 make changes to the compensation provision contained in Clause 183, which establishes the principle that there should be a better balance between extended permitted development rights and the need, under certain circumstances, to restrict rights without incurring liability for compensation. That would depend on people having sufficient warning of changes that might affect them.

Our amendments are made largely in response to representations that have been made as the Bill progressed through both Houses. I am sure that noble Lords know that the GPDO grants a national general planning permission for various types of normally small scale and uncontentious development and gives people the freedom to carry out certain changes to their homes without having to go through a planning application process and cuts down the work of planning authorities. The changes we have introduced after 20 years follow from our sense that as part of moving towards a more relaxed and proportionate approach—for example, in relation to household development—we also need a better balance between restricting rights in planning permission and the right to compensation. We have done that through the relaxation of the household development consents system and so on.

Clause 183 now allows restrictive changes, whether through government amendment of legislation or through local withdrawal of a right—for example, under the old article 4 direction—to be made to permitted development rights without compensation being payable on condition that at least 12 months’ notice is given of the change. However, I know that there is a strong case to be made in certain sectors, particularly in agriculture. I am grateful to the noble Lord, Lord Cameron, and the noble Earl, Lord Caithness, who pointed out what we mean by those effects; for example, small temporary buildings such as accommodation for seasonal workers. The noble Lord, Lord Cameron, brought it alive for me in a way that I had not been quite aware of because I was looking at the problem more abstractly. We are aware of those concerns, and Amendments Nos. 417 and 419 restrict this provision to types of development that will be specified in regulations. In consequence, with the exception of household development, on which we consulted in 2007, further public consultation will be required before regulations affecting other sectors can be made.

The noble Earl, Lord Caithness, made a point about partial or contradictory schemes. If we do it like this, we will have scheme that will not only allow the Government to listen and to consider carefully the potential impact on a sector before making further regulations, but we will be able consistently to address the needs of that sector. Given the wide range of permitted development rights, it is right that fuller consideration is given to how a change related to permitted development might impact on the sector. I hope that in that way we have met the intention of an amendment tabled by the honourable Member for Skipton and Ripon in another place, and I hope we have satisfied the anxieties of noble Lords. I should make it clear that these amendments apply not only to an article 4 direction—that is, to local withdrawal of permitted development rights—but to any possible future restrictions imposed nationally by the Government via amendment or revocation of permitted development rights.

Amendments Nos. 415 and 417 relate to the time span for making a planning application following an article 4 direction. Under Section 108 of the 1990 Act, where permitted development is withdrawn by government amendment or revocation, the potential liability to compensation applies only when the application for planning permission is submitted and turned down within 12 months of that change being made. Local authorities are treated differently, and we believe that is to their disadvantage. In the case of withdrawal or amendment of permitted development rights by local authorities, there is no requirement that applications for planning permission have to be submitted within 12 months of a change. For local authorities, there is indefinite liability for compensation. We feel that that is unfair and unreasonable and could be unnecessarily restrictive on local authority flexibility. Amendment No. 416 aims to put in place a mechanism that might level the playing field in future. It ensures that where permitted development rights are withdrawn by local government with less than 12 months’ notice, compensation will be payable only when the subsequent application for planning permission is made within 12 months. That brings it into line with changes made by central government. Amendment No. 415 is a technical and consequential amendment.

I want to make it clear that this change to the compensation period when an article 4 direction is made will apply only to the types of development specified through regulations. That will allow consideration of the potential impact on a sector in the same way that we have agreed is appropriate for the main change to the compensation provision that I have already spoken to in relation to Amendments Nos. 417 and 419.

In summary, these amendments put in place common-sense safeguards to ensure that the greater flexibility for planning authorities provided by Amendment No. 183 is not at the cost of those who would benefit from permitted development rights.

I am probably very naïve about parliamentary speak, but so that I am totally clear, did the Minister say, in connection with my amendment, that, subject to public consultation, it is not currently the Government’s intention that these permitted development rights should be withdrawn?

That is correct in relation to the classes that we were talking about. Consultation will take place on the different sectors that might be affected and those consultations will then be reflected in regulations specific to those sectors. Nobody is nodding from the Box, but I think I am right. The regulations themselves will be consulted on. It will be the normal process. I think we will secure precisely those protections that we want to see for the sectors that have been identified.

Amendments Nos. 421, 422, 423, 424, 426, 425, 427, 428 and 426A all concern minor changes to planning permissions relating to land where changes are not material. I shall pick my way through my speaking notes. Clause 184 enables a local planning authority to make a minor change to a planning permission relating to land in its area where it is satisfied that the change is not material. By “not material” we simply mean a change that would not be significant in planning terms. We are making this change because when someone seeks to implement their permission they often find that minor changes to their original proposal are necessary. One could hold up an entire office block by trying to establish that the entrance to an office ought to be slightly to the left or right. In the past such minor changes were dealt with locally with planning authorities making a judgment about whether they were so minor that they could be allowed without any formal procedure, and that worked well. The problem has been that recent case law has thrown doubt on whether that approach is acceptable. There has been widespread uncertainty for planning authorities and developers and this has become a serious burden. All we seek to do in this clause is to reintroduce a little practical flexibility. A similar provision has existed in Scotland for around a quarter of a century and has worked very well. However, I understand that noble Lords seek reassurance on this. Amendments Nos. 421, 422, 423, 424 and 426, about which I wrote to the noble Lord, question how this will work in practice. Amendment No. 421 is unnecessary because Schedule 1 achieves the purpose of that amendment. Amendments Nos. 422, 423 and 424, which seek to limit a local authority’s scope to exercise this power in relation to a material change, would not make much difference to what we are trying to do. If I put this into context, the concept of whether something is material is a longstanding one. Local planning authorities are well used to deciding what it means. They are responsible for the day-to-day administration of the planning system and it is fundamental that they exercise that judgment to ensure the system works. Removing the references, as the amendment suggests, would have little practical effect unless we were in a position to set out exactly what a non-material change was. Since it covers practically everything you can think of, we cannot address that in legislation. Moving a window might be material or non-material depending on the window, the dwelling or whether it was in a conservation area. I think that I addressed that in my note.

Amendment No. 426 would remove the ability to make changes that are not material by removing or altering existing conditions or imposing new ones. It would prevent a local planning authority making very minor changes to an existing planning condition. However, if it is accepted that it should be possible to make non-material changes to a planning permission and the planning authority is best placed to decide that, whether material or not, there does not seem much reason to impose a restriction that would prevent a minor change to the planning condition. We are trying to ensure that we have proper flexibility and that local authorities will not suddenly make significant changes to their schemes after planning permission has been given.

Amendment No. 426A in the names of the noble Lords, Lord Jenkin of Roding and Lord Dixon-Smith, and the noble Earl, Lord Cathcart, is similar. It would prevent a condition being imposed. I accept that imposing a condition would in effect amount to a material change having been made. However, there might be occasion when the flexibility to do so would be useful. For example, if a developer asked whether a change could be made to reposition a window, the planning authority might consider that not to be material; for example, if it were obscure glazed to prevent overlooking. Therefore, I think that is covered by process.

Amendments Nos. 425, 427 and 428 were spoken to by the noble Baroness, Lady Hamwee, and would make a slight change to the provision at Section 96A(2) of the 1990 Act. Subsection (2) requires that when determining whether something is not material, a planning authority must consider any other minor change that has already been made to the original permission under this power. As she said, this is intended to stop the cumulative impact of a number of minor changes to the original planning permission leading to a material change occurring. As she also said, removing the words “under this section” from the provision would require consideration to be given to any other change of any degree of significance that might have been made. The other way in which changes might be made is through Section 97 of the 1990 Act. That section is not used frequently, but is exercised to make changes that are significant. However, the significant point here is that the process has important safeguards, including a requirement that the changes are agreed by all parties, including affected third parties. However, we are not concerned with that situation here. This measure is about the sensible use of very minor adjustments to agreed permissions, which will remain substantially the same. Therefore, I do not see much advantage in linking the two measures. Indeed, from these amendments I pick up a concern across the Committee that Clause 184 would somehow undermine how the planning system operates by allowing significant changes to be made against the public interest. However, I believe that the safeguards the clause contains as regards the limits on who can apply for a change and who determines the scale of any permitted change deal with that. The proposal was welcomed by the planning profession, the Royal Town Planning Institute and the Planning Officers Society, and has been in place in Scotland for a quarter of a century.

As regards Amendments Nos. 427 and 428 and a change being made only at the request of someone who has an interest in the land, the noble Baroness asked me specifically whether an applicant might not have an interest in the land and therefore could not use this power. In fact, an applicant for planning permission would be viewed as having an interest in the land under this provision, and therefore would be covered. I think that addresses the main points of those amendments.

I am making progress; I now deal with the amendment in the name of the noble Lord, Lord Tyler, which was not what I expected. I thought that some other case would be made, to which I shall not draw attention. However, I now realise that he was interested in the change in use process with regard to second homes. I wish that I could give him more satisfaction on that, but I cannot. There is real difficulty in introducing a new use class for dwellings used as second homes. He made a wonderful and entirely persuasive speech, but the problem is that the properties used as second homes are usually normal dwelling houses, irrespective of how regularly they are used. It might be very difficult to prove use of a dwelling as a second home. People use second homes for a wide range of interests and purposes and lifestyles are so different that enforcement is likely to be very difficult. As tempting as it might be to see this as an easy solution, it is not. Whether a person purchasing a property already owns another property elsewhere is not a land use planning consideration. To take into account these factors in information that has no relevance to a decision on a planning matter would be ultra vires.

The noble Lord referred to certain reports. Matthew Taylor’s report has recommended that the Government should trial planning rules limiting changes in use of full-time homes to second homes or holiday lets in one of more of the national parks. We are looking at Matthew Taylor’s report in detail and we will publish a response later this year, but we are not convinced that the recommendation for trialling planning rules with the aim of controlling second homes and holiday lets is a workable solution to the wider issue of housing affordability. As the noble Lord knows better than most Members of the Committee, to address rural affordability one needs a wide range of policies which create a synergy and incentive which respect human rights and the real needs of people who are being priced out of those areas where the ratio of affordability to prices is eight or nine to one—as high as it is in central London. We are well aware of that.

I think that the noble Baroness said that she was not moving Amendment No. 430, so I shall move swiftly on. Amendments Nos. 431 and 432 are government amendments that correct an unintentional drafting error that would have given excessively broad powers for the making of tree preservation regulations under the new Section 202G(1) of the 1990 Act that is introduced in Clause 186. The amendment would provide similar provision to that currently in Section 194A of the 1990 Act, and it is consistent with the recommendations of the DPRRC. Amendment No. 432 corrects a minor drafting error in Schedule 8. The tree preservation provisions that we have made in the Bill are excellent, but I am not sorry that we are not debating them.

The noble Baroness kindly gave notice of Amendment No. 432A, which covers the situation faced by the London Fire and Emergency Planning Authority in developing sites that are subject to easements and restricted covenants because they have no access to the provisions of Section 237 of the TCPA. The Government are sympathetic to the problems faced by the FEPA, which I understand languishes in a legislative lacuna. The predecessor was a precepting authority, which fell within the definition of a local authority and therefore had access to the benefits of Section 237.

The FEPA functions, in the main, like a combined fire authority, which is also specifically defined as a local authority. All those definitions are in the definition of local authority in Section 336(1)(a) of the TCPA. It may well be that Amendment No. 432A, by making the FEPA a local authority only for the purposes of Section 237, would create another anomaly. We need to discuss with the FEPA and others whether its status as a local authority should go wider than Section 237. Although that is the trigger for this debate, it is not the only issue that is raised. The amendment raises a number of complex points, which I would like to explore further.

Amendment No. 433 was tabled by the Government in response to concerns expressed by the Delegated Powers and Regulatory Reform Committee about the excessive scope of the powers in the substituted Section 303 of the TCPA 1990 to amend, repeal or revoke other legislation. The amendment restricts that power, so that it can only happen in the appropriate circumstances. Those circumstances are the effect of paying or failing to pay a fee or charge in accordance with the regulations in subsection (5)(f) or making incidental, supplementary, consequential, transitional or transitory provision and savings in subsection (6)(a). We have reflected the committee’s suggestion that we restrict the scope of the power.

I am aware of the speed at which I have gone through this. I hope that I have answered most of the questions raised by the amendments. I would be happy to write to noble Lords if they feel that I have not done so.

I know what I ought to do, but before I do it, I urge the Minister to ensure that the problem for the FEPA is sorted out as soon as possible, if this is the opportunity in which to do so. She will understand the consequences that flow from it not being able to pursue the best PFI deal. It is a much bigger point than it appears from the short amendment. I will do what I ought to do. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 413 not moved.]

Clause 177 [Determination of planning applications by officers]:

[Amendment No. 413ZA not moved.]

I beg to move that the House be resumed. In doing so, I suggest that the Committee stage begin again not before 8.55 pm.

Moved accordingly, and, on Question, Motion agreed to.

House resumed.