My Lords, I beg to move that the Bill be now further considered on Report.
Moved accordingly, and, on Question, Motion agreed to.
121H: After Clause 130, insert the following new Clause—
“Application for development consent on commons, open spaces etc
(1) This section applies if an application for development consent includes a proposed development of any kind on land which is or forms part of a common, fuel or field garden allotment or open spaces.
(2) The provision of the Commons Act 2006 (c. 26) shall apply, together with those of all other existing legislation relating to commons in general and specific commons.
(3) Subsection (4) applies in a case in which—
(a) an application for development consent is made for development on a common, and(b) it is the intention of the owners of the commons to apply for its deregistration and to provide replacement land which they own or intend to acquire by agreement.(4) No consent shall be issued unless the Commission is satisfied that the replacement land is or will be subject to the same rights, trusts and incidents as have applied to the land included in the development consent.”
The noble Lord said: My Lords, Amendment No. 121H brings us to the issue of commons and village and town greens, which are special forms of common land. I am not suggesting that it is a perfect amendment but I hope that it will provide a means by which the Government, in the time left to us on the Bill, can find a way to solve certain problems.
I am concerned about the implications of the Bill for commons. It is only two years since this House and the other place passed the Commons Act 2006 that brought up to date commons legislation, some of which goes back a long way. In particular it brought up to date provisions for the registration, deregistration and protection of commons, and confirmed their special status.
Commons are usually small pieces of land scattered around the country, comprising around 3 per cent of the land area of England, and are special historical relics of the past that nowadays perform important functions not just in terms of the traditional rights of commoners, but for biodiversity, the environment and recreation. The important point about their special status is that it is a legal status provided by the Planning Act 2006 and is outside the planning system. This amendment probes the relationship between commons under the Planning Act which are outside the planning system and commons under this Bill as it will apply to large infrastructure developments which may affect commons. The Commons Act does not prevent development on commons, but it does give extra protection. In particular, Section 38 of the Commons Act 2006 means that for development on commons a separate application must be made to the Secretary of State for Defra unless a compulsory purchase order is made on that common. In that case, other protections apply.
Commons are not only special, historical and valuable—often small—pieces of land scattered around the country, but they have an unusual status in that there are two kinds of rights on those commons. First, there are normal rights of ownership; all commons are owned by somebody, usually by private individuals. Secondly, there are rights of common, which are held by other people. Those, of course, are the commoners. Their rights might be to gather vegetation for fuel or bedding, ancient rights of turbary and pannage, and other such rights. Nowadays, the rights exercised by commoners on commons are mainly rights of grazing. These are rights over the common which would normally be held by the owner of the land, which in the case of commons are held by the commoners.
The Commons Act provides that if a common ceases to be a common by being deregistered, equivalent land has to be provided. This is called replacement land and it must have replacement rights for the group of commoners who have had their rights displaced. All this was confirmed recently by an excellent document, Common Land Consents Policy Guidance, published by Defra in June 2008. In particular, it underlines that unless a compulsory purchase order is made on the common, the development that can be allowed must be quite small-scale and necessary for the common itself. The extra protection also includes developments on the common. The Commons Act consents that have to be made for development on the common include development that would not otherwise need planning permission, such as fencing and ditching. The regime is stricter than the normal planning regime and is in addition to having to apply for planning permission.
I first raised the issues covered by these amendments in Committee. I have had discussions with the Minister and officials since then. I understand the issues far more clearly now than I did then; they are extremely complex. The issues come down, first, to questions about Part 3 of the Commons Act and the Commons Act consents that are required for development on commons, and the extent to which they are swept away by this Bill in the case of commons where development is sought as part of a major infrastructure development. Secondly, there are issues relating to replacement land. Clauses 129 and 130 of the Bill, which derive from the Acquisition of Land Act 1981, deal reasonably with the question of replacement land and commoners’ rights where the development consent issued by IPG includes a compulsory purchase order on a common. The clauses cover that very well. Clause 129 covers the question of replacement land, and Clause 130 covers the replacement rights of commoners.
That still leaves the following questions open. First, does the Planning Bill, notably Clause 118, mean that an application for consent under Part 3 of the Commons Act 2006 is no longer required when there is an application for development consent under the Act? Secondly, if that is so, what is to prevent a situation in which a developer of a common and/or a subsequent occupier of that common finds that inappropriate rights of commons still exist on that development? Thirdly, do Clause 118(3) and Schedule 5 allow a development consent to remove commons rights from a common without the provisions of the Commons Act 2006 having to be used, particularly to provide the replacement land and/or rights? I do not believe that that is the Bill’s intention, because in the case of CPOs it is there but it is not in other cases.
For replacement land where a CPO is not used—because, for example, I may be applying for an application for development consent for a large infrastructure development on common land that I own or where I have the owner’s agreement to develop it and the CPO is therefore not required—there appears to be no provision for replacement land and/or rights provided by Clauses 129 and 130 in the case of a CPO being used. Even if a replacement common is provided voluntarily, it is not clear in the Bill how that would be done. Presumably it would have to be done by a separate application under Section 16 of the Commons Act 2006, which deals with the registration of common land.
These are technical and complex issues, but they are important; they are a byway in the discussion of the Bill because it is about commons and the way they are affected. It would be remiss of this House to let the Bill pass without these questions of common land, as part of applications for development consent, being resolved. I hope that we can agree on amendments to the Bill to deal with those questions, make it clear what the position is and continue to protect the special status of commons.
I repeat that I am not saying that there should never be development of this kind on commons. The important thing is to ensure that, where such development takes place, the normal issues in relation to commons are considered as part of that development and, if necessary, replacement land and commons rights are produced. I beg to move.
My Lords, I shall briefly speak to the amendment moved by my noble friend Lord Greaves. I have spent some 15 years in this building seeking agreement on the improvement and modernisation of the law relating to common land and I have experience, both on Dartmoor and on Bodmin Moor, of dealing with the complex situations that arise from the difficult relationship that there has often been in the past between the owners of common land and the commoners. At the time of the legislation that became the Commons Act 2006 I warmly congratulated this Administration on the initiative they took to resolve some long and deep problems that arose out of the lack of real simplification and careful arbitration within this system. Having congratulated them then, I hope that today we will have absolute assurance that nothing in the Government’s proposals in this Bill could undermine the work done in preparation for that Act.
These commons are of critical importance in many rural communities. They may be peripheral to the main purpose of the Bill, as my noble friend says, but for people in those communities commons legislation is critical. If the Government were perceived somehow to have reneged on that careful negotiation over many years by undermining what happened in that legislation, the breach of faith that could be identified would be very serious and would raise considerable concerns in those communities.
The issue, as my noble friend has said, revolves particularly around replacement land. That is where it will be of most concern to those who are directly affected, whether they be owners or commoners. The replacement of, for example, grazing land in many of the communities that I have had the pleasure of representing in the past will be of considerable importance. After so much negotiation and compromise by some otherwise very sceptical people about the good intentions of that previous legislation, I hope the Minister will be able to reassure us today that there is nothing in the Government’s intentions as incorporated in the Bill that would lead to them being accused of bad faith.
My Lords, I rise to support the amendment. Commons are a vital part of our natural heritage. In the old days, every community used to have one but sadly they are now greatly diminished in both quantity and quality. They still serve a useful role, however, for common rights, notably grazing, and for access and leisure. Even the smallest patch of surviving common can act as a formal or informal village green. In rural communities and, more importantly, urban communities, that little patch of green can be of enormous benefit in raising the quality of life.
I will not repeat the well spotted concerns of the noble Lord, Lord Greaves, but it would be sad if the protection so recently granted by the Commons Act were to be undermined, albeit inadvertently, by this Bill. I hope, therefore, that the Minister will be able to reassure us and resolve our concerns.
My Lords, I say to my noble friend that it is not only on other Benches that this concern exists; it certainly exists on my own part. I know how much good will the Government generated by their recent approach to the importance of commons and their proper administration, and it would indeed be a shame if inadvertently in the context of this Bill that good will was undermined. The commons have immense significance in our social history. They have real significance in terms of the character of our landscape. However much we become energy sufficient and face up to the demands which are necessary to make us energy sufficient, to undermine and destroy the quality of our landscape in doing that would be unforgivable.
As I said at Second Reading, we have learned from the Industrial Revolution how all that was achieved then could have been achieved with greater sensitivity to the character of the land rather than the rape and damage, bit by bit, of everything that is beautiful and socially and historically important within the United Kingdom.
I hope that my noble friend will be able to give a strong, reassuring response to this amendment.
My Lords, I, too, support the noble Lord, Lord Greaves. One of the characteristics of this Bill is that it seems to bump into a huge range of existing legislation, some of which is unfamiliar to most of us. A week ago I thought we had identified all these clashes and put them behind us. Obviously I was wrong and now we have another problem, namely common-land legislation. Like the noble Lords, Lord Greaves and Lord Tyler, and others, it is not long ago that I recall trying to understand the common-land legislation going through this House. I remember interesting passages in Committee in the Moses Room. At that time, it seemed to be pretty obscure stuff and very historical. It has, however, cropped up again.
Be that as it may, it seems that the noble Lord, Lord Greaves, has raised an important point. I am in no position to judge whether his analysis is correct but his arguments seem persuasive. Let there be no doubt about it, the historic common-land rights are important, as so eloquently expressed by the noble Lord, Lord Judd. I will listen with great care, therefore, to what the Minister has to say in reply. If there is any doubt on the issue, I hope she will agree even at this late stage to take it away and come back at Third Reading with an amendment that ensures that these special common-law rights are respected. If not, I will certainly support the noble Lord, Lord Greaves, if he seeks to test the opinion of the House.
My Lords, I add a brief but apposite moral tale. Many of our debates in Committee and on Report have been on the energy needs of the nation, to which this Bill partly applies. In 1982, the Wiltshire Record Society’s annual volume recorded the judicial notebook of a resident magistrate of a hundred in central Wiltshire who tried 500 cases in a five-year period in the 1740s; that is enough to be statistically significant. Much the most frequent rural crime during those five years was the theft of firewood due to the enclosure of common land.
My Lords, we are undoubtedly in complex legal territory here, but I hope that we can all agree that the purpose of the noble Lord, Lord Greaves, in tabling the amendment is sound. Historic common lands ought to be cherished, and ought not lightly to be jeopardised. I very much hope that the Minister will be able to respond in that spirit.
My Lords, I support the amendment in principle but am puzzled about the phrase “open spaces”. When she comes to reply, can the Minister provide the Government’s understanding of the phrase? It has a technical and a wider meaning, and comes up again in the amendment of the noble Lord, Lord Dixon-Smith. There is a confusion with the concept of infill housing, for example, which could be affected by the amendment. I would like some clarification, if possible.
My Lords, it has been a short and invigorating debate. I hope that I can give all the strong assurances that noble Lords across the House have sought on the important issue raised by the noble Lord, Lord Greaves. We had a short debate on this in Committee, and followed it up with an exchange of correspondence. I am glad to understand more about the important issues that he raised. I completely understand his concerns, and appreciate how he set out his case, not least the roll call of rights associated with this extraordinarily rich and unique part of our heritage. I hope that what I say now, about our having absolutely no intention of weakening what we have already achieved for the protection of commons in the Bill, will satisfy him.
I shall address some of the noble Lord’s questions in context. He sought reassurance that there would be no loophole in the Bill meaning that development could take place on common land which a promoter already owned, or had already acquired by agreement with the freeholder. In such a case, the noble Lord is looking to ensure that the Commons Act 2006 will apply to this development. The amendment also covers the case where a promoter may own a part of common land, with the intention of deregistering that land as common. The noble Lord wishes to ensure that the IPC does not grant a development consent order affecting such land unless it is satisfied that the promoter is proposing replacement common land vested with the same rights as the common it proposes to deregister.
The noble Lord has a great deal of experience on this matter, and he knows that we share his values and are deeply sympathetic with the intentions of the amendment. We share certain core principles about how development consent orders should operate where they cover land designated as commons. In particular, we agree that consent will still be needed under Section 38 of the Commons Act where development consent orders grant authority for works on common land, except where the development consent order grants compulsory purchase under Clauses 129 or 130 of the Bill. If common land is compulsorily purchased under these clauses, it would clearly not be sensible to require a separate consent as well.
We also agree that development consent orders should not use the powers in Clause 118(5) to exclude or modify the application of the Commons Act in relation to land contained within the order. That would prevent a situation whereby provision of a development consent order could let a promoter off the requirement to provide just those replacement land rights which would otherwise be required when deregistering land under the Commons Act.
The noble Lord anticipates that we have found some problems with his amendment. They concern the complexity that has been referred to, not least by my noble friend Lord Howarth. These are extremely ancient and complex pieces of legislation. In particular, the amendment would apply the Commons Act to fuel or field garden allotments and open spaces that are not covered by the Act, which only refers to commons, and town and village greens.
Proposed new subsection (2) might also be interpreted as extending the scope of legislation on a specific common so that it covers all commons; we are indeed getting into deep waters. However, I shall consider this further and I hope that this will satisfy the House. I hoped to bring forward an amendment to deal with this, but it has not been possible in the time. I ask the noble Lord to be a little more patient and withdraw his amendment, so that we can consider further. We will table our amendment, which I believe will address the concerns that he articulated this afternoon, and the concerns expressed by all noble Lords. I will be happy to share our amendment with him ahead of time so that we can discuss it. I hope that that will do the trick.
The noble Earl raised the question of the definition of “open land”. I am advised that this is covered by Clause 129(12), which refers to the Acquisition of Land Act 1981. It is defined in Section 19(4) as any land,
“laid out as a public garden, or used for the purposes of public recreation, or a disused burial ground”.
I hope that that will satisfy the noble Earl. I also hope that the noble Lord will feel confident that he can withdraw his amendment.
My Lords, if the Minister asks me to be patient, I will always be patient, so long as my patience is not expected to go beyond the ultimate deadline of Tuesday next week. I am extremely grateful for what she has said. I remember that this problem arose earlier this year, when we were discussing the Housing and Regeneration Bill, and the Government came back with an amendment that they and the commons experts said met the concerns. I still do not understand it, but I was told that it met the concerns and I was happy to accept it. As far as concerns the definition of “open space” and “fuel and field garden allotments”, I was simply copying what was in what are now Clauses 129 and 130, which cover commons, village greens and town greens. I had never come across fuel and field garden allotments and did not know what they were. When I said this, my noble friend Lady Hamwee said, “Oh, we had one of those in Twickenham and it was very interesting having to deal with it”. I do not think it was the rugby field that she was talking about, but you never know.
The Minister invited me to withdraw my amendment. I am delighted to do so on the basis that we have been given a fairly strong idea that we will get a government amendment at Third Reading. I look forward to discussing that with her. I thank her very much for the positive approach that she has taken and beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 147 [Removal of consent requirements]:
[Amendment No. 121J not moved.]
Clause 148 [Liability under existing regimes]:
[Amendment No. 122 not moved.]
Clause 152 [When development begins]:
123: Clause 152, page 80, line 5, after “Act” insert “(except Part 11)”
On Question, amendment agreed to.
Clause 155 [Nuisance: statutory authority]:
123A: Clause 155, page 80, line 32, at end insert—
“( ) compliance with any condition attached to an order granting development consent shall not of itself attract statutory authority.”
The noble Baroness said: My Lords, I shall speak also to Amendment No. 123B. I declare an interest: the amendments were brought to me by the Chartered Institute of Environmental Health, of which I have recently become a vice-president. I hope that the notes that I sent to the Minister—I did not wish to deprive other noble Lords of the detail, but simply to shorten the process—will have assisted.
The amendments take us to Clause 155 on nuisance. They are amendments to the clause that the Government brought in Committee. That amendment took us a long way to dealing with anxieties about what was in the Bill, but a few anxieties remain.
The clause provides statutory authority, in other words, if something is not nuisance, for,
“doing anything else authorised by an order granting development consent”.
My question is whether that implicitly authorises any activity, notwithstanding that it may be a nuisance, or in future come to be a nuisance or to be actionable in any other way. As the institute comments, if the world were a world of perfect conditions, this would not matter, but it is simply not realistic to think that we can anticipate everything that might happen. Its concern, which I share, is how it is in practice envisaged that adequate conditions can be set. Even if one could predict the range of nuisances likely to arise from a particular development, it would be much more difficult to quantify them. Setting abatement conditions is also a problem.
Additionally, statutory nuisance controls are not currently fixed in advance. The Environmental Protection Act provides that operators must apply,
“the best practicable means to minimise nuisance”.
What is a nuisance can change over time. There can be advances in processes and advances in the technology applying abatement. There may, for instance, be a need for abatement if housing is built closer to a polluting site. We do not live in a static world.
If the terms of a condition applied by a development consent order operate as an implied consent, the operator just has to take sufficient precautions to stay within it; but if it does not do so, or if conditions become obsolete or if there is encroachment, what is to happen? There still seems to be uncertainty, which is at the nub of the amendment.
Amendment No. 123B arises from a concern about subsection (3), which provides that the rest of the clause is,
“subject to any contrary provision made in any particular case by an order granting development consent”.
It seems that that would allow the IPC not only to remove a defence—it would support that—but to relax a defence, which is what it is concerned about; in other words, to grant a greater immunity. As noble Lords will understand, that amounts to law-making by an administrative body. I understand that officials have commented that the European Convention on Human Rights would be an adequate protection. I am not confident about that, and that is not where it should be left. Therefore, the amendment would continue to provide for the removal of the defence, but it would not allow the defence to be extended. I beg to move.
My Lords, these are technical matters, and we discussed much of this in Committee. I am delighted that we can return to the subject and offer more reassurance to those on behalf of whom the noble Baroness tabled the amendments. This should provide reassurance about what the new nuisance provisions will mean in practice.
The noble Baroness eloquently raised issues about how the IPC will be able to place requirements on development consent orders that adequately deal with potential nuisances, which can certainly get better or worse depending on technologies and different situations. How can this be “future-proofed” to ensure that the promoter must always use best practical means to avoid causing nuisance? The noble Baroness also raised the issue of the IPC’s ability to make orders that contain what we might describe as contrary provisions.
The first concern raised by the noble Baroness was whether Clause 155(1)(b) might include observing a requirement. She has indicated that there is a concern that this interpretation might lead to a promoter of an NSIP being authorised to cause nuisances up to a level specified in a requirement, irrespective of whether technologies had advanced, such that this level of nuisance could be substantially reduced. That is clearly a rather absurd position. I am sure that she will understand that much will depend on how the IPC words any such requirement and, indeed, any other part of a development consent order.
The Government believe that the clause as it is currently drafted already ensures that promoters must make all reasonable precautions to avoid causing nuisance, including by adopting new quieter technology, for example, where appropriate. It might help if I gave an example. A requirement might be worded, “The noise levels associated with a particular operation shall not exceed X decibels”. That would grant a defence of statutory authority for such a level at the time the development consent order is granted. However, as I mentioned in Committee, we intend Clause 155 to work within the common law meaning of nuisance; that is, we do not believe that a defence would be operable if a promoter had not taken every reasonable precaution consistent with the exercise of the development consent order to prevent the nuisance from occurring. If technological advances in the future mean that the operation of an NSIP can be carried out more quietly, the promoter will benefit from the defence in this clause only if it has taken advantage of these new technological advances. The developer will still be operating within the terms of the development consent order if noise levels are less than the maximum specified by the requirement. Therefore, there is an onus on the developer to keep pace with changing technologies.
We do not believe that it would be appropriate for requirements to be phrased along specific lines—whether we are talking about levels or limits—such as, “The noise levels associated with a particular operation shall be X decibels”. If we did that, it would mean that if a promoter tried to benefit from technological advances, it would not be able to rely on the defence of statutory authority. That creates a rather perverse situation. In the light of this, the noble Baroness’s amendment raises uncertainty as to when compliance with a requirement could confer a defence of statutory authority in nuisance proceedings. As I said, a better solution is to ensure that requirements are worded appropriately. I hope that I can offer some assurance. I draw the House’s attention once again to the model provisions in Clause 38, which could certainly include models for requirements.
I hope that the noble Baroness and the Chartered Institute of Environmental Health—which, I think, was primarily concerned about this—will take comfort from that assurance. When these are drawn up, bodies such as the institute will have a role in consultation as well.
Amendment No. 123B relates to the ability of a development consent order to depart from the default position on nuisance in Clauses 149 and 155. We included amendments in Committee for a default position, whereby a promoter should not be liable to nuisance claims in respect of nuisances which are the inevitable consequences of works authorised by a development consent order, and which cannot reasonably be avoided.
As I have set out, this would include where technology has progressed since the development consent order was granted. We believe that it would be appropriate for the IPC to have the flexibility to make a provision that sets out, for the avoidance of doubt, how this default position would work in respect of proceedings brought under the Environmental Protection Act. There are precedents. Examples of this approach can be found in a number of recent orders made under the Transport and Works Act. I am assured that Article 40 of the Felixstowe Branch Line Order (SI 2008/2512), Article 36 of the Network Rail (Thameslink 2000) Order (SI 2006/3117) and Article 46 of the DLR (Stratford International Extension) Order (SI 2006/2905) fulfil those criteria.
I should reiterate that we believe that this flexibility is more likely to be used to expand a developer’s exposure to nuisance actions than to restrict it, which I think is the point about which the noble Baroness is primarily concerned. She referred to the fact that the IPC would have to be compliant with the terms of the Human Rights Act. As such a provision could potentially engage a person's Article 8 rights, the IPC must be satisfied that this is justified; that is, that it is necessary in the interests of national security, public safety or the economic well-being of the country, will achieve its purpose and is proportionate. In addition, the IPC is under a general duty to act reasonably. I should also highlight that if a development consent order applied powers under Clause 118(5), the Secretary of State can review the terms of the order and direct changes where he or she finds that it would contravene ECHR rights.
I hope that gives the assurances that the noble Baroness, and the people who raised the issue with her, seek.
My Lords, I am grateful for that. At a practical level, I take greatest comfort from the reference to the model provisions and the consultation which will precede them and, although the noble Baroness did not mention this, from the fact that legal advice will be available to the commissioners. Clearly, that legal advice will need to cover a great range of expertise. I am grateful for that and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 123B not moved.]
Clause 172 [Blighted land: England and Wales]:
[Amendment No. 124 not moved.]
Clause 173 [Blighted land: Scotland]:
[Amendment No. 125 not moved.]
126: Before Clause 178, insert the following new Clause—
“Regional spatial strategies: climate change policies
(1) Section 1 of the Planning and Compulsory Purchase Act 2004 (regional functions: regional spatial strategies) is amended as follows.
(2) After subsection (2) insert—
“(2A) The RSS must include policies designed to secure that the development and use of land in the region contribute to the mitigation of, and adaptation to, climate change.”
(3) In subsection (3) for “subsection (2)” substitute “subsections (2) and (2A)”.”
On Question, amendment agreed to.
127: After Clause 186, insert the following new Clause—
In section 39(2) of PCPA 2004 (sustainable development) after “sustainable development” insert “and high standards of design quality in the built environment.””
The noble Baroness said: My Lords, Amendment No. 127 is part and parcel of the same obligation so well set out by government Amendments Nos. 23 and 37, that good design should be integral to the process of planning. This amendment simply reflects that obligation, for the sake of consistency, in the other great area of planning decision-making, in the Town and Country Planning Act system at local level. This will affect the buildings which influence so much of our daily lives for better or worse, and will give local authorities the confidence to entrench good design into their procedures by the various means already available. It will give those who care about design more influence, pushing the whole system to have higher standards, and to implement PPS1 as a natural part of their operation. It is supported by the RIBA, for whose encouragement and technical advice I am extremely grateful, and by the Town and Country Planning Association.
All the same arguments that my noble friend advanced for the amendments to Clauses 5 and 10 apply. I am sure that it is unnecessary to repeat them—or the consequences of not having these amendments—to noble Lords who have so widely recognised the merits of putting design at the heart of planning. I therefore hope that my noble friend will put this last but crucial cog into the structure so well envisaged in Amendments Nos. 23 and 37 and accept it. I beg to move.
My Lords, I declare an interest as an honorary fellow of the RIBA. I am happy to acknowledge the technical advice and enthusiastic support that staff of the RIBA have given my noble friend Lady Whitaker and myself in the preparation of the new clause.
We have tabled the new clause so as to assist your Lordships to complete a legislative task which the House has undertaken in recent months. We amended the Housing and Regeneration Bill in this House to lay a duty on the Homes and Communities Agency to contribute to the achievement of good design. We have amended this Bill to lay a similar duty on the Secretary of State and the IPC in the development consent regime. But what is sauce for the goose should be sauce for the gander. It remains now to provide plainly on the face of the Planning Bill a parallel duty in the town and country planning regime. This new clause would make it clear beyond doubt that everyone exercising planning functions within the general planning system must do so with a view to promoting a high standard of design quality in the built environment.
The Minister may argue that the new clause is inappropriate or unnecessary, because planning policy statements 1, 3 and 6 already provide the requirement for good design. Of course the planning policy statements have legal standing, and PPS 1 does indeed declare eloquently the duty to promote good design. If the duty would not, then, be a new one, there can be no objection that local authorities have not been consulted. Planners should already know in principle what they are supposed to do. The problem is that the planning policy statements are not generally perceived as creating a legal obligation for real. They are widely seen as guidance, as policy wallpaper and limp-wristed legislative gesture at most. We need to energise and make much more effective the policy in the planning policy statements. Too many planners lack the will to meet the standards set in the planning policy statements. Powerful developers, such as sections of the volume house-building industry, conform minimally in practice to the PPSs. CABE continues to pour forth justified lucubrations about the inadequacy of too much design.
The Government may say that the notion of “high standards of design quality” is too imprecise to be written into statute. High quality design is no more or less vague a term than sustainable development, which we spatchcock into legislation at every turn. We need to insist on both. If the Government argue that sustainability includes high quality design, I have to disagree. The term “sustainability”, in its present usage as a cure-all, risks being so stretched and twisted as to lose useful meaning.
It may be suggested that a more fruitful approach will be to develop existing initiatives on design review, design champions, improvement of skills, the recently updated building-for-life criteria, CABE’s new national network of assessors, design quality indicators and so on. All of those will be useful. So, no doubt, also will be new efforts to mobilise the RDAs in the cause of good design, and the Homes and Communities Agency, too, will surely give important impetus and practical help. But all these efforts will be far more effective in the context of this amendment. Then it will be understood that a commitment to high quality design will not be an option for enthusiasts but a statutory duty on everyone. It will not just be the policy of the Government for the time being, but the established will of parliament.
Perhaps the Government will pray in aid the impending report of the Killian-Pretty review as a reason for rejecting this amendment. Unless Killian-Pretty is going to say that high quality design does not matter after all and planners should wave through anything, however tacky, the new clause cannot be in conflict with a more rational and coherent approach in planning.
It would be too cynical if the Government were to say that a duty to promote high quality design would be observed merely mechanistically, as a box-ticking exercise. That would be to disparage the good people in local government who want the best design for their communities. Alternatively, it may be suggested that the duty in the new clause would be a distraction for planning authorities, causing them to spend disproportionate amounts of time thinking about design. That will be the day! The quality of design in the built environment is, in truth, among the most important responsibilities of a local authority. I quote one of the greatest of local government leaders, Joseph Chamberlain, who said that,
“the city which is a city must have its parks as well as its prisons, its art gallery as well as its asylum, its books and its libraries as well as its baths and washhouses, its schools as well as its sewers ... it must think of beauty and of dignity no less than of order and of health”.
Perhaps we will be told that this duty would simply be too expensive. We may be offered horrified visions of local authority resources being thrown at armies of design consultants. I remind the House that design review costs effectively nothing, thanks to the public-spiritedness of architects who are willing to provide design review services for no payment. Planning officers ought in any case, as the Government have often said, to be competent in design matters. If the duty is already there in the PPSs, unless indeed they are being ignored wholesale, in which case the amendment is undoubtedly needed, it cannot add to costs to reiterate the duty in statute. It is a commonplace that the extra upfront costs of a well designed building, which are a very small proportion in any case, pay for themselves handsomely over the lifetime of the building. CABE has compellingly demonstrated the cost of bad design in its publication of that title. Equally the benefits of good design have been demonstrated in numerous studies, notably in Alice Coleman’s work. Good design quickly pays for itself in reduced crime, improved educational performance, better health and reduced staff turnover in hospitals. It is much cheaper not to have to rebuild after a Ronan Point collapses or an Aylesbury Estate proves to be a community disaster.
I have rehearsed all the excuses I can imagine for the Government rejecting this amendment. None of them washes. I cannot believe that my noble friend, who is serious about good design, will advance any of them. So surely she will agree with us.
If we do not state this duty in the Bill, all our other efforts will be undermined. We will drift on as we are, with occasional good and very good design amid a mass of mediocrity and ugliness which is an affront to civic values and decent aspiration for our communities.
I do not of course suppose that good design can be brought about simply by legislation. The amendment would make it vastly more likely that people engaged in development and planning will think responsibly and imaginatively about the quality of what they bring into being. It will become normal for more people to think seriously about design and to make a conscious effort over it. There will never be unanimity about what is good design; there will always be battles of the styles. The modernists and the traditionalists will still go at each other. There will still be antagonistic dogmas and silly fads. One person’s carbuncle will still be another person’s masterpiece. But what could transform the general standard of design for the better would be precisely an energy of debate released by a newly emphatic requirement in law that good design must be sought. More and more people would be drawn into discussion. People would no longer be resigned to enduring whatever the system and the current orthodoxy impose on them. They would demand better.
Politicians in Britain since the Second World War have largely been embarrassed to talk about architecture and design. It was not always so. On 8 July 1861, the House of Commons debated the design of a new Foreign Office building. Lord John Manners made the case for the Gothic style. The Prime Minister himself, Lord Palmerston, made the case for the Palladian style. He opened his speech by observing that:
“the battle of the books, the battle of the Big and Little Endeans, and the battle of the Green Ribands and the Blue Ribands at Constantinople were all as nothing compared to this battle of the Gothic and Palladian styles”.—[Official Report, Commons, 8/7/1861; col. 535.]
It was an unpompous but passionate debate. Like the debates about the Great Exhibition 10 years’ previously and debates in every Victorian city about appropriate architectural styles for libraries and town halls, it was a debate about the soul of the country. Architecture, it was believed, surely rightly, should express and advance civic purpose and idealism. There is a similar spirit of debate today in Holland. The Dutch care deeply about how every square metre of their land is used. So should we. The Secretary of State, Hazel Blears, has made inspired statements in recent months about the necessity of good design. Now is the chance to give that rhetoric substance for the planning system as a whole. My noble friend has already shown her leadership in amending legislation elsewhere. If she will now accept this amendment to Part 9 of this Bill, she will take her place in history as the Minister who, with a sensitivity to the mood of the nation and with the courage of her convictions, seized the opportunity to elevate our national ambition. She will have opened the way to a new and better era of architecture and design in Britain.
My Lords, I am delighted to be a cosignatory to the amendment and to be able to indicate, very briefly, some support from this side of the House. I am not sure whether the Minister seeks to emulate the feats of Palmerston or sees herself as a latter-day Palmerston this afternoon, but I believe that there is an additional reason to those already expressed by the noble Lord, Lord Howarth of Newport, and the noble Baroness. It is that there is a general increase in interest, concern and anxiety about the quality of design in our country. It is a public issue in a way that it has not been for several decades.
I shall take two examples that demonstrate this. First, just recently the RIBA published the Stirling Prize. Considerable publicity was given to it, which generated a lot of genuine debate about the quality of 21st-century design. Secondly, there is the Channel 4 programme “Grand Designs”. Here I should perhaps declare a non-interest, in that I have been in discussion with the programme makers because my wife and I are in the process of designing a modest retirement home that will be ecologically sensitive and sustainable. However, they have taken the view, which is probably right, that it is of no televisual interest because we do not intend to have a major row with our architect, to go twice over the price that we can afford or to have a major row between ourselves. Therefore, it will not make good television. However, the point I wish to make is that that Channel 4 programme has a huge and growing audience. People are interested in the quality of design. I wish to add to the points that were powerfully made by the noble Baroness and the noble Lord, Lord Howarth, that there is an obligation on Parliament to set the tone in expecting better design in the future than we have experienced in the more recent past.
My Lords, I am delighted that my name is also on this amendment. I shall collect the speeches of the noble Lord, Lord Howarth, to produce a short book containing the wisdom and good sense that he has delivered to us during this stage of the Bill. I shall add a small annexe to that that one of the potential criticisms of measures to support good design is that design is simply a matter of taste and subjective judgment about which it is impossible to legislate. I am pleased to note that a national standard for well designed homes and neighbourhoods has been agreed between the key organisations in this field. It is run by the Commission for Architecture and the Built Environment—CABE—and the Home Builders Federation, and the Civic Trust, the influential Design for Homes, English Partnerships and the Housing Corporation have all signed up to the Building for Life standard. That is now the subject of annual awards. Twenty-four projects have just been given the seal of approval under that standard, and CABE is now committed to establishing a network of 500 local assessors—at least one in each local authority area—who will be trained, accredited, monitored and supported in using this objective assessment tool to decide whether the Building for Life standard has been met. The arrival of this practical, low-cost, objective process for making design decisions significantly helps the case for insisting on design quality appearing in the Bill.
My Lords, my last moral tale was negative in intent, but my present one is positive. Forty-seven years ago, I had to open an office for a small American firm. Our scale was such that we were not going to go out and acquire a building or even design one. I went down to the Design Council and identified the only spread-eagled coat stand that it recommended to the nation. I then found where I could buy one and purchased it. I also bought two chairs by Edward Barnsley. Thirteen years later, I led the management buyout from the American who had founded the firm, and I had five years in which to transform it from being a firm controlled by a single person into a firm that was owned by 50 people. I am delighted to say that more than a quarter of a century later, that firm is the largest of its kind in the world in private hands. I do not want to make too much of this, but it seems to me that the way we began is the way that we have gone on and have therefore been able to flourish.
Finally, although Sam Rayburn, Lyndon Johnson’s great Texan colleague, said that the three wisest words in the English language were, “Wait a minute”—and they apply to the amendment—I think that close behind them comes a sentence that I learned at the Harvard Business School, to the effect that if you do not know where you are trying to get to, any road will get you there.
My Lords, as my noble friend Lord Tyler said, the amendment has enthusiastic support from the Liberal Democrat Benches. When we discussed design issues in Committee, I said that that I thought that the 2004 Act included something like this. I remember discussion and we were probably fobbed off with the promise of guidance rather than anything else. The noble Baroness, Lady Whitaker, looked through the Act line by line, and assures me that it is not there. I am sorry about that.
Secondly, it would be a great help to those, like me, who struggle with local planning issues on the ground to have that firmly written into legislation. I can introduce the noble Lord, Lord Howarth, to local planning officers up and down the land who regard planning policy statements as something close to Holy Writ when they are arguing with their councillors. It would help to have that in the Bill. At present, I am one of the people holding informal negotiations with a supermarket chain, which has put in a reserved matters planning application for quite a large new supermarket in Colne, where I live. Design and new supermarkets do not necessarily fit together. New supermarkets challenge people interested in design more than almost anything else, because they are just big square or rectangular boxes. Nevertheless, we have had interesting discussions with the supermarket chain about how to make it less ugly than it would otherwise be, if I may put it that way, and it has come back with substantial improvements. That is because we are trying to get better design on the ground.
Sometimes when I listen to the Ministers, I see them thinking of big projects or prestige projects of any size at the top level of design. All of the real world is not like that; it is a spectrum. There is good design, there is awful design, and there is everything in between. It is incumbent on all of us to try to push the boundary with every project as far as we can in a better direction on that spectrum, even if it is a local supermarket box. It would really help to have this in the Bill, so that we could say to people, “Look, we have to consider this. We are not just arguing for the sake of it. You have to listen to what we say because if you take it to appeal, we have the legislation behind us”.
My Lords, I support the amendment. I listened to the previous speech of the noble Lord, Lord Howarth, and this one, and it is good to hear the voice of the architectural profession in the Chamber at this point.
Having spent a number of years sitting on committees trying to persuade them that design might come into it, with a perfectly good presentation before the committee but a not particularly good discussion about it and, sometimes, an appalling conclusion come to, it seems to me that the great value of making a statutory requirement at this point in the Bill is that a committee would have to say, “What about the design?”. The members of the committee would not agree about what was good design. Some of them would be rather knowledgeable; others would not have a clue. Some would be totally utilitarian; some would have a good visual sense; but they would at least say, “Is this good design?”, and the architect could deploy his argument for why it was good design.
The amendment is sound and I do not see why the Government should not accept it.
My Lords, at this stage of the debate, I will not take up the House’s time with a long speech; it is hard to gainsay the case of the mover of the amendment. I am passionate about good design, which is key to the creation of a humanised environment for people to live in. I may even be almost as passionate about design as the Minister told us in Committee she was. That is why the Bill needs to place a duty on the new development consent regime and the town and country planning regime to have regard to the desirability of securing high standards of design.
Without a duty in legislation, it is all too easy for developers to ignore considerations of good design. Good practice advice and encouragement, strewn throughout reams of guidance and planning statements, are apt to operate in a rather diffuse and diluted way, if they operate at all. A duty clearly laid down in statute focuses the obligation and the mind much more powerfully.
Government amendments to require that the new development consent regime must have regard to the desirability of securing high standards of design are very welcome. I was therefore surprised and disappointed that a duty on the town and country planning regime to have regard to the desirability of securing high standards of design in the built environment has not been written into the Bill. It is simply consistent for the same requirement to apply to the town and country planning regime.
This is the mirror image of our discussion the other day on heritage and the fact that the town and country planning regime, but not the new development consent regime, is obliged to have regard to the desirability of preserving heritage. The duty should apply across the piece to both regimes, and I support the amendment.
My Lords, I speak in part because, after the noble Lord, Lord Howarth, had his debate on heritage on Monday, we met in the Corridor and he was concerned that, because I had sat on my hands, I did not agree with his proposition. I remind him of the adage that silence signifies assent. Again, he has said all that needs to be said, and has been reinforced by the noble Lord, Lord Low of Dalston, so I intend to take no longer. The fact that I have no more to say does not mean that I disagree. If I had reason to disagree, I would speak at much greater length.
My Lords, we are excelling in debates on design in this House. As much as I would like to respond to the call of history, as the noble Lord has invited me to do—I certainly feel the weight of historical reference that he makes—I am not sure that I can aspire to be there with those great Victorians, whose hands and imagination have created not least this great building in which we work. What a privilege that is. As much as the noble Lord has anticipated some of my response, it is still worth looking at exactly what the amendment calls for and its implications.
The proposed new clause would amend Section 39 of the Planning and Compulsory Purchase Act 2004, ensuring that a statutory design duty is placed on those exercising development plan functions, whether regional or local, to pursue the objective of high-quality design in addition to the objective of contributing to the achievement of sustainable development. I do not want to say “yet again”, because noble Lords know—indeed, they have reflected my own words back to me—that I have tried very hard in this Bill and in other Bills, as well as in my work at the department, to ensure not only that we have a vigorous national debate on design but that we win it, and we are winning it in practical and sustainable ways.
There is no dispute between us that ensuring good quality design is a vital component of a good quality of life in our communities. People have the right to expect and to get the best. I am not convinced that explicitly placing a duty to secure good-quality design in the Bill is the most effective or appropriate way of using the planning system. There has been a chorus of support for this—noble Lords around this House have been eloquent—so the very least I can do is explain my reasoning. I hope that it will find sympathy, not least with those noble Lords who have great experience of local government in this House.
In contrast with the regime that we have just put in place for handling nationally significant infrastructure or the proposals for the Homes and Communities Agency, where there had been no specific pre-existing arrangements on design—I was extremely pleased that we could put this in place—the planning system, despite the description of planning policy statements offered by the noble Lord, has a strong policy framework in which design is an integral part of the process. I have referred to that before. I do not recognise the description of the planning policy statements and their effect offered by my noble friend.
Planning policy statements 1 and 3 could not be clearer or stronger. Design which is inappropriate in its context, and which fails to take the opportunities available for improving the character and quality of an area and the way it functions, should not be acceptable. This is not policy wallpaper. It has been described by the noble Lord, Lord Greaves, as Holy Writ in some local authorities. But the Secretary of State, when approving plans, has to be satisfied that all relevant planning policy is taken into account. Planning policies on design can act as material considerations in decisions on individual applications. Local authorities, that have had their applications turned down time and again may have been told that they do not satisfy the criteria and that this is simply policy wallpaper, but it is not. Applications have been and are turned down on design grounds, which is the purpose of planning policy guidance. Planning bodies are required to have regard to these policies in preparing regional spatial strategies and local development frameworks.
I know and I share the frustration of noble Lords that we have a long way to go before design standards are what we would all want to see. We are making progress, critically, in a progressive and sustainable way. We have been working hard with local planning authorities and PINS to make these provisions work, and we are beginning to see results. Local development frameworks, such as those for areas as different as Chelmsford, Havering and Plymouth, include clear guidance for developers on local design policies. They are embedded in local development frameworks. There is no reason why all local authorities should not include that in their local development frameworks.
The noble Lord anticipated much of what I have to say and I will explain my reasons for saying some of those things. But the problem with the noble Lords’ amendment—I would have thought that the Front Benches opposite would both respond to this—is that it imposes a new and challenging duty on local authorities. It does so without consultation or discussion with the people who have to make it work about how best to do that. That is not how we do things. We work and consult local authorities. We make sure that they have the resources and the skills to make something real of this. I am sure that noble Lords and RIBA have enough experience to know that this cannot and should not be done by imposition, which is what this amendment does.
My Lords, I have been listening very carefully to the Minister. In the new clause that she introduced immediately preceding this debate, we have imposed a very similar new imposition on local authorities in relation to climate change. As the noble Lord, Lord Howarth, said, this is precisely the same situation. We are seeking to ensure that new and particular emphasis is given to two very important characteristics of design in the Bill.
My Lords, the noble Lord makes my point for me. The climate change duty requires a 12-week consultation period. Climate change duties have been addressed by local authorities in different ways in recent years. The climate change duty carries a consultation requirement. This is an imposition on local authorities which does not bring that.
My Lords, I am puzzled; I hope the noble Baroness can help me to understand why she says that it would be a new duty imposed on local authorities, and therefore an improper one to impose without consultation, if she also says that it is a duty that is already legally established through the planning policy statements.
My Lords, the legal duties imposed by the planning policy statements are themselves worked out in consultation with those who have to implement them. This is imposing something through primary legislation; it is different. The noble Lord has already suggested that I might use the argument that it takes resources away from activities which are fundamental in themselves. I am not making an excuse for using that argument; it is fundamental.
Our local authorities are under great pressure. We discuss this continually in this House. They are scarce of resources. At the moment one of their priorities is to get their local development frameworks in place. We need those local development frameworks to be as broad and as sufficient as possible and to include the quality of design. I am concerned that if we impose such a duty, especially if we do it without local authority consultation, we will put another obstacle in the way of finishing local development frameworks.
My Lords, for the reasons I have said, and I am in danger of repeating myself, I do not believe that the best way to do this is through a statutory duty imposed through this Bill without any consultation with local authorities. Of course local authorities can take the opportunity of their LDFs to do just what we want them to do. I hope they are listening to this debate and that they will do that. I am not offering these reasons by way of excuses. We genuinely believe that the way to deliver good design is not to add to the legislation but to ensure that existing policy works better and is applied consistently by regional and local planning bodies. We are investing in that. Our aim is genuinely to support local authorities in providing clear design strategies and policies and to advise not just local authorities but developers. The pre-application process is as critical as anything in getting a higher standard of quality among applications. I would like to see that rather than more applications turned down on the basis of poor design. The noble Lord and I agree that we need to build the ambition, the capacity and the leadership skills so that local authorities can make it absolutely clear that they will not settle for second rate but will demand better of other people, including developers, when they are putting forward the planning applications.
The most effective way of doing this is in partnership with key organisations in the public and the private sector. Given our debate, I am going to take the time to say what we are doing. The noble Lord, Lord Best, has alluded to some of that. We have had debates in this House about design that are focused on the need for greater skills and capacity, particularly of local planning authorities to deliver improvements. We are putting more money into training planners and making sure that design is an integral part of their training. We are also funding the Academy for Sustainable Communities and CABE to build the skills and knowledge needed to make better places. CABE is providing an increasing range of services to help local authorities with their master plans through specific scheme proposals with local design strategies. The housing and planning delivery grant helps local authorities to earn additional funding to help to finance the development of their own skills and capacities and to bring in additional skills, such as urban design expertise. The ASC has developed a leaders’ network, a national membership for chief executives and senior managers who lead organisations through significant change so that they are fully apprised of the importance of design in creating high-quality communities. The CABE urban design summer school develops urban design skills for those involved in planning and regeneration in the public and private sectors, supplemented by urban design guidance.
We have designer champions, encouraged by CABE, in place in over two-thirds of our local authorities at the strategic level. The noble Lord, Lord Best, has already addressed the issue of the CABE training programme that is seeking to develop a nationwide network of accredited assessors within local authorities to develop the expertise that will enable new housing schemes to be evaluated against the Building for Life criteria.
We also want to promote and embed good practice and innovation through design coding. The Building for Life benchmark has already been mentioned, which provides sources of external advice on design, especially at the pre-application stage. That is very important. I should mention the recent review by RIBA on the valuable resource to be found in design panels and which highlights its positive and helpful work. We are now looking urgently at how more use can be made of these panels. We support CABE’s work on the national design review. We want to see that go further, as well as the work done by regional and local panels. We are exploring with CABE and other agencies how far existing review panels are meeting the need for external advice and what more we can do to help to maximise their potential. We will look at the opportunities that the creation of the new Homes and Communities Agency will bring and we are following up the sub-national review to strengthen design review panels and other support. The HCA is now working closely with CABE to extend the resources available.
I believe that the partnership is beginning to produce results, although I agree that we have a long way to go. We have to continue to signal that achieving good design is a key government objective by supporting the organisations that are keen to deliver it. Above all, we must support our local authorities. Our new chief planner, who has just taken up his post, will take that forward as one of his first priorities.
I understand that noble Lords are disappointed that it is not possible for me to accept an amendment that looks so appealing and has been explained so well by my noble friends. However, I hope that they will understand that it is not as simple as that, and that the way to achieve results is not by imposing a duty without consultation, but by working in partnership to support ambitions and recognising the challenges of building capacity.
My noble friend Lord Howarth concluded his eloquent speech by referring to the debates of the Victorians on the options they faced in terms of architectural style, which of course has become a sort of architectural theology. I believe that the debates we have had on design have been extremely important in that they signal to everyone in the community that it is something we in this House and the Government as a whole take very seriously.
My Lords, the noble Baroness has laid great stress on the need for consultation. Given that this amendment has been tabled on the Marshalled List for a number of days, can she tell us whether she has received representations from the Local Government Association to oppose it?
My Lords, if one of the Minister’s objections to placing this duty on the face of the Bill is that it has not been consulted on, would she be willing to consult on such a change to the legislation with a view to bringing it forward when a future legislative opportunity presents itself?
My Lords, all I can do is ask the chief planner, who I have already prayed in aid, to get in touch with all local authorities to raise the issue with them. In that way, I think that we will inspire a lively debate about the best way forward. I can certainly assure the House that I will do that, and it is to the credit of this House that we will be able to have that sort of conversation with local authorities.
The changes we have made in both the Bills that have been referred to today, which have been driven by and enthusiastically supported by my noble friends, are a testimony to the serious nature of our debates. I hope that noble Lords will recognise that we have engaged in a debate that is not confined to this Chamber—there is a national debate about good-quality design producing quality of community and place—and that my noble friends on the Benches behind me will feel that we have been able to indicate that we will continue to make progress.
My Lords, I am extremely grateful to all noble Lords who have taken part with such eloquence. I was also glad to have the support of Joseph Chamberlain and Lord Palmerston. I am disappointed that the Minister is not persuaded even by these, let alone by the force of the contemporary, arguments and—may I say?—national need. But I am grateful for her support for the positive initiatives that she describes to develop the good design culture among planners, including the very interesting suggestion of the noble Lord, Lord Low, to which I think she agreed, that the chief planner will consult local authorities about how they can incorporate good design. I look forward to hearing more about that. Meanwhile, I shall read Hansard carefully and see how best we should take our widely shared cause further. In the mean time, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 191 [Determination of procedure for certain proceedings]:
128: Clause 191, leave out Clause 191
The noble Baroness said: My Lords, Amendment No. 128 takes us to the provisions in this Bill relating to appeals against determinations of planning applications in the current regime. This matter was debated at the last stage. Since then I have seen the letter which the Minister sent to the noble Lord, Lord Jenkin. I had not, at that time, seen it. I have also had an e-mail exchange with the Minister. I have to say that I have not been reassured, although I did not expect to be reassured because there are fundamental differences of principle between us. The Government approach this as an administrative matter, “this” being a provision to restrict the appellant’s choice of method or procedure for his appeal. The Government’s assurances are that no one is disadvantaged by the proposal, and that all relevant factors will be taken into account by the Planning Inspectorate when determining the most suitable procedure. It will be for the Planning Inspectorate to take that decision, having applied criteria which I acknowledge. The Government also say that the procedure must be proportionate to the complexity of the subject matter.
It is suggested that parties will have—and currently have—a free choice as to whether their appeal is determined by written representations, an informal hearing or a public inquiry. That is not the case at the moment. They can demand the opportunity to appear before and be heard by an inspector, but it is the Secretary of State—or, in practice, the Planning Inspectorate—who decides whether the appeal will be determined following an inquiry or an informal hearing. The current position is that parties cannot clog up the system by insisting, for instance, that a householder’s extension be dealt with by an inquiry. An appellant can insist on being heard. The Planning Inspectorate will take account of the party’s preferences, but can decide whether the hearing will be an informal hearing or a public inquiry. We would all expect a small household case to be dealt with by an informal hearing. The advantage of this is that parties have the opportunity to come face to face with the inspector. They can see the whites of the inspector’s eyes and the inspector can see the whites of their eyes. There is great importance in this.
The Minister recently said, in an exchange for which I have thanked her, that the Government are in no way,
“seeking to prevent discussion or oral questioning where it is warranted”,
but again talks about clogging up the system,
“impacting on everyone who uses it”.
I thought to myself, “Well, who is impacted on?”. Yes, others will be in line to have appeals heard, but we are talking only about an appellant and the local planning authority in each case. It is not as if the third parties have rights of appeal. The world in general, in that sense, is not being prejudiced.
Part of the Government’s aim, in all that they are doing in the Bill, is to promote confidence in the planning system. We have heard quite a lot about the fact that delays undermine everyone’s confidence and the system’s effectiveness. Clause 191 will undermine confidence in the system. Applicants—at this stage, rather, I should call them “appellants”—will see this as an encroachment on their rights. If I were in that position, that is the view that I would take. I hope the Government will understand the force of the feeling against this. I beg to move.
My Lords, at one point in this argument I thought there was a difference in understanding about the issues that the noble Baroness, Lady Hamwee, has outlined. In her letter to me, the Minister suggested that the appellant could insist on an inquiry and an oral hearing. In fact, as she has made clear in her reply to the noble Baroness, the lawyer who has been involved in this says that at present parties can insist on the right to appear and be heard but the inspectorate decides whether it is to be a hearing or an inquiry. So, on that issue, there is now nothing between us.
The difference comes down to the point that the noble Baroness, Lady Hamwee, was making about whether there should be an opportunity for a face-to-face discussion so that there could be oral questioning of the inspector. That is a fairly evenly balanced question. The amendment that has been tabled would take out the whole of Clause 191. I am not sure that that would be right; it would be back to the drawing board. But in these small inquiries there ought to be a right for the appellant to have the opportunity to be, as the noble Baroness put it, eyeball to eyeball with the inspector.
This is a small matter. We are discussing, inevitably, individual householder applications; we are not talking here about big planning inquiries. It is a simply a question of a difference of view. The impression I have been left with by the correspondence and what was said in the earlier debate is that the Government are overpersuaded about the amount of time that inspectors are involved in this—the number of days they allocate, and that sort of thing. Clearly anyone who is running the inspectorate has to take account of that, but in the end the planning system has to have the confidence of those who are going to use it. To tell an appellant that the whole thing has to be done by written representations and that they will not have an opportunity to see the inspector will undermine confidence in the system.
On the whole, I agree with the point the noble Baroness has put forward. It is admirable that we have eliminated what appeared to be a difference of understanding over procedure. Having done so, though, we then have to recognise the difference, and I come down on the side of the noble Baroness.
My Lords, the noble Baroness, Lady Hamwee, together with the noble Lord, Lord Greaves, has raised these issues before. As she rightly said, many of the merits of this clause have been debated in Committee. It is clear, however, that we have not provided enough reassurance and I hope in the next few minutes I will be able to provide reassurance that we have put in adequate safeguards to ensure that no one will be disadvantaged.
We are introducing this measure because the existing appeals system is under severe strain and does not always serve the purposes of those who choose to appeal, or indeed those affected by an appeal, as well as it might. The system can be disproportionate in the way it handles cases. At the moment parties can insist on the right to appear before and be heard by an inspector by the means of either a hearing or an inquiry, regardless of the suitability of the process to the complexity of the case. This means, for example, that at the moment even the simplest cases, such as appeals relating to dormer-windows or boundary walls, can proceed via a hearing when written representations would be just as appropriate and would certainly be speedier and probably less stressful for all concerned. The use of disproportionately complex methods for appeals which do not necessarily warrant them results in inefficiencies and delays for everyone.
I understand the view that this proposal is unnecessary because at present, even if parties choose to present their case orally, the Planning Inspectorate has the discretion to choose a hearing over the more labour-intensive and lengthy inquiry. While this is true, we should not underestimate the work involved in holding an oral hearing. Hearings may be more informal than inquiries but they still involve three days of inspector time, in contrast with an appeal dealt with by written representations, which only involves one day. The efforts that all parties put into arranging and attending a hearing process are considerable.
We appreciate that there is a point of principle at stake here. The noble Baroness said that appellants and local planning authorities should always have the opportunity to put their case orally, even for straightforward appeal cases. We would not agree with that. We do not believe that people will be disadvantaged by having their case dealt with by written representations when it is a non-complex case which can be easily understood in writing. There is another point of principle at stake here. We should remember that this is not just about the appellant or local planning authority in any particular case; it is about serving all customers of the appeal system well.
Opting for hearings which are unnecessary results in delays to other kinds of appeals, which may involve complex issues and merit hearings or inquiries. Furthermore, it can disadvantage third-party interests when they have to give up a day of their time and possibly travel some distance to a venue at their own cost. In many simple cases, such as those involving visual or physical impact on a neighbour, I am assured that the inspector does not learn anything that was not apparent from the written material and the site inspection. The question has to be asked: can it be right to spend more time and public money on an oral process which will take at least three times as long and lead inevitably to the delay of other cases, such as much needed housing or important infrastructure proposals, which merit a hearing or inquiry process?
It is important that we introduce more proportion and clarity into the appeal system so that the procedure selected better reflects the relative complexity of the issues. Ensuring that all cases are dealt with by the most appropriate appeal method will lead to quicker decisions, saving everyone time and money.
We note that concerns have been expressed that this measure will mean that proper debate on development proposals will not take place. Let me say for the record that this is not a measure to prevent the proper consideration of appeals or circumvent cross-examination. What it will do is ensure that the oral debates take place where appropriate. The Government fully acknowledge that many cases are complex and need to be properly examined through oral questioning. We have no plans to stifle debate on these proposals or to push them down an appeals route which is inappropriate. There are some cases, however, which do not warrant the time and resources involved in holding a hearing and inquiry. As has already been mentioned by the noble Lord and the noble Baroness, this includes most householder developments, household extensions and so on.
It may be worth outlining the number of safeguards we have built into the process to ensure that the right procedure is selected for each case. Clause 191 would simply enable the Planning Inspectorate, acting on behalf of the Secretary of State, to apply published criteria, which Ministers have approved, to determine the most appropriate procedure for appeals and call-in cases. These criteria have already been published and consulted upon in our consultation paper entitled Improving the Appeals Process in the Planning System: Making it Proportionate, Customer Focused, Efficient and Well Resourced, and they will be kept under review. Further consultation may be appropriate from time to time.
The criteria will be operated in a transparent and fair way. They will ensure that any case that is complex or controversial, and thus would benefit from a hearing or inquiry, will be dealt with in this way. The criteria will also ensure that people in vulnerable groups are given a fair opportunity to put forward their case, which may mean that a hearing or inquiry is appropriate even where this would not normally be justified by the complexity of the case.
The principal parties—the applicant/appellant and local planning authority—will be invited to indicate in the early stages of a case the procedure that they believe is most appropriate and why. Any representations made by the parties will be taken into account by the Planning Inspectorate when making a decision on the procedure. It is worth saying that the inspectorate has a vast depth of experience in administering and handling appeals, which it will be able to draw upon to help it when applying the criteria to determine the method. Furthermore, this decision will not be made in a vacuum and close attention will be paid to the views of the principal parties.
In cases where there is a disagreement between the parties and the Planning Inspectorate’s procedure team as to what procedure should be used, a professionally qualified inspector at assistant-director level will be called upon to make the final decision. Parties will be informed of the method that the inspectorate considers the most appropriate and why. We have every confidence that this process will work well, but are not going to take that for granted. We intend to ask the independent Advisory Panel on Standards for the Planning Inspectorate Executive Agency to look at any cases of complaint and report to us on how the system operates in practice.
The proportionate approach that we advocate should reduce costs for everyone. For example, we should not require people to take time off work to travel to a hearing or inquiry, which could be some way from where they live, when their representations could be made as effectively in writing. Applicants and appellants would benefit from a reduction of time taken to determine their cases. Cases that do not need an oral hearing could be fairly and effectively handled by means of written representations with no loss of quality or equity to the process or the decision. The outcome will depend on how convincing the inspector finds the planning merits, not the method of their presentation. Case law demonstrates that the right to be heard can be satisfied by the provision of evidence through written representations.
We are also aware that some appellants may choose an oral hearing because that process carries an option for award of costs. In tandem with this provision, we have already said that we will extend the costs regime, which currently applies to hearings and inquiries only, to the written representation procedure. This will ensure that, regardless of the procedure pursued, parties will have the opportunity to seek an award of costs in cases where unreasonable behaviour by another party has caused them unnecessary expense.
The process will bring many benefits. The more complex cases will be dealt with by the more complex procedures, while the simpler cases will be dealt with via the simpler written representations procedure. The safeguards that I have outlined will ensure that the most appropriate procedure is used for each case, and that vulnerable people will not be disadvantaged. The process will make the system more proportionate, which in turn will make it more effective and efficient for everyone. The clause should therefore stand part of the Bill.
My Lords, the Minister started by saying that the Government’s proposed new arrangements would be less stressful for all concerned. However, the appellant can now decide whether or not to seek a hearing, as I suggest that they should continue to be able to do. If the appellant wants a hearing, they take the accompanying stress; that is a matter for them. If it is stressful for the inspectorate, frankly it is their job to take the decisions.
I wonder how much time would be taken in assessing the representations for which procedure is to be followed. The net time saving may not be quite as suggested.
I am grateful to the noble Lord, Lord Jenkin of Roding, who said that my approach would mean taking out the whole clause covering a number of pages. However, all the pages make this simple provision, so I would not be jeopardising anything else. The award of costs that the noble Lord mentioned could be dealt with separately; it is a parallel issue that does not have to be swept up by this new clause.
I agree with the noble Lord that the Planning Inspectorate is a service that should serve all customers well. However, listening to the defence that he put forward, I would say that a good deal of this is about internal organisation. As the noble Lord, Lord Jenkin, said, this is about confidence in the system. I do not have that confidence. I believe that the Government’s approach would undermine public confidence. It is a matter of principle. The noble Lord talked about benefits; I see it as a reduction of opportunity. I beg to test the opinion of the House.
129: After Clause 195, insert the following new Clause—
“Meaning of “local authority” in planning Acts
In section 336(1) of TCPA 1990 (interpretation) in the definition of “local authority” after paragraph (aa) insert—“(ab) the London Fire and Emergency Planning Authority;”.”
The noble Lord said: My Lords, I shall speak to government Amendments Nos. 129 and 163. The noble Baroness, Lady Hamwee, and the noble Lord, Lord Greaves, raised the difficulties faced by the London Fire and Emergency Planning Authority and tabled Amendment No. 432A in Committee to make the London Fire and Emergency Planning Authority a local authority for the purposes of Section 237 of the Town and Country Planning Act. The Minister agreed to reflect further on the points raised.
We decided that the best way forward would be to put the London Fire and Emergency Planning Authority in the same position as its predecessor, the London Fire and Civil Defence Authority, which was a precepting authority and so fell within the definition of a local authority in the TCPA, and in, by extension, the other planning Acts.
The London Fire and Emergency Planning Authority functions, in the main, like combined fire and rescue authorities, which are also specifically defined as local authorities. It might also be said to have a similar status within London’s government as the Metropolitan Police Authority, which is also defined as a local authority in the TCPA.
All these organisations are found in the definition of a local authority in Section 336(1) of the Town and Country Planning Act. The new clause introduced by Amendment No. 129 will mean that the London Fire and Emergency Planning Authority will join them.
Amendment No. 163 adds the new clause to those provisions in Clause 233 which will come into force two months after Royal Assent. I beg to move.
My Lords, I thank the Government for looking at and acting on this. As the noble Lord will know, it turns out that there has been an unintended consequence. I should perhaps apologise to all other fire and rescue authorities because the legislation that this seeks to amend seems to allow the overriding of covenants on land, which was what lay behind this. Given LFEPA’s PFI programme, it now seems that not only will LFEPA not have these powers, because the section in question deals with local authorities, not local planning authorities—I might have that the wrong way round—but that no other fire and rescue services will have them either.
I am informed in a message I received after proceedings started this afternoon that the Government do not consider corrective legislation appropriate at this time. I can understand that it is very difficult for the Government to be faced with this matter at this stage. However, I make a plea for it to be considered as quickly as possible and for some mechanism to be found to correct this problem. They have responded very quickly to the issue, but at that time nobody thought that it would throw up a different problem. I hope that something can quickly be tacked on to other legislation because clearly it is nonsensical not to sort this out and to enable all fire and rescue authorities to deal with covenants appropriately by placing them on the same footing as other local authorities.
On Question, amendment agreed to.
129ZA: After Clause 195, insert the following new Clause—
“Protection of gardens and green spaces
(1) The Town and Country Planning Act 1990 (c. 8) is amended as follows.
(2) After section 71A insert—
“71B Duty as respects gardens and urban green space in exercise of planning functions
In exercise of any function under or by virtue of the planning Acts, the Greater London Authority Act 1999 (c. 29) or the Planning and Compulsory Purchase Act 2004 (c. 5), special regard shall be had to the desirability of preserving gardens, groups of gardens and urban green spaces.”
(3) In section 336, after the definition of “function”, insert—
““green space” means—
(a) land laid out as a public garden;(b) land used for the purposes of public recreation;(c) a pocket of green, or predominantly green, space in an urban area which the local planning authority considers of townscape importance and which contributes to the character of the area or amenity of local residents;(d) an area of open space which benefits wildlife and biodiversity;”(4) Nothing in any guidance issued by the Secretary of State, a regional planning authority or other higher tier planning authority may be used by the Secretary of State to set aside a decision made in accordance with the adopted policies of a local planning authority for the protection and preservation of gardens or green space in their local authority area, unless the Secretary of State or planning authority can demonstrate that—
(a) it is essential in the specific case to the achievement of national housing targets; or(b) the decision of the local planning authority was improper.(5) Nothing in this section shall be construed as—
(a) enabling the Secretary of State or higher tier planning authority to impose targets for local housing densities on a local planning authority in order to override the protection or preservation of gardens, or(b) interfering with permitted development rights.”
The noble Earl said: My Lords, this amendment concerns the preservation of gardens and open spaces and the current classification of gardens as brownfield. The amendment is inspired by Private Members’ Bills introduced in another place by my honourable friends Caroline Spelman and Greg Clark, which received strong support from all parties and NGOs, including the RSPB, as indeed did a similar proposal from Lorely Burt for the Liberal Democrats. For Labour, there was strong support from Gisela Stuart and Chris Mullin, who said that members of the Government—I am sure this does not include the noble Baroness, Lady Andrews—are in a “state of denial” over this issue.
The problem arises from the classification of back gardens as brownfield sites, the emphasis on “brownfield first” development and high density targets being forced on local authorities. A survey of six local authorities was conducted recently comprising Bradford, Chelmsford, Nottingham, Guildford, Oxford and Tunbridge Wells, which found that a staggering 72 per cent of all brownfield site development was on gardens. Gardens are under attack as never before from planning policies skewed in favour of infill, backfill and the demolition of suburban properties to increase housing density. There is currently an application to demolish two family homes in a Birmingham suburb and replace them with 71 new dwellings. This folly of the planning system actively encourages a mismatch between infrastructure and development. For example, the existing drainage system cannot cope with the extra load of housing.
Sir Michael Pitt told the BBC that the garden grabbing surge had increased the risk of further flooding. He said that,
“if it was just one house and one garden, this would not be an issue. It’s the cumulative effect over time of many, many properties”.
It would be a great mistake to ignore Pitt and an even greater one to underestimate the strength of public feeling on the issue. This surge in garden grabbing not only puts pressure on infrastructure and increases the risk of flooding but destroys the environment, biodiversity and places in which to relax and play safely.
Earlier, the noble Lord, Lord Howarth, moved an amendment to protect our heritage. Are our gardens not part of that heritage? A recent survey concluded that people’s health is improved by being in a green or semi-rural area, including a general feeling of well-being and a lowering of blood pressure and feelings of stress. Where has it gone wrong? I would like to be generous and say that defining gardens as brownfield land was a form of drafting that gave rise to unintended consequences. When I moved a similar amendment during the Housing and Regeneration Bill, the noble Baroness used PPS 3 and PPS 17 as her defence of existing policy. PPS 17 deals with protection and planning for open space, sport and recreation places that communities need, but it does not mention the protection of gardens. They are brownfield sites.
PPS 3 on housing was developed in response to recommendations in the Barker report. It talked about brownfield targets, higher densities per hectare, efficient and effective use of land and on page 15 of,
“additional housing in established residential areas, large scale redevelopment and redesign of existing areas, expansion of existing settlements”.
That is a green light for garden grabbing: rich pickings for developers. Chris Mullin told the other place of developers flying over back gardens in his Sunderland constituency in helicopters looking for suitable sites to develop. Annex B of PPS 3 states that previously developed land is defined as,
“land … occupied by a permanent structure, including the curtilage of the developed land”.
That definition specifically does not exclude gardens. It includes them within the curtilage.
When I asked my planning officer why PPS 3 was so ineffective, he said,
“when looking at applications, in the hierarchy of different planning considerations, meeting the Government’s obsessive house building targets, the blanket imposition of density targets and the emphasis on ‘brownfield first’ development, has meant that the niceties of garden preservation has been pushed way down the pecking order of considerations. And don’t forget that gardens are classified as brownfield. Once the precedent has been set, it becomes increasingly difficult to refuse, so that it becomes almost impossible to mount an argument that would result in an application being turned down on appeal”.
That sums up succinctly why PPS 3 is so ineffective in protecting gardens from development. There is even a note in the House of Commons Library which says,
“there was enough in PPS 3 to justify developers appealing with every chance of success”.
This amendment seeks to increase protection for gardens and small urban green spaces. It does so by leaving it to local communities to decide, not to higher authorities and least of all to remote central government. It does not take away the householder’s right to extend their house by permitted development. It does not prevent local authorities setting frameworks that are more permissive. But it does prevent the wishes of local people being undermined; unless in the specific case it can be shown that development is essential to achieve housing targets. Even in such cases, full consideration would have to be given to the importance of green space.
The Government are behind the curve of public opinion and, as Chris Mullin said, they are in “a state of denial”. I beg to move.
My Lords, I support the amendment. The heading of the proposed new clause to the 1990 Act states:
“Duty as respects gardens and urban green space”,
but I think that the noble Earl has described a duty to respect those areas.
Our support for the aims of the amendment does not amount to disregard of housing need. I anticipate a criticism but I have enough of a track record, which some would call form, in leading these Benches through the Lobby on that issue. We should not allow developers to build on the easy plots and sites without regard to their function and value in terms of quality of life.
I am not entirely sure whether the proposed new clause as drafted is workable or how it fits in with current brownfield policies as they are expressed. Nor do I think that it particularly helps to refer to flooding, because there are other policies relating to that. The Government should take it away and, if I may say so without being disrespectful to the drafters, knock it into shape. The underlying point is important and the public would expect us to find the right way of expressing it.
My Lords, I have a great deal of sympathy with the spirit of the amendment. It is about our values as a society and the kind of environment and quality of life that we wish to have. Of course new housing is needed and often infill may be appropriate and should have permission. But this kind of development should not take place at any price. A civilised society does not permit developers, or even the owners of properties, to destroy gardens and urban green spaces without careful thought by decision-takers about where the public interest lies. When there is a genuine and important public interest in a development going ahead, no doubt it will do so, but it should never happen without deliberate and careful consideration. As the noble Earl said, it is the cumulative effect of small decisions that can have such devastatingly damaging consequences over time.
As the noble Earl also suggested, this issue is somewhat akin to that raised in Amendment No. 64—the proposed new clause on heritage—which, unhappily, the Government refused to accept. That debate was about the development consent regime and this is about the town and country planning regime. In the town and country planning regime, heritage assets are indeed protected, and so also should be our heritage of gardens and green spaces. I hope that my noble friend can offer some encouragement.
My Lords, I start by saying that I am certainly not in a state of denial about the seriousness of the issue. There are serious concerns to be addressed. Despite what the noble Baroness, Lady Hamwee, said, serious issues have been raised by the amendment and the House deserves an explanation as to why we cannot accept it. We support the underlying aim of the amendment. I would not want to hear hollow laughter coming back at me from across the Chamber but it is true that we support the underlying aim of this amendment. The question is how best to stop the practice in a way that is consistent with the real pressures that face local authorities when it comes to having to build homes for people in desperate need. There is tension in the system.
I do not have to be persuaded how important good- quality open green spaces are to the well-being of people. Gardens are an extraordinarily important part of our heritage and personal joy. There is a lot on which I agree with the noble Earl, but what would placing a duty in the Bill do? What would we be doing and what would be the consequences and the unintended consequences? I shall talk about the impact that this amendment would have on planning decisions. For reasons I went into earlier, we need to be very careful about adding new statutory duties to local authorities, and we also need to be very careful indeed about identifying one aspect of the planning system as more important than others. For the planning system to work, it has to be fairly balanced. We have to make sure that we anticipate consequences because they may have a serious knock-on effect on the way the whole system works.
I shall explain what might be some unforeseen consequences. If we were to require planning authorities to give some elements a special regard, that would imply that other elements should take second place. That would impose a level of hierarchy on the planning system that, because of the way it works, would have to be taken into consideration in decision-making, and would unbalance it. It goes against the way the system is designed to work, which is by allowing planning authorities to make judgments based on knowledge of the needs of their own area.
Furthermore, it would unduly restrict the discretion of the Secretary of State to take account of other material considerations in the determination of appeal decisions. Appeal decisions are determined on the basis of balancing a variety of material considerations, which may include policies and guidance issued at national and regional level. This amendment would unduly restrict the Secretary of State’s capacity to have regard to such guidance when considering an appeal against a planning authority’s decision that has been made in accordance with its policies for the preservation of gardens and green spaces. We are looking at a series of unforeseen, knock-on consequences that would effectively place restrictions on the right of appeal by an individual against the decision of the local planning authority. It is not in the best interests of a fair and impartial appeal process to have the deliberations of the Secretary of State in appeal decisions restricted by requiring that such guidance be disregarded.
As I said on the previous amendment, we would need to consult on this proposal in order to give local planning authorities and others the opportunity to put formal views on such a significant change. That is my problem with the amendment.
I shall go into the background because the speech of the noble Earl, Lord Cathcart, was very eloquent. There are real concerns about the phenomenon of garden grabbing. My argument is that this amendment will not prevent it, but that existing laws are capable of doing so. We made our policies on brownfield land areas and open spaces very clear through planning policy guidance. I shall come on to what the noble Earl said about PPS3 in a minute and especially what he quoted from his local planning officer. Planning authorities are required to take account of national policies in development plans, which provide the framework for decisions in individual planning applications. Local planning authorities are currently being encouraged to complete local development frameworks, which are designed to give clear strategic guidance about the local plan. There are statutory opportunities for local involvement in the preparation of these plans. National policies, where appropriate, can also act as material considerations in decisions on individual planning applications by planning authorities and, at appeal, by the Planning Inspectorate and the Secretary of State.
The history of the classification of gardens as brownfield goes back a long way and is complex. I think it goes back to 1985. Residential land has been classified as brownfield and covers all the land associated with a house or flat, including any garden as well as industrial, commercial, vacant and derelict land. The noble Earl will understand that simply to reclassify gardens so that they did not fall into the brownfield category would be extremely difficult because it would be impractical to define gardens in any way that separated the footprint of the building from the curtilage and the patios, drives or gardens that surround it. People want to do things in their gardens that may be well within their rights. Trying to separate the garden from the dwelling is extremely difficult and has serious implications for what people have a right to expect to be able to do most of the time. At the same time, it is not helpful to try to introduce blanket restrictions at national level that prevent well designed and much needed housing developments in areas where alternative land is in short supply, which applies to many boroughs in the south-east, in particular.
The noble Earl referred to planning policy statement 3. It sounds as though his local planning authority is rather sceptical about what it can enable it to do. We had a debate on the HCA to much the same effect. The provision was deliberately written to try to address some of those problems. We recognise the problem of the definition that sweeps up back gardens. The provision gives local planning authorities greater flexibility on the location of housing in their areas. They can set out within their local development frameworks strong and specific local policies to protect gardens in particular areas, if that is desirable. That includes—this is the way to do it—setting individual brownfield targets that apply only to back gardens, effectively separating them out from derelict land and vacant sites. That gives a red light to local planning authorities.
Many local authorities have done just that to protect against casual garden grabbing. Local authorities, especially those in areas of the country with mature residential suburbs, are under particular development pressure. They often have the choice between building out into greenfield sites or looking at what they have available that is plausible, practical, humane and fits in with what people can tolerate. They are already putting in place policies that will support them in refusing planning permission for proposals that would erode the supply of green spaces.
I can give two examples, which are significant because they are in the south-east and are boroughs under housing pressure. The Reigate and Banstead Borough local plan contains policies to maintain and protect high-quality residential environments. The unitary development plan of the London Borough of Sutton contains policies under which the council will resist the development of back-garden land considered to be of ecological value. In PPS3, we have given local authorities the tools to make those decisions and make them work and even greater flexibility to develop policies reflecting unique circumstances. All local authorities are free to do that.
I suggest to the noble Earl and his planning officer that they talk to some of those boroughs where they have reconciled those pressures and are using PPS3 creatively. As he said, the policy sits within a broader policy of protections for green space as a whole. He has already referred to PPG17, Planning for Open Space, Sport and Recreation, which lists what types of open space or recreational facility a planning authority may see fit to recognise as being worthy of protection within their policies. I will not repeat the list here, but it is very similar to that of the noble Earl’s amendment. It also states that existing open spaces and land should not be built on unless an assessment has been undertaken by the local authority. That assessment must have clearly shown the open space or land to be surplus to the requirements of the local community, taking into account all the functions that open space can perform.
We should not look to put additional legislation in place. Most of the time, this House would much rather that we proposed less legislation. The longer that I am a Minister, the more I am persuaded of that argument. We have to look for what works. We have argued consistently that making things work better should be our priority, but there is a serious problem and I am the first to acknowledge that there are concerns, not least for the reasons put forward by my noble friend Lord Howarth. Part of the problem is that, at the moment, we have only anecdotal evidence of where and how much garden grabbing is happening. We need better evidence. I therefore reassure noble Lords that, in the context of our 2007 White Paper commitment to review the national policy framework, we will consider how we can establish in the work that we are doing the extent of garden-grabbing and how we can strengthen and, crucially, communicate existing policies more successfully to help local planning authorities to address the problem.
We must ensure in the interim that all local authorities know that they have the tools to deliver all the improvements that we all wish to see. I mentioned that we have the happy accident of a new chief planner to adopt new priorities. I hope that he does not read Hansard tomorrow morning, as he may be rather surprised to see himself mentioned quite so often. We can ask him to look at this and to think about how we can best communicate to local authorities what in present planning law will enable them to take positive action to protect good-quality green spaces. My department does a lot of work to protect and enhance quality, not least through our green flag awards. The National Audit Office recently spoke about the enhancement of green spaces and parks, of which we are very proud. However, the noble Earl has drawn attention to a problem and we must consider what practical steps we can take to improve on what we are doing.
My Lords, I am grateful to the noble Baroness, Lady Hamwee, and the noble Lord, Lord Howarth, for supporting the amendment. I thought at the beginning that I was going to be able to offer lukewarm thanks to the Minister for almost supporting it but, having listened to what she said, I am not convinced by her arguments. She has still not convinced me that the present planning policies will safeguard gardens and open spaces. Sadly, she has not even offered to shut the stable door after the horse has bolted. Instead, she proposes to leave it wide open. In view of the importance of this matter, I wish to test the opinion of the House.
Clause 199 [The levy]:
129A: Clause 199, page 114, line 10, leave out from “land” to end of line 11
The noble Baroness said: My Lords, we now come to a completely different part of the Bill, which I know that we are all looking forward to enormously; namely, the community infrastructure levy. These are important clauses, although they represent the end of the Bill. I will not restate the case for CIL, save to say once again that a considerable consensus has been reached that CIL is the right way forward. My amendments in this group and others deliver the additional clarity that was sought by noble Lords in Committee and respond to specific points raised.
Government Amendments Nos. 129A, 136B, 148A, 148B, 149A, 153A and 160A respond comprehensively to concerns raised in this House, particularly by the noble Baroness, Lady Valentine, and by the industry, that CIL clauses place too much emphasis on the concept of land value uplift arising from the grant of planning permission. These amendments are either identical or broadly similar in effect to amendments proposed by the British Property Federation, the royal institute of chartered surveyors and Members of this House and the other place during the passage of this Bill.
The Government have held extensive discussions with the industry over the terminology. The amendments in this group attempt to allay concerns that the Government are attempting through this legislation to introduce their previous proposals for planning gain supplement, PGS. The record will show that I was quite clear in Committee that this is not the case, but I have tabled further amendments to put to rest those concerns. These amendments delete mentions of value uplift arising from the grant of planning permission in this part of the Bill. The reference to value uplift at Clause 203(2)(b) as being something to which charging authorities should have regard would be replaced by a reference to a more general concept of the economic viability of development as a result of government Amendment No. 136B. I hope that noble Lords will recognise that this is an example of us listening closely to the industry and responding to concerns, while also making the right long-term choices for our country. Last week, in a statement, the British Property Federation welcomed the Government’s desire to,
“ensure that in the longer term CIL delivers the necessary support for our communities—but in a way that does not deter development, nor create the impression that this is a centrally imposed development land tax. We were concerned that the bill did not make this clear enough before, so this is a positive change”.
This new amendment provides part of the explanation to the question of how CIL will work in London where there could be two charging authorities. I know the noble Lord, Lord Dixon-Smith, was particularly concerned about this.
The economic viability of development will include consideration of matters such as other costs that the development is likely to face. This would include developer contributions through planning obligations or CIL contributions due to another charging authority. The independent examiner would need to assess the combined impact of both charges on development and therefore consider the impact on development viability.
I should add that we do not envisage that the developer would be required to make two separate payments in London to two different authorities. That is clearly not efficient and we very much want to explore how a developer can make a single payment for all the CIL liability due. This would probably be to the borough, as boroughs will determine the great majority of planning applications in London, but we will consult on that. I hope that that will satisfy noble Lords.
Buried in the middle of the government amendments is an opposition amendment in the name of the noble Earl, Lord Caithness. It is better that I should hear him speak to his amendment first and then respond.
The industry has asked us whether we would be prepared to countenance a procedure by which a development in exceptional circumstances could receive a discount against CIL. For instance, it is suggested that where unforeseen factors were not taken into account in the setting up of the charging schedule, the imposition of CIL might render a development economically unviable.
Our position on that was set out in our August document at paragraphs 4.18 and 4.19. This legislation will provide charging authorities with a full range of tools to ensure that CIL charges are viable. For example, the Bill requires testing of the charging schedule by an independent person and it provides us with powers to create differential rates for different circumstances—paragraphs 3.61 to 3.63 of the August document—such as greenfield and brownfield land.
Government Amendments Nos. 148A and 148B propose two changes to Clause 214 to enable the charging schedule to both provide for exceptions to CIL and confer a discretionary power on a person. These amendments are supported by the industry. The changes will ensure that provision can be made to allow for exceptions and discretionary decisions within the CIL framework to be applied at the local level through the charging schedule as well as through the regulations directly. They are designed to give us the powers to ensure that CIL charging schedules are flexible local instruments. One key use of these powers could be to enable a procedure for exceptional cases, as I described earlier. We are committed to continuing what has been a very fruitful dialogue with the industry to see whether we can design something that will meet its concerns. I hope that reassures the House, particularly the noble Baroness, Lady Valentine.
For the record, we are not interested in designing a procedure that allows the exception to become the rule, nor a procedure in which there are protracted disputes about whether a developer can afford to pay CIL. That is not the point. Indeed, it is precisely those sorts of disputes that the industry saw as a key risk proposed by PGS. The whole purpose of CIL, and the reason the industry supports it, is to cut down on the lengthy and unpredictable negotiations which the current system is prone to and which many Members of this House are familiar with. We are trying to get away from that with this reform. We want predictability, simplicity and transparency so any procedure would need to be very carefully designed. I beg to move.
My Lords, I thank the Minister. There has been quite a marked dawning of light in her department with regard to CIL as those there begin to look at it and work it out. Had it not been for the progress in this House, I fear what might have emanated in the form of an Act. There clearly has to be considerable rethinking and planning as to what CIL is about.
Unfortunately I have to pick the Minister up again. She says she has huge consensus in the industry. If she had huge consensus, her officials would know that it is the Royal Institution of Chartered Surveyors, not the royal institute. The Minister was given exactly the same brief when we were debating the Bill that introduced the dreaded house information packs. I picked her up on it then. Can she please tell her officials it is the Royal Institution of Chartered Surveyors, of which I am a member, not “institute”?
My Lords, whatever the pack is called, it is hated by the industry, even more so now than when it was first introduced. Nevertheless I am grateful for the moves that the Minister has made. I draw the House’s attention to the Minister’s Amendment No. 153A and compare it to my Amendment No. 154A. The Minister did not say very much about her amendment; she has left that up to me.
Amendment No. 154A is to get rid of the Planning-gain Supplementary (Preparations) Act 2007. This was a pernicious little piece of legislation, paving the way for the Planning-gain Supplement Bill which was due to come to Parliament. However, the industry rebelled so much against the Planning-gain Supplement Bill that they have moved down a level to this Planning Bill and the introduction of CIL. As long as the Planning-gain Supplementary Act remains on the statute book, there is always a fear that this is what the Government really want, and when CIL fails, as it probably will in lots of areas, they can bring in the planning-gain supplement because they have this nasty little Act on the statute book.
When I moved this amendment in Committee, the Minister responded from one of the worst briefs she has ever read out. I am delighted to see her Amendment No. 153A but why does she not go the whole hog? Why do we have to leave it for the Treasury to repeal this Act by order? Why can she not just accept my Amendment No. 154A, which repeals it now? Unless there is a very good reason, I hope the Minister will at least look at this again because there is no point in waiting for an order which we cannot discuss. We do not know when it is going to come in and we have no idea what the Treasury’s thoughts are on it, whereas we can actually do the job now. If it is to be done, it is best done quickly.
My Lords, the Minister may have a particularly good reason for not accepting the amendment, because it appears to repeal an Act which does not exist. The noble Earl might have noticed that he seeks to repeal the Planning-gain Supplementary (Preparations) Act and not the Planning-gain Supplement (Preparations) Act. Given his castigation of the Minister earlier, I could not resist.
My Lords, I just want to make one point. The Government’s Amendment No. 136B represents a complete U-turn and a very welcome one for that. It is the amendment which gets away altogether from the suggestion that CIL should be charged on the increase in value as the result of a planning permission. As I said in Committee, that has been a fixation of Governments for decades, going right back to the Community Land Act 1975. At last it has now dawned on officials that it is not going to work, and the amendment takes it out. I warmly welcome that, but it leaves one with the impression that Ministers are making up this Bill as they go along.
My Lords, I want to speak in particular to Amendments Nos. 129A and 136B, but the point I shall make also stands in support of government Amendment No. 135A, which is grouped separately. Taken together, these amendments are extremely welcome. They address some of the principal concerns of London First and the British property industry regarding the proposals for the community infrastructure levy. Amendment No. 129A removes the reference to “land value” from the Bill. I will not rehearse again my contribution in Committee save to say that, as CIL is not a tax on land value, it must not be allowed to be misconstrued as such. The amendment resolves that issue, as does Amendment No. 135A, which makes a further reference to land value in Clause 202(9).
Equally welcome is Amendment No. 136B, which makes it clear that a charging authority must have regard to the “economic viability of development” when setting the CIL. It must not be set at a level that would stop land being brought forward for development, especially in these challenging economic times.
My Lords, I, too, welcome the amendments and regard them as a major step forward. It is a great relief that CIL is no longer being regarded as a tax on value gain and I warmly welcome the fact that this proposal was made by all sides of the House. I congratulate the Minister on accepting the new approach.
My Lords, I thank the Minister for removing the anomaly that in effect would have made CIL a tax on gain, and making it properly into a charge for development. That in itself is welcome. I have some sympathy with the difficulty of my noble friend who wants a clear and clean solution to the issue of the Planning-gain Supplement (Preparations) Act 2007. Equally, I listened to the noble Baroness, Lady Hamwee, who raised the valid point that it is a piece of legislation that has only been empowered to be brought forward. However, I understand that it was not brought forward because it had not been drafted.
I want to go back to what the Minister said about developing a system for a single payment in London to be paid through the boroughs. Again, I am grateful to hear about that. However, it may well leave the mayor in a difficult position because at the moment each London borough will be able to set a level for CIL that will have to be agreed by using a single viability test after the mayor has produced his CIL assessment. The process is fine, but I merely observe that the mayor may well not be able to set a single CIL rate; there may have to be a separate rate for each borough because each one has the right to set its own CIL rate. The viability test is on a combination of the two. That might mean that the overall London CIL rate perforce has to be varied borough by borough. It will put the mayor in a complicated situation. It is a point that the Minister may want to think about.
That is my observation. I do not know whether there is an easy way around the issue, but I do not think there is. We should be aware of the difficulties that are going to be caused.
My Lords, I am pleased that our amendments to the substantive issue have been welcomed. This has required a lot of close discussion with the industry to understand its concerns, and I am particularly grateful to the noble Lord, Lord Jenkin. I should say that I am quite happy to make U-turns if they are in the direction of common sense and the workability of legislation. It was not so much a U-turn, but that we are on a long road and we have been able to get there in the end.
I want to speak to government Amendment No. 153A, which amends Clause 217 to allow the Treasury to repeal the Planning-gain Supplement (Preparations) Act by order, and Amendment No. 160A to Clause 232, which provides that the order would,
“extend to each Part of the United Kingdom”.
In that context, I should like to address the amendment tabled by the noble Earl, Lord Caithness. We have a problem in that we are dealing with a non-existent piece of legislation in the terms of his amendment. I was conscious that we debated this issue at the very end of a rather exhausting day in Committee and that both this amendment and those that followed it suffered because we were all rather conscious of the clock. I therefore stand reproved by noble Lords who said that I had not given a full answer to the issue. This is an opportunity for me to explain our amendment and make the position clear.
The fact is that the Act in question is an extremely short and technical piece of legislation that contains no tax-raising powers. It is purely an administrative tool. It is significant to note that in all our conversations with industry bodies, none thought it significant enough to lobby for its repeal. However, the noble Earl has asked why we do not go the whole hog on this. We believe strongly that CIL will be an effective tool for local authorities with which to raise additional funding for infrastructure, but it is sensible and proper to make sure that it works in practice on the ground before we start to unpick the steps that were taken previously just to facilitate the introduction of PGS.
Ministers at the Dispatch Box in either House are often told that the Government tend to rush in before the evidence of change actually working can be assessed. This is an instance where we think that we are right to be pragmatic and to commit to assessing the impact of CIL. There is nothing underhand or sinister about it, and it certainly does not mean that we are setting CIL up to fail so that we may return to PGS by a tortuous route. That would not make any sense. There is impressively wide consensus that CIL is the right way forward—and that consensus includes Members on the Benches opposite. It has taken several years of debate and a huge amount of hard work on all sides to reach this point, so why on earth would we throw such consensus away by deliberately and not very subtly undermining a policy that everyone agrees has a good chance of success and is necessary?
The Government will want to consider a number of factors in assessing whether CIL is fully delivering its objectives, and these include the uptake of CIL by local authorities, the amounts raised for infrastructure and that the CIL process is operating at a proportionate cost for developers and local authorities. The Government want to consider those factors in the round so that we reach a balanced and sensible assessment of CIL once it has had a chance to bed in. The problem with the amendment tabled by the noble Earl—a problem that has arisen consistently with this proposal—is that it would not give us that ability. That is why I am afraid that I cannot accept his amendment. However, under the circumstances, I hope that he will accept in good faith our proposals.
On Question, amendment agreed to.
129B: Clause 199, page 114, line 14, leave out “Charging authorities” and insert “The charge”
The noble Lord said: My Lords, this group of government amendments provides clarification about the way that CIL will operate and is, I hope, uncontroversial. Government Amendments Nos. 129B to 129G amend the table set out in Clause 199(3). The table offers guidance to users of Part 11 about the content of the clauses. The table needs to be updated to reflect the existence of new clauses. The noble Earl, Lord Caithness, may recall our discussion about a similar amendment that he tabled in Committee. I asked him to withdraw his amendment because I thought that the Public Bill Office would update the table as necessary. The Public Bill Office updated the table when the Bill was printed on its introduction to the House of Lords to reflect new clauses introduced in the other place. However, we are now advised that the table must be updated by amendment. Amendments Nos. 129B to 129G achieve that, taking on board amendments provided for new clauses which we have tabled for Report. We regret misleading the noble Earl, but can assure him that we thought the amendment of the table would simply be a formality when we discussed it in Committee.
Government Amendment No. 136C is a practical amendment to Clause 203 to make express provision to allow charging authorities to undertake preparatory work, including consultation in connection with their charging schedules ahead of full CIL regulations. Of course, the preparatory work that a charging authority does must be robust. To this end, the amendment provides for regulations to set out how such work must be undertaken, and could set down the minimum standard such work must satisfy in order to be relied upon by the charging authority. Government Amendment No. 161A is supplemental to Amendment No. 136C and amends Clause 233 to allow the Secretary of State to commence the new provision which Amendment No. 161A would insert by order, rather than automatically on commencement of the Act, or two months later. This will allow time for the Secretary of State to prepare regulations setting out how preparatory work should be undertaken.
Government Amendments Nos. 137A and 137B provide for regulations to put in place a sensible mechanism to rectify mistakes that may, with the best of intentions, slip into the report of the independent person examining the charging schedule or the final charging schedule approved by the charging authority. We do not want the charging authority to have to go through the entire process of revising the schedule in order to correct an error. A mechanism called the slip rule exists to correct minor errors in relation to planning decisions. This amendment allows for a similar mechanism to be provided in relation to CIL charging schedules. This provision is not about allowing the independent person belatedly to change their mind about their decision, or the charging authority to substitute their preferred decision for that of the independent examiner. Regulations could contain certain safeguards as to how this power can be used.
Government Amendment No. 140B clarifies who any proceedings for judicial review of a decision on an appeal on a matter of fact under Clause 207 would be brought against. Government Amendment No. 140B specifies that the defendant would not be the individual valuer or district valuer who determined the appeal, but rather the public body that employs them, that is to say, the commissioners of Her Majesty’s Revenue and Customs. This is not an unusual arrangement. For example, in relation to planning appeals, or appeals against the refusal of listed building consent, determined by individual planning inspectors, any claim for judicial review is against the Secretary of State, rather than the individual. This provision puts in place sensible protections for the individual decision-maker when acting in a public capacity, not least against the costs of defending a claim for judicial review, but it returns the recourse to judicial review of a decision, which is crucial for confidence in the system.
Government Amendment No. 146C provides that a power in Part 11 of the Bill, about the publication of, for example, the charging schedule or other document, includes the power to make provision to make it available for public inspection. This power could be used to specify that charging authorities must make copies of the charging schedule available for inspection by the public during office hours at their principal offices, for example. Clause 208(8) already contains a similar provision but is limited in its application to Clause 205(5)(a), which is about the publication of a list of the projects to be funded by CIL. It becomes redundant as a result of this amendment and government Amendment No. 142C therefore deletes it.
The powers relating to accounting and reporting requirements in Clause 208(7)(a) and (c) only apply to charging authorities and bodies to which a charging authority might pass CIL, but Clause 209(5) allows regulations to empower or require other authorities to collect CIL charged by another authority. For instance, a London borough might collect CIL on behalf of the mayor. Therefore, government Amendment No. 143A extends the powers in Clause 208(7) to be able to impose requirements on how collecting authorities make accounts about CIL and reporting on its collection. This is so that requirements similar to those imposed on charging authorities for the purposes of transparency and accountability can be placed on them.
Government Amendment No. 144C enables regulations to provide for enforcement in the case of the death or insolvency of a person liable for CIL. Such provision is important if charging authorities are to collect CIL effectively. This amendment will allow regulations to set out the detail of how CIL is to be recovered in such situations. One possible model is paragraph 10 of Schedule 4 to the Business Improvement Districts Regulations 2004, which provides that, in essence, executors or administrators are liable to pay any outstanding liability out of the assets and effects of the deceased. This amendment enables CIL regulations to provide for a similar approach.
Government Amendments No. 145A, 145B and 145C propose changes to Clause 211, which would ensure that the authority which collects and enforces CIL can be made subject to the compensation provisions set out in regulations under Clause 211, even if they are not the charging authority. Currently, Clause 211 on compensation provides that CIL regulations may only make provision for charging authorities. However, charging authorities might delegate the collection—and therefore the enforcement—of CIL to another authority. This scenario might arise through a voluntary arrangement between authorities, or regulations might require one authority to collect for another, as I have already said.
It is sensible to ensure that we have the power to make any authority enforcing CIL liable to pay any compensation for loss or damage resulting from inappropriate enforcement activity. It is therefore vital that the Bill contains provisions to make regulations for that. It is also sensible to make provision for regulations to be able to require charging authorities to use CIL money to pay any compensation arising from CIL enforcement actions, rather than other council budgets potentially being put at risk. Government Amendment No. 145D expands Clause 211(5) to provide for this.
Government Amendment No. 147A expands Clause 213 to enable the Secretary of State to give guidance to the independent examiners who will undertake the examination in public of the charging schedule. The provision could be used to provide guidance for the examiners about the conduct of the examination and the types of procedure that might be appropriate. This is not about fettering the discretion of the independent person to do what is appropriate in the circumstances of each case, but would help to ensure consistency of approach and minimum standards for examinations. I beg to move.
My Lords, I tabled an amendment to government Amendment No. 140B because I was struck by the fact that in the proceedings for judicial review on appeal the defendant,
“shall be the Commissioners for Her Majesty’s Revenue and Customs and not the person appointed under subsection (1).”
I became immediately suspicious that this had something to do with the same issue that I shall be raising with Amendment No. 130. However, the department of the noble Baroness was extremely kind and got in touch with me this morning to say that my suspicions were wholly unfounded. The purpose of this is to enable a professional district valuer to decide whether the charge is affordable or not. It is simply, as the noble Lord said, a matter of fact. I do not intend to move my amendment.
My Lords, I have one amendment in this group, and some questions, or points, on others. I shall take them in sequence. On Amendment No. 136C, I find it startling that an authority had to be given permission to consult. This is rather different from taking some other, more technical, preparatory steps. If regulations are required for an authority to consult on anything, there is something deeply wrong. On the errors amendment, the noble Lord referred to the slip rule. Here, I speak partly to Amendment No. 137A. I am glad to have confirmation that this is not intended to deal with errors of judgment. I still find it difficult to understand what “error” means in this context. Will he point the House towards how it is restricted in the way that he has said? Amendment No. 137A says that examiners may,
“reconsider their decisions with a view to correcting errors”.
The term “reconsider” suggests something rather wider.
My Amendment No. 143ZA is completely the opposite of an amendment that the Government have tabled. I seek to take out from Clause 209(5), regarding collection, the words “or require” from the wording,
“The regulations may permit or require a charging authority or other public authority to collect CIL charged by another authority”.
Regulations not just to permit the charging authority but to require another public authority to collect CIL charged by another authority go too far. Reference has been made to the position in London. I do not oppose the right of the mayor in London to levy CIL, but it raises an awful lot of issues about the mechanisms for collection, which I am not clear have been dealt with, and the administrative burden on the boroughs. There is work to be done with the London boroughs on how that will operate, and my amendment would mean that it would be a matter of negotiation between the boroughs and the mayor.
Amendment No. 143 would consolidate the imposition on the boroughs. I do not think that is the right way to go, and the provision is opposed by London Councils, the umbrella group for the London boroughs. For instance, can the boroughs charge an administrative fee to meet the costs of collection and enforcement? This is not just a London issue. We would support co-operation and joint working but not top-down arrangements.
I also oppose government Amendment No. 143A because it applies Clause 208(7)(c), which says that regulations may,
“require a charging authority to report on actual or expected charging, collection and application of CIL”.
How can a non-charging authority report on expected charging applications—or indeed anything much?
Government Amendment No. 145A would provide for a non-charging authority to be required to pay compensation under Clause 211, as has been explained. I query whether it is right if, for instance, the charge is wrongly applied by the charging authority, as distinct from the collecting authority, for the non-charging authority to be put in the frame for it.
Under government Amendment No. 145D, regulations would require a charging authority to apply CIL for expenditure on compensation. Why “require” rather than “permit”? Is it right for the Government to apply the ring-fencing that seemed to be implicit in what the Minister said?
I have made a number of detailed comments on this, and this is the first point at which I am speaking on CIL. I have amendments that, in the way that these things are done, will come later, in which I will seek to persuade the House that this is not the point at which to proceed with CIL in the way that the Government wish. I will not rehearse those arguments now, but my taking part in the debates on the earlier groupings should not be regarded in any way as a signal that I am putting my hands up and resiling from the view that is inherent in the amendments grouped with Amendment No. 131. Trying to be constructive, although I might not have sounded it just now with that list of questions, I think that there are issues still to be pursued.
My Lords, the noble Baroness, Lady Hamwee, has raised a number of important issues, and some technical ones. I shall respond first to her Amendment No. 143ZA, which would remove the flexibility for CIL regulations to put in place the more efficient and effective arrangements for collecting CIL. She has mentioned London, where both the mayor and the borough would be charging authorities. It is likely to be simplest and clearest for developers if the borough collects CIL rather than the mayor, because the boroughs deal with the vast majority of planning applications that CIL would relate to. We are discussing the best way forward with London authorities, and the provisions in Clause 209(5) give us the flexibility to put the most appropriate arrangements in place through CIL regulations. Any authority that undertakes work on CIL should be resourced to do so, and we are considering how best to achieve that for those authorities that regulations may require to collect CIL on behalf of others. I assure the House that we will return to that at Third Reading. I hope I have said enough to convince the noble Baroness to withdraw her amendment.
With regard to the authority needing powers to consult, the provision is to ensure that charging authorities have the power to undertake preparatory work. The law is not clear on this, and it avoids assurance on consultation specifically. It allows for that before the CIL regulations are fully in place. In respect of the comments the noble Baroness made on the government amendments, I will write to her formally with detailed responses if she would be content with that.
My Lords, I apologise, I forgot to declare that I am the joint president of London Councils. I think I had raised in my mind the point I was making before I realised that it reflected some of that organisation’s briefing.
On Question, amendment agreed to.
129C: Clause 199, page 114, line 14, at end insert—
“Section 201 Joint committees”
129D: Clause 199, page 114, leave out line 15 and insert—
“Sections (Liability) and (Liability: interpretation of key terms) Liability Section (Charities) Charities”
“Sections (Liability) and (Liability: interpretation of key terms)
129E: Clause 199, page 114, line 16, at end insert—
“Sections 204 to 206 Charging schedule Section 207 Appeals”
“Sections 204 to 206
129F: Clause 199, page 114, line 19, at end insert—
“Section 211 Compensation”
129G: Clause 199, page 114, line 23, at end insert—
“Section 216 Amendments Section 217 Repeals”
On Question, amendments agreed to.
130: Clause 199, page 114, line 25, at end insert—
“(5) Regulations under this section shall be made in accordance with section 214(2).”
The noble Lord said: My Lords, this amendment is in my name and that of the noble Baroness, Lady Hamwee. The first two amendments in this group, Amendments Nos. 130 and 149, address the issue of whether regulations made under Part 11, dealing with CIL, should be approved by both Houses of Parliament or only by another place, which is what is proposed in the Bill. Amendment No. 130 is a paving amendment; the substantive amendment is Amendment No. 149, which we will come to eventually, but we intend to debate the issue on this amendment.
I moved much the same amendment in Committee. At the end of a long Thursday sitting on the Bill, there were very few noble Lords in the House. Nevertheless, my amendment then had support from all parts of the House, and I was encouraged to return to the attack. In Committee, I drew attention to the important report of the Delegated Powers and Regulatory Reform Committee. I am delighted to see its chairman, the noble Lord, Lord Goodhart, in his place today; it is valuable that we shall have the benefit of his advice on this. Briefly, the DPRRC recommended that the power to approve CIL regulations should be the subject of control of both Houses. The Government had argued that the imposition of a charge was a matter for the financial privilege of the House of Commons. There are, however, two important arguments against this. The first is that the Committee pointed out that under earlier legislation some aspects of existing charges are subject to the procedure of both Houses. They listed national insurance, council tax, business rates, the business improvement district levy, the climate change levy and a couple of others. Why is CIL different? Why does it not follow the same pattern as those earlier charges? It is not paid into the Consolidated Fund or any similar fund. It is spent by the body which raises the charge.
The second argument is more procedural. It is not for this House, or indeed for the Government, to assert financial privilege on behalf of another place. That is a matter solely for the other place. That is clear from the first two sentences of the Companion to the Standing Orders. I quote paragraph 7.173:
“Each House of Parliament is guardian of its own privileges. It alone may invoke them”.
If Part 11 were like a Finance Bill or similar piece of legislation, we would not be entitled to table amendments; we would not be entitled to debate the Bill at all, except in a very general way. Yet we spent an entire day in Committee on CIL and we will spend most of the rest of today doing the same. If another place wishes to claim financial privilege, it is up to it. It is not the business either of the Government or of this House to do it for the other place.
When the noble Baroness, Lady Andrews, replied to the debate on October 23, she did so, if I may put it kindly, very briefly. She did not, however, attempt to reply to those two arguments but contented herself simply with reasserting the Government’s views that were put to the Delegated Powers Committee. Those views were firmly rejected by the Committee in its report. I look forward to listening to the speeches of noble Lords and in particular to what we shall hear from the noble Lord, Lord Goodhart. I beg to move.
My Lords, Amendments Nos. 130 and 149, which have just been spoken to by the noble Lord, Lord Jenkin, raise an unusual issue and one which is of some constitutional importance. That issue is the extent to which the House of Commons could or should reserve to itself the sole right to make regulations in connection with a levy such as CIL. I am speaking in this debate because this was an issue which, as the noble Lord, Lord Jenkin, said, was considered by the Delegated Powers Committee in its 12th report. What I will say broadly reflects its conclusions.
It may be helpful if I explain the constitutional background. As all of us know, your Lordships’ House has no power to intervene in the raising of taxes which go into the Consolidated Fund. This Bill contains no such provisions. Part 11 creates a framework. It confers on local authorities a power—not an obligation—to impose on the owners or developers of land, not on the general public, a levy which will be paid to the charging authority to help defray the cost of infrastructure needed to serve that development. As the Bill was amended in Committee to exclude the Secretary of State from the list of possible charging authorities, none of this money will go to the Government.
It is clear from the passage in the Companion to Standing Orders of your Lordships’ House, which the noble Lord, Lord Jenkin, quoted, and also from Erskine May, that it is entirely legitimate and proper for your Lordships’ House to vote to amend Clause 214(2) so that it requires the approval of both Houses for regulations. If such an amendment in your Lordships’ House infringes the privilege of the House of Commons, the House can either insist on its privilege or waive it.
That subject is dealt with in some detail in chapters 32 and 33 of Erskine May. What emerges from a study of those chapters, however, is a fog. It reminds me of a story of my father’s when he was lecturing at Oxford University. One of his students came to him after the lecture and said, “Well, Professor Goodhart, before you lectured I was confused. Now I am still confused but at a much higher level”. That is my reaction to what I have obtained from Erskine May. It does not provide answers to some important questions. What is the boundary between matters which give rise to privilege and those which do not? Are there any principles or precedents which guide the House of Commons as to whether it should waive privilege or not? If so, what are those principles and precedents? None of this is clear.
So far as we do get guidance from Erskine May, the most relevant guidance is that given in two passages in chapter 33. The first of these is at page 919, where it says,
“the Commons have long included not only bills dealing with the public expenditure and revenue but also bills which deal with local revenues or charges as matters to which their privilege extends”.
The second is at page 926, which states:
“The Commons now generally waive their claim regarding amendments made to bills that they have sent to the Lords, dealing with local revenues, more especially when those amendments affect charges upon the people incidentally only and are made for the purpose of giving effect to the legislative intentions of the Commons”.
Those two passages suggest to me that Clause 212 is indeed within the privileges of the House of Commons, but that it would be normal for the House of Commons to waive its privilege if requested to do so.
The committee took the view that Clause 214(2) should therefore be considered carefully by your Lordships’ House. There are many precedents here for a full waiver of privilege by the Commons, some of them in which a stronger case for waiver could be made than in this case. In the 12th report, the committee cited as charges subject to the procedure in both Houses those various forms of taxation or levy which were referred to by the noble Lord, Lord Jenkin. Some of them are far wider in scope than CIL and several of them affect ordinary citizens, whereas CIL affects only those who carry out or profit from development.
I do not think it would be right, therefore, for your Lordships’ House to accept Clause 214(2) as it stands. I can see no justification for leaving the whole of the regulation-making power in Part 11 in the hands of one House only. Even if there is—as I think there is—an argument for leaving it to the House of Commons to approve regulations which identify who is subject to the levy and which govern the amount of it, I can still see no serious argument for excluding your Lordships’ House from regulations on matters such as procedure for CIL, the method of its collection or of its enforcement.
Not all these regulations would need the affirmative resolution procedure that they have been given in this Bill. Looking at this, the Government might consider that some of them should be lowered to the negative resolution procedure.
It is therefore my intention to vote for the amendments of the noble Lord, Lord Jenkin. If your Lordships’ House then accepts them, the House of Commons can decide, when the Bill goes back there, the action appropriate for it to take. That is a more appropriate procedure than simply excluding your Lordships’ House from any power to make regulations, without enabling us to express our view. The Commons can then consider whether it will exercise its powers rather than waive its privilege, and, if so, to what extent. I support Amendments Nos. 130 and 149.
My Lords, in Committee, I put my name to the amendment of my noble friend Lord Jenkin. The fact that I have not done so on this occasion does not mean that I have withdrawn my support. It is still there, but I was a little tardy in getting my name down. I reassure my noble friend that he has my full support.
My Lords, I added my name to these amendments to signify the support of these Benches. I knew that that was the right thing to do, and was further convinced having listened to the speech of the noble Lord, Lord Jenkin of Roding. I am also convinced that I was absolutely right to let my noble friend Lord Goodhart speak first. I know that he was speaking in his capacity as chairman of the Delegated Powers Committee, whose reports suggests that the House may wish to consider certain matters. I am delighted that my noble friend and his committee have stuck with this as they have. I could not possibly add anything.
My Lords, I support the noble Lord, Lord Jenkin, but with a distinct lack of the legal expertise displayed by the noble Lord, Lord Goodhart. We are talking about regulations being put together to govern the application of a locally set, raised and applied levy. That levy is not a general tax, because it goes from a landowner or developer to pay both public and private agencies for infrastructure rendered. As the noble Lord, Lord Goodhart, said, none of it goes to the Government.
Parliament is not setting the levy. It is not even saying to what infrastructure it should contribute if it is levied at all. Parliament, which of course includes this House, merely wishes to apply its expertise to how this tax will work, as we should be doing now in the Bill and would be if Part 11 were not quite so anorexic—anorexic being one stage better than skeletal, as Part 11 was until quite recently. We have been floundering around, dealing with CIL, without really being able to get to grips with the detail of how it will work in practice—although, because of the expertise in this House, we have made significant progress.
This is a planning Bill, and CIL is essentially to be a local charge on development permitted by planning permission. I hope that this House will continue to be able to apply its expertise to how the new regime will work. The Minister has mentioned several times during the passage of the Bill the fact that we have that expertise in this House. I hope that she will allow the planning system to avail itself, constructively and affirmatively, of that expertise.
My Lords, I endorse entirely the remarks of the noble Lords, Lord Jenkin and Lord Goodhart; I will not attempt to improve upon them.
I appreciate that the Minister is not in an easy position on this. I say to her only that this is not a matter of government policy. It is not a partisan matter. It is a matter of the position of this House, and the proper relationship of the two Houses. I simply cannot believe that, if it is considered in the cold light of day, the Government and the Commons should think it unreasonable that this House should not have a voice, at least on some parts of the regulatory framework. Even if my noble friend cannot say that she can accept the amendment today, I hope that she will make one last effort to ensure that the matter is considered again. It would be a great pity for this House if the Government, who have listened so carefully on so many aspects of the Bill, were not able to listen on this.
My Lords, first, I thank my noble friend for once again raising this issue and sticking with it when he had little initial encouragement. Secondly, I thank the noble Lord, Lord Goodhart, who, as chairman of the Delegated Powers Committee, has perforce had to study in great detail the constitutional position in which we find ourselves on this matter. To know that he absolutely supports my noble friend’s position lends great strength to the proposal.
Finally—I need only be brief—I hope that the noble Baroness will find some way to listen to the wise words of the noble Lord, Lord Woolmer of Leeds. This is not a matter of law, but of parliamentary practice which has been worked out over a long time. If we trip over it occasionally, it is for good reason.
Having listened to the noble Lord, Lord Goodhart, one might say that might is on our side. However, it is not a question of might but of custom and practice. That is rather different, and is significant in British practice. We ought to maintain it while we can.
My Lords, once again, when we debated this in Committee we were unfortunate that it came at a compressed time of the day. I am pleased that we have had the opportunity for a wider debate, and particularly that the noble Lord, Lord Goodhart has been able to join it. We were much influenced in all manner of ways by what his committee had to say when we first presented the Bill. I hope that he feels that we have been able to take account of most of the major recommendations.
Before I turn to the amendment of the noble Lord, Lord Jenkin, I first speak to my Amendments Nos. 154B and 154C. Noble Lords will recall that government Amendment No. 149A, which we discussed in an earlier grouping, makes provision for the procedures to be used in relation to the two order-making powers in Part 11: the power in Clause 210(10) which relates to the caps on penalties for criminal offences in Clause 210(9); and the power in new Clause 217(2) which relates to the repeal of the Planning-gain Supplement (Preparations) Act 2007 which government Amendment No. 153A introduces. Given that Amendment No. 149A makes this provision about the procedures to be followed for these order-making powers, Amendments Nos. 154B and 154C disapply the relevant provisions of Clause 224 which make general provision about the procedures for the making of orders under the Bill.
On the substance of the group and Amendments Nos. 130 and 149 of the noble Lord, Lord Jenkin, I tried to set out in Committee why I felt that the regulation-making procedure in Part 11 should remain with the other place, as Clause 214(2) provides. We all agree that delegated legislation involving financial matters is, by a well established convention, something over which the other House has a privilege. The noble Lord, Lord Goodhart, did us a service by reading Erskine May, because there is no doubt that this is a pretty treacherous, and not just foggy, piece of procedure. It is complicated. I know that the noble Lord—
My Lords, does the noble Baroness accept that it appears from Erskine May that, while this matter may be within the boundaries of House of Commons privilege, it is also one that the House of Commons has the power to waive? Therefore it would be appropriate to ask the House of Commons whether it wishes to waive its privilege, rather than dealing with a Bill that, from the beginning, says simply that all these regulations are a matter for the House of Commons.
My Lords, I agree with the first part of what the noble Lord said: the House of Commons has the ability to waive its privilege. I shall proceed with my argument and address some of the issues that he raised.
The DPRRC noted examples of where the other place has waived its privilege over financial matters. It listed regulations relating to national insurance, council tax and business rates that involved this House. However, the precedents are mixed. The other place asserted its privilege over amendments from this House to the community charge provisions in the Local Government Finance Act 1988. The noble Lord, Lord Dixon-Smith, said that it was a matter of custom and practice; and that custom and practice have been variable. Part of my case is that, no matter whether or not we consider it to be a local charge, it is about raising revenue.
We have set out why the CIL clauses in Part 11 are broad and enabling. We are building on experience of standard charging; but this is a new departure for the planning system, and it will evolve as people become more familiar and comfortable with it, as happened with Section 106. One problem with getting this right is that we do not have the luxury of an annual finance Bill that we can use to tidy up planning legislation. These are much rarer animals and we need to have flexibility over time to reflect on the lessons learnt from the application of CIL in practice, and from the different arrangements in different areas. The industry agrees with that.
We responded to the DPRRC’s concerns that we should add more detail to the Bill. The most recent report, which the committee did wonderfully well to produce this morning, says that it no longer considers CIL to be skeletal. I will argue concerning future amendments that it is not even anorexic, but a fully grown and rather flourishing infant. The CIL regulations will contain more elements than regulations for other regimes, and those elements could have a character of a sort that the other place normally reserves to itself.
I listened very carefully to what the noble Lord, Lord Goodhart, said about the fact that there were distinctions to be made between the sorts of regulations that might come forward. The amendment of the noble Lord, Lord Jenkin, would provide for all CIL regulations to be subject to the affirmative resolution of that House. However, in its 13th report the DPRRC said,
“except in so far as the House considers that provision in Part 11 of the Bill is related to matters over which the Commons will claim financial privilege”,
which seems to acknowledge implicitly that the other House might well do so for at least some of Part 11.
Noble Lords have already made it clear that I cannot speak for the other place: I cannot determine what the other place does. If the noble Lord’s amendment is accepted by this House, the other place will take a view on whether its financial privilege has been infringed, and whether it wishes to waive it. It will only do so once the Bill is again before it.
I have listened hard, both in Committee and today. I have taken full note of the comments made by the Delegated Powers and Regulatory Reform Committee. We are still of the view that it is a financial matter and that it is appropriate that the regulation-making procedure should remain with the House of Commons.
My Lords, that is an exceedingly disappointing reply. The noble Baroness has made no attempt to answer the point that was made in an intervention by the noble Lord, Lord Goodhart. How can the other place decide whether to waive its privilege if we do not put this amendment into the Bill? It will simply go back and that will be that. I am determined to test the opinion of the House.