§ Consideration of amendments on Report resumed.
Lord Moran moved Amendment No. 48A:
After Clause 11, insert the following new clause:
§ "Meaning of development: fish farming in England and Wales
§ . After section 55(3) (b) of the principal Act (meaning of "development" and "new development") there is inserted—
§ "(c) the use of any buildings or other land or the carrying out of building, engineering or other operations in, on, over, or under land for the purposes of breeding or rearing fish or shellfish is not development for the purposes of agriculture, and in this paragraph "land" includes any land covered by water and extending seawards to the baselines from which the breadth of the territorial sea is measured."").
§ The noble Lord said: My Lords, in moving Amendment No. 48A which deals with fish farming in England and Wales I should also like to speak to Amendment No. 58A which deals with fish farming in Scotland.
§ At Committee stage a number of noble Lords expressed a wish to see greater control over fish 483 farming, reflecting a widespread desire by many of the bodies concerned outside this House. The response of the Government was disappointing. They have not so far been prepared to go further than to say that building or engineering works for the purposes of fish farming within national parks should cease to enjoy permitted development rights. They have not been prepared to contemplate a similar extension of control outside the national parks—although I believe that that already applies throughout Scotland—the bringing of the use of buildings or land for fish farming itself within planning control, or the extension of planning control into coastal waters.
§ The amendments are designed to bring the use itself in inland or coastal waters within the definition of development. I should also like to see the permitted development rights for structures and buildings withdrawn outside as well as inside national parks. I understand that that would not involve any amendment to the primary legislation; merely a revision of the general development order.
§ The amendments are intended to cover the main points about fish farming raised at previous stages of the Bill. They apply both to fin fish farming—for example, salmon and trout farms—and to shellfish culture. They would apply to put-and-take shell fisheries in estuaries, for example, new proposals for oyster beds, mussel rafts or racks for culturing the alien Manila clam. They would not apply to traditional fishing of naturally occurring stocks.
§ The amendments are intended to apply to floating structures such as rafts and cages typical of certain operations. Those are the structures over land referred to in the amendment. The land in question is taken to include land covered by water as defined in Schedule 1 of the Interpretation Act 1978. The definition of land is further qualified so as to include land covered by internal waters, namely land in marine areas out to the baselines from which the territorial sea is drawn. Those thoroughly practical lines follow the low watermark along most open coasts. Moreover, in embayments, firths, inlets and estuaries baselines are drawn from point to point between headlands. Those are the areas—our bays, lochs and estuaries—where fish farming proposals are so controversial in environmental terms.
§ At an earlier stage of the Bill (at col. 1366 of Hansard for 17th January) the noble Viscount, Lord Astor, expressed the Government's view that a similar amendment would alter the longstanding definition of agriculture. What is wrong with altering a longstanding definition in law? It is surely the business of this House and of the legislature as a whole to alter definitions in law if that is appropriate whether or not they are longstanding.
§ It is a mistake to regard the culture of captive fish or shellfish as agriculture. The Oxford Dictionary defines agriculture as the science or practice of cultivating the soil or rearing animals. It defines aquaculture as the cultivation of plants or breeding of animal, in water. That is what fish farming is.
§ I was surprised that the Government suggested at an earlier stage of the Bill that there was insufficient evidence of difficulties to warrant the across-the-board 484 introduction of planning controls over fish farming, as the noble and learned Lord the Lord Advocate said on 29th January (at col. 649 of Hansard). All fish farms create water pollution problems and the risk of pathogens or parasites affecting wild fish populations. There are rivers and freshwater lakes where they are certainly unwelcome in environmental terms. That last point has already been partially conceded by the Government in their acceptance of the recommendation of the Agriculture Select Committee in another place that permitted development rights for fish farming in national parks should be withdrawn.
§ The amendments seek to withdraw that right across the board. That is a course which is fully supported in England and Wales by the Association of County Councils, the National Rivers Authority, the County Planning Officers Society and the Council for the Preservation of Rural England. The amendments simply give planning authorities the right to consider individual proposals.
§ In the case of Scotland, covered by Amendment No. 58A, objections to the recent large number of salmon farming ventures have included intrusion into areas valued for their landscape quality, seabed pollution with waste food and fecal material, chemical pollution, the escape of farmed fish spoiling the quality of local rod fisheries and causing genetic pollution of wild stock (a matter about which the Atlantic Salmon Trust is extremely worried because the escaped fish interbreed with wild fish) and the adverse impact on public highways.
§ The Convention of Scottish Local Authorities has called for full planning control over all aspects of fish farming. That call is backed by Scottish Wildlife and Countryside Link which represents all the principal voluntary wildlife conservation bodies in Scotland and by the Atlantic Salmon Trust.
§ It is not enough for the Government to suggest that consultation procedures have been tightened up by the Crown Estate Commissioners in respect of seabed leases for coastal fish farms. The time has surely come for the full measure of town and country planning legislation to apply both above and below the low water mark and in respect of floating structures.
§ There is a further point that I should like to mention, of which I have given the noble and learned Lord the Lord Advocate notice. The Atlantic Salmon Trust was surprised to see the noble and learned Lord's statement in this House on 29th January (at col. 651 of Hansard). He said that he was clarifying the position in Scotland about freshwater fish farms and planning. As the trust understand it, that is not the situation because it was sent a consultative document on the 13th December (PGB/3/6). Appendix B, page 2, paragraph 10 seems to suggest that freshwater fish farms are covered in Scotland. That is an area about which there appears to be confusion. I hope that the noble and learned Lord the Lord Advocate will be able to clear up the matter.
§ On the wildlife aspect, floating mussel rafts can be located in areas where they are a positive invitation to large numbers of eider duck, which is a protected species. That causes problems. Seeded oyster beds on 485 or about dead low water and adjacent to sites of special scientific interest can also create ecological problems. I am told that there have been considerable problems about whether and by whom these activities are regulated. The harbour commissioners say that it has nothing to do with them. They say, "Have a word with the MAFF fishery people". MAFF and DAFS say that it is not a matter for their offices but the operation is authorised by the Sea Fisheries Committee and the Crown Estate Commissioners. The Sea Fisheries Committee says that it is ultra vires on nature conservation grounds to refuse authority for any new put-and-take clam enterprise and the Crown Estate Commissioners say that they have an overriding duty to maximise rental incomes from sea bed leases.
§ All that points to the overriding need to have proper planning control over the multifarious enterprises of fish farming. That is precisely what the two amendments tabled in my name and the name of the noble Baroness, Lady David, seek to do. I beg to move.
§ 8.45 p.m.
§ Baroness David
My Lords, my name is on the amendment and I should like to support it wholeheartedly. The RSPB has been in favour of these amendments. The CPRE is also strongly in favour and the ACC, which gave a rather ambiguous briefing at Committee stage, has now decided that it became completely muddled about the whole issue and is totally in favour of planning controls over fish farms.
The noble Lord, Lord Moran, put the case extremely well and I agree with everything that he said. He mentioned the adverse impact on public highways. I certainly can tell the House of a personal experience that I had in Scotland. I was going along one of the single track roads in Argyll. There was an appalling smell and I could not imagine where it was coming from. We stopped, looked in the boot of the car to see whether there was some dead animal or fish there. Not at all. We went a little farther along the road and suddenly saw a quantity of dead salmon lying at the side of the road. We had been following a truck which was taking dead fish from one of the fish farms. The net that was supposed to encase them had not quite done so and some of the fish had slipped out. It was a real public health hazard.
I strongly believe that there should be planning laws which control the location of such farms. I understand now that in fact far too many of them have arrived on the scene and that they are quite a hazard. There is a danger of fish escaping and mixing with the wild salmon, so spoiling the pure breed or whatever it is called. I hope that this time the Minister will not give the rather unsatisfactory answer that we had last time and that he can tell us something rather more positive.
§ The Earl of Radnor
My Lords, I should like to take a completely opposite line to that taken by those who propose this amendment. I must confess my interest as, I hope, an environmentally friendly fish farmer. I came to your Lordships' House around 1970. Since then in various enactments fish have been designated 486 as agricultural or farm animals and fish farms as farms —under a rating Bill in point of fact. Until now there has been a gradual and steady move towards fish farming being accepted as farming. Whatever the noble Lord, Lord Moran, says, suddenly to turn all that on its head would seem to be completely illogical.
There are many points that I should like to cover. I shall be as brief as I can. First, there is pollution. I must admit straightaway that I cannot speak too much about fish farming or salmon farms in Scotland. I can only tell the noble Baroness the story when I first started fish farming 22 years ago. On the whole fish die in large quantities when they are very small. One day I complained that there was a fraction of a bucketful of little fellows and my manager said, "Well, my Lord, if you kept 2½ million racehorses, surely you would expect to find a few dead ones every morning". That is a fact of life, which goes right through farming and looking after stock.
However, we undergo strict controls from the NRA. I am sorry that my noble friend Lord Crickhowell is not in his place because I should have been interested to hear what he said about planning and whether in fact he was as keen as the noble Lord opposite said. The NRA imposes very stringent rules, both quantitative and qualitative, which cover incoming and outgoing water. So much so that in talking of inland farms I would say that it is improbable that there could be many more inland trout farms in England. Therefore perhaps noble Lords are beating against something that does not exist.
So far as concerns the salmon farms in Scotland, I should like to tell another tale. I was up at Artaunish three or four years ago and I visited my first and in fact only cage farm. I walked on to the place, said that I was a fish farmer, that I had never seen a salmon farm and asked if I could look round. I was very impressed. It seemed to be very well run. I had come from Committee D (or some such committee) and said, "This is not very popular down in the department; nor is forestry". The manager said, "That is most unfortunate because those are the only two things that there are to do here".
The point that I am trying to make is that there are other values as well as environmental ones. After all, people are part of the environment. In point of fact the fish farming enterprise in Scotland is considered by the Highlands and Islands Development Board as one of the jewels in its crown.
I revert to the inland farms and personalise the matter by speaking of my own farm—again, I am sorry that my noble friend Lord Crickhowell is not present. Like some people I like to boast that mine is the largest farm on one site in the whole of the British Isles; but I do not think it is true. I have been under a microscope for 22 years, especially recently. I have developed and learned and I believe that I have an extremely clean farm. Every so many weeks—every fortnight I think—I am tested in the way that has been described. I can tell noble Lords that about 50 per cent. of the time I send away the river cleaner than it came in. I am talking of suspended solids, which is the 487 visual sight of dirtiness. I believe that on three occasions I sent it on with more oxygen, which is remarkable.
Now that we have all begun to be told to have air-lines, oxygenation plants and so on, digital count-outs of flow can be taken every second whenever the person comes round to look at the farm. I do not think that we want to go away with the idea that Nye are filthying up the rivers of England. My stretch of the Hampshire Avon is sometimes better than it is at its source.
It is a small but successful industry. There are about 700 inland trout farms in England and Scotland. To put those farms under the constraints suggested—I anticipate a small number would be involved—will kill any further development in this area. Although a small industry, one has to consider the gross domestic product. Every little counts, especially these days. Diversification of farming and country enterprises has been pushed very hard.
There is little more to say. I have made my points. I sincerely hope that the amendment will be resisted. The second speech that I made in your Lordships' Chamber was in a Wednesday debate. The debate about fish farming was led by Lady Emmet of Amberley. In those days fish farming was everyone's favourite subject; we were cheered almost to the echo. I made the point then that not only is the fish a small animal, which therefore requires a small packing station, and buildings which are relatively unobtrusive, but also they are virtually below ground level. In order to view my fish farm I indulge in expensive aerial photography. I take a number of parties around my fish farm. I show such photographs to those people because if one walks around one cannot view the fish farm. Why does one need planning for something that one cannot see? It seems a little ridiculous. I hope my noble friend will not agree to the amendment.
§ Lord Airedale
My Lords, I speak in favour of the Atlantis, salmon. It must be one of God's most athletic creatures. It swims hundreds of miles through the Atlantic from its native river to the waters surrounding Iceland and back again to its native river. If one puts that creature in a cage, violently disrupting its natural way of life, one will set in train unforeseen problems. I welcome every possible measure of control on this unnatural exercise. I support the amendment.
§ Lord Stanley of Alderley
My Lords, before my noble friend answers, as I said at Committee, I am not sure what the noble Lord, Lord Moran, intends to achieve I cannot see that his amendment will achieve anything other than what is already achieved by the regulations now in force.
I speak now to the noble Baroness, Lady David. The amendment would not resolve the problem of the dead fish which no doubt she saw on the road to Artaunish.
§ Lord Fraser of Carmyllie
My Lords, I doubt whether there is a fishing hotel in Scotland where the difficult problem of the genetic strain of the Atlantic salmon being damaged by possible interbreeding with salmon which have escaped from fish farms is not 488 discussed lightly. I have no expertise. I cannot say to what extent that extraordinary genetic strain which allows salmon to move from Greenland waters to the rivers of Scotland will be altered. However, whatever may be the truth of the matter, it seems a little beyond the planning issues which confront us in the Bill.
Amendment No. 48A seeks in effect to establish full planning control over inland and marine fish farming in England and Wales. The operative wording is the same as Amendment No. 58A, which concerns fish farming in Scotland. In effect it raises four issues: permitted development rights; floating structures in inland waters, such as tanks and cages; the use of land for fish farming; and marine fish farming.
In Scotland, as I believe those who have already contributed to the debate will appreciate, there are no permitted development rights for fish farming. In England and Wales the Government have already announced that they will withdraw permitted development rights for fish farming in the national parks. I appreciate that the noble Lord feels that that decision does not go far enough. However, as I indicated when the matter was last discussed—and the noble Lord seems very familiar with the issue—the Agriculture Select Committee in another place, following its detailed study of fish farming last year, recommended greater planning control in the national parks but did not recommend that it should be extended elsewhere. It noted in its report that,Almost all controversial fish farming developments in England and Wales have taken place in national parks".It concluded that,outside national parks, no further controls are required at this stage".I can only repeat that the Government agree with that conclusion. Like the Select Committee, we are not aware of any evidence that would justify changes to the planning regime outside national parks. However, if we are wrong on that matter, and if the Government should at some time in the future come to a different conclusion and decide that there should be an extension of such controls, I emphasise to the noble Lord that permitted development rights could be withdrawn by means of secondary legislation. Thus it is not critical that this matter be addressed at this time when we are dealing with primary legislation.
Floating structures—which are widely used in fish farming activities—would normally be exempt from planning control both in England, Wales and Scotland, being simply attached to the land by a mooring rope or chain. Floating structures which involve an engineering operation to fix them to the land are subject to planning control. It was on that matter that the Atlantic Salmon Trust considered that what I stated previously was confusing and far from clarified the position. The position is clear although it may not be satisfactory enough for those concerned with the point.
We have given further consideration to the topic. We recognise that floating fish tanks and cages can have a considerable visual impact. For that reason we are minded to introduce an amendment to the Bill at a later stage to bring them within the definition of 489 development where they are not already within it. As I indicated, in some circumstances they undoubtedly will be. We envisage introducing permitted development rights in England and Wales outside national parks at the same time. Thus floating fish tanks and cages in Scotland and the national parks would be subject to full planning control.
The third issue raised by Amendment No. 48A is the use of land for fish farming. Section 55 of the Town and Country Planning Act 1990 excludes "the use of land for the purposes of agriculture" from the definition of development. Hence the use of land for keeping fish intended for human consumption does not come within the scope of development. Withdrawing permitted development rights for fish farming in national parks, and bringing floating tanks and cages there within the definition of development, would for practical purposes achieve a similar result there to that which the amendment seeks in relation to the use of land.
Amendment No. 48A also concerns marine fish farming. Noble Lords and noble Baronesses who have contributed to the debate will appreciate that when we speak of marine fish farming we are almost entirely addressing a Scottish issue. The amendment appears to follow from one put forward by the noble Lord, Lord Ross, at Committee stage. As I explained then, the Government agreed with the Agriculture Select Committee in another place in promoting an evolutionary approach to marine fish farming. I explained the improvements made in the Crown estate commissioners consultation procedures. I appreciate that that improvement is considered to be as yet insufficient. Nevertheless there have been those improvements. As I also explained there has been an advisory committee set up to advise on contentious cases.
Marine fish farming in Scotland is not an uncontrolled industry. The Scottish Department of Agriculture and Fisheries has a statutory responsibility under the Diseases of Fish Acts of 1937 and 1983. For example, navigational consents must be sought from the Department of Transport. As a commissioner of Northern Lights I am aware that they are not always so well observed by fish farms. Nevertheless, controls are in place which ought to be observed. Vocational control is exercised by the Crown Estate Commissioners with the improvements in its procedures that I have outlined.
Further controls under the planning system would place a significant new burden on local authorities which do not have the relevant expertise. That would impose a further consent procedure on the developer. As I have emphasised, we would prefer an evolutionary approach. Against that background we do not consider that anything further is required. We shall be withdrawing permitted development rights for fish farming in national parks and have in mind action on floating structures.
I appreciate that this debate is important. As was indicated by my noble friend Lord Radnor, perhaps speaking from a lonely position, there are differing views on what must be introduced to achieve the right 490 balance. However, I hope that, in view of my comments, noble Lords who moved the amendments will consider that they can be withdrawn.
§ 9 p.m.
§ Lord Moran
My Lords, I shall first comment on the points raised by the noble Earl, Lord Radnor. He spoke as though we were proposing to shut down fish farming. That is far from the truth. He said that the industry might be killed should my amendments be accepted. That is far from what I had in mind. Fish farming is important in many parts of the country, notably in Scotland. It plays an important part in the economy and provides employment in areas where there is little other work to be found. In tabling the amendments we suggest only that fish farming enterprises should be subjected to the scrutiny of the planning procedure. After all, there is in that procedure a presumption in favour of developments. If the amendments were accepted there would be no danger of killing off the industry.
The noble Lord, Lord Stanley, asked what the amendments sought to do. Earlier I tried to explain their purpose. It is an effort to achieve a tidy and comprehensive scheme for putting all forms of fish farming under the scrutiny of the planning mechanism. The noble Lord suggested that existing regulation was satisfactory but I gave examples of the confusion that is encountered by those concerned. I suggested that the regulation is in a muddle and that it is desirable that it should be tidied up.
I am grateful to the Minister for his comments. I regret that he is unable to accept what I believed to be a tidy and clean-cut solution to the problem. However, I am encouraged by his remarks that some of the problems might be addressed by secondary legislation and that others might be addressed by an amendment to be brought forward by the Government.
As regards the genetic point that the Minister made about wild salmon, I must point out that scientists have discovered that there is a different genetic strain in almost every river. In some cases there are two or three genetic strains in the same river but running up different tributaries. The problem that has interested many of us who are interested in Atlantic salmon has been the escape of farmed fish which interbreed with wild salmon, as has been shown by experiments and observations. That may cause a corruption of the genetic purity of those strains which have existed for millions of years and it may land us with irreversible problems.
I am grateful to the Minister for the care with which he considered the two amendments. In the light of his remarks it is desirable that we should withdraw them and I beg leave to do so.
Amendment, by leave, withdrawn.
Clause 36 [Rights of entry]:
Baroness Blatch moved Amendments Nos. 49 to 54:
Page 46, line 33, at end insert ("or any other land").
Page 46, line 36, at end insert ("in relation to the land or any other land").
Page 46, line 38, at end insert ("in relation to the land or any other land").
Page 46, line 41, at end insert ("in relation to the land or any other land").
Page 46, line 42, leave out ("the land then").
Page 46, line 47, leave out ("in respect of the land") and insert ("in relation to the land or any other land, if there are reasonable grounds for entering for that purpose.").
§ The noble Baroness said: My Lords, these amendments were spoken to with Amendment No. 56. I beg to move.
§ On Question, amendments agreed to.
Baroness Hollis of Heigham moved Amendment No. 55:
Page 47, line 8, leave out ("justice of the peace") and insert ("Sheriff").
§ The noble Baroness said: My Lords, the noble Lord, Lord Carmichael, apologises to the House for his absence. On his behalf I wish to move Amendment No. 55 and speak to Amendments Nos. 56, 118, 119, 157 and 158. Their meaning is self-evident and their significance is obvious. I understand that the Government are minded to accept them and I hope that that will be sufficient to persuade your Lordships to accept them. I beg to move.
§ Lord Fraser of Carmyllie
My Lords, I am grateful to the noble Baroness for moving the amendments in the absence of the noble Lord, Lord Carmichael. They are intended to provide an additional safeguard for those in respect of whose land a warrant granting a right of entry is sought. We have given careful consideration to the matter, which has been discussed with the Law Society of Scotland. We have concluded that there is merit in the argument advanced in the amendments. While I do not accept them, I undertake to bring forward government amendments on Third Reading so that warrants may be obtainable in Scotland only from the sheriff and not from justices. I hope that, with that undertaking, the noble Baroness will withdraw the amendment.
§ Baroness Hollis of Heigham
My Lords, I am happy to do that.
Amendment, by leave, withdrawn.
[Amendment No. 56 not moved.]
Baroness Blatch moved Amendments Nos. 57 and 58:
Page 47, line 47, leave out ("person") and insert ("authority").
Page 47, line 47, at end insert ("or, as the case may be, the Secretary of State").
§ On Question, amendments agreed to.
§ [Amendments Nos. 58A and 59 not moved.]
§ Clause 12 [Planning obligations]:
Baroness Hollis of Heigham moved Amendment No. 60:
Page 19, line 17, leave out ("or otherwise") and insert ("with the authority").
§ The noble Baroness said: My Lords, this amendment refers to the vexed question of planning gain—the old Section 52 or the new Section 106. As was made clear in Committee, on this side of the House we have very strong objections to this aspect of 492 the clause for two broad sweeps of reasons. First, by introducing unilateral planning obligations in place of the old negotiating agreements, this clause will reduce local authorities' negotiating strength. On the one hand, developers can offer too little community gain to offset the disadvantages of, for example, noise or traffic congestion. Equally, developers can offer too much in the hope of speedily buying a planning consent. After all, planning gain is sometimes pressed on local authorities and is not always extracted by them.
§ The second objection is that local authorities must enforce planning undertakings to which they are not party, which they may not want and which their community may not need. For example, developers may offer open space which may not be necessary if the area is already well endowed with open space and which in any event would generate additional maintenance costs for local authorities. I do not believe that it is acceptable to say that that could be required by the Secretary of State as a lump sum deposit for future maintenance needs. Alternatively, a developer may offer additional car parking which the local authority may not want because of the traffic implications. It would prefer perhaps a subway to link a retail development through to a high street as a more suitable planning gain for the community.
§ At present the new Section 106s are about negotiation and trade. I suggest that local authorities —certainly not developers or the Secretary of State —are in a position to judge what is in the best interests of the local community and what it can afford. All local authority associations, including the Conservative-led Association of County Councils and the Association of District Councils, are opposed to this clause, as are the National Housing and Town Planning Council and all the voluntary organisations of which I am aware.
§ Although I suspect that the Minister is too courteous to do so, she may say, "Well, they would say that, wouldn't they?" However, if local authorities can be trusted with development plans without recourse to the Secretary of State and if the Minister—and I quote an earlier comment from her—wishes them to possess more stringent enforcement powers on the one hand and to exercise greater discretion on planning on the other, why should it be assumed that those same local authorities are not appropriate guardians of the public interest as regards planning agreements?
§ On this side, we insist that the clause tilts the balance too far in favour of the developer's interest. We hope that our amendment rectifies that imbalance. I ask noble Lords to remember that this is not about a private battle between a developer on the one hand and a local authority on the other but about a developer on the one hand—a private interest—and a local authority as trustee for its community's well being on the other.
§ Of course developers favour unilateral planning obligations. Perhaps I may say, "They would, wouldn't they?" However, their arguments are worth looking at more closely because in Committee the major argument of the noble Lord, Lord Sainsbury, in 493 favour of unilateral planning obligations was that he thought that they may overcome delay in the planning process. I believe that this was his sole argument adduced in support of the Minister's position.
§ The noble Lord, Lord Sainsbury, rightly complained that only between 55 per cent. and 65 per cent. of applications are dealt with by local authorities in less than eight weeks. He complained, again rightly, of the 30 weeks plus which it takes on average for the DoE to turn round an appeal. However, I emphasise to your Lordships that those delays, regrettable though they are, are not occasioned by the failure to reach agreement under Section 106. For example, if one looks at the percentage of permissions granted in local authorities, the highest percentage is usually for offices, factories and commercial developments and the lowest, which therefore generates appeals, is for residential development, usually, though not always, because the developer is proposing housing which is too intensive for the site.
§ Many of the applications on which local authorities fail to determine within eight weeks are those offering planning gain. Certainly the planning gain applications tend to be those that take longer than eight weeks precisely because they are the large, complex and substantial developments which generate the planning gain and which by definition require elaborate consultation with a whole range of interested parties. That cannot properly and faithfully be carried through in the eight-week period. Your Lordships will recall that that was an issue raised in Committee when we discussed twin tracking. Delays are occurring within local authorities, primarily due to the growing pressure on their workload caused by appeals at a time when they are constrained by financial resources and cannot appoint more staff. However, I remind the House that the real delays in the planning process occur within the Department of the Environment.
§ In my own authority in Norwich, I was checking the figures. Last year the Department of the Environment took 23 weeks to turn around all appeals, written as well as oral. This year that period has slipped to 28 weeks. That is a far greater deterioration in the service than anything the local authority is offering to developers within our community. The national average is higher still. It is 30 weeks plus, though I understand that perhaps 20 weeks of that may be due to difficulty in finding inquiry dates.
§ If the Secretary of State is given a further function —that is, the determination of unilateral obligations —the workload, and therefore the delays at the DoE end, will mount. It is at the DoE end that the largest bottlenecks are already being experienced. The number of appeals is rising by 30 per cent. a year. It will rise faster still with the inducement offered to developers to side-step negotiated agreements and go for a "take it or leave it" unilateral agreement. Is that what the Minister wants?
§ I emphasise that provisions such as Section 52 or the new Section 106 are not the source of delays, and 494 therefore that that argument is not valid. There is little evidence of abuse by recalcitrant local authorities failing to meet a developer's reasonable bargaining position. In those rare circumstances where there may be a recalcitrant local authority, the existing formulation available to the Secretary of State that he is "minded to allow" is the effective way forward, and we should build on that. We would willingly, with the local authority associations, discuss that with the Minister if she were so minded.
At Committee stage the Minister said that the clause,
was not a developer's charter but rather a mechanism to enable a log jam to be broken".
I contest that. It is a developer's charter. It is not the cause of the local authority log jam. It will add to the DoE log jam, which is where the delays in the appeal process and the delays to developers already occur. We need an escalating process. We do not need a "take it or leave it" agreement, but a way in which, at a reasonable point in time, should planning negotiations have broken down, the unilateral agreement may come in as a last resort. It should not be a parallel alternative for developers to use and abuse the planning system.
§ I have been referring to Amendment No. 60. Perhaps the House will allow me to speak briefly to Amendment No. 65. It suggests that if the Government are not minded to accept our amendment —and I hope that they will reconsider their views on that—given unilateral planning obligations and therefore that local authorities are unable properly to protect the public interest (which is what Clause 12 signals), then it is important to increase the rights of other interested parties who may and should be stakeholders in the decision.
§ Amendment No. 65 proposes a register of planning obligations and ensures that those planning obligations run with the land. That amendment at least may soften some of the worst effects of Clause 12 as it stands unamended. I beg to move.
§ 9.15 p.m.
§ Lord Ross of Newport
My Lords, the noble Baroness, Lady Hollis, has made a very good case against unilateral obligations. However, she has not finally convinced me. I realise that a vast body of opinion —the local authorities, the AMA, the ADC, the Countryside Commission and CPRE, among others—do not like the idea that in certain—I believe limited—circumstances, the Secretary of State can overrule the local planning authority.
The problem is that I have been a practitioner. I was a chartered surveyor and in 1966 was involved in the Isle of Wight with a substantial property company attempting to bring some sense into a redevelopment in the centre of Newport. The opposition from the local shopkeepers at the time was staggering. Amazing things were said and the whole project fell apart. Twenty-five years later the people of Newport are asking why it was not proceeded with that at the time; it would have solved many of our traffic problems.
More recently, when I left the other place, I returned to the island at the advanced age of over 60 495 and set up a commercial department because I was so anxious to attract investment into the island from substantial developers. There were always the kind of cheapjack people who would buy a small piece of land, try to secure planning consent, then sell it off, but they are no good to anybody. There was an opportunity at that time to bring in one or two of the much larger property companies which were interested in doing something about updating the leisure facilities and some of the shopping facilities and amenities of that sort. It is impossible to describe the ridiculous opposition that was aroused. I have to say that it came from a Tory authority. It did not want the company to go into Newport; it wanted it to go into Ryde.
There is no question that the public desperately wanted a competitor supermarket. The debate revolved around the old cattle market site. Fortunately, the company, which was a subsidiary of P&O, stuck to its guns. The result has been that the football club now has a new ground, a new stand, a practice ground and £150,000 in the bank. The local church has a new church hall, and there is a Safeway supermarket with a petrol station, which has had a great effect on the price of petrol in that part of the island. Everybody thinks it is marvellous. However, that scheme did not go through because the local authority wanted it but because in the end the authority was forced to let it through. In the end it sacked the chief executive, who had done all the work, and sacked his successor too.
At one time that property company was going to pull out. I think there would have been a fallback situation if the company could have gone to the Minister and said "We can show"—and we fought an election on this particular issue, and we won. I am not trying to be party political. I have to say that the local authority, which was run by some of my own people, was not very bright or supportive either. I could tell many stories, but perhaps I should not. I have a great regard for Tesco's and Mr. McLauren, who helped me enormously in a battle I had in trying to bring down petrol prices by 20p a gallon. I guaranteed to him that it would go through the local authority, which was Liberal controlled. It went through by one vote. I was on tenterhooks over that.
There are unfortunate cases. I entirely agree that this is a last-ditch fallback position, and matters should not get to that state. The Minister is nodding her head. I totally support Amendment No. 65, and I have certain amendments coming up which are on the same lines. However, I have seen perfectly good property companies turned away. We could have had a Marks and Spencer in the Isle of Wight. They were coming, but they are not there now and they will not come, all because of stupidity. Therefore, a fallback is needed.
I am a great supporter of local government. I believe that we have to reconstruct local government. There will be a debate on that next week. If we can get local planning back to what I believe it should be—I have raised this on a number of occasions in this House—I am totally with the noble Baroness. I want to see Birmingham, Southampton, Portsmouth, important cities, taking their own decisions. I do not 496 want them to have to ask the Secretary of State or central government to make up their minds for them. I want to see a complete rejuvenation of local government. This Government is responsible for the appalling state that local government is now in. Nobody in his right mind who is any good wants to serve on a local authority these days because local government has no power to do anything and it cannot spend any money. New councillors join with the best ideas and go away disillusioned after four years. I think the noble Lord, Lord Dean, might half agree with me about that. You get these Poujadist types who dictate to the planning officer what he shall say or do. Some of those officers have had a very rough time over the past four years.
I am sorry to delay the House, but I see this provision, which I have been attacked for supporting, as a necessary fallback situation. However, I want it to be clearly explained that it is purely a fallback. It must be clearly demonstrated that there is public support for what the development company has in mind and that it is really as a result of bloody-mindedness on the part of the local authority that it is not going ahead.
Local authorities cannot force development companies to go where they do not want to go. They will not go where there is no return for them. Certainly, in the constituency which I represented it was extremely difficult to get investment and, when it came from the right source, it was very important that it should be used in the right place. It is tragic, because a large number of ridiculous schemes were promoted three or four years ago, all of which have gone up the spout and the firms have gone bust. We have only rarely got the kind of development company with backing behind it which is so desperately needed. I am sure the Minister will appreciate that if such cases fall to him to decide. I believe that the measure is right and I support it, but I cannot support Amendment No. 60.
Viscount Colville of Culross
My Lords, I cannot follow the Isle of Wight saga. I have to be very careful not to rehearse matters in your Lordships' House which I have dealt with professionally. Nevertheless, there is a generality here that I can discuss. Had this amendment been moved not by the noble Baroness from Norwich —a city which is wholly blameless in this matter—but by her noble friend front the Greater London Council, she would know that since 1974 there have been powers to enter into unilateral declarations under Section 16 of the Greater London Council (General Powers) Act of that year.
My views about this amendment are very mixed. I have read the discussion paper and the debate in Committee in this House. I see that there can be situations where planning gain is put forward and rehearsed unilaterally, if necessary at appeal, so that the developer promises things which otherwise would not be obtainable. The difficulty is that one has to go back to the roots of this piece of legislation. I shall not go on for very long. Your Lordships will not remember that the whole matter started in Leicester Square with the enforceability of negative covenants which ran with the land. That was then picked up by pre-war planning legislation and it has been with us 497 ever since. It was contained in Section 37 of the 1947 Act: it then became Section 52 when the legislation was consolidated. Then, in addition to the negative covenants which ran with the land—namely, "thou shalt not do this or that"—there were added provisions which enabled people to enter into positive covenants to the effect that "thou shalt do this or that; thou shalt pay money; thou shalt provide parks and open spaces" and this, that and the other.
That has been built on over the years. I ask my noble friend Lady Blatch whether the Government have considered the question of enforceability. It is done through the courts. It is comparatively easy to go to court to enforce a negative covenant because you obtain an injunction to say that whoever it is shall not do whatever it is they promise not to do. However, when it comes to positive covenants to pay money to provide facilities, then you have to go to the court and get it to provide a mandatory injunction to pay money or to do other positive acts.
That is not very easy. The courts do not take to this procedure very kindly. It is a discretionary remedy in any case. It is extremely difficult to enforce the injunction if the party concerned does not comply with the order of the court. My only solution is that we shall have to have Section 106 amended as it is in Clause 12 of the Bill. The Government should look again at the question of enforceability by the local planning authorities.
At Committee stage I noticed particularly that there was a rejection of any suggestion that there should be recourse to the court without putting down money in advance to meet the possibility of having to pay damages if the injunction were obtained. That was rejected by the Government. This provision is very unattractive for local authorities. Many of them have not got a great deal of money with which to enforce these measures. I think that this provision should go ahead. The corollary is that the Government should look at the way in which the matter is picked up after the developer has entered unilaterally into these agreements and then has failed to pursue them. There is no way in which this can be done tonight, and it is no use my noble friend going off and seeking the pigeon post. The fact of the matter is that that is where the whole thing will break down.
I do not think that there has been all that much experience in the Greater London Council area because I have looked into this. But if this is to go ahead as a major venture, I believe that the Government ought to look again at those fragile foundations in the Chancery Division upon which the whole thing is based. That said, I am afraid that I would oppose the noble Baroness, because I think that this is now irrevocable and we need to go somewhere else in order to make sure that it works better.
§ 9.30 p.m.
§ Lord Coleraine
My Lords, I do not propose to follow my noble friend Lord Colville of Culross in his dissertation on the enforceability of covenants, but, as your Lordships will know, I accept that the proposals 498 in this clause are a worthwhile effort to resolve a difficulty that faces developers and planners together. I do not think that it was right for the noble Baroness to spend so much time calling the Department of the Environment pot black as opposed to the planning authorities in terms of delay. I do not think that that is the real point at issue here.
It is not sufficient for the Minister to be put in a position where he says that he is minded to allow, and then it goes back to the planning authority and the same thing happens again. That is a position that arises from time to time, and it is right for the Government to try to get out of it. The clause is a worthwhile attempt to do so, although, as your Lordships will know, I am certainly not entirely happy with the way it is drafted, and the way it seems to concentrate on unilateral undertakings rather than on planning agreements. It is unduly restrictive. However, I think it is a clause worth pursuing, and I hope that if the noble Baroness pursues her amendment the House will reject it.
I have to confess that I was not listening very carefully to what the noble Baroness said about Amendment No. 65. It is one in which I am interested and for which I feel sympathy, and I hope that my noble friend will have a good answer to what was said. I am not absolutely certain whether the noble Baroness, Lady Hollis, was, in her very short speech, addressing that amendment or another one. If she was, I apologise to her.
§ Baroness Blatch
My Lords, Amendment No. 60, in the name of the noble Lord, Lord McIntosh, but spoken to by the noble Baroness, is effectively a wrecking amendment, for it would remove from Clause 12 one of the main reforms the Government are seeking to introduce—enabling a planning obligation to be created by an undertaking as well as by agreement with the local planning authority. The Government believe that this is a well-considered reform. It was the subject of full public consultation in 1989 and was supported by the majority of 186 respondents who commented on it, including the Association of County Councils, the RIBA, the RICS, the Local Government and Planning Bar Association, the CBI and the Housebuilders Federation.
The Government view is that creating an obligation by undertaking is an alternative to doing so by agreement, not a replacement. We made this plain in our 1989 consultation paper and will reiterate the point in policy guidance. The ability to enter a planning obligation by means of an undertaking is an additional arrow in the quiver of a developer faced with a recalcitrant local authority which might either be holding out for excessive and unreasonable gain or be so unwilling to contemplate granting permission that it will not discuss how to overcome its planning objections. Plainly, developers and authorities are likely to prefer to negotiate a reasonable agreement if they can, rather than going to the expense and delay of an appeal. But, where only an appeal can break the deadlock, an undertaking may help resolve matters.
At present, if there is a planning objection to a development proposal which only a planning 499 agreement can remedy, but the local authority is unwilling to reach such an agreement, the developer is stuck. He may go to appeal and the inspector may decide that he is minded to grant permission, subject to completion of an agreement. But if the local authority remains obdurate the developer is no further forward. My noble friend Lord Coleraine made the point that going back to the authority for a second time, and perhaps a third time, simply does not move matters forward.
Enabling the developer to create an obligation by means of an undertaking clears the way through that impasse. Such an undertaking, where relevant to the proposed development, will be a material consideration at appeal and the inspector will therefore take account of it in determining the appeal. I see that my noble friend wishes to intervene. I am happy for him to do so.
Viscount Colville of Culross
My Lords, is it also a material consideration if the terms of the proposed undertaking are in part acceptable to the local planning authority but in some other respects are wholly unacceptable so that there could well be not a planning gain but in total a planning loss? Will that situation also be taken into consideration?
§ Baroness Blatch
My Lords, I do not see any obligation, even a unilateral one, being approved if it would result in a net loss to a local authority. Where there is partial agreement there will be a blockage. If agreement cannot be reached in whole or in part, a time comes when the applicant simply has to obtain a determination. Under the present system there is no mechanism for such a determination. That is the issue with which this part of the clause deals. Undertakings will, we expect, be couched in terms promising to do or not to do certain things once planning permission is granted. Once the grant of permission is issued, the developer will be bound to carry out the terms of his undertaking. I shall return later to that point as it was raised by my noble friend Lord Colville. But no other party, including the planning authority, can have obligations imposed on it except by agreement.
I now turn to Amendment No. 65, which is also tabled in the name of the noble Lord, Lord McIntosh. The amendment muddies the waters because it would create two types of planning obligation. The first would be entered into by agreement with the local planning authority. The second type would be entered into by "undertaking" and would include as parties anyone whose interests in the land are or might be affected by the obligation.
I believe that to have two separate regimes for planning obligations is in principle undesirable and that the additional requirement of obligations entered into by "undertaking" is unnecessary and confusing. Under new Section 106 a person can only bind his own interest in land and those of his successors in title; for example, a tenant cannot bind his landlord. There is no difference on this point between the 1990 Act and Clause 12. If the intention of the amendment is that a further person's interest is to be bound, then that 500 person will already have to be a party to the planning obligation. Again, there is no difference between the new provisions and the 1990 Act.
I shall deal now with the specific points which were raised during the course of the debate. The noble Baroness, Lady Hollis, laid considerable blame on the Department of the Environment for delays in planning appeals. I should point out that all the delay is not necessarily due to the DoE. Better inquiry procedures have helped to cut delays by fixing inquiries to meet the wishes of the applicant and the planning authority. Very often the delay has much to do with ensuring that the wishes of the applicant or planning authority are met. There has been a huge increase in the number of appeals and there is improved inspector productivity. Moreover, now that the number of appeals is falling, the backlog is being reduced. Unilateral undertakings are not about reducing time on appeal, which was another point raised during the course of the debate; they are about obtaining the right planning answer when an authority is unwilling for whatever reason to enter into an agreement.
My noble friend Lord Colville raised the point about enforceability. I know that he feels strongly on the matter. There is specific provision made in the new Section 106(5) to allow the authority to enter the land to undertake the works if the developer fails to meet his obligations; and, indeed, the authority may also recover its costs in so doing.
In introducing the amendment, the noble Baroness mentioned a number of factors which she felt were important and which needed to be taken into account. I should point out that the relevance of all the factors she mentioned would have to be taken into account by the Secretary of State. They would form part of the appeal. No doubt the local authority would want the Secretary of State to know to what extent they had tried to reach agreement. It would be for the applicant to prove that he had gone as far as he could towards satisfying the local authority.
The point about the Secretary of State being merely "minded to allow" is not good enough. The noble Lord, Lord Ross, gave ample evidence to show that there comes a point in a minority of applications where the clause will be important. The issues are complicated. I have endeavoured to clarify them as best I can. I hope that the noble Baroness will be prepared to withdraw the amendment.
§ Baroness Hollis of Heigham
My Lords, I thank the Minister for her reply, but I am extremely unhappy about it. This is the clause about which the Opposition have most reservations. Perhaps I may pick up some of the points made by noble Lords in their helpful contributions. The noble Lord, Lord Coleraine, chastised me for—I believe his phrase was "calling the pot black"—criticising the DOE for delays. As your Lordships will appreciate, I focused on that argument because in Committee the noble Lord, Lord Sainsbury, used the argument about delay as the primary reason for favouring unilateral planning agreements. It was almost the sole argument advanced 501 in Committee. Associated with it were some examples of the costs the delay caused the private sector, in particular. They were strong arguments.
In my opening remarks on the amendment, I was trying to establish that that was a false correlation because delays would not be reduced were unilateral planning obligations to be accepted by your Lordships. On the contrary, by imposing additional work upon the Secretary of State the situation might be worsened. That may not be the case. I hope for everyone's sake that it is not, but it is a reasonable fear.
Secondly, the noble Viscount, Lord Colville, helpfully pressed the Government as to how they would ensure that government-imposed unilateral planning obligations would stick. That is a point that we shall want to pursue with the local authority associations before Third Reading. It was useful to have the Minister's response to that comment.
The Minister said that the unilateral planning obligations were not so much meant to overcome delay as to offer the right planning answer when the local authority was unwilling to enter into an agreement. That is the very issue between us. The whole argument from this side of the House is that it is the local authority which has drawn up the development plan, which is being entrusted to enforce planning notices and use its discretion, which through its elected members is accountable for its planning decisions to its constituency, which has detailed knowledge of the local community and which knows what is in the best local interest. Surely therefore it is the local authority that can best interpret what is the "right planning answer". To say that it opposes what the developer is offering does not mean to say that it is wrong and the developer is right. The local authority may well be right—not always—to be recalcitrant when the developer seeks to offer too much or too little by way of planning gain. If the responsibility moves from the local authority to the Secretary of State, we move away from planning by policy to planning by appeal. That is not healthy.
The question boils down to a debate about what the unilateral planning agreements may turn out to be and whether they will replace Section 106 negotiated agreements, whether, as the Minister says, they will be an alternative or whether, as the noble Lord, Lord Ross, said, they will be a fall-back provision. There would probably be little between us if we could devise some arrangement by which they would be a fall back.
There may be rare exceptions when the provisions are necessary as a fall back. That is why a phrase such as "minded to allow" or "referral back" for a defined period of time to seek agreement might be one possibility. As the legislation stands, the agreements will not be. The Minister says that they are an alternative, virtually twintracking, but they are not. I fear they will be largely a replacement for the existing provisions under Section 106. As noble Lords will recall, the reason is that these developments will mostly not be concluded within the eight week period. Therefore, the developer will have the option of going to appeal on grounds of non-determination after the 502 eight weeks, offering a take-it or leave-it unilateral planning obligation. It is precisely because of that tight timetable in which to deal with the application that problems will arise. It will encourage the developer to go for the replacement unilateral planning obligation rather than an alternative, a fallback or a negotiated obligation.
However, at this time of night I should not get far if I divided the House. If it were earlier, I would press the matter because I feel strongly that this is the single most misguided aspect of the Bill. At the end of the day it may cause the public good to be sold out, with the community interest, in the fallacious expectation that the developer and the Secretary of State between them will have a better sense of the community good and the public interest than the local authority elected to represent the public. However, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
§ 9.45 p.m.
Lord Ross of Newport moved Amendment No. 61:
Page 19, line 25, at end insert:
("(d) containing such incidental and consequential provisions (including financial provisions) as appear to be necessary or expedient for the purposes of the planning application,").
§ The noble Lord said: My Lords, I apologise for the absence of my noble friend Lord Meston whose wife is indisposed. He asked me to move the amendments in his name on the Marshalled List. I beg to move Amendment No. 61 and at the same time to speak to Amendment No. 62.
The proposed new Section 106 omits the provision in the existing Section 106(2) in the 1990 Act which allows agreements to contain,
such incidental and consequential provisions (including financial ones as appear … to be necessary or expedient for the purposes of the agreement".
§ This provision is commonly used to enable the developer at his expense to carry out work on land adjoining a development site which is owned by other people. An example would be to improve and plant trees on the verges of access roads which may belong to the local authority. I suggest under Amendment No. 61 that such a provision should be included in the proposed Section 106(1). That is what the amendment seeks to do.
§ Amendment No. 62 covers the situation where there is concern about the open-ended nature of the proposed Section 106 (1) (d) which will or could encourage some local authorities to seek payments which are not directly related to the development. The Minister may be aware of such possibilities. I therefore suggest that it would be worth while amending Section 106(1) (d) to emphasise that any payments should be for matters directly arising from the development, as I believe the existing guidance notes on Section 52 make clear. That is the reason for the second amendment. I beg to move.
§ Baroness Blatch
My Lords, Amendment No. 61 in the name of the noble Lord, Lord Meston, would restore in broad terms what is now Section 106(2) of the 1990 Act. That subsection is, I believe, much 503 inferior to the new Section 106 which Clause 12 will insert. The new section is widely but clearly drawn. It specifically enables the developer to make financial contributions while allowing for obligations to be conditional. I do not think the amendment is needed. Indeed it might confuse the issue.
The noble Lord argued for his amendment that it would enable developers to carry out works on land outside their ownership or control, for example landscaping on council-owned land. I see no reason why developers should not offer to do this if they wish, but such activities cannot constitute either a planning agreement under the present law or a planning obligation under the new provisions, because the developer would lack the requisite interest in the land concerned. It would be quite inappropriate for a personal obligation such as this to run with the land which is the subject of the development proposal or to bind successors in title.
I have rather more sympathy for the noble Lord's Amendment No. 62. Many people would agree with the general principle that, where under Section 106 a developer pays a financial contribution to a local planning authority to enable works to be carried out, the size of sum payable should be determined by the cost of works undertaken by the authority as a direct consequence of the development. Indeed that reflects the longstanding policy of the Government that contributions by the developer, whether in cash or kind, should be reasonable in scale as well as in kind. But I do see snags with making this a general, statutory rule. The provisions as they stand are technical and complex but allow for some flexibility. The amendment would, I believe, lead to endless arguments about precisely which elements of the works were to be attributed to the development proposal and about how their exact cost was to be determined. Details such as this are best left to the parties.
I am also concerned that the meaning of this amendment is not clear. To require money to be spent within a predetermined period begs the question how that period shall be decided. The most logical approach would be for this to be set out in the obligation itself, and again this is best left for the parties involved. I believe that both these amendments are unnecessary, and I hope the noble Lord will feel able to withdraw them.
§ Lord Ross of Newport
My Lords, I thank the Minister for her detailed response to those amendments. I am sure that my noble friend will carefully read that response. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 62 not moved.]
Lord Coleraine moved Amendment No. 63:
Page 19, line 45, after ("(7) (d)") insert ("and subject to any condition to the contrary in the planning obligation").
§ The noble Lord said: My Lords, in Committee I moved an amendment to make it clear that the parties to a planning obligation may agree between them that any burden on the developer as original covenantor 504 should be extinguished once he disposes of his interest in the land. In reply my noble friend the Minister said that the clause as drafted made the amendment unnecessary because subsection (2) of new Section 106 already allows obligations to be entered into with conditions.
Since that time I have taken further advice. I return to this matter because I am not entirely happy with the drafting of the clause, or with the reply given by my noble friend. It is true that new Section 106(2) (a) will provide that,
A planning obligation may be unconditional or subject to conditions".
Were it not for the following subsection (3), I would accept that the planning obligation might contain a condition that the obligation should cease when the original covenantor parts with his interest in the land. However, I am not sure that I would even go so far as that. New Section 106(3) provides that,
A planning obligation is enforceable by the authority identified in accordance with subsection (7) (d) against the person entering into the obligation".
There appears to be a distinct conflict between the words of subsection (3) and those of subsection (2) (a). I prefer subsection (3) which provides that the planning obligation is enforceable against the original covenantor. If it were only to be enforced against the covenantor while he owns the land, that provision should appear in subsection (3). My amendment seeks to remedy that. I shall be interested to hear my noble friend's remarks as she is aware of the continuing uncertainty that exists in this regard on the part of the Law Society and myself. I beg to move.
§ Baroness Blatch
My Lords, Amendment No. 63, in the name of my noble friend Lord Coleraine would enable a planning obligation to provide that it should not be enforceable by the local planning authority, either against the original covenantor or any successor to him.
As I said in Committee, new Section 106, as we have drafted it, would allow a condition to be inserted in the obligation which would extinguish any burdens on the developer as original covenantor once he disposed of his interest in the land. So I see no problem with that. But this amendment goes a good deal further, for it would allow obligations to be created that the local planning authority could not enforce against anyone. We do not consider this desirable; the whole raison d'être of a planning obligation is that it is enforceable. In particular, I do not think it would be right to allow obligations to be created by unilateral undertaking that the authority could not enforce.
I hope that my noble friend will find that argument persuasive and will withdraw his amendment.
§ Lord Coleraine
My Lords, I shall withdraw the amendment but I do not find the argument persuasive. The suggestion that a developer would give a unilateral undertaking that could not be enforced by anyone and that the Secretary of State would grant planning permission on the basis of that undertaking is ludicrous. I do not believe that the planning authority would enter into an agreement that could not be enforced.
505 I wonder whether my noble friend really understands what we are trying to achieve with this amendment. However, I shall consider what she said. In the meantime I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Blatch moved Amendment No. 64:
Page 20, line 18, at end insert:
("(6A) Any person who wilfully obstructs a person acting in the exercise of a power under subsection (5) (a) shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 3 on the standard scale.").
§ The noble Baroness said: My Lords, Amendment No. 64 strengthens the enforcement provisions for planning obligations in new Section 106(5) by creating an offence of wilful obstruction, punishable by a fine. The maximum of the scale is at present £400. That is consistent with the enforcement powers in Section 33 of the Local Government (Miscellaneous Provisions) Act 1982 on which new Section 106(5) and (6) is modelled. I hope that noble Lords will welcome this further buttressing of the enforcement provisions.
§ I should also like to speak to Amendments Nos. 66 to 69, 228, 246, 279 and 281. Amendment No. 66 is a technical drafting amendment designed to make it crystal clear that only a local planning authority may enforce a planning obligation.
§ Amendment No. 67 fulfils the commitment I made at Committee stage to consider amending the Bill to make specific provision for planning obligations to be modified or discharged with the consent of the parties. The provision in new Sections 106A and 106B was not intended to be exclusive but I am advised that it is far from clear that it is not. Accordingly, the amendment would allow the parties to vary a planning obligation by mutual agreement, for example to correct an error on the face of the instrument concerned or because of an unexpected turn of events that made some or all of its provisions no longer relevant.
§ Amendments Nos. 68 and 69 go together. They enlarge the scope of the regulations which the Secretary of State may make under new Section 106A(7) so that he may prescribe, for example, how and in what way a local planning authority's determination is to be notified to the applicant.
§ Amendment No. 228 is also connected with the modification and discharge provisions in Clause 12 of the Bill. This amendment reduces the scope of Section 33 of the Local Government (Miscellaneous Provisions) Act 1982. That provision has been used in the past in addition to or instead of Section 106 of the 1990 Act. The reason for this was that it was unclear whether Section 106 allowed for the creation of positive covenants which ran with the land and bound successors in title. The reforms we are making in Clause 12 should make it no longer necessary to use Section 33 in that way.
§ Our concern was that local planning authorities might continue to use Section 33 as an alternative to Section 106, which would enable them to bypass the modification and discharge provisions. That would 506 undermine one of the main reforms which Clause 12 introduces and the amendment tackles that potential difficulty.
§ Amendment No. 246 is a technical amendment to paragraph 20 of Schedule 1 to the 1990 Act, updating it in the light of Clause 12 of the Bill.
§ Amendments Nos. 279 and 281 appear much more significant than they are. They are consequential amendments. Their length is attributable to the need to spell out separately the English and Welsh, Scottish and Northern Ireland provisions so as to avoid having different texts of the Income and Corporation Taxes Act 1988 in different parts of the country. That is also why the amendment appears in the body of the Bill and not in a schedule.
§ I commend to the House Amendments Nos. 64, 66 to 69, 228, 246, 279 and 281.
§ On Question, amendment agreed to.
§ [Amendment No. 65 not moved.]
Baroness Blatch moved Amendments Nos. 66 to 69:
Page 20, line 27, after first ("the") insert ("local planning").
Page 20, line 40, at beginning insert:
("(1) A planning obligation may not be modified or discharged except—
(1A) An agreement falling within subsection (1) (a) shall not be entered into except by an instrument executed as a deed.
Page 21, line 34, leave out ("and").
Page 21, line 37, at end insert ("and
(d) the notices to be given to applicants of determinations under subsection (4).").
§ On Question, amendments agreed to.
§ [Amendment No. 70 not moved.]
§ 10 p.m.
Lord Ross of Newport moved Amendment No. 71:
Page 22, line 19, at end insert:
§ Period for representations.
§ 106C. A local planning authority shall not enter into an obligation by agreement before the end of the period of 21 days beginning with the date that a proposed obligation was placed on the register kept under section 69; and shall take into account any representation relating to the planning obligation received in the 21 day period".").
§ The noble Lord said: My Lords, I shall be brief. This amendment deals with consultation on planning obligations. Its purpose is to require local authorities proposing to enter into an agreement by obligation to give consideration to any public comments made within 21 days of the details of the proposed obligation being placed on the register before entering into the agreement. This amendment is a slightly different version of the amendment that I moved at Committee stage.
§ Amendment No. 74 would require a local planning authority to place details of any planning application proposed to be associated with planning applications 507 on the public register of planning applications. I hope very much that this rather simplified form will meet with a favourable response from the Government. I beg to move.
Viscount Colville of Culross
My Lords, I looked at this matter. We have been discussing the question of delays. These obligations are a matter of negotiation, but I am not sure at what stage the local planning authority is supposed to lay the text before the consultees. If this is a continuing process there will not be anything that it can put out to consultation until perhaps the last stage and, if there is an appeal, after it has been submitted to the Secretary of State.
I simply do not understand how this provision is supposed to work because I do not know the text upon which anybody is supposed to be consulted.
§ Baroness Blatch
My Lords, my noble friend Lord Colville makes an important point. However, the Government are entirely sympathetic to the noble Lord's objective. We all agree that the general public should be able to find out about obligations entered into when they are, as is usual, associated with the grant of planning permission. However, I am not convinced that these amendments are necessary or that they achieve their objective.
Planning obligations are local land charges. Every district or borough council is required by statute to keep a register of local land charges, to which any member of the general public has the right of access on the payment of the requisite fee. The register is available in every town hall and on it can be seen the entries, including planning obligations, for every 508 parcel of land. This register is not the same as the land register—and must not be confused with it—which contains details of the title relating to land registered under the Law of Property Act 1925 and which I agree is less readily accessible to members of the public. I believe that Clause 12 as it stands makes satisfactory provision for the public to find out about planning obligations and that it is unnecessary also to include them on the planning register.
I also believe that the mechanism provided by these amendments would be ineffective. First, it covers only planning obligations entered into by agreement. Although we expect that the vast majority of obligations will be entered into in this way, the public should have the same rights of access to obligations created by undertaking—as indeed they will have under the clause as it stands. Secondly, the inclusion of obligations proposed to be entered into on the planning register is inappropriate. The planning register contains factual information about applications made and the way in which they are determined. It should not contain material about agreements that may never actually be entered into, as is clearly the intention of these amendments.
I hope that the noble Lord will withdraw this amendment.
§ Lord Ross of Newport
My Lords, this is not a debate about the land register. I am grateful for the Minister's acceptance of the fact that that is not a very satisfactory way for the public to find out what is going on. I shall study what she said. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Renton moved Amendment No. 72:
After Clause 12, insert the following new clause:
§ "Right to appeal against planning decisions
§ . After section 78 of the principal Act there is inserted—
§ "Right to appeal against planning decisions.
§ 78A.—(1) Where a local planning authority grant an application for planning permission for development under section 70 (determination of applications: general considerations) or section 316 (application of certain provisions to local authorities), as amended by section 17 of this Act, which would materially conflict with or prejudice the implementation of any of the policies or general proposals of the development plan any person who has made representations to the local planning authority and who has reason to believe that the development plan has been substantially disregarded may by notice appeal to the Secretary of State stating the grounds on which it is made.
§ (2) Any appeal under this section shall be made by notice served within such time and manner as may be prescribed by a development order under section 59 of the principal Act.
§ (3) The time prescribed for such a notice must not be more than 28 days from the date of notification of decision.
§ (4) Where the Secretary of State is of the opinion that the grounds of an appeal are clearly without substance he may serve a notice on the person summarily dismissing the appeal." ").
§ The noble Lord said: My Lords, this amendment seeks to insert a new clause after Clause 12. It would grant a right of appeal against planning decisions in very limited circumstances. On this occasion we merely say that there should be a right for third parties who have made representations to the planning authority—in other words, objectors—to appeal against a decision to grant planning permission for a development which materially conflicts with or prejudices the development plan where they believe that the plan has been substantially disregarded. Then the appeal would have to be made within 28 days of the date of the decision and would be subject to the Secretary of State's right summarily to dismiss it if he thinks that it is without substance.
§ At Committee stage we had a series of amendments granting rights of appeal in different circumstances. I moved one which dealt with the question of departure from the development plan. My noble and learned friend the Lord Advocate gave some good reasons for not giving a general right of appeal.
In col. 572 of the Official Report on 29th January, the Lord Advocate stated:
From time to time there are changes of circumstances which were not envisaged when the plan was first drawn up; sometimes the plan is out of date"—
that is by the time the case is heard—
and sometimes, although the proposed development conflicts with the plan, the harm to the plan's objectives is clearly outweighed by the benefits of the proposed development. In any of these circumstances it may be right for an authority to grant permission contrary to the plan's provisions".
However, he then added:
The plan must not be disregarded of course, but taking the plan into account is not the same as a slavish following of it".
§ If noble Lords look carefully at the wording of the new clause they will see that it limits the right of appeal to those cases where there is a material conflict with the policies or general proposals of the development plan. 510 Also the person making the representations and wishing to appeal must have reason to believe that the development plan has been substantially disregarded.
§ That is a different situation from the one which we considered at Committee stage. I remind noble Lords that in the third schedule, which is governed by Clause 22 which introduces it, the Government are putting forward much stronger provisions relating to structure plans and local development plans. If those provisions are to be effective, surely we should avoid the grant of planning permission where there is a material conflict.
§ At this late hour I do not wish to labour the matter. However, we feel that in order that the Government's provisions may be credible and effective, and for local people who feel strongly about the conflict that has arisen, there should be a right of appeal to the Secretary of State. I beg to move.
§ Lord Norrie
My Lords, I speak in support of the amendment. The Government have expressed anxiety that the amendment opens the floodgates to a wave of new appeals. I understand that concern. That is why the amendment is so tightly worded. A right of appeal would be available only to question developments which substantially conflict with the development plan. It would be available only to people who had commented on planning applications. It would be available only when they have reason to believe that the development plan has been substantially disregarded.
As a further check, the Secretary of State could dismiss frivolous appeals. He would have the power to award costs against those who pursued them. It would ensure a power to review bad decisions in favour of developments which conflict with publicly agreed plans. But it would not create unnecessary delays in the system. At present when developers have an automatic right of appeal only 4 per cent. of all applications go to appeal. Without the effective use of call-in powers to deal with major departure applications, a third party right of appeal is a vital element of a planning system which wants to command public respect. For that reason I support the amendment.
§ Baroness Hollis of Heigham
My Lords, we too support the amendment. We did not speak to it in Committee because we hoped that the then Amendment No. 147, moved by the noble Lords, Lord Norris and Lord Renton, would be acceptable to the Government. It would have given primary regard to the development plan. Development plans have been adopted after widespread public consultation, thereby embodying and mapping a community's forward look. We had hoped that, had the Government accepted the amendment in Committee, the probability of appeals based on grounds that the local authority was in breach of a development plan would ipso facto have been less likely. Local authorities would have had to given primary regard to it. Equally, had the amendment been accepted, so would the belief that local authorities were acting as community trustees.
511 As a result of the Government refusing to accept that amendment, Members on this side of the House wish to be conjoined with Amendment No. 72. At present third parties have a right to appeal against the refusal of planning permission. However, they do not have a right to appeal against the granting of planning permission. The amendment is limited and tightly drafted. It will apply only to cases which significantly challenge the development plan. In 1986 the fifth report of the Environment Committee of the House of Commons repeated that the basic purpose of planning was not to resolve disputes between private proprietary rights of individuals, because that is a matter of common law and adversarial principles, but to resolve private rights and the wider community good, of which the local authority is trustee.
The presumption is that the wider public good is embodied in the development plan. Granting a planning permission significantly contrary to that development plan must at least raise questions about where the community good lies. It is a question that should be scrutinised on appeal. If the local authority will not do so, third parties must. For that reason we support the amendment.
Viscount Colville of Culross
My Lords, I hope that if the noble Baroness's party ever comes to power she will pursue this issue because it will be a bonanza for those who practise at the planning Bar and in the various professions. I do not understand what she is supporting. My noble friends Lord Renton and Lord Norrie will not thank me for my comments. Who will determine whether there has been a substantial disregard? It is true that in subsection (4) the Secretary of State can dismiss a matter that is plainly vexatious but the benefit of the doubt will have to be given. The practice will be that, instead of having the system of material departures which are determined by the local planning authority—and I had thought that the noble Baroness would support the local planning authority in being able to detect what is a material departure —or by judicial review if the authority is wrong, we shall have an open-ended system. Anyone will be able to say, "No, there has been a substantial disregard and we shall appeal to the Secretary of State unless it is vexatious". I welcome the provision and should like to see it in legislation. However, I do not believe that my noble friend will support it.
§ Lord Renton
My Lords, perhaps my noble friend Lord Colville would care to be reminded that in Committee the noble and learned Lord, Lord Roskill, said:judicial review is not an adequate remedy in these circumstances. It will only succeed where planning permission is unlawful or where it has been granted perversely".— [Official Report, 29/1/91; col. 568]To that extent I am afraid that my noble friend must acknowledge that his argument cannot be sustained.
§ 10.15 p.m.
§ Lord Fraser of Carmyllie
My Lords, as my noble friend Lord Colville appreciates, the Government are not persuaded that this type of right of appeal to a third party should be given.
However, my noble friend Lord Renton is quite 512 right to highlight that the Government have stressed repeatedly the importance of development plans. As my noble friend rightly points out, Schedule 3 is very important in that regard. If the plan is up-to-date, clear and relevant, it will be a very important element in local authorities' development control decisions. However, the Government do not wish local planning authorities to follow plans blindly, without taking account of all the other material considerations.
Important though it is, the development plan can never be a set of immutable rules. I have said before but it bears repetition that there are often changes of circumstances not envisaged when the plan was prepared. The plan may be out of date. Most importantly, although a proposed development may conflict with the plan, the benefits of the proposed development may clearly outweigh the harm it would do to the plan's objectives. In each of these cases an authority may properly grant permission apparently contrary to the plan's provisions.
I was going to avoid the use of the word "bonanza". However, the new clause would increase the number of decisions taken by the Secretary of State rather than by elected local authorities. The Government believe that as many planning decisions as possible should be taken locally. The Secretary of State and his planning inspectors are at present responsible for the grant of just 4 per cent. of permissions. The Government do not wish to see their role extended in the way which is now proposed.
Perhaps I may deal briefly with the practical effect of this clause. About one in five planning applications is refused; fewer than one in three of those goes to appeal. Appeals are currently running at around 30,000 per year. The Planning Inspectorate has succeeded in greatly increasing the numbers of appeals decided in recent years in response to the even larger increase in the number of appeals submitted. However, if this amendment were approved there would be a completely new opportunity to appeal against the four applications in five which result in a grant of permission. If only one tenth of these went to appeal, the number of appeals being received by the Planning Inspectorate would double overnight. If this new clause became law the appeals system would be swamped or operate to the significant benefit of those practising in that legal field.
I do not propose to leave the matter there because I appreciate that my noble friends and the noble Baroness, in supporting this amendment, have looked at the matter and, in the way in which they have approached it, have sought to minimise its effect.
The original amendment tabled in Committee included some restrictions; the present amendment has strengthened these. The new right of appeal is confined to those applications where the development plan has been overturned. However, I fear that many potential third party appellants will do all they can to see some implied contradiction between the plan and a permission to which they object. I appreciate also that the Secretary of State is to be allowed summarily to dismiss an appeal which is "clearly without substance". However, it seems to me that in trying to 513 arrive at such a judgment without hearing any of the parties or in any way considering the matter, the Secretary of State is likely to reach a decision that the appeal should at least be heard. If that happens, then we must expect a very significant increase in the number of appeals.
I appreciate that this is an issue which caused considerable strength of opinion. However, perhaps I may repeat that the Environment Select Committee in another place concluded in 1986 that it would not be appropriate for third parties to have the right of appeal against the grant of planning permission. We agree with that conclusion, which follows from the need for local choice, certainty and efficiency in the planning system. Although there has been the further restriction of what has been proposed in comparison to that which we considered at Committee stage, I regret to say to my noble friend that I cannot accept the amendment.
§ Lord Renton
My Lords, perhaps I may first express my gratitude to the noble Baroness, Lady Hollis, and also to my noble friend Lord Norrie for their support. I express my gratitude also for the intervention by my noble friend Lord Colville of Culross—with whose remarks I greatly disagree. I shall deal with his arguments first. He asks who will decide these matters. Obviously they will be decided by the Secretary of State on the hearing of an appeal. Like any person hearing an appeal he must decide the main issues.
My noble friend says that the amendment would create a legislative bonanza. Surely he will accept that every time we grant a new right to the citizen it potentially gives work to our profession. However, that is not a good reason for refusing a right if that right should be given. It is part of the job of our profession to help people to assert their rights. If I may say so, I do not believe that because it would give work to the profession it is therefore something which should not be done. That would be a novel idea and totally out of keeping with the traditions of our profession.
Perhaps I may say with great respect—and we all have great respect for him—that the arguments put forward by my noble and learned friend the Lord Advocate would have been very forceful in regard to the amendment moved in Committee. But he went into the fear of detail. We have avoided detail. We particularly confined the right of appeal on this occasion to material conflict with policies or general proposals of the development plan. To say that that will lead to the department being swamped with appeals is not only statistically imaginary but statistically improbable. There will be generalities and, as has been rightly said, the local authorities will be anxious not to conflict with their development plans. Therefore the number of appeals will be very small, simply because great care will be taken. But in those cases where there has been a departure from and material conflict with the general proposals of the development plan, the matter should not be allowed to rest. There should be a right of appeal.
I find the answer given disappointing. However, at 514 this late hour I shall not ask the House to divide. The Government should seriously consider the matter further. If the answer we have been given was given on departmental advice, then the Ministers should challenge that advice. That is what they are there for. We may return to the matter. In those circumstances I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 73 and 74 not moved.]
Clause 13 [Notice etc. of applications for planning permission]:
Lord Norrie moved Amendment No. 75:
Page 23, line 23, at end insert:
("(1A) A development order shall make provision requiring a local planning authority to serve on anyone with a notifiable interest in neighbouring land a copy of any application for planning permission and a notice stating where and when they make representations.").
§ The noble Lord said: My Lords, Amendment No. 75 is identical to an amendment tabled at Committee stage. At that time I was disappointed by the Government's reply. People living on or having an interest in land affected by a planning application next door should be made aware of that application. That is a basic requirement of the planning system.
§ Provisions already exist in Scotland for developers to notify neighbours. Perhaps my noble friend can tell me why Scotland is different from England and Wales. It cannot be because of population density. Strathclyde is as densely populated as the South East; and mid-Wales is as sparsely populated as much of the Highlands. If neighbourhood notification is good enough for the Scots, why is it not good enough for us? Perhaps the noble and learned Lord, Lord Fraser, would like to answer that.
§ I cannot accept that the problem is one of definition. The terms "interested parties" and "neighbouring land" are already defined in Scottish legislation; and it cannot be beyond the ingenuity of our parliamentary draftsmen to do the same for the rest of us.
§ Problems with neighbourhood notification underlie much of the public's dissatisfaction with the planning system. The local ombudsmen who receive the brunt of complaints support the aims of the amendment. I understand that about 75 per cent. of local authorities already undertake some notification of planning applications on a voluntary basis, and I am greatly encouraged by that. But what are the Government going to do about the other 25 per cent.? A basic standard of publicity should be available to everybody. I hope that my noble friend will be able to indicate in her reply what the Government's expectations are of local authorities, and how she is going to deal with the 25 per cent. of authorities who do not see fit to involve their public in planning applications.
§ We need a set of minimum standards to be established, as proposed in the amendment. Otherwise, the public will miss an opportunity to comment on planning applications even as they are submitted. I beg to move.515
§ Lord Glenarthur
My Lords, having listened to my noble friend Lord Norrie, I have to say to my noble friend on the Front Bench that I very much agree with everything the noble Lord has said. It is not for me to promote the fact that many aspects of Scottish legislation appear to be rather superior to some aspects of English legislation. It seems to be quite extraordinary to disallow comments from those who might have an interest and live on neighbouring land. Living as I do in Scotland, I can vouch for the fact that to be able to comment is a huge advantage.
It is not clear from what has been said why my noble and learned friend the Lord Advocate and my noble friend Lady Blatch should feel that what my noble friend has suggested is anything other than admirable common sense. I very much hope that they will accept the amendment.
§ Lord Renton
My Lords, I should like to support the amendment. In fact, my name is on it. What surprises me is that it is not already part of the law. If the planning system is to work fairly, it is a necessary protection for all neighbouring landowners when there is a proposed development that they should be given the opportunity of objecting. To make quite sure that they know about the application, they should be notified if they have a notifiable interest. It is common sense; it is fairness. It is very surprising that this is not already part of the law.
§ Lord Stodart of Leaston
My Lords, it is very depressing to find on many occasions Members of the Government if not admitting at least implying that sometimes the law of Scotland is superior to England. Perhaps I should not say this, but there are not very many items in which the Scots can or would wish to claim to be totally superior to the English—at least, not perhaps after Saturday at Twickenham—but on many occasions in my political life in both Houses I have seen situations in which it was generally admitted that the Scottish legal system was superior to the English one.
Yet because it was inconvenient it was desirable that the Scots should pull down the flag and fall in with the English system. It is a great pity that on this particular occasion, if, as has been said, we have an admirable system in Scotland, there should be resistance because the provision does not suit those South of the Border.
§ 10.30 p.m.
§ Lord Howie of Troon
My Lords, I shall speak briefly merely to create a balance and to show that the Scots on this side of the House join with the Scots on the Government Benches in hoping that England shall have this benefit just as we have had.
My Lords, I must reiterate the view that I expressed at Committee stage. The amendment tabled by my noble friends Lord Renton and Lord Norrie would impose a considerable additional statutory burden on local planning authorities. The effect of their amendment would be rather different from the law in Scotland. The amendment would require the local authority to notify, whereas in 516 Scotland the applicant is required to notify those with a notifiable interest in neighbouring land. That is an important difference.
It has been alleged that the absence of a statutory duty to notify neighbours in England and Wales causes numerous complaints to the local ombudsman. The figures I have do not bear that out. In 1989–90, 628,000 planning applications were submitted to local authorities in England. In the same period the local ombudsman received 758 complaints relating to neighbour notification and consultation. That is equivalent to about 0.126 per cent. of all applications. Only some 15 per cent. of those complaints were in fact investigated by the local ombudsman.
My department has issued guidance to local authorities about publicity for planning applications in Circular 22/88. That circular advises that it is not necessary for all planning applications to be advertised. It went on to say that the purpose of advertisement is to invite comment on the effect of proposed development on the interests and amenity of the general public, but the interests of individual property owners are taken into account only in so far as they are relevant to land use planning considerations.
The Government firmly believe that Circular 22/88 remains appropriate and relevant. Nevertheless I am ready and willing to consider what further guidance the department might issue, particularly in the light of the views which have been expressed by the noble Lords. I hope that they are listening to that. Such guidance might, for example, be stronger in urging the desirability of publicising development proposals to the minority of authorities which do not notify neighbours as a matter of course. However, the Government remain of the view that authorities should not be required to adopt a system against their will. I hope that my noble friends will agree to withdraw the amendment.
§ Lord Norrie
My Lords, I am very grateful to my noble friend on the Front Bench, who has made a very good point about the applicant who is required to serve the notice. As I understand it, my noble friend is going to look further into this matter. At this late hour I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Stanley of Alderley moved Amendment No. 76:
Page 23, line 23, at end insert:
("(1A) Notice under subsection (1) of this section shall be given to any person (other than the applicant) who at the beginning of the period of twenty-one days ending with the date of the application was—
(1B) Where a notice of an application for planning permission has been given under subsection
(1A) above, the local planning authority—
§ The noble Lord said: My Lords, I shall not repeat the points I made in Committee on why your Lordships should accept this amendment. I shall just point out the difference between my case and that of the Government which was raised at Committee and in discussions since then. First, the Government have accepted a similar amendment and conceded it as regards Scotland concerning Clause 37 of the Bill. Why is Scotland to be treated differently from England and Wales? Secondly, my noble friend Lord Astor said on 29th January at col. 578 of Hansard, that my amendment would make it complicated for applicants. That is not so. Applicants never study the Act; they merely study the guidance notes which will be the same whether the amendment is on the statute book or in the proposed regulation in the general development order. That last, of course, is subject to the Minister's whim. I have to repeat that the provision to notify all owners to which this clause refers is essential to farm tenants who could lose their livelihood and home. Such a provision should not be governed by regulation, and this was accepted by Parliament in the Town and Country Planning Act 1990, and this Bill should not overrule Parliament's wish.
There is no difference whatever between what this amendment sets out to achieve and what my noble friend on the Front Bench spelt out in Committee. But—and it is a but—my amendment would spell it out on the face of the Bill in line with the long-standing provision in Section 66 of the Town and Country Planning Act 1990 (in fact, it goes right back to 1947), whereas I only have my noble friend's assurance which is to be found in Hansard of 29th January. Much more important than that, any future Minister could change these provisions by regulation for, as my noble friend Lord Astor said at column 578, my amendment would:
safeguard against any potential future change by whim.
§ Yet my noble friend opposed it. Pray why? All I want in these amendments is a safeguard against a future Minister waking up one morning and changing rules by regulation that Parliament had decided otherwise—by in fact behaving like Henry VIII, or perhaps, in my family's case, Henry VII. I beg to move.
§ Lord Renton
My Lords, I am happy not only to support my noble friend but to assure him that, from the point of view of legislative technicality, he is not behaving like Henry VIII. Our accusation against that late, lamented monarch does not arise in the circumstances that I think my noble friend has in mind, but in circumstances where a Minister, or the Crown, is given power to amend an Act of Parliament, and that does not arise here.
I wonder whether my noble friend would be so good—and I would gladly give way if he is able to 518 —as to remind us (because I must confess that I have not worked this back through the principal Act) who has the obligation to give the notice under this new Section 65, which also arises under my noble friend's amendment. I assume that it is the local authority that has to give the notice. If that is his recollection, I should be grateful if he could indicate it.
§ Lord Monk Bretton
My Lords, I should like to say just a few words in support of the amendment of my noble friend Lord Stanley of Alderley. One aspect of this that is important is that it is the Government's intention - and governments have been pretty successful about this in recent years, I am glad to say - to make efforts to speed up the planning process.
Of course, the tenant farmer is often a small business man and he is not in a position to have a highly professional watching brief kept on his interests. If he is not notified in the way suggested by the amendment, he may miss out and fare pretty badly as a result. There is no doubting the fact that, with the increasing speed at which the process will take place, the issue will become more significant in the future than it has been in the past. That I why I believe that the amendment is of considerable importance.
My Lords, although we differ about the appropriate legislative means for achieving such notification, I can assure noble Lords that the Government agree completely with my noble friend Lord Stanley that such notification is important and that we must continue to provide for it.
I acknowledged in Committee that a requirement in primary legislation represents the maximum safeguard against any potential future change. I was making a point which has universal application and which, if it were followed to its logical conclusion, would fundamentally alter the balance between primary and secondary legislation.
I accept that many applicants for planning permission rely on a combination of guidance notes, booklets and ad hoc advice rather than direct reference to the legislation. Nevertheless, I believe that there is sufficient uncertainty and confusion, even in local planning authorities, about the procedures for notification and publicity of planning applications to justify the proposals embodied in Clause 13.
I can assure noble Lords that Clause 13 is not a Trojan Horse concealing any government intention to ride roughshod over the interests of owners or tenants or to damage their position when a planning application is made. The Government continue to believe that secondary legislation (which is subject to parliamentary scrutiny) is appropriate. The relevant secondary legislation is the Town and Country Planning (General Development) Order. It is subject to the negative resolution procedure which provides for the order to be laid before both Houses for 40 days. At any time during that period, a Prayer may be laid against the order which would oblige the Government to find time for it to be debated.
519 We feel that the latter is the appropriate place for all notification, consultation and publicity requirements to be prescribed. I acknowledge the fact that Clause 13 differs from the parallel provision tabled by my noble and learned friend the Lord Advocate which includes a specific reference to notifying owners and agricultural tenants. There are technical reasons flowing, from the historical basis of the Scottish legislation for this difference in approach. In view of the persuasive case put forward by my noble friend Lord Stanley, the Government are prepared to consider the matter. In the light of that undertaking, I hope that he will not pursue the amendments.
Perhaps I may now answer the question raised by my noble friend Lord Renton about who gives notice to the owners and the agricultural tenant at present. Under the 1990 Act, the applicant is required to notify owners and the agricultural tenants.
§ Lord Stanley of Alderley
My Lords, I must say that I am most disappointed in my noble friend because I too knew the answer to that question. Nevertheless, I thank him for it. It is, indeed, the responsibility of the applicant and is covered by Section 66 of the 1990 Act. I am afraid that I cut my brief down to size due to the lateness of the hour. All I can say at this stage is that this is an important point. It is not something which should be implemented by regulation. We are talking about tenants, houses and homes, which are not a matter for secondary legislation. I believe that it has been or, the statute book since 1947—my noble friend will correct me if I am wrong—and we should not, therefore, throw it out with the bath water.
So far as concerns the negative resolution procedure, I wonder whether my noble friend is really suggesting that we turn down such orders in the future. I do not think that my noble kinsman the Chief Whip would be very pleased if we were to do so. Nevertheless, I am most grateful for my noble friend's concession that he will look again at the matter. In my view, it requires either a change in the Scottish legislation - which I am sure my noble and learned friend would like - or the implementation of the proposal in the amendment. In any event, both pieces of legislation must be in line with one another. In the circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
§ 10.45 p.m.
Lord McIntosh of Haringey moved Amendment No. 77:
Page 23, line 48, leave out ("3") and insert ("5").
§ The noble Lord said: My Lords, the amendment was spoken to with Amendment No. 4. I beg to move.
§ On Question, amendment agreed to.
§ [Amendment No. 78 not moved.]
Lord Dean of Beswick moved Amendment No. 79:
Page 24, line 8, leave out ("may") and insert ("shall").
§ The noble Lord said: My Lords, I shall speak also to Amendment No. 80. We seem to be saying that the law on this issue in Scotland is rather better than the 520 law in England. Amendment No. 79 relates to publicity for planning applications. The CPRE supports the amendment, which provides that local planning authorities must notify neighbours of planning applications. I understand that a similar amendment was moved in Committee by the noble Lords, Lord Norrie and Lord Renton. There is currently no statutory duty upon local authorities in England and Wales to notify neighbours, whereas in Scotland developers are required to do so as part of the planning application. The term "notifiable interest in neighbouring land" is already defined in Scottish legislation.
§ The lack of a statutory duty in England and Wales has resulted in a series of ad hoc discretionary arrangements for notifying the public of planning applications. In some local authorities, the publicity is excellent while in others it is non-existent. The opportunities to become involved in the planning system vary greatly depending upon where people live. The fact that 75 per cent. of local authorities undertake some form of notification means that 25 per cent. of people are without the most basic requirement necessary to ensure that form of public participation in the planning process.
The local government ombudsman is on record as supporting the CPRE's view in a letter dated 21st November 1990, which states:
We have always favoured the implementation of proper neighbourhood consultation, and accordingly we sympathise with the efforts to make it a legal obligation to notify neighbours of development proposals".
§ The Government rejected the amendment in Committee on the grounds that it would place a considerable administrative burden on local planning authorities when existing arrangements work well and provide a fair and appropriate balance. No satisfactory explanation was given as to why the Government took a different view about Scotland. The CPRE agrees with the view of the local government ombudsman that the Government's assessment is false. Without compulsory notification, the public will find themselves excluded from the planning process in respect of applications that might affect them directly as soon as they are submitted.
§ On Amendment No. 80, the CPRE also supports an amendment which would lay down a minimum statutory period of 28 days for public consultation on the planning application. That would formalise a code of practice, agreed in 1980 through the National Development Forum with the DoE, the local authority associations and a wide range of conservation bodies, which required that 28 days' should be allowed for consultation. I beg to move.521
§ Baroness Blatch
My Lords, a great deal of what the noble Lord said seemed to apply to Amendment No. 75. However, we can give an answer.
My Lords, the effect of Amendments Nos. 79 and 80 would be to continue to provide in primary legislation for a specified period during which representations can be received by a local planning authority about a planning application. Those representations must then be taken into account in determining that application. A period of 21 days is at present prescribed in the 1990 Act in respect of representations received in relation to "bad neighbour" development, or from owners or agricultural tenants in relation to any development proposal. Clause 13 paves the way for such requirements to be prescribed in subordinate legislation. This will allow the provisions to be presented more clearly. It will achieve greater flexibility to reflect different requirements and circumstances. The Government therefore oppose these amendments, which seek to retain a more rigid regime in primary legislation.
The Government also oppose the proposed extension by one week of the period for submitting representations. I recognise that local authorities are not always ready to determine planning applications only three weeks after receiving them, and that in practice authorities will take account of representations received after that initial period. Nevertheless, I consider that 21 days imposes a reasonable, yet necessary, discipline for third parties proposing to comment on a planning application. I believe it appropriately reconciles the need to enable interested parties to make known their views with the need for prompt decisions. Accordingly, I hope that the noble Lord will agree not to pursue these amendments.
§ Lord Dean of Beswick
My Lords, I am grateful to the Minister for that explanation. He will not be surprised if I am not enthusiastic about his comments. However, he said that what we wished could be achieved by regulations. Members of your Lordships' House and the people involved will have to watch the situation under the regulations carefully. On that basis, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 80 not moved.]
Clause 14 [Power of local planning authority to decline to determine applications]:
Baroness Hollis of Heigham moved Amendment No. 81:
Page 24, line 37, at end insert:
("(1A) A local planning authority may decline to determine an application for planning permission for development of any land (referred to in this subsection as "the second application") if and so long as a similar application is the subject of an appeal in accordance with section 78 which remains to be determined under section 79 and, in the event of such appeal being dismissed by the Secretary of State, for the purposes of subsection (1) (a) the second application shall be deemed to have been received on the day following the date of such dismissal.").
§ The noble Baroness said: My Lords, I wish to move Amendment No. 81 and speak to Amendment No. 82. Your Lordships will see that Amendment No. 81 is broadly similar to the twin-tracking Amendment No. 102 at Committee stage where we sought to end the practice under which developers submitted two applications and appealed on one after eight weeks on the grounds of non-determination.
§ At Committee stage, the Minister and noble Lords opposite were kind enough to share our anxiety and recognise the problem that to permit appeals after eight weeks for substantial and complex developments requiring elaborate consultation was somewhat unreasonable. That amendment sought to ensure that appeals followed rather than paralleled an application with all the pressure on the planning system that it generated.
§ However, on reflection the Minister still felt that eight weeks was sufficient before the appeal procedure began. I shall not repeat the earlier discussion about the relative pressures on local authorities compared with those on the DoE and the time that the DoE may take to determine its application. Nonetheless, that problem remains.
§ Amendment No. 81, coming at Report stage, steps back a little and addresses the problem from the other side. Where an application has gone to appeal, the local authority is freed from the responsibility of determining a second and subsequent application. It still produces a single track, even if the move to appeal has been unduly and unreasonably speedy in our eyes, rather than the twin tracks and double workload that were the source of concern both then and now.
§ I recommend the amendment to your Lordships on three grounds. First, unlike the amendment moved at Committee stage, it should meet the Minister's anxiety that local authorities will not be allowed a leisurely approach in determining planning inquiries and applications—something that I understand and to a degree share. Secondly, this amendment will meet the local authorities' concern about overload on the system which creates the very delays which generated the problem of twin-tracking in the first place. Thirdly, I suggest that this amendment should be acceptable to the developers' interest because there is no infringement of their right to appeal, or delay on appeal. I hope that, with those additional grounds, this amendment, unlike the one tabled in Committee, may find favour with the Minister.
§ I wish also to speak to Amendment No. 82, which is a more modest amendment. At the moment if a second application is made within 28 days, only one-quarter of the fees have to be paid. There is therefore a positive financial encouragement for repetitive applications and twin-tracking. This amendment would allow local authorities to charge full fees up to a maximum of double the initial fee. That would at least allow fees to be somewhat more commensurate with the workload generated.
§ This is a probing amendment, but not solely because of the lateness of the hour. The normal way of dealing with fees is by regulation. I hope that the Minister will indicate the Government's views on this matter. I beg to move.523
§ Baroness Blatch
My Lords Amendment No. 81 would outlaw twin-tracking, a tactical device used by applicants with the aim of extracting swifter decisions from local planning authorities. Two applications are submitted simultaneously. After eight weeks the developer lodges an appeal against non-determination of one, while leaving the other in the local planning authority's jurisdiction.
In Committee I explained the Government's view of twin-tracking. We accept that it has undesirable side-effects. It can confuse and frustrate residents and councillors. It can cause problems for local authorities' planning departments, which must prepare for an appeal while continuing to consider an identical application. It also results in appeals being submitted and then withdrawn, which wastes some of the planning inspectorate's resources. However, this difficulty should be reduced by Clause 15 of the Bill, which allows my right honourable friend to dismiss appeals delayed unduly by the appellant.
But twin-tracking does have its advantages. It is important that applicants should continue to have the remedy of an appeal against non-determination to ensure that their proposal can be decided within a reasonable time. Twin-tracking is useful, in that it allows some choice to remain at the local level, and further negotiation even after the submission of an appeal It also provides some discipline on local authorities to consider applications speedily. On balance, we would like to see the use of this practice decline, but it would be wrong to achieve that by undermining important freedoms.
The planning system already significantly limits the individual's freedom to develop his property. We should not take lightly the step of further restraining that freedom. Twin-tracking is not an abuse of the planning system; it is a legitimate approach, although one with some unfortunate side-effects.
Twin-tracking is a symptom of the endemic delay in the planning system. As I said in Committee, the Government would like to see use of the practice decline. But that is best done not by outlawing the symptom but by removing the cause. If local authorities determined applications more speedily, twin-tracking would not be a problem. I am glad to see that the speed of determination of applications is now beginning to improve, but much more could be done. The Government will continue to press local planning authorities to improve their performance; we look forward in particular to the results of a study of development control which we understand the Audit Commission is proposing to undertake.
For the reasons I have described, the Government do not agree that twin-tracking should be outlawed. We therefore oppose Amendment No. 81. But we recognise that the practice does place extra demands on local planning authorities' resources. For this reason I am attracted by the argument of the noble Baroness that it is anomalous to give a 75 per cent. discount on the fee for duplicate planning applications. However, I should like to give careful consideration to the level at which the fees should be set. On 14th December 1990 my department announced that it would consult on the possibility of 524 simplifying the fee structure. I can assure the noble Baroness that her anxieties will be taken fully on board in that exercise. I think that would be the appropriate context in which to consider this issue further, rather than on the face of the statute. I therefore do not wish to accept Amendment No. 82 of the noble Baroness. But I hope she will agree to withdraw it in the light of the assurance I have given that the points which she made will be taken into account.
§ 11 p.m.
§ Baroness Hollis of Heigham
My Lords, I am very grateful for the Minister's reply regarding Amendment No. 82. Like her, I should be delighted if we could move away from the present loss-leader approach to twin-tracking fees. Therefore, if the Minister could respond by means of regulations, we should be delighted. On those grounds, we shall withdraw the amendment.
In the case of Amendment No. 81, I had an uneasy feeling that the Minister was speaking to the amendment as drafted for Committee stage rather than this amendment, since she suggested that we were seeking to outlaw the principle of twin-tracking. The Minister herself put the case against twin-tracking very well. Like noble Lords on this side of the House, she would like to see it diminish. However, she suggested the amendment would outlaw twin-tracking.
The amendment does not undermine the freedom of the developer to appeal. The developer's right to appeal is fully protected and his position is not prejudiced. However, the amendment frees the local authority from continuing to determine an application when another application for appeal is already with the Secretary of State. That is a rather different position from the amendment which was moved at Committee stage, and I felt that the Minister was speaking to that earlier amendment.
The Minister said that the problem of twin-tracking might be addressed by Clause 15 under which the Secretary of State can dismiss appeals where there is undue delay. That is not the problem. It is not a question of appeals being unduly delayed; the problem of twin-tracking is generated where appeals are too speedy.
Given the late hour, I shall withdraw the amendment tonight, but I ask the Minister to be kind enough to reflect on the difference between the amendment tabled at Committee stage and the amendment tabled at Report stage. This amendment does not undermine the developer's rights but it limits the twin-tracking burden on the local authority. I hope that the Minister will feel able to come back to us and meet with us on the issue at a later stage. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 82 not moved.]
Lord Renton moved Amendment No. 83:
After Clause 14, insert the following new clause:
§ ("Unresolved objections to development orders
. After section 74(1) of the principal Act there is inserted—
(1A) Any development order made under this section shall specify that a local planning authority shall not grant planning permission for an application to which there is an unresolved objection from the Nature Conservancy Council, the Countryside Commission, the Countryside Council for Wales, the National Rivers Authority, English Heritage, or the County Council for the area in which the land to which the application relates is situated, unless they have notified the Secretary of State of the application for planning permission, along with a statement of the issues involved, and either—
§ The noble Lord said: My Lords, Amendment No. 83 is similar to an amendment that I moved at Committee stage. The discussion on that occasion resulted in a most interesting and encouraging statement from my noble friend Lady Blatch about what the Government intended to do to ensure that the advice given to the Secretary of State by the various quangos was dealt with by him when necessary if there was a conflict between the quangos and a planning application. It is a question of when the Secretary of State should call the matter in.
§ In view of what transpired in Committee, your Lordships may be surprised that my noble friend Lord Norrie and I should move another amendment on similar lines at this stage. We do so in the light of what my noble friend said and in order to help the Secretary of State to resolve the conflicts I have mentioned and to ensure that he is given the chance to resolve them.
§ The amendment is worded quite differently from the amendment that was moved at Committee stage. The new amendment does not fetter the discretion of the Secretary of State in any way. It simply requires a pending planning application to be referred to him, not necessarily for his final decision but merely to enable him to decide whether he should call it in. In other words, he is given the opportunity of calling it in. We feel that it is an opportunity that should not be missed.
§ The effect would be to ensure that he was made aware of the controversial nature of any planning applications where his advisory quangos were concerned and when choosing whether or not to call them in. It would have the beneficial result that major objections on national conservation grounds could not go unnoticed.
§ I should point out that this amendment is supported by the National Rivers Authority, the Nature Conservancy Council and English Heritage. I am not in a position to say whether it is supported by the other bodies mentioned. But so far as concerns county councils, perhaps I may just say that the amendment returns to county councils some of the 526 powers that were lost to them in 1980. They were powers to implement the policies of their own structure plans. One would have thought that it was a good thing that they should be given such powers. We feel that it is right that where there is an unresolved objection made by a county council the Secretary of State should be notified of it and given the chance to call it in just as he should be given the chance to call in unresolved objections made by the statutory bodies which have to advise him on conservation matters.
§ This amendment is put forward in the light of what my noble friend Lady Blatch said very fully at Committee stage which gave us such encouragement. We are merely trying to be helpful. I beg to move.
§ Lord Norrie
My Lords, I speak in support of Amendment No. 83. My noble friend Lord Renton has just reminded us that a number of members of the Committee and the Government expressed concern about the way in which the earlier amendment might fetter the discretion of the Secretary of State. They felt that it should be his decision whether applications should be called in. This amendment meets that criticism. It simply requires a copy of the offending planning application and a summary of the key issues to be put before the Secretary of State. He would then have 28 days in which to decide whether to call it in.
I hope that noble Lords will see that positive steps have been taken to change this amendment. The Secretary of State now has total discretion. What is more, there is no need for minor applications to bother him unless the quangos believe that they raise important matters of national interest.
The benefits of this amendment are obvious. It ensures that the Secretary of State is at least aware of the facts surrounding controversial applications before they are allowed to proceed and that he is given a formal opportunity to consider them with a view to recalling them. The result will be better protection for the countryside, a reduction in the rate of loss of SSSIs, less damage to our AON Bs and structure plans which could not so easily be overridden by rogue decisions at district level. I support this amendment.
§ Lord Ross of Newport
My Lords, I shall speak to Amendment No. 86 which is linked with Amendment No. 83. I very much support the amendment moved by the noble Lord, Lord Renton. Mine is a slightly more limited variation and only covers objections from the Nature Conservancy Council. It deals specifically with the problems relating to SSSIs.
The amendment would set up a procedure which should be followed when a local planning authority intends to grant planning permission for an application which affects an SSSI and where there is an outstanding objection from the Nature Conservancy Council. Specified details must then be sent to the Secretary of State, who has 28 days—and can extend the period if he so desires by notice—in which to consider whether he will call in the application for determination by him. Otherwise the local planning authority can go ahead and grant permission.
527 The current practice is for consideration to be given to call-in only where the Secretary of State is made aware of a planning application before the grant of permission is made by a local authority. Even then, as we well know, some weighty representations have to be made; and in good time.
The amendment has three advantages over the current position. First, it sounds an unmistakable note of caution to the applicant. However, careful forethought may be needed to avoid conflict involving intervention by the Secretary of State. It focuses the attention of the local authorities more firmly on SSSIs and their conservation worthiness. It provides a system of positive vetting whereby steps cannot be taken innocently or injudiciously by a local planning authority which can in circumstances lead to action against the Government in an international forum or litigation in the European Court of Justice.
A case at present arises at Cardiff where European legislation may have some effect. Surplus material excavated from a road construction project is being dumped on an SSSI. It is alleged that that dumping exceeds the area for which consent was granted. Both the NCC and the RSPB have objected to the extension of tipping over the previously approved line. The RSPB has taken initial steps to register with the European Commission a complaint alleging infringement of both the European Community wild birds and environmental assessment directives. We understand that the applicant has announced his intention to apply for further consents over larger areas of the SSSI. I am aware that the subject was debated to some extent in another place last evening.
I am always nervous to mention any issue relating to Scotland. However, I am told that the amendment seeks to capture the essence of subordinate legislation already in place in Scotland, and resorted to for explicit guidance purposes. Such legislation is better in Scotland than in England and Wales. That often happens to be the case. Why can not we have the same position in England and Wales? I beg to move.
§ Baroness Blatch
My Lords, we greatly value the advice and expert knowledge of conservation and heritage bodies. We recognise also the vital role that county councils play in the planning system. Even so I believe that, if agreed, the amendment would still place those bodies in a privileged position which other bodies which also give authorities expert advice would rightly resent.
Secondly, the conservation and heritage bodies have a specific role to play in the planning system and particular interests to foster. But a decision to hold up a planning application in this way should be taken in a rather broader context. The delay and cost involved in doing this caused to the developer, the planning authority and the Secretary of State do need to be justified in the public interest.
Thirdly, requiring the Secretary of State to scrutinise a large number of additional applications will of necessity mean him interfering with local authority jurisdiction to some extent. This is something which I believe we should not do unless it 528 is absolutely necessary, and nothing that noble Lords have said today has convinced me to change my mind. I hope that this amendment will he withdrawn.
Amendment No. 86 resembles Amendment No. 83, but is specifically directed at areas of special scientific interest. It seeks to prevent a local planning authority, for a period of 28 days, from granting planning permission for a development which affects a site of special scientific interest and is the subject of an unresolved objection from the Nature Conservancy Council. During this period the Secretary of State would have the opportunity to consider whether to call in the application for his own determination, in the light of particulars provided by the local planning authority.
Amendment No. 83 would put on a statutory basis the existing arrangements for the Nature Conservancy Council to request call-in. DoE Circular 27/87 (Welsh Office Circular 52/87) states that, if a local planning authorityis minded to grant permission for development against NCC advice, it is important for the NCC to be informed so that it may consider whether to ask the relevant Secretary of State to call in the application".We have no evidence that these arrangements are working badly—and nothing that has been said in the course of the debate has provided any evidence.
The Government are firmly committed to the conservation of the natural heritage and are preparing a draft planning policy guidance note on nature conservation and planning for public consultation.
SSSIs are a key part of the nature conservation framework. The Government wish to ensure that their value is taken fully into account in the operation of the town and country planning system. We intend to issue a consultation paper next month on development control in SSSIs, proposing additional safeguards. As I informed noble Lords at the Committee stage, we are considering making more explicit the criteria relating to the call-in of planning applications affecting SSSIs.
The Government take the protection of SSSIs very seriously. We shall shortly be bringing forward proposals for public consultation. In view of this, and the existing arrangements in DoE Circular 27/87 for the Nature Conservancy Council to request call-in, I invite the noble Lord to withdraw the amendment.
§ Lord Renton
My Lords, on this occasion my noble friend has succeeded in convincing me and I am grateful. Although we tried to hook the Government by putting forward this amendment, my noble friend has pointed out that on grounds of delay and cost it is not necessary and might cause delay and cost. For those reasons I beg leave to withdraw it.
Amendment, by leave, withdrawn.
§ 11.15 p.m.
Baroness Hollis of Heigham moved Amendment No. 84:
After Clause 14, insert the following new clause:
§ ("Notice of appeal
. After section 78(4) of the principal Act there is inserted—
(4A) Notice of any appeal made under this section shall be served on any person named in a certificate
issued for the purposes of sections 66 or 67, or to any person who has made representations to the authority on the application for planning permission." ").
§ The noble Baroness said: My Lords, I too hope to convince the Minister. I wish to speak also to Amendment No. 85 and suspect that they have been listed in the wrong order on the Marshalled List. They are a modest pair of amendments which we can all support. Amendment No. 85 proposes that local authorities be required to notify interested parties and those who have commented on planning applications of the outcome of their decision. Amendment No. 84 applies the same principle to appeals. They are about openness, public accountability, courtesy and also a few other virtues. I hope that in that context the Minister will find them acceptable. I beg to move.
§ Lord Fraser of Carmyllie
My Lords, the effect of Amendment No. 85, which should come before Amendment No. 84, would be to increase the number of people who must be notified of the outcome of planning applications. At present the 1990 Act requires local planning authorities to give notice of a decision to any owners or agricultural tenant who made representations about the application which were required to be taken into account in reaching that decision. Additional notification is at the discretion of the local planning authority.
Noble Lords will know that the Government are committed to streamline the procedures and requirements for publicising planning applications. Accordingly, Clause 13 makes provision for a development order to require a local planning authority to give any person whose representations have been taken into account such notice as may be prescribed of its decision. In undertaking this simplification the Government do not intend to make any substantial change to the present notification requirements.
The amendment would require that planning decisions be notified to any owner or tenant who, despite having been notified of the application by right, nevertheless elected not to make representations. It appears to us to be a wasteful use of resources to notify people who have not expressed any interest, even when invited to do so.
It would be equally poor value for money to notify all third parties who had made representations. In many cases where a planning application has generated significant local controversy the decision of the local planning authority will be well publicised in the local press. In some cases individual notification of all those who made representations would represent a considerable burden on local planning authorities which might even be faced with the task of contacting individually every signatory to a petition as well as those who expressed support for the application.
Amendment No. 84 seeks to introduce parallel notification requirements where a planning appeal is made to the Secretary of State. I am happy to assure the noble Baroness that such requirements are already effectively in place. Under the regulations which govern the procedure for appeals determined by 530 written representations the local planning authority must notify all of those referred to in the amendment that an appeal has been submitted.
A similar procedure is followed for cases heard at public inquiry. The Planning Inspectorate writes to the local planning authority and asks it to inform all those interested in the case that an inquiry is to be held. Although this arrangement is voluntary, we have received no evidence to suggest that it is inadequate. With that explanation, I hope that the noble Baroness will appreciate that Amendment No. 84 is unnecessary.
§ Baroness Hollis of Heigham
My Lords, I thank the noble and learned Lord for that very helpful reply. I was not aware of the situation which he described as regards Amendment No. 84. However, given that assurance and description, I am happy to withdraw the amendment.
I am slightly less persuaded by his response to Amendment No. 85 because, even if a potentially interested party has not responded, nevertheless, it may be affected by a decision. Therefore, I believe that we should be on the side of openness of information and spreading that information to affected parties.
I thought that in his reply the noble and learned Lord was making rather too much of the work involved for the local authority. In consideration of who should be notified, this amendment seeks to bring the weaker local authorities up to the best practice of the better authorities. It may be that the same objective can be met by planning guidance. However, I hope that the Minister will accept that this issue is about openness and consultation, because that is how planning decisions are legitimised. In the context of that, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 85 not moved.]
Lord Ross of Newport had given notice of his intention to move Amendment No. 86:
After Clause 14, insert the following new clause:
§ ("Determination of applications affecting SSSIs
§ . After section 76 of the principal Act there is inserted—
§ "Determination of applications affecting SSSIs.
§ 76A—.(1) Where a local planning authority propose to grant planning permission for a development which affects an area of special scientific interest in respect of which the Nature Conservancy Council has objected to the grant of such permission or recommended conditions which the authority do not propose to attach to the planning permission, and has not withdrawn that objection or recommendation, they shall submit to the Secretary of State the following particulars
- (a) a copy of the application for planning permission and of such plans and supporting documents relevant to it and taken into account by the authority;
- (b) details of any representations made to the authority about the proposed development together with the comments of the authority on them; and
- (c) the reasons of the authority for proposing to grant planning permission.
§ (2) Subject to subsection (3), a local planning authority shall not grant planning permission for a development to which this section applies before the 531 expiry of a period of 28 days beginning with the date notified to them by the Secretary of State as the date of receipt by him of the particulars specified in subsection (1).
§ (3) The Secretary of State may, at any time during the period specified in subsection (2), notify the local planning authority that a longer or shorter period shall be substituted for that period.
§ (4) If on the expiry of the period referred to in subsection (2) of (as the case may be) notified under subsection (3) the local planning authority have not received from the Secretary of State a direction under section 77 (reference of applications to Secretary of State) the authority may proceed to determine the application.
(5) In this section—
area of special scientific interest" means an area in relation to which a notification given, or having effect as if given under section 28 of the Wildlife and Countryside Act 1981 (areas of special scientific interest) for the time being has effect."").
§ The noble Lord said: My Lords, I welcomed the Minister's comments about the need to protect SSSIs in relation to the forthcoming discussion document. However, I was rather surprised that she is unaware that the situation is causing anxiety to the NCC. I believe that it is.
§ [Amendment No. 86 not moved.]
Lord Dean of Beswick moved Amendment No. 87:
After Clause 15, insert the following new clause:
§ "Time limit for appearance
§ . In section 79(2) of the principal Act there shall be inserted at the end ", provided that such an appearance shall not take place for at least 14 days after the date on which the appearance is notified to the person requesting it".").
§ The noble Lord said: My Lords, the purpose of this amendment is to provide a minimum period between the date on which a public inquiry or hearing is called and the date on which it takes place. The inquiry procedure rules set out guidelines for the conduct of public inquiries. They include clear advice on how to avoid delays and inefficiency, including efforts to ensure that there is not an enormous delay between the lodging of an appeal and the date on which an inquiry is held.
§ While that is clearly sensible, there is no equivalent rule which provides a minimum period before which an inquiry is held. The National Housing and Town Planning Council considers that that is necessary because, if the time period is too short, the parties will not have time to prepare for it. That is a particular problem for third parties which have no opportunity to affect the date on which the inquiry is held although the developer and local authority must agree to it if possible.
§ Sometimes it is possible for an inquiry to take place at unexpectedly short notice. That can happen if, for example, another appeal is withdrawn and an inspector becomes available at short notice. That can cause problems. I have details of an inquiry called at extremely short notice. The inspector reported that some local people had had only 36 hours' notice of the inquiry. The site notice referring to an inquiry was put up on the Friday referring to the public inquiry for the following Wednesday. That surely is not sufficient 532 time. A number of residents complained to the local authority that they were unable to attend the inquiry at such short notice. In any event there was little time for third parties to assemble their cases.
§ The inspector proceeded with the inquiry but agreed to accept subsequent written representations. While that made the best of a bad job, it prevented those unable to attend the inquiry from either cross-examining others or being cross-examined themselves. The purposes of the inquiry were to some extent lost, and the final decision was no doubt delayed to take account of any written representation received during the subsequent four weeks. It would have been better to postpone the inquiry. Justice may or may not have been done, but it was not seen to have been done, which is an important aspect of planning procedures.
§ The amendment proposes that primary legislation should contain the provision that a two-week minimum period be set aside after the calling of an inquiry until the inquiry takes place. There is a question of whether this is suitable for primary legislation or whether it would be better placed in the inquiry procedure rules. While the National Housing and Town Planning Council would settle for the rules, it believes that primary legislation would he more reliable.
§ Precedent is to be found in Section 66(6) of the principal Act which ensures that persons affected by planning applications have a guaranteed 21-day period following their notification of the application within which the local planning authority is barred from reaching a decision. That gives people time to assemble their comments and submit them to the authority. If that is sensible for planning applications, which it is, is it not sensible also for comparable limitations to be introduced for planning appeals? I beg to move.
§ Lord Fraser of Carmyllie
My Lords, I have listened to what the noble Lord has had to say but I do not see the need for the amendment. I do not entirely understand what the difficulty is. As I understand the position, under the inquiry procedure rules for planning appeals the Secretary of State is required to give at least 28 days' notice of an inquiry to those entitled to appear at it. Moreover, a number of procedures have to be undertaken before that notice can be given. An inquiry cannot normally commence until several months after the initial request to be heard.
Informal hearings are governed by a code of practice rather than statutory rules, but that similarly provides that at least 28 days' notice of arrangements will be given. In the circumstances the amendment is wholly unnecessary. I did not understand how the specific example given by the noble Lord could come about. However, I shall examine the matter to see what arose in that connection and either I or my noble friend Lady Blatch will write to him.
§ Lord Dean of Beswick
My Lords, I am grateful to the Minister for that reply. I am sure that the National Housing and Town Planning Council will have 533 concrete evidence of the situation that it came across. I shall attempt to obtain more details and write to the Minister. On that basis I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord McIntosh of Haringey: moved Amendment No. 88:
After Clause 16, insert the following new clause:
§ ("Control over agricultural and forestry buildings and roads
. After section 59(3) of the principal Act (development orders) there is inserted—
(4) No development order may grant permission for the erection of a building or the formation of a private way for purposes of agriculture or forestry." ").
§ The noble Lord said: My Lords, I see one farmer on the opposite Benches and one farmer on my own Benches, and therefore I dare to rise to move Amendment No. 88. I am sure that the noble Lord, Lord Stanley, is far too tired to resist the overwhelming case which exists for the amendment.
§ The planning control of farm buildings is an anomaly which has been part of our planning legislation for almost 50 years, and is none the better for that. On the face of it there is no reason why agricultural buildings should have any other exemption from planning control than, for example, industrial or commercial buildings.
§ The rapid conversion of an agricultural building into something which is not agricultural after permission has been obtained has been a feature of our countryside ever since planning controls were set up, or even before that. It is not as if this was a matter on which the Government had not agreed in principle that something had to be done. The trouble is that the Government have not agreed that enough should be done to deal with the very real problem.
§ It is a problem that intrusive buildings are erected in the countryside without due regard for the appearance of the countryside. It is a problem that buildings erected for agricultural purposes turn out in the end to be residential accommodation. It is a problem that barns can be built in an intrusive way, or cowsheds can turn out to have dormer windows, or that small agricultural plots can turn out to carry huge sheds. It has always been a problem on the fringe that stables, which are really a commercial use rather than an agricultural use, achieve exemption which other commercial activities do not.
§ The Government's acceptance that something is wrong does not go very far. They have agreed to extend the threshold size below which permitted development rights are not available from 0.4 hectares to 5 hectares, but my understanding is that only 0.6 per cent. of farm holdings in England are in units of less than 5 hectares, so this is going to be a minimal exemption. They have also agreed to extend to the whole country the notification arrangements that apply in national parks.
§ That may sound satisfactory, but in practice a survey which has been carried out by CPRE of the national parks has revealed that the notification arrangements are quite unsatisfactory, and seven out 534 of the nine national parks authorities have expressed the view that they would prefer to see full planning control rather than the notification arrangements which exist at present in the national parks.
§ It is not even as if the notification arrangements save time. In over 50 per cent. of all notifications there were negotiations which took just as long as planning controls and did not have the same force of law or the same effect. For that reason, a very large number of bodies concerned with the countryside - the Countryside Commission, the Association of District Councils, the District Planning Officers Society, the National Housing and Town Planning Council, and the Ramblers' Association - all agree that full planning control should be applied to agricultural buildings. I hope that the House will agree. I beg to move.
§ 11.30 p.m.
§ Lord Gibson-Watt
My Lords, I rise to oppose this amendment, largely on the forestry side. The Government are faced with a mare's nest if they try to tackle planning control over forestry buildings and forestry roads. What is a forestry building? Is it the sort of shelter which is put up for foresters to do their work in, something quite small and temporary? What is a forestry road? Is it where an owner takes out a bulldozer and makes a ride for the extraction of his trees?
This matter is far more complicated than the mover of the amendment, the noble Lord, Lord McIntosh, makes out. I know there has been controversy in this sphere, but I very much hope that the Government will not agree to the amendment.
§ Lord Stanley of Alderley
My Lords, I should be disappointing the noble Lord, Lord McIntosh, if I did not rise to his bait. He is exaggerating about the double-glazed cowhouses that he has seen. I have not seen one. When he next does so, perhaps he will take me to see it. In all seriousness, many agricultural buildings are very beautiful. If my memory serves me right, His Royal Highness spends a great deal of his time in trying to preserve our barns, and good luck to him. We shall see similar events in the future. On a personal note, I am not particularly happy that the planning controls will make them any better. Neither my male nor my female ancestors would have been able to produce Longleat or Sheffield Park if they had the planning controls that we have today. I hope that my noble friend will resist this amendment.
§ Baroness Blatch
My Lords, we have shown that we are prepared to introduce new, closely-targeted controls where this is necessary to deal with specific problems. Most recently, we have proposed a system of prior notification which would enable local planning authorities to control the siting, design and external appearance of farm and forestry buildings erected under the general development order. We have invited views on including farm and forestry roads in such a system. And we have proposed raising substantially the minimum area of agricultural land attracting permitted development rights under the 535 general development order, from 0.4 hectares to five hectares, with special provision for genuine units below the new threshold.
The proposed notification system would build on arrangements currently operating in the national parks. It would represent a major change offering significant amenity benefits. At present local authorities outside national park areas are not consulted about permitted development, so they do not normally have an opportunity to give even informal views and advice. If our proposals were adopted, they would have the right to require details of siting, design and external appearance for their prior approval. We have had some 400 responses to the consultation exercise which closed last month. We are considering them very carefully. It is too early to say what our final conclusions will be.
I want to return now to a point which the noble Lord, Lord McIntosh, raised when he introduced the parallel amendment at Committee stage. He said he was particularly concerned about the abuse of the permitted development rights for agricultural buildings to construct buildings that were not farm buildings but were in effect residential. To qualify for permitted development rights under the general development order a building must bedesigned for the purposes of agriculture",and must bereasonably necessary for the purposes of agriculturewithin the agricultural unit concerned. These are significant safeguards. Under a notification system the local planning authority would, for the first time outside national parks, have to be notified of all new farm building proposals for which a planning application was not made. This would substantially aid enforcement. The enforcement provisions in the Bill would also assist.
Our proposals to introduce prior notification and raise the minimum area of agricultural land qualifying for permitted development rights would be a significant extension of planning controls over agricultural and forestry development. We are not in favour of a complete withdrawal of permitted development rights, which would place major new burdens on the agriculture and forestry industries at a time when aggregate income for agriculture is at its lowest since 1945. But as I have said, we shall be considering the responses very carefully before we take final decisions in the light of the consultation. I hope that the amendment will not be pressed.
The noble Lord, Lord McIntosh, quoted the CPRE as having evidence to say that the notification system in national parks was not working. I have to tell him that we have just received a very detailed report of a research project which does not support that claim. The report has not yet been published, but it will be very soon. Then the noble Lord will see the CPRE evidence invalidated. He will be quite surprised at the evidence that we have to offer. I hope that this amendment will be withdrawn.
§ Lord McIntosh of Haringey
My Lords, the Minister will hardly expect me to roll over and wave 536 my paws in the air at evidence which she is unable to produce. She will hardly expect me to anticipate evidence that I have not seen and which she had not yet been able to analyse. I am able to produce my evidence. The CPRE has carried out a survey of the national parks' authorities. Only two of them, Snowdonia and the Yorkshire Dales, believe that the notification process is adequate to the purpose. I do not think that the House will allow me to give chapter and verse of the answers received from the authorities representing the Broads, Dartmoor, Exmoor, North Yorkshire Moors and Northumberland. Those are the answers that I have in front of me. They all believe that the notification process is inadequate. If they are the ones who have been having to implement it, it is difficult to see on what basis the Minister feels confident in extending it to the rest of the country and claiming that it is a successful experiment which will meet the needs of the case.
I am bound to say that all the Minister has done in response to my amendment is to say that she has not got an answer yet. If she has not got an answer yet, then all that means is that the Government are going to be faced with this amendment continuously until they have an adequate answer, or at least an answer that they can attempt to put to Parliament. With that threat, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Ross of Newport moved Amendment No. 89:
After Clause 16, insert the following new clause:
§ ("Development permitted under interim development orders
§ After section 105 of the principal Act there is inserted—
§ Development permitted under interim development orders.
§ 105A.—(1) Where any development is authorised by virtue of a permission granted on an application made under an interim development order between 21 July 1943 and before 1 July 1948 and that permission is still valid the person entitled to the benefit of that permission shall, within one year of the date of entry into force of this provision, send a copy of the permission to the local planning authority or authorities in whose area or areas that permission will have effect.
§ (2) Within fourteen months from the date of entry into force of this provision every local planning authority shall establish a register of permissions in their area granted under interim development orders and that are still valid.
§ (3) Provision may be made by regulations or a development order for prescribing the information about the permissions that is to be entered on the register.
§ (4) It shall be the duty of a local planning authority to secure that the register established under subsection (2) above is open to public inspection free of charge at all reasonable hours and to afford members of the public reasonable facilities for obtaining from the authority, on payment of reasonable charges, copies of entries in the register.
§ (5) Any person who is entitled to the benefit of a permission of which he has sent a copy to the authority may notify the authority within three months of the date of establishing the register that his permission has been omitted from it and on receiving such notification it shall be the duty of the authority to enter that permission in the register.
§ (6) Within two years of the date of entry into force of this provision any permission granted on application under an interim development order between July 21 537 1943 and July 1 1948 that is not entered on the register established under subsection (2) above shall cease to have effect.
§ (7) Where a permission has ceased to have effect by virtue of subsection (6) above no compensation under the provisions of this Act shall be payable to the person entitled to the benefit of it.
§ (8) Entries on the register established under subsection (2) above shall also be entered on the register established under section 69 of the principal Act.").
§ The noble Lord said: My Lords, I beg to move Amendment No. 89 which appears in my name on the Marshalled List. It deals with the interim development orders and particularly with gravel extraction. This matter was raised in Committee by the noble Lord, Lord Moran, the noble Baroness, Lady David, and by myself, and there may well have been others. I am sorry, I have not fully checked up. In response to what was said then I, and no doubt other Members of this House, received substantial information from the British Aggregate Construction Materials Industries. I must say that one had to take note of what it sent to us.
§ Obviously one cannot just produce amendments in this House which create problems for the construction industry and some of its assets. But it came up with a suggestion that I hope the Government might feel is sensible. Perhaps I have been a bit too generous in what we tabled. I asked our legal adviser to table a suitable amendment to cover what was suggested in the information from the aggregate people, and I hope that he has made a good job of it.
§ The fact is that we do not know how many IDOs still exist. Both the Department of the Environment and the county councils have attempted to carry out surveys to identify how many remain valid with potential for either continuation of quarrying or reopening of workings. Neither, I am told, has managed to complete a full survey because the counties have incomplete records of them as a result, in particular, of the 1974 reorganisation of local government.
§ Because there is so much doubt about the scale of IDOs still extant and the consequences of taking action could be so serious for the quarrying industry, BACMI—that is the shortened term for the organisation—believes it would be wrong to amend the legislation until the scale of the problem has been fully identified or until the Department of the Environment review of the workings of the 1981 Act has been completed.
§ In the short term BACMI supports the proposal made to it by the County Planning Officers Society that provision should be made in this legislation for a system of compulsory registration of IDOs rather on the lines of the commons registration system. That actually seems to have gone rather wrong, but never mind, I will leave that alone. The provision could take the form of a requirement to register all IDOs and their extent within two years, after which any unregistered IDOs would be lost. This would have the advantage of allowing a full assessment of the scale of the problem before decisions were taken on what needs to be done.538
§ I felt that that was not an unfair approach, and therefore that is what the amendment which I now move attempts to do. I would hope that, in view of the fact that it is the aggregates organisation itself which is prepared to accept this and the planning officers themselves who suggested it, the Government will take it on board.
§ Lord McIntosh of Haringey
My Lords, Amendments Nos. 98 and 99 tabled in my name and that of my noble friend Lady David have been grouped with the amendment just moved by the noble Lord, Lord Ross of Newport. These are very serious matters and I believe that a full answer is required to the arguments put forward by the British Aggregate Construction Materials Industries. However, in view of the agreement which we have reached about the close of Business this evening, I do not believe that those arguments can be properly explained in 30 seconds flat. I propose, therefore, to ungroup my amendments from the amendment now before us so that it can be dealt with more speedily.
§ Baroness Blatch
My Lords, my noble and learned friend the Lord Advocate said in Committee that the Government were considering whether action should be taken to deal with IDO permissions in advance of the findings of our more general review of the existing powers available to mineral planning authorities for revoking or modifying minerals permissions generally and that we hoped to announce our conclusions before the Bill has completed its passage. It is not a simple matter. Minerals are an important national resource and the country needs to maintain a steady supply. However, as we made clear in the environment White Paper, it is necessary to strike a careful balance between the interests of amenity and the need to exploit the resource. Mineral operators must take account of best environmental practice and aim to be good neighbours. We are aware that increasingly the industry accepts its responsibility to work sites in an environmentally sensitive manner and to restore land once working has ceased. Nevertheless, the Government believe that it is inequitable that the extent and terms of permissions which have been in existence for close to 50 years are not recorded and that householders and others may have been disadvantaged by this lack of knowledge.
We shall therefore bring forward amendments during the passage of the Bill to provide that, unless the holder of an IDO permission applies to the appropriate mineral planning authority within six months from Royal Assent for the permission to be registered, the permission will cease to have effect. We shall of course consult on the detail of what we have in mind, including the appropriate time period for registration.
However, we recognise that registration in itself will not deal with the problems of the lack of conditions attached to such permissions. Residential and other development may have been built on or near IDO permission areas; similarly, parts of IDO sites may have been designated as sites of special scientific interest or of other environmental importance—without knowledge of the fact that the permission 539 existed or the terms of the conditions attached to it. The Government are, therefore, considering whether to require that applications for registration of IDO permissions are accompanied by schemes of operating, restoration and, where appropriate, aftercare conditions for the approval of the mineral planning authority.
The Government take the view that it would be sensible to use the opportunity of registration to apply conditions and believe that responsible operators would share that view. Applicants would be able to appeal to the Secretary of State against refusal or the imposition of unreasonable conditions by the authority. We shall be issuing a short consultation paper on our proposals in the next few days and will consider the response before taking a firm decision. The question of the impact of the proposals on the compensation rights of operators will be covered in the consultation exercise. In view of that explanation, I hope, that the noble Lord will feel able to withdraw the amendment.
§ Lord Ross of Newport
My Lords, I can hardly moan about that because I actually suggested a period 540 of one year and the Government have proposed six months. It is a step in the right direction. I welcome what has been said, but I shall obviously want to study it. Judging by the glares which I am receiving from Members on the Opposition Front Bench, it is possible that I have been slightly over-generous in my response. It would seem that the Government are on the right side of the Opposition for once. I am grateful for the Minister's reply. I believe that we are all delighted by the fact that the Government are taking notice of what is a most difficult situation; indeed, some landowners are in an appalling situation. In the circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
My Lords, I beg to move that further consideration on Report be now adjourned.
Moved accordingly, and, on Question, Motion agreed to.
House adjourned at eleven minutes before midnight.