General environmental duty

HL Deb 28 February 1991 vol 526 cc1118-58

. It shall be the duty of the Secretary of State and local planning authorities in discharging any of their functions under this Act to exercise their powers, so far as may be consistent with their functions under any other legislation, so as to further the conservation and enhancement of natural beauty and the conservation of flora, fauna and geological and physiographical features of special interest and the protection of sites, buildings and objects of architectural, historic or archaeological interest.").

The noble Lord said: My Lords, we once again turn to what should be the Bill's key role—the improvement of environmental policy. The amendment would place a responsibility on local authorities and the Secretary of State to further conservation issues through the planning system while at the same time paying attention to social and economic concerns. The Government's sole argument against a similar amendment that I tabled on Report was that it would raise the protection of the natural environment above all other issues.

I was disappointed by the Government's response and by their reluctance to discuss how we might change the wording. My noble friend Lord Renton and I had altered the amendment that we had tabled in Committee to ensure that the environment was not made paramount. The amendment followed similar wording in the Water Act 1989.

Following the Report stage, my noble friend Lord Renton and I wrote to the noble Baroness expressing concern about the Government's response. Since the reply was only received yesterday I am sure that the House will understand if I take slightly longer than normal in moving the amendment. The noble Baroness has now put forward four main arguments against our amendment. The first is that we have misunderstood the role of environmental duties in other pieces of legislation such as the Water and Electricity Acts. The Government say that these duties are merely to regulate the behaviour of bodies whose commercial interests may encourage them to disregard environmental concerns. Planning authorities are different.

I agree with the noble Baroness up to a point. However, I feel that she has been a little selective in her choice of duties. Duties are also placed on the Minister of Agriculture under Section 17 of the Agriculture Act 1986, on the Secretary of State under Section 3 of the Electricity Act 1989 and under Section 8 of the Water Act 1989. The Secretary of State is not a developer seeking the best commercial return on his investment. Indeed, his role as a regulator is similar to that of local planning authorities. There is a precedent for an environmental duty in the Town and Country Planning Act 1990. Section 197 places a duty on local authorities to use planning conditions for the preservation of and planting of trees whenever appropriate. Perhaps this precedent should set an example for wider environmental improvement.

The second argument put forward by the noble Baroness is that local planning authorities already have to weigh up all material considerations when dealing with planning applications. The environment should not be the overriding factor and making the environmental duty consistent with the authorities' functions under any other legislation, as we suggest in our amendment, does not take all matters into account. I am at a loss to understand why the Secretary of State or the Minister of Agriculture is not put in the same position when meeting his environmental duties under other legislation. He must consider all issues but still has an environmental duty. My amendment goes wider, to deal with the preparation of plans as well as development control decisions. I am trying to influence development plans as well as individual development decisions.

The third argument is that the amendment is unnecessary because the matter is already covered by other legislation, particularly in the Countryside Act 1968, the Planning (Listed Buildings and Conservation Areas) Act 1990 and the Ancient Monuments and Archaeological Areas Act 1979. That takes a very narrow view of our amendment. The Countryside Act refers only to the countryside. What about the environment of urban fringes in our towns and cities? The other Acts deal specifically only with specially designated sites such as conservation areas, scheduled monuments and listed buildings. The historic and archaeological value of our natural heritage goes wider than this. It includes a wide range of landscapes, buildings and sites which are not designated but which, when put together, are enormously valuable.

The final argument is that our amendment is too positive. The Government fear that a requirement to further conservation may lead to too many High Court challenges. That also takes a narrow view. Positive requirements already exist in the planning system. Section 31 of the Town and Country Planning Act 1990 requires structure plans to include policies for the improvement of the physical environment. Section 72 of the Planning (Listed Buildings and Conservation Areas) Act 1990 requires local authorities and the Secretary of State to give special attention to, the desirability of preserving or enhancing the character or appearance of that area". This positive duty is now being well tested in the High Court. The effect on local authorities and developers has been thoroughly good because they think much more carefully before damaging these areas.

I believe that there are strong arguments in favour of a positive duty, but if the Government are willing to consider different wording then I should be delighted to see a revised amendment when the Bill returns to this House. I do not wish to delay the House much longer on this important amendment, but I hope that the Government can see the strength of feeling that lies behind it and will consider how we may find some common ground. I know it exists and I am sure it is worth working for. I beg to move.

Lord Renton

My Lords, as my noble friend Lord Norrie has described our case fully and clearly, I can be fairly brief. I make no apology for the fact that this is the third time of asking under the Bill. The reason I make no apology is that to my mind it is the most important matter raised by any amendment to the Bill. My noble friend says that it is not necessary or desirable, but, with respect, I find the logic very strange indeed. She says that it is not necessary because a similar duty is already required under the Countryside Act 1968 and under the Planning (Listed Buildings and Conservation Areas) Act and regulations. However, if it is required under those provisions, it must be desirable. If it is desirable for the purpose of those measures one wonders why it is not even more desirable under our general planning law. The main purpose of that law is, or should be, to ensure that unavoidable development is carried out in ways which are acceptable environmentally as well as socially and economically.

Thus, if it is correct to say that such a duty is desirable and necessary, as both my noble friend Lord Norrie and I maintain, I trust that when the Bill goes to another place the Government will consider the matter further. I am prepared to concede that the word "further" may be difficult for my noble friend Lady Blatch to swallow. That word is sometimes ambiguous, but here it means "to advance". In her letter, my noble friend explained her problem and if that word is difficult then I suggest that the same object or something close to it could be achieved by using the expression "a duty to have regard to" conservation and enhancement of beauty, instead of "to further" them.

If my noble friend will state that she will bear that constructive alternative in mind with a view to altering and improving the Bill in another place then, speaking for myself, I should be content. I hope that my noble friend realises the importance of the matter and the support that we have received from all corners of the House on previous occasions. I live in hope.

Baroness White

My Lords, I do not wish to detain the House for long. I wholeheartedly support the two noble Lords who have spoken on the amendment. I am glad that the noble Lord, Lord Renton, has drawn attention to this. I understand the strong Civil Service pressure that must have been put on the Minister against using the word "further". Having had a good deal of experience with civil servants over many years, I know that they have a Pavlovian reaction to it. To "further" something is very dangerous indeed. Therefore I appreciate that the noble Baroness will have been under pressure not to further the amendment.

I hope that the Minister will not misunderstand the feeling in the House on the part of those of us who have supported this amendment on previous engagements on this Bill and that she will take the amendment seriously. The amendment is very important and it is a complete cross-party provision. It reflects the deep concern of those of us who are engaged upon environmental matters that an adequate reference to those matters should be included in the Bill.

4.30 p.m.

Baroness Blotch

My Lords, I am conscious that I am up against considerable heavyweights in this matter in terms of knowledge of previous legislation and of the impact of legalese terminology on legislation. Therefore, it is with some trepidation that I reply to my noble friends on this amendment. I hope that my reply will be considered a positive one.

I believe that there is a considerable meeting of minds on this issue in terms of what my noble friends wish to see in the Bill and what I can agree to on behalf of the Government. My reply will contain a great deal of repetition in regard to the pieces of legislation that I shall refer to. Further, I believe there will continue to be room for further consideration of these matters as the Bill proceeds from this House into another place. It would be quite wrong of the Government to say at any stage that we had done all we could on any of the issues. At the outset I give an assurance that we shall continue to consider these matters.

During the previous debates, and on this occasion, my noble friends Lord Norrie and Lord Renton referred to the existence of environmental duties in other legislation and I have noted that the wording of their amendment echoes that of Section 8 of the Water Act 1989. However, as I explained during the debate on this issue on Report, the provision in the Water Act, and, indeed, similar provisions in the Electricity Act 1989 and the Electricity Act 1957, were introduced —my noble friend Lord Norrie pointed this out—to regulate the behaviour of the individual bodies concerned. That was necessary because developers, whether private companies or statutory undertakers, might otherwise be expected to act in their best commercial interests irrespective of the effect on the environment.

The position of local planning authorities, and of my right honourable friend the Secretary of State, is different from that of developers. Under Section 70(2) of the Town and Country Planning Act 1990, local planning authorities have to weigh all material considerations when they consider a planning application for a proposed development. I am aware that in drafting their amendment my noble friends have attempted to take account of local planning authorities' social and economic responsibilities by obliging them to further the interests of conservation, so far as may be consistent with their functions under any other legislation". But that fails to recognise that local authorities' own functions in those areas, so far as they exist and are material, are only part of the wider range of considerations they have to take into account.

My noble friends have also drawn attention to the existence of the general environmental duty in Section 11 of the Countryside Act 1968 which, as they rightly say, is not directed at individual developers but rather at every Minister, government department and public body. They wonder why the Government are opposed to the insertion of a similar duty in this Bill.

Section 11 of the Countryside Act 1968 imposes a specific duty on local planning authorities and the Secretary of State to, have regard to the desirability of conserving the natural beauty and amenity of the countryside". I cannot see what useful purpose would be served by repeating that duty in the present Bill. Furthermore, sites, buildings and objects of architectural, historic or archaeological interest", which are also mentioned in my noble friends' amendment, are already protected by the provisions of the Planning (Listed Buildings and Conservation Areas) Act 1990 and the Ancient Monuments and Archaeological Areas Act 1979. It is therefore clear that in terms of the environmental issues covered, my noble friends' amendment would largely duplicate existing specific legislative duties.

However, repetition of existing legislation is not the only objection the Government have to my noble friends' amendment. The amendment goes much further than the duty expressed in the Countryside Act. It would, in effect, impose a requirement on local planning authorities and the Secretary of State to demonstrate, in every case in which they proposed to grant planning permission, that the development concerned would positively, further the conservation and enhancement of the range of environmental concerns mentioned in the amendment. This would invest environmental considerations with an importance above all others. That would be undesirable and inappropriate, considering the range of matters which local planning authorities and the Secretary of State are required to take into account when reaching a decision on a planning application.

I note what my noble friend Lord Renton said as regards considering the concept of "further" enhancing environmental considerations. Clearly that message will be passed on to my honourable friends in another place. The amendment would provide an opportunity for anyone aggrieved by a planning decision, taken after careful consideration of all the material considerations, to challenge that decision on the grounds that the development concerned did not positively conserve or enhance the environment. This could seriously delay acceptable development or potentially preclude it from proceeding at all. I am sure your Lordships agree that such a prospect is unacceptable.

I understand and sympathise with the motives which led my noble friends to put down their amendments. The Government's commitment to the protection of the natural environment and our heritage cannot be doubted, and I would be concerned if anyone thought that in rejecting this amendment we were in some sense undermining the importance of environmental issues in the planning system. That is far from the case. However, as I have said, this amendment largely repeats existing specific statutory duties and would weaken the general statutory duty on local planning authorities under Section 70(2) of the 1990 Act to take all material considerations into account when reaching decisions on applications. What is worse—for the reasons I have outlined—it could prove counter-productive.

I wish to refer now to the one point that seriously divides us on this issue. By elevating environmental concerns above all others in every single planning proposal, conservation could get a bad name. One only has to think of a small, much needed housing development in a beautiful rural setting. In environmental terms only, that development would be considered to be disadvantageous. It would certainly not be considered as further enhancing environmental considerations. Nevertheless, when everything is taken into account, approval of such a planning application could be very important to the area concerned. We must consider that kind of sensitive balance. In the light of that and other considerations that I have outlined, I hope my noble friends will not press this amendment.

Lord Norrie

My Lords, I am grateful to my noble friend for her response and to my noble friend Lord Renton for his words of wisdom. It would do us great credit to respond to the great wave of public concern about the environment by amending the Bill. I believe there is still a positive way forward. The Government must be seen to be sympathetic to the concerns behind the amendment. My noble friend Lord Renton has suggested a new form of wording which I hope my noble friend will consider carefully.

A new amendment requiring local authorities to have regard to conservation issues would have great merit. Such a provision would encourage better practice among local authorities and act as a clear statement on the face of the Bill. It would emphasise that the Government are willing to respond to public concern. With that suggestion in mind, I leave my noble friend to consider the matter further with a view to proposing a suitable amendment in another place. On that basis I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 12 [Planning obligations]:

Lord McIntosh of Haringey moved Amendment No. 7: Page 18, line 41, leave out ("or otherwise") and insert ("with the authority or as specified in subsection (1B)").

The noble Lord said: My Lords, we are surprised that we have not made more progress in the matter with which this amendment is concerned. We are also surprised that the Government have been so adamant in resisting our arguments put forward in Committee and on Report about unilateral undertakings—that is, one-sided agreements for planning gain—being allowed for the first time in British legislation. We consider this small part of the Bill to be contrary to the thrust of the Bill as a whole. We make no apology for coming back a third time at Third Reading because, as it stands, the proposal is a blot on the face of a Bill of which we are largely in favour.

The provision that developers may enter into unilateral undertakings rather than into planning agreements with local authorities has a number of serious defects. First, it would reduce the negotiating strength of the local authority in dealing with developers. The noble Lord, Lord Wade of Chorlton, among others, has rightly emphasised the need for effective development and the fact that the planning laws must permit and encourage good development in our towns and in our countryside.

It is not that development is a bad thing in itself. But it is very rare for development to be an unalloyed good. It rarely happens that even the most necessary development for industrial, commercial or residential purposes does not bring with it implications—often of traffic congestion, sometimes of noise, sometimes of the need for infrastructure —which are damaging, which will have to be overcome and which involve expense, normally to the local authority, which is also the local planning authority.

However, it is worse than that. In a significant number of cases unilateral undertakings made without the agreement of the local planning authority could very well be unwanted undertakings. The classic example would be where the developer of a shopping precinct offers to provide a car park while the local authority, eager to discourage excessive use of cars, would prefer to have a subway to a bus station or some other means of good access to the shopping centre. The issue here is the same as that we discussed yesterday afternoon. Who knows best? Is it the officials in Marsham Street or is it the planning authority on the ground which has been elected by local people and is responsible to them?

In replying to debates on this subject at both Committee and Report stages the Minister suggested that the problem which made it necessary for the Government to propose unilateral undertakings rather than planning agreements was the log-jam which occurred in the planning process. I do not advocate unnecessary delays in the planning process. However, all the evidence that has been adduced about delays in the planning process indicates that the initial delay in consideration of the planning application is not the most serious delay. In practice the delays involved in the appeal procedure are very much longer than the delays involved in the original planning application. No one is defending delays, but those who attack local authorities for causing delay ought to look at their own procedures and where the delays actually occur.

The line we are taking with this amendment is deliberately conciliatory because this is Third Reading. We say that if we cannot abolish unilateral undertakings there should at least be some distinction between unilateral undertakings and planning agreements and that there should be unilateral undertakings only, where a local planning authority has been unwilling to enter into an obligation by agreement and an appeal has been made to the Secretary of State". I consider that a notable concession. It still allows unilateral undertakings, which I would prefer not to allow. However, it limits the incidence of unilateral undertakings to those occasions when the local planning authority is behaving badly and refusing to negotiate.

I hope that that meets the arguments put forward by the Government at previous stages and that the House approves the amendment. I beg to move.

4.45 p.m.

Lord Ross of Newport

My Lords, my objections have largely been met. As I understand it the amendment would cover the situation in which a developer who feels that he has a reasonable case cannot obtain the approval of the local authority for one reason or another, goes to appeal and, before the appeal is heard, unilaterally offers some planning gain which is discussed at the appeal. In that case the public is aware of what is offered. If that is correct the objections that I expressed previously have been met. One wants the public to learn about such proposals if that is possible.

At Report stage I went into the matter at some length and quoted a number of examples in which I thought the local authority had been bloody-minded. I considered that the Government were right to introduce the idea of unilateral undertakings. However, if the amendment makes developers come forward before the appeal so that everyone will know what has been offered that covers the situation.

Lord Coleraine

My Lords, I warmly support the thinking behind the amendment of the noble Lord, Lord McIntosh. As he said, it is conciliatory, unlike earlier amendments which would have wrecked the clause. In Committee, in connection with the Motion that the clause stand part of the Bill, I spoke about the words "or otherwise" in the drafting of the Bill. With this amendment they would come out.

At Report the noble Baroness, Lady Hollis of Heigham, speaking to her amendment, said: 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, 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".— [Official Report, 19/2/91; col. 496.] I have always understood that that was what the Government intended, and I have said so during the passage of the Bill. As I understand it, it is no part of the Government's intention that a developer should ride roughshod over a planning authority with which he may think that he will agree and go straight to the Secretary of State with a unilateral undertaking.

The problem has been in the drafting of the clause. Once one thinks one knows what the Government intend one can see exactly what the clause means. However, that is only one of the many possible meanings of the clause. I hope that my noble friend the Minister will accept that the amendment is a desirable clarification of the Bill and should be accepted.

Baroness Blatch

My Lords, as I explained on previous occasions, the Government expect the prime use of such undertakings to be at appeal in situations where there is a planning objection to a development proposal which can only be resolved by a planning obligation under Section 106 and where the parties are not able to reach agreement about how to resolve the objections. By now, that is well-trodden ground.

I welcome the fact that in the amendments the noble Lord is not pressing an objection in principle to unilateral undertakings. I hope that that indicates that our difference of view is now less pronounced. However, it is still our view that the amendments are unnecessary and undesirable.

The amendments are unnecessary because the main use of undertakings as an alternative means of entering into a planning obligation will be at appeal stage anyway. The amendments are undesirable because we believe that they would create inflexibility. They would prevent an obligation entered into by undertaking being made until after the developer had lodged an appeal. It is our understanding of the amendment that the developer would not be able to signal his intentions in that formal way until a late stage. By contrast, under Clause 12 as it stands, a developer could make an undertaking at any stage. Such an undertaking might, by clarifying what the developer was prepared to offer, facilitate agreement between the parties. Alternatively, the local planning authority might be prepared to grant permission on the basis that the undertaking had removed the outstanding objections to the development proposal. There can be nothing objectionable about that.

The noble Lord, Lord McIntosh, suggested that perhaps elected planning authorities know best. What I can say is that the principle of unilateral undertaking has been subjected to public consultation, and overall this measure found considerable support, especially from development interests. It certainly was not at the whim of Marsham Street; it was at the end of a fairly extensive consultation process. I hope that this amendment will not be pressed.

Lord McIntosh of Haringey

My Lords, it is hardly surprising that when the matter went out to consultation development interests were in favour of the clause that the Government have introduced. As I made clear when I introduced the amendment, what this does it to shift the whole balance of power as between the developers and the local planning authorities. If the Minister is saying that the main use of a unilateral undertaking will be at appeal stage, what conceivable reason is there for the Government not to agree that it should be restricted to the appeal stage?

I can confirm formally that the noble Lord, Lord Ross, is right in his interpretation of my amendment; it restricts the procedure to appeal stage. It does—to use the Minister's words—prevent a developer from using the formal unilateral undertaking procedure at an early stage of a planning application. It does not, of course, prevent a developer from saying, "If we are forced to go to appeal, this is the kind of unilateral undertaking which we shall put forward", but it means that the matter has to be pursued to appeal before the unilateral undertaking procedure is adopted.

This is not a matter on which we sought the opinion of the House before, and it is a matter on which it is necessary that we do so now, because we have done everything in our power to point out to the Government the dangers of this uncharacteristic—in terms of this Bill—series of provisions.

I am bound to say that, if the House does not agree with us on this matter, my friends in another place will not feel obliged to follow the conciliatory tone that I have taken. They may well feel it necessary to go back to the root and branch opposition to unilateral undertakings which we have proposed. The House has an opportunity now to give effect to the intentions expressed by the Government, without wrecking the major provisions and without damaging the thrust of the Bill. I invite noble Lords to do so by supporting the amendment.

4.53 p m.

On Question, Whether the said amendment (No. 7) shall be agreed to?

Their Lordships divided: Contents, 76; Not-Contents, 109.

Division No. 1
CONTENTS
Addington, L.	Kissin, L.
Airedale, L.	Leatherland, L.
Ardwick, L.	Listowel, E.
Attlee, L.	Lockwood, B.
Aylestone, L.	Longford, E.
Barnett, L.	Lovell-Davis, L.
Blackstone, B.	Lytton, E.
Blease, L.	Macaulay of Bragar, L.
Bottomley, L.	McGregor of Durris, L.
Brightman, L.	McIntosh of Haringey, L.
Broadbridge, L.	McNair, L.
Bruce of Donington, L.	Mayhew, L.
Carmichael of Kelvingrove, L.	Molloy, L.
Carter, L.	Monson, L.
Cledwyn of Penrhos, L.	Moran, L.
Clinton-Davis, L.	Mulley, L.
Cocks of Hartcliffe, L.	Murray of Epping Forest, L.
Craigavon, V.	Nicol, B.
David, B.	Peston, L.
Dean of Beswick, L.	Phillips, B.
Donaldson of Kingsbridge, L.	Rea, L.
Dormand of Easington, L.	Ritchie of Dundee, L.
Erroll, E.	Rochester, L.
Falkland, V.	Ross of Newport, L.
Gainsborough, E.	Russell, E.
Gallacher, L. [Teller.]	Seear, B.
Gladwyn, L.	Serota, B.
Glenarmara, L.	Shaughnessy, L.
Graham of Edmonton, L. [Teller.]	Stoddart of Swindon, L.
	Strabolgi, L.
Gregson, L.	Tordoff, L.
Hanworth, V.	Underhill, L.
Hirshfield, L.	Wallace of Coslany, L.
Hylton-Foster, B.	Walpole, L.
Jay, L.	White, B.
Jeger, B.	Williams of Elvel, L.
Jenkins of Putney, L.	Winchilsea and Nottingham, E
Kagan, L.	Winterbottom, L.
Kennet, L.
NOT-CONTENTS
Acton, L.	Cawley.L.
Alexander of Tunis, E.	Clanwilliam, E.
Allenby of Megiddo, V.	Cockfield, L.
Astor, V.	Cottesloe, L.
Auckland, L.	Cox, B.
Bauer, L.	Davidson, V. [Teller.]
Belhaven and Stenton, L.	Denham, L. [Teller.]
Beloff, L.	Downshire, M.
Bessborough, E.	Eccles of Moulton, B.
Blatch, B	Elles, B.
Blyth, L.	Elliot of Harwood, B.
Boyd-Carpenter, L.	Elton, L.
Brigstocke, B.	Erroll of Hale, L.
Brougham and Vaux, L.	Flather, B.
Butterworth, L.	Fraser of Carmyllie, L.
Campbell of Alloway, L.	Fraser of Kilmorack, L.
Campbell of Croy, L.	Gainford, L.
Carnegy of Lour, B.	Gardner of Parkes, B.
Carnock, L.	Geddes, L.
Cavendish of Furness, L.	Gisborough, L.

Glenarthur, L.	Pearson of Rannoch, L.
Grafton, D.	Peel, E.
Gray, L.	Pender, L.
Harvington, L.	Pennock, L.
Henley, L.	Polwarth, L.
Hesketh, L.	Prior, L.
Holderness, L.	Quinton, L.
Hood, V.	Reay, L.
Jeffreys, L.	Remnant, L.
Killearn, L.	Renton, L.
Knollys, V.	Renwick, L.
Lauderdale, E.	Rippon of Hexham, L.
Lloyd of Hampstead, L.	Rochdale, V.
Long, V.	Rodney, L.
Lothian, M.	Romney, E.
Lucas of Chilworth, L.	Skelmersdale, L.
Lurgan, L.	Soulsby of Swaffham Prior, L
Lyell, L.	Stanley of Alderley, L.
Macleod of Borve, B.	Strange, B.
Mancroft, L.	Strathcarron, L.
Merrivale, L.	Strathclyde, L.
Mersey, V.	Strathmore and Kinghorne, E
Milverton, L.	Sudeley, L.
Monk Bretton, L.	Swansea, L.
Mottistone, L.	Teviot, L.
Mountevans, L.	Thomas of Gwydir, L.
Mowbray and Stourton, L.	Trefgarne, L.
Moyne, L.	Trumpington, B.
Munster, E.	Ullswater, V.
Murton of Lindisfarne, L.	Waddington, L.
Nelson, E.	Wade of Chorlton, L.
Norfolk, D.	Westbury, L.
Norrie, L.	Whitelaw, V.
Oppenheim-Barnes, B.	Wise, L.
Orkney, E.

Resolved in the negative, and amendment disagreed to accordingly.

5.1 p.m.

[Amendment No. 8 not moved.]

Lord Norrie moved Amendment No. 9: Page 23, line 15, 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 summary of any application for planning permission and a notice stating where and when they make representations.").

The noble Lord said: My Lords, this amendment would require local authorities to notify neighbours of planning applications that might affect them. We discussed similar amendments at the Committee and Report stages, and on each occasion the Government gave an unsatisfactory response. As I indicated at Report stage, a duty to inform neighbours already exists in Scotland, with workable definitions of the terms "neighbouring land" and "notifiable interest". The Government have still to explain to the House why it is that only the Scots get such benefits. As my noble friend Lord Glenarthur said on Report, it puts the Scots at a huge advantage. The idea that the difference can all be put down to population density has already been dismissed.

I accept that in Scotland notification is the developer's responsibility and not that of local authorities. I also agree with the Government that the Scottish system has the benefit of relieving local authorities from some of the time and expense of notification. But this must be balanced against the greater reliability of local authorities to ensure that notification is carried out efficiently. However, if my noble friend is able to assure me in his reply that the Government will bring forward proposals to implement the Scottish system in England and Wales, then I shall gladly withdraw my amendment. The principle of the need for notification would at least have been established, and the key issue is that the public should be told about planning applications; which body informs them is irrelevant.

I was hoping to improve things in England and Wales so that we might be the envy of the Scots. But I shall be happy if we simply draw level with them. The Government have also queried my assertion that problems with neighbourhood notification are the single largest source of complaint about the planning system. The comparison made at Report stage between the tens of thousands of planning applications submitted to local authorities and the relatively small number causing complaints is totally false. We would be in a sorry state if we used only that statistic to prove there was a problem.

The issue is the problem behind the applications that cause complaints. The local ombudsmen's annual report shows that almost 30 per cent. of all complaints are on the issue of neighbourhood notification, and they support the principle of my amendment. Complaints to the ombudsmen, who are at the sharp end of the problem, are the touchstone of public concern, and I hope that the House will attach great weight to their views.

This amendment would ensure a minimum standard of public consultation. The Government have indicated that they will consider stronger guidance. Of course I welcome that, and I am sure that they will not be able to forget it, but I fear that the 25 per cent. of authorities which do not already undertake notification are unlikely to be swayed by extra guidance. I fear that even my amendment would not be enough, but it would be a starting point. Without it this Bill would pay very little attention to the importance of public participation in decisions over future development. I beg to move.

Lord Renton

My Lords, I wish to support my noble friend Lord Norrie on this amendment. We heard some reasonably encouraging sounds from my noble friend Lord Astor at Report stage. I hope we shall have something even more encouraging now. Surely what 70 per cent. of local authorities already do could easily be done by all local authorities. If a planning application is made affecting neighbouring land, or even a neighbouring building, and the neighbouring land or the neighbouring building may be most adversely affected by the application if it goes through, the idea that the owner or occupier of that neighbouring land or building is not to be told in some way or another that the application has been made seems unjust to a high degree.

I would say, supporting my noble friend, that guidance is not enough. It should be a right to the person concerned to be told. I quite agree that there is a slight difference in Scottish legislation in that it is the developer who under the law has to give the notice; but it does not matter very much, to my mind, so long as a notice is given by somebody, either the developer or the local authority.

At Report stage my noble friend on the Front Bench said that the amendment would impose a considerable additional statutory burden on local planning authorities. That surely is not right. It cannot be right if 70 per cent. of local authorities are already willing to do it and take it in their stride. It seems to me that, as a matter of justice, on all the merits and administratively, this is an amendment that the Government not only would be safe to accept but ought to accept.

Viscount Astor

My Lords, the Government remain unconvinced that this Bill should require local planning authorities in England and Wales to notify third parties of every planning application. Our resistance to my noble friend's amendment is not based on a belief that there are insuperable difficulties in defining "interested parties" or "neighbouring land". After all, this is dealt with in the legislation which applies to Scotland.

There have been frequent references to the different approach to the subject of neighbour notification in England and in Scotland. Indeed, English planning law has been compared unfavourably in this respect with that which applies north of the Border. But planning authorities in England are statutorily required to notify parish councils of particular categories of planning applications, or indeed all such applications, depending on the wishes of the parish council. Similar arrangements apply in relation to community councils in Wales.

This legislation recognises the important role which parish councils can play in disseminating information locally and in conveying the views of local people to the planning authority. In many areas the introduction of compulsory neighbour notification would amount to an unnecessary duplication of an existing, effective, means of canvassing local opinion. I reiterate the Government's belief that it is appropriate to retain a discretionary approach to neighbour notification in England and Wales.

The Government accept that development control should be a fair and open process and that views expressed by third parties which are relevant to that process should be taken into account by the decision makers. We also accept that, to be in a position to express such views, third parties need to be made aware of the proposed development. However, there are a number of ways in which this can be achieved.

Clause 13 proposes that a development order may make provision requiring notice to be given of any application for planning permission and provide for publicising such applications and for the form, content and service of such notices. The clause also specifies in that context that a development order may make different provision for different cases or different classes of development. Those provisions were drafted to allow maximum flexibility in both the form and extent of publicity for planning applications and to leave open the question of who should undertake such publicity.

There are a number of options, such as a more widespread use of site notices, which are worthy of further consideration. I assured your Lordships during, the debate at Report stage that the Government were prepared to consider issuing further guidance.

Local authorities must have regard to guidance. However, I am happy to say that we shall fulfil that undertaking on guidance. In the light of what I have said, I hope that my noble friends will agree to withdraw their amendment.

Lord Norrie

My Lords, I thank my noble friend for his response. But the House will not be surprised to know that I am still disappointed by it. One of the most glaring omissions in the Bill is measures to improve public participation. My amendment simply brings England and Wales in line with the Scottish practice, which has proved effective. The new guidance promised by the Government will have to be very strong. The unanimous support that the amendment received from all sides of the House at Report stage indicates the anxiety. I hope that my noble friend will now give serious consideration to the strength of guidance. On that basis I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 13 [Notice etc. of applications for planning permission]:

Lord Stanley of Alderley moved Amendment No. 10: Page 23, line 15, at end insert: ("(1A) Notice under subsection (1) of this section stall 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—

1. (a) the owner of; or
2. (b) the tenant of any agricultural holding any part of which was comprised in,

the land to which the application relates.

(1B) Where a notice of an application for planning permission has been given under subsection (1A) above, the local planning authority—

1. (a) in determining the application, shall take into account any representations relating to it which are made to them before the end of such period as may be prescribed, by any person who satisfies them that he is an owner of any land to which the application relates or that he is the tenant of an agricultural holding any part of which is comprised in that land; and
2. (b) shall give notice of their decision to every person who has made representations which they were required to take into account in accordance with paragraph (a).").

The noble Lord said: My Lords, I moved a similar amendment in Committee and on Report, and I received an undertaking from my noble friend Lord Astor that the Government were prepared to consider the matter. I suspect that I shall receive a somewhat similar reply from him as I received from my noble and learned friend on Amendment No. 4, which went roughly like this: "We agree that you have a point which we accept in principle. Unfortunately we have not decided how to achieve it. We are not prepared to accept your amendment because you don't understand our problems". If that is the reply that I shall receive, I ask my noble friend to give me this undertaking: that when the Government decide to table an amendment in another place to sort the problem out he will keep me fully informed in order to save the time of the Government and my advisers. I beg to move.

5.15 p.m.

Lord Renton

My Lords, I support my noble friend. I hope that he will receive the undertaking that he seeks. The amendment overlaps the previous amendment moved by my noble friend Lord Norrie. In replying to him my noble friend Lord Astor stated that notice is given to parish councils. Quite frankly, I do not believe that that is effective. I live in a large rural parish in East Anglia. I do not know the exact area; but it cannot be less than eight square miles and may well be more. The parish council is a small body which does not meet often. It has almost no administrative backing. If the parish council is notified of an application, there is no certainty that the owner or occupier—the tenant—of a small outlying farm will hear of the planning application. The idea that we can rely on the parish councils to ensure that justice is done and that there is public notification is not good enough. The department always does its best but it is often out of touch with reality.

On the question raised by my noble friend Lord Stanley of Alderley, and the somewhat similar point raised by my noble friend Lord Norrie, the Government must do better in another place.

Lord Monk Bretton

My Lords, I supported my noble friend Lord Stanley on this point on Report. I also wonder what undertakings the Minister will give. Notification is of great importance. I too do not believe that the news will be disseminated through parish councils. It will not necessarily filter through from them to a number of tenant farmers. I hope that something positive will result. If not, my noble friend may be justified in sticking to his guns.

The Earl of Erroll

My Lords, perhaps I may briefly state this. My wife is a parish councillor. I was revolted by the reply to the last amendment. I believe that the amendment should have been agreed to. No extra weight has to be given to the opinion of the parish council by the planning authorities. The parish council has no extra authority. From what the Minister said one may imagine that a parish council is enormous. However, it may consist of only a couple of people. How are they supposed to know to whom to disseminate the information? They will not. The proposition is ridiculous.

Baroness White

My Lords, will the Minister explain what occurs when a parish council votes itself out of existence?

Viscount Astor

My Lords, some of the comments on the amendment may refer to the previous amendment. I hope that I shall give a rather different answer from the one given on the last amendment, and indeed a slightly different answer from that given by the noble and learned Lord the Lord Advocate on an earlier amendment.

The amendments tabled by my noble friend Lord Stanley cover familiar territory. My noble friend has again argued that notifying owners and agricultural tenants of planning applications is too important to be left to secondary legislation.

I indicated on Report stage that the Government were prepared to consider my noble friend's arguments. I am pleased to say that we find it hard to oppose the principle of including in Clause 13 a provision to meet his objective. The provision will be similar to that proposed by my noble and learned friend the Lord Advocate for Scottish legislation, which is set out in Clause 36. We are at present considering the drafting of such a provision for the legislation covering England and Wales and the extent to which consequential amendments to that legislation will be required. We shall keep my noble friend Lord Stanley of Alderley informed of what we are doing.

However, I must advise my noble friend that the Government are less happy about that part of Amendment No. 10 which would require the planning authority in determining a planning application to have specific regard to representations made by owners and agricultural tenants and to give notice of its decision to the authors of such representations. Such a requirement would need to be augmented by the revised provisions of Section 71(1) and (2) of the 1990 Act proposed by Clause 13. The result would be to reintroduce unnecessary clutter into the principal Act.

The revised Section 71 will provide for a development order to specify which representations the planning authority must take into account in determining a planning application and which parties need to be notified of the decision. The Government envisage that such requirements will continue to apply to categories of representation other than those submitted by owners and agricultural tenants, such as those submitted in response to proposed "bad neighbour" development. Nevertheless, I assure my noble friend that we intend to ensure that representations made by owners and agricultural tenants will be covered by this arrangement too. It is also relevant to mention that Section 70 of the 1990 Act requires planning authorities, in dealing with applications for planning permission, to have regard to the provisions of the development plan and to any other material considerations.

It is beyond doubt that representations made by third parties which address planning issues qualify as material considerations. Therefore, my noble friend may agree that the primary legislation will continue to safeguard the interests of owners and agricultural tenants who have made representations to the planning authority when planning applications are being decided.

I hope that in view of my undertaking that the Government will concede the principal objective my noble friend will agree to withdraw the amendment.

Lord Ross of Newport

My Lords, is it still the duty of the planning authority to advertise in the local press all applications that are received?

Viscount Astor

My Lords, the guidance notes state that it is for the local authority to choose the method of publicising the applications. It may be by advertising or by putting up a poster or a notice. I said in relation to an earlier amendment that the Government would issue guidance notes to local authorities but it is for the local authority to decide how to make the applications known to the general public.

Lord Stanley of Alderley

My Lords, my noble friend appears to be behaving like an old-fashioned nanny who says, "You can have a cake but you can't have any chocolate on it". However, I am grateful for his assurance. I shall study carefully the letter that I receive from the Government setting out their intentions in another place. I shall hand that to my advisers who will no doubt follow the matter through. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 11 not moved.]

Clause 14 [Power of local planning authority to decline to determine applications]:

Lord McIntosh of Haringey moved Amendment No. 12: Page 24, line 30, 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 Lord said: My Lords, we return to matters that were debated in Committee and on Report. We tabled a different amendment in Committee but it was this one that was before the House on Report. However, the Government then decided to reply to the amendment that had been tabled in Committee.

There was a risk that the amendment tabled in Committee might have checked a planning appeal while the original application was under consideration by the local planning authority. The amendment provided that the applications could not run in parallel. The Minister reasonably pointed out that that was unfair. She said that it was more important to turn the applications round in eight weeks, which is the statutory period, in order to make an appeal on grounds of non-determination irrelevant.

At the Report stage we tabled this amendment which tackles the question in another way. It provides that if the developer has lodged an appeal on the grounds of determination the local authority is freed from the obligation of continuing to determine the twin tracking application; that is, the alternative application still before the planning authority. The result will be a number of effects which are different from our original approach. First, the amendment does not encourage the local authority to slow down because there is no advantage in slowing down in order that the application can go to appeal. Although it does not eliminate the amount of twin tracking it does reduce it. We have had many debates about whether twin tracking is generally undesirable, as we would argue, or merely undesirable in some circumstances, as the Government would argue.

The amendment now before the House protects the developer's right of appeal. It also puts pressure on the Department of the Environment—that is the inspectorate—which is where the delays occur. Local planning authorities are bad enough but, for reasons which I well understand, the inspectorate is much slower. It often takes 30 weeks or more to handle an appeal.

When the Minister replied to the amendment on Report she talked about Clause 15 which relates to appellants who delay. That does not deal with the point at all. The problem is that in many ways they do not delay. I do not know why that response continues to be given. It is not true that our amendment encourages local authorities to delay; nor does it infringe developers' rights. It is irrelevant that local authorities should turn applications round in eight weeks. Of course they should but they are prevented from doing so, no doubt in part by incompetence but also by the pressure of work. Twin tracking increases the pressure of work.

We are moving the amendment for the second time so that we have at least an argument in respect of it and not in respect of an amendment tabled at an earlier stage. It is difficult to understand why developers should wish to continue with the initial application if an appeal is under way. That is particularly true, as the House has determined this afternoon, if the developer has the alternative of opting for a unilateral undertaking. I beg to move.

Baroness Blatch

My Lords, I have considered carefully what the noble Baroness, Lady Hollis, said on this amendment at the Report stage. Her speech showed that the Government and Opposition perceptions of the issues at stake are not far apart. I believe that both sides accept that twin tracking may involve inefficient use of resources by local planning authorities and the planning inspectorate. Equally, I was glad to hear from the noble Baroness and the noble Lord that they accept the importance of not imposing undesirable constraints on the individual's freedom to appeal.

At the Report stage I undertook to review the present 75 per cent. discount of the application fee which duplicate applications enjoy. The review will form part of our wider look at the application fees regulations and may go some way toward discourageing twin tracking.

In her speech the noble Baroness asked the Government to look again at the effect of her amendment. We have done so and we accept that it has gone some way towards meeting the concerns which we previously expressed. As I said during the debate at the Report stage, the Government would like to see the use of twin tracking diminish because it can be wasteful of resources. But we also recognise that twin tracking can be advantageous in that it may impose a discipline on local planning authorities. Moreover, although the noble Baroness and the noble Lord, Lord McIntosh, argued on Report that her amendment would not curtail developers' freedom it is undeniable that it would require applicants to choose between continuing to negotiate with the local planning authority and lodging an appeal.

We wish to look at this issue further and in particular to seek the views of interested parties such as the local authority associations, planners and developers. We would hope to announce the results of that consultation and, if appropriate, to bring forward amendments to the Bill in Committee in another place.

I hope that in the light of the acknowledgement of the persuasive case put by the noble Baroness and the noble Lord, the noble Lord will agree to withdraw the amendment.

Lord McIntosh of Haringey

My Lords, I can say only that that is a generous response which I can hardly resist. In introducing the amendment I should have said that we were grateful for the acknowledgment made on Report that the case against the discount for a second planning application was recognised and that attempts would be made to bring that into force. The undertaking to consult and to consider bringing forward appropriate amendments in the recognition that twin tracking ought to be reduced is most welcome. I am happy to beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

5.30 p.m.

Clause 19 [Trees]:

Viscount Astor moved Amendment No. 13: Page 29, line 41, after ("authority") insert ("and state the purpose of his entry").

On Question, amendment agreed to.

Baroness Blatch moved Amendment No. 14: After Clause 23, insert the following new clause:

Orders as to costs where inquiry or hearing does not take place

(" .—(1) After section 322 of the principal Act there is inserted—

"Orders as to costs: supplementary.

322A.—(1) This section applies where—

1. (a) for the purposes of any proceedings under this Act—
1. (i) the Secretary of State is required, before a decision is reached, to give any person an opportunity, or ask any person whether he wishes, to appear before and be heard by a person appointed by him; and
2. (ii) arrangements are made for a local inquiry or hearing to be held;
2. (b) the inquiry or hearing does not take place; and
3. (c) if it had taken place, the Secretary of State or a person appointed by him would have had power to make an order under section 250(5) of the Local Government Act 1972 requiring any party to pay any costs of any other party.

(2) Where this section applies the power to make such an order may be exercised, in relation to costs incurred for the purposes of the inquiry or hearing, as if it had taken place."

(2) In section 89(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990 and section 37(2) of the Planning (Hazardous Substances) Act 1990 (application of provisions of the principal Act) before "323" there is inserted "322A (orders as to costs: supplementary)".").

The noble Baroness said: My Lords, noble Lords will recall that in discussion of proposed amendments to Clause 24 in Committee and on Report, we accepted in principle what Amendment No. 207 tabled by the noble Lord, Lord McIntosh, on Report, sought to achieve. On the Government's behalf, I undertook to consider further the substance and drafting of the noble Lord's amendment, with the intention of tabling a suitable government amendment before the Bill leaves this House. This new clause fulfils that undertaking.

The clause gives the Secretary of State, or a planning inspector, a discretionary power to make an order awarding a party's costs against any other party in a wide range of planning proceedings where arrangements have been made for a local inquiry or hearing but, in the event, that inquiry or hearing does not take place because of the action of one of the appeal parties. A costs award could be made in favour of, or against, any of the parties to the inquiry.

These provisions would allow a costs award to be made, for example, where an appellant withdraws his appeal at the last moment before an inquiry is due to take place, thus causing it to be cancelled, when the local planning authority has already incurred substantial preparation costs.

In Committee when we were discussing Clause 14, on 29th January, the noble Baroness, Lady Hollis, drew attention to a planning appeal involving Bedfordshire County Council, which had cost the council an estimated £100,000 as a result of a late withdrawal. Other examples might include the local planning authority's decision to withdraw all its original reasons for refusing planning permission shortly before the inquiry is due to open, or it withdraws an enforcement notice, leaving no appeal issues to be determined at the inquiry.

This is a useful extension to the present provisions for awards of appeals costs which will allow either party, and other interested parties, to recover their wasted costs where an inquiry or hearing has to be cancelled because of the unreasonable actions of the other party. I should like to emphasise that costs will not follow the event in these cases. Awards will only be made where the party against whom an award is sought is found to have behaved unreasonably, as that term is defined in my department's Circular 2/87. We intend, in due course, to bring up to date, and re-issue, the guidance in that circular. The revised circular will then give policy guidance to appeal parties on how this new discretionary power will be exercised.

In this substantially revised form, I hope that the clause will be found acceptable on all sides of the House. It will enable costs to be awarded in some cases where considerable expenditure by an appeal party would otherwise not be recovered. I commend the clause to your Lordships. I beg to move.

Lord McIntosh of Haringey

My Lords, I am very grateful to the Minister for proposing this new clause and for the care which has been taken in a very short time to deal with the drafting aspects of my Amendment No. 207. As she says, it is right that wherever an appeal is withdrawn unreasonably then possibly small objectors and local planning authorities should be protected against the costs which they have unnecessarily incurred.

There is one matter which puzzles me about the amendment. Amendment No. 207 referred to a specific definition of a late withdrawal; namely, when the date had already been fixed for a public inquiry. This amendment states where … arrangements are made for a local inquiry or hearing to be held". I find that rather imprecise. There could be different interpretations as to what arrangements have been made. Does it mean the date, the location or the name of the inspector? There are a number of ways that one could look at that matter. Why is it not possible to say, "when the date is fixed", or perhaps, "when the date has been notified to parties"?

On Question, amendment agreed to.

Baroness Blatch moved Amendment No. 15: After Clause 23, insert the following new clause:

Functions of Historic Buildings and Monuments Commission

(" .—(1) In section 33 of the National Heritage Act 1983 (general functions of Commission) after subsection (2) there is inserted—

"(2A) In relation to England, the Commission may—

1. (a) prosecute any offence under Part I of the Ancient Monuments and Archaeological Areas Act 1979 or under the Planning (Listed Buildings and Conservation Areas) Act 1990, or
2. (b) institute in their own name proceedings for an injunction to restrain any contravention of any provision of that Part or of that Act of 1990."

(2) In section 89 of the Planning (Listed Buildings and Conservation Areas) Act 1990 (application of general provisions of principal Act, including power under section 330 to require information) after subsection (2) there is inserted—

"(3) In the application of section 330 by virtue of this section, references to a local authority include the Commission".").

The noble Baroness said: My Lords, Amendment No. 15 is in two parts. The first part introduces a new subsection (2A) into Section 33 of the National Heritage Act 1983, which sets out the functions of English Heritage, to provide English Heritage with a power, first, to prosecute any offence under Part I of the Ancient Monuments and Archaeological Areas Act 1979 or under the Planning (Listed Buildings and Conservation Areas) Act 1990".

Secondly it has the power to institute in its own name proceedings for an injunction to restrain any contravention of any provision of Part I of the 1979 Act or any provision of the 1990 Act.

The second part of the amendment amends Section 89 of the 1990 Act to make it clear that in the application of Section 330 of the principal Act (power to require information as to interests in land) the references to a local authority include English Heritage. This will put English Heritage in the same position to require information as if it were a local authority.

During our discussions with English Heritage on Amendment No. 15 I sought an assurance from my noble friend Lord Montagu of Beaulieu that, before deciding to exercise the powers to prosecute or to seek an injunction, English Heritage would discuss the case with both the local authority involved and with my department. My noble friend Lord Montagu is unable to be in the House today for this debate but I am glad to be able to tell the House that I have received the assurance I sought from him in a recent letter. I am most grateful for this assurance and for the help which my noble friend has given with this amendment.

Amendment No. 29 is a consequential amendment to Amendment No. 15. It inserts a new subsection (3A) into the new Section 44A on injunctions to clarify that, for the purposes of this new section, English Heritage is treated as a local planning authority.

Amendment No. 32 is consequential to Amendment No. 29. Paragraph (21) of Schedule 2 inserted a reference to Section 44A into Section 45 of the 1990 Act, which deals with the powers of English Heritage in Greater London, thus giving it the power to seek injunctions in respect of London properties. With the inclusion of subsection (3A) in Section 44A, English Heritage will have a general power to seek injunctions and paragraph (21) is therefore no longer necessary. I beg to move.

On Question, amendment agreed to.

Clause 26 [Planning contravention notices]:

Lord Fraser of Carmyllie moved Amendment No. 16: Page 33, line 8, leave out ("fourteen") and insert ("twenty-one").

On Question, amendment agreed to.

Clause 35 [Rights of entry]:

Lord Fraser of Carmyllie moved Amendment No. 17: Page 46, line 19, leave out from ("(1)") to the end of line 20 and insert ("If the sheriff is satisfied").

The noble and learned Lord said: My Lords, in moving this amendment I shall speak also to Amendments Nos. 18, 21, 22, 50, 51, 53 and 54. These amendments amend the rights of entry provisions in connection with general enforcement, tree preservation, listed building control and hazardous substance control for Scotland so that warrants to enter land for enforcement purposes will be obtainable from sheriffs.

Noble Lords may remember that this amendment was first suggested by the noble Lord, Lord Carmichael. This tidies up the provisions. I beg to move.

Lord McIntosh of Haringey

My Lords, on behalf of my noble friend Lord Carmichael I am very grateful. I think of sheriffs as being out in the wild west, but clearly my knowledge of Scottish law is not adequate to the purpose!

On Question, amendment agreed to.

Lord Fraser of Carmyllie moved Amendment No. 18 Page 46, line 28, leave out ("the justice") and insert ("he").

On Question, amendment agreed to.

Lord Fraser of Carmyllie moved Amendment No. 19: Page 46, line 45, after ("authority") insert ("and state the purpose of his entry").

On Question, amendment agreed to.

Clause 36 [Notice etc. of applications to owners and agricultural tenants]:

Lord Fraser of Carmyllie moved Amendment No. 20: Page 48, line 27, leave out ("level 3") and insert ("level 5").

The noble and learned Lord said: My Lords, this is an amendment to Clause 36 for Scotland and parallels Amendment No. 77 to Clause 13 for England and Wales which was accepted at Report stage. It will raise the level of the maximum fine for the offence of knowingly giving false information in connection with the notification of applications for planning permission. It will thus align it with other similar penalties in the planning legislation. I beg to move.

On Question, amendment agreed to.

Clause 40 [Trees]:

Lord Fraser of Carmyllie moved Amendments Nos. 21 to 23: Page 52, line 3, leave out from ("(1)") to the end of line 4 and insert ("If the sheriff is satisfied"). Page 52, line 12, leave out ("the justice") and insert ("he"). Page 52, line 33, after ("authority") insert ("and state the purpose of his entry").

On Question, amendments agreed to.

Clause 53 [Home loss payments]:

Lord McIntosh of Haringey moved Amendment No. 24: Page 60, line 28, leave out ("those conditions") and insert ("the conditions in paragraph ((a)").

The noble Lord said: My Lords, in moving Amendment No. 24 I shall speak also to Amendments Nos. 25, 26 and 28, and Amendment No. 27 in the name of the noble Lord, Lord Ross.

These amendments concern home loss payments, and two issues in particular. The first is the issue of contractual licensees and the second is the more general issue of the rights of tenants as opposed to owner-occupiers. In regard to all these amendments I am grateful to the noble Baroness, Lady Blatch, for replying to written Questions which I tabled and to which she was able to reply yesterday. Her Answers appear in today's Hansard.

The point of my Questions was, first, to determine what proportion of home loss payments under existing legislation goes to tenants and how much to owner-occupiers; secondly, to discover how much of the additional £50 million set aside for home loss payments under the Bill will go to tenants and how much to owner-occupiers. In a third Question I asked what would be the level of payments to tenants and owner-occupiers if, since the payments were first introduced, they had been index-linked in line with the retail prices index, earnings or house prices.

The Answers are quite extraordinary. They show that four-fifths of the present £47 million home loss payments go to tenants; therefore they receive approximately £37.6 million. A much higher proportion of what is proposed under the Bill goes to owner-occupiers due to the planned sliding scale. Perhaps I may stick with the figures for tenants because they are the most important: payments to tenants go up from £37.6 million to £53.6 million. That is achieved by the reduction in the qualifying period. However, if there had been no Bill and instead home loss payments to tenants had been uprated in line with the retail prices index, the payments would now be £56 million, which is more than proposed under the Bill. If the payments had been index linked in line with earnings they would now be £77.6 million, which is far more than proposed under the Bill. If they had been uprated in line with house prices, the payments to tenants would have amounted to £75.2 million, which is far more than they will receive under the Bill as drafted.

My point is that tenants are very hard done by under the Bill. Even under the proposals put forward as being more generous due to the reduction in the qualifying period, they will be doing worse in real terms than they would have done had there been no legislation but an index-linked uplifting of home loss payments. That cannot be justifiable. We cannot be told that home loss payments are to be more generous than before when we find that an amount more than that being given for the reduction in the qualifying period is being taken away due to the failure to index link the payments.

Perhaps I may turn to the amendments in detail. Amendments Nos. 24 and 25 seek to remove an anomaly whereby housing associations are not able to make discretionary home loss payments. Amendment No. 26, the most important amendment of the group, deals with contractual licensees; in other words, it preserves the entitlement for licensees with restricted contracts (as in paragraph (a)); it preserves entitlement for licensees who would have been secure before the 1988 Act (paragraph (b)); and in paragraph (c) it extends the home loss payments to those with basic security under the Protection from Eviction Act 1977. It still does not provide for those licensees who are sharing with the licensor and his family. Therefore it does not deal with those people the Minister claimed previously it dealt with; that is, those who are casual or short-term licensees.

The Minister appeared to be under a serious misapprehension in opposing earlier amendments. She ignored the fact that some contractual licensees are already entitled to home loss payments—those with restricted contracts, service occupiers in tied accommodation and those who are local authority and housing association licensees with secure tenancies. Under this legislation many tenants lose out. The Housing Act 1988 is deliberately phasing-out restricted contracts and shifting housing association tenancies from secure to assured tenancies.

At the moment licensees whose contracts were entered into after 1st January 1989 or whose rent has been varied over that period are no longer entitled to home loss payments although they would have been before. The argument that the time between January 1989 and today is short is fallacious. The legislation should continue in force, and over a period of time there would be more tenants who would have been entitled to home loss payments but who will no longer be so entitled. They will suffer not only in relation to owner-occupiers but absolutely.

Amendment No. 28 caused some controversy. It reflects the Minister's view—which is my view also —that attachment to a house justifying a home loss payment increases over time. We are seeking to include that in the legislation. Apart from the planning provisions, this is the single most serious injustice of the compensation part of the Bill. I sincerely hope that the Government will support the amendments. If they are not able to do so it is a matter that will cause great controversy when it goes to another place. I beg to move.

5.45 p.m.

Lord Ross of Newport

My Lords, this subject was debated at a very late hour at Report stage. The noble Lord, Lord Coleraine, tabled a number of amendments which I wanted to support. I was worried when we could not divide at that time and did not appear to make any progress. I therefore tabled from a fairly long distance—150 miles away—a stopper amendment suggesting that the amount should be £5,000. I meant to re-word the amendment slightly to say that the amount should not exceed £5,000. That was a fall-back position to persuade the Government to up the ante. As it is a faulty amendment I shall not speak to it. The noble Lord, Lord McIntosh, has made a staggering and overwhelming case for these pro-visions. He has gone to the trouble of tabling a number of Questions and received revealing replies.

I am concerned also that at a time when the Government are attempting to encourage more people to let and to look for tenancies, apparently under the new regulations some tenants who are now in occupation and may at some time in the future have their properties compulsorily acquired will not qualify for home loss payments. I was not aware of that, but that is what I understand to be correct. There will be a dwindling number anyway. That is wrong at a time when it is desperately important to widen housing tenancies in this country. Many people now, including some of my own children, with their limited finances, are quite unable to purchase and are paying very substantial sums of money to rent accommodation. My younger son is spending nearly 40 per cent. of his gross weekly income on a winter let. He is paying £65 a week for the tenancy of a cottage in a very windswept area of the Isle of Wight. His income varies between £130 and £150 gross a week. He is a fisherman.

I give that as an instance of the problems that the younger generation in particular are facing. It does not apply only to the younger generation because other people are being dispossessed. In the past 12 months 46,000 repossessions have taken place, and the number is rising. It is wrong that existing tenants should be penalised under this Bill where the maximum allowed is £1,500. I now understand that this provision is to be phased out anyway.

The Government should be going in the other direction and encouraging more and more tenancies. They should be assuring those who take up tenancies that they will not lose out if at some time in the future, and unbeknown to them, for example, a railway line is required in Kent. At the moment they will not get anything at all and I do not understand that. It is also important that we encourage tenants to improve their properties and put their own money into them. The sum of £1,500 is paltry when one considers what some tenants have done to their properties. If the Government cannot accept the amendment as it is now, I hope that at long last there will be some indication from them that they are prepared to think again and do something about the problem when the Bill goes to the other place.

Lord Coleraine

My Lords, I am speaking to Amendment No. 28 in the name of the noble Lord, Lord McIntosh. I would have spoken to the amendment tabled by the noble Lord, Lord Ross, but he has indicated that he does not wish to move it this afternoon. The amendments that I had before the House at Report stage are not tabled today. I was interested to hear the noble Lord, Lord Ross, say that he would have wished to support them. Having listened to the debate today and heard the figures which the noble Lord, Lord McIntosh, was able to quote as a result of the Answers to his Questions, I believe that there is still a strong case for giving a better deal to tenants in cash terms in their home loss payments.

However, I would not do it in the way suggested by the noble Lord, Lord McIntosh. I would return to the formula contained in my amendments at Report stage. I would treat all home occupiers alike and divide the payments into payments for distress and payments for incentive. Under that arrangement I would have a uniform payment for distress for owners and tenants alike. It might be the £5,000 mentioned in the amendment tabled by the noble Lord, Lord Ross. As regards incentive, I would add an incentive supplement based on a percentage of the surplus market value of the interest of the occupier over a basic level of market value, with perhaps an upper limit. That would be for all home occupiers.

The noble Lord, Lord McIntosh, proposes a sliding scale of home loss payment for tenants based on the length of time that they have occupied their homes. I have two objections to his proposal. I do not think it is appropriate to make the direct connection between the time the home has been occupied and the amount of the payment that should be made. That is too difficult. There are too many cases where it would not be appropriate.

Another point which the noble Lord has not fastened on is that his amendment is providing for a maximum of £15,000 as a home loss payment for a tenant who has been in the house for 10 years. That would be more than most home owners would get. It would be the amount which a person would receive in compensation based on a value of £150,000. Very few owner-occupiers would get more than that. A considerable number of owners of small terraced houses should receive the kind of sums that the noble Lord would give to tenants. I hope that he will not press his amendment because it has this unfortunate side effect.

Baroness Blatch

My Lords, Amendments Nos. 24, 25 and 26 relate essentially to the scope of the home loss payment scheme. Amendment No. 26 identifies three categories of people whom the noble Lord would wish to make eligible for home loss payment. The categories broadly encompass those living in accommodation on the basis of a licence or a letting by a landlord resident on the premises. Amendments Nos. 24 and 25 would extend the power of authorities to make a discretionary payment to include those occupying property without any legal interest in it.

It has been a basic feature of the home loss payment scheme since its inception that eligibility for payment is dependent on having some form of legal interest in the property or at least some measure of security of tenure. Those living in accommodation on an essentially casual or short-term basis are not and never have been eligible for a payment. The thinking that underlies this distinction is that home loss payments are designed to compensate for distress at the enforced loss of a home. It is reasonable to assume that such distress will be experienced most acutely among those who either own their own homes or who are at least occupying them under arrangements which have a degree of permanence.

As I understand it, the noble Lord is arguing that a legal interest in a property, or at least a statutory security of tenure, is not necessarily a reliable indicator of whether a person regards a property as a genuine home and will therefore experience distress at its loss. I do not lightly dismiss that point of view. I am not for a moment suggesting that people living in accommodation on the basis of a licence or similar arrangement will remain unconcerned about having to move.

At an earlier stage the noble Lord identified the deserted spouse with the right of occupation under the Matrimonial Homes Act as a case where a property could reasonably be regarded as a genuine home even though the occupant had no legal interest in it. On the face of it that seemed a fair point. As I undertook earlier, I am considering that further. But I see considerable difficulty in applying that argument more widely. It seems fair that as a general rule those occupying property on a casual or short-term basis will not suffer the distress which is likely to affect people with a more substantive interest in the home. The noble Lord suggests that a possible compromise would be to give authorities the power to make a discretionary payment in cases where they considered that an occupant would suffer genuine distress at the loss of his home even though he had no legal interest in it.

The Bill as it stands allows authorities to make discretionary payments to claimants who would be entitled to a home loss payment but for the fact that they cannot satisfy the one-year residence qualification. The requirement that they must have a legal interest in the property still applies, but I would find it very difficult to accept the case for removing the requirement even in the context of a discretionary payment.

Given the wide variety of circumstances likely to be involved, it would not be at all reasonable to place authorities in the invidious position of having to decide who deserved a payment and who did not. It may be of some comfort to noble Lords who are concerned about the possibility of hardship among people who are displaced from accommodation in which they have no legal interest if I remind them that Section 39 of the Land Compensation Act 1973 places local housing authorities under a duty to rehouse anyone displaced from his home under statutory powers if suitable accommodation on reasonable terms is not otherwise available. That provision is not restricted to cases where the occupant has a legal interest in the property. It should thus ensure that in no reasonable case will anyone displaced from accommodation be left without a roof over his head.

Finally, I turn to the amendment of the noble Lord, Lord Ross, Amendment No. 27, and the amendment of the noble Lord, Lord McIntosh, Amendment No. 28. Amendment No. 28 would provide for home loss payments for non owner-occupiers to be £1,500 multiplied by the number of complete years the claimant has occupied the property subject to a maximum payment of £15,000. Amendment No. 27 would provide for a home loss payment of £5,000 to be paid to all non-occupiers Both amendments seek to increase very substantially in most cases the amount of home loss payments for tenants.

I agree with the comments of my noble friend Lord Coleraine about these amendments. It is true, from the evidence that we have gathered so far, that the predominant number of claims are at the bottom end of the housing market; very often terraced houses on the sides of major road schemes. We know that we are dealing predominantly with low capital value homes. Therefore, a substantial number of people would be at quite some disadvantage compared with the maxim-um payment of £15,000.

The noble Lord, Lord McIntosh, referred to levels of payment and went into some detail in comparing the 1973 levels with today's levels. There is no precise science about the 1973 levels. No one was arguing that they were right at that time. I have said a number of times that there has to be a judgment about what we consider to be right now. We have taken the view that what is on the face of the Bill at this time is the right level for today. The noble Lord, Lord Ross of Newport, said that the Bill brings about a reduction of entitlement. I have to say that the Bill as drafted does not reduce any entitlement to home loss payments.

The noble Lord, Lord McIntosh of Haringey, asked why housing association licensees created after commencement of the 1988 Act should not be eligible for a home loss payment when payments are available to those housing association licensees who remain subject to Part IV of the Housing Act 1985. The Government took the view in bringing forward what is now the 1988 Act that there was no longer a case for applying any form of statutory protection to licences granted by housing associations. The noble Lord may take issue with this decision, but given that it has now been put into effect I hope he will agree that it would be illogical and inappropriate to bring these licensees within the scope of the home loss payment scheme.

I have explained at some length during earlier stages why our home loss payment proposals involve a different approach as between those who are owner-occupiers and those who are not. It seems to us that the enforced loss of a home will in general involve a considerably higher degree of trauma and upheaval in the case of the owner-occupier than in that of the tenant. The owner-occupier normally expects to be able to live in the property for as long as he or she wishes, whereas the tenant always has to bear in mind the possibility that the landlord may at some stage wish to recover possession. The owner-occupier not only invests a substantial amount of capital in the property, but remains fully responsible for repairing and maintaining it. The tenant, by contrast, does not normally have responsibility for repairs and maintenance of the fabric. The owner-occupier faces the difficult task of finding a suitable replacement home, whereas the tenant can usually expect to be rehoused by the local housing authority and often in better accommodation than he had before.

Perhaps I may say in passing that Amendment No. 28 would introduce the concept that tenants become more deserving the longer they have lived in a house. In a sense this is precisely the concept that the Bill moves away from by reducing the qualifying period of residence from five years to one year.

Our firm conviction is that the home loss payment provisions in the Bill represent a fair and reasonable balance between the interests of owner-occupiers and tenants. That balance would in our view be upset if we were to accept either of these proposals advanced by the noble Lords.

My noble friend Lord Coleraine has another formula which he has advanced at a number of stages during the passage of the Bill. I can only argue with him that the balance we have struck in the Bill is the one that we judge to be right at this time. Our firm conviction is that the home loss payment provisions in the Bill represent a fair and reasonable balance between the interests of owner-occupiers and tenants. That balance would in our view be upset if we were to accept either of the proposals advanced by the noble Lords.

I remind the House once more that tenants do stand to benefit from our proposals in so far as the changes in the residence rules will mean that a great many more tenants will be eligible to claim than under the previous scheme. I very much hope that noble Lords will be prepared to accept that our home loss payment proposals provide a genuinely fair deal for all categories of claimant and that they will not therefore press their amendments further.

Lord McIntosh of Haringey

My Lords, that is as comprehensively a wrong-headed a reply as I have heard from the Minister at any stage in the passage of the Bill. In almost every respect it contains what seem to me to be misinterpretations of what the Bill says; misinterpretations of what the amendment says; misinterpretations of fact about the existing situation and what must be described as a wilful disregard of the changes that have taken place in the Government's own housing legislation. That is the single most important point.

The Minister talks about home loss payments as being appropriate for owner-occupiers and those tenants with a degree of permanence—that was her phrase—in their tenancies. The whole thrust of government housing legislation has been to reduce and if possible eliminate the degree of permanence in the rights of tenants. Secure tenancies have been transformed to assured tenancies—secure tenancies qualify but assured tenancies do not—and the whole range of security both from eviction and from rent increases has been reduced deliberately by Government in the past few years as part of their housing policy.

The Minister talks as if those changes have taken place almost at the wish of tenants when it is clearly the case that the changes are very profoundly to their disadvantage. The Government's intention has been to encourage the private rented sector. That is what they are trying to do. Now they are saying that because the private rented sector is to be encouraged by the reduction of permanency, the home loss payments will not be available because the degree of permanence has been reduced.

I shall not go over the arguments in detail. By losing the opportunity to uprate the payments made in 1973 —I find it an extraordinary argument that the payment levels were perhaps wrong in 1973: after all they were brought in by a Conservative government —and by failing to uprate the 1973 level of payment and replacing the system with one which is very clearly biased towards owner-occupiers and against tenants, the Bill will make tenants worse off than they were in 1973 and than they ought to be now. As a matter of profound political principle we should resist that and the House should resist those government arguments.

6.8 p.m.

On Question, Whether the said amendment (No. 24) shall be agreed to?

Their Lordships divided: Contents, 41; Not-Contents, 78.

Division No. 2
CONTENTS
Airedale, L.	Aylestone, L.
Attlee, E.	Bottomley, L

Carter, L. [Teller.]	Mayhew, L.
Cledwyn of Penrhos, L.	Meston, L.
Craigavon, V.	Molloy, L.
David, B.	Morris of Castle Morris, L.
Dormand of Easington, L.	Nicol, B.
Erroll, E.	Phillips, B.
Gallacher, L.	Pitt of Hampstead, L.
Glenamara, L.	Rea, L.
Hanworth, V.	Ross of Newport, L. [Teller.]
Harris of Greenwich, L.	Russell, E.
Hooson, L.	Russell of Liverpool, L.
Houghton of Sowerby, L.	Seear, B.
Hylton-Foster, B.	Serota, B.
Lawrence, L.	Stoddart of Swindon, L.
Listowel, E.	Strabolgi, L.
Lytton, E.	Underhill, L.
McGregor of Durris, L.	White, B.
McIntosh of Haringey, L.	Williams of Elvel, L.
Mackie of Benshie, L.
NOT-CONTENTS
Acton, L.	Kinnoull, E.
Ailesbury, M.	Lauderdale, E.
Ampthill, L.	Long, V.
Astor, V.	Lucas of Chilworth, L.
Auckland, L.	Lyell, L.
Bauer, L.	Macleod of Borve, B.
Beloff, L.	Merrivale, L.
Birdwood, L.	Mersey, V.
Blatch, B.	Milverton, L.
Bolton, L.	Monk Bretton, L.
Boyd-Carpenter, L.	Mottistone, L.
Brigstocke, B.	Mountevans, L.
Brougham and Vaux, L.	Munster, E.
Butterfield, L.	Murton of Lindisfarne, L.
Butterworth, L.	Napier and Ettrick, L.
Campbell of Alloway, L.	Norfolk, D.
Carlisle of Bucklow, L.	Norrie, L.
Carnegy of Lour, B.	Oppenheim-Barnes, B.
Carnock, L.	Orkney, E.
Cavendish of Furness, L.	Pearson of Rannoch, L.
Clanwilliam, E.	Peel, E.
Cox, B.	Polwarth, L.
Davidson, V. [Teller.]	Reay, L.
Denham, L. [Teller.]	Renton, L.
Dilhorne, V.	Rochdale, V.
Downshire, M.	Rodney, L.
Eccles of Moulton, B.	Seccombe, B.
Elles, B.	Skelmersdale, L.
Elliot of Harwood, B.	Strathmore and Kinghorne, E.
Fraser of Carmyllie, L.	Sudeley, L.
Gardner of Parkes, B.	Swansea, L.
Gisborough, L.	Thomas of Gwydir, L.
Grafton, D.	Trefgarne, L.
Gray, L.	Trumpington, B.
Henley, L.	Ullswater, V.
Holderness, L.	Waddington, L.
Hooper, B.	Wade of Chorlton, L.
Jeffreys, L.	Whitelaw, V.
Killearn, L.	Wise, L.

Resolved in the negative, and amendment disagreed to accordingly.

6.16 p.m.

[Amendments Nos. 25 to 28 not moved.]

Schedule 2 [Listed buildings, conservation areas and hazardous substances]:

Viscount Astor moved Amendments Nos. 29 to 32: Page 82, line 44, at end insert: ("(3A) The references in subsection (1) to a local planning authority include, as respects England, the Commission."). Page 84, line 7, at end insert ("and state the purpose of his entry"). Page 86, line 29, at end insert ("and state the purpose of his entry"). Page 88, line 8, leave out paragraph 21.

The noble Viscount said: My Lords, these amendments were spoken to in connection with Amendments Nos. 3 and 15. I beg to move.

On Question, amendments agreed to.

Schedule 3 [Development Plans]:

Baroness Blatch moved Amendment No. 33: Page 95, line 1, leave out ("section 35A") and insert ("sections 35A and 35B").

The noble Baroness said: My Lords, in moving this amendment I should like to speak also to Amendments Nos. 34 to 38. I promised on Report to return to the House as regards Amendment No. 185, tabled in the name of the noble Baroness, Lady Hollis, which was moved at that stage by the noble Lord, Lord McIntosh of Haringey. It proposed that the holding of an examination in public in connection with structure plan proposals should be mandatory unless the Secretary of State agrees otherwise.

The Government's proposals to that end are contained in Amendments Nos. 33 to 38. They are intended to give effect to the purpose of the noble Baroness's amendment. The key amendment is Amendment No. 37, which places a duty on a local planning authority to hold an EIP in association with its proposals for structure plan alteration or replacement. If an authority considers that such an examination is not required, it will need to seek a direction to this effect from the Secretary of State. The other amendments in the group are consequential on the change; together they honour the undertaking I gave on Report. I beg to move.

Lord McIntosh of Haringey

My Lords, on behalf of my noble friend Lady Hollis and on my own behalf, I should like to say that I am grateful to the Minister for putting forward these amendments.

On Question, amendment agreed to.

Baroness Blatch moved Amendments Nos. 34 to 38: Page 95, line 9, leave out ("during the intervening period, direct the local planning") and insert ("before the local planning authority have adopted the proposals, direct the"). Page 95, leave out lines 12 to 14. Page 95, line 25, leave out ("during the intervening period") and insert ("before the local planning authority have adopted proposals for the alteration or replacement of a structure plan"). Page 96, leave out lines 10 to 16 and insert: ("(1) Before adopting proposals for the alteration or replacement of a structure plan, the local planning authority shall, unless the Secretary of State otherwise directs, cause an examination in public to be held of such matters affecting the consideration of the proposals as—

1. (a) they consider ought to be so examined; or
2. (b) the Secretary of State directs.").

Page 96, line 28, leave out ("or (2)").

On Question, amendments agreed to.

Viscount Astor moved Amendments Nos. 39 to 46: Page 105, line 3, at end insert:

1. ("(a) after "local plan" there is inserted "minerals local plan, waste local plan"; and
2. (b)") .

Page 105, line 6, after ("etc.)") insert:

1. ("(a) in subsection (1) after "local plan" there is inserted "minerals local plan or waste local plan"; and
2. (b)") .

Page 105, line 8, after ("undertakers)") insert:

1. ("(a) after "local plan" there is inserted "minerals local plan or waste local plan"; and
2. (b)") .

Page 105, line 8, at end insert: ("32A. In section 324(1) (a) (rights of entry in connection with preparation etc. of plans), after "local plan" there is inserted "minerals local plan or waste local plan". 32B. In section 336(1) (interpretation) in the definition of "development plan" after "Schedule 2" there is inserted "and Part III of Schedule 3 to the Planning and Compensation Act 1991"."). Page 111, line 3, at beginning insert: ("In this paragraph the references to saved local plans do not include a reference to saved local plans treated, by virtue of paragraph 42(2) above, as if adopted or approved under the new law. (1A)"). Page 111, line 8, leave out ("the saved local plan") and insert ("any saved local plan in operation in that authority's area"). Page 111, line 23, leave out from ("plan") to end of line 24. Page 111, line 31, at end insert:

("Proceedings for questioning validity of development plans

46A. An application may be made after commencement under and in accordance with section 287 of the old law with respect to any plan adopted, altered, repealed or replaced under the old law.").

The noble Viscount said: My Lords, Amendments Nos. 39 to 46 are all consequential or drafting amendments to the development plan provisions of Parts II and III of Schedule 3. If necessary, I should be glad to explain the purpose of individual amendments if any noble Lord has a particular interest in them. I commend the amendments to the House. I beg to move.

On Question, amendments agreed to.

Schedule 6 [Planning in England and Wales: minor and consequential amendments]:

Viscount Astor moved Amendments Nos. 47 and 48: Page 124, line 43, leave out ("In section 325(2)") and insert ("Section 325 is amended as follows. (1A) In subsection (1) (a) after "authority" there is inserted "and state the purpose of his entry". (1B) In subsection (2)"). Page 125, line 1, leave out ("section 325(4)") and insert ("subsection (4)").

The noble Viscount said: My Lords, these amendments were spoken to with Amendment No. 3. I beg to move.

On Question, amendments agreed to.

Viscount Astor moved Amendment No. 49: Page 125, line 33, leave out sub-paragraphs (5) to (7) and insert: ("(5) In paragraph 8, for sub-paragraph (1) there is substituted— (1) A district planning authority, or, in a metropolitan county, a local planning authority shall, if requested to do so by the council of any parish or community situated in their area, notify the council of—

1. (a) any relevant planning application; and
1151
2. (b) any alteration to that application accepted by the authority.

(1A) In sub-paragraph (1) "a relevant planning application" means an application which—

1. (a) relates to land in the parish or community; and
2. (b) is an application for—
1. (i) planning permission; or
2. (ii) approval of a matter reserved under an outline planning permission within the meaning of section 92.

(1B) Any request made for the purposes of sub-paragraph (1) shall be in writing and state that the council wishes to be notified of all relevant applications or all applications of a description specified in the request. (1C) An authority shall comply with the duty to notify a council of an application by—

1. (a) sending the council a copy of the application; or
2. (b) indicating to the council the nature of the development which is the subject of the application and identifying the land to which it relates,

and any notification falling within paragraph (b) shall be in writing. (1D) An authority shall comply with their duty to notify a council of an alteration by—

1. (a) sending a copy of the alteration to the council; or
2. (b) informing the council in writing of its general effect,

but they need not notify a council of an alteration which in their opinion is trivial. (6) In sub-paragraph (2) of that paragraph for "of which the council of a parish or community are entitled to be informed" there is substituted "required to be notified to a council under sub-paragraph (1)".").

The noble Viscount said: My Lords, the amendment proposes for purely technical reasons to replace an amendment moved in Committee by the noble Lord, Lord McIntosh. The Committee agreed to the noble Lord's amendment, which is in paragraph 46 of Schedule 6 to the 21st February print of the Bill. It entails a requirement for planning authorities to notify parish and community councils of certain amendments to planning applications. It supplements the provisions of paragraph 8 of Schedule 1 to the 1990 Act which requires planning authorities to notify parish and community councils of planning applications in categories and locations specified by the parish or community council.

In Committee, I accepted that the noble Lord's amendment represented a logical extension of the existing statutory requirement. However, on detailed examination, the Government identified some problems with its drafting. This amendment is designed to rectify those problems. In particular, the Government accept that the notification of trivial amendments would serve no useful purpose. On the other hand, it is important to keep in mind that planning applications ought not to be amended in such a way as to produce a development proposal different in substance from that originally submitted. The Government amendment respects that principle.

The amendment is designed to give effect to the principle of the one carried in Committee. I trust that it will prove acceptable. I beg to move.

Lord McIntosh of Haringey

My Lords, I am grateful for the care that has been taken to put my amendment in order. So far as I can see it faithfully preserves the intention of my amendment. I am sure that the National Association of Local Councils will share my gratitude for the care that has been taken.

On Question, amendment agreed to.

Schedule 8 [Listed buildings, conservation areas and hazardous substances—Scotland]:

Lord Fraser of Carmyllie moved Amendments Nos. 50 to 55: Page 134, line 47, leave out from ("(2)") to end of line 48 and insert ("If the sheriff is satisfied"). Page 135, line 8, leave out ("the justice") and insert ("he"). Page 135, line 23, at end insert ("and state the purpose of his entry"). Page 136, line 39, leave out from ("(2)") to the end of line 40 and insert ("If the sheriff is satisfied"). Page 136, line 48, leave out ("the justice") and insert ("he"). Page 137, line 10, after ("authority") insert ("and state the purpose of his entry").

The noble and learned Lord said: My Lords, I spoke to these amendments with Amendments Nos. 3 and 17. I beg to move.

On Question, amendments agreed to.

Schedule 11 [Planning in Scotland: minor and consequential amendments]:

Lord Fraser of Carmyllie moved Amendment No. 56: Page 147, line 8, at end insert:

("Agricultural Land (Removal of Surface Soil) Act 1953 (c.10.)

.For section 4 (application to Scotland) of the Agricultural Land (Removal of Surface Soil) Act 1953 there is substituted— 4. In the application of this Act to Scotland, for the references to the Town and Country Planning Act 1990, to Part III of that Act, and to section 192 of that Act, there shall be substituted references to the Town and Country Planning (Scotland) Act 1972, to Part III of that Act, and to section 90A of that Act.".").

The noble and learned Lord said: My Lords, I shall speak also to Amendments Nos. 59 to 64. These are amendments to Schedule 11, which applies to Scotland, and make minor and consequential changes to various Acts. I beg to move.

On Question, amendment agreed to.

Lord Fraser of Carmyllie moved Amendments Nos. 57 to 59: Page 151, line 18, leave out ("subsection (3) or). Page 151, line 19, after ("entry") insert ("—

1. (a) in subsection (1) after "authority" there is inserted "and state the purpose of his entry";
2. (b) in subsection (3)").

Page 151, line 41, leave out ("and").

On Question, amendments agreed to.

Lord Fraser of Carmyllie moved Amendments Nos. 60 to 64: Page 151, line 42, after ("50";") insert: ("(iii) after the entry for sections 88 to 89 there is inserted— Section 90A. Sections 91A to 91C."; (iv) after the entry relating to section 98 there is inserted— Sections 99A to 99C.";"). Page 151, line 43, leave out ("and"). Page 152, leave out lines 7 to 9. Page 152, line 9, at end insert ("and (c) in Part III after the entry for sections 61 to 63A there is inserted— Sections 83A to 83D.";"). Page 152, line 9, at end insert:

("Local Government (Scotland) Act 1973 (c.65.)

34A.—(1) For subsection (4) of section 173 (regional reports) of the Local Government (Scotland) Act 1973 there is substituted— (4) Before submitting the report to the Secretary of State, a general or regional planning authority shall consult every other planning authority who are likely to be affected by the report, and at the same time as they submit the report to the Secretary of State they shall send a copy of the report to every such planning authority. (2) In subsection (2) of section 174 (structure plans) of that Act, after "State, a" there is inserted "general or".").

On Question, amendments agreed to.

Schedule 15 [Amendments relating to land compensation in Scotland]:

Lord Fraser of Carmyllie moved Amendment No. 65: Page 176, line 20, leave out paragraph 10.

The noble and learned Lord said: My Lords, I speak also to Amendments Nos. 66 to 68. The amendments comprise essential drafting amendments to Schedule 15 and are minor amendments to Scottish planning legislation. I beg to move.

On Question, amendment agreed to.

Lord Fraser of Carmyllie moved Amendments Nos. 66 to 68: Page 178, line 18, at end insert:

("The Land Compensation (Scotland) Act 1963 (c.51.)

15A. In section 28 (power to prescribe matters relevant to Part IV) of the Land Compensation (Scotland) Act 1963, for the words "The provisions which may be made by a development order shall" there are substituted the words "Regulations made under section 273(1) (c) of the Town and Country Planning (Scotland) Act 1972 or a development order may".").

Page 178, line 25, at end insert:

("16A. In section 273 (regulations) of the 1972 Act, after subsection (1) (b) there is inserted "and (c) for any of the purposes mentioned in section 28 (power to prescribe matters relevant to Part IV) of the Land Compensation (Scotland) Act 1963;".").

Page 178, line 26, leave out paragraph 17.

On Question, amendments agreed to.

An amendment (privilege) made.

6.25 p.m.

Baroness Blatch

My Lords, I beg to move, that the Bill do now pass.

The purpose of the Bill is to increase the efficiency, effectiveness and fairness of the planning system and the compulsory purchase and compensation pro-visions. Those aims are shared on all sides of the House, as was shown when your Lordships gave the Bill its Second Reading without dissent. Those aims also underlay the substantial discussions we have had during the Bill's subsequent passage through the House.

Both planning law and the compensation code are very much concerned with how to achieve the right balance in the public interest. Planning law must maintain a proper balance between applicants and objectors or between authorities and developers; the compensation code must balance the interests of claimants and acquiring authorities.

Where we have disagreed, it has largely been because of different judgments about where the proper balance lies. For example, we believe that the tougher enforcement procedures provided in the Bill, following the recommendations of Mr. Robert Carnwath QC, strike the right balance. The proposals put forward by my noble friend Baroness Gardner of Parkes to make a contravention of planning law an immediate criminal offence, would not, in the Government's opinion, have allowed sufficiently for the need to make a planning judgment before proceeding against a particular activity.

Similarly, the provisions in Clause 12 for entering into planning obligations by means of unilateral undertakings will in our view provide a valuable means of breaking the deadlock in those cases where local planning authorities unreasonably refuse to enter into planning agreements that would facilitate essential development. I know that that provision is of concern to noble Lords opposite. However, in our judgment it strikes the right balance.

My noble friends Lord Norrie and Lord Renton have initiated several important debates on the role of the planning system in promoting environmental protection and conservation. The noble Baronesses, Lady Hollis, Lady Nicol and Lady David, the noble Lord, Lord Ross, my noble friends Lord Stanley, Lord Wade and Lord Mottistone and others of your Lordships have taken a constructive part in these discussions. The balance that has to be struck here is between the importance given to environmental and other considerations.

It is the function of the planning system to resolve conflicts between different interests. The Bill's provisions, both on development control and on structure and local plans, are concerned largely to ensure that the planning system performs that function more efficiently. The Bill has been amended to ensure that in respect of development plans the importance of "natural beauty and amenity" is fully recognised. I thank the noble Baroness, Lady Nicol, for prompting us in that direction.

Where I have resisted other proposals relating to conservation it is not because I regard environmental questions as unimportant, but because I remain concerned to ensure that all material considerations are properly taken into account and because I believe that in many cases the better way to achieve the right balance is through Government guidance rather than primary legislation.

Our debates about compensation for compulsory purchase have also been essentially about the right balance. The current compensation code by and large already succeeds in ensuring that claimants are financially no worse off than if no compulsory purchase had taken place. The Bill aims to correct the law where it does not achieve that. In addition, it substantially improves the home loss payments scheme, in particular for owner-occupiers whose homes are compulsorily acquired.

We have debated a number of proposals made by various of your Lordships for extending similar improvements to other claimants. We have also debated a number of more technical proposals, many of which have been put forward by the noble Earl, Lord Lytton, which would to some extent have altered the balance between claimants and authorities. Once again, we believe that our proposals have struck the right balance.

In a number of respects the House has made significant improvements to the Bill; for example in relation to the enforcement powers of English Heritage, on which we have just agreed amendments which were originally inspired by my noble friend Lord Montagu. I am glad also that we have adopted the new form of Clause 24 reflecting proposals by the noble Lord, Lord McIntosh. I want to put on record my apologies to him because I thought he was being rhetorical at the end of his presentation. I did not answer his question. I have sent him a note, and I promise to write to him in more detail. This was of course after we had deleted the original clause which my noble friend Lord Coleraine and other noble Lords criticised so cogently.

On a number of other matters the Government have undertaken to bring forward amendments in another place. These include the important provisions relating to interim development orders. There are also a number of matters which I have undertaken to look into further: for example, an environmental impact assessment, twin tracking and so on. Where I have not been able to indicate to the House today what our conclusions are, I can assure your Lordships that I am pursuing these matters urgently.

I should like to thank all noble Lords for the constructive tone of these debates. I have named some of your Lordships who have taken part already but I cannot name everyone. There have been 54 speakers altogether contributing to the debates. In particular I wish to thank the noble Lord, Lord Ross, for the experience he has brought to the discussion. I also thank the noble Baroness, Lady Hollis, who is unable to be with us due to a family tragedy, and the noble Lord, Lord McIntosh, for his characteristic courtesy and enormous experience. I thank too my noble friends behind me for their support.

I should not forget the many people outside the House who have briefed your Lordships and my officials who helped us to discuss these important planning matters in an informed manner. Finally, I wish to thank my noble and learned friend the Lord Advocate, who has been called away from my side just at this moment. I have been enormously strengthened by his presence. It has been noted by many noble Lords that he went well beyond what I call the "kilting" amendments, the Scottish ones. He has helped us considerably on other and more anglicised amendments. I wish too to thank my noble friend Lord Astor for his support on this Bench. This has been his first Bill and he has done a sterling job in supporting me. He has taken a large number of amendments and diligently carried out a great deal of work in the background.

At times we have been unreasonable—and I include myself in that—and at times we may have been vexatious. At times we have been frivolous. But my overall impression has been the good humour that has characterised our proceedings. I thank everyone for their contributions through which we have an even better Bill than when it was introduced into the House. I commend it to your Lordships.

Moved, That the Bill do now pass.—(Baroness Blotch.)

6.30 p.m.

Lord McIntosh of Haringey

My Lords, basically this is a good Bill. It started off badly by containing 120 pages when it was introduced, after which 87 pages of government amendments were thrown at us at Committee stage. In appearance at any rate, if not in its basic thrust, it is very different from the Bill which initially came before the House. It represents a serious attempt, based on a serious report from Mr. Robert Carnwath, to improve the efficiency and justice of the planning system.

As we said at Second Reading, it has received support from these Benches in most of its main provisions. There are still major defects which need to be put right and matters in the Bill which will cause considerable controversy when it goes to another place. I think in particular of the anguished debate which is bound to take place about criminalisation. I wish Ministers in another place well with that debate. A large number of Members will wish to bring their personal experience to bear on the issue of whether it should be an offence simply to breach planning control or only to breach an injunction against it.

There is still much to be done to improve the provision to deal with the interim development orders from the 1940s. Progress has been made in registration, but we shall have to go a good deal further if the Bill is to relieve the considerable and justified disquiet about virtually unregulated mineral workings. We wait with bated breath to hear the Government's conclusion when they have read the transcript of the Widdicombe judgment about demolition. I very much hope that it will be found that Mr. Widdicombe was right in judging that demolition is a building operation which should therefore be subject to planning control. If that is not the case, I hope that the Bill will be amended to give effect to it.

We have made some progress, particularly today, on reaching agreement about the undesirability of twin tracking, and we welcome it. Unilateral undertakings will clearly still be a matter of considerable controversy because we have not reached agreement on them.

On the compensation side as opposed to the planning side, as I said perhaps too vigorously earlier this afternoon, I still feel that the Government's proposals are profoundly unjust. At a time when tenancies are becoming less secure, in effect to remove or reduce home loss rights from many tenants is moving in the wrong direction. I find it inconsistent with the rest of the Government's housing policies.

I shall not list any more of the changes which have taken place on the prompting of the Government Back Benches, of these Benches or of the Liberal Benches. They have been quite extensive and we are grateful for the consideration which has always been shown by the noble Baroness, Lady Blatch, and her colleagues, the noble and learned Lord, Lord Fraser, and the noble Viscount, Lord Astor. The Minister was right in saying that the progress of the Bill has been as good humoured as could be expected. Without listing all the others who have taken part, I am particularly grateful for the support of my noble friends Lady Hollis, Lady Nicol and Lady David. They have been an extraordinarily effective and coherent team. Behind them, I am grateful for the work of Elizabeth Gardiner in our office who has marshalled the views put to us from a large number of outside organisations which expressed interest in the Bill.

I wish the other place well of the Bill. I hope that many of the defects which remain will be removed before it returns to us for final approval.

Lord Ross of Newport

My Lords, I welcomed the Bill on Second Reading and I welcome it even more now. I believe that the learned professions will also welcome the legislation, and it is good to be able to say that. I have two main regrets. First, I share with the noble Lord, Lord McIntosh, the regret that, although we tried very hard, the Government did not take on board some remedies for flagrant breaches of planning control. It is referred to as "criminalisation", but perhaps if we had used the words "blatantly and flagrantly" we may have got somewhere. I regret that we could not suggest it a third time. We voted on it at Report stage and received all-party support. I very much regret that we have still not achieved what we wished.

The other matter is home loss payments. I regret that we did not pursue that earlier because I am worried. There could well be litigation—I look across at the legal eagles on the other side. Will assured shortholds be claimed as a legal interest or will people be able to claim home loss payments even for a rather miserable amount? I hope that the Government will reconsider this.

I congratulate everyone on the Government Front Bench, particularly the Minister. She has been assiduous in her efforts to keep us informed of all government amendments and she is well worth her rise in pay. I am also pleased with the Government's quick response to the interim development orders. There may well be problems but I may quietly say that the quarrying industry is concerned at the moment and the Government have moved quickly on this. Again, they are to be congratulated.

We have received some concessions, even on these Benches, particularly my noble friend Lord Meston today. The subject is difficult and complicated. I managed to pass planning when I took my RICS exams, but I am sure that it is extremely difficult for someone coming fresh to the subject. It is a great credit to the government spokesmen that they have mastered their brief so well. I congratulate the noble Viscount, Lord Astor, on his efforts in that regard.

The Official Opposition Front Bench team has performed a marvellous task. The noble Lord, Lord McIntosh, and his team have been excellent. I agree with the noble Lord that the Bill has been debated in a good spirit.

I wish to thank those who have supported me. I also thank Mark Williams in the Whips Office—if I do not mention him, he gets very hurt. I wish the Bill well. Having spent some 13 years in another place, I do not believe that legislation is discussed as well there as it is in this House. This House excels at examining legislation. We may almost examine it too well in that we appear to raise points time and time again. I am afraid that Ministers must get fed up with having to repeat the same replies. Nevertheless, legislation is thoroughly debated in this House. I cannot always say the same about another place.

On Question, Bill passed, and sent to the Commons.