Lords Sitting of 2 February 2004

Preamble
The House met at half-past two of the clock: The LORD CHANCELLOR on the Woolsack.
Prayers—Read by the Lord Bishop of Southwell.

Prostitution
Lord Faulkner of Worcester Lord Faulkner of Worcester asked Her Majesty's Government:
When they will set up their review of the law on prostitution; and what will be its terms of reference.
Lord Bassam of Brighton: My Lords, a scoping exercise for the review is well under way, examining issues arising from prostitution, to establish what measures need to be included in a national strategy for prostitution in order to reduce exploitation, protect communities, and address the links with serious crime, particularly the illegal use of class A drugs. The scoping exercise is looking at both street-based and off-street prostitution, and we hope to be ready to publish a paper for public consultation later this year.
Lord Faulkner of Worcester: My Lords, I thank my noble friend for that welcome reply, particularly for the news that the review team will be up and running very shortly. He may be aware that I spent last Thursday with the street offences and juvenile protection unit of the Metropolitan Police on patrol in Brixton. Is he aware that those officers, whom I cannot praise highly enough for their caring and compassionate approach to the people they were dealing with, will particularly welcome his commitment to examine the question of drug dependency, for that factor is driving the great majority of street prostitutes into that way of life? Will my noble friend assure me that the review will be sufficiently wide ranging to take into account how other countries are tackling the problem of prostitution and look particularly at some measures of decriminalisation?
Lord Bassam of Brighton: My Lords, we are grateful for the important insights that my noble friend brings to the subject from his close attention to the way in which the Metropolitan Police works in the field. We are well aware of the link between prostitution and the use of drugs. That issue will covered by the review, as will the way in which other jurisdictions deal with the persistent problem of prostitution. We will look at all aspects of the issue and the potential for legalisation will be one of the aspects examined in the review.
Baroness Walmsley: My Lords, given that the Home Office is leading the review and given that two of the major issues are sexually transmitted diseases and drug addiction, how will the Home Office work with the Department of Health in conducting the review? Will
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the Minister comment on the suggestion that some young women are forced into prostitution in order to pay their university tuition fees?
Noble Lords: Oh!
Lord Bassam of Brighton: My Lords, there is absolutely no evidence to support the noble Baroness's latter point. Obviously, in conducting a review of prostitution, the Government will seek to work holistically and across all departments with an interest in the issue. The Department of Health is one of the most important of them.
Baroness Trumpington: My Lords, what dealings have the Government had with the English Collective of Prostitutes? My noble friend Lady Gardner of Parkes and I both had dealings with it when we were representing this country on the United Nations Status of Women Commission. Has the noble Lord ever heard of the English Collective of Prostitutes?
Lord Bassam of Brighton: My Lords, my noble friend Lady Amos reminds me that when were in the employment of Camden borough council, we both had quite a lot to do with the English Collective of Prostitutes. I am not aware of its exact status among our current contacts, but no doubt it will make its views volubly known during the review.
The Earl of Listowel: My Lords, the latest Home Office figures, published in 2001, confirm that children continue to be prosecuted under the Sexual Offences Act 1956 and the Street Offences Act 1959. Will the review consider the position of children abused by prostitution and is it still the Government's intention that children should no longer be criminalised in that way?
Lord Bassam of Brighton: My Lords, it is true that the sex offences legislation is used in regard to young people, but I think that the number of prosecutions is relatively small. I am sure that the reasons for those prosecutions that do take place are carefully considered. That issue will obviously be covered in the review and will need to be addressed very carefully.
Lord Dholakia: My Lords, is the Minister aware of the trafficking of women, particularly from eastern European countries, for the purposes of prostitution? That seems to be more lucrative now than trafficking in drugs. Will the review take into account those who exploit women for such purposes?
Lord Bassam of Brighton: My Lords, the review will of course have to cover that issue. The issues of trafficking in women and trafficking in drugs are closely linked. That is clearly an area on which policy will have to focus. The Metropolitan Police estimates that approximately 1,400 women are trafficked annually. It believes that some 70 per cent of women who work in off-street sex markets in London are

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foreign nationals. We recognise the problem. It may well be larger than that, but we are not sure. The review will obviously focus on the problem.
The Lord Bishop of Southwell: My Lords, does the Minister agree that it is important to consult other faith communities within society, particularly in areas such as my own in the east Midlands? Does he recognise how strategic that is for good community relationships?
Lord Bassam of Brighton: My Lords, I am confident that we will want to be in touch with all faith communities on the issue. No doubt they will have important insights to offer and help greatly with the review.
Lord Hodgson of Astley Abbotts: My Lords, is the Minister aware that the whole matter was addressed in a report that the Government received in April 2000 and that, last October, the noble Baroness, Lady Scotland, said that the scoping was under way? What is the reason for the still-further delay in tackling such an important issue?
Lord Bassam of Brighton: My Lords, the Government have had a busy legislative agenda, as the noble Lord is well aware. All things have to take their place. We have not sought to ignore the issue. We have brought forward legislation to reform the law on sexual offences. We said at that time that we would review our position on prostitution. That is exactly what we intend to do and we have been congratulated in your Lordships' House today on doing so.
Lord Ackner: My Lords, will the review take into account the pros and cons of licensed brothels?
Lord Bassam of Brighton: My Lords, I am happy to confirm to the noble and learned Lord that the review will do exactly that.
Baroness Gardner of Parkes: My Lords, is the Minister aware that in New South Wales, Australia, a prostitute who was infected with HIV flatly refused to give up her job, although she was described as a walking timebomb, and was imprisoned in order to keep her—or the community—safe? What is the position concerning health checks in this country? Is there a formal procedure or is it just a matter of individual choice?
Lord Bassam of Brighton: My Lords, in the end, that must be a matter of individual choice. When prostitutes are caught up, as it were, in the law, there is an opportunity to make advice and more assistance available to them. A number of projects do exactly that. The housing trust project is one such example. But it is a personal tragedy for those involved and a great problem with regard to public health. It is in our interests to do as much as we can to ensure that women in the sex industry have proper health checks.

Obesity: Children
2.44 p.m.
Baroness Massey of Darwen Baroness Massey of Darwen asked Her Majesty's Government:
What initiatives they propose to tackle obesity in children.
Baroness Andrews: My Lords, the Government take very seriously the need to tackle obesity not only in children but also across the population in terms of prevention and management of the condition. Prevention is the best long-term approach, especially for children. We already have under way a comprehensive programme of action which is now being further developed through two new cross-government strategies: the Food and Health Action Plan, which promotes healthy diet, and the Activity Co-ordination Team, which promotes physical activity.
Baroness Massey of Darwen: My Lords, I thank the Minister for that wide-ranging reply. Does she agree that schools have a role in tackling obesity by means of exercise and diet? What are schools currently doing with regard to exercise and diet, and are there any future plans to expand that process?
Baroness Andrews: My Lords, schools have an incredibly important role to play in spreading the message about healthy eating and diet. It is very important that that message goes to the mainstream of schools, through the National Healthy School Standard and the Personal, Social and Health Education Curriculum. We have recently introduced two welcome initiatives: the first will ensure that all four to six year-olds get a free piece of fruit in schools—we will have accomplished that by the end of the year—and the second is the new Food in Schools Programme. As for sport, we are putting £1 billion into additional sports facilities in schools to help to increase access to sport.
Lord Clement-Jones: My Lords, with reference to schools, the FSA said that it is sometimes easier to get a fizzy drink than it is to find a glass of water. When it publishes its very welcome report on the promotion of food to children, will the Government—particularly the Department of Health and the Department for Education and Skills—look very carefully at the situation involving vending machines? I refer to that in particular in light of the fact that only three companies control all vending machine operations in schools.
Baroness Andrews: My Lords, that is a very important point. The consumption of carbonated drinks has doubled since the 1980s. I draw two points to the noble Lord's attention. We all look forward to the FSA's report on the promotion of food to children. The Food in Schools Programme consists of eight elements, one of which is to promote more access to water in schools and another of which will examine

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what else vending machines can offer by way of healthy options. I am also told that the vending machine industry is in close consultation with the Department of Health about what else can be done.
Lord Chan: My Lords, is the Minister aware that, for poor families in areas such as Merseyside, it is cheaper for mothers to feed their children on hamburgers rather than healthy food? What will the Government do to help mothers—particularly single mothers—to feed their children on healthy food?
Baroness Andrews: My Lords, the policy of promoting healthy eating must be put firmly within the strategy of reducing inequalities. We do not have complete evidence but we know that women in low-income families are twice as likely to be obese as women in the highest percentage. In areas such as Merseyside, it is important to have a co-ordinated strategy. The Food and Health Action Plan involves precisely that; it brings together all of the partners— transport, local authorities, and so on—to ensure that there is better access. Giving information is not sufficient: enabling people to reach cheap, adequate sources of food is very important.
Baroness O'Cathain: My Lords, is the Minister aware that figures given to us by Cancer Research UK in its briefing on this issue show that one in four adults are now obese—not overweight—and that 5 per cent of children are obese? However, they are not being measured in the same way—many more children could well be obese; 20 per cent of them are certainly overweight. In the circumstances, doing the sort of things that the Government are doing and taking account of all of the issues that we have discussed, such as carbonated drinks and vending machines in schools, is very worthy, but that only chips away at the surface of the problem. Is there any way in which we could properly educate the whole population about obesity?
Baroness Andrews: Yes, my Lords, I quite agree. Fifteen per cent of 15 year-olds are currently obese. It is important to approach the issue as a partnership in which industry is part of the solution. The Food and Health Action Plan is very much about co-ordination. The Food Standards Agency has figures showing impressive increases in awareness of, in particular, fruit and vegetables and the amount of salt in food. We have made a good start, but there is a long way to go.
Baroness Billingham: My Lords, will the Minister be supporting Sport Relief 2004 this year? Sport Relief is a combination of Comic Relief and the BBC. It intends to raise millions of pounds for this purpose, both in the UK and internationally. I have just come from a meeting and I am very excited about it. Will the Minister say what prospect there is of getting a huge party from this Chamber to go on the Westminster Mile on 21 July to raise money for it? We can jog, cycle, skateboard or get out our Zimmers; we can all raise money for a thoroughly worthwhile cause.
Baroness Andrews: My Lords, the noble Baroness has made an irresistible argument. I shall be sitting on the Whip's chair later this afternoon, if people want to volunteer. I am sure the date of 10 July will be marked in all noble Lords' diaries.
Baroness Howe of Idlicote: My Lords, I am sure that we are all pleased to hear of the initiatives under way. More than £4 billion is spent per year marketing goods on television to pre-school children alone. Does the Minister agree that, if legislative control is to be avoided, considerably more corporate social responsibility needs to be exercised by the food industry?
Baroness Andrews: Yes, my Lords. We are putting a lot of pressure on the industry to do just that. The Food Standards Agency is looking at the whole field of promotions for foods, particularly those aimed at young people and children. There was a good and lively debate on 27 January, which the noble Baroness will know about. The Food Standards Agency will be making recommendations at its March meeting and will issue a document for formal consultation later this year. At the same time, Ofcom is making it one of its first priorities to make a fast-track review of this, looking at the best approach to take to any changes to the Code for Broadcast Advertising. A great deal is happening in this field.
Lord Glentoran: My Lords, in recent debates on sport I argued for an extension to the PE curriculum in schools. Will the Government consider extending it to tackle this problem? It must be financially profitable.
Baroness Andrews: My Lords, we expect every child to have access to two hours' PE and sport in school; by 2006, 75 per cent of them will have it. We are making great efforts. We are investing in school sport facilities and in a range of out-of-school sporting activities, particularly those linking school activities and adult club activities so that, once we capture the children, they go on being active in their adult lives.
Lord Brooke of Alverthorpe: Does the Minister agree that food labelling can be misleading and confusing for those who are seeking to lose weight? What plans do the Government have to introduce simple, standardised food labelling that would help everyone, including children?
Baroness Andrews: My Lords, we are pressing hard on this issue, both here and in Europe, and with the industry. There are several issues. A problem is that labelling is not mandatory unless a claim is made on the label that the food is, for example, low fat. In practice 80 per cent of products carry information but often one cannot read it or cannot understand it. We could make a start by insisting that sodium is always labelled as salt. That is something we want to see. In Europe, we are pressing for full labelling and contents listing to be mandatory. We hope that we shall be able to achieve that in the not too distant future.
Baroness Strange: My Lords, is the Minister aware that many children, particularly fat children, suffer

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from second-hand, sedentary living—too much television; too much Game Boys; and too much computer use? Has she ever read The Secret Garden in which a chronically ill child is cured by seeing plants grow, by handling live animals and by running free in God's beautiful world?
Baroness Andrews: My Lords, I have read The Secret Garden. The noble Baroness is quite right. You will find that in contemporary children's literature there is also great emphasis on activity and adventure. One of the aspects of the Food in Schools programme that the noble Baroness will enjoy hearing about is growing clubs. They encourage young people to create and cultivate gardens. We are looking forward to seeing the results.
Lord Redesdale: My Lords, as I have young children—three under the age of four—I tend to watch a lot of breakfast television. This morning, between 5.30 and 6.30, I was surprised to see a number of advertisements, involving three different products, that highlighted the fact that there was chocolate within the staple food—breakfast cereal—being advertised. When the Minister talks to the industry about responsibility, can she try to make clear the difference between breakfast cereals and sweets?
Baroness Andrews: My Lords, I did not know that breakfast television started that early. It is very impressive. One of the matters that the FSA is looking at is those foods that are favourites of children. Cereals are problematic in relation not only to chocolate, but also in relation to salt and sugar. We are making salt a priority for change. It is a particular problem because children's tolerance of salt levels is much lower than that of adults. I imagine that cereals will be one of the priority groups that the FSA will want to study. I believe that the industry is also prioritising it.
Baroness Oppenheim-Barnes: My Lords, does the Minister agree that it is time to come down to earth on this subject? The simple fact is that it is nothing to do with manufacturers or with the price of food. Children prefer food that is bad for them. They do not like vegetables and other foods that they are supposed to eat. It is very difficult for parents to persuade them. When I was a child, I was told to eat everything on my plate or I would not get any pudding, or that I should think of all the poor children. I used to say, "Well, give it to them". Seriously, this is the root of the problem. This is what needs tackling first.
Baroness Andrews: My Lords, we all have a problem with self-denial, I would not deny that at all. However, we should not give up the ghost on this because the evidence from the Food in Schools programme shows that there is a 95 per cent take-up rate and that the children are enjoying the piece of fruit they get each day. Furthermore, early evaluation suggests that it is also leading to a take-up of fruit outside school. I speak for myself when I say that we ought to be a bit more optimistic and, maybe, a bit more self-disciplined.

Footpaths and Roads: De-icing
2.57 p.m.
Lord Berkeley Lord Berkeley asked Her Majesty's Government:
What obligations local authorities have to de-ice footpaths and roads.
Lord Davies of Oldham: My Lords, Section 111 of the Railways and Transport Safety Act 2003 requires that highway authorities in England and Wales ensure, so far as is reasonably practicable, that safe passage along a highway is not endangered by snow or ice. A corresponding requirement on Scottish authorities is imposed by Section 34 of the Roads (Scotland) Act 1984.
Lord Berkeley: My Lords, I am very grateful to my noble friend the Minister for that very interesting reply. Is he aware that 24 hours after the snowfall last week many roads had been treated but most footpaths were sheets of ice? Is it the fact that local authorities do not find it reasonably practicable to treat footpaths, or that they are too lazy, or that they do not have the equipment? Does he agree that many times more people are affected by icy footpaths—put at more risk of broken bones—than by a few slides in a car?
Lord Burnham: My Lords—
Lord Davies of Oldham: My Lords, I am grateful to my noble friend and I shall try to answer him before listening to the noble Lord, Lord Burnham. The code that governs these issues makes no distinction between priorities for pedestrians and footpaths and those for roads. However, it is inevitable that with the enormous media interest in what happens to road transport, particularly with regard to motorways—as we recall from last year—local authorities are bound to be concerned about keeping crucial routes open so that people can get to work and get home. I agree with my noble friend entirely that footpaths should receive equal priority.
Baroness Strange: My Lords, is the minister—
Noble Lords: Oh!
Lord Burnham: My Lords, I apologise to the House for the delay in getting to my feet. Following the Question of the noble Lord, Lord Berkeley, am I right in thinking that if a householder clears the ground in front of his house, he is liable if anyone should fall or damage themselves? If that is the case, can anything be done about that?
Lord Davies of Oldham: My Lords, the noble Lord has lighted upon a difficult issue in terms of the law. No householder is at all responsible provided he does not touch the pavement, which after all is owned by the local authority. The moment the householder touches the pavement with a view to improving the situation,

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but takes action that may lead to a deterioration, his action may render him culpable. That is the difficulty that we face.
Baroness Strange: My Lords, is the Minister aware that last week when Old Palace Yard was full of ice it was cleared by the good offices of Black Rod so that it was safe for your Lordships?
Lord Davies of Oldham: My Lords, we are all used to the diligence of Black Rod in all matters regarding the House. I am delighted to hear how gainfully employed he was last week to the advantage of us all.
Lord Bradshaw: My Lords, all local authorities face considerable funding difficulties, are subject to criticism from road users, pedestrians and, of course, motorists, and funding is made available through the block grant. Will the Minister therefore please tell us regarding a review of local government funding whether the funds available for highway-related matters and pavement-related matters will be clearly identified in future instead of being carried forward in the block grant as for any other purpose?
Lord Davies of Oldham: My Lords, the role of local authorities that we are discussing competes with very many other priorities. I believe that the House will recognise the reluctance to identify this matter as a particular priority requiring specific allocation of funds. However, the noble Lord is right that when local authorities have duties laid upon them they require the resources to fulfil their obligations. I do not believe that local authorities found that the tackling of the problem that occurred last week was hindered by a very significant lack of resources.
Baroness Carnegy of Lour: My Lords, the noble Lord's response to my noble friend Lord Burnham was extremely interesting. I was not aware that members of the public were liable if someone slipped after they had cleared the pavement. In view of that and the desirability that everyone should do their bit in this respect, will the noble Lord suggest to his colleagues in government that perhaps a change might be made to the law? That could be done very easily under the Regulatory Reform Act. I should have thought that would be highly desirable.
Lord Davies of Oldham: My Lords, I have no doubt at all that my colleagues in the appropriate department have considered this matter over a period of time. It is an interesting area of law and contrasts with the way in which other countries address the responsibility of householders. I merely reflected how difficult the situation is. Such cases brought against householders are few and far between. I merely indicated that the local authority owns the pavement and takes responsibility for its proper upkeep in all weathers.
Lord Dubs: My Lords, my noble friend may say that this is an interesting area of law but I find it alarming that something I have done for years every time there has been snow may render me liable for legal action. Is there not a case for dealing urgently with this matter? It is a fairly simple point in law and yet after this episode at Question Time no one will sweep the front of their pavement.
Lord Davies of Oldham: My Lords, that would be a great pity. I would have acted to the detriment of the nation if my contribution led to such a response. Of course, if people completely, utterly and totally clear away all the snow and return the pavement to the condition it was in before the snow landed, they will have done an excellent job. I am sure that all conscientious citizens do that. That is why any cases brought against householders in such circumstances are very few and far between. I merely reflected that if the snow is cleared in a less than complete manner and ice is left which is more dangerous than the original covering of snow, it may not necessarily be the local authority that is responsible but the householder for having dealt with the matter inadequately.
Lord Clarke of Hampstead: My Lords, at the height of the skidding around that occurred last week the Highways Agency spokesperson said on the radio that the incorrect salt was used as the temperature was six degrees below freezing. If the temperature had been five degrees below freezing, the salt would have been okay. Is that an accurate statement on the part of the Highways Agency? If it is, perhaps Black Rod could advise local authorities where to get their salt.
Lord Davies of Oldham: My Lords, the Question is about local authorities but my noble friend mentioned the Highways Agency. Different forms and different concentrations of salt have different effects at different temperatures. The time at which the salt is laid down is important. It can be laid down too early as the snow may arrive slightly later than anticipated. Therefore, although it appears that the Highways Agency has acted promptly, the snow may cover the salt which does not result in the effect that we would all wish. We are not dealing with a precise science as regards road clearing in these conditions. I am grateful to my noble friend for his question as much mirth was generated by the statement that different concentrations of salt have different effects upon snow, ice and, indeed, water.

Business
Lord Grocott: My Lords, later this afternoon my noble friend Lord McIntosh will repeat as a Statement an Answer given to an urgent Question in the Commons on the process of appointing a new chairman of the BBC. It has been agreed among the usual channels that this will be taken as soon as is convenient after 5 p.m.

Planning and Compulsory Purchase Bill
3.7 p.m.
Lord Bassam of Brighton: My Lords, on behalf of my noble friend Lord Rooker, I beg to move that the House do now again resolve itself into Committee on this Bill.
Moved, That the House do now again resolve itself into Committee.—(Lord Bassam of Brighton.)
On Question, Motion agreed to.
House in Committee accordingly.
[THE CHAIRMAN OF COMMITTEES in the Chair.]
Clause 42 [Applications for planning permission and certain consents]:
[Amendment No. 114 not moved.]
Lord Hanningfield Lord Hanningfield moved Amendment No. 114A:
Page 26, line 25, leave out "they think" and insert "are"
The noble Lord said: Since we began discussing this Bill in Committee, we have tried to assist the Government in their aim of passing a well drafted law by bringing to their attention instances where we have had reservations about, for example, imprecise terminology or the use of unnecessary words. We have asked the Government to clarify their thinking with regard to the consequences that may flow from specific phrases in the Bill.
I am moving this amendment to Clause 42 with similar aims in mind. I should like to probe the Government's intentions in relation to the discretion of local authorities to decide what they think is necessary to support a planning application. Perhaps the Minister can say whether he thinks it is possible that, as the Bill stands, two local planning authorities that share a border with each other could demand entirely different particulars to be included in a planning application for a development that is essentially the same.
I hasten to add, of course, that local autonomy and local discretion are something that we have advocated throughout the passage of the Bill through this House, so we might welcome the language as it stands. What I am really seeking, though, is some clarification regarding the issue of local planning authorities' freedom to decide what is necessary for inclusion in planning applications; how this freedom relates to development orders specifying what applications should contain; and whether the Government believe that the system of deciding what must be included in planning applications is simple, transparent and consistent or whether they take seriously our concern that this particular part of the planning system is potentially inconsistent and confusing to developers. I look forward to the Minister's response. I beg to move.
Lord Bassam of Brighton: I am grateful to the noble Lord for his amendment. I entirely understand his desire for some further elucidation on the point. Amendment No. 114A would, as I understand it, allow a local planning authority to require that an
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application for planning permission includes such particulars as "are" necessary rather than particulars "they think are" necessary. I understand the rationale behind the noble Lord's amendment.
Similarly, Amendment No. 114B would require a local planning authority to require that an application for planning permission includes such supporting evidence as "is" necessary rather than the evidence "they think is" necessary. The noble Lord was kind enough to spell out his reason for it. As I understand it, the noble Lord is concerned about the planning authority boundary issue.
The draft clause does allow a local planning authority to require whatever evidence it sees fit as part of the particulars and supporting evidence of an application. The information required for assessing a planning application will vary, depending upon the nature of the proposed development.
I am sure the noble Lord would argue—particularly given his background in local government—as I argue with my own background in local government—that local planning authorities need to be able to exercise judgment and discretion in specifying information that they think should be included in an application. The amendments themselves would remove an element of that local planning authority discretion. I am sure the noble Lord does not have that intention because, like myself, authorities will all want to express maximum local discretion—reflecting local interests, local pressures, local opinion and so on—when planning applications are brought forward.
I am also unclear what the noble Lord is seeking in terms of the content and particulars of evidence in an application. I am interested to know what extra elements of evidence the noble Lord is seeking to bring forward. That is quite an important part of this whole issue.
There is no precise answer to the noble Lord's point. The characters of two local authorities with a common boundary may well be different in terms of what they see as important for particular developments, particularly where a development site spans a boundary. You will from time to time get disputes and disagreements as to what is most appropriate. What we are trying to do with this and earlier legislation is to provide a common framework and a common understanding of what is appropriate on a cross-boundary site. Ultimately, each local authority will have the discretion to decide what it thinks is appropriate in terms of supporting evidence for particular applications.
It is important that we leave scope for local authorities to exercise judgment and discretion about the information they require when assessing applications. Our job as legislators is to provide a rational framework which can have common application in every locality. Obviously the amendments will not be pressed this afternoon, but were they to be successful I think they would probably prove to be a straitjacket. I am not confident that that is a good thing nor that the noble Lord thinks that is a good thing.
3.15 p.m.
Lord Avebury: There is only one question I want to ask the Minister. Can he explain in a bit more detail what the distinctions are between the matter that is covered by the development order, which is dealt with in subsection (1) in the inserted Clause 62, and the matters which are within the discretion of a local planning authority in subsection (3)? All we know about the relationship between the two provisions is that anything which the local planning authority may stipulate as being necessary under subsection (2) must be consistent with what is in the development order. But that does not tell you anything about the substance of each of the two categories of provision.
Lord Hanningfield: Before the Minister answers, I totally agree with what he says. I do not want, in any way, to put more direction on the local authority. I want to give them as much discretion as possible. But obviously there are cases when sometimes it is very important that the local authority consults its neighbouring local authority about a larger cross-boundary development. I wonder whether some advice could be given in the guidance, particularly about consulting. That might get over the point. Perhaps the Minister could answer the noble Lord, Lord Avebury, as well. It is not a point we want to be difficult about; it is something we are trying to clarify to make certain that some large cross-border developments do not get held up because of the new system. We also do not want to confuse developers in the early days of a new system.
Lord Bassam of Brighton: I am very grateful to the noble Lord for his further elucidation, because he is hitting real problems here. From my time in local development I can certainly think of cross-boundary planning applications where it seemed to take for ever to get the local authorities in a straight line, as it were, before you could get some consented agreement for an application to move forward. The noble Lord is absolutely right—these things can lead to horrendous delays and there is a lot of opportunity on these grounds for people to hold up desirable developments with a strong public interest behind them. The whole purpose of the legislation is to enable things to be speeded up, and for there to be a framework which is understood so that in any area where, in particular, an application crosses boundaries, there is pressure to agree a consensual position to enable sensible planning applications to be brought forward and pushed through, particularly where there is strong public interest behind it.
The noble Lord, Lord Avebury, asked a question that I would like to reflect on. I think it is slightly more complex than he realises and I cannot deal with it adequately from the Dispatch Box this afternoon. The noble Lord has made a useful intervention and I will provide him with a response and share it with all noble Lords with an interest in the Bill.
Lord Hanningfield: I thank the Minister for his comments. Perhaps the Government might reflect on the discussion we have had on these issues for the future. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 114B not moved.]
Baroness Hamwee Baroness Hamwee moved Amendment No. 115:
Page 27, line 33, at end insert—
"(9) Any application for planning permission shall not be entertained by the local planning authority unless it is accompanied by an access statement.
(10) An "access statement" is a statement which demonstrates that the applicant has fully considered how the works in question will provide reasonable access and ease of use for people, regardless of disability, age or gender.
(11) Any access statement—

(a) shall be made in such manner as may be prescribed by regulations under this Act; and

(b) shall include such particulars and be verified by such evidence as may be required by the regulations or by directions given by the local planning authority under them.

(12) After section 11 of the listed buildings Act (certificate as to the applicant's status etc) there is inserted the following section—
"11A ACCESS STATEMENT

(1) An application for listed building consent shall not be entertained unless it is accompanied by an access statement.

(2) An "access statement" is a statement which demonstrates that the applicant has fully considered how the works in question will provide reasonable access and ease of use for people, regardless of disability, age or gender.

(3) Any access statement—

(a) shall be made in such manner as may be prescribed by regulations under this Act; and

(b) shall include such particulars and be verified by such evidence as may be required by the regulations or by directions given by the local planning authority under them."

(13) After section 2 of the Ancient Monuments and Archaeological Areas Act 1979 (c. 46) (schedule of monuments) there is inserted the following section—
"2A ACCESS STATEMENT

(1) An application for scheduled monument consent shall not be entertained unless it is accompanied by an access statement.

(2) An "access statement" is a statement which demonstrates that the applicant has fully considered how the works in question will provide reasonable access and ease of use for people, regardless of disability, age or gender.

(3) Any access statement—

(a) shall be made in such manner as may be prescribed by regulations under this Act; and

(b) shall include such particulars and be verified by such evidence as may be required by the regulations.""

The noble Baroness said: In moving Amendment No. 115, I shall speak also to Amendment No. 117. Both amendments are in the name of the leading proponent, the noble Baroness, Lady Wilkins, who is unable to be here today.
Amendment No. 115 is about access statements. The purpose of both amendments can be expressed probably more briefly than the amendments themselves. The first of the two would require developers to submit an access statement with a planning application to demonstrate how the scheme would be accessible and inclusive.
We have already touched on the difficulty arising from the fact that questions of access are currently addressed much too late in the development control process. Under Section 76 of the 1990 Act, development attention is drawn to this on its being granted planning permission, and later at the stage of building regulations approval. If good access is not part of the design from the start, it will obviously be difficult to make significant alterations to an existing design or, indeed, to an existing structure. Retrospective changes are not likely to achieve the same level of accessibility, and bolting-on solutions can be a good deal more costly.
The new duties of service providers to make changes to facilitate access will come into force in October this year. The good practice guidance from the Office of the Deputy Prime Minister encourages planning authorities to urge applicants to submit access statements with their applications. The ODPM argues that access statements are key to developers taking seriously the issue of inclusive design at the earliest stage. It suggests that if such a statement is not submitted, a local authority could reject the registration of an application.
The Government's own Disability Rights Task Force has recommended that Section 76 of the 1990 Act be revised when a suitable legislative opportunity arises. If this is not the opportunity, I am not sure what is.
In Committee in the Commons, the Minister, Yvette Cooper, indicated that the Government would consult on whether the access statement should be a required document to accompany planning applications. She suggested that the Government could use order-making powers in this connection. I understand that later—not in the House—the Minister with responsibility for planning said that access statements might be required only "in appropriate circumstances". I believe that that is the phrase that the noble Lord, Lord Rooker, has used.
Therefore, while I should obviously be delighted if the amendment were accepted, although we shall have other opportunities to take a bite at the cherry, let us at least, if we can, find out this afternoon exactly what the Government propose, how firm their commitment is, what the timetable is and, if there are to be exemptions, what type of applications would be exempted.
The second amendment—Amendment No. 117— would place a new duty on planning authorities, when considering planning applications, to have due regard to the need to ensure that reasonable provisions are made so that buildings and the approaches to them are accessible to, and usable by, people, regardless of
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disability, age or gender. In its good practice guidance last year, the Office of the Deputy Prime Minister conceded that. It said:
"Whilst there may be many examples of new public and commercial spaces and buildings that have reached the highest standards of inclusiveness, this has often been achieved by one of the parties … taking a leading role, with others having to follow. However, there are still many inaccessible environments throughout the UK. In many cases this is because schemes have been granted planning consent without any party in the process properly assessing whether the scheme would result in an accessible environment".
The example to which I want to refer is one that is very close to home in the Office of the Deputy Prime Minister—that is, City Hall on the south bank of the Thames. It is near Tower Bridge but not very near a public place where those with any kind of mobility difficulty can be dropped off by cab or by car unless they are among the happy four, I believe, who have taken their place in the queue to obtain a parking space underneath the building. That is the number of disabled user spaces available.
On the day that Her Majesty the Queen opened City Hall, I took as a guest a lady who admitted to being 86 years old, although I am not sure how old she is. She had considerable difficulty. Until then, I had not realised just what a long way the building was from the highway. Once one is inside City Hall, one tramps a long way up gradients even to reach the lifts. I consider it a disgrace that London's newest government building has been designed with those inherent difficulties. I believe that the Mayor is considering extreme action and I hope that he finds a way to deal with the problem. However, it is difficult to see how it can be rectified after the event.
Having said all that, I shall return to my script. The amendment would enable the Government to meet their manifesto commitment to revise Section 76, to which I have already referred. On 22 January, when debating another amendment concerning disability, the Minister said:
"Believe you me, there is no attempt whatever to marginalise the issue, make it an add-on or regard it as an afterthought. The whole thrust of the way we intend to approach this issue is that nothing gets built unless these issues have been considered".
At that point, we were talking about regional spatial strategy, but I believe that the same thing applies. He went on to say that the Government,
"want to be wholly positive about this matter",
and would,
"give further reassurances and provide further details on different aspects of the same issue when we come to later clauses of the Bill".—[Official Report, 22/1/04; cols. 1206–07.]
I assume that that is the point that we have reached, and I hope that the Minister can give the reassurance that many people are waiting for. I beg to move.
Lord Addington: I rise briefly to add to what my noble friend has said. I believe that Amendments Nos. 115 and 117 are in the spirit of what is recommended at present and, specifically in the case of Amendment No. 117, that they would fit nicely into what is being discussed in the draft disability Bill. They would mean that local authorities would have a duty

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to take account of the needs and interests of disabled people and promote their causes and, indeed, their inclusion.
Amendment No. 117 seems to be exactly in that mode. Would the provision proposed within the amendment form a necessary part of the local authorities' planning procedure? If an engine does not already exist to allow local authorities, when dealing with planning statements, to take account of the needs of disabled people, I recommend that we include Amendment No. 117. Simply, if there is such a duty without the necessary planning structure, we shall have more problems.
Lord Lucas: I strongly support the spirit of the amendments. I am not sure that I am entirely at home with the wording, but I support the idea that something should be in place right at the beginning of the planning process which sets out what is being done and, through guidance, what the Government have said should be done to provide better access for the disabled and elderly. The sooner we have that kind of thing in force, the better. As the noble Baroness, Lady Hamwee, said, it should be up-front and at the beginning of the process. That seems to me entirely right.
As for the wording, proposed new subsection (10) in Amendment No. 115 refers to,
"how the works in question will provide reasonable access".
However, I should much rather see the words,
"how reasonable access should be provided in the context of the works in question".
Otherwise, the type of situation will arise where you submit a planning application to change the glazing bars on a third-floor window and you are asked how that affects disabled access. Unless you are thinking of providing a catapult on the ground floor, I rather doubt that there is any way in which that could be done.
Many planning permissions concerning alterations to existing buildings involve great constraints on what can and should be done. I have just redone a house myself. I think that I would have been in considerable difficulty if I had been asked to make it disabled-friendly due to the structure that was there already. Indeed, it would have necessitated the destruction of the historic character of the building even to get on to the ground floor because it had a very narrow entrance.
I cannot see how one can provide for that in primary legislation, which has to be absolute. But we need a very sensible and sensitive set of guidelines to make sure that what will apply to a great number of existing buildings is a reasonable set of requirements and that the bias is towards making sure that public buildings or those used by the public receive much more attention than private houses. After all, if one fails to provide access for the disabled it is oneself and one's friends and family who suffer.
Lord Cobbold: Following on from that point, there are certain historic buildings which open to the public where these very severe problems arise.
3.30 p.m.
Lord Bassam of Brighton: I am grateful to all speakers who have made a contribution to this short discussion. I am very sorry that the noble Baroness, Lady Wilkins, is not here to listen to what I have to say and did not move the amendment. What has been said is of value. I believe that we are all seeking the same end. I hope that what I have to say will provide a measure of reassurance.
Clause 42 introduces new powers to make an order. The order can specify the form and manner in which a planning application must be made, what must be included in an application, and the documents and other material that must accompany it. The powers are intended to introduce a standard application form for all planning authorities.
Before making any prescription, we would seek stakeholders' views on the forms as part of our proposed consultation which is due shortly. But without prejudging the consultation—although in a way I am going to do so in what I say—I wish to make it well understood that we would want to see an access statement, or something which demonstrates how the project will meet certain provisions of legislation and related codes of practice. That will ensure that the needs of the disabled are addressed. That is one of the documents that would accompany the form in appropriate cases. The use of the term "appropriate cases" means no more and no less than when it is right and necessary to consider its application. It would not be right in the kind of case to which the noble Lord, Lord Lucas, referred or where one is fitting a dormer extension. It is not an expression which is being used to exclude things specifically, but simply to recognise the reality of different kinds of planning application.
It is very important that we see an access statement when it is appropriate. That would mean that access would have to be considered and be shown to be considered, right at the start of the application process. We probably all agree that that is important. Those applying for planning permission would be required to demonstrate how their proposals contribute to an inclusive environment and local planning authorities would have to consider this alongside the other requirements.
There are also links here to the work that is continuing in relation to outline planning permission to which my noble friend Lord Rooker referred at Second Reading. He was clear at that time that we would be willing to consider the retention of outline planning permission if it provided the opportunity for the provision of more information than is often the case at present. My noble friend made it plain at the time that at the very least this would need to cover among other things the key design principles and address the important issue of access.
I hope that from what I have said as regards this issue and what I said in earlier debates on the new planning system—I explained that development plans must contain clear and comprehensive, inclusive access policies—those Members of the Committee who have been involved in this debate can see that our

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proposed system seeks to ensure that access is recognised as a legitimate planning consideration from the outset.
What I have said means that Amendment No. 117 is probably unnecessary, as the new system places access on a level playing field with other planning considerations. Local planning authorities and the Secretary of State will have to pay "due regard" to access issues in considering applications.
I am not convinced that there needs to be a specific requirement in legislation to cover the issue of access statements. If I understand the amendments properly, the question has to be asked whether the movers and supporters of the amendments really mean to suggest that all planning applications, including household applications, should be accompanied by an access statement. That is somewhat heavy-handed and overly bureaucratic. Personally, I believe that the system is in danger of being just that. We have to try to minimise that as much as we can. Having said that, I would not want to undermine the important part that access statements play. I make it plain to everyone with an interest that this is a matter which is more properly dealt with in guidance and as a proper consideration when a planning application is appropriate and it is brought forward. With what I hope was a very positive response to the amendment which has been moved in good spirit, I trust that the noble Baroness will feel able to withdraw the amendment.
Baroness Hamwee: I am grateful to those who have taken part in the consideration of the issue. As the Minister and other Members of the Committee may well be aware, the amendment comes from the Disability Rights Commission and other organisations which were mentioned by the noble Baroness, Lady Wilkins, when she moved an amendment at an earlier date. This is not their point and it is entirely personal: it seems to me that for an access statement not always to be required risks the system not working very well. I would argue that the Government should at least consider whether it is appropriate for there always to be an access statement even if the words "not suitable" or something to that effect appear, to draw attention to the issue right at the start.
There are a number of other situations. The noble Lord, like myself, will be used to papers going to local authorities which specifically consider a number of issues and which may say that there are no financial implications. At least, attention has been drawn to the issue where it may be necessary not just to tick a box, but actually to consider what is right.
To pursue the example used by the noble Lord, Lord Lucas, one would not want to suggest that there should be a parachute down from a window on the outside, but it might be important to ensure that the window could be opened from the inside by someone who has difficulty in reaching it. I do not believe that one can necessarily write off examples immediately.
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Can the Minister give any more detail about the timetable for the consultation and further work that he mentioned? Can he also say something about Section 76 of the 1990 Act and its future? Various organisations have expected that this is the moment when the Government would deal with it. I do not know whether he is in a position to do either of those things this afternoon.
Lord Avebury: As regards historic buildings my noble friend may be aware of an example very close to home. I asked the Chairman of Committees recently whether it was possible for disabled people to have access to the Galleries here. He wrote to me saying that it had been ruled out because lifts could not be provided within the Palace of Westminster to our Gallery because of the historic building requirements. Alternative arrangements were made for disabled people to listen to our proceedings by coming to the Bar of the House. That is an example where access had been considered: it had been ruled out elsewhere for the reason which the Chairman of Committees gave. It did not mean that we had not considered the possibility of access, but we were unable to implement it.
Lord Bassam of Brighton: I am not able to comment further on what the noble Lord, Lord Avebury, said. It is a consideration, where we have a historic building. We have probably all come across a contradiction between our intentions and the limitations of a building that was not designed to be as accessible as we would want it to be now for people with disabilities.
Consultation on guidance, which was mentioned by the noble Baroness, will take place in the next few months. That can mean a lot and a little, as we are aware. I will try to be more specific and I will press officials for a tighter timetable. The other points made by the noble Baroness were good ones. I am sympathetic to the points that have been made and we will give them further consideration. I cannot promise more than that because to do so would be wrong. However, they are important points.
Baroness Hamwee: I thank the noble Lord and beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
Clause 42 agreed to.
[Amendments Nos. 116 and 117 not moved.]
Lord Bridges Lord Bridges moved Amendment No. 117A:
After Clause 42, insert the following new clause—
"POWER TO REGULATE USE OF EXTERNAL LIGHTING
In the principal Act after section 225 (power to remove or obliterate placards and posters) there is inserted the following section—
"POWER TO REGULATE USE OF EXTERNAL LIGHTING
Regulations under this Act shall make provision for restricting or regulating the use of external lighting so far as appears to the Secretary of State to be expedient in the interests of amenity or public safety.""
The noble Lord said: I speak on this subject as a member of the Campaign to Protect Rural England living in East Suffolk. This is not an easy matter and I found the CPRE document circulated to some of us helpful— one might even say illuminating.
We have become accustomed to bright lights, and more of them, and our opinion of the need for external lighting will vary according to circumstances. Clearly, when driving on a busy motorway at night, at this time of year, good lighting improves safety. But when I look out of my window on a clear summer night and see the western horizon 20 miles away, brilliantly lit from the operations at Felixstowe docks, which operate round the clock, I ask myself: do they need to be so brilliant?
No doubt those interested in astronomy would have stronger views. I dwell for a moment on astronomy. Some 20 or 30 years ago it was found that the observations made at the Greenwich Observatory were becoming increasingly difficult because of the ever more powerful street and other lights in London. A long-term decision was made to transfer the observatory to Hurstmonceaux in Sussex, at considerable expense. This was done over a period of years. The result was generally well received until it was discovered that the lighting from Brighton made observation as difficult as it had become in London. So, another decision was made to join other European countries in siting their outer-hemisphere observations from an island in the distant Atlantic, on the Azores, I believe, where conditions are better.
This must seem a strange introduction to this subject, but I suggest that astronomy is likely to become an even more important subject than it is today. In the next century we may become increasingly preoccupied by the danger of collision with large objects in outer space, which has been the subject of some recent debates in this House. The growing intensity of illumination on our planet may have a direct bearing on the safety of our successors.
I suggest that some degree of prudent control over external lighting might be advisable for this and for another reason—the desirability of avoiding the wasteful use of electricity. Recent debates have shown the anxiety felt by many at the profligate use of power and its environmental effects. This is germane to the Energy Bill now proceeding through your Lordships' House. We seem to be moving from a period marked by the abundance of cheap electric energy to a different world in which we would be more cautious about our reliance on electric power.
It is difficult to say what form such restraint might take. I believe that a parliamentary committee in another place had proposed making obtrusive light a statutory nuisance. But that would be difficult to enforce. So, my amendment would approach the topic in a more moderate way, by empowering the Secretary of State to make regulations under the Town and Country Planning Act 1990. This follows the precedent that the Secretary of State already has the power to control advertisements with a similar set of words. I suggest this might be an appropriate first step. It is permissive, not mandatory, and it gives the
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Government discretion over the steps they may take. I hope the Government will be able to respond positively to this suggestion. I beg to move.
3.45 p.m.
Lord Hanningfield: I add our support to the amendment, if only to control some of the increasingly bizarre Christmas lights we see every year, particularly last year.
Lord Avebury: I, too, support the amendment. It concerns not only the professional astronomers mentioned by the noble Lord, Lord Bridges, who are able to afford the movement of expensive telescopes to an area of the world where they are not overwhelmed by the street lighting, but also the flourishing amateur astronomical community we have in this country. Their interests should be considered, particularly when the effectiveness of the lighting is not impaired if the direction is altered so that it does not shine into the sky. There are plenty of technical methods of ensuring the lighting is directed downwards without casting the same amount of light into outer space, for example directing the lighting on motorways downwards so that it illuminates the carriageway. It would be useful if the Secretary of State had these powers and I hope the Minister agrees.
Lord Lucas: I am disappointed by what my noble friend said about Christmas lights. I had the great pleasure of spending Christmas in Melbourne in Australia. The street I stayed in was blocked with cars from 6 p.m. until midnight because everyone came to see the Christmas lights. It was a wonderful festivity of individual enterprise producing something that was worth seeing. The more we have of that in our duller suburban streets, the better. However, I think street lighting is one of the main sources of light pollution. There are technical solutions that ensure there is little light escaping sideways and upwards. However, does planning permission bite on these things? Is there a requirement for local authorities to go through the planning process in order to decide what kind of street light is put in?
Baroness Hamwee: The Minister may use the Blackpool illuminations defence in response to the amendment, according to what the noble Lord, Lord Lucas, said.
I was interested in the response to the amendment moved by my honourable friend the Member for Ludlow in Committee in another place.
The Minister told the Committee that the UDP for the London Borough of Sutton has a policy that developments and proposals involving the use of external lighting and floodlighting will be permitted only where there is no unduly adverse impact from increased levels of light pollution on the environment or on the amenities of neighbouring occupiers. I do not know whether that was introduced when my noble friend Lord Tope was leader, but it is an innovative authority. That to me does not suggest that the matter

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can be dealt with outside the regulations proposed, but that the Government might have a role in disseminating that sort of approach.
Lord Marlesford: I support the noble Lord, Lord Bridges, in his amendment. Light pollution is a relatively recently recognised subject. Some years ago, when I first raised the matter in the House, the Minister responded by stating that heavy pollution had to be dealt with first and seemed quite unaware of the issue. Frankly, I do not remember under which government that was. At any rate, the concept of polluting by light had not at that time sunk through to Whitehall.
What the noble Lord, Lord Bridges, asks for is extremely modest and, in a Bill of this kind, it would be desirable to take the opportunity to deal with light pollution. The amendment would merely give authority to the Minister to make appropriate regulations as and when necessary. Of course, one could remove all forms of intensive lighting from the night sky. The noble Lord, Lord Bridges, referred to Felixstowe. The fact is that Felixstowe works 24 hours per day and probably needs a good deal of light. However, I would not regard Christmas tree decorations, which have also been referred to, as a top priority for restriction.
Certain basic facts need to be considered. In order to light up the ground, we do not need to light up the sky. Technically, that is not necessary and has become increasingly less so. Certainly, it is true that in England, as opposed to Scotland and Wales where the situation is perhaps better, it is difficult to think of areas where the black night sky, "the starry, starry night", can be seen.
When I was chairman of the CPRE we commissioned a study of the United Kingdom from a satellite, on the same day of the year and at the same time, 10 years on. The difference was huge. More recently, a similar study was conducted and a further deterioration was seen. My noble friend mentioned the Christmas lights in Melbourne. The only time in recent years that I have seen the deep night sky was on a visit to the outback of New South Wales. That was a wonderful experience, and one from childhood which I had almost forgotten. We cannot get back to that. We cannot remove necessary lighting for road safety, pleasure, football matches, and so forth.
However, what we can do, and what I would ask the Government seriously to consider, is to introduce in the Bill, which is a good vehicle for this issue, a power for the Minister to make regulations. I am the last person to want over-regulation. The details of the wording and how such regulations are to be used would be a matter for sensible discretion. However, the Bill provides this opportunity. Even if the Minister does not like the particular wording of the noble Lord's amendment, I hope he will say that the
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Government are willing to consider taking this opportunity to address the issue, which will become increasingly relevant as the years go by.
Lord Chorley: I wish I could follow the noble Lord, Lord Marlesford, in his visit to the outback. The only time I went to the outback was to Ayre's Rock, which is in the middle of Australia, where all the hotels are hugely illuminated. So, that was something of a failure, but I appreciate the comments of the noble Lord.
All noble Lords who have spoken have said that light is now becoming a pollutant. Another pollutant, which we are not discussing, is noise. It would be difficult to see how we could discuss that under the Bill. To me, this is mainly a countryside issue. I do not mind really: in many senses, the more light we have in cities the better, provided that this type of regulation does not, as it were, escape the cities. I note the comments of the noble Lord, Lord Lucas, in that regard. Therefore, I support my noble friend's amendment.
Not being a professional in these matters, I do not know whether this would be best done by primary legislation. If that is impractical, one wonders whether, alternatively, it could be done by way of guidance. The Minister may say that this issue is included in guidance, in which case I should be delighted. As noble Lords have said, the amendment is quite modest. It merely gives the Secretary of State a power, and that seems to me to be appropriate.
Lord Tanlaw: I rise to support my noble friend's amendment on behalf of astronomers and, indeed, schools throughout the country. There is a real need in every town for a dark area, or access to a dark area, where telescopes can be used. Astronomy is one of the fastest growing subjects in schools. It is relevant to the future and yet, because of light pollution, teachers have little opportunity to introduce students to the reality of looking through a telescope.
It is unnecessary for town councils to ignore this issue. Any legislation which draws attention to it and allows for dark spaces for astronomers with access to the town will be beneficial, not just for pleasure but educationally.
Lord Cobbold: I, too, support the amendment. I feel strongly about the ability to see the stars. It is probable that a generation of children have grown up in an urban environment in this country not knowing that there are stars above. An important point which has been made is that a very large proportion of so-called "light pollution" is caused by local authorities in the form of street lighting. That needs to be taken into consideration in this debate.
Lord Brooke of Sutton Mandeville: I rise to offer the tiniest footnote, happily in positive antithesis to what was said by the noble Lord, Lord Bridges, about Hurstmonceux. In the late 18th century, two centuries before the events which have been earlier described, Archbishop Robinson of Armagh was anxious to

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transform Armagh, which is the head of the Catholic Church in Ireland as well as the head of the Anglican Church, into a university. There are no Lords Spiritual on their Benches today, but the Holy Spirit did work in the context of his ambitions.
In the run-up to any plans he might have implemented, the Royal Society reported that the best observations of Halley's comet in 1785 had been provided by a curate in County Tyrone. Arguably, that curate may have been the furthest observer of Halley's comet from London of anyone in these islands and clearly benefited from the darkness of the sky. The consequence of his contribution as admired by the Royal Society was that it was determined that an observatory would be built in Armagh. That is now the second oldest observatory in the United Kingdom. The Lords Spiritual will be pleased that the Archbishop of Armagh has consistently been the chairman of the trustees. That seems to me to be a very short, moral tale in support of the amendment moved by the noble Lord, Lord Bridges.
4 p.m.
The Minister of State, Office of the Deputy Prime Minister (Lord Rooker): I say at the outset that we have great sympathy with the intentions of the amendment. I agree with virtually every speech that has been made in the past 15 minutes. There is no question that this is a serious issue and it is right that it should be raised. The Bill provides an ideal opportunity for a brief discussion on the matter.
I shall not say that this issue has never been considered, but one of our difficulties has been in assessing the amount of light concerned. It is not the easiest thing in the world to assess external light for statutory planning control purposes. It is not as though Parliament has not addressed the issue recently. The Select Committee on Science and Technology in another place considered this issue and produced a report in October last year. That committee did not recommend the introduction of new planning legislation. It specifically addressed light pollution and astronomy.
I, too, was incredibly impressed by the CPRE document which was produced last summer, with the satellite maps referred to by the noble Lord, Lord Marlesford. I do not have a briefing on Christmas lights, and I am not sure of the context in which that was raised. The two references to Christmas lights could have been interpreted entirely differently: first, in the context of people going to see the wonders of Regent Street; and, secondly, in the context of people decorating their houses with such lights. Honestly, I would say, "The nanny state's gone too far".
Last December I saw some houses in the Essex and Suffolk countryside, in the middle of nowhere, which were wonderful sights. What the electricity bills were and how long it took to put up the lights and take them down I do not know. I would hate to think that we were introducing legislation against such a transient way of making an individual statement. Those are the two ways in which reference was made to Christmas lights.
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Any legislation that we brought in—this is not an excuse for saying no—would have to be enforceable in a practical way. If matters are to end up in the courts we will have to be precise. I have something positive to say: I believe that we should do something about the difficulties that we see currently in the planning system. The point about astronomy is incredibly well made. The planning system has long recognised that certain types of development should be allowed to take place without requiring individual planning permissions. The placing of lamp standards is one of those. It is not as though they do not have planning permission, but highway authorities have permitted development rights, which means that they have planning consent to put up or to replace street lighting. It is not as though there is no rule. They have the development rights. Those are usually of a minor technical nature. One reason is to reduce the burden on the planning system. There is a practical point there.
We believe that bad lighting practice, of which there is plenty, is best dealt with by raising public awareness, by providing help and guidance, and by more effective use of existing powers, such as development plan policies on and the use of planning conditions to mitigate the effects of external lighting.
It is not as though nothing happens now. We already have a document, Lighting in the Countryside, part 3 of which is entitled "Towards Good Practice". If I recall correctly, some time late last year I was asked about this matter at Question Time so I had occasion to look at the document. It provides practical advice to local authorities, to developers and to members of the public on what can be done to lessen the adverse effects of external lighting. It is freely available on the ODPM website. It makes the exact point that in order to light the ground to make roads safer one does not have to light the sky. Loads of examples are given.
However, we intend to introduce an annex to planning policy statement 23 which is entitled Planning and Pollution Control, an annex specifically on light pollution. We are going to beef it up, throw some light on the issue—I should not have said that—and raise its profile. The annex will have the same status as the parent planning policy statement and would be a material consideration in the preparation of regional spatial strategies and local development documents and in the consideration of planning applications.
Something practical is coming down the line that we believe will be added to existing procedures. Given the practical difficulties relating to enforcement and the potential burden on the planning system, we believe that this is the best way to deal with the issue. In another place the Select Committee considered the matter and took advice. It did not recommend the introduction of planning legislation—that is not to say there is no reason to do so—but there is a practical way to deal with the problem. We have identified the problem and we genuinely believe that there is a problem to be dealt with, but it is best dealt with by introducing the annex on light pollution. It would have the same status as the parent planning policy statement, so it could be used in arguments about

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planning permission and appeals in front of inspectors. I hope that is considered to be a positive answer and that the amendment is not pursued.
Lord Bridges: I am grateful to all noble Lords who have spoken in this brief and extremely interesting debate. It showed considerable support for the intentions behind the amendment. I never had any intention of suggesting legislation to control what people may want to put on their own houses, particularly at Christmas time. That was far from my thoughts. I thank the noble Lord, Lord Rooker, for his positive response. The idea of guidance sent to all local authorities is probably the best way ahead in the circumstances. I am grateful to him for what he has said. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 117B not moved.]
Clause 43 [Power to decline to determine applications]:
Lord Lucas Lord Lucas moved Amendment No. 118:
Page 28, line 28, at end insert—
"( ) The Secretary of State may issue guidance as to the meaning of the word "similar" in subsection (2)."
The noble Lord said: First, I declare an interest. I am associated with a consultancy called Green Issues, which, among other activities, advises development companies on their relationships with the communities in which they have developments. I have taken advantage of that connection to hold several discussions with their clients on this part of the Bill. Amendment No. 118 is entirely self-explanatory. I do not understand what "similar" is supposed to mean or where one is supposed to go for a meaning for the word. I hope for enlightenment from the Benches opposite. I beg to move.
Lord Rooker: Amendment No. 118 concerns repeat applications. Clause 43, which is a fairly long clause for reasons that are obvious, is intended to inhibit the use of repeated applications to wear down the opposition to undesirable developments. The amendment would allow the Secretary of State to issue guidance on what is meant by an application "similar" to one that had been refused.
Section 70A(8) of the Town and Country Planning Act 1990 defines applications as "similar" if the local planning authority thinks that the development is the same or substantially the same. The decision to decline to determine the application will be made by the local planning authority. That decision involves the local planning authority taking a view as to whether the application is similar to a previous application. Subsection (8) clarifies "similar" so far as it is practicable to do so: the development and the land must be the same or substantially the same. With the greatest respect, we cannot imagine what guidance could usefully add to that without being over-prescriptive. As it is already on the statute book, it can be tested in the courts if it is thought to be unreasonable. So it is not a matter of us inventing the
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wheel and having to redefine "similar" for the purposes of repeated applications. I hope that that is a satisfactory explanation to the noble Lord.
Lord Marlesford: I can see the force of the subsection. Presumably that would not apply if planning policy is changed between the submission of one application and another; for example, presumably a new PPS, as we now call them, which cast a different light on the matter, would not give powers to the local authority to refuse to consider an application that would have been inconsistent under the old policy, but which was perhaps similar, but was consistent under the new one.
Lord Rooker: As a lay person, I think that, if that were the case, that would be an abuse of the power of a local authority. I have experience of, as no doubt have Members of the other place, locations of developments where planning applications are refused but within a couple of months a similar application is submitted specifically designed to wear down the opposition. I had one case in my former constituency where there were at least half a dozen applications, each with slight variations, relating to one site, and yet the matter had been to appeal and had been refused. The applications were designed to wear down the local authority. Clearly, if in the mean time the planning policy changes, the case would have to be considered on its merits.
Lord Lucas: I am grateful for that explanation. I am concerned that the definition of "similar" to be applied here is quite narrow. I think we all agree that this clause is worth including in the Bill, but is it strong enough? If a development purely of houses is proposed and refused and the application comes back for a development of two-thirds houses and one-third light industrial, is that similar? It does not sound similar in the context in which the noble Lord expresses the matter, using the words from the principal Act. I would like some comfort on that, otherwise we are looking at something that is quite narrow in its effect. A change from 120 houses to 110 houses may be similar, but will the fact that you are developing the same area but proposing something that is substantially different—although the effect on the neighbourhood may be the same—be caught by this clause?
Lord Rooker: Again, speaking purely as a lay person, if an application is put in that is purely for housing, it fails and later comes back as a mixed development for housing and light industrial development, no one can claim that it is "similar". For a start, it would be a mixed development; it would not be dwellings. You might go in, for example, for 120 dwellings of three storeys, and come back with 110 dwellings on another application, most of which are three storeys but some of which are two. You might argue that those look pretty similar. If it is a mixed development, it is not the same as 100 per cent dwellings.

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From experience, the planning committees and the local authorities would probably have some case law on this anyway, as it has been in the legislation since 1990. It is just that they are now getting the power to knock out and not consider these similar developments. If developers want to appeal against it—if they think that the authority has abused its power—they have every right to do so.
Lord Lucas: Yes, so developers just have to be rather more inventive in their abuse of the system than they have been to date, which I suspect they will be. I am grateful for the explanation. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Lucas Lord Lucas moved Amendment No. 119:
Page 28, line 30, leave out "A" and insert "Subject to the Secretary of State having expressed himself satisfied with the performance of a local planning authority's development control function, that"
The noble Lord said: Amendment No. 119 concerns overlapping applications, which is a technique that many developers have found useful. It means that you can put in two essentially identical applications at the same time. One of them you dip into the appeal process, because you jolly well know that the local authority never decides anything in eight weeks, so you keep going with it on that sort of timescale. The other one remains on the table with the local authority, so that you can carry on with negotiations at its own pace. That way, you get the benefit of the timescales, which are laid down for appeal and for getting the thing done properly, but you keep discussions open with the local authority.
Clearly, where a local authority is performing well, and if it does not want an overlapping application in a particular case, that should be allowed. Where overlapping applications are applied to an authority that is habitually misbehaving and habitually taking far longer than it should do, to prevent it from doing so one can close a door on allowing people seeking planning permission to obtain it in a reasonable timescale. That is not the right way to go. I therefore suggest in this amendment that the ability of an authority to dismiss a second application as an overlapping one is restricted to those occasions where the local authority is regarded as a well performing authority, rather than one that has troubles. I beg to move.
Baroness Hamwee: I hope that the Minister will not be too tempted to accept this amendment. Apart from all the problems that we on these Benches have with the CPA process, the amendment seems to assume that quality in development control matters is pretty much limited to the time within which they are dealt. That may not be in the noble Lord's mind, but it is certainly how I read the amendment. I put it to him that not only is this not the right way to judge whether a local planning authority is "behaving itself, but to have such a provision would create a vicious circle. If there are more applications going in, the system gets more clogged up, rather than the problem being solved.
4.15 p.m.
Lord Bassam of Brighton: I am grateful to the noble Lord for moving the amendment and explaining his desire to deal with twin-tracked applications. Clause 43 will prevent twin tracking. The amendment would enable a local planning authority to decline to determine a twin-tracked application only if the Secretary of State had expressed himself satisfied with the authority's development control performance. The Government recognise that the performance of local authorities varies. Some authorities are good at determining applications; some are less good. We also recognise that authorities need to improve before we allow them to decline to determine twin-tracked applications. This measure will therefore be implemented only once the delays in the planning system have been substantively overcome.
Amendment No. 119 would require the Secretary of State, rather than to express satisfaction with local planning authorities generally, to consider each local authority's planning performance. The result would be that some local planning authorities would be able to refuse to determine twin-tracked applications, while others would not. This would lead to a degree of uncertainty for applicants. It would also lead to something of a bureaucratic nightmare for the Secretary of State in formally assessing each and every planning authority's performance level. Such an assessment would provide no guarantee that the performance would remain at the same level, although the power to decline to determine applications would remain.
Though well intentioned, the amendment offers the prospect of more bureaucracy—which the noble Lord does not like—and greater uncertainty. I can see the problem, but this is not the remedy. The noble Lord would be well advised to withdraw the amendment.
Lord Lucas: I know when I am faced with the inevitable. However, the noble Lord might, in some quiet hour of this Bill, turn his mind to the foundation hospitals experiment, which is about allowing well performing segments of public service additional powers and freedoms when they perform well, and that is judged from the centre. However, I agree that there is no requirement of consistency from government. I cannot say that we achieved it, and I do not expect it of this Government. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 119ZA not moved.]
Clause 43 agreed to.
Clause 44 [Major infrastructure projects]:
Baroness Hamwee Baroness Hamwee moved Amendment No. 119ZB:
Page 31, line 14, at end insert—
"( ) Any planning application that the Secretary of State declares is of national or regional importance, as designated through subsection (1), must be subject to an economic impact report.
( ) Any planning application for a major infrastructure project based on a site specific proposal in a national policy statement White Paper shall be considered by an inspector who shall be able to question the need for the specific development."
The noble Baroness said: Amendment No. 199ZB also has the support of the Conservative Front Bench. Clause 44 deals with major infrastructure projects. It,
"aims to ensure that major infrastructure projects are subject to an Economic Impact Report (EIR) and to exclude site-specific proposals in national policy statements to prevent them from reducing the scope of a public inquiry".
Those words are from the CPRE, which prompted us to table this amendment. The moment that I read them, I thought of Lord Hanningfield and Stansted— and perhaps also of the noble Baroness, Lady Hamwee, and Heathrow.
If White Papers are site-specific, they are not doing the job that we would see them doing of setting a framework to guide policy on specific developments. In another place, the Minister said that,
"economic … aspects are, to some degree, already included".— [Official Report, Commons Standing Committee G, 23/1/03; col. 386.]
The discussion there centred around roads and transport infrastructure, but particularly trunk roads, with reference to work done by the Standing Advisory Committee on Trunk Road Assessment. I accept that there is different legislation for transport, but the fact that SACTRA recommended that economic impact reports be produced before decisions on new transport infrastructure were taken forward can be read across to the provisions of the Bill as a matter of principle. In the debate, the Minister in the other place seemed to say that it was not a matter for primary legislation.
The Minister has already dealt with an amendment suggesting that Clause 38—the sustainable development provision—need not specifically be applied to development control matters because, indirectly, it applies through the development plan process. However, having such an economic statement would ensure that the whole issue was considered before an inspector got near the application.
It is important that there are safeguards in the planning system—not least the proposed duty for plans to contribute to the achievement of sustainable development—and that they are not bypassed. Major infrastructure projects are often likely to have a particularly damaging environmental impact. I would be interested to hear the Minister say whether, if and when there are regional assemblies undertaking the provisions, those assemblies will have a role in dealing with the projects. That is perhaps not central to the point that I am making. I beg to move.
Lord Hanningfield: I support the amendment. It is extremely important to the Government's proposals for major infrastructure projects. I am particularly engaged with such issues at the moment, as the noble Baroness, Lady Hamwee, said. I am leader of Essex County Council, which is hugely affected by the Government's proposals for the expansion of airport capacity in the south-east.
I recognise that there are good reasons for the Government to seek changes to the current system. Major infrastructural projects, by definition, concern
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planning issues that will have a major impact on our communities and will be extremely visible. To some extent, the Bill is testament to the fact that, in large part, confidence in the planning system rests on the ability to handle such planning matters sensibly and efficiently.
The amendment is an attempt to enhance the provisions of this part of the Bill, not to undermine them. The first part of Amendment No. 119ZB would require the Secretary of State to conduct an economic impact assessment of any planning matter, as the noble Baroness, Lady Hamwee, said, that he deems to fall within this part of the Bill. There are two reasons why it is important to deal with the issue in that way. First, it is simply right that, on matters of major development that will, as the noble Baroness said, have a huge environmental impact, a robust economic appraisal of the proposals should be carried out. Responsibility for doing that should rest with the Secretary of State.
Secondly, it is important that arguments about the economic impact should be in the public domain at an early stage. In another place, it was suggested that a statutory economic impact report would be unnecessary because an inspector would look into the economic effects of development as part of his examination. That is in no way acceptable. Local people affected by major planning proposals will not want to wait until an inquiry is held to make their voice heard. They will want to confront the issues head-on, as is happening with Stansted at the moment. By the time that an inquiry comes around, positions will have hardened, and there will be little chance of persuading people of the merits of a particular development. That might be okay, if we were not too concerned about taking a local community with us, but that would be wrong. We should make every effort to ensure that local people fully understand the rationale behind such planning proposals. Those in favour of development will welcome the chance to get robust economic arguments into the public domain as early as possible. I would have thought that the Government would seek to reshape local debate in that way.
The second part of the amendment is equally important. It would enable an inspector to examine the justification for a site-specific proposal in a government White Paper. Planning by White Paper is simply unacceptable. Of course, it is appropriate to use a White Paper to set out a broad national policy, but bypassing the checks and balances in the planning system by making site-specific recommendations is another matter. To some extent, the amendment would mitigate the worst effects by enabling an inspector to investigate the proposals as part of the inquiry process.
It is an important amendment to an important part of the Bill. It concerns a lot of people in the south-east, with regard not only to Stansted but to Heathrow and, ultimately, Gatwick. People should feel that there will be fair hearings about such proposals.
Lord Rooker: This is an important part of the Bill. The proposal has not turned up in the Bill in the way originally envisaged in the White Paper. We made some policy changes on the issue in 2002, and I shall come to them in a moment.
The first subsection in the amendment would require an economic impact report to be made on an application that had been designated as a major infrastructure project. The second part would require that,
"Any planning application for a major infrastructure project based on a site specific proposal in a national policy statement White Paper shall be considered by an inspector who shall be able to question the need for the specific development".
I shall not go into any current issues—it would be inappropriate for me to do so—but such requirements are not necessary in the Bill. During the inquiry, the inspector will consider all aspects of the application, including the need for the specific development, economic, environmental and any other impacts. I must make that clear: during the inquiry, the inspector will consider all aspects of the application, including the need for the specific development, economic, environmental and other impacts.
I am not fully up to date with debates in the other place, but the original proposals for major infrastructure projects, which were issued in March 2002, before ODPM was born, suggested that Parliament itself would consider the principles of such applications and that any subsequent inquiry would consider only the detail of the case. That was the original proposal in the White Paper. Parliament would therefore need to be aware of the economic impact of the application to be able to consider the case properly, and we envisaged that a statement of the economic impact would be laid before Parliament for that purpose. I do not devalue the importance of the issue, but after five minutes' discussion, my right honourable friend the Deputy Prime Minister and I took the view that it was not proper for Parliament to be involved in executive action anyway and that, secondly, the parliamentary processes were wholly inappropriate for the kind of proposal envisaged. We had to find a better way of doing it, so we made the proposal that is now in the Bill.
An inspector will consider the principle and the detail of the case through an inquiry. I make it clear: the inspector will consider the detail and the principle of the case for major infrastructure projects. We set out a three-part approach to handling planning applications for such major projects. It is important to have clearer government policy statements, which may be supported by clearer regional policies. In case anybody asks me, I make the caveat that regional assemblies will have no role in major infrastructure projects. The inspector works on behalf of the Secretary of State.
The second new aspect is that new inquiry rules will allow an inspector to make better use of inquiry time, while ensuring that everyone can adequately express their views. The matter is fundamental—we are not seeking to snuff out the right for any voice to be heard.
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Thirdly, there are new procedures in the Bill that will allow a team of inspectors to operate. A national policy statement White Paper will help reduce the argument at a planning inquiry about the need for a specific development on a particular site. The inspector should not have to spend inquiry time considering whether the need for a development exists, but should consider instead whether the need identified is outweighed by other factors. That would go to the principle of the application in any event.
An inspector must ensure that all relevant impacts of the specific development are considered by the inquiry. Therefore, all material considerations will be considered in his report with all relevant impacts of the project, such as those that are economic or environmental.
In other words, the requirements—those two limbs—in Amendments No. 119ZB are not necessary. They are fully covered in the current drafting of the Bill. There is no intention to say that the principle of the infrastructure project cannot be discussed at an inquiry, just because there has been a White Paper. That is not on. The principle and the detail can be discussed and considered. We just think that it would be easier if the Government did not have the "spineless" approach of the past of not wanting to make a proper statement; when no one knew what was happening and too much time was spent discussing the principle of an application, because there was no policy statement. Therefore, it is important that the inspector can look at all aspects of an application. We have made changes to speed matters up, so that we do not have the type of issue that caused the length of the Terminal 5 inquiry. But there is no attempt to snuff out people being heard. Our proposals are for making better use of inquiry time for discussing the merits of the case. The inspector has to weigh up the considerations on whether the need for, say, a major infrastructure project, is outweighed by other factors—in other words, whether the inquiry can go to the principle of the issue.
4.30 p.m.
Lord Hanningfield: Can the Minister clarify the matter regarding airports, which is a major issue? Many people feel that if maximum use has been made of all existing runways, another runway is not needed anywhere. Could that come up at the inquiry into an extra runway at Stansted, which we expect towards the end of next year? He seemed to imply that while in principle the Government may want another runway at Stansted, many people feel that we have made maximum use of existing runways and we do not need a runway at all. Can that issue of principle be challenged and talked about at an inquiry?
Lord Rooker: I shall not utter any word at all at the Dispatch Box that could be used at that inquiry. I made that absolutely clear when I was introducing the Government's response. That would be inappropriate. I hope that I have made the position clear. It could not be more clear. The matter is described briefly in my notes. Policy statements can help—that is true. But

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new inquiry rules will make better use of inspectors' time, while ensuring that everyone can express their views, and will set up new procedures that will allow a team of inspectors to operate. The principle of the application can be questioned at the inquiry in the terms that I have described.
Baroness Hanham: I have listened to the Minister's reply. Bearing in mind that all such matters blew up because of the Terminal 5 inquiry, I am not at all clear what will cut inquiry times for future major infrastructure proposals. He said that the inspector will be able to "curtail" or "restrict". What is to be restricted and who will be curtailed in those inquiries? It can and must not be those people who have objections. Presumably they will be able to harness their views, to have counsel and so forth. What is it that happened in the Terminal 5 inquiry that will not happen now?
Lord Rooker: There is probably more than one answer to that, but the specific answer is that a team of inspectors will listen to aspects of the inquiry concurrently. That will definitely make a difference. That does not snuff out the right of anyone to be heard, but it means that a team of inspectors who work for the main inspector can operate concurrently and are not required to operate consecutively. That is the single proposal that would have curtailed the time that the Terminal 5 inquiry took.
Baroness Hamwee: I can see that, but I also have some difficulty in understanding how it will work in practice, given that those who are objecting may wish to hear other people's objections and how the points are argued. It will be difficult to say: "That lot go into room A and the other lot into room B", and so on.
I may have misheard the Minister regarding whether it would be possible to question the need for a development, because I thought that I heard him say that that could not be done. That did not seem to work correctly with his welcome comment that both principle and detail can be considered. I may have to read it in Hansard. I entirely accept that the Government have moved a long way from their original proposals. That is welcome, although it crossed my mind that the issue was the sort of proposal that might be put into a Green Paper to divert people from everything else that was there, given that there was a row about it. I made that comment because I wished to know whether my question would be further addressed—
Lord Rooker: I believe that if tomorrow the noble Baroness reads my comments in Hansard, she will see that I have not spoken with a forked tongue. I know that she is not accusing me of that, but I have been clear that the principle as well as the detail can be covered by the inspector. I plead guilty to taking on policy responsibility for the issue and I have used my experience in the other place to suggest that the amendment is probably not a practical solution.
Baroness Hamwee: "Forked tongue" and the name "Lord Rooker" is a contradiction in terms. I certainly did not accuse him of that. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Hanningfield Lord Hanningfield moved Amendment No. 119ZC:
Page 32, line 10, at end insert—
"(c) to submit his report under subsection (7) by a specified date."
The noble Lord said: The amendment is straightforward and I hope that the Government will support it. Put simply, the amendment will require an inspector who is directed by the Secretary of State to examine a planning application on a major infrastructure development project to submit his report by a specified date.
To a large extent the Bill has been constructed on the altar of speed. So much of what is important in the planning system has been sacrificed in the name of speeding up the process. Furthermore, it sometimes appears that speeding up happens only in one direction. Local authorities are subject to schemes and timetables while the Secretary of State appears to be relatively unfettered by such considerations.
We are not arguing for an unnecessary and onerous addition to the Bill—simply that the Secretary of State should specify a date for the report from an inquiry to be submitted to him. We have left the Government maximum flexibility in how that specification might be made. Our intention is to help the Government with their avowed aim to speed up the planning process. I hope that noble Lords will support us. I beg to move.
Lord Marlesford: I support the amendment because it is important. I remember that when I was on the Countryside Commission for 12 years, one of our most important powers was the ability to have proposals "called in" when it was appropriate for them to be considered at a more national level. In a sense, this is analogous; it is looking at something which has a big environmental impact before specific proposals are put forward in order to be able to consider the environmental impact separately. That is a crucial consideration, particularly in the light of the Government's overall policy as reflected in the Bill.
Lord Rooker: Notwithstanding what the noble Lord, Lord Marlesford, has said, things have changed in the past few years. The amendment is unnecessary as there is already a provision within the Town and Country Planning (Major Infrastructure Project Inquiries Procedure) (England) (Rules) 2002 to allow the Secretary of State to set a date by which the inspector must make his report to him. That provision is carried through to the revised draft major infrastructure project inquiries procedure rules which we published for consultation on 18 October last year. That consultation has just ended, and officials are analysing the responses. Early indications are that the revised rules are welcome. Quite separately, we have also set our own departmental targets for ministerial responses to these inquiries.

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In other words, the amendment is unnecessary as there are procedures to ensure that this happens, and we have just conducted a consultation. So I hope that we can meet the spirit and the practicality behind the amendment.
Regarding all the pressures on local authorities, the note says "not true". Clause 53, which we have not yet reached, introduces timetables on the Secretary of State to make decisions. We have made it clear that all players in the planning system have a role to play, including the Secretary of State.
Lord Hanningfield: I thank the Minister for that reply. It is helpful, because he suggests that the Government are already going along the route that the amendment proposes. With that, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 44 agreed to.
Clause 45 [Simplified planning zones]:
On Question, Whether Clause 45 shall stand part of the Bill?
Baroness Hamwee: Clause 45 introduces the topic of simplified planning zones. I assume they are the same as the business planning zones referred to in the Green Paper, which says at paragraph 5.36:
"We need to ensure that the planning system is capable of meeting the needs of fast-moving businesses such as our leading-edge technology companies. Planning delays can prove a significant obstacle to the development of such companies".
The following paragraph states:
"We intend such zones to be specific to types of business that have a low impact on the surrounding area, such as clusters of high-tech industry".
So much for mixed development. Paragraph 5.38 states:
"We propose that every region should have at least one such zone to promote technology companies".
So much for the mixed economy.
This talk of the white heat of technology does not accord with the experience in London that creative industries—some of which, but not all, are indeed high-tech—make up the fastest growing sector. However, even if simplified planning zones were as effective as the Green Paper indicated, I would have great difficulty with Clause 45.
We have had simplified planning zones for well over a decade. The CPRE tells us that research for the Select Committee in another place provides evidence that the notion that planning is bad for the economy and competitiveness, which seems to be the underlying rationale for the proposal, is a myth. If the Committee is to be asked to agree this clause, no doubt the Minister will take the opportunity to explain what evidence there is that it hinders competitiveness.
It is possible—indeed, more than possible—that each local planning authority must keep possible simplified planning zones under review. As I said, they can establish them now. But proposed new Section 83(1B) refers to considering for which part or parts of
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their area a simplified planning zone scheme is desirable. That seems to allow no discretion—the provision does not consider whether such a scheme is desirable. However, I take heart from proposed new Section 83(2A) which says that if a local planning authority so decides, immediately it meets, as is customary, the Secretary of State or the National Assembly for Wales.
How does the proposal relate to local development orders? Do they not give the extra latitude that the Government are seeking to add to the simplified planning zone provisions that we already have? Are simplified planning zones to be imposed on local planning authorities? There is bound to be a concern about that.
There is also bound to be a concern that they will lead to development which is not sustainable by the use of greenfield sites. I am sure the Minister will tell us that we should not have such a thought in our heads but I am sure he can understand why there is a concern.
In our book, simplified planning zones undermine the planning system both because of the lack of normal accountability and because, as we see it, the quality of development is put at risk.
The Local Government Association published a survey of local authorities on planning reform in February 2003. In answer to the question how likely were they to introduce business planning zones—as they were then—in their authority area, one said very likely, four said fairly likely, 42 said not very likely and 53 said not at all likely. In answer to the question whether they had any concerns about the introduction of business planning zones, 68 per cent answered yes and 32 per cent answered no. It can be said that local authorities do not have a "Don't know" among their number.
We oppose the clause. Amendment No. 132A is consequential.
4.45 p.m.
Baroness Hanham: We also oppose the clause. I said on Second Reading that I thought the Bill had few friends. As it has progressed, we have seen that its friends are melting away. However, simplified planning zones have absolutely no friends as far as I can see. Business planning zones never had very many either, which is the reason they have not been taken up in the way I think people envisaged they would be.
Business planning zones are far from simple; they are quite complicated. A great deal of checking has to be done with the local authority. They have not fulfilled any of the ambitions that people had for them.
There are quite serious implications in Clause 45, some of which have been alluded to by the noble Baroness, Lady Hamwee. Proposed new subsection (2)(1A) states to what the provision applies; the Secretary of State is given the right to indicate whether there will be a simplified planning zone. The clause also gives the regional spatial strategy the role of identifying in which area of a local planning authority the simplified planning zone should be identified. That is not local planning by any stretch of the

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imagination—that is planning by diktat. It is one of the other worries we have about simplified planning zones.
The question of whether Clause 45 stands part of the Bill is clearly open to further thought. We would be grateful to hear why the Minister believes that the clause is necessary and what he feels about the views expressed by the Local Government Association, among others. As the noble Baroness, Lady Hamwee, said, there is practically no support for it. None of the other organisations which represent business or planning seems to have any faith in the clause or any desire to use it.
Lord Avebury: Will the Minister explain how the simplified planning zones will be introduced into the new system? I am puzzled by that. If they are not in the existing regional planning guidance, which becomes the RSS when the Bill is enacted, they would not be introduced until the RSS was modified at a later stage. That might be some time away. However, my noble friend informs me that the business planning zones, which do exist at the moment, would become simplified planning zones under the new system. I do not follow that argument. If the simplified planning zones are not mentioned in the regional planning guidance and cannot therefore feed across into the RSS, what are the mechanics of the process? The Explanatory Notes on Clause 45 state:
"A simplified planning zone can only be made where the RSS, or the spatial development strategy for Greater London, identifies the need for such a zone in the area of a local planning authority"
That need cannot have been identified unless it already appears in the regional planning guidance. Can the Minister offer an explanation?
Lord Rooker: I hope I can, because I am quite interested in the answer to that question. I may not be able to answer all the questions that have been raised, but I shall be able to answer some of them.
The purpose of Clause 45 is to change the existing system so that the simplified planning zones cannot be made by an authority unless the need for one has been identified in the regional spatial strategy. The noble Lord, Lord Avebury, pointed out that if the simplified planning zones do not become part of the regional spatial strategy until a revision, there is no practical purpose in identifying one. The revision would be the trigger mechanism.
The clause would enable the life span of a simplified planning zone to be a period of up to 10 years rather than restricting it to 10 years, so flexibility is provided there. The clause facilitates the creation of areas of high-tech businesses that will be referred to as "business planning zones", as they were introduced in the planning Green Paper in 2001. The business planning zones will provide a flexible planning regime to facilitate the rapid development of high-quality, high-tech business clusters and encourage investment for growth and regeneration. We envisage only one or two per region, if they are identified in the regional spatial strategy. It is not a question of misusing the
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changes in the planning law on a grand scale to pepperpot a region with dozens of such zones. We anticipate only one or two per region to be identified in the regional spatial strategy. We intend for them to be of high quality and low environmental impact. Their locations will be chosen to meet identified strategic needs.
Any business planning zone schemes brought forward will be required to undergo environmental impact assessments and public consultation, so we have no intention of snuffing out the opportunity for people to be consulted. The zones will serve a valuable and positive purpose. Therefore, we wish to proceed with them rather than knock the clause out of the Bill.
On the timetable, I am working only on the assumption in the Explanatory Notes, together with the reading of the Bill and the Notes on Clauses. If the zones are not in the regional spatial strategy, none will be recommended anyway. If there are none in current regional planning guidance, I have no information on how long it would take. The Government are not imposing the zones across the country as a quick fix once the Bill is enacted. That is clearly not a practical proposition. I do not wish to upset noble Lords, but I cannot understand the heated opposition to the prospect of simplified planning zones. Such zones will not present a major problem. They will be high quality, high-tech. They will not be low quality, nor will they cut corners on the environment or on public consultation. In fact, the very opposite is the case.
Lord Avebury: I think that the Minister has confirmed what I thought was the case; namely, that if the simplified planning zones are not already in the regional planning guidance, they are not introduced into the regional spatial strategy. Therefore, I would be grateful if the Minister would at some point provide your Lordships with a list of the zones that do currently exist in the regional planning guidance.
Lord Rooker: I would be happy to facilitate that as quickly as possible.
Baroness Hanham: Will the Minister also clarify the status of the business planning zones and who is dealing with them? It is abundantly clear from Clause 45(2) that it is mandatory that a regional spatial strategy should include the Secretary of State's regional planning guidance. The Secretary of State has the power to say that a certain field must be set aside for a business planning zone because that is in his regional planning guidance. If that is right, and if the regional spatial strategy imposes on a local authority, as it does under Clause 3, the obligation to institute simplified planning zone schemes in all or any part of its area, where does the consultation come in? When will the local community have an opportunity to put forward its views? Moreover, when will the local authority be able to say how the simplified planning zones fit into its scheme of things if it is told that it has to do it?
Lord Rooker: That is a very good question, for which, I profoundly apologise, I do not have an

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answer. I should have, but I do not. The consultation process cannot be avoided, but I cannot say at what point it will take place. I accept that the regional spatial strategy must be agreed by the Secretary of State. If the simplified planning zones are added to the regional spatial strategy at a revision, it would apply only to specific areas. As I have said, given that the regions are large and consist of dozens of planning authorities, we anticipate there being only one or two per region. Let us be clear about that.
I have forgotten how many planning authorities there are in the country. I believe that there are some 350—it is a pretty substantial number. If there are some 20-plus a region, we envisage only one or two business planning zones per region being identified in the regional spatial strategy. It is not a question of imposing them on every local authority. The consultation would take place at regional spatial strategy level; in other words, during the revision of the regional spatial strategy. At local level, there would be full consultation on the size and location of the proposed zone, plus, if required, the option of a public inquiry.
The timescale depends on the zones being identified through the next round of regional spatial strategies. I can say that with some confidence because I am told that there are no zones yet. I hope that that is reassuring, because it means that, whatever reasons people may have for opposing them, there is no prospect of any such zones being lifted out of the present process into the new one on the Act coming into force.
It gets even better. The first zones are still several years away. I rest my case.
It makes you wonder why we are doing this. Put it this way: it is obviously thought to be a useful tool for later use. It is not thought to be highly desirable next year.
Baroness Hanham: Will the Minister accept our amendment now?
Lord Rooker: No, we are debating clause stand part. I feel that my response to it has been wholly inadequate. This is the first clause stand part debate we have had and it is the first time that I have not had a speaking note for clause stand part—although I have a good speaking note on the amendment.
A fair point has been made, but with the notes I have had I hope that I have been able to give some reassurance that there is no hidden agenda. There are no zones and none will be transferred over. By implication from our previous debates on regional spatial strategies, they will come in only on the revision, so we can tell that they are several years away.
Baroness Hamwee: Before the last round of exchanges I was going to observe that "modified rapture" might correctly sum up the Minister's enthusiasm for this provision. I do not think that he has been inadequate; the proposal is inadequate.
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New Section 83(1B) says:
"The local planning authority must consider the question for which part or parts of their area a simplified planning zone scheme is desirable"
Despite that wording, I take it from what the Minister said that that does not mean that every local planning authority has to have one. I think that he is confirming that he said that.
I am not sure whether the Minister responded to my question about how this fits in with local development orders and whether they would achieve some of what these provisions are aimed at. I would be happy to leave that for a future debate, as it is now past 5 o'clock and I assume that the suddenly increased attendance in the Chamber is not because the blood is running really hot on simplified planning systems.
Lord Rooker: At the risk of boring colleagues, I shall put to bed the issue of the relationship between the business planning zones and the local development orders, which I hope will be helpful. The business planning zones are strategic and are identified in the regional spatial strategy. There will be only one or two per region. The local development orders are local tools to provide greater freedom to develop specified types of development.
These are obviously some way down the road, so there is plenty of time to debate them before they come in.
Baroness Hamwee: An example was given somewhere that local development orders might be used for the development of a business park, which seems to be rather close to all this. However, this is not the moment to pursue the issue.
Clause 45 agreed to.
Lord Bassam of Brighton: My Lords, I beg to move that the House do now resume.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.

BBC Chairman
5.3 p.m.
The Parliamentary Under-Secretary of State, Department for Culture, Media and Sport (Lord McIntosh of Haringey): My Lords, with the leave of the House I will now repeat the Answer to an urgent Question asked and answered in another place earlier this afternoon. The Question was to ask the Secretary of State for Culture, Media and Sport if she will make a Statement on the process of appointing a new chairman of the BBC. The Answer is as follows:
"I thank the honourable gentleman for his Question and welcome the opportunity to respond for several reasons. First, this gives me an opportunity to put on record the House's appreciation of the outstanding contribution made by Gavyn Davies, both as vice-chairman and as

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chairman of the BBC. I regret that we now have to appoint a new chairman. But the fact that Gavyn felt that he had to resign—his decision and his alone—is a mark of his honour and integrity. It also demonstrates his overriding concern for the interests of the BBC. I should also take this opportunity to pay tribute to Greg Dyke and to the inspirational leadership that he has brought to the corporation. Now it is, of course, for the governors to appoint his successor.
"These two resignations happened over the past week, which has been a very difficult period for the BBC, but now we must look to safeguard its future. The corporation needs strong leadership, stability and the capacity to engage fully with the charter review process, which is already under way. We will therefore move swiftly to appoint a new chairman.
"The process for appointing Mr Davies's successor will follow in full the Nolan rules. We shall publish a role specification against which all candidates will be assessed. The post will be advertised in the national press and on the Internet. Shortlisted candidates will be interviewed by a panel, including an independent assessor, who will be involved throughout the process.
"Under the BBC's Royal Charter, the appointment will be made by the Queen in Council, following this process, on the advice of Ministers.
"It is worth recording, for the benefit of the House, that Gavyn Davies was the first BBC chairman to be appointed through the transparent Nolan process, which is now the standard for public appointments. The Nolan process is held in wide respect, but because of the public interest in this appointment we have decided to enhance the process further. Dame Rennie Fritchie, the Commissioner for Public Appointments, has agreed to act as guarantor for the fairness of the process and will convene a scrutiny panel to ensure its integrity. The panel will be made up of privy counsellors from the three main parties.
"I hope that the names of the counsellors will be announced in the coming days and I hope that the double lock of Nolan and the scrutiny panel will give the staff of the BBC and the public the reassurance that they need about the independence of this process.
"I have often said that we all want a strong BBC, independent of government. Anyone who cares about politics, standards in public life and the quality of our media knows how much the BBC matters. It provides this nation and the wider world with a cradle-to-grave public service. Because of that, it should have the self-confidence to promote those values and defend them against all comers. Central to that independence and self-confidence is the leadership of the BBC chairman. I can assure that House that whoever is chosen will be chosen fairly, freely and with the best interests of the BBC at heart".
My Lords, that concludes the Statement.
5.7 p.m.
Baroness Buscombe: My Lords, I thank the Minister for being flexible on the timing of this Statement. The Opposition join the Government in wanting to put on record our appreciation of the outstanding contribution made by Gavyn Davies as vice-chairman and as chairman of the BBC. We, too, very much regret that a new chairman must now be appointed. We agree that the fact that Gavyn Davies felt that he had to resign is a mark of his honour and integrity. It also shows his overriding concern for the interests of the BBC.
I also take this opportunity to join the Minister in paying tribute to Greg Dyke. I entirely agree with the Minister's comments about Greg Dyke as an inspirational leader who has brought to the corporation a great deal of excitement, change and challenge. We accept that it is the governors who must now appoint his successor.
The corporation needs strong leadership, stability and the capacity to engage fully with the charter review process, which is already under way.
We welcome the fact that the new appointment will be overseen by Dame Rennie Fritchie. She comes with a distinguished record of having already exposed the Government for packing health quangos with their own placemen. Does the Minister accept that if the Government had accepted our amendment during the passage of the Communications Bill to place the BBC fully under the remit of Ofcom, this whole sorry business of having to find a new chairman might not have arisen? Does he also accept that the public are rightly concerned at the very powerful accusations by Greg Dyke that he and other journalists at the BBC were systematically bullied and intimidated by the Government and that that makes it all the more important that the process of appointing the new chairman is impartial?
As morale at the BBC is clearly extremely low, will the Minister ensure that the appointment of a new chairman takes place speedily, as the BBC needs clear direction at a critical time? Will the new independent process for selecting the chairman of the BBC be made permanent? Will this very welcome transparent process extend to all other board members of the BBC in future? Finally, I return to the DCMS document, Review of the BBC's Royal Charter, published in December 2003. Page 24 makes the position clear. It states:
"The BBC governors have a dual role of, on the one hand, strategic oversight, acting effectively as non-executive Directors, and on the other regulating the Corporation on behalf of the public interest. Comments are invited on whether these arrangements continue to be appropriate. Do they, for example, put the BBC in the best position to deliver on its commitments to its audiences whilst at the same time preserving its strength and independence from Government?"
We on these Benches have always argued that the BBC board of governors cannot both run and regulate the BBC. There is now an even stronger case for independent regulation of the BBC. The role of chairman is a tough challenge. Let us hope that the events of the past week will not deter the right candidate from coming forward.
5.11 p.m.
Lord McNally: My Lords, I shall not follow the noble Baroness on a number of her points, including whether the Ofcom magic would have worked. I suspect we shall return to those issues, perhaps on Wednesday and certainly at later discussions about the BBC Charter.
I hope that the willingness of the Government to respond to this Question today indicates that it has dawned on them over the weekend that winning a game 26-nil is not always the best outcome, even for the victors, and that there is therefore a new sense of realism about what should happen at the BBC. We only have to imagine how we would have looked at a happening abroad where there was a spat between the prime minister and the state broadcaster that resulted in the removal of the chairman and the director-general of that state broadcaster. One would say that that would be quite understandable in Mr Berlusconi's Italy or perhaps even in President Putin's Russia, but not in a country that has taken pride in the robust independence of the BBC from the government of the day for over three-quarters of a century. Therefore, any hint of the "berlusconisation" of the BBC is something that is not only difficult to say but to be resisted.
We welcome the reference to the Nolan rules and the scrutiny panel in the Answer. We also welcome the assurances that the final choice will be free from political influence. Does the Minister agree with me that politicians should not necessarily be barred from applying? We can think of very good examples—Lord Hill of Luton in the BBC, my noble friend Lord Thomson of Monifieth in the IBA—who have managed to carry out these responsibilities with great skill. It is important to get the right person rather than to worry about their politics.
I share the noble Baroness's concern about speed. Of course, the process should be thorough, but there is a need for somebody to be at the helm as quickly as possible. There is also a need—we welcome the mention of it in the Statement—for a commitment to an independent, well financed BBC as the iron pole of our public service broadcasting. Vested interests and the enemies of the BBC have certainly seen their opportunity in the past few days. It is important that those of us who value a commitment to this organisation should be prepared to fight for it.
That also goes for the Secretary of State and for the Minister's department, the DCMS. All too often over the past months there has been an impression that, in Lord Willis's immortal phrase, the DCMS has been like a cushion bearing the imprint of the backside that sat on it last. If we are to defend the BBC, the first line of defence must be a robust Secretary of State and a robust departmental responsibility for its integrity. The commitments in this Statement are extremely welcome. By their deeds we shall now judge them. The sooner a good, independent chair of the BBC is in place, the better for all concerned.
5.15 p.m.
Lord McIntosh of Haringey: My Lords, the Statement was about the process of appointment of the chairman of the BBC. I shall depart so far from the subject matter of the Statement as to welcome what the noble Baroness, Lady Buscombe, and the noble Lord, Lord McNally, said about Gavyn Davies's work as chairman and Greg Dyke's work as director-general. I know the Secretary of State will be very grateful to hear those views expressed in this House.
A number of the other points made do not relate directly to the process of appointment of the chairman of the BBC. It would not be appropriate for me to respond to them, other than to say that many of these issues will come up over the next couple of years in the consideration of the charter review. It is entirely appropriate that those views, which have been expressed, should be expressed now but the Government should respond to them only in the context of the charter review.
I can confirm, as the noble Baroness, Lady Buscombe, said, that it is the duty of the governors to appoint a successor to Greg Dyke as director-general. She asked me about speed and urged it on the Government. I entirely agree with her. My understanding is that press advertisements will appear within the next week. We have no intention of losing time or leaving the BBC in a position of uncertainty. I do not think that there is anything else I need to respond to, other than to reaffirm, as did the noble Lord, Lord McNally, that it is the intention of the charter review process to land up with a strong, independent BBC. I think that that is welcomed all round the House.
5.18 p.m.
Lord Barnett: My Lords, as oppositions do not like to congratulate governments too often, perhaps I could. I am happy to congratulate the Government on deciding to use the Nolan rules, even though I was appointed as vice-chairman by the then Prime Minister, the noble Baroness, Lady Thatcher. She also appointed me acting chairman on the occasion when, sadly, the chairman died. I am sure that the Government are right to press ahead as quickly as possible. I hope that they will not rush into accepting the advice of the noble Baroness, Lady Buscombe, that an independent regulator might have avoided a lot of these or any other troubles. I am not sure that Gilligan's error would have been spotted any quicker by an independent regulator. I hope all of us are concerned about a truly independent BBC with an independent chairman. In my experience, whichever political party held the chairmanship of the time, there was never any problem with its independence, even though the chairmen were not appointed under the Nolan rules. The Nolan rules are an improvement and I congratulate my noble friend.
Lord McIntosh of Haringey: My Lords, I am grateful for those congratulations.
Lord Puttnam: My Lords, given that the entire thrust of the Government's statement seems to be about independence, impartiality and the creation of an atmosphere of trust, does the Minister agree that very important people, such as chairmen of select committees, would do well to temper their expressions of prejudice during this difficult period? There is a real danger that in displaying prejudice they could discredit the entire system of evidence-based select committee scrutiny.
Lord McIntosh of Haringey: My Lords, in so far as that question relates to the process of appointment of the chairman of the BBC, I would say that everyone involved in the process of selecting the new chairman of the BBC should exercise the maximum restraint.
Lord Phillips of Sudbury: My Lords, how will the panel that is to make the selection be compiled? How will the role specification be alighted upon? Will there be any external consultation, particularly with the governors, on both those matters?
Lord McIntosh of Haringey: My Lords, it is not normal to name those who take part in the interviewing process other than to say, as the Statement says, that there will be an independent assessor. The answer to the second part of the noble Lord's question is that Dame Rennie Fritchie is already involved and will be involved throughout the process including in the selection of the panel of three Privy Counsellors and of the independent assessor.
Baroness Carnegy of Lour: My Lords, I understood the noble Lord to say that the process will be carried out according to the Nolan rules, that it will be scrutinised by the scrutiny panel and that a name will be put forward to the Prime Minister that he will put before Her Majesty. Will the Prime Minister be able to decline to put that name forward?
Lord McIntosh of Haringey: My Lords, the Nolan rules are very clear and we shall observe them in detail. They involve publishing a role specification against which all candidates will be assessed, advertising the post as widely as is necessary and, as I said in response to the noble Lord, Lord Phillips, shortlisting candidates who will be interviewed by a panel, including an independent assessor, who will be involved throughout the process. The final part of the question of the noble Baroness, Lady Carnegy, is answered under the Royal Charter which says that the appointment will be made by the Queen in Council following this process on the advice of Ministers. It does not mention the Prime Minister specifically. Clearly, the Prime Minister has at least a formal responsibility for any advice that he tenders to Her Majesty, but that is true of all appointments; there is nothing particular about this one.
Baroness Carnegy of Lour: My Lords, I hope that I may follow that up. Can Ministers decline to put the name forward? That was my point.
Lord McIntosh of Haringey: My Lords, I believe that in theory they could.
Baroness Howe of Idlicote: My Lords, given the grave circumstances under which these resignations of two such distinguished people have taken place, is it not appropriate that all the people who are to be on the scrutiny panel are named in the interests of greater transparency and, indeed, independence?
Lord McIntosh of Haringey: My Lords, we have said that we shall involve the Commissioner for Public Appointments right from the very beginning and that she has agreed to be involved. She will be assisted by a panel of three Privy Counsellors from the three major parties. If she wants to make recommendations about the process—so long as those recommendations do not involve a departure from Nolan procedures—of course we shall listen.
Lord Jopling: My Lords, while it must be right that Mr Davies and Mr Dyke resigned, will the party leaders be consulted in this process? Does the noble Lord not agree that there is some advantage in choosing a chairman with no political baggage? I say that as the noble Lord will know that over the years there have been a great many accusations from both sides of this House and another place that the BBC has been guilty of bias. I seem to recall that often that was attributed either to Labour "luvvies" or to Conservative contributors. Does he not agree that it would be an advantage if someone could be found to lead the BBC in the future who had sufficiently tough managerial experience and no political baggage?
Lord McIntosh of Haringey: My Lords, it would be most unwise for me to respond to suggestions regarding the right kind of person to lead the BBC whether it is the suggestion of the noble Lord, Lord Jopling, that he or she should not be a politician or the suggestion of the noble Lord, Lord McNally, that he or she should be a politician—I did not quite think that that comment constituted the job application when he said it. I shall not respond to that point if the noble Lord, Lord Jopling, will forgive me.
However, the noble Lord asked me a specific question regarding consultation with party leaders. We have said that Dame Rennie Fritchie will convene the scrutiny panel of Privy Counsellors. Who she consults in doing that is a matter for her.
The Earl of Onslow: My Lords, why will the names of those on the scrutiny panel not be published? Will the noble Lord give an undertaking that even though theoretically the Prime Minister can decline to accept the nomination and pass it on to Her Majesty, he will not do so?
Lord McIntosh of Haringey: My Lords, I did not say that the names of those on the scrutiny panel would

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not be published. The names of the three Privy Counsellors will be published. I said that it was not normal practice for the names of those on the interviewing panel to be published. My answer regarding the powers of the Prime Minister was a theoretical answer. It has always been the case that when the Prime Minister submits names to Her Majesty he has the power in theory to reject names.
Lord Baker of Dorking: My Lords, in view of recent events, will the noble Lord ensure that no judge is involved in this process?
Lord McIntosh of Haringey: My Lords, I shall not comment on the qualifications or background of any potential candidate for the job.
Lord Howe of Aberavon: My Lords, will the noble Lord accept an anecdotal reminiscence that the procedure outlined seems likely to be an improvement on the one that was followed when I was remarkably present in the early 1970s and suggested a name that provoked the Prime Minister to comment that the named person had much too high an opinion of himself, which led my noble friend Lady Thatcher to retort, "But most men do, Prime Minister"? That led to the appointment of Sir Michael Swann, who was not at all a bad choice in the circumstances. The present method seems more orderly than that which was then adopted.
Lord McIntosh of Haringey: My Lords, I am glad to have that wise contribution. It will have been noticed that I avoided doing what the Secretary of State did in the Commons, which was to read out the way in which the noble Lord, Lord Hussey, was appointed chairman of the board of governors of the BBC in a manner that was a long way from Nolan procedures.
Lord Jordan: My Lords, I welcome the speedy moves to replace the director-general and the use of the Nolan procedures. A strong character is needed. The acting director-general, Mark Byford, is such a strong character. I hope that his name will be put in the hat. A strong character is needed not only to maintain the world perception of a BBC that is independent of the pressures of government but also to counter the culture of contempt and arrogance that emerged from within its ranks and gave birth to the problems that led to the departure of the director-general and the chairman. I hope that such a character emerges.
Noble Lords in this House who side with those who declare their opposition to political interference must bear in mind that the present culture of contempt extends to everyone within the parliamentary system—there are no sides in that regard. I hope that the next director-general will recognise that such contempt does the BBC an injustice and will certainly undermine its attempts regarding the renewal of the charter. I hope that the procedure we are discussing will result in the director-general recognising that the
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BBC's arrogance regarding an anti-war campaign does not endear the British public to what is after all the best broadcasting system in the world.
Lord McIntosh of Haringey: My Lords, in response to the noble Lord, Lord Jordan, I am conscious that throughout these brief proceedings I am resisting any temptation to talk about candidates or the qualifications for candidates. In other words I am saying very little positive in response to the questions, but I am sure those who have taken part in asking questions will realise that those who are responsible for this process will inevitably be reading Hansard today. Therefore what they say is not running into the sand. In response to the noble Lord's specific question, the appointment of a director general is the responsibility of the governors and not of the process I have been describing today.
Lord Brooke of Sutton Mandeville: My Lords, on the Homeric precedent of Achilles and his Myrmidons, I declare an interest as being a Myrmidon of the BBC at a modest level. My question is about process. I am not quite clear whether I caught a response from the Minister to the question of my noble friend Lady Buscombe about whether this process which we are now adopting will be applied in future to governors at large.
Lord McIntosh of Haringey: No, my Lords, I did not answer that question because it is wide of the question of the appointment of the chairman of the BBC.
Lord Bragg: My Lords, is my noble friend the Minister entirely confident that once the new chairman or chairwoman has been appointed, the existing governors will be the right or the best people to determine the future of the BBC in the light of their performance over the past few months?
Lord McIntosh of Haringey: My Lords, that question is certainly wide of the process of appointment of the chairman of the BBC!

Planning and Compulsory Purchase Bill
5.32 p.m.
House again in Committee.
Baroness Hamwee Baroness Hamwee moved Amendment No. 119ZCZA:
Before Clause 46, insert the following new Clause—
"APPLICATION OF SECTION 106 OF THE PRINCIPAL ACT
The Secretary of State shall, within three months of the enactment of this Act, publish additional guidance on the application of section 106 (planning obligations) of the principal Act."
The noble Baroness said: The Bill may have been long in gestation, but there is a danger that its birth might be so quick that it will be damaged in the process. We move with this amendment to the issue of planning obligations and planning contributions.
The Government announced a consultation on the reform of planning obligations in November and gave consultees a nine-week period for responses. I have written down at this point "whinge". The Minister will be aware that a statement from the Office of the Deputy Prime Minister was published on Friday. He may not be aware of the difficulty for Members of this House who do not have a quick and immediate line to the ODPM, not only in seeing that statement but even knowing of its existence.
I became aware of the statement on Friday afternoon because the Royal Institute of Chartered Surveyors was good enough to e-mail it to me. I discovered this morning that planning officers at the Greater London Authority had inquired, I think on Thursday, whether a statement on the issue was going to be made. We were told, yes, it was coming. The institute was sent a copy I think on Friday—I may be wrong; it may have been this morning. This House was not sitting on Friday, so Members of the Committee may not be aware that there was a statement.
Today the Government published a summary of consultation responses. In Friday's statement the Government said that they prefer where possible to offer a 12-week consultation and regret it was not possible on this occasion, but they believe that having decided to take the opportunity to legislate on planning obligations provided by the carry-over of this Bill, it was better to supply Parliament with an output from that consultation as soon as possible and while the Bill is still under consideration than to have the consultation still going on as they consider it. Therefore they are publishing on 2 February a summary of the consultation responses. The document is intended to inform debate on the Bill's clauses and goes on to say that it contains a summary.
I am flattered that the Government think that we are all so competent that we can absorb and assess all this in the time available, despite our being part-time Members of the House, difficulties of getting here, our doing other jobs, and so on, but I wonder whether my next move should not be a Motion to adjourn the Committee to give Members an opportunity to read the statement.
Baroness Hanham: May I —
Baroness Hamwee: The noble Baroness wants to intervene.
Baroness Hanham: I apologise for being late back. It was only at teatime that I discovered that this statement had been made. I have spent some time in the Library and the Printed Paper Office trying to find it. It is not available; it is not in the House so far as I can see; it certainly has not been made available to us, and I take that extremely badly. The Government are very slow on making sure that we have adequate information; we now seem to be completely devoid of
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one of the most important parts of the Bill, and of one of the most important aspects of that—the outcome of the consultation.
Lord Rooker: I was not in London on Friday but I know a letter was written on my behalf with a copy of the statement to every noble Lord who spoke on Second Reading.
Baroness Hamwee: I am sorry to have distracted the Committee but no doubt the postal systems are even now ensuring that the statement wings its way to us. There are other matters of communication, but if we had all received it on Friday it is still extremely short notice. The Government are creating a rod for their own—and, indeed, for everybody else's—back in rushing at this.
We keep being told that we only get a planning Bill about once every 10 years, despite the fact that there were, I think, two in 1990 and one in 1991. But if this Bill did not include the provision, which is not even a framework—or perhaps it is just about a framework— but which is a long way from being in a proposal state, perhaps I am being naive but it seems that a bit of legislative time would be freed up and we could have corresponding time later in order to consider real proposals. Maybe human nature does not work like that.
This amendment, however, stands whether or not there is content that needs to be taken account of in the ODPM statement, because many people who have spoken to us on these Benches about this issue have made the point that the evils that the Government appear to be seeking to address could be dealt with without changes in primary legislation. Therefore, my amendment is to the effect that the Secretary of State will issue additional guidance on the application of the existing planning obligation provisions under Section 106 of the 1990 Act.
The changes that the Bill seeks to allow for are presented as a response to complaints about the length of time that the process takes, uncertainty for developers, a lack of transparency and, I understand, a necessary policy update because of the Tesco case, which I believe was decided before the last guidance was issued. Obvious responses were, for example, better training and better staffed planning departments, where the problem is resourcing, and, as we discussed previously, co-ordination between local authority departments, earlier discussions and perhaps, in addition, more realistic expectations.
We asked the CBI to comment on whether or not the problems could be dealt with without primary legislation. It said:
"Much can be done to improve the current system, and we believe that this is where efforts should initially be focused".
The CBI would welcome, in particular, the greater use of standard terms and clauses, bringing in external resources to assist planning departments, clarity about a local authority's approach to planning obligations within development plans, phased payments, the

489
appropriate use of formulae and the use of mediation. None of that—or, certainly, very little of it—seems to require legislation.
On policy statements, the CBI says that the uncertainty could be reduced if more councils were encouraged to set out in their development plans some indication of their policy towards Section 106 agreements. They could indicate what general issues the community expects to be addressed through planning obligations, for what kind of development the council is likely to need agreement to address these issues, and what approach and procedures it expects to take for the negotiation in order to set a framework to give applicants clarity up-front but without setting a rigid and inflexible schedule of tariffs. That also would not need legislation.
The CBI says that the Green Paper is right to state that the negotiation of planning obligations should take place much earlier. I do not see that the new provisions will assist with that. It supports the wider promotion of standard terms to simplify and speed up the negotiation. That, again, is not dependent on legislation. It is presently concerned about the inadequacy of the current accounting of how planning obligations are agreed and then spent, and it comments on the lack of transparency. One must agree that those issues need to be addressed, but does that require primary legislation?
The CBI also says that the introduction of an independent dispute resolution mechanism for questions of valuation would be welcome. Again, I wonder whether that requires legislation. It seems to me that that type of issue could be provided by a code, guidelines or guidance.
The papers that some of us have now managed to gather together recognise that many consultees had proposals for improving the operation of the current regime. However, Friday's statement seems to fail to recognise that those proposals were generally put forward as an alternative to the introduction of a planning charge. Therefore, rather than giving details, the statement refers to the fact that they should simply be passed on to consultants, who should be employed to draft a best practice guide.
Much could be done without Parliament being asked—I, for one, feel most uncomfortable about having to take a view on this—to agree to provisions in a Bill where so much is not only unclear but unresolved in the debate which is properly taking place among those who will be affected. I beg to move.
5.45 p.m.
Baroness Hanham: Although I do not agree with all that the noble Baroness has said, I do agree that it is unfortunate that we do not all have access to the statement and to the results of the consultation. Ever since we started discussing the Bill, it has been absolutely plain that this whole area is controversial, that it is causing problems and concerns, and that it was inserted into the Bill at the very last moment in the House of Commons before Christmas on the basis that consultation would take place.
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I believe that it is almost unheard of for legislation to include clauses relating to a consultation document and for that consultation not to finish in time for everyone who is concerned with the discussion on it to form views before being asked to consider it. Not least is it unheard of for the Government, however they may have tried to do so, not to have ensured that Front Bench Members were aware of the outcome of the consultation and that the Secretary of State was pronouncing on it. That seems to go well beyond how one expects this House to operate.
There are ways in which the Section 106 provisions could be tightened up, and there are probably ways in which they could be made more accessible. That is what this amendment is about. We would not oppose that. We would want to see what the expectation was and what detail was likely to be included. That can only be in guidance because, as the noble Baroness, Lady Hamwee, said, it does not appear likely that this will require primary legislation. However, we do not see guidance either. The measures would all take place without our having considered them. Therefore, by necessity, we would have to ensure that amendments were tabled so that we would have a chance to consider the matter.
How we discuss the following clauses, I know not. No doubt the Minister will have some views on that, but it seems to me that all the amendments that we shall move relate precisely to the consultation document. It was a consultation document but the measure is now in legislation and, apparently, we are not entitled to have sight of the response. I support the noble Baroness's amendment.
Baroness Maddock: I want to say something about affordable housing. I declare an interest, as I have done previously, as a vice-president of the National Housing Federation. Over the years, registered social landlords, and also, I believe, the Government, have seen Section 106 agreements as a very important tool in providing housing in areas where, in particular, there is not a plentiful supply of land. They have also viewed them as part of their policies to develop mixed communities. Those are the two areas about which registered social landlords are very concerned.
Like others, I find it unacceptable that we are trying to question the Government and trying to help to create a Bill with which people can work, yet we are having to rush around, reading documents in a very short time in order to get to grips with announcements that the Government have made. Indeed, I have been reading material while sitting on the Bench.
However, one point that I have picked up—this came out during the consultation—is that many consultees pointed to the benefits of the existing system and, in particular, to its flexibility in responding to the circumstances of individual development proposals and its role in securing a proportion of affordable housing. That is one of the key issues here. When we reach the Question whether the clause shall stand part of the Bill, I believe that; we shall all be asking the Minister many questions. We shall hope that he can respond, given that he has the

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information. He has had it longer than we have and he also has at least six people giving him advice on what to do.
Lord Lucas: My impression is that developers have never particularly liked Section 106. They have grumbled about it for a long time and are very much in favour of the Government's efforts to see what can be done to provide an alternative and to improve on it. However, I have not yet spoken to one who has not thought that the alternative being provided is far worse than the existing Section 106. It is much less certain and much less directly connected to the development and does not tackle at all many of the points which will still need to be concluded in negotiations between them and a local authority as regards all the elements of the development, which will have to be provided by the local authority or other agencies.
I have not yet spoken to anybody who wants these new clauses to follow that road. I do not see wild enthusiasm expressed by noble Lords on the Benches opposite. I know that those officials in the Box are not allowed to jump up and down with enthusiasm, but I have not even seen a smile on their faces while we have been discussing this issue. It is a noble attempt. I recognise that the Government understand the problems. This is an honest attempt to see if there is a better way.
Looking at the matter and the Government's reaction, I believe the right conclusion is that there is not a better way. Section 106 is the best thing we have in front of us at the moment. Improving that section is the road we should follow so I am very much in favour of the amendment. Section 106 would benefit from advice based on considerable experience as to how best to use that method; what is and what is not best practice, as the noble Baroness, Lady Hamwee, said, as regards facilities for settling disputes and making the wheels turn quicker. But to go in the Government's direction as outlined in Clauses 46 and onwards, even with the best of intentions, would be a wrong move.
The Government should listen to what has been said. I have not had access to the consultation paper, either. I have not had a letter and I have seen no other reference to the matter. My researches are based purely on talking to a number of people in the industry and local government. As I say, not one whit of enthusiasm has been shown for the new idea: they much prefer the old way.
Lord Rooker: If the developers like the old way they can carry on using it. That is the whole point. I apologise if anyone believes that we have been discourteous, but sometimes it is better to get the information out late rather than not at all.
Although the amendment is specific, it might help if I take a little time to clarify our intentions as regards Clauses 46 to 48. That will assist the Committee in the clause stand part debate. I make it absolutely clear: if developers love the present system there is nothing in the Bill which stops them using it. There has been a
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great deal of misunderstanding about this matter and I can only apologise for the inadequacy of our communications because ultimately it is the Government's fault. It is our Bill; and it is our system which we are trying to improve.
We definitely have problems with the existing system of planning obligations, which are well known. It is a system which enables negotiations between local planning authorities and parties interested in land. The full variety of stakeholders in the planning system have criticised the system as being slow, opaque, unfair and complex. It is these criticisms to which the Government are responding with the amendments in the Bill.
Although the consultation overlaps slightly with the Bill, there is nothing in the Bill to stop the Government taking account, as we will, of the outcome of the consultation. We shall publish further details today as regards what we shall do later. It is not as though everything in the Bill is copper bottomed and that this is the new system. It is not a question that we have completed the consultation and, therefore, the Government cannot take anything further into account: we can. There is nothing in the consultation process which we are unable to take into account in working up the final system as an alternative, and not a replacement, for the present system.
The system is slow at present. We have evidence which shows that Section 106, as the planning obligations are known, can sometimes take years to negotiate for a variety of reasons. That can be very frustrating and delay the developments necessary to allow communities to grow and prosper. The system is opaque and uncertain because land developers do not know what they will be expected to contribute through a planning obligation in advance and also because the public is often not party to the negotiations. I have never known the public to be party to the negotiations, which means that the system lacks transparency. It is an accusation of buying planning permission behind close doors. That is the tabloid way of putting it and what ordinary citizens would say.
The system is unfair. As I have said, negotiations are often conducted privately and their outcome uncertain. That can mean two developments with very similar impacts on a local community finishing up contributing very different amounts to a planning obligation. I do not believe anyone can defend that as a right and proper way to operate.
The system is incredibly complex because of the range of matters with which an applicant may be asked to deal. It is also complex because a developer may be asked to negotiate simultaneously with several public sector bodies, which have not co-ordinated their requests. That is the fault of the public sector, but it puts an extra burden of cost and complexity on the developer.
Our reforms aim to tackle these problems. The clauses before the Committee provide the Secretary of State with the power to prescribe a new route to the agreement of a planning obligation; namely, the optional planning charge. As I said at the beginning, I

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wish to emphasise that this route is not a replacement for the negotiated route; it is an alternative. Nothing in these clauses precludes developers from choosing to negotiate as they do now. The clause provides in regulations for the reconstruction of the existing negotiated system lock, stock and barrel. Our aim is to offer developers a fast and certain alternative to the negotiated route through the optional planning charge. Charges will have to be published in public and in advance, which will significantly increase transparency and the certainty of the system.
I am well aware that some business representatives have been concerned about whether the charge will add to the burdens upon them. We recognise these concerns. I hope that the Written Statement published by my right honourable friend Keith Hill on Friday in another place will assuage developers. I wish to draw attention to some of its key points. The charge will have the same scope as a negotiated obligation. It will have the same ground rules as a negotiated obligation in terms of its relationship to a planning permission. An example of what that means is that, as now, it would be entirely open to a developer to refuse to make any contribution at all and insist that his application be determined having regard to the development plan and all other material considerations. If such an application is refused, we anticipate that, irrespective of whether developers opt to pay the charge or negotiate, they will be able to give a unilateral undertaking at an appeal just as they can now. I could give further examples of this equivalence.
The charge is not an attempt to introduce extra burdens on developers. It is not an attempt to allow the planning system to pay for impacts unrelated to planning matters. We will be extremely careful that policies relating to the new charge take account of the economics of development so they do not render development proposals unviable.
As Members of the Committee have said, they are concerned about the impact of the charge on the provision of affordable housing. There has also been some confusion on this issue, in that some commentators assume that the optional charge could only be paid in cash. That is not right as my right honourable friend's Statement makes clear. It also addresses the wider concerns about affordable housing provision. The Government are committed to the creation of mixed communities and to maintaining the level of affordable housing provided through the planning system.
Our new obligations policy and the up-dated policy on planning for housing, when published, will be entirely consistent with each other. We are committed to continuing debate as regards planning obligations. It is not finished because it is a complex area. The Statement made on Friday and the summary of the consultation responses published today, demonstrate a commitment to an open and frank debate. That will continue while this Bill is before the House. Many people agree that we should not continue with the present system. However, if people have learned to
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love that system, there is nothing to stop them using it. The proposal is not a replacement, it is an alternative to the present arrangements.
I do not apologise for the point made on the invitation to consultants. We said in the statement that we intended to issue practice guidance to support local authorities in developing planning obligation policies, particularly the alternative charging policies. We have issued tender invitation to consultants to provide advice on what that guidance should contain. The guidance will build on many examples of good practice identified in the consultation process, not just in the preparation of policies but in the process of negotiating, mediating, implementing and monitoring planning agreements. Therefore, as far as concerns the amendment, it is inappropriate to bind the Secretary of State to publishing guidance by legislation and within a timescale.
We have made a commitment to publish guidance and it is acknowledged that it is in everyone's best interests that the guidance comes out as early as possible and is as full as possible. I cannot give details about the timescale.
I probably cannot say enough on this issue, which is controversial. I hope I have given a flavour of why we have taken the approach we have to the clauses and why it is not possible for me to accept Amendment No. 119ZCZA. I will return to this issue as your Lordships desire.
6 p.m.
Lord Cobbold: The Minister has outlined some of the aims of the proposals in Clauses 46 and 47. However, the principal concern with these new clauses is that the new planning contributions may be used by local authorities as a stealth tax on development or, worse, as a means of preventing a development with which the authority is not in sympathy.
Lord Rooker: That cannot happen. The developer can say, "I am not taking that route, I want to take the negotiated route". It is in the hands of the developer. The system cannot be misused by local authorities in the way the noble Lord suggested.
Lord Cobbold: It is of considerable concern to developers that it could be used in that way. It is also a concern that it could be used for small-scale proposals. Section 106 agreements are currently applicable to only a small proportion, the major planning applications, and developers accept the obligation to pay for local service improvements necessitated by the development, provided that the obligation is within reason and does not damage or destroy the financial viability of the development. It is the proposal to dispense with this necessary connection to the development that worries developers and which could open floodgates to unreasonable calls on developers to fund local improvements not directly related to their development. It seems that the meat in this will be in the guidelines or in the regulations.

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Will the Minister confirm that the regulations will ensure that the planning contributions will be directly related to the development in question and that local planning authorities will not be able to use planning contributions as a simple revenue-raising exercise or as a financial deterrent to a specific development proposal?
Lord Lucas: In his reply, the Minister said many people expressed the opinion that the current system could not continue. Do the documents published to date allow me to identify some of these people, so that I might talk to them? I would like to speak to somebody, other than a member of the Government, who wants this change on the basis of what they have seen to date. Speaking to my own and the Liberal Democrat Front Benches, given that this is an important part of the Bill, given that we have a lot of new information and another day on this Bill and not too much to do, would it not be sensible to break now? It would give us a chance to look at this new information. We could then return to the matter informed and prepared on Thursday. I cannot see any reason why we cannot get through what remains on Thursday. It is a strung-out collection of amendments. We have about three inches on this clause alone, when it could be dealt with as one group. I would have thought that is a more satisfactory way for the Committee to proceed.
Baroness Hamwee: I am not sure I should attempt now to pick up issues which are more for the clause stand part debate. On the specific amendment, I accept that the three-month provision would not give the opportunity for consultation we would like to see. The issue occurred to us at about 4.55 on Thursday and we wanted to get something down to make the point. It is not a perfect amendment but it has made the point, which is what Committee is all about.
The Minister said that the Bill has not copper-bottomed the issues on this. I acknowledge that, but it is disingenuous and perhaps irrelevant to suggest that the statement seemed to, and that it was a contribution to this stage of the Bill. As we have seen, it has been difficult to use it helpfully to contribute to our debate. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 46 [Planning Contribution]:
The Deputy Chairman of Committees (Baroness Lockwood): We now come to Amendment No. 119ZCZB.
Baroness Hanham: Before speaking to the amendment, I would like to take up the point made by the noble Lord, Lord Lucas. It seems we are hampered in the discussions on Clauses 46, 47 and 48 without having sight of the statement and the results of the consultation.
It seems to me we have three options. One is to do nothing. Another is to put forward a Motion that the Committee adjourn for half an hour while the Minister gets us coffees and also the statement and the results of
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the consultation. That would give us an opportunity to look at the statement and consultation papers. Another alternative is for us not to consider Clauses 45, 46, 47 and 48 today but to put them on hold until Thursday. They might not be anything to do with this, but the Government have landed us in this difficulty. I suggest we consider those clauses on Thursday and carry on with the other clauses.
Something has to happen because my amendments open up all the areas that the consultation, presumably, has dealt with. They open up areas on which the Minister has sought to respond on the back of this statement that has already been made. I am sure he is correct in what he says and I have absolutely no means of knowing how I would reply on the basis of that.
I am prepared to move either Motion. One is that we skip these clauses and go on with the rest of the Bill; the second is that the Committee adjourn for half an hour to get access to the statement and to the consultation papers.
The Deputy Chairman of Committees: Does the noble Baroness want to move that the Committee adjourn?
Baroness Hanham: I do not want the Deputy Chairman to do anything at the moment.
The Deputy Chairman of Committees: The noble Baroness can withdraw the amendment.
Baroness Hanham: I have not moved anything. I was just asking, before I moved the amendment, which way we were going to handle this, in terms of the clauses. I do not think we can handle them as it is. I do not think I am asking to move anything at the moment.
Lord Rooker: We have a series of amendments on the clauses. I made an introductory statement, which got me towards the end of the clause. I have perfectly detailed notes to respond to the amendments on the Marshalled List. There is nothing that is in the document that has been published that we cannot accommodate in terms of the consultation. There were 340 responses to the consultation. I do not have a figure to give an answer to the noble Lord, Lord Lucas.
I am able to respond to the amendments and I think that that would be useful to the Committee. Whether we adjourn for half an hour now or come back on Thursday, I shall not be able to say much different to what I have already said at this stage of the Bill.
We should bear in mind that there are three stages at which the Bill can be amended. If Members of the Committee feel that we have not covered all the points raised, we can have an extensive Report stage after everyone has had full opportunity to consider this matter. I believe that to adjourn now would be counterproductive in the use of time. I am not trying to get round matters. I do not control the business of the House. I want to be as helpful as I can. I am in

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possession of information which would enable me to respond to amendments in the same way as I have to the general points raised. Frankly, whether we adjourn for half an hour or two hours, I shall not be able to say much more.
Baroness Hanham: With great respect, it is not the Minister I am worried about, but me and the other Members of the Committee taking part in the debate who have not had sight of the consultation paper. The Minister may like to find out whether that could be made available to the Committee in the next half an hour, in which case that would help me to decide which Motion to put.
The Deputy Chairman of Committees: We are discussing Amendment No. 119ZCZB. We need a Motion before the House in order to debate a matter. Do you wish to withdraw Amendment No. 119ZCZB?
Baroness Hanham: I do not want to withdraw Amendment No. 119ZCZB. I want to put the Motion that the Committee adjourn for half an hour to enable noble Lords to see the consultation document so that, in moving the amendments, we can have a better idea of what we are discussing. I put that Motion to the Committee. I beg to move that the House do now resume and that we return to this at quarter to seven.
Moved, that the House do now resume.— (Baroness Hanham.)
Lord Rooker: I am not sure that that is debatable, but I shall oppose that Motion for the reasons I gave earlier; that is, I am in a position to give perfectly normal responses to the amendments.
Lord Shutt of Greetland: It seems appropriate that the House should be resumed in order that Members of the Committee who want to know the questions they should put can put them. It is all very well for the Minister to say that he has the answers, but the noble Baronesses want to put the questions. They cannot do that if they have not studied the document. A good way of working is for people to have the information that they are endeavouring to debate. If they do not have that information, they are not in the best position to debate it. Surely it is right that they should be in the best position as far as concerns information.
Lord Brooke of Sutton Mandeville: I intervene only to provide a cover for conversations which are occurring elsewhere in the Chamber so that they can reach a satisfactory conclusion. The noble Baroness, Lady Maddock, will recall a moment in Committee on the Housing Bill in another place in 1996 when the Minister, Mr David Curry, suddenly withdrew half a dozen clauses and was subjected to a violent attack by Mr Raynsford, who led the Opposition on the Bill.
I do not believe that on this occasion, the Opposition, nor indeed the Liberal Democrats, have in any way adopted the same degree of aggression towards the Government Front Bench as Mr Raynsford assumed on that occasion. We are
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genuinely trying to find a way through the problem. I wholly understand that the noble Lord, Lord Rooker, believes that no harm has been done by noble Lords not receiving a document we were meant to receive and that we can muddle our way through without it. However, from the point of view of those on this side of the Chamber who are seeking to move amendments to the Bill, which we are seeking to improve, it must be the case that we would do that better if we had access to the consultation paper.
Lord Bridges: If we do adjourn for half an hour, will the documents be available in that time?
Lord Best: If it helps, I have copies, but not sufficient for all Members of the Committee.
Baroness Hanham: I beg leave to withdraw the Motion that the House do now resume.
Motion, by leave, withdrawn.
Lord Rooker: I beg to move that the House do now resume.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.
Lord Rooker: I beg to move that the House do now adjourn until quarter to seven.
Moved accordingly, and, on Question, Motion agreed to.
[The Sitting was suspended from 6.16 to 6.45 p.m.]
House again in Committee on Clause 46.
Baroness Hanham Baroness Hanham moved Amendment No. 119ZCZB:
Page 34. line 29, after "to" insert "a planning application for"
The noble Baroness said: I thank the Committee for adjourning to give us time to read the inspiring statement produced by the Government on the back of the consultation process. It seems almost the same except that there will be more consultation and that PPG3 and PPG1 will be amended at some stage on the back of the Government's new policies.
I presume that the Government's new policies are in the Bill, so I presume that we will see the consultation results. I notice that the Government thought that 340 responses was rather good; I am not sure how many people or bodies they sought responses from, but that figure is about half of the planning authorities and it certainly does not include developers—if it does, then it does not include half the planning authorities in the country.
Having read the document I can take account of some of it as we go through the amendments. It does not negate any amendments that I have moved, which is one of the reasons I wanted to see it. If the Minister has responses which will help us on Report we will take the matter further then.
I turn to my amendment. The legislation is extremely vague about what the Government intend and how planning contributions will work. The statement does not make that any clearer and nor did the consultation paper. It is of great concern that the public, Parliament and possibly the Government do not know how the scheme will work. From the statement, I am bound to say that they still do not know.
The Government are looking to speedier planning processes and to improving affordable housing and community benefit, but it is not clear how that is to be achieved. We will need proposals to make it work, or to make it work better than Section 106, so that everyone does not simply ignore the new tariff system.
Contributions are to be required in relation to the development or use of land, which requires a planning application. The Bill does not say whether those contributions are required solely when developments are taking place or whether they can be sought in respect of existing development. The provisions seem wide enough to require contributions in those latter circumstances. If so, that would be a tax.
The thinking behind the amendment is that planning contributions are for making planning applications. The Bill could require contributions on existing development unrelated to a fresh planning application. I beg to move.
Lord Rooker: Amendment No. 119ZCZB is too restrictive because it seeks to ensure that planning contributions can be sought and made only in relation to planning applications. The current system does not make that restriction. Section 106 agreements can be made at any time between a local planning authority and a person with an interest in land. For example, they could be used in relation to permitted development for which no planning application is required.
The planning contribution scheme does not seek to change the scope of the existing power. I want to make that absolutely clear. It could be that there is concern that local planning authorities will force developers to make payments that are unrelated to development proposals and hence thought to be inappropriate. I can sympathise with that view. In practice in the past most Section 106 agreements have been made in the context of planning permission. I want to make it absolutely clear that the local planning authority will have no power to compel a developer to make a planning contribution. That is the position.
However, it can be appropriate for a local planning authority to seek a contribution or for developers to offer a contribution at any time for matters related to a development. We do not believe that it would be right to preclude that option remaining. We think that overall it would be wrong to close off the option of seeking and making contributions at other times to maintain the flexibility of the system. What is proposed in the planning charge does not change the scope of the existing power. I agree that in many ways
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the scope of the existing power is sadly misunderstood. I hope that I have explained the way that it works because Section 106 agreements can be made at any time, but a local planning authority cannot force or compel a developer to make a planning contribution in the first place.
Baroness Hanham: I thank the Minister for that helpful response. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Hanham Baroness Hanham moved Amendment No. 119ZCZC:
Page 34, line 34, at end insert—
"(2A) That an applicant for planning permission has made a contribution by the prescribed means does not prevent the local planning authority or the Secretary of State, as appropriate, refusing to grant planning permission because of a failure to provide other planning contributions."
The noble Baroness said: The Bill allows a developer to choose to make a planning contribution by the prescribed means or, in everyday language, by the tariff. We shall have to come round to the fact that this is a tariff, a proposal that started in the Green Paper. Although everyone held up their hands in dismay at a tariff system, that is precisely what we are talking about.
The amendment provides that paying the tariff does not excuse the developer from dealing with other matters, possibly by relevant requirements. The tariff is unlikely to cover all planning contributions required by a scheme. Some of those contributions may have to be tailored to a particular proposal; for example, environmental improvements. That avoids the situation in which a developer offers affordable housing in accordance with the tariff, but does not provide the open space improvements that are also required. It also affects the extensive use of planning obligations for development control purposes, controlling, for example, the phasing of developments or the types of goods sold in a shop.
It would be extremely damaging if those necessary controls on the scheme were lost because the applicants have offered to pay the tariff. That is touched on briefly in the statement. As I understand it, it will be possible for there to be payments in kind, although the Minister may wish to confirm that in his reply. I beg to move.
Lord Rooker: The noble Baroness can describe what was originally planned as a tariff, but I repeat that what was originally planned by way of a tariff was a replacement for Section 106. I have repeatedly made that clear. What can be called the tariff, or now the planning charge, is an alternative to Section 106. Section 106 can still be used. I agree that the principle is exactly as it was, as a tariff. Earlier on I said that we want up-front charges so that people will know what the costs are, but the original plan in the Green Paper was that Section 106 would go and there would just be tariffs. That was abandoned for the purposes of the Bill and, because of the time that the Bill spent in

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another place and the discussions that we have had about infrastructure costs in the growth area, we have taken the opportunity to find an alternative. We have not found a replacement, but this provision provides the developers with a choice. That was the point that I was making earlier.
I fully understand why the amendment has been tabled and I have a degree of sympathy with it. The intention is to make it clear that the planning authority or the Secretary of State may still refuse planning permission where the applicant has agreed to pay the charge because other matters are still outstanding. That is already covered by how the planning system operates at present, which I shall explain briefly.
Local planning authorities and the Secretary of State, when deciding whether to grant planning permission, have to determine the application in accordance with the development plan unless material considerations indicate otherwise. The fact that the applicant has agreed to pay the planning charge would be a material consideration to take into account. But if the failure to agree a further matter that should also form part of the planning contribution means that the harm caused by the development will not be overcome, this would also be a material consideration and the local planning authority or the Secretary of State may decide that it is sufficient to justify refusing planning permission.
The point I am about to make is sometimes ignored or not discussed. The policy on planning obligations makes it absolutely clear that planning permission should never be granted because of benefits offered by a developer. That is the position. All material considerations have to be taken into account. We want local authorities and developers to deal fully and properly with the impacts of development, so it would be quite improper to grant planning permission where issues requiring planning contributions had not been addressed, but we are content that the current and proposed legislation and policy are sufficient to ensure that that does not occur.
As we have said, in some cases where a developer chooses to pay the charge, it may still be necessary to address some issues through negotiated agreements. We will not ask anyone to pay for the same thing twice; there is a caveat on that in the consultation that we put out. We are still considering how the boundary will be drawn in policy between those two types of planning contributions and we need to set that out in the draft circular that will be produced in the spring. We are quite clear that the developer should, first, not be asked to pay twice in relation to the same matter but, secondly, that a negotiation may be required over matters that could never be covered by the charge. I hope that is clear and that it assists, not so much today's debate, but planning for further stages of the Bill.
Baroness Hanham: I thank the Minister for that helpful and welcome reply. The whole purpose of the amendment is to ensure that, where there is
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development control and conditions on planning, a tariff system, if there is one, reflects both of those. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Hanham Baroness Hanham moved Amendment No. 119ZCZD:
Page 34, line 36, leave out from first "document" to end.
The noble Baroness said: I have four amendments in this group, Amendment Nos. 119ZCZD, 119E, 119ZCA and 119ZCB. Clause 46(3) provides for regulations to require local planning authorities to include their policies on planning contributions in,
"a development plan document (or in such other document as is prescribed)".
The procedure for preparing development documents, including individual rights of objection, a right for all objectors to be heard and independent examination, is in Part 2, which we discussed last time. Therefore the Committee can have a reasonable understanding of how that procedure will work.
However, the Bill does not explain at all how the possible planning contributions documents will be created. Those policies will have a considerable effect on many people. Largely, they will determine how much is paid by landowners, developers and those who buy new houses or new developments. They will also affect the providers of public services such as schools and local residents who need to know that local services will be able to cope with major development.
The amendments remove the ability to put the local authority policies in non-development documents. These are probing amendments, to see what procedures the Government will introduce for these other documents. Amendments Nos. 119ZCA and 119ZCB are designed to bring clarity to the circumstances in which a local authority will accept a planning contribution. Clause 46(3)(b) and (c) include reference to the circumstances in which the local planning authority will and will not "consider accepting" a planning contribution. My amendments would remove "consider accepting" and insert "accept". I beg to move.
7 p.m.
Lord Bassam of Brighton: These amendments have been discussed once already in another place. They were explained as an attempt to clarify the Bill's provision. However, the amendments are unnecessary, and they probably result from a misunderstanding of the Bill's provisions. As the noble Baroness explained, Clause 46(3) sets out the ambit of the Secretary of State's regulation-making powers. It enables the regulations to require local planning authorities to set out in a development plan document the circumstances in which they are likely to consider that a planning contribution—whether by way of negotiated agreement, or by the option of planning charge—is appropriate and specifically state when a planning charge will not be accepted.

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The regulation-making powers in Clause 47 set out the types of controls that can be placed on planning contributions sought by local planning authorities. Guidance will be issued on the types of matters that planning contributions should apply to and the circumstances in which it may be appropriate to seek a planning contribution. Detailed regulations and guidance are the more appropriate places to set out how the planning contributions scheme will operate. The regulations will be subject to the affirmative resolution procedure, so there will be full and ample opportunity for detailed scrutiny of those regulations at a later stage.
The amendments would restrict the regulation-making powers, rather than the matters for which planning contributions can be sought. If the amendments were accepted, having set out the local planning contribution policy local authorities would be forced to accept a contribution in every circumstance contemplated by that policy, leaving the local authority little or no flexibility to make allowances for the viability of a particular development on a difficult site.
That would be different from both the existing system and from our new proposals where it is, and would be, open to the local authority not to seek any planning contribution. We need to strike a balance, with flexibility and certainty. In working up our proposals, we have been concerned to ensure a degree of flexibility, while offering certainty and predictability. Clause 46(3)(a) strikes that balance. It enables local planning authorities to set out what they consider to be an appropriate charge for particular developments and for particular matters, but it does not bind them to seeking that level of charge from developers. It leaves them the option of charging less, or nothing, making a judgment about what is appropriate in each set of circumstances.
The amendment would remove this degree of flexibility and require, perhaps even oblige, the local authority to seek the full contribution as set in advance. The clauses as they stand will protect developers and communities and provide them with that benefit. They might not have to pay a full charge, or any charge, in circumstances where the local authority believes that that is right, for example when it would affect the viability of a proposed development. If it undermines the potential for development, the charge will not be made. That is good news for local communities, because the flexibility will ensure that developments that can benefit the community are delivered.
In the circumstances, I hope that the amendments will be withdrawn. We have got the balance of benefits between developers and communities about right. It will provide some local discretion and flexibility, and that is worth protecting.
Lord Lucas: I am sure that I am alone in not quite understanding how that answer addressed the questions raised by my noble friend—
Baroness Hamwee: No.
Lord Lucas: I am glad to know that I am not alone— that is encouraging. I have two questions for the Minister. Why are the words,
"or in such other document as prescribed"
in the Bill? We want something that is subject to the procedures, scrutiny and checks that are appropriate for a development plan document. The way I read the effect of the amendments on subsection 3(a) and (b) is that if, for example, I, as the developer, go to the local authority and say, "I would like to pay the planning contribution on this development, because this is the sort of development on which you have said it is appropriate", it has the option to reply, "No, we did not say that we will accept; we said that we will consider accepting it, and in your case we have considered and we have decided that we will not accept it".
It makes the acceptance of the planning charge something that the local authority can decide whether to do, in each case, and therefore can, in every case, drop a developer into Section 106; in other words, it is the option of the planning authority whether to go down the Section 106 route.
The latter is not the understanding that I have gained from the Minister as to the intention behind this provision. As I understand it, the intention is that in appropriate cases if a developer opts for paying the planning contribution, that is what happens. I do not read subsection 3(a) and (b) that way. The amendments proposed by my noble friend would cure that problem and make it clear that where a local authority has said that it will accept a planning contribution it is obligated to do so. I do not read it, and I cannot construe it, as the Minister did in his reply. I should be grateful for further clarification.
Lord Bassam of Brighton: I said at the outset that I thought that the amendments were based on something of a misunderstanding. I make that point again. The noble Lord has given us his reading of the amendments and his reading of the clause. I am happy with what I have said and put on the record, but, as ever, I am willing to listen and learn. If there is something else there that we have not spotted, I will be more than happy to have another look at it.
Equally, I suggest to the noble Lord, Lord Lucas, and to the noble Baroness, Lady Hanham, that they study carefully what we said. We have got the balance right; we are trying to create some flexibility. We do not want to straitjacket the local authority. Where it would be of greater community benefit not to "obligate" the authority to seek a planning charge, we want to provide that facility. The way in which the amendments are constructed may be unnecessarily restrictive in that regard. I hope that is a helpful observation.
Lord Lucas: I do not wish to delay proceedings any further. I should be delighted if the Minister would write to me. There are still two things that I do not understand. First, where in this clause does it say that if this is a development for which a planning

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contribution is appropriate—it having been so set out in the required document—and it is offered by a developer, the planning authority is obligated to accept it? I cannot find that in these provisions. It is possible that it will be in regulations, and that it is just something that I cannot see. Where does it say that the initiative rests with the developer to go down this route?
Lord Bassam of Brighton: I think that the answer is that that will be in regulations. The local authority must ensure that it is clear about what its upfront charges will be.
Lord Lucas: Absolutely. I understand that, and it must be up front about the circumstances in which it will accept these contributions. That will be in accordance with the regulations, which I am sure is the right place. However, I cannot see anything here that covers the situation. How will it be possible for a developer to say to the local authority, "Here's the planning charge", with the local authority being obliged to say, "Yes, thank you", rather than, "No we do not want it this time, thank you", which is how I construe subsection 3(a) and (b)?
The second thing is that I have not had an answer to my questions about the first amendment in the group. I should be grateful for an understanding of it. I see no need to delay proceedings, and I would be happy to receive it in writing. The ultimate initiative rests with my noble friend.
Lord Bassam of Brighton: Obviously, I would be happy to write to the noble Lord. I think that the other question that I failed to answer was how the contributions document might be created. I do not have a response on that. I am sorry that I cannot provide one, but we will.
Baroness Hanham: The Minister's answer made me think that I had been talking to myself. As he did not reply to the thrust of the amendment, which related to what would be in the documents and how they would be produced, I look forward to a reply at a later stage.
I am grateful to my noble friend Lord Lucas for his intervention. When the Minister clarifies the matter for him, he might also clarify it for me. On that basis, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 119ZCA and 119ZCB not moved.]
Baroness Hanham Baroness Hanham moved Amendment No. 119ZCC:
Page 35, line 1, leave out paragraph (d).
The noble Baroness said: Paragraph (d) of subsection (3) states that the local planning authority must outline,
"the criteria by reference to which the value of a contribution made by the prescribed means is to be determined".
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Precisely how does the Minister envisage that local planning authorities will achieve the extraordinary task of setting planning contributions throughout their area in the absence of any actual proposals on which to base their funds? As land values vary significantly over a small area, into what size of unit must the authority divide its area in order to determine the different contribution values?
My authority, the Royal Borough of Kensington and Chelsea, could hardly set a similar planning contribution for a development, say, in Chelsea, and for a development in the farthest north of north Kensington. How many man-hours do the Government anticipate that it will take for the local authority to complete the exercise? Will not the type of development itself be a criterion that it would be useful for the local planning authority to know, in order to set the value of the contribution that must be made? That is where we become entangled and ensnared in the tariff system. I look forward to the Minister's reply. I beg to move.
Lord Lucas: The established and time-honoured system for such things is for a Labour-controlled authority to set a zero contribution in areas that vote Conservative and vice versa.
7.15 p.m.
Lord Rooker: I have an answer, but it probably will not satisfy the noble Baroness. The power in subsection (3)(d) is essential. It ensures that the local planning authority is required, when it sets out its policy on planning contributions, to set out the criteria by which the optional planning charge will be calculated. We do not have a fixed plan for that, but there could be a formula for it or a methodology related to the size or type of development. The methodology could relate to the size or type of development in particular parts of the authority's area. Either way, it must set out the criteria.
I suspect that it will be complicated, but it has the big advantage, once it is set out with a pound sign hanging on the end of it, that the developers will have a choice. They will have a choice between knowing what the upfront charge will be or going down the negotiated route. That may make a difference to a developer's decision to proceed or not to proceed. Although I fully accept that the criteria may be made to look complicated—I suspect that they would be, in time— the developer will see a pound sign at the end of the criteria for a given development or planning application. That is the beauty of the system: the developer can say, "Right. That's the sum of money. We'll do it that way or the other way". It will be transparent and open, so it has that added advantage.
I cannot give exact details of what the formula will be, but the Secretary of State will be able to set it out through regulations so that it is upfront and clear and has, of course, been debated by Parliament.
Baroness Hanham: The Minister's reply worries me terribly. It exemplifies where the problems will be. Local authorities will have to identify chunks of land

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all the way through their area that will have a specific value—some will be more valuable than others; there will be land abutting green belt in some areas; there will be brownfield sites; there will be sites for industrial development; and there will be sites for affordable housing. There will be so many ramifications, if authorities have to identify every specific area and put a cost on it.
How long will the costs and charges last? Will they be updated annually through the RPI? Will they stay static? What if the local authority also wants additional open spaces, schools and all of that? There will have to be schedules of information. We talk about resources, but that will consume most of the local planning authorities' resources.
Lord Rooker: Amendment No. 119ZDA was originally grouped with this amendment. Unfortunately, I have separated out my speaking notes, and I did not want to go down that road, as the two amendments are now separate on the list. However, I want to make one thing clear: the charging system and the criteria must be related to the impact of the development. It is not a means of capturing values and raising finance in a way that is unrelated to the impact of the development. It need not be as complicated as the noble Baroness says.
Lord Marlesford: What the Minister has said worries me. The Bill puts forward a scheme, the details of which have not been worked out. Is it sensible to legislate on that basis?
Lord Avebury: A point that occurs to me is how we will ensure consistency between one local planning authority and another. I cannot see how, if all of them are free to develop their own formula or methodology, it will be possible to secure equality of treatment for developers as between, say, Kensington and Chelsea, on one hand, and Huddersfield, on the other. A national developer who has schemes in lots of different parts of the country will expect the fundamental algorithm that lies behind the process to be the same. That is what worries me about what the Minister said.
The Minister offered two alternative formulations. He said that there could be a formula. When I speak of a formula, I think of it in mathematical terms as something that gets from a set of variables to a final result. One can write down the variables in the formula, and the functional relationship between those variables and the result creates the arithmetic. The Minister also said that, alternatively, there could be a methodology related to the size and type of development. In that case, we would simply consider two independent variables—the size and type of development—and they would be the only things taken into consideration. I am sure that the Minister used that only for the purposes of illustration, but, if he is going to put things in Hansard in that way, he ought to try to enumerate the whole set of variables
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that would be taken into consideration, instead of giving people the impression that those are the only ones that matter.
Lord Rooker: With respect, that is not a fair reflection of my comments. I talked about setting out the criteria by which the optional planning charge will be calculated, for example, by a formula or a methodology related to the size and type of development. I think that is a fair way of explaining what could happen at the moment. I agree with the comments of the noble Lord, Lord Avebury, about a formula. Off the top of my head I can imagine—and it is not written in front of me—that the formula could relate to, for example, the floor area and the volume of a particular type of industrial or retail development. That is a formula with a sum of money at the end. The methodology related to the size and type of development could relate to the density of mixed developments or dwellings or similar issues.
So those factors can be taken into account. After reading the Bill, which is dangerous for a Minister, I note that the opening of Clause 46 implies—I can take advice if I am wrong—that the regulations would apply to "a" local authority. The implication of the regulations is such that there will not be a catch-all for all authorities. The tenor of the drafting of the clause relates to "a" local planning authority. I am not saying that there will be 350 sets of regulations, but it is clear in my reading of the Bill that the regulations have to apply criteria to a local authority—perhaps wrapped up with several other authorities listed in those regulations—but the criteria cannot be the same all over the country, because that would negate local planning.
Lord Hanningfield: I do not believe the Minister has understood the point made by several noble Lords. He refers all the time to the development. Obviously, the clause does not apply just to a development but to the areas adjacent to it. Even with a small district council the access to some of it can be much easier—for example, the availability of a school. In an urban area there would have to be different requirements because it is not just the question of a particular development which the Minister is always talking about. Developments are never in one space: they have roads to them, schools, hospitals and everything else. Therefore, Section 106 negotiations now often take account of all those considerations relating to adjacent areas, not just the particular development. The Minister constantly said "a development".
Lord Rooker: I fully accept that using the best practice we have now under Section 106 will enable us to write the new guidance and best practice. For example, in some areas there is a generalised formula: such and such a number of new dwellings equals the need for a primary school—I am aware of the figure but I shall not give it off the top of my head; such and such a number of new dwellings requires a secondary school which may or may not be on that development and can be used by it and requires access to it. I fully

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accept that point but it cannot be achieved out of thin air. There is already a wealth of evidence from good Section 106 practice which will help us to write the guidelines and the regulations.
I have a note on the consistency point, which is not unimportant. The charging and obligation policies will have to be developed within the framework of central government policy and guidance using best practice. We have already mentioned that guidance will ensure consistency of policies, including methodologies and formulae. We need consistency on that, but I suspect that they do not have to be exactly the same in every authority. The guidance will build on existing best practice. It is not as though we have had no experience of the effect of planning obligations—for example the requirement for health centres, education, access roads, bridges or whatever is a result of "x", "y" or "z" development, be it mixed, dwellings or industrial. We have experience of that around the country and will use that to write the guidance and be consistent across the policies.
Lord Best: I shall offer one or two thoughts that I would have shared with your Lordships in the clause stand part debate. I shall throw them into the pot now, because they relate to the practical problems of moving from the site by site negotiation of Section 106 agreements to pre-determined planning charges, contributions or tariffs. I echo a number of points made by noble Lords.
My own housing association in York, the Joseph Rowntree Housing Trust, has been engaged in a number of developments in recent years. I have discovered that the circumstances of each site are unique. One brownfield site was an old refuse tip leaking methane gas, where we had to undertake expensive decontamination work. One large greenfield site has huge pylons and power lines that need to be buried underground. Special measures will be needed on another site to protect against flooding. We may find the expensive consequences of discovering archaeological remains under one site, while there may be requirements to remove some protected species like the greater crested newt on another site. A development on one site could bring new viability to a school with falling numbers, but another development will have to be properly charged for the extra education costs flowing from the arrival of more children where there are no available school places.
In one part of any town gentrification of a neighbourhood that needs renewal would suggest a low tariff to attract development. In another part, perhaps close by, a developer will be able to sell for high prices and the local authority will have the chance to go for a higher tariff. The scale of a development will make a major difference, as will its density. There are also variations in the subsidy arrangements for affordable housing which face the developer and any partner housing association. Those financial arrangements will also vary from site to site. In one case the Housing Corporation will be able to offer social housing grant worth several thousands of pounds per house so the housing association can pay
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the developer something approaching the market price for each affordable home. But in another case no more funds may be available as grants from the Housing Corporation. If the development is to incorporate affordable housing, the developer will need to put in some serious money. In that case it is not realistic to expect as many affordable homes as could be supplied if plenty of public money was available.
Each case is different and a negotiation, not a fixed charge or tariff, either in case or percentage terms, will be necessary to achieve outcomes that are acceptable to all. In York, the headline aspirational target of the council is for 50 per cent of affordable housing to meet its pressing needs. But it has to accept lower figures of half, or less than half, where the constraints on the developer make it impossible to achieve such a high quota. No fixed tariff could cover all those circumstances. If an authority goes down that route there could be long delays in trying to calculate the level of tariffs, as has been suggested. Once those levels are announced they are likely to lead to disagreements, appeals, calls for judicial reviews or further delays because one size may not fit more than one site.
The Minister suggested that developers could simply reject the offer of the alternative system of tariffs and choose to stay with the current Section 106 negotiations—thereby having nothing to do with the new system. But the developer will worry that once the local authority has set up its system of tariffs it will be under some pressure to accept them. They will fear that once the tariff system is set up, developers who reject it will find that all the current problems facing Section 106 agreements—I shall argue later that there are many ways to improve them—are not likely to be cured. Current delays include there being no skilled planners able to negotiate at a sophisticated level, a lack of co-ordination between relevant public bodies, and the lack of a mediator or arbitrator to help the processes. The problems facing Section 106 agreements may still be there and may be worse if the local authority chooses a system of tariffs instead— and developers will feel under some pressure to accept them.
I suggest that it is not likely that we would be able to find the ways in which tariffs could be applied to anything more than a single site at a time. If you have a tariff which you apply to only one site at a time, you do not have a tariff, you have a negotiation site by site. If we are to have a negotiation, let us improve the Section 106 agreements that do just that —negotiate site by site. There is good mileage in that.
Baroness Hamwee: I was going to ask this question on clause stand part but given the way this debate is going, perhaps I can ask it now. It is a short question. Why have the Government left in the repeals schedule the possibility of repealing Section 106 in view of the alternatives that are being described?
Lord Lucas: I entirely support what the noble Lord, Lord Best, has said, but surely under these circumstances a local authority will set a high tariff. There is no way that a local planning authority wants

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to miss out on the planning contribution that it can get from the best sites in its area. Therefore, on all the lesser sites it will negotiate a lower tariff. It will go straight back into negotiation again.
The idea in Clauses 46 to 48 is wonderful. It is done with the best of intentions but the closer you look, the more you can see that it does not work.
Lord Rooker: If it does not work, people will not use it. I know that that is a glib answer and is not satisfactory on the very important, practical points made by the noble Lord, Lord Best. I fully accept that all his examples need a proper answer. Given the way he put them, it is very difficult to see what the answer would be, so we are led down the negotiated route.
On the concern expressed by the noble Baroness, Lady Hamwee, I do not know the precise answer. However, I said earlier this evening in relation to this issue that we are creating an alternative to Section 106, not a replacement, but it will require the wholesale rewriting of Section 106 in regulations. That is why I suspect that the point about the repeals schedule is there. But if that is not the case, I will find the noble Baroness a proper answer.
Baroness Hanham: I thank everybody for their contribution. I am sure that the Minister will read carefully what the noble Lord, Lord Best, said, in particular, because he has wide experience of having to deal with Section 106 and the pitfalls that we all recognise in trying to develop the criteria in the development plan documents for this new tariff system.
Thanks to the Library, my extensive efforts, and being slightly late back, I now have the results of the consultation that the Minister published. It would have been enormously helpful had we had it before. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Bassam of Brighton: I think this is an appropriate moment to break. I suggest that we do not return to the Committee stage before 8.35 p.m. I beg to move that the House do now resume.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.

Water Environment (Water Framework Directive) (England and Wales) Regulations 2003
7.34 p.m.
Baroness Miller of Chilthorne Domerrose to move, That an humble Address be presented to Her Majesty praying that the order, laid before the House on 11 December 2003, be annulled (S.I. 2003/3242).
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The noble Baroness said: My Lords, I beg to move that the order laid before the House on 11 December 2003 be annulled.
I do not think it will surprise the Minister to know that I have chosen to pray against these regulations. It was of great regret to me and, indeed, many other noble Lords, that when the Water Bill went through your Lordships' House last year, the Water Framework Directive was not included in it in some form; there was not even a reference to it. What we feared at the time—that the regulations, although good in intention, left much to be desired—has come to pass.
I would like to recap my views for the record, although the Minister is quite clear about them. The Water Framework Directive is a very good piece of European legislation. It is visionary and it has firm outcomes within a timescale. It recognises that water is a precious commodity. Indeed, it says that it is,
"a heritage which must be protected, defended and treated as such".
The Water Framework Directive recognises that there is a big problem to be tackled, especially with point and diffuse pollution. It accepts that there must be a correlation between the clean-up and the pricing of water. There are also issues surrounding the sustainable use of water. Most European countries need to move a long way to improve aquatic and terrestrial ecosystems and wetlands.
The Water Framework Directive recognises that it can succeed only with full public participation. Article 14 refers to the active involvement of all interested parties. This point is perhaps the most graphic illustration of how the transposition of this excellent directive into UK law by these regulations has been disappointing—even minimalist. I shall come back to that point in a moment.
The Environment Agency is the competent authority chosen by the Government to undertake the implementation of the Water Framework Directive. On public involvement, perhaps the Environment Agency does not have enough experience of real public engagement. Does the Environment Agency have the capacity to undertake this work at the moment?
In January, Environment Business magazine contained an interview with Barbara Young—the noble Baroness, Lady Young of Old Scone, herself. It says:
"Young is forthright in stating that the Agency is 'very, very pressed on our environmental protection work, with more and more new duties coming from Europe'.
She went on to say,
"that means finding smarter ways to keep business in line. In other words, doing more with less.
'There are two issues—have we got enough money and have we got enough staff, she says. 'Government agencies never have enough money'".
In the light of those comments, does the Minister think that the Environment Agency is now sufficiently funded and that it has sufficient capacity?

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How does the agency feel about the regulations? I quote from an agency document, written by an agency member of staff, stating that its view is that,
"in general, the regulations are acceptable but a significant number of issues still remain which need to be resolved".
The document was dated 12 January 2004, so the agency had seen the final form of the regulations.
The agency has particular concerns that the diffuse pollution powers needed to tackle diffuse pollution are simply not explicitly referred to in the regulations. It says:
"These are critical to the implementation of the Directive".
The next point refers to the powers of other relevant authorities. The document says,
"there is an important need to bind other relevant authorities (both public and private) into the process of River Basin Management planning"—
the building block on which the Water Framework Directive exists.
I ask the Minister to comment particularly on this point:
"The Agency cannot be held accountable for the non-delivery of the Water Framework Directive requirements if other relevant authorities do not deliver on their responsibilities".
The regulations do not ask any other authorities directly to do anything.
There we have a quite a number of large worries. The Water Framework Directive considers persons to be consulted—I remind the Minister that the European version refers to the active involvement of all interested parties. The UK regulations give a list of people needing to be consulted under Article 12.4. They are the usual suspects—conservation bodies, water undertakers, fishery committees, harbour authorities—everybody one would expect to be involved in the water environment, along with such other persons as "the Agency thinks fit". I suggest that everybody, whether be they communities, industrialists, farmers or landowners, needs to be fundamentally involved in how the framework will be implemented; otherwise, it simply will not work. By raising everyone's status in that way, the agency can tick the boxes—there is restricted capacity, as I have mentioned—and it will then be deemed to have involved the public. I cannot emphasise that point enough—and it is that point that has impelled me to pray against the regulations this evening. The involvement of the public is critical to whether the regulations work.
It is ironic that the Planning and Compulsory Purchase Bill has just been discussed in your Lordships' House, because the implementation of the Water Framework Directive rests heavily on planning mechanisms. However, that Bill misses out any reference to the Water Framework Directive. The Government had a great chance to cross-reference the powers to which the Environment Agency referred and to bind local authorities into the Water Framework Directive. Local authorities, being such a fundamental part of the democratic process, would have been a good place to begin. I therefore suggest that the
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Government bring forward their own amendments to the Planning and Compulsory Purchase Bill in your Lordships' House to fill that glaringly obvious gap.
Regulation 2 lists the other Acts to which the Water Framework Directive might need to be cross-referenced. No reference is made to the Town and Country Planning Act 1990. I expect that the Minister can offer a reason, but perhaps it should be included.
As has been recognised by everybody, if transposed correctly, the Water Framework Directive offers cost-effective ways of delivering clean water and clean water environments without water bills having to rise enormously to achieve that. That is why the framework directive has such unexpectedly unanimous support from the water industry, consumer representatives and environmental organisations. The Government's support, however, was perceived by everybody to be a little late in coming. Ministers expressed a little more enthusiasm at the time of the issuing of the regulations. That lateness applies also to the nub of the issue; namely, the pricing of water.
We are in the middle of an Ofwat pricing round. That round is in full swing. Indeed, the Government should already have issued guidance on what Ofwat must allow for in the new pricing round. Where is that guidance? It was supposed to have been issued by the end of January. When will it be issued? It is impossible for any body to plan for the Water Framework Directive, particularly the water industry in this country, without knowing on what basis to proceed. Pricing is fundamental to that.
Of course, the characterisation to which the Water Framework Directive referred should have informed the pricing round, but now we are stuck with it being the other way round: the pricing round will happen and the characterisation process will take place afterwards. That is somewhat difficult.
The Government, however, appear to be stuck in the middle of a feud over the issue. No. 10 and Mr Blair, with an eye on the ballot box, have the short-term view that there must be a minimum rise in water bills, no matter what the long-term costs are. I am sure that the Minister, like me, read the article in the Observer on January 25 that stated:
"Tony Blair is planning large cuts in Britain's pollution clean-up programme in a move that will invite a series of prosecutions of the Government in the European courts. The cuts will spare families a rise of only £2 over the next five years on the average £234 water bill".
I shall not read more from the article in the interests of time, but it goes on to make the point strongly that without some kind of recognition of the scale of work to be done in the current pricing round and of the scale of the environmental clean-up, the Water Framework Directive cannot even begin to be implemented. By 2015, the environmental investment will have a positive benefit for the country. During the passage of the Water Bill, the noble Lord, Lord Haskel, made it plain that industry could benefit from innovation; that the consumer could benefit from there being no need

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to clean up water and from it being clean at the point of arrival. Those millions of pounds needed to clean up water will not be required.
I have another series of questions for the Minister. I realise that time is moving on. How are the river basin management plans to be integrated with other water conservation and management commitments? English Nature, the Government's own adviser, wonders how those plans will be integrated with the biodiversity action plans.
What is a significant water body? I believe that the regulations do not recognise it as being a stream. How then would the regulations work? Streams are a major source of diffuse pollution as they receive the run-off from agricultural land and they feed into rivers. Without addressing streams, we will have a problem.
I shall go through the regulations. Wales is perhaps lucky that its Assembly oversees Regulation 3. Like Scotland, it has a more holistic approach, whereas in England the Secretary of State has to bring all the other departments on board.
Who was consulted on what constitutes a river basin district? When did the consultation take place and was everybody happy? The drawing up of the districts was somewhat arbitrary.
If the Environment Agency must carry out a characterisation of each river basin district by December 2004, as specified by Regulation 5, how many of the optional characteristics from the Water Framework Directive list will be included? Will it be a minimal characterisation of only central features, leaving the amount of work to be allowed for as an unknown? I remind your Lordships that, also by December 2004, the Environment Agency must have assessed the impact of human activity on the area of water in every river basin district. That will be a tall order to meet by then. I again raise the question of the capacity of the Environment Agency to do so.
Regulation 8 refers to the register of protected areas. Does that include wetlands; and if not, why not? Environmental organisations are concerned that our regulations make no reference to wetlands, yet they are a vital part of our water system, not only because they mitigate droughts and floods, but also because they recharge groundwater. In the importance of their wildlife, they are unsurpassed. Wetlands are Britain's most significant wildlife habitats.
The water industry would like to know what constitutes good water status. It is hard for it to move ahead with its plans without a clear definition. Who decides what it is? Is it the Secretary of State or the Environment Agency? If it is the latter, and it is unable to deliver the standard required, will it simply water down the definition of good status?
Finally, I come back to the list of powers needed to implement the Water Framework Directive Regulations in the UK. I believe that they are lacking and that the Government will have to bring forward another set of regulations, which will make life very difficult for everybody. At this critical point we have a water pricing round that looks set to ignore a lot of the
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requirements of the directive. The Government have come very late to the importance of the Water Framework Directive. There are a lot of questions to be answered.
Moved, That an humble Address be presented to Her Majesty praying that the order, laid before the House on 11 December 2003, be annulled (S.I. 2003/3242).—(Baroness Miller of Chilthorne Domer.)
Lord Dixon-Smith: My Lords, like the noble Baroness, Lady Miller of Chilthorne Domer, I have some concerns about these regulations. However, I do not think that they are quite as deeply flawed as in the picture that she portrayed, although I agree that there are very significant questions about the adequacy of resourcing and the definition of what has to be done. I hope that if I ask some of these questions, the Minister will be able to respond to them. On balance, my preference is to see these regulations in place, rather than to have them held up on a technical disagreement, because we did not include them in a Bill, which we all argued should be done. I readily acknowledge that.
One must consider the regulations. I start at Regulation 5. This requires the Environment Agency,
"in accordance with Annex II … by 22nd December 2004 … [to] carry out an analysis of the characteristics of each river basin district and … conduct a review of the impact of human activity on the status of surface water and ground water in each river basin district".
The first, and obvious, question is whether the Environment Agency is equipped and funded to do that at the present time. I assume that it has not been doing this work in the past, but that may be incorrect. It may well be that this is subsumed into work that it already does. If that is so, then the additional employment burden would be commensurately less. If this is an additional burden, then it is one for a short period of time. Are the arrangements in place to enable qualified people to be taken on on a temporary basis to do this work? If so, for how long? That is an important issue and it goes to the heart of the noble Baroness's concerns.
It is the agency that has to do this, not the water companies, which actually make use of the water. The agency must also carry out an economic analysis of water use in each river basin district by 22 December. I have an awful feeling that a piece of elastic ought to be attached to that date. It will be very difficult for the agency to attain it.
In Regulation 7:
"The agency must identify any bodies of water within each river basin district which … are used for the abstraction of water intended for human consumption and either … provide",
here we get into difficulties,
"more than 10 cubic metres of such water per day as an average".
When we were dealing with the Bill, the licensing quantity went down to a limit, I think, of 20 cubic metres per day, if my memory is correct.
Of course, the agency and everybody else will have a record of all water abstraction at over 20 cubic metres per day. However, it will be another scale of

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development altogether if they have to take that figure down to those who might be abstracting 10 cubic metres per day and have to start recording all of those as well. The second qualification, all water that might,
"serve more than 50 persons",
could happen at less than 10 cubic metres per day. This will add yet another administrative burden to the Environment Agency and I wonder how it will do it. This increases the load over and above what was proposed in the Bill.
Over the page, in Regulation 9, I found I was getting into considerable difficulty and in the end I became completely lost. I hope that the Minister will be able to explain to me exactly what it means. It deals with what the agency must do. In the future:
"The Agency must … establish programmes for monitoring water status in order to establish a coherent and comprehensive overview of water status within each river basin district".
I wonder what that means, precisely. It goes on to say that,
"programmes must cover … in relation to surface water … the volume and level or rate of flow to the extent relevant to ecological and chemical status and ecological potential".
What does that mean? It sounds wonderful but, as far as I can see, it is jargon. It goes on about,
"the ecological and chemical status and ecological potential … in relation to groundwater, chemical and quantitative status".
Again, these are gloriously imprecise terms. The monitoring programmes must be operational by 22 December, but 2006 this time. There is a little bit more time on that one.
It goes on—and this is where I became completely lost:
"the relevant monitoring provisions of the Directive referred to … are set out in the following provisions of Annex V to the Directive".
So I turned to the directive to see what it says. What it says is:
"Quality elements for the classification of ecological status … rivers … lakes … transitional waters … coastal waters",
and so on. That is all right, just about. But:
"Normative definitions of ecological status classifications".
This is where we are getting into things. A little bit later, we get:
"Definitions for high, good and moderate ecological status in rivers".
We all know what a well-poisoned river is. We probably know what a good quality river is, but it starts to split them into high, good and moderate ecological status and does not even consider poor ecological status. Fortunately the number of poor rivers in the country has diminished, but there are still one or two. I have concerns about that. I am trying to relate this order to the requirements of the directive. It goes on:
"The relevant monitoring provisions of the Directive … are set out in the following provisions of Annex V to the Directive … points 1.3 to 1.3/".
Points 1.3 to 1.3.6 say this:
"Monitoring of ecological status and chemical status for surface waters … design of surveillance monitoring … design of operational monitoring … design of investigative monitoring …
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frequency of monitoring … additional monitoring requirements for protected areas … standards for monitoring of quality elements".
There are no standards there at all. Nobody knows, as a result of reading the directive, what anybody has to work to. We can set our national standards deeply differently from national standards set in every other country in Europe. The whole exercise is in danger of becoming completely meaningless, if that is the case. It goes on with all the other points; the directive continues in this gloriously open way, defining nothing.
The job is left to the Government. Maybe that was what was intended. But the problem is that the Government in the order refer back to the directive, which tells us nothing. There is a dilemma and I would like the Minister to tell me how it is to be resolved.
I turn to the other matter to which I wish to refer. When I looked at the list of persons and organisations to be consulted, I was amazed in a completely different way from the noble Baroness, Lady Miller of Chilthorne Domer. I have never seen such a long list of consultees in legislation or an order. I was not quite so concerned as the noble Baroness, Lady Miller of Chilthorne Domer, as the list of consultees on the river basin plans includes all the planning authorities, all the local authorities and so on and so forth. The opportunity exists for everyone to be aware of what is going on. However, I am not sure what is going on. That is my concern. If the Minister can put my mind at rest by his response I shall be immensely grateful to him. At the moment the co-ordination between the order and the regulations seems to me to be inadequate, but the reason for that, of course, is that the directive is inadequate in its definitions.
8 p.m.
The Parliamentary Under-Secretary of State, Department for Environment, Food and Rural Affairs (Lord Whitty): My Lords, I suppose that I am grateful for the interventions of the noble Baroness and the noble Lord. They asked rather a lot of questions that I hope to be able to answer in part. I had better deal with the nature of the regulations that are before the House. As the noble Baroness explained, we had lengthy debates during the course of the Water Bill on whether the whole of the Water Framework Directive, which was widely welcomed during the Committee and Report stages of the Bill, should be included on the face of a piece of primary legislation. We had some considerable arguments on whether the normal method of transposing European regulations under the European Communities Act was appropriate in this instance or whether the measure should be included in primary legislation.
The noble Baroness takes a different view from me on the matter. She now seems to take a slightly different view from me on the value of the Water Framework Directive itself. Although the noble Lord started out by saying that the Water Framework Directive was welcomed all round, he ended up by saying that it was deeply deficient in many respects. One of the problems is that although the regulations

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implement those parts of the Water Framework Directive that we are obliged to implement, other parts of it, on which further regulations and guidelines will be issued, come into effect at much later stages. That was one of the reasons—apart from the basic general approach to European legislation—why it would not have been appropriate to provide those measures in a Water Bill which dealt primarily with the economic regulation of water.
The question of environmental and quality regulation is getting mixed up to a degree with that of economic regulation. Clearly, there are areas of overlap in relation to the pricing round which I shall discuss later, but the discussion this evening indicates the wisdom of the Government's original determination that this issue should not be dealt with in primary legislation but should be approached through the more flexible method of transposition under the European Communities Act. That in no way diminishes the effect of the Water Framework Directive. It certainly in no way diminishes the degree of involvement and public participation in that process. Indeed, it probably enhances it. The degree of public involvement in the consultation prior to the publication of the regulations was substantial. That will be the case regarding further regulations and guidelines that will be needed later.
For the first time we have a directive that integrates a large number of aspects of water regulation and the whole spectrum of inland and coastal waters, the management of river basins, the linkages between surface and ground water regulation and water quantity and water quality objectives. Those matters were all taken into account. I believe this is the first time that all of that is pooled together, as the directive achieves. Many different complicated aspects are involved. The noble Lord and the noble Baroness were right to question whether the Environment Agency and government as a whole have the ability and the resources to manage the issues. Every government agency always wants more money at any given time but the Environment Agency has increased its funding from £620 million in the year ending in 2000 to over £800 million in the financial year which is coming to an end. Much of that is for water management purposes of various kinds. The direct grant from the Government—
Lord Dixon-Smith: My Lords, I am grateful to the Minister for giving way. Can he be a little more explicit on the matter of funding? He said that the funding had increased from some £600 million in 2000 to £800 million at the end of this financial year and that much of the money is allocated for water management purposes. The problem is that the end of this financial year is 31 March. We do not know what the provision is for next year. The question I want to ask, which it may not be entirely possible for the Minister to answer, is whether the provision that ends in the current financial year is sufficient for, or, indeed, could have taken account of, the potential additional costs that arise from the order.
Lord Whitty: My Lords, the increase in the Government's allocation to the Environment Agency, as distinct from its other forms of income, indeed takes account of the increased duties as there is an agreed process between the Government and the agency whereby that happens. The resources for 2004–05 to which the noble Lord referred are partly covered by the previous settlement. The agency will be adequately resourced; the agency's corporate plan makes that clear. I think that we are reasonably clear about what will happen in 2004–05, but the allocation in 2005–06 onwards will necessarily form part of the coming spending round. However, that spending round will obviously have to take into account the very substantial additional pressures on the Environment Agency in this and other fields.
As regards whether new work is implied in the regulations, about 40 people are already working full time in the Environment Agency on these areas. They come within the resources allocated for the past financial year. Additional staff do not need to be taken on board to deal with those matters. Resources clearly do not present a serious problem; but the next spending round will have to take that forward into the coming years.
As far as public involvement is concerned, there was a pretty widespread double consultation in relation to the Water Framework Directive, and the directive itself is very insistent on stakeholder involvement. We have established a Water Framework Directive stakeholder group for England specifically. There are a number of other bodies which feed into that. We have been through the whole of this consultation on the Water Framework Directive and involved as wide a range of stakeholders as we can. As far as the consultation in the regulations is concerned—based on Article 12—various regulations are not exclusive. They do not exclude other bodies; they lay down which bodies must be consulted, and there will be other regulations that also specify that other bodies, as the agency sees fit, must also be consulted. Likewise as far as the role of the Secretary of State or the National Assembly is concerned, there are other bodies which need to be consulted. Both in terms of resources and involvement, these regulations are quite robust.
A number of quite specific questions arose during the discussion; some of which I may not be able to answer to the full satisfaction of noble Lords. The noble Lord, Lord Dixon-Smith, asked what good status is, who decides it and how we know. The directive sets a process by which good status is established; river basin areas and others are assessed against that. The work is taken through the common implementation strategy and carried through by the Environment Agency. The statement that we made on these regulations in December indicates that the classification regulations will be brought forward by the end of 2006. There is therefore some clear timescale to build that up in more detail.
As far as monitoring of those standards is concerned, the technical details are set out in Annex 5.
Baroness Miller of Chilthorne Domer: My Lords, before the Minister goes on to the point of good status, perhaps I may ask him again—perhaps I did not hear him clearly—who sets the good status. If it is the Environment Agency and the whole thing does not seem to be working, and status is not becoming good as quickly as possible, are they not going to be tempted to lower the standard at which good status can be said to exist?
Lord Whitty: My Lords, I thought I had understood the noble Baroness on that. I do not think that is an imputation as to how the Environment Agency operates. If the Environment Agency sets standards in this and a whole range of other fields, it expects those standards to be followed. It does not then adjust the standards because the industry has failed to meet them; rather the opposite. I am sure that will be the case in relation to the Environment Agency itself; but it requires the Environment Agency continuously to monitor them. That is why, before the noble Baroness stood up, I was about to refer to the details in Annex 5 to the directive, which requires the technical details and monitoring to be carried out. There is already guidance on the way in which that monitoring will be carried out. Therefore the Environment Agency will be well aware if there is some serious shortfall in those standards. Noble Lords can be satisfied that the Environment Agency will operate in its normal way.
Other issues were raised that will also take slightly longer to answer in detail than is available to me tonight. The noble Baroness asked about diffuse controls. The directive requires programmes and measures targeted at the needs of each district, which include diffuse controls, by 2009. Clearly we need another very substantial round of consultations in the development of those powers.
The noble Baroness also asked whether the Water Framework Directive is linked sufficiently to other provisions, especially the Town and Country Planning Acts. Local authorities must be fully engaged in river basin management plans, and, as with land-use plans, these regulations require such plans to be taken into account. The Water Framework Directive will need to be adjusted in the light of some of these other plans, and if it shows that the river basin development planning process has a requirement for new land-use plans or other planning measures, then Regulation 3 requires those new controls to be developed.
The noble Baroness also asked how river basin management plans will be integrated with other nature conservation plans. In this area the Environment Agency has discretion to produce supplementary plans—that is under Regulation 17—and therefore has the opportunity to make links between the WFD-generated plans and other policy areas on conservation, biodiversity, flood defence and so on. There is a linkage there as well.
There is also the question of who will be consulted on the river basin districts. The noble Baroness asked whether they were all happy. We are not clear that everyone is happy, but both our predecessor department and our current department carried out
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three different rounds of consultation on the designation of districts. The end of the first consultation set out the initial proposals that were consulted on, and the final proposals will reflect the feedback that we received on those. Therefore, it is not as though we are suddenly springing a list of districts and river basins on all those who will be involved in managing them.
The noble Baroness, Lady Miller, also asked whether the river basin planning process engaged other authorities in delivering the plans set out by the Environment Agency. The Secretary of State has overall responsibility for ensuring that the objectives are met and, under Regulations 19 and 20, the Secretary of State has significant new powers to ensure that the other authorities participate in the delivery of the plans' objectives.
Concern was also expressed about wetlands. The noble Baroness mentioned this point as, I believe, did the noble Lord. I was asked whether wetlands are covered by the references to protected areas and so forth. Some wetlands will be protected areas if they are designated as such under other Community legislation. Generally, the Water Framework Directive will benefit the environment in wetlands because it contains sufficient provision relating to the quality and quantity of groundwater and the risk of significant damage. The regulations include obligations to take action if there is such a risk. Therefore, wetlands are protected under both the directive and the regulations.
Baroness Miller of Chilthorne Domer: My Lords, perhaps I may press the Minister a little further on that point. Why do the UK regulations make no specific reference whatever to wetlands? They seem to be specifically excluded.
Lord Whitty: My Lords, they benefit from the regulations which cover all protected areas and they benefit from the controls which are introduced more generally. Therefore, I do not believe that wetlands are in any sense excluded from the effects of the regulations. The directive specifically contains wetlands-related powers and responsibilities, and we use the general powers in order to protect the wetlands.
I was also asked whether the definition of a "significant water body" excluded streams and, thus, significant quantities of water going to rivers. The regulations precisely replicate the directive in this respect and there is no exclusion of streams. Where the directive requires the inclusion of streams, so do the regulations. Therefore, we have not diluted—if that is the word to use in this context; I was trying to avoid water puns—the intention of the directive here.
The noble Lord, Lord Dixon-Smith, asked about the register of protected areas—that is, wetlands and others. That register is separate from the register of abstractors, and therefore the threshold is not related to the threshold for abstraction because we are dealing with protected areas in this respect.
I believe that I have touched on many of the specific issues raised in connection with areas of protection and environmental controls. No doubt the noble

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Baroness and the noble Lord will find ones that I have not completely answered. However, both also raised the issue of water pricing in the current price round. The noble Baroness asked when the final guidance will be produced. It should be available within the next few weeks, and it will indicate which policies are to be costed by water companies and included in water prices and which are not.
Clearly, in the whole approach to water pricing in the long term, the Government are very concerned about the quality and availability of water. They are striving to continue the improvements that we have seen to date both through regulation—that is, tackling the issue at source in terms of threats to water quality and availability—and through the way in which we approach the water pricing system. Reports in the newspapers that we shall not take that into account and shall relent to pressure for improvements in the water system are erroneous. Timescale issues are involved here. Clearly one must recognise that both the underlying improvements in relation to water and the effects of the directive will have some effect on prices for consumers both in the short and the long term. We will take account of the current pricing round. In the longer term it is important that we recognise the importance of, and work with, Ofwat and with the Environment Agency to ensure that the total package reflects the need for investment in improvements in the water system.
I believe that the complexity of some of the issues raised and the fact that different parts of the directive come into play at different periods, and have their impact both on water quality, and by whom and how things are regulated and on the pricing system, make this a particularly complicated form of regulation. But the beauty and benefit of the Water Framework Directive is that it brought together a large number of different aspects of water policy and gave a strategic approach to the way in which the national member states and their regulators are to operate to 2015. Some of the implications are not immediately reflected in the regulations before us. However, those which are before us reflect the requirements of the directive, fit in with the Government's policy as enunciated during the passage of the Water Bill and the agreement on the Water Framework Directive. They have been consulted on very widely. There is provision for adequate resources for the Environment Agency to enforce those regulations. There is very substantial further consultation with all parties envisaged in the process for further regulation and for the guidelines required under the directive.
I therefore hope that the noble Baroness does not oppose the adoption of these regulations because I believe that they provide a very sound basis for our future strategy on water policy and regulation both to the benefit of consumers and the industry itself.
Baroness Miller of Chilthorne Domer: My Lords, I thank the noble Lord, Lord Dixon-Smith, for his contribution and the Minister for his detailed reply. I feel a little more optimistic than I perhaps sounded at
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the beginning of the debate. I would like to clarify one point. I was not in any way impugning the Environment Agency in suggesting that it might choose to lower standards. I recognise that it has a herculean task. Given the fact that it may have a lack of power, resources and a lack of help from the pricing round, I wondered whether lower standards would be forced on the agency as a matter of necessity.
I look forward to seeing the regulations come into operation with some anxiety and to the result of the pricing round. I hope over the next year or two that the Government, as they consider the impact of the pricing round and the Water Framework Directive, decide to grasp the nettle of water affordability so that pricing rounds in future will not be such an issue and those who cannot pay will be properly recognised through the appropriate mechanism.
In the meantime I wish the regulations the best passage given their various shortcomings. I thank the Minister and his department for the work they have done on this debate. I beg leave to withdraw the Motion.
Motion, by leave, withdrawn.
Baroness Farrington of Ribbleton: My Lords, I beg to move that the House do now adjourn during pleasure until 8.35 p.m.
Moved accordingly, and, on Question, Motion agreed to.
[The sitting was suspended from 8.23 to 8.35 p.m.]

Planning and Compulsory Purchase Bill
House again in Committee on Clause 46.
[Amendments Nos. W9ZCD to 109ZCE not moved.]
Baroness Hamwee Baroness Hamwee moved Amendment No. 119ZD:
Page 35, line 22, at end insert—
"( ) A local planning authority shall, in considering the matters referred to in subsection (3), have regard to the regional spatial strategy for the region or if the local planning authority is a London borough, the spatial development strategy and any supplementary guidance published by the Mayor of London."
The noble Baroness said: We are still on Clause 46, but dealing with a slightly different issue. The amendment provides that a local authority shall have regard to the regional spatial strategy, or the spatial development strategy and supplementary guidance if the authority is in London, in considering matters that we debated at length under Clause 46(3).
The Mayor of London has raised the matter with the Minister for Planning. I have said that I do not pretend, or wish, to speak for the Mayor of London, but the issue he has raised should be aired. I understand that the points he makes are supported by the South East England Regional Assembly— SEERA. He is concerned that neither the consultation paper on planning obligations nor the new clauses reflect or refer to the regional planning context.
The Government are focusing on the need for regional approaches to housing and planning. We have spent time on the draft PPS11 and the same

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applies to the proposed revisions to PPG3 on housing and the London housing strategy. It does not seem to fit with these approaches to give local authorities discretion to set their own tariff regime—perhaps I should use that term in the widest, almost non-technical sense—and to determine the use to which receipts are put with no regard for either the regional spatial or housing strategies.
I do not argue with the Mayor's concern that the maximum community benefit is secured by, or perhaps from, high-value developments, while at the same time supporting rather than deterring development. The Mayor of London expresses concern about the risks to affordable housing numbers, which is something other noble Lords have touched on. The Mayor says there are major risks that London boroughs will not focus tariff receipts on affordable housing.
Many noble Lords will have come up against the dilemma that boroughs do not necessarily sign up to a regional approach when they are faced with some of the detail. I talk about boroughs, although the point of the amendment is wider. I am sure I am not the only member of the Committee who has, for instance, seen boroughs arguing and agreeing that there should be averages for the percentage of affordable housing in new developments, without any borough apparently volunteering to go above what they say should be the average in order to allow for lower percentages to be compensated. The issue is relevant to other needs, particularly transport infrastructure which will often affect more than one borough.
The Mayor of London also makes the point that developers are seeking a clear and consistent basis. In London, 33 different tariff regimes at different stages of the approval and review process will not meet that objective; that is, 32 boroughs plus the City of London. The mayor is concerned that there is a real danger that some boroughs might want to deter development rather than encourage it and will set their tariffs at an unacceptably high level.
I slightly part company from the Mayor in that a top-down approach is implicit in this. I am sure what he really means to say is that there should be negotiation between the two levels to arrive at the correct answer. However, I sympathise with and support his concern that London as a whole should not suffer and in some ways needs to be treated as a whole.
I inquired of the Mayor's office what response there had been from the Minister for Planning to these representations. I understand that the Mayor was told that the statement on planning obligation would give the necessary reassurances. It does not seem to me to do so. However, I accept that I may have missed something rather subtle. I beg to move.
Baroness Hanham: I intervene to remind the Minister of an earlier debate we had in which there was concern about the relationship of the boroughs to the regional spatial strategy. The argument was that the regional spatial strategy for London was beyond what
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was required. In her comments, the noble Baroness, Lady Hamwee, takes us even further beyond what is required. I add that caveat.
Lord Rooker: The answer is very simple. First, we believe that the amendment is unnecessary. Planning obligation policies will be included in local development documents. The Bill already states that local development documents must be in general conformity with the regional spatial strategy or, in the case of London, the spatial development strategy. So it is already the case that local planning authorities must have regard to regional policies in regional spatial strategies or the spatial development strategy. Therefore, the amendment is unnecessary.
Baroness Hamwee: The point did not come from me in the first instance. The Mayor's planning officers have expressed considerable concern over this matter. It is right that they should look at what the Minister has to say. It will not take them long to read that. I thank the Minister for that very clear answer. I hope that it satisfies them. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Hanham Baroness Hanham moved Amendment No. 119ZDA:
Page 35. line 22, at end insert—
"( ) Planning contributions may not be sought by reference to the value of the land or to any increase in the value of land occasioned by the grant of planning permission."
The noble Baroness said: Amendment No. 119ZDA would prevent the planning contribution proposals being used as a land tax or a development land tax; that is, a tax on increases in value from the grant of planning permission. As it stands, the Bill seems to be capable of either use. We know the temptation for Labour governments to introduce a form of betterment levy or development land tax. Each Labour government have introduced one and every succeeding Conservative government have had to repeal it.
Such taxes on development simply discourage useful development. But the Bill goes further than these general political objections. If Parliament is to allow taxation by taking a percentage of the increase in land values from the grant of planning permission, then it should do so explicitly, setting rates with a proper and accountable procedure. It should not use this scanty provision to do so. I beg to move.
Lord Rooker: We are not going to do so, and it is not a scanty provision. I referred to the amendment earlier as it was originally linked in my speaking notes to another amendment.
As the noble Baroness said, Amendment No. 119ZDA seeks to ensure that planning contributions are not made with reference to value uplift brought about by planning permission. As we made clear in our recent statement, the Government do not see value capture as a primary function of planning contributions. The main focus should be on addressing

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the impact of a development with a degree of flexibility to take account of its viability and of economic circumstances.
We certainly do not want to see planning contributions used explicitly as a means of raising extra revenue unconnected with the development, so we have some sympathy with the amendment. It fits our concerns about inappropriate revenue raising through planning contributions. We still have some way to go in formulating our policy on planning contributions—that is fairly self-evident from our previous debates—and we want to give careful consideration to the principles we will set out on how the charge is calculated. However, we do not think it is right to set this down in primary legislation. I have made the point about regulations, but I hope I have been explicit enough in response to the noble Baroness, Lady Hanham, for her not to press the amendment.
Baroness Hanham: I thank the Minister for that reply and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
8.45 p.m.
Baroness Hanham Baroness Hanham moved Amendment No. 119ZDB:
Page 35, line 22, at end insert—
"( ) A relevant requirement may include an obligation entered into without the consent of the local planning authority."
The noble Baroness said: The amendment retains existing provisions that allow developers to enter into an obligation without the consent of the local planning authority and for that to count as a relevant requirement. Developers may need to make contributions by requirements to address other issues. The Government appear to indicate that these will be agreements with the local planning authority.
However, the present system allows developers to enter into unilateral obligations to which the local authority has not agreed. This is particularly important in planning appeals, where the authority will not—probably understandably—be prepared to sign an agreement. It is important that the ability to make unilateral obligations tailored to a particular scheme is retained. I beg to move.
Lord Rooker: I am grateful to the noble Baroness. My brief refers to the amendment's "purpose and effect". Sometimes in the other place I used to use the "purpose and effect" statement as a substitute speaking note, because it was clearer. In this case, my brief states that the purpose of the amendment is unclear, followed by either/or. I have speaking notes for each possibility, but the noble Baroness has been kind in making it absolutely clear that the amendment is aimed at retaining unilateral undertakings.
It is our intention that the existing system of making unilateral obligations should remain under the new system. They provide a useful mechanism for applicants to appeal to the Secretary of State against
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refusal of planning permission and to make what he considers to be a reasonable contribution without it having to be negotiated with the local authority. I hope that that is a satisfactory explanation.
Baroness Hanham: I thank the Minister for that clear reply. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Hanham Baroness Hanham moved Amendment No. 119ZE:
Page 35, line 24, at end insert—
"( ) Provided the planning authority have complied with all the regulations relating to planning contributions, the Secretary of State may not cause a plan to be rejected or revised on the grounds that the authority have set the charge at too low a level."
The noble Baroness said: The amendment is designed to prevent an intervention by the Secretary of State after much work has been carried out at local level to reach a consensus on the level of planning contribution. As the Bill stands the Secretary of State has significant power to amend a plan. It would be a great shame and an insult to local democracy if the Secretary of State were able to revise or reject a plan on the grounds that the authority had set the charge at too low, or for that matter, too high a level.
While intervention because the charge was too high would be equally bad, this is unlikely to occur because no developer would have come forward in those circumstances. Much effort at a local level will go into setting the charge. As I understand, it will be subject to community involvement and negotiation with developers. It will no doubt be a lengthy process and undergone at great cost to the local authority in resources and man hours. The Secretary of State should not be able to take matters into his own hands if the authority has complied with all regulations relating to planning contributions. I beg to move.
Lord Rooker: I fully understand why the amendment is there, but, as in one or two other areas of the Bill, it is necessary for the Secretary of State to reserve some powers. It is definitely the function of local planning authorities to determine the appropriate level of charges for their area in relation to the impact of development there. The Government do not wish to intervene in that process; we would do so only sparingly and as a last resort. We believe that it would be acceptable in certain circumstances for the Secretary of State to be able to intervene.
If a planning charge were too low—in a way that sounds subjective—it could mean that the local authority had not properly considered the possible impacts of the development—mistakes can happen— or had disregarded them in setting out the policy in the first place. So it must be reasonable for the Secretary of State to have a power to require the local authority to change such a policy which is detrimental. The point is that the Government need to look out for the interests of local communities and ensure that sustainable patterns of development are delivered. I hope that local planning authorities will agree with that.

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In some cases, if the assessment of the impacts has been inadequate and the charge will clearly not cover the cost of the impacts, it may be appropriate for the Secretary of State to intervene. Without such intervention one could end up with a local authority granting planning permission for a whole range of various developments, leading to a lower quality of life for its community because it had not taken account of the impacts of the development. I repeat that, as with all the powers of intervention, it should be used sparingly as a last resort, after the local authority had had the error of its ways pointed out to it. One has to be factual. If the Secretary of State was thought to be abusing his powers and being unreasonable, one could go to my learned friends in the courts. However, that would be an issue of last resort, and not what we would expect to be a normal operation, although we feel that it needs to be there just in case.
Baroness Hanham: I am trying to imagine a scenario in which the Secretary of State would be involved and I am trying to imagine who would appeal to the Secretary of State because there would have to be an appeal about the charge. Presumably it has been negotiated against all these wonderful tariffs about which we spoke two or three amendments ago, and against the criteria that have been laid out so that the developers know exactly what they are signing up to. That is the power of this tariff system. If the charge were set at a level that was too low—that would have been agreed against the criteria—at what stage does the Secretary of State intervene? Does he intervene on the basis of the criteria, that we shall end up with a dog's breakfast, with far too little return for any planning obligation? Or will someone appeal to him, such as a residents' association, saying, "Look what the local authority has done; it has not even bothered to go by its own tariffs"? Or will a developer say, "Look, they have not taken enough money off me; they could have taken loads more"? It would be helpful if the Minister could set the scenario.
Lord Rooker: Without taking advice, I believe I know exactly what would happen. On the basis of such developments, the Government Offices of the Regions, who are our watchdogs in the areas, monitor planning applications and matters such as the density directive. Therefore, I suspect that through the Government Offices of the Regions there would be a call to arms that a piece of advice or a phone call has not worked, and therefore the Secretary of State needs to be informed about it. The noble Baroness is right that they would be able to levy that only if they have had regulations approved by the Secretary of State or the Secretary of State has produced regulations, as we debated earlier, setting out all the criteria. It is difficult to imagine precise circumstances, but they are considered remotely conceivable by the drafters of the Bill. I think the answer would be the Government Offices of the Regions—they are the eyes and ears of the Government—because Whitehall does not always know best.
Baroness Hanham: Too true. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Hanham Baroness Hanham moved Amendment No. 119ZF:
Page 35, line 24, al end insert—
"( ) The Secretary of State shall fully reimburse any local planning authority where it can demonstrate that there is a net cost to them in preparing these regulations."
The noble Baroness said: The new clauses on planning gain will give local planning authorities much extra work. They will have to offer developers the opportunity to pay a tariff on top of continuing to negotiate Section 106 agreements, if that route is chosen instead. Significant resources and man hours will have to go into setting up this new scheme. Will the Government provide local planning authorities with additional funding for the purpose of establishing the tariff system? Our amendment would make it clear in the Bill that where additional costs are incurred by local authorities in preparing these regulations, the Secretary of State shall fully reimburse them. The alternative is to further burden authorities, which are already stretched to breaking point. They would certainly not thank the Government for demanding that they use scarce planning officers and valuable resources to set up this system, without providing any additional funding. I beg to move.
Lord Rooker: The effects of this wonderful policy are so great that there will not be lots of new burdens. In fact, local authorities will gain a lot from being released from certain aspects of red tape. We recognise the concern that people might see it as a burden on authorities, but there may be savings as well as costs. We also have a mechanism for dealing with substantially increased burdens on local authorities. I can assure the House that it is the case that where policy initiatives come from other departments, or there is discussion, and this point comes up about new burdens on local authorities, we constantly say to our colleagues elsewhere in the Government, "You cannot do this, you must pay for it". I say to people, "Look, I have to got to go to the House of Lords and face Lord Hanningfield, the leader of a key local authority, who will also tell me that there are new burdens". We have a mechanism for dealing with this.
The new system, once it has bedded in, is likely to lead to less time and resource input in individual applications, particularly if people go down the charging tariff route. Once all the guidance is done, once the regulations are done, if it is a formula, it will be a case of fairly mechanical up-front calculation, and there ought to be less time spent on it.
I remind the Committee that in this spending round the Government have made £350 million extra—new money—available to local authorities over three years. We are about to enter the second year of the three years. I do not know whether the decisions have been announced yet—I have lost track—but the first year was only £50 million to £60 million. The greater expenditure will come in years two and three. This is designed to put extra resources into local planning

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authorities to support them in the reform programme. We are also reviewing planning fees to see whether they are adequate.
There are some savings here, and a lot of new government resources are going directly into planning. The planning delivery grant is only paid out as a result of improvement in planning performance. When it is paid out, it is not ring fenced, and local authorities can use it for whatever they wish, because they will have already achieved the performance standard. If there is a new burden, I genuinely believe that we have the mechanism for taking care of it. In this case, the policy is so wonderful that there will be savings.
Baroness Hanham: The Minister can make himself believe anything. I do not agree with that response. The Minister listened carefully to the noble Lord, Lord Best, so he should understand that this is not something that is capable of being resolved equally easily by someone licking a pen and adding up a formula. It will be far more complicated than that. Whatever happens—whether people continue to go for Section 106, or they go for this new tariff—it is inevitable that there will be negotiation. People must be experienced in dealing with that, and those people are more expensive than those who are not able to deal with these areas. I note what the Minister said, and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
On Question, Whether Clause 46 shall stand part of the Bill?
Lord Cobbold: The arguments in favour of retaining and improving the existing Section 106 agreements and for rejecting this clause have been well rehearsed in our discussions. Some of the major problems associated with the new proposals were ably expressed by my noble friend Lord Best in an excellent speech. My concerns with the new proposals, which were outlined earlier, have been largely met. The Minister has confirmed that local authorities cannot impose planning contributions on developers. In paragraph 12 of the statement, which we were given the opportunity of reading in the short break, I have found a satisfactory answer to some of my other concerns. First:
"It is not the Government's intention, in reviewing planning obligations policy, to simply enable local authorities to raise extra revenue".
That is an important point.
Secondly, it says:
"The Government's objective … is … not to enlarge the scope of planning obligations beyond current practice".
Therefore, they propose to stick within the broad line of the Section 106 arrangements. Thirdly, it says:
"a new policy would make clear that development proposals which are acceptable in planning terms should not be rendered unviable by the introduction of extraneous requirements unrelated to planning".
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That deals with another problem. Finally, it says:
"the planning contribution offered, by whichever route, should be related to the impact of development and be relevant, proportionate and reasonable".
Those words are significant to the debate.
In paragraph 24, there is another comment that, I thought, best summed up our deliberations and surprised me somewhat:
"It is also wrong to infer from the introduction of legislation that decisions on how to use that legislation have already been taken. They have not".
I finish my speech with that thought.
9 p.m.
Lord Avebury: I also had the opportunity to read the document during the hour that we had for dinner. It seems to me that the Government's decision to shorten the period of consultation to nine weeks was not justified by the outcome of the consultation.
In paragraph 5 of the document, the Government say that they consider that it was,
"better to supply Parliament with an output from that consultation as soon as possible, and whilst the Bill is still under consideration, than to have the consultation still going on as they consider it".
As the Minister said, it made no difference to the amendments to the clause that we have been discussing. If we had not had the document—we very nearly did not—the outcome of those discussions would have been the same. In paragraph 25, the Government say that they will undertake,
"further … consultation. In the light of the consultation which has recently finished, and the conclusions of the Barker Review of housing supply, the Government will publish draft Regulations and a draft policy to replace Circular 1/97".
Was there any point in shortening the statutory consultation period from 12 weeks to nine weeks for the sake of producing such an inadequate document at this stage?
The Government say that there will be an opportunity to comment on the draft regulations and draft policy that will replace circular 1/97 before the policy is finalised. It would have been useful to have that all in one bite, instead of having a partial document now, which is not much use to the Committee in its consideration.
Lord Best: I suggest that Clause 46 should not be in the Bill, partly because of the practical difficulties that we discussed and partly because of the dangers that, I fear, it poses to the provision of affordable housing, despite the Government's good intentions.
It is certainly true that the current arrangements for Section 106 agreements are not working too well. A major research project by the universities of Cambridge and Sheffield, led by Professors Christine Whitehead and Tony Crook, showed that negotiations over the agreements lacked clarity, varied in effectiveness between authorities and suffered from shortages of planners with the skills to negotiate sophisticated deals with developers. I declare my interest in the research, which was largely funded by

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the Joseph Rowntree Foundation, supported by the Housing Corporation, the Royal Institution of Chartered Surveyors and the Countryside Agency. I chaired the project's advisory board.
The defects in the current system of negotiation are not so awful that they cannot be remedied. We should be careful about inventing alternatives before trying out ways of improving the present system. The good news from our research was that the use of negotiated Section 106 agreements had meant that housing associations had obtained 12,000 to 15,000 affordable homes each year on sites being developed by private house builders. In earlier times, house builders would only have built homes for sale on the land that they secured. A housing association would have produced segregated social housing and, perhaps, some shared ownership housing on whatever land was left for it to buy.
That separation of house builders and housing associations led to stigmatised rented estates for poorer households on the worst sites—between the gas works and the motorway, or on an unpopular council estate. That further marginalised those people on low incomes. The deals now being negotiated between developers and planners are enabling housing associations to secure homes on decent sites and to provide rented homes or low-cost home ownership in mixed communities, which raise, rather than diminish, the life chances of those households.
Overall, the present system is benign and beginning to be accepted by all parties. As our research project concluded, Section 106 agreements have,
"changed the geography of new social housing"
to good effect. The Minister can properly suggest that the Bill includes many safeguards. Today's statement from the Office of the Deputy Prime Minister covers some of those issues. It explains that a revised planning policy guidance note PPG3 will make clear that a financial contribution in lieu of affordable housing will be acceptable only in limited circumstances; for example, where the cash raised might be sufficient to produce a better development solution elsewhere. But my concerns are not just about the planning contribution, the tariff, being payable in cash rather than in kind. I accept that the intention is not to raise revenue for spending on unrelated purposes or even, usually, to subsidise social housing built on a separate site.
There are more subtle dangers from that opening of a Pandora's Box, including intense pressures on politicians to minimise the amount of affordable housing built in anyone's back yard. I know from the work of the Joseph Rowntree Housing Trust that people can feel real hatred for proposals to build what they believe, in the words of one of the anonymous poison-pen letters sent to my home, to be,
"squalid little houses for the poor";
whereas in reality we are planning a mixed-income community to extremely high standards. The City of York will not succumb to such pressures. But in some places the chances to take the alternative, more electorally popular, benefits from a developer could be
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seized upon. Those people living beside a planned development will always have a shopping list of alternatives to affordable housing which tariff funds could cover—local amenities and facilities, improvements to the roads around the site, environmental enhancements and so on.
Perhaps pressures and temptations will be resisted and just as much affordable housing as now will result. But why risk any reduction when, as Kate Barker's interim report for the Chancellor suggests, we need a step change in output of affordable homes of at least 31,000 extra homes, just to keep pace with rising household numbers?
I believe that Section 106 agreements can be redeemed. I refer your Lordships to the suggestions by the ODPM Select Committee and others for ways of making the current system work better. Obstructive practices could be outlawed and timetables set for Section 106 agreements to be negotiated. Systems could be put in place for arbitration and mediation to break deadlocks and see fair play for all parties. The planning improvement grant, mentioned by the Minister, to up the game for planners, should produce better skilled people, able to negotiate those deals. This week the Joseph Rowntree Foundation is publishing advice for house builders and housing associations on ways they can work better together using standard documents and clearer procedures for partnerships.
Rather than risk the consequences of an untried scheme that could mean less affordable housing, or housing on the worst sites that are away from the mix and community balance of tenures and incomes that we all strive to create, it would seem preferable to test out the various opportunities to improve existing negotiated Section 106 agreements, as the ODPM Select Committee and others have suggested.
Baroness Hanham: I have had quite a lot to say on Clause 46 stand part so I do not propose to say very much more, except that I think we will be back here again in the not-too-distant future.
The Minister will have the sense that not many noble Lords feel comfortable with planning tariffs. It is not really helped by the Deputy Prime Minister saying in paragraph 21 that the Government's
"planning obligations policy will need to be consistent with the final version of revised PPG3 and the Government therefore expects that the final version of updated PPG3 and its new policy on planning obligations will be issued simultaneously".
The Government's new policy on planning obligations is presumably part of the Bill. Therefore, one hopes, before we get anywhere near the publication of PPG3, the policy will have been made clear and defined in the course of further debate on the clause.
We have still much work to do. My view is that we would do better to scrap the whole proposal, but clearly there will be a long way to go at Report and

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Third Reading before we reach that stage. This whole question has highlighted the considerable reservations among everybody in the Committee.
Baroness Maddock: I also support the proposition that Clause 46 should not stand part of the Bill and the other propositions grouped with it.
We have had quite a long discussion about this. The noble Lord, Lord Best, with his great expertise, put the case for concern about the provision of affordable housing very well. We are left with one or two questions which we will need to explore further and to which we need rather better answers. The Minister was fairly glib when he was tackled on how local authority planning departments would deal with this. Most of the people who replied to the consultation think this will be a problem. There will be a need for greater expertise, particularly on valuations. We know that planning departments are heavily pressed at the moment. I noticed at the weekend that my local authority, Berwick-upon-Tweed, cannot fill a senior planning post. It has upgraded the person who is currently in post and is desperately trying to get someone to fill it.
The noble Lord, Lord Best, touched on this issue. What worries me is that we do not know how this will work out. There have been no pilots, to the best of my knowledge. Perhaps the Government have done some role-play training and have some idea of what work will be involved—I do not know. But it seems that much of this is supposition and the wish that it will go right when many people can see the problems that might ensue.
I am still terribly concerned about housing. How will local authorities deal with windfall sites—the large proportion of developments in urban areas—and take into account development which is unknown when preparing their local development framework? It has become clear that in some cases we will still need Section 106 agreements—we will still need that expertise. My noble friend Lady Hamwee asked about the repeal of Section 106. I hope the Minister will look further at that because we are still very worried about it.
Reading the statement that came out on Friday on the results of the consultation, I find it even more confusing. The noble Baroness, Lady Hanham, referred to planning policy guidance on housing and how that will fit in. What worries me is how social landlords will procure money for development under this complicated process, especially where two processes may run side by side.
We opened the debate this afternoon from these Benches with the proposition that we look at Section 106. As the noble Lord, Lord Best, said, it took time for people to get used to that. A lot of good work has been done. The section is by no means perfect, but at least people know what they are dealing with. There is a great deal to be said for looking at improving that. Although the Government did not follow them through, many respondees to the consultation had
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proposals for improving the operation of the current regime. However, the Government have stated that they will launch another consultation and pass the suggestions to a consultant who will be employed to draft the best-practice guide.
We have made a good case for improving Section 106. The consultation has showed that a lot of people are in favour of that. I know that we will return to it at a later stage, but I hope that we can persuade the Government to think again on the matter.
9.15 p.m.
Lord Lucas: It appears to me that far too few in the development industry were brought up on AA Milne or they would have remembered "always keep a hold of nurse for fear of finding something worse". Indeed, they have on this occasion. Having put the Government to a great deal of trouble to develop an alternative to Section 106, they now wish that they had Section 106 back and did not have this new, uncertain beast in front of them.
The noble Lord, Lord Rooker, has been extremely helpful today. I have learnt a lot and will doubtlessly learn more from Hansard. I wonder if I may ask him for one extra bit of help. Between now and Report, I would really like to speak with some of the consultees who have already supported the new arrangements, so that I can understand, particularly if they are developers, what advantage they see in it. I feel that I have missed in the people with whom I have spoken that side of the argument. I presume that the replies are public documents and that it should therefore be possible to acquire names and addresses in whatever way suits the Minister. I should be enormously grateful for that opportunity.
Baroness Hamwee: I have one short question that follows on from the point of my noble friend. Have the Government worked through any examples of how formulae might operate? If they have, and feel they are fit to be shared, it would educate us all well.
Lord Lucas: I have a more immediate question. Given the state of unpreparedness and the Minister's comments on how the beginning of Clause 46 has been drafted, and given the uncertainties and difficulties, can we hope that the idea might be piloted to see how it works before it is rolled out in a large way? I support the comments of the noble Baroness, Lady Maddock, on the abolition of Section 106. It was frightening to find that in the Bill when we had been told that Section 106 would be twin-tracked and would not be lost.
Lord Rooker: In this area, I have probably offered the House poorer responses than for any Bill I have put before it. I feel guilty about that. On the other hand, I do have some solutions. First, we are only in Committee, so time is on my side.
In 18 years in opposition, we had about four days' training. That was in about 1995–96. We had a couple of days at Templeton College. The course did not quite instruct us how to be Ministers, but how to be better

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than bad Ministers. Of all the lessons I learnt, and I have forgotten some of them seven years later, one stands out: if you are going to make a big change, pilot it if you can. That warning came from former Permanent Secretaries, former Ministers, from the private sector and—dare I say it?—from consultants too. "Pilot it if you can". That is always worth doing. We have done that as a government. An enormous number of policy initiatives since 1997 have been piloted. I do not know about this, but we have certainly had discussions about it as regards parts of other legislation at ODPM. I shall take back that suggestion.
As to the other point, the two speeches given tonight by the noble Lord, Lord Best, were as disturbing as they were practical. That is a compliment, by the way; it is not intended as a criticism. I shall not, at any time in the future, be put in the position where all this is going down the plug hole and somebody observes that, on a dark winter's night at 9.20 p.m. in an empty House of Lords, the Government were warned about this and did not do anything. I am not going to be put in that position.
I need to keep the clauses in the Bill and I would rather we did not have a vote on clause stand part. Therefore, I shall suggest to my colleague, the planning Minister, Mr Keith Hill, and to the Deputy Prime Minister, that the researchers to whom the noble Lord, Lord Best, referred, be contacted by the department, if they have not already been contacted. For Report, I want a precise answer to every one of the concerns that have been raised here tonight, particularly on affordable housing. I have some glib answers, but I shall not use them. They are not, to be honest, substantive to the issues that have been raised. It is absolutely crucial that that be done before we reach the Report stage. In so far as the consultees are concerned, all the consultations are public. I think there is a caveat if one does not want one's name and address given, but, generally speaking, if there is the slightest difficulty in making contact, we will correct it.
This is a highly sensitive, controversial part of the Bill but it need, not be a problem. There are solutions. To help the Committee, we could suggest that between now and Report the Minister creates an incident, if you like, in one of the committees rooms where some of the consultees from both sides could talk to noble Lords. This is not technical to the Bill, but technical to the policy of the Bill.
The Bill is not prescriptive: much can be done by regulations in these clauses. It is therefore important that as much information as possible is available to Peers. It is absolutely clear that the Government have had warnings of a highly practical nature tonight about these clauses. A noble Lord mentioned Kate Barker's review, which will be finalised by the Budget, and which calls for a substantial increase in affordable housing. It is absolutely right that we do not want to lose anything by changing.
One of the other points we were told during those four days—I had it typed up at some time—was that big problems do not always need solutions, but
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Ministers love big Bills. In other words, where there is a problem one does not have to look for a huge telephone directory to solve it if there are other ways of doing it. But it is the first thing Ministers go for. It is almost an ego trip to have a big Bill. That has never been my view. I think that we should have a year free of Bills and have a look at what the effects of the previous Bills have been. Part of the system is barmy, but that is not the issue here tonight.
One of the points that was raised is one that I want to answer. I did a kind of clause stand part when I introduced the original amendments, before the adjournment. That is the issue—I am sorry, I forget who raised it, I think it was more than one Peer—of the reference to the final version of the revised PPG3. The Government expect that the final version of the updated PPG3 and the new policy on planning obligations will be issued simultaneously. This is in the statement that has come to the House today. The question—it was the noble Baroness, Lady Hanham— was whether this is in the Bill. The answer is. no. We shall finalise the policy in consultation with the stakeholders. By "policy", the Government mean the replacement for Circular 197, which will be issued in draft for full consultation. So, as we implied in the statement, there is much more consultation to take place.
However, frankly, there must be a bit of consultation with me before I get "kebabbed" on Report. We need some answers. I take what has been said on these clauses extremely seriously. I shall ask my colleagues to consider seriously what has been said, to find solutions that do not have unintended consequences and to give serious consideration to the suggestions that have been made by the noble Lord, Lord Best, and in particular by the noble Lord, Lord Lucas.
That is probably the best reply that I have given tonight; the rest have all been quite inadequate for which I apologise. I shall do better on Report.
Lord Cobbold: It is quite clear that we shall return to these very important topics in the future. But in the mean time, the clause should stay part of the Bill.
Clause 46 agreed to.
Clause 47 [Planning contribution: regulations]:
Lord Lucas Lord Lucas moved Amendment No. 119A:
Page 35, line 28, at end insert—
"( ) Provision may be made prohibiting the making by a local planning authority of any or all charges or other requirements of a specified description in respect of a development in which a planning contribution is to be made."
The noble Lord said: I believe that this matter has probably been covered by the Minister today. However, I shall ask him about it again just to make sure that my understanding is correct. If you have paid a planning contribution, there may be many things which you need the local planning authority to do. You may need access roads to the relevant site or flood defences. You may require local schools to be built before you can move families on to a site. There may be a lot of things that you think you are paying for with

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that money. So how do you specify what you have bought with your planning contribution? How do you know what you will get and, indeed, when you have got it, how do you control the timing and specification of it? It is part of the operation of Clauses 46 to 48 that I do not understand. I should be grateful for some enlightenment. I beg to move.
Baroness Hanham: I have tabled Amendments Nos. 119C and 119D that follow on more or less from Amendment No. 119A in the name of the noble Lord, Lord Lucas.
Amendment No. 119C was tabled in the other place and I hope that it will receive a favourable reaction from the Minister today. It prevents the local authority altering the planning once planning permission has been granted and remains in force, and any condition relating to planning contribution has been agreed with the applicant. Effectively, once an applicant's agreement has been given, the local authority cannot then adjust that upwards. The Government surely cannot condone a situation where a developer had got planning permission and agreed the tariff with the local authority, that tariff was still in force, and it was then altered by periodic revision. It is important that once a sum is agreed, it is binding on both parties.
Amendment No. 119D probes the Government on what they expect to be the relative sums attached to a Section 106 payment and a tariff set by the local authority. This is the type of detail that it would be easy for the Government to say must be left up to the authority in question, but I think it is important that we have some indication at this stage. Does the Minister anticipate that the tariff will be more than indicated in Section 106 because of the time and resources that a developer will save by not entering into negotiations—except that we have all agreed that they will have to enter into negotiations—and because the process will, at least in theory, be quicker? However, I am not sure that it will be quicker. The purpose of the amendment is to probe the question whether, if there was an adjustment to the planning application following the tariff having been negotiated, the original negotiations should be binding unless a major change had taken place. Further, will there be any relativity between Section 106 and the tariff?
Baroness Hamwee: It did not occur to me until I saw Amendment No. 119C to wonder what happens when there is a fairly long gap between setting an amount and its payment. Do the Government anticipate that regulation will allow for some kind of inflation linking; or are local authorities and developers expected to be able to see well into the future regarding how much an amount agreed in year X will be worth in year Y?
9.30 p.m.
Lord Rooker: These are serious issues, and simply because of the stage we are at with these clauses, there are a few things I need to put on the record and not skimp the reply to them. Forgive me for the length— it is important given the issues that have been raised.
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I will deal with the amendments in order. Amendment No. 119A seeks to control the exercise by the local planning authority of its powers under the planning contribution provision, by ensuring the planning authority cannot require more benefits where a contribution is already paid. There is a concern here, but the Government think the amendment is unnecessary.
The existing provisions provide that the Secretary of State may by regulation determine the circumstances in which a planning contribution may be sought, and therefore by extension the circumstances in which a contribution may not be sought. This might include circumstances in which there was a danger of other statutory powers to charge being duplicated through a planning contribution. The Government do not want this duplication to occur, nor do we want duplication cases where some planning matters are dealt with by a charge and some by negotiation. These issues will be considered when we prepare the regulations; indeed, we will consult on this very point.
The planning contributions are not intended to cover all possible costs relating to a new development. They are intended to cover planning matters. There may be non-planning matters raised by a development proposal from which it would not be appropriate to preclude other charges.
Amendment No. 119C is unnecessary but we are sympathetic to the principle of seeking to ensure that the size of a charge does not increase once it has been agreed between a developer and a local authority. That is obviously in the context of a planning permission. One of the main objectives of the reform is to improve predictability for the developer about the scale and type of contributions—that is, as an alternative to the long-drawn-out Section 106 provisions, which have taken many years in some cases. We will also want to ensure that developers have the benefit of certainty when they agree to a planning contribution with an authority. So once they have gone through and they have agreed, they can make their decision to proceed or not.
The Government envisage that the local planning authority will be bound not to increase the charge under an agreement made with the developer at the point of planning permission. No developer will opt to pay the new charge unless it can be sure about that in the first place. They will not sign up to a charge if they think it can be varied. We believe that this should remain the case for as long as the permission remains in force. I cannot be clearer than that on the important issue of it being ratcheted up over a period.
Benefits provided through a planning contribution, whether through the optional charge or negotiation, will be material considerations in decisions on whether to grant planning permission, just as benefits offered in planning obligations are at present. Once a planning permission is granted, the local authority cannot prevent the developer implementing permission if the contribution has been met. We cannot see any circumstances in which it would be reasonable to revise charges upwards other than where agreed by the

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developer at the point of planning permission, in the same way that occurs now through the existing negotiated system. It is down to the agreement by the developer at the point of planning permission.
The other point that needs mentioning is about the reference to the Secretary of State in the amendment. We do not envisage the Secretary of State intervening at all in the case of individual planning contributions, since these are matters basically between local authorities and developers. In any event, after planning permission has been granted the Secretary of State would have no locus to reopen a legal agreement properly arrived at. I hope that puts that one to bed.
The Government think Amendment No. 119D is unworkable and unnecessary, but we certainly sympathise with those colleagues who tabled it. The proposals in the amendment seek to ensure that the charge is not set at an excessively high level which extends beyond meeting the impact of the development and which would be prohibitive to developers. That is a view that the Government share and I believe I made that clear during debate on previous amendments.
There are difficulties with the amendment. First, we do not believe that it would work in practice. It would set a limit on the charge compared with negotiated agreements. However, almost by definition, the outcome of a negotiation is uncertain. Therefore, it would be impossible to say what the cap on the charge should be in any particular case. The negotiated alternative would be hypothetical.
As mentioned, the aim of the amendment is presumably to prevent the charge being ratcheted up beyond what is warranted by the circumstances of the development and what is fair and reasonable to the developer. I hope that the statement that we issued gives reassurances on this matter, and I shall repeat it for that purpose. It is not the Government's intention that the charge should be used to extract more benefit than is necessary to make the development anticipated by the local plan acceptable in planning terms. Local planning authorities will be required to set out their policy on how the charge will be calculated and therefore developers should know, before deciding whether to opt to pay the charge, how much it will be. Therefore, the charge is, indeed, optional. It is not a question of abandoning one system and imposing another. It is an optional way forward.
I could say more on this subject but I believe that I have covered the main points raised. I hope that that has been useful for those who will be thinking about this matter and advising colleagues on Report.
Baroness Hanham: I may have misunderstood what the Minister said. When we discussed my amendments two or three groups further back concerning the Secretary of State being able to intervene if a charge was set at a level to which someone, such as the regional officer, drew his attention, it was clear from the Minister's reply that the Secretary of State would have the right to do that. However, from the Minister's response just now, I understood that the Secretary of
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State would not be able to intervene in what was a binding agreement. Are these different parts of the same story or are they two different stories?
Lord Rooker: I am working on the assumption that both are correct. Once a planning permission has; been granted, the Secretary of State will have no locus to reopen a legal agreement properly arrived at. That sentence may hang on the words "properly arrived at". If it has not been properly arrived at—that is, if the policy, guidelines and regulations have not been followed—it will be possible to do that.
On the other hand, returning to the answer t:hat I gave in debate on the earlier amendment when I referred to the Government Offices for the Regions, I envisage that the Secretary of State would be alerted before the planning permission had been given. The Government Offices for the Regions would know about planning applications being submitted for big developments. I have discovered that they know far more than I had realised. Therefore, I believe that both are correct and the one does not contradict the other. However, as I said, I believe that the answer to the second part may hang on the words "properly arrived at".
A note which has just arrived will tell me whether or not I am right. In relation to our previous discussion, obviously the Secretary of State cannot intervene once planning permission has been given. The right of intervention at that point relates to the development plan document policy and not to the individual agreements. Perhaps I did not make that clear. In other words, the Government Offices for the Regions would know about the development plan policy but not as it related to an individual agreement about a particular planning permission.
However, that is not to say that we do not monitor planning permissions. We monitor matters such as the density directive and so on. There is also the question of how we know in Whitehall whether to call in one of the thousands of applications that exist. One reason that the Government Offices for the Regions were set up by the previous Conservative government, for which we are extremely grateful, is that they act as our eyes and ears in the region. Therefore, there is no contradiction between the two answers that I have given.
Lord Lucas: I am very grateful for that answer. I missed any reference to the abolition of Section 106. Perhaps it is already in Hansard and I have simply forgotten. However, if the Minister wanted to add anything, I should be very grateful.
Lord Rooker: No, I do not. I will get it wrong now. I have nothing to add to what I said previously in answer to the noble Baroness, Lady Hamwee, who asked me why there was a reference to the matter in repeals. Nobody has contradicted what I said so I have to assume that the answer is correct.
Baroness Hamwee: Before the noble Lord, Lord Lucas, withdraws his amendment, my concern is that

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while I understood that several sections might be repealed in the future—apparently, that can happen sequentially; it does not all have to happen on the same day—that raises the issue that the system's life in parallel may be limited. That adds to some of the confusion and worry which is present at the moment.
Lord Rooker: Perhaps I may reply to that. I reaffirm what I said about the abolition of Section 106. It will be repealed but reconstituted in regulations. That is what I said in the original debate earlier. In other words, we are rewriting Section 106 and learning from the best practice. It will be put into regulations while at the same time giving an optional alternative approach, not a replacement. I know that it sounds like a contradiction when I say that we are not replacing Section 106 but we are going to abolish it. We are abolishing it in one form only to put it back in regulations. As I have said repeatedly, anyone who wants to continue a negotiated way of planning obligations by the Section 106 route will be able to do so. That route is not being abandoned for any developer who wishes to use it.
Lord Lucas: I am very grateful for that. If the noble Lord can produce for me a short letter saying where in the Bill the powers reside to do that—that is, which particular clauses will be used to reproduce Section 106—I shall be very grateful. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Lucas Lord Lucas moved Amendment No. 119B:
Page 35. line 28, at end insert—
"( ) Provision may be made requiring a local planning authority to provide promptly all the infrastructure for which they are responsible in respect of a development on which a planning contribution has been made.
( ) Provision may be made requiring a local planning authority to consult the community affected by any development for which a planning contribution is to be paid as to the purposes for which that planning contribution shall be deployed."
The noble Lord said: For some strange reason this amendment contains two entirely unrelated subsections. The first is merely to try to tease out how, if one paid a planning contribution which is meant to cover some kind of physical work, one is able to ensure that the work is done. Let us say that, as a major developer, one has given the delightful local authority £5 million or £10 million up front and part of it is supposed to pay for the access road, the new school or whatever it is, and it does not appear. What mechanisms are there, when one has a number of unsaleble houses because there is no road to them, to make sure that the money expended is put to good use?
The second part of the amendment is much more serious. At the root of Section 106 there is the concept that the local community is suffering some pain from the development and a diminution of facilities, such as green space, which it used to enjoy and that its roads will become more crowded. Some of the benefit should appear locally. That is implicit in the way in which
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Section 106 and the surrounding regulations are worded. Although it is often honoured in the breach, that is there at least as a principle. If Section 106 were better organised, perhaps we would see more of that.
But the new arrangements seem to lose that entirely. One can pay a planning contribution and it can be used 50 miles away on the other side of the planning authority and none of the benefit is seen locally. I believe that that is a retrograde step, particularly in a Bill which is introducing an entirely desirable increased degree of community consultation.
If something major is happening in a community, that community ought to see benefit from it and be able to know that some of the planning contribution is going to finish up in their immediate locality doing things which the community will enjoy as a quid pro quo for putting up for the several years of disruption which a major development entails. Perhaps it is there in the Bill, but I do not see it. I shall be grateful if the Minister can point out how it is all going to work. I beg to move.
9.45 p.m.
Lord Bassam of Brighton: I am sympathetic to both paragraphs in the amendment. Simply put, this is not the right way to get there. We understand what the noble Lord is getting at. It is best that the matters in both paragraphs are dealt with in regulations, where the detail can be set out more fully. We intend that local authorities must say in their plans how they will spend the cash contributions. We intend that they should indicate the timescale within which that spending is likely to occur. Local authorities that claim to be sensibly planning the future of their areas should be doing this as a matter of course.
The realism of that timescale can be tested as part of the plan-making process. The Bill requires that local authorities may only spend contributions on matters identified in planning obligation policies.
We understand why the noble Lord wants the second limb of the amendment. It is better that the consultative framework is developed in regulations. In any event, the local planning authority should be required to consult the community in the same way it does in other policy areas. The Bill enables the Secretary of State to make regulations to require that local authorities spend contributions only on matters identified in planning obligations policies. Therefore, they will have to consult on those. Local authorities are already required to consult affected parties on individual applications under the General Development Procedure Order 1995.
As part of the planning application process, local authorities and developers can develop planning measures implemented through a planning obligation that meets the concerns of the local community. Those measures should be consistent with the development plan. These procedures ensure local authorities devote contributions to the planning needs of local communities and not to extraneous non-planning matters. They will also ensure that developers can plan ahead for these contributions.

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Consultation with local communities on the use of planning obligations should occur at the plan and the application stage, and not just at application. That means there will be a longer timeframe for the consultation so that details can be ironed out and problems sorted out. There will be wide consultation when drawing up the planning contribution policy. I hope that reassures the noble Lord.
From my local government experience, where there were Section 106 agreements as a product of major applications, we tried to develop good practice in making it clear at the outset where that money would go and why. We also worked with local communities to ensure that was what they wanted. There was a sensible way of making sure we delivered. I see that as good practice and I hope other local authorities have similar good practice. We want to see that sort of arrangement put in place. However, the noble Lord makes good points in both limbs of the amendment.
Lord Lucas: I am sure the Minister is right that this does not belong on the face of the Bill. I will read carefully what he has said. He said exactly what I feel, that is, that Section 106 agreements have evolved so that these things are dealt with well. There is community involvement and the benefit spread among the community. The agreements are negotiated individually, at the time, when the developer is interested in involving the local community and bringing them on-side in order to get planning permission.
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We are now faced with an untried, and in many ways unformed, procedure that potentially presents considerable dangers in people's minds. That is because when a developer has not entered a detailed agreement with a local authority, but just paid a sum of money, it is not clear how there is to be a detailed obligation, such as building an access road.
If the developer has simply paid a sum of money, but not had a detailed involvement with the local planning authority and the local community, it is not clear how the local community will feel that it has been properly consulted and properly dealt with in spreading around the planning benefit.
As the noble Lord said, Section 106 works very well. If the new arrangements are to work well these benefits need to be transferred. It is not at all clear how the basic nature of the mechanism will allow that to happen. Those are some of the concerns which lie at the root of the way that developers, or at least those with whom I have spoken, feel about the clause as drafted. For the moment. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Rooker: I beg to move that the House do now resume.
Moved accordingly, and on Question, Motion agreed to.
House resumed.
House adjourned at nine minutes before ten o'clock.