HL Deb 02 February 2004 vol 656 cc486-511

5.32 p.m.

House again in Committee.

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 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

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.

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

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 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 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 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.

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 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 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 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 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 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 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 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 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 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.

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


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 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 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". 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 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 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 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 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 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.