Lords Sitting of 5 February 2004

Preamble
The House met at eleven of the clock (Prayers having been read earlier at the Judicial Sitting by the Lord Bishop of Southwell): The CHAIRMAN OF COMMITTEES on the Woolsack.

Council of Europe: Committee of Ministers
Lord Russell-Johnston Lord Russell-Johnston asked Her Majesty's Government:
On how many occasions since 1997 they have been represented by (a);a junior Minister, and (b) the Secretary of State for Foreign and Commonwealth Affairs, at the bi-annual meetings of the Committee of Ministers, which oversees the Council of Europe.
The Minister of State, Foreign and Commonwealth Office (Baroness Symons of Vernham Dean): My Lords, the United Kingdom has twice been represented at the Council of Europe's bi-annual Committee of Ministers' meetings by junior Ministers since 1997. My late noble and learned friend Lord Williams of Mostyn, then Minister of State at the Home Office, attended the 104th session in Budapest in May 1999 and my noble and learned friend the Attorney-General attended the 112th session in Strasbourg in May 2003. The United Kingdom has not been represented by the Secretary of State for Foreign and Commonwealth Affairs during this period, but, of course, the Prime Minister attended the Council of Europe's second summit in Autumn 1997.
Lord Russell-Johnston: My Lords, had I asked the same Question of the Minister about EU meetings, I bet that she would have declared a full slate. Given that the Government, I hope, recognise the huge contribution that the Council of Europe, not least its Parliamentary Assembly, continues to make to the consolidation of democratic and social values in central Europe—in Ukraine, Russia and the Caucasus—why does Britain, along with France and Germany, take the lead in holding back necessary budgetary increases? Is it the political effect of the grandpayeur system? Perhaps that should be scrubbed and a common system introduced. Lastly, if Russia leaves the grand payeur system, can the Minister at least assure me that the shortfall will not be made up by a budgetary increase and that Britain will argue against such a course of action?
Baroness Symons of Vernham Dean: My Lords, there were several questions there. The fact is that we and most of our EU partners do not send Ministers as a matter of routine to those meetings. We are usually represented by our extremely able Permanent Representative, Stephen Howarth. We do send Ministers when there are matters of particular interest that we wish to discuss. As the noble Lord knows, it is a very different organisation from the European Union.
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Regarding budgets, we contribute 13 per cent of the ordinary budget. Given that there are 45 countries around the table, I do not believe 13 per cent is bad on our part. I know that there are issues arising from the budget, but it is our policy to try to keep zero real growth in our budgetary contributions to most of the international organisations to which we are affiliated. In that respect the Council of Europe does not do badly. We are currently paying about 19 million—the 13 per cent to which I referred-compared with 20 million for the OSCE, 10 million for the OECD, 45 million for the United Nations and 18 million for NATO. The figure for the Council of Europe stands up well with those other comparisons.
Lord Judd: My Lords, I declare an interest as a member of the Parliamentary Delegation to the Council of Europe and pay tribute to the noble Lord, Lord Russell-Johnston, for the effective contribution he made as president of the Parliamentary Assembly. Does my noble friend not agree that, with enlargement of the European Union and the reality that many of the issues facing Europe are wider than the EU alone, the Council of Europe becomes more important, not less, in bridging the relationship between those countries still outside the Union and those within? Is there not a case for saying that strong ministerial representation, whenever appropriate, would be sensible in such a context?
Baroness Symons of Vernham Dean: My Lords, there is indeed a case for saying that and the Government meet that case, because UK Ministers regularly attend the meetings that are relevant. Both my right honourable friend the Deputy Prime Minister and my noble and learned friend the Attorney-General have visited Strasbourg in the past year. The Question was specifically about ministerial meetings, but as I have indicated, the Deputy Prime Minister has also been participating. Of course we attach enormous value to the role played by the Council of Europe and in particular by the European Court of Human Rights. That is an area where we spend a great deal of time. We demonstrated our commitment to the protection of rights established by the European Convention, by introducing the Human Rights Act in 1999. I, too, pay tribute to the role of the noble Lord, Lord Russell-Johnston.
Lord Howell of Guildford: My Lords, I have no great problem with the ministerial representation. The excellent organisation that we helped to found—I strongly agree with the noble Lord, Lord Judd, about its importance in the reformed and enlarged Europe that lies ahead—may be even greater than it has been in the past. I also acknowledge the valuable role that the noble Lord, Lord Russell-Johnston, has played in it. If there are to be tight budgetary restraints and budget cuts, please could they be directed at the over-blown and over-centralised European Union institutions rather than at the Council of Europe?
Baroness Symons of Vernham Dean: My Lords, that was an easy hit for the noble Lord to try to make. I am sure that I have already indicated to your Lordships

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that our policy is to ensure that we control budgets tightly for all the multilateral organisations to which this country is affiliated.
Lord Maclennan of Rogart: My Lords, I recognise that the relative contribution of the United Kingdom to the funding of the European Court of Human Rights is not out of line, but can the Minister assure us that Ministers collectively recognise that budgetary constraints are leading to serious backlogs and limitations on the effectiveness of the work of the European Court? That requires attention before the situation becomes such a crisis that countries do not adequately participate.
Baroness Symons of Vernham Dean: My Lords, I am extremely glad that the noble Lord raised that issue, because I can tell him that the Government have played an active role in the negotiations to ensure the continuing effectiveness of the Court. Indeed, regarding the budget, we made an extra financial contribution to assist the Court to reduce those sizeable backlogs of cases to which the noble Lord referred. So I hope he is pleased with that answer.
Lord Russell-Johnston: My Lords, the Minister did not respond to my question about the grand payeur system. Does she approve of it or would she like to see it changed? After all, that is why we pay 13 per cent.
Baroness Symons of Vernham Dean: My Lords, I did not respond to that point because it was the third that the noble Lord raised and I answered his two previous points. As it is, I do not have any briefing on that matter, so I shall write to the noble Lord and place a copy of my letter in the Library of the House.

Anti-Social Behaviour: Juveniles
11.8 a.m.
Baroness Walmsley Baroness Walmsley asked Her Majesty's Government:
Whether there will be a full evaluation of the pilot scheme for fining 16 and 17 year-olds under the Anti-social Behaviour Act 2003 before the Secretary of State considers extending the powers to those under 16.
The Minister of State, Home Office (Baroness Scotland of Asthal): My Lords, we plan to introduce penalty notices for disorder as soon as possible for 16 and 17 year-olds in the same areas as for adults. Later this year we expect to pilot in some areas for 10 to 15 year-olds, taking account of early experience with 16 to 17 year-olds.
Baroness Walmsley: My Lords, I thank the Minister for that reply. However, does she recall that during the passage of the Bill through this House, she assured us, on 3 November 2003 at col. 554 of Hansard, that there would be a pilot for 16 and 17 year-olds to see if the
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scheme could be usefully applied to younger age groups? Is the Minister aware that at a recent meeting in the Home Office an official told the Children's Society that there was no intention to pilot for 16 and 17 year-olds, because there were no implementation issues for that age group? What therefore is the justification for the enthusiasm of her right honourable friend the Prime Minister, who said in response to a Parliamentary Question on 21 January that he hoped that the implementation of the scheme for the under-16s would happen,
"as soon as possible"?—[Official Report, Commons, 21/1/04: col. 1319.]
Baroness Scotland of Asthal: My Lords, I recall the statements made as the noble Baroness suggested. The Home Office research findings, which I hope will be published soon and summarise the findings of the interim valuation of the pilot for the over 18 year-olds, have given us cause to be positive about the benefits of applying these to 16 to 18 year-olds. They confirm that the police think the scheme provides them with a quick and effective tool and I hope that when the noble Baroness and others are able to see those research findings they will see the basis on which we now believe that it is right and proper to include 16 and 17 year-olds.
I am most disappointed that that report is not available now because the noble Baroness would be greatly assisted and comforted if she were able to see what was in it.
The Earl of Listowel: My Lords, will the Minister ensure that guidance on this issue will include special attention to the situation of children in public care? Is she absolutely confident that the measure will not lead inadvertently through fine default to an increase in the custody of children?
Baroness Scotland of Asthal: My Lords, we are extremely careful about issues in relation to children in care. In relation to the measure leading to conviction and then the sentencing and imprisonment of children, one of the benefits of a fixed-penalty notice is that it is a short, sharp way of dealing with matters which does not involve the child having a criminal conviction and therefore does not blight the child's life in the long term if he turns away. It is a creative intervention that can be useful.
Lord Dixon-Smith: My Lords, while I acknowledge the possible efficacy of direct penalties, is it not yet another case of the Government rushing wildly around a corner without having looked to see whether there is anything there that they might trip over?
It seems that by extending direct penalties to juveniles, one immediately brings into question parental responsibility because in most instances the parent will become responsible for paying the penalty. The question then arises: what happens if the parent is on benefit and is unable or chooses not to pay the fine? The idea of putting a parent in those circumstances in prison and leaving the child, the offender, alone at home would be unacceptable to everyone.

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The matter needs deeper thought than has at present apparently been given to it and more experience of the 16 to 18 year-old age group before the Government move in this way and with this rapidity.
Baroness Scotland of Asthal: My Lords, we intend to have a full evaluation of how the fixed-penalty notices will apply to 16 to 18 year-olds so that we can learn the lessons in relation to them. We would then have a clear understanding of precisely how they operate. For under-16s parental responsibility is an issue, but 16 to 17 year-olds are responsible for paying those fines themselves. I understand the noble Lord's anxiety, but I hope I will be able to satisfy him that it is not well founded.
Baroness Walmsley: My Lords, in response to the Minister's second answer to me, could she let the House know when we will be able to see the evaluation of the scheme for the over-18s? Is she aware that even if it were to show great benefit for that age group, all the children's organisations are convinced that it will be entirely irrelevant to the under-16s for whom the issues are completely different?
Baroness Scotland of Asthal: My Lords, there are two sets of evaluations and I am doing everything I possibly can to ensure that they are before the House. I regret to say that the research findings have been significantly delayed for a number of reasons, including change of personnel in the statistics section, technical problems with staff, and sickness. Your Lordships will understand our frustration that they are not available.
I would love to be able to tell the noble Baroness that they will be available by the end of this month. I can certainly tell her that I will do everything within my power to ensure that they are—but whether that will be enough, we will have to wait and see.

Iraq: Kurdish Autonomy
11.15a.m.
Lord Greaves Lord Greaves asked Her Majesty's Government:
Whether the proposed new constitution for Iraq is likely to satisfy Kurdish demands for the autonomy of the northern provinces within Iraq.
Baroness Symons of Vernham Dean: My Lords, first, perhaps I may express the sincere condolences of Her Majesty's Government to the Kurdish community in Iraq for the death of more than 60 people and injury to many more, which was caused by the two appalling suicide bombings last Sunday. This has been the first opportunity to do so in your Lordships' House.
The proposed new constitution for Iraq is due to be drafted by the constitutional convention, which will be elected by elections in March 2005. One of the issues the constitutional convention is likely to address is that of federalism, including the status of the northern provinces.
Lord Greaves: My Lords, I thank the Minister for that Answer and associate myself, Members on these
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Benches and the whole House with her comments on the bomb outrages at party headquarters at the weekend.
Do the Government believe that it will be possible to achieve an appropriate level of autonomy in the northern provinces of Iraq to satisfy on the one hand the demands of the Kurds and on the other hand to allay the fears of people in the rest of Iraq and in surrounding countries? Does she believe that such an arrangement will have to be entrenched in a federal manner in the new constitution for it to have any permanence?
Baroness Symons of Vernham Dean: My Lords, as the noble Lord knows, that is an extremely difficult question. Her Majesty's Government have made it clear that we support the territorial integrity of Iraq. The issue of federalism is for the Iraqis to decide over the longer term as part of the constitutional convention. We are of course talking to Jeremy Greenstock and Mr Paul Bremer, who during the past month have been holding discussions with all parts of the Governing Council to try to clarify the position individuals have on federalism in order to deal with the wording of the transitional administrative law.
Of course we recognise that the Kurdistan regional government and the Iraqi Kurdistan assembly have played an important part in administering and legislating in the areas that have been outside the control of the central government since 1991. We believe that that sort of arrangement should pertain during the transitional period.
As to the longer term, that is an issue for the Iraqi people to determine in the way I have indicated.
Lord Howell of Guildford: My Lords, perhaps I may associate Members on these Benches with the condolences and sympathies the Minister mentioned about the bombing massacres in Arbil and Kirkuk, which are appalling.
On the future of Kurdish land, aside from independence, which would not be welcomed by any of the surrounding countries, and given that most of us want to keep Iraq whole on a federal or confederal basis, there are two models. One is that Kurdish Iraq should continue with quasi autonomy, rather on the basis it has been for the past few years. The other is that it should be administered and divided into provinces on non-ethnic lines. That proposal was put forward by our American friends. Which of those two would we favour, given that ultimately the decisions will have to be taken inside the new Iraq?
Baroness Symons of Vernham Dean: My Lords the noble Lord is right and I thank him for the point he made about territorial integrity. It is important that we have cross-party understanding on these issues.
We recognise the point the noble Lord made about there being a number of different federal models that can be discussed and we are endeavouring to do that. We believe that any kind of federal model should be drawn on geographical, not on ethnic, lines.

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We support democratically elected local, provincial and regional administrations empowered to represent the local population in the national institutions. We support those with devolved authority and budgets where they are practical and appropriate to local circumstances. I return to the point I made in answer to the noble Lord, Lord Greaves: this is a matter for the Iraqis. It must be an Iraqi debate dominated by Iraqi views.
Lord Wallace of Saltaire: My Lords, we recognise that it is fundamentally a matter for the Iraqis themselves, but the surrounding states have strong feelings on the issue of Kurdish autonomy. Do the Government hold the view that it is a matter for the Iraqis only, or will the views of surrounding states be taken into account?
Baroness Symons of Vernham Dean: My Lords, I know that surrounding states have strong views. I recently discussed them in Syria, but the Turkish and Iranian Governments also hold strong views. Of course we are keen to involve neighbours, but as good neighbours supporting the political and economic process in Iraq. We encourage the group of three neighbours that I just mentioned, but also Egypt and Bahrain, which currently chairs the GCC, to engage with the governing council if they want to express those views.
There is a world of difference between being a good neighbour in consultation and being an interfering neighbour meddling from outside.
Lord Greaves: My Lords, does the Minister consider the moves currently under way to unite the two separate regional administrations in the Kurdish areas of northern Iraq to be a useful step forward, or not?
Baroness Symons of Vernham Dean: My Lords, I find it difficult to answer that question in the light of what happened last weekend. The reason that I stress that is that there is a body of opinion that what happened last weekend is likely to accelerate that process, or even a process of discussion across the borders with other Kurdish communities. The impact of horrors such as last weekend's suicide bombing, which was no doubt intended to damage the Kurdish cause, often makes people stronger and more determined to be united. We must give the Kurdish hierarchy some time to settle— after all, many important people were killed last weekend and see how the Kurds want to determine their future direction.

Hepatitis C
11.22 a.m.
Lord Morris of Manchester: My Lords, I beg leave to ask the Question standing in my name on the Order Paper, and declare an interest—not a pecuniary one— as president of the Haemophilia Society.
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The Question was as follows:
To ask Her Majesty's Government how they arrived at the scale of ex gratia payments for patients infected by contaminated National Health Service blood products with hepatitis C, proposed by the Secretary of State for Health on 23 January; and why the widows of those who have died are excluded from help.
The Parliamentary Under-Secretary of State, Department of Health (Lord Warner): My Lords, the level of payments was decided after consideration of a number of independent sources. Those included the payment schemes of the Macfarlane and Eileen Trusts, the reports of the Scottish Executive's expert group and the Hepatitis C Working Party to the Haemophilia Society. The underlying principle behind the ex gratia payments is to help alleviate the suffering of people living with inadvertent hepatitis C infection. That is where the money available has been concentrated. These payments are not compensation for bereavement, although we recognise the pain and hardship suffered by widows.
Lord Morris of Manchester: My Lords, while I am grateful to my noble friend and, more especially, to John Reid, for the major reversal of policy in setting up a payments scheme, are Ministers aware of the scale of the disaster that has befallen the haemophilia community: that more than 1,000 people with haemophilia have already died from contaminated NHS blood and blood products; that many others are now terminally ill and waiting to die; that the help the scheme proposes is barely one-tenth of what is paid in Ireland; that excluding widows whose lives have been devastated by the disaster, causing them added distress and double despair, is seen as a total disgrace by the Haemophilia Society; that the society insists that there has been no meaningful consultation about these, among other deeply disturbing defects in the scheme, and that such consultation should take place forthwith?
Lord Warner: My Lords, this Question gives me the opportunity to pay tribute to the work done by my noble friend in his tireless efforts on behalf of the Haemophilia Society and the wider haemophilia community to put this item on the agenda. As he rightly says, my right honourable friend the Secretary of State has made a big gesture towards the concerns of that community, which we all recognise, and the hardship that has followed. It is important to distinguish between the scheme and that in Ireland, where public inquiries and criminal charges affected the basis of the scheme.
There has been strong dialogue with the Haemophilia Society. It has been involved in meetings with Ministers and departmental officials. It has a nominated representative to sit on the group of experts advising on the trigger point for the scheme's second

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payment and, at its behest, that representation was recently increased. We will continue to consult it fully on development of the scheme.
Lord Walton of Detchant: My Lords, is the Minister aware of emerging research evidence suggesting that a modified preparation of Interferon may prove to be an effective treatment for hepatitis C, with the hope that there may ultimately be a means of eliminating the virus? If that is proven, do the Government want such treatment made available under the NHS? Or will they at least promote research into the use of that preparation in treatment?
Lord Warner: My Lords, the National Institute for Clinical Excellence has published guidance on the use of combination therapy for the treatment of hepatitis C. We have provided additional funding and placed statutory obligations on the NHS to implement NICE's recommendations, so that clinical decisions made by doctors involving NICE-recommended treatment or drugs can be funded. I will look into the further points that the noble Lord made, but that is the current position for therapies in that area.
Lord Addington: My Lords, do the Government accept that we have been hearing Questions on this subject for a long time? The impression that many of us have gained from listening to the Answers is that the Government have moved slowly and only when pushed. They seem to have been hiding behind a curtain of legal restriction, and have not been addressing the point that people have died and are dying through no fault of their own, but through government action. Do the Government accept that, in future, quicker action should be taken and that there should not be this ritual dance around legal niceties?
Lord Warner: My Lords, I do not think that we are engaged in a dance around legal niceties. We have been working with the Haemophilia Society and other interests to produce a workable scheme, which has as its basis an initial payment of £20,000, with a further £25,000 if cirrhosis develops or if a claimant has liver cancer or has had a transplant. We are now trying to ensure that we can bring the scheme into operation as quickly as possible—wherever possible, from April this year.
Lord Campbell of Croy: My Lords, can the Minister tell the House how many patients are still alive and how many widows there are now to be considered?
Lord Warner: My Lords, I do not know the precise number of widows. I will look into the matter and write to the noble Lord; but more than 5,000 or 6,000 people may be beneficiaries of the scheme.
Baroness Gardner of Parkes: My Lords, will the Minister confirm that that benefit will be tax free and that people on social security will have a total disregard of that amount?
Lord Warner: My Lords, I am pleased to tell the noble Baroness that, subject to the necessary amendments to
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social security legislation, the payments will be fully disregarded for the purposes of social security benefits. A similar disregard has been secured for tax assessment.
Lord Ackner: My Lords, are widows being included? If not, what is the philosophy behind the decision to exclude them?
Lord Warner: My Lords, I tried to cover that point in my first Answer. These payments are not compensation for bereavement, although we recognise the pain and hardship suffered by widows. They are payments to alleviate the suffering of people who are living with inadvertent hepatitis C infection.
Lord Roberts of Conwy: My Lords, the noble Lord mentioned the Macfarlane Trust. Am I right in thinking that that fund covers widows? It certainly does not seem obvious that there should be any difference between the Government's proposals and the Macfarlane Trust scale. Secondly, have the Government compared their proposals with the scale available, for example, in Canada, which is much more generous?
Lord Warner: My Lords, the awards that were made in Ireland and in Canada followed public inquiries or criminal charges which established that wrongful practices were employed. The payment structures of those schemes were therefore based on claims for punitive damages. We do not acknowledge any such wrongdoing in England, so it is not fair to make a comparison between those schemes. The Macfarlane Trust will be involved in the administration of this scheme, but there are significant differences. The Government's policy is as I set out in the Answer to my noble friend.

Planning and Compulsory Purchase Bill
11.32 a.m.
The Minister of State, Office of the Deputy Prime Minister (Lord Rooker): My Lords, 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 Rooker)
On Question, Motion agreed to.
House in Committee accordingly.
[The CHAIRMAN OF COMMITTEES in the Chair.]
Clause 47 [Planning contribution: regulations]:
[Amendments Nos. 119C to 119E not moved.]
Baroness Hanham Baroness Hanham moved Amendment No. 119F:
Page 36, line 3, at end insert "or at some other stage before the development is completed and occupied"
The noble Baroness said: Before I start on this amendment, I would like to say two things. We caused the Committee to be adjourned during our previous

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sitting in order to obtain copies of the statement that the Minister had and, where possible, the result of the consultation on the tariff system for Section 106. At that stage, the Minister informed me that he had sent them both to me. I do not know about other Members of the Committee, but I still have not received them. If it had not been for the efficiency of the Library, I would still not have the result of the consultation. I would be most grateful if the Minister would note that that information has still not come in our direction.
I would also like to make one point of correction for Hansard. What I said was that I would like the Minister to get us copies of the statement. I did not say that I would like him to get us coffees, which is what it says in Hansard. Although I am sure that the House would love to be able to adjourn on many occasions for coffee, I fear that it may be a precedent that the Minister may not want to set. It was certainly not one that I was aiming for, although a coffee would have been very nice.
I have grouped for today's purposes Amendments Nos. 119F, 119G and 119H. We had an extended discussion on the tariff system and Section 106 at our previous sitting. It might be helpful to today's proceedings if I discuss those amendments.
Clause 47(6) provides, as a possible enforcement mechanism, that conditions can be attached to a planning permission requiring a planning contribution to be made before development has begun. This requirement can be, and often is, imposed in planning obligations. These planning benefits are often provided part-way through developments; for example, affordable housing units cannot be provided on site before the development is well under way.
Many developments, such as housing estates, will take years to build. These are the type of schemes that are likely to require payments to the local authority for off-site improvements, such as improved highway junctions, open space and extensions to local schools. The demand for these improvements is increased as the development proceeds. More classrooms might not be needed when there were 50 houses, but would be needed when 600 had been built. It is common for contributions to be paid over many years, as different stages are reached. On a major housing scheme, the development claims can total over £1 million. Front-loading the contributions would significantly increase financing costs and risks. This amendment would allow contributions to be made at a variety of stages.
Amendment No. 119G prevents a local planning authority retaining indefinitely money received as a planning contribution. It would mean that the Secretary of State could direct in regulation that after a prescribed period any money left over would be repaid with interest if it is not spent on the purposes mentioned in subsection (3)(c).
While it is hard to believe, even in these days of cash-strapped local authorities, many authorities have substantial planning obligation receipts that have not
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been spent after many years. That should be stopped, and this amendment will do just that, by providing an incentive to spend the sum in full and in time.
An important protection for landowners is the ability to apply to discharge or modify planning obligations. An obligation may become out of date. It may prevent development, or restrict the intensity of development beyond what is subsequently desirable. It might frustrate development that the Secretary of State subsequently grants planning permission for. The Section 106 procedure allows for formal applications to be made to the local planning authority, and appeals then to the Secretary of State. Amendment No. 119H allows for appeals. I beg to move.
Lord Rooker: I apologise unreservedly for the inadequacy of the government postal mechanism. The documents clearly have not arrived. That is not on. If we cannot get post across the road, how on earth can we persuade people that we can run the country? It is unacceptable to Parliament that the Government do not provide the documents, especially when I was told that they were put in the post, although I do not know how physically that was done. To be honest, it is not on. It leaves me in a very awkward and embarrassing position, and I give an unreserved apology for our inadequacy.
On the other hand, I do not have to do that in reply to the amendments. I can give adequate replies to the amendments, by pointing out that they are not necessary. In one in particular, the point is met elsewhere in the Bill. I can understand why the amendments have been proposed, particularly Amendment No. 119F. Clearly, there will be some circumstances in which a planning contribution could not be made prior to the commencement of a development. For example, the development may be economically marginal, and the developer may have no funds with which to make a contribution until the development is complete and he gets his return. It may be that the development itself satisfies the terms of the planning contribution for the provision of, for example, affordable housing units.
I should emphasise that the local authority would be entitled to vary the condition that we propose. In the same way that by default conditions are attach to planning applications limiting their life to five years, local authorities can vary this, so local authorities could require planning contributions to be made at times other than at the commencement of the development. They would have flexibility not to use the condition proposed here, provided they could enforce this through a similar condition or the terms of the planning agreement. The flexibility that is sought in the amendment already exists.
So far as Amendment No. 119G is concerned, I understand the concern of the noble Baroness, that planning authorities should spend optional planning charge income on matters that they say they will. It would be tedious to read out all my notes, but if I point out that Clause 47(7)(a) is specifically intended to secure that very purpose. It reads,
"The regulations may—require the local planning authority to apply receipts from planning contributions made by the prescribed means only to purposes mentioned in section 46(3)(c)".

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I hope that shows that the amendment is unnecessary. So far as Amendment No. 119H is concerned, it is similar—in fact my answer is the same as the one that I have just given, because Clause 47(7)(a) is intended to secure this point.
I hope that answers the points made by the noble Baroness at the end of this debate on planning obligations, which has been very interesting and very useful to the department, as was the meeting that I had this morning with developers, planners and others when this issue was raised. I made the point that we debated it at length in your Lordships' House on Monday. I have sent a message back to my planning colleagues that we must do better on Report, which was very well received.
Lord Lucas: Perhaps I may encourage the Minister to remind his officials that we are now only 11 months away from the dawn of e-government in 2005, and that sending us such documents by e-mail might avoid some of the difficulties. Since the intervention of the late Lord Williams I now get a third of my Written Answers by e-mail. I hope that we will do better over the coming months, but I would be delighted to receive all correspondence on the Bill by e-mail. It would mean receiving things much earlier.
Baroness Hamwee: I was going to make the same suggestion, but privately. I know of a third party who received an e-mail on Friday afternoon containing a Statement. However, I have not stood up to have a go at the Minister about that. Can he confirm that the regulations under Clause 46(3)(c), to which he has just referred, on the purposes to which the contributions will be put, will be a matter of consultation with local authorities? take the noble Baroness's point, but the matter ought to be discussed with them.
Lord Rooker: The bald answer is that we do not issue regulations without consultation, except in the most extreme circumstances. These regulations are not extreme. Throughout the Bill we have said that we will carry out much more consultation. Obviously, in many ways the Bill will be enforced by a lot of regulations, therefore we must have proper consultation.
Baroness Hanham: I thank the Minister for his reply. There is not much more to say on Amendments Nos. 119F and 119H, but I wish to tax him further on his reply to Amendment No. 119G. The amendment relates specifically to the local planning authority having to return to a developer any money not used, if for some reason a development does not go ahead or something happens during the process, so that money belonging to the developer is returned with interest. I struggle to understand how subsection (7)(a), which merely requires the local planning authority to apply receipts made by prescription only to the purposes mentioned, underscores the requirement to repay the
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money if it is not used. Subsection (7)(a) does not resolve the problem. The Minister may wish to reconsider it.
Lord Rooker: I am happy to elaborate, as we are in Committee and I have not used half of the briefing note on Amendment No. 119G. I am happy to put the note on the record, because it will assist in ensuring that we do not have to return to the matter on Report.
Where the parties negotiate it is likely that the agreement will set out the matters on which the contributions will be spent, and provide for repayment if they are not spent by the agreed date. Such an agreement would be enforceable, but in the courts. Where the applicant decides to pay the charge, the matters on which the charge will be spent are not specifically identified in the agreement but in the local planning obligations policy. The whole point of the charge is that such matters are laid out in the local planning obligations policy, where everyone can see what is required. That transparent approach is referred to in Clause 46(5)(a).
In short, the provisions ensure that the same redress is available to an applicant who has paid the charge as it is to one who has negotiated an agreement. All that we are doing is moving the agreement on what the income will be spent on out of the negotiated agreement and into the local planning obligation policy prepared in advance. That is a plan-led approach, and the policy will have to be specific enough to give the applicant certainty about what the charge will be spent on; otherwise, the applicant would simply decide not to pay the charge.
We intend to introduce other accountability mechanisms to ensure that spending is appropriate. It is intended, for example, that the way in which local planning authorities spend planning contribution funds should be set out in an annual report. That is, again, part of the more open, transparent and certain system for planning obligations being introduced. The planning obligations that will be sought must be set out in a policy, and information on what they are being used for will also be available publicly. Those concerns arise only where the charge is paid in cash. Where the charge is paid in kind, the developer can be absolutely certain that the charge is spent appropriately—in effect, he is spending the charge in the same way. I hope that that further explanation satisfies the noble Baroness.
11.45 a.m.
Baroness Hanham: I hear what the Minister says. I understand from his response that, if the money had to be returned, the planning agreement would state the conditions under which that would happen. I was surprised at the detail in this part of the Bill about the planning conditions. An important aspect of a planning obligation is that people can get their money back if, for some reason, things go wrong. I do not promise not to return to the matter, as so much is on the face of the Bill that it is odd that this provision is not. For the moment, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 119G and 119H not moved.]
Clause 47 agreed to.
Clause 48 agreed to.
Lord Bridges Lord Bridges moved Amendment No. 120:
Before Clause 49, insert the following new clause—
"APPEALS AGAINST PLANNING DECISIONS

(1) In section 78 of the principal Act (right to appeal against planning decisions and failure to take such decisions) after subsection (2) there are inserted the following subsections—

"(2A) Where a local planning authority approves an application for planning permission and—

(a)the planning application does not accord with the provisions of the development plan in force in the area in which the land to which the application relates is situated

(b)the planning application is one in which the local authority has an interest as defined in section 316;

(c)the planning application falls within the definition of "major applications", as defined by a person appointed by the Secretary of State for that purpose

(d)the planning application is accompanied by an Environmental Impact Assessment; or

(e)the planning officer has recommended refusal of planning permission

certain persons as specified in subsection (2B) below may by notice appeal to the Secretary of State

(2B) Persons who may by notice appeal to the Secretary of State against the approval of planning permission in the circumstances specified in subsection (2A) above are—

(a) any persons who have lodged a formal objection to the planning application in writing to the planning authority for the area in which the land to which the application relates is situated

(b) other persons at the discretion of a person appointed by the Secretary of State for that purpose.

(2) Section 79 of the principal Act (determination of appeals) is amended as follows—

(a) in subsection (2), leave out "either" and after "planning authority" insert "or the applicant (where different from the appellant)"

(b) in subsection (6), after second "determination" insert "(except for appeals as defined in section 78(2A) and where the appellant is as defined in section 78(2B))."

The noble Lord said: Since retiring from public service more than 10 years ago, my wife and I have spent a lot of time as members of the county branch of the CPRE, looking at planning matters in our local community. In general, I am very enthusiastic about how our planning system is set up and works. Shortly after starting that work I felt that I needed to know more about how the inspectorate was recruited. I wrote to the department to request details about how that was done. The Permanent Secretary kindly sent me a massive dossier explaining how the inspectorate was chosen, trained and invigilated. It is clear to me that the department puts great effort into that work with very positive results on the whole.
The purpose of my amendment is modest. It is intended to improve further the planning system, because there are occasions on which it goes wrong. I shall cite briefly two such examples that explain why
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we need to have a carefully defined right of appeal. The first case concerns the choice of a park-and-ride site near Ipswich in Suffolk. The moving spirit behind it was Suffolk County Council, an authority currently under a Liberal Democrat and Labour coalition. The county council had successfully promoted two park-and-ride schemes to the north and west of Ipswich. Those facilities having proved quite popular, the council wanted another scheme on the eastern fringes of the borough. The case had certain factors working in its favour. Ipswich is a thriving town that suffers, like many others, from traffic congestion. The principle seemed commendable.
However, it was difficult to find a site. After lengthy discussions a site was chosen at a wooded copse at the junction of two main roads—the A12, which is the London to Lowestoft artery, and the A1214 between Woodbridge and Ipswich. The site was controversial, involving considerable damage to the little piece of woodland, an intrusive complex of 16 traffic lights on the junction of a roundabout and fears of dangerous congestion. The local planning authority, supported by our county branch of the CPRE, among others, objected.
The district councillor, a Liberal Democrat, who is also a county councillor, was supported at the meeting of the county council. Having been rejected by the district council, the proposal was taken back to the county council. It appeared that the county council was likely to refuse it. However, the county council decided to defer the decision for a month, at which point the councillor in question did not take part in the vote—although a member of the coalition parties, he refused to support their proposal. The proposal was duly carried and is now operational, in spite of the earlier refusal by the planning authority at district level.
The second case concerned a public house on the A12, the main road. It had been a successful venture until it changed hands a few years ago. The new owner applied for a change of use to convert the pub into a private dwelling. The local plan had a provision to retain key facilities in rural communities unless there was proof that the existing use was not viable and there was no alternative plan to make it so. The application was strongly opposed by the parish council, CAMRA, local residents and an amenity society. It was refused by the district council planners.
Some months later the owner reapplied, producing accounts to show that she could not make a living out of the pub. Local opinion suggested that the pub was no longer open seven days a week and that its premises were less welcoming to customers. Council officers again recommended refusal. At the planning meeting of the council this case was the first item on the agenda. Under recent new rules the applicant spoke briefly to support and the parish council chairman to oppose. However, there was no contribution by other members—no discussion, no debate. The acting chairman then asked for a vote. This resulted in two votes in favour of the applicant, one against and five unexplained abstentions. Several members present were substituting for absentees. The application thus succeeded. I believe the acting chairman might have

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devised a means of deferring a decision until the next meeting or arranging a site visit to allow councillors to reflect. This is a minor case but it has caused considerable local dismay in the parish in question.
I have cited these two cases as it seems to me it should have been possible for local residents who had sent in written objections to the proposal to ask the Secretary of State to review the circumstances in which the planning system could be said to have failed. The only other recourse is to appeal to the High Court which is clearly beyond the means of such communities.
The Minister may feel inclined to repeat the adage that hard cases make bad law. Maybe, but bad decisions, or inaction, can be even more damaging. I hope that he will undertake to look at this amendment in a sympathetic light. Local democracy arouses feelings no less keenly than national issues. In order to allow visible justice to get a fair hearing, a limited right of appeal available to third parties would be desirable. It is possible to include a number of restrictions. I have suggested some in my amendment, such as that the person who wished to appeal to the Secretary of State must have lodged a written objection to the application. Other conditions could be written into this wording if the Minister feels it is desirable. I hope the Government will understand my motives and give careful consideration to an amendment along these lines. If they cannot agree, perhaps they would care to think of alternatives. To use another adage: where there's a will there's a way. I beg to move.
Baroness Hamwee: We have tabled Amendment No. 126A, which forms part of this group of amendments. It is almost identical to Amendment No. 120 but excludes paragraph (e). On the issue of third party rights of appeal, at an earlier stage the Minister appeared to indicate a good deal of sympathy with the problem. I understood him to say that this was something that had exercised his mind when he was an MP. Perhaps today he can tell us why there should not be a limited right of appeal by third parties. And can he explain to the committee whether there are real objections to the proposal or has the Government decided to put it into the "too difficult" pile?
Perhaps he can also expand, like the Minister in another place, on whether the statement of community involvement, which is part of the new provisions in the creation of the new local development framework—I may be using the wrong terminology here—is adequate protection for third parties. I support a plan-led system. I support community involvement at the time a plan is being created, but we all know that there are limits in that respect. One has to produce more effective consultation and greater community involvement than many of us have seen, though not for want of trying. It is a very difficult exercise.
A report entitled Third Party Rights of Appeal in Planning was published in September 2001 by a number of organisations, including the CPRE, RSPB, WWF, TCPA, ELF, the Civic Trust, ROOM and Friends of the Earth. I apologise to noble Lords for using so many acronyms, but those organisations are
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better known than LDFs and LDDs and RPBs. The report summarised (on page 10) the case against third party rights of appeal as follows. First, that there is insufficient evidence of a problem. The current discretionary system could be used more by the greater use of independent arbitrators with less reliance on locally elected councillors. I will not take the bait of going into the role of elected councillors, though I suspect others might wish to do so. However, there is a problem. It is still a current issue, people still raise it.
Secondly, the report said that landowners need to be able to appeal because their right to develop is being taken away, while third parties do not have a right that is being denied. The community—third parties—do have an interest in the area. That is not the same as a legal right but neither is it nothing. Thirdly, it said that there are already ample opportunities for third parties to express their views and have them considered before the decision is made. Yes, there are opportunities to express views; but that is not the same as having them heard by an inspector, who will determine the application. Fourthly, the report said:
"Any benefits will be outweighed by disadvantages, not least the delay to development".
Well, the benefits and disadvantages in this instance— if the disadvantage is delay—really are chalk and cheese.
However, in its summary of the case for third parties to have a right of appeal, the report finds that there is a perceived unfairness in the procedures. Prospective developers may appeal, third parties cannot—by definition, that is what we are discussing. There should be an opportunity for those disadvantaged and aggrieved by planning approval to seek redress from an independent body. The examples given in the report relate to people directly affected by the development, nearby local authorities, interest groups and concerned persons, statutory agencies (if their objectives would be impeded or their advice on planning applications overridden) and government departments, if their policies would be compromised. Further, the report states that such a right would raise standards in planning authorities and redress the present imbalance by making them as accountable for their approvals as they are for their refusals. Reference is also made to other countries with advanced democratic planning systems having such rights, which are reported as having led to better decisions.
I have summarised quite a long report, which also refers to possible alternatives to third party rights of appeal: the local authority conducting an internal review—that would not be impartial; the Secretary of State calling in the application—that is discretionary and a bit of a lottery; judicial review—this is limited to points of law and does not amount to an appeal; and taking the matter to the Local Government Ombudsman, which would not allow for the detailed analysis that an appeal would afford. That is something all the major political parties have called for and has concerned many honourable Members in the Commons.
In 1996, the Association of County Councils, the Association of District Councils and the Association of Metropolitan Authorities—I am not aware that this

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view has changed now that we have the Local Government Association—called for a limited right where there is a significant departure from the development plan, where the local planning authority is the owner of the land in question, or where the local planning authority is also the applicant. Of course, the second and third of those may go hand in hand on a single application.
Those three points are central to the issue, and I think that they are generally regarded to be so. I hope that the Minister can use today to share with Members of the Committee what research the Office of the Deputy Prime Minister, or possibly its predecessor, has undertaken into how many cases fall into the categories that have been acknowledged as the real problem areas for some time, so that the delay point— the point that exercises developers most—can be answered. We are referring here to quality, transparency, probity and accountability, which I know are matters dear to the hearts of all Members of the Committee.
Noon
Lord Lucas: I am a little surprised—well, not surprised because the Liberals always surprise me in this way—that a party which says that it is in favour of local democracy should suddenly be in favour of local "quangocracy" and removing or questioning all possible decisions to be made by local councillors. There might be a case for it when the local authority is at once the applicant and the judge or when an agreed local plan in which local people have participated is being bust wide open in some way. But where it is just a question of whether a pub should be a house or a pub, surely that should be decided locally. Surely that is a local decision. If the locals have not bothered to elect decent local councillors, do not care to vote or to find out the local issues, that is their responsibility.
Lord Chorley: I spoke at Second Reading on this subject. I agree with both of the amendments; I do not mind which of them goes forward. As the noble Baroness said, only paragraph (e) of the amendment is different. My noble friend made a strong case, but I do not agree with the noble Lord, Lord Lucas. The noble Baroness, Lady Hamwee, took us through the arguments in great and thorough detail, which I shall not go over again.
In his winding-up speech at Second Reading, the Minister also touched on the subject. In his usual disarming way, he said that he had always been in favour of third party rights of appeal when he was an MP. But apparently he had a Damascene conversion on the road up Whitehall and has changed his mind. All politicians, particularly when they become Ministers, find themselves having to do that. One of the reasons he gave at Second Reading was that third party rights,
''would be inconsistent with our democratically accountable system of planning".—[Official Report, 6/1/04; col.163.)
The noble Baroness touched on that point.
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I found that a strange argument to advance in cases where the local district planning authority is making a favourable decision on its own application. I think that the noble Lord who has just spoken took that point. In this House, rightly, we make a huge fuss about conflicts of interest in public authorities. If ever there was a conflict of interest, surely this must be one. Moreover, what if the planning authority is a national park? As I see it, that is not an elected body. There have been cases where national parks have made decisions in their own favour, many of which have been extremely controversial.
The Government make the point that a feature of the Bill is community involvement, about which the noble Baroness spoke. But how are communities defined in those circumstances? I do not know; I hope that the noble Lord will be able to explain. What is the local community of a national park? In one sense, it is the nation. The hallmark of a national park is that it is national, but we tend to forget that.
Again, at Second Reading, the noble Lord said:
"We tried to find a way for third party rights of appeal that were tightly limited in scope, but every time a draft was presented, we were warned by the lawyers and parliamentary counsel that if we went down that road, the chances are that we would snuff out any and every development".
—[Official Report, 6/1/04; col. 163.) But lawyers and parliamentary counsel are always saying that things are too difficult. Perhaps I may encourage the Minister, who has a very independent mind, to be bold. As my noble friend Lord Bridges said, where there is a will there is a way. I doubt the reality of the Minister's remark that we could snuff out any and every development. I look forward with enthusiasm to the Minister's reply.
Lord Marlesford: I apologise to Members of the Committee that I was not here for the first few moments of the opening speech made by the noble Lord, Lord Bridges. Of course, it is a well known subject, with which we have all wrestled at various times, where, in the immortal words, something needs to be done; but it is very difficult to determine what.
I certainly would favour the Liberal amendment over the amendment proposed by the noble Lord, Lord Bridges. Under paragraph (e). one of the grounds for appeal would be where the local planning officer had been overruled by the elected council; that is clearly contrary to the whole democratic principle. In theory, every planning application is determined by the elected councillors on the advice of the planning officers. It is entirely because there is such a huge volume of applications coming before planning committees that the great majority of them are determined by planning officers. Certainly, in my book, that is not a reason for saying that where the council takes a different view from a planning officer, that is a reason for appealing against a consent.
The noble Baroness, Lady Hamwee, raised the question of call-ins. When I was at the Countryside Commission we had constant worries of fairly major planning applications that we thought would go wrong and where we were worried because there was no right of third-party appeal. The only way of trying

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to ensure that an irreversible step, or a very hard to reverse step, did not take place would be to get it called in. But, of course, the resources of the central planning people in Bristol are very limited. For resource reasons, there was always a very understandable reluctance to agree to call-ins unless they were important subjects. Therefore, that is not a sufficient solution. As the noble Baroness pointed out, a judicial review is not really relevant to this particular issue.
Undoubtedly, there are one or two examples of something unacceptable. One has been highlighted already; namely, when an authority gives itself planning permission. On the face of it, that seems to be contrary to natural justice. I am familiar with an example in which I have no personal interest other than a third-party interest, a pro bono interest. The Braintree District Council has repeatedly given itself planning consent to erect advertising hoardings along the A12 Witham bypass, which is totally contrary to PPB policy. When I have raised the issue on a number of occasions, it has said unashamedly and crossly, "Well, we are getting £30,000 in rent from these advertising hoardings". That is precisely the kind of thing that the local authority should not be able to do. That illustrates one of the areas where something must be done. But I shall sympathise with the Minister if he says it is extremely difficult to find a solution. However, I would have thought it not beyond his wit to do so, and this Bill is clearly an opportunity of doing something.
12.15 p.m.
Lord Rooker: Have the Conservatives nothing to say? I do not want to stifle any debate on this. I wonder why there is silence. This is certainly the most important issue we will deal with today on this Bill. I have two speaking notes—one is a long one and one is massive. I was tempted to use the long one but I am going to use the longer one because we are in Committee and I need to put some of the issues on record, especially as we will come back to this at Report. To cut things out in Committee will make a rod for my own back and does not do a service to the House.
I must refuse to comment on any particular applications, some detailed examples of which we have heard. This is particularly so with regard to Ipswich, because I claim the credit of having at one time had more jobs there than anybody else in the late 1960s, when I was doing real work outside Parliament. I understand some of the issues but I must not comment in detail on any of the applications.
I think—from the speeches and the amendment—that the difficulties created by any blanket third party right of appeal have been understood. I am encouraged by the fact that the clause—both clauses, since we are in effect dealing with the same clause—constrains the right of third parties to appeal. A blanket right has not been requested, but not all the proposed measures are appropriate. I admit that I am on record as saying that I was in favour of third party rights of appeal until I became the planning Minister, so it is more precise than "going up Whitehall". The reason I was doing it for my
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constituents is that I saw the way of just stopping development. That is why we wanted third party rights of appeal. We were not looking to amend developments. Most of us were looking to stop them; so was I at the time. I thus make my declaration of interest absolutely clear. The reason we wanted third party rights was because we had failed to stop development. That was the main reason for some of the individual cases I dealt with.
The Government have considered a limited scope; we want to be reasonable. However, the reasons for ruling out even a limited scope of appeal for third parties were set out in the planning Green Paper. Any right of appeal for third parties would slow down the system, though that is not a substantive argument against it. It would not be consistent with our democratically accountable system of planning.
At some time I will address the national parks issue. National parks are different in the sense that they are statutory bodies, but they are not directly elected. I take that point. It is the responsibility of local planning authorities to act in the general public interest when looking at applications. They are supposed to take account of the views of local people on planning matters before taking decisions. Elected members must justify their decisions subsequently to the electorate. They do not always like doing that; I accept that.
Part of my daytime responsibilities are the three major growth areas in the south-east. There is no doubt that councillors are reluctant to stand up in their local areas and say they support the growth. One cannot always rely on the democratically elected bodies to go along with the big picture of policy. I have known examples where councillors have said, "We will get this turned down so that it can go to appeal and then we can say that the Government are responsible together with the planning inspector for making the decision. We did not make the decision. We will say this to our constituents so that they do not vote us out". I have heard that said by local councillors. However, the Government do understand the situation. One of the reasons for this Bill is to get a faster, more balanced planning system. There is common consent on that.
We have acknowledged that we need greater community involvement in the planning process. It is right that anyone affected by, or with an interest in, development in the area should have the opportunity to make their views known, and to have those views taken into account. The planning system already provides opportunities for that to happen but this Bill builds on that and strengthens those opportunities.
Public participation must be at the right stage of the process; that is, before the decision is made. That is a fair and legitimate point. What nobody wants—perhaps somebody does—are increased opportunities for argument and debate after the event. That clearly is a requirement by some people, but that does not benefit anybody. It is the Government's intention to make the planning system more accessible, more transparent—I have rejxatedly made that clear—with strengthened opportunities for community involvement. The provisions will strengthen the

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opportunity for people to comment on and influence development proposals much earlier in the process, even well before a planning application has been submitted.
I accept that this is going to be hard work because most people will only jump when their back yard or community is affected. They will not get involved when development plans or non-site specific proposals are being put together; it is only when something is on their doorstep that people get wound up to take an interest. Generally, people are getting on with their lives.
However, it is important that people's concerns are listened to up-front, and that once a decision is made people can see why it was reached. That is another important aspect; it is part of the process of opening up the planning obligation process so that people do not argue that someone has bought the planning decision behind closed doors. In that way the Bill will minimise the need for action after a decision has been made; it should ensure that the system is fairer and that everyone participates on as equal a footing as we can give.
Clause 17 of the Bill provides for a statement of community involvement. We are seeking effective participation by the community in the preparation of local development documents and in the exercise by the local planning authority of its development control functions.
Not only will it become a statutory requirement to prepare a statement as to how the local planning authority intends to involve the local community in the planning process, but that statement must itself be tested through independent examination. This is a major step forward.
Members of the Committee may already be aware that the Government are providing almost £4 million over the next three years to Planning Aid, an organisation that provides free and independent professional advice and assistance to members of the public who cannot afford to pay for advice on the planning process. I pay tribute to Planning Aid. I used the organisation umpteen times as a Member of Parliament in order for my constituents to have their cases heard both at the beginning and sometimes at the appeal process. It is a first-class organisation. We have made far more funds available.
The funding will enable Planning Aid to become more proactive and develop a greater role in targeting communities which traditionally do not get involved in the planning system—particularly groups in disadvantaged areas and those representing the socially excluded. We believe that the solution is not extra bureaucracy and lawyers, but meaningful engagement with local communities throughout the process, and greater transparency and clarity in the decisions taken.
Last year the Government extended the requirement for local planning authorities to provide a summary of reasons for granting a planning permission even where there were no conditions applied. This was done in order to improve the openness and transparency of the system. This is a major step forward. Local authorities were not required to say why they had approved an
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application; they were required to say why they had refused one, but it almost went by default. To now require them to say why they granted planning permission is a very important step forward.
It has been argued by some parties that this underlines the need for a third party right of appeal. On the contrary, it should ensure that planning decisions are properly explained so that any confusion or concerns that may exist which would be the substance of a third party right of appeal could be met—as long as that right did not have as its objective to stop the development, as opposed to change or modify it. More information will alleviate that need.
Regarding the scenarios cited in the proposed new clauses, we have already established clear and strict rules and procedures to ensure the propriety of the decision-making process and the decisions taken.
First of all, planning permission must be decided in accordance with the development plan unless material considerations indicate otherwise. Where proposals for developments do not accord with the development plan, the Secretary of State must be notified so that he can consider whether to call in the application for his own determination. It is already the case that the Secretary of State may similarly be requested to call in other applications, including those that are accompanied by an environmental impact assessment.
Members of the Committee may find it useful to know that approximately 1,000 applications each year are notified to the Secretary of State where a local planning authority is minded to grant permission for a planning application that is contrary to the local plan. Of course, the Secretary of State may exercise his discretion on whether to call in the application for determination by him rather than the local planning authority.
That system works in practice. During the 12 months or so that I was planning Minister, dozens of cases went across my desk on which we had to make a judgment on whether to call in. Those decisions were taken by Ministers. We were given advice but we did not necessarily follow it in every case, either to call in or not call in as the case may be. Decisions contrary to advice were reached both ways, which is the right approach. Ministers are accountable for those decisions.
Just over 5 per cent of the notifiable departures are called in by the Secretary of State. The reasons for deciding that the Secretary of State should determine a case include those where the issues may conflict with national policies, where they have significant effects beyond their immediate locality or may give rise to substantial controversy. A set of guidelines is available, based on a Written Answer in the House of Commons given by Richard Caborn when he was planning Minister. We rely on those for our policy, in particular when answering the dozens of letters written every week by Members of Parliament asking us to call in various applications. So very tight criteria govern what is and is not called in. An inquiry is then held to enable full consideration of the issues involved and to hear the concerns of interested parties.

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The proposal in the new clause in which Members of the Committee may see particular merit is for applications where the local authority has an interest. There appears to be a level of concern that a local authority will act improperly in deciding such cases. However, I should say that local authorities operate under very strict rules to deal with possible conflicts of interest and to avoid any impropriety where an application is one in which the local authority itself has an interest. Moreover, in the event that impropriety can be shown, judicial review by the courts is available.
Local authorities are often required to take decisions on issues in which they have a dual interest. There are around 5,000 cases a year in which local authorities have an interest in land to which they grant planning permission. It must be borne in mind that these will include town centre sites and often involve regeneration projects that will bring real benefits to local communities in terms of homes, jobs and environmental improvement. These are the very projects we need to ensure are delivered quickly and are not hampered by subsequent challenges.
However, where there are concerns about the ability of local authorities to act in a fair and unbiased manner in cases where they have a pecuniary interest in the proposed development, safeguards will apply to such decisions For the benefit of noble Lords, I shall briefly outline some of those safeguards.
Local authorities are under an obligation to act fairly in relation to persons affected by planning decisions and to adopt decision-making procedures which provide adequate fairness safeguards to comply with the Human Rights Act 1998. Decisions are subject to control by means of judicial review in the courts. This ensures that decisions are taken in accordance with the law and within the authority's powers, and that they do not act for any illegitimate purpose or extraneous motive such as bias or vested interest.
In addition to these legal safeguards, a number of administrative safeguards ensure propriety in local decision making. The local government ombudsman has powers to investigate allegations of maladministration. Guidance on ethical conduct by local authorities is available, including the National Code of Local Government Conduct. Also, local authorities' own monitoring officers are charged with investigating allegations of maladministration or injustice. Arrangements are in place for the discharge of planning functions under the new constitutions for local governance, under which planning decisions are the responsibility of the planning committee and not the executive, to ensure propriety on land disposal and the promotion of specific developments. There are special procedural arrangements which already apply to local authorities' own development, including the need to notify the Secretary of State of proposals not in accordance with the development plan.
That forms a set of constraints on local authorities when they are dealing with matters where the planning permission is directly related to the local authority. We would argue quite strongly that those safeguards render third party rights of appeal in whatever shape or form unnecessary.
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I turn to the suggestion that a third party right of appeal should be available where officers' recommendations to reject an application are overturned by elected councillors. This challenges the very heart of the democratic process. I imagine that noble Lords would not want elected members to feel that they cannot reject their officers' advice so long as they have good and decent reasons for doing so. That would echo what is done by Ministers; I have done it myself. As long as people act rationally rather than on a hunch, there are no vested interests and people do not consider anything with which they are even remotely connected—because my former constituency was located in the region, as planning Minister I never dealt with anything whatever to do with the West Midlands—this system, with its checks and balances, operates in a fair way and these issues are covered.
In circumstances where councillors reject the advice of officers, they must have good planning reasons for doing so. I stress that planning reasons must be given. I had constantly to say to constituents, "You can't use competition reasons for trying to stop a development. You must use planning reasons. Here are a few planning reasons for you to take away and flesh out". A reason such as claiming that there are too many of a certain kind of shop in an area is not a planning reason, it is a reason of vested interest in competition. Again, however, it is the case that judicial review is available where there is evidence of impropriety or the decision can be shown to be irrational or perverse.
It is difficult to assess the level of challenges to local authorities' decisions by means of judicial review as the Secretary of State has no locus in such challenges and we do not have that information. However, to the best of our knowledge, between January 2002 and November of last year—a period of almost 21 months—there were 16 instances we know of where third parties brought judicial reviews of local authorities' decisions to grant planning permission. These were successful in seven of the 16 instances.
This shows, first, that judicial review is actively employed by third parties. It will always act as a form of nuclear deterrent, in a way, because it is so expensive. Secondly, decisions of local planning authorities have been overturned as a result. I am not building a massive case on 16 instances, but those 16 decisions were thought sufficiently bad for someone to provide the funds to go for judicial review. In roughly half of those cases, the challenge of the review worked in the sense that the decisions of local planning authorities were overturned. One could argue that the system is working at the extreme end, in major cases where it is thought that something is seriously wrong. The numbers of such cases will always be small, but I would argue that the system worked in those cases.
I do not gainsay the argument that because the number of cases is low, it does not count; we would not expect there to be regular resort to such proceedings. Judicial review is out of the range of most people, but it is not the sole recourse in the event of an allegation of impropriety in the process; there are other ways.

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Debates in Westminster Hall involving my colleagues as planning and other Ministers are held on individual cases on a regular basis. That, too, is quite right.
I have presented the difficulties, but I want to address just a few more issues. It is my understanding that the new clause envisages that the right of appeal would apply to anyone who had objected at application stage, and additionally to anyone else at the discretion of a person appointed by the Secretary of State for that purpose. Providing a right of appeal to anyone who had objected at application stage is likely to encourage the submission of objections in order to safeguard the right of appeal should permission be granted at application stage. This would confuse and slow down the initial consideration of the planning application, not necessarily for good reason.
Providing a right of appeal to anyone else at the discretion of a person appointed by the Secretary of State for that purpose would inevitably lead to delay. Introducing an additional procedure to be gone through to establish whether an appeal can proceed would mean that the developer would be unable to implement his permission until such sifting processes had been completed. Frankly, it is difficult to envisage the circumstances in which a person could legitimately seek a right to appeal against a proposal to which he did not object in the first place, but he would be able none the less to frustrate the development. It seems to us that that proposal as it stands is a recipe for chaos.
I believe that the third party right of appeal could be used to delay or effectively veto many otherwise acceptable developments which would bring benefits to local communities in terms of homes, jobs and the regeneration of neighbourhoods.
Challenges are not ruled out. However, in my experience, such a step was taken not to delay but to stop developments. Developers need certainty in order to invest in local areas and they want decisions quickly. Third party right of appeal would mean that planning approval could not be implemented pending an appeal and that would inevitably lengthen the decisionmaking process.
I have explained at length why the Government are not persuaded and why I am not persuaded. I am happy to defend this position. Our proposals for greater community involvement in the planning process are a major step forward. These proposals, coupled with the range of procedural and legal safeguards that exist, render even a limited third party right of appeal unnecessary. For those reasons I see no merit in introducing a third party right of appeal.
To answer the noble Baroness, Lady Hamwee, regulations require the local planning authority to consult when preparing local development documents. All the bodies she suggested—regional planning boards; the Mayor; regional development agencies; the rail authorities; local authorities in neighbouring areas; electricity, gas, water and sewage companies; voluntary bodies; bodies representing religions and disabled people; local businesses—can comment and the local planning authority has to take any comment into account.
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The statement of community involvement also provides an opportunity for third parties to be involved in significant planning applications. That is an important process, which I admit did not exist when people made complaints some years ago. The Green Paper was issued, but a Green Paper is not a firm proposal for legislation. There have been substantial changes since we produced the Green Paper. Those changes meet many of the demands made by people seeking a third party right of appeal on the issues I have mentioned. Having given that lengthy explanation, if this issue comes back on Report, I hope I can then use a shorter version because I will be able to refer back to Hansard
12.30 p.m.
Baroness Hamwee: Was that the long version or the massive version? I was going to ask if we could have the massive version in order that we could anticipate what might be said at the next stage, as the Minister anticipates that there might be further discussion.
I will not attempt to deal with all the Minister's points but I will make some observations. Picking up on what the Minister said towards the end, it would not be possible to veto development simply by a third party having a right of appeal. That is because the inspector would rely on all items relevant to the decision. The fact that the third party had a right of appeal would still have to be limited to arguments within the development plan and so on. He mentioned possibly using judicial review, but I understand that is limited to a point of law.
I understand what the Minister said about community involvement, but it does not seem to answer the proposals for a right where there is a departure, or a significant departure, from the development plan, nor when the local planning authority owns the land or is the applicant. I am not sure the Minister was attempting to use that as the basis of his argument. Given that there have been serious concerns about this for a long time, I understand many of the points made. I think the issue is whether the proposals go far enough. Is there something else that can be done and can this Bill be used to do it? I was going to say that I look forward to reading the massive version—I will read the massive version, although I am not sure whether I look forward to doing so. I thank the Minister for sharing it with the Committee.
Lord Bridges: This has been an interesting debate and some hits have been registered on my proposal, which I must consider. I agree with the noble Lord, Lord Lucas. He is right to say that we get the councillors we deserve. Something he did not emphasise is that they operate within a system. However good or bad the councillors, the effect of the system may be as important as the quality of the councillors. This is a subject we shall have to think about again.
In listening to the Minister's full speech, which deserves much study, I could not detect his earlier interest in this idea. As my noble friend, Lord Chorley,

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said, the Damascene conversion seems to have been more or less total. It reminds me of the celebrated remark made by the late Ernest Bevin when he was invited to do something of which he, sensibly, felt suspicious—I suspect it was something in the secret intelligence line. He made the memorable observation that he would not open the Pandora's box because it was full of Trojan horses. It is a subject to which the Minister must return. I shall read the full text of the Minister's remarks with much interest. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 49 [Appeal made: functions of local planning authority]
Baroness Hamwee Baroness Hamwee moved Amendment No. 120A:
Page 37, leave out lines 15 to 17 and insert—
"(6) The additional period shall be eight weeks from the date of the submission of an appeal to the Secretary of State under section 78(2).""
The noble Baroness said: This amendment will be shorter. In moving Amendment No. 120AI speak also to Amendment No. 120B.
The purpose of the amendments—one relates to planning applications and the other to the listed buildings Act equivalent—is to specify the length of the dual jurisdiction regime on the face of the Bill instead of leaving it to be determined in a development order to be issued by the Secretary of State. This is dual jurisdiction for an appeal. The period allowed for an appeal is important because it is possible to miss out completely if the period is missed. It is also important as a matter of principle. I do not mean to be rude, but it is not something that should be left to the Secretary of State's whim. It should be able to be altered relatively easily. I beg to move.
Lord Bassam of Brighton: Clause 49 allows a local planning authority to continue to determine a planning application for an additional period after an applicant appeals to the Secretary of State on the grounds of non-determination.
I understand that the amendments would fix the additional period at eight weeks in both the principal Act and the listed buildings Act. They would also remove the flexibility to alter the additional period, which is to be prescribed by development order.
We suggested an additional period of four weeks for considering such an appeal. This will allow a local authority up to four weeks more to continue processing the application and to reach a determination without encroaching too far on the relevant appeal procedure. The length of the additional period was part of a full consultation on proposed changes to the Town and Country Planning (General Development Procedure) Order 1995, which ended on 16 January 2004.
Officials are now analysing responses to that consultation. Early indications are that the additional four-week period is welcomed and may reduce the
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work involved in non-determination appeals. For that reason, we think we have this provision about right. I can understand the cautionary approach behind the amendment but I urge the noble Baroness to withdraw it.
Baroness Hamwee: The response seems to go to the period, but not to the point of whether it should be on the face of the Bill.
Lord Bassam of Brighton: I think that is a fair observation.
Baroness Hamwee: Obviously my point was not tempting enough. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 120B not moved.]
Clause 49 agreed to.
Baroness Hanham Baroness Hanham moved Amendment No. 120C:
After Clause 49, insert the following new clause—
"ABOLITION OF DEEMED PLANNING PERMISSION
Section 90 (development with government authorisation) of the principal Act is repealed."
The noble Baroness said: Section 90 of the Town and Country Planning Act 1990 enables the Secretary of State to grant deemed planning permission for various developments without a planning application being made to the local planning authority. These include developments by local authorities or statutory undertakers where authorisations are required from a government department, and consents for electricity generation under the Electricity Act 1989. These include power station projects, which are frequently contentious. Last year, Electricity Act consent and deemed planning permission for the installation of gas-firing equipment at Littlebrook power station in Dartford was quashed by the High Court because the environmental impact assessment was carried out inadequately. Small wind farms require planning permission which will be considered locally, but large wind farms can receive permission from the Secretary of State.
Electricity lines above ground can obtain deemed planning permission from the Secretary of State. Such schemes are often highly contentious because of their visual impact and health concerns. Transport and works orders for major infrastructure projects can also receive deemed planning permission.
Often deemed planning permission will be granted without a public inquiry. So decisions on major projects will be taken remotely, without local democratic decision and without the safeguard of an inquiry. Local politicians find that planning matters of substantial public concern are out or their hands. It is strange that the public would have greater ability to object to a house extension than, for example, to a power station.
Additionally, local authorities are perfectly capable of deciding planning applications on such schemes. They do so regularly. They can take responsibility for schemes in their areas. I beg to move.
Lord Rooker: Amendment No. 120C seeks to repeal Section 90 of the Town and Country Planning Act 1990 which deems planning permission to be granted for development authorised by a government department under statutory authority. At the moment, Section 90 applies where the authorisation of a government department is required for the carrying out of development by local authorities, national park authorities and statutory undertakers. The section is available for use for major infrastructure development under the Electricity Act 1989 and the Transport and Works Act 1992. The section covers instances where consent is granted to the appropriation of land for development or a compulsory purchase order is confirmed.
The principal effect of repealing the section would probably be that infrastructure projects which at present require only the authorisation of a government department, granted under whatever procedure the relevant Act applies, would also require planning permission. This might be granted by the local planning authority, or by the Secretary of State on appeal or call-in, or as a major infrastructure project under the new rules of the Bill. In short, the repeal would lead to duplication of effort and delay for infrastructure projects, with consequential cost implications. We do not see how this could be thought to be in the public interest.
I do not accept the analogy that more work is carried out on private houses build than on a power station project. That may be the case, but the national policy relating to both is important. The effect on a local community of a growth in housing is important but, needless to say, the development of a power station or other such project requires a procedure to be gone through.
Speaking now without the aid of notes, I should remind the Committee that we have abolished Crown immunity, which is an important point. When I was at the Home Office we deliberately went out of our way to make it clear that the Home Secretary had decided that, even with proposals we had in mind for building certain establishments for which we did not need planning permission, we would go through the planning process. A fat lot of good that did us. But, nevertheless, it was important to do that in order to gain public acceptance of our policy on these sensitive issues.
Decisions on major infrastructure projects of national importance and local significance need to be made by government. If, for example, the amendment
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sought to remove the Government from the decision-making process—I am not sure whether the noble Baroness said that—it would fail to do so. As I have indicated, the amendment requires local authorities to grant planning permission in addition to the approved procedure by government under the legislation. So there would still be call-in and, ultimately, the Government would still have a role to play.
Baroness Hanham: I thank the Minister for his reply. Local authorities would also have a role to play. Among the concerns are the major wind farms which are being gradually plonked down. There is more and more encouragement from the Government to reach their target of 10 per cent of our electricity requirement being met through wind power. Wind farms will be sited not only at sea but, in many cases, in areas of outstanding natural beauty and quite close to people's housing; and, again, local authorities will have no say in the matter.
There will be many major projects where it will be inappropriate for the Secretary of State to be the sole decision maker. Under the Electricity Act—I referred to this briefly when we discussed the dimensions that appear in the Energy Bill—huge projects can be undertaken. Pylons dangling across the countryside are not welcomed and, again, people should have a right to comment on such projects.
I have heard the Minister's reply. Unless he wishes to add anything more, I should like to test the opinion of the Committee.
12.47 p.m.
On Question, Whether the said amendment (No. 120C) shall be agreed to?
Their Lordships divided: Contents, 89; Not-Contents, 93.

Division No. 1

CONTENTS

Addington, L.

Glentoran, L.

Ampthill, L.

Goodhart, L.

Anelay of St Johns, B.

Goschen, V.

Astor of Hever, L.

Greaves, L.

Attlee, E.

Hamwee, B.

Avebury, L.

Hanham, B.

Biffen, L.

Hanningfield, L.

Bradshaw, L.

Harris of Richmond, B.

Brooke of Sutton Mandeville, L.

Harris of Richmond, B.

Brougham and Vaux, L.

Henley, L.

Buscombe, B.

Higgins, L.

Byford, B.

Hodgson of Astley Abbotts, L.

Carnegy of Lour, B.

Howe, E.

Coe, L.

Howe of Idlicote, B.

Cope of Berkeley, L. [Teller]

Jopling, L.

Craig of Radley, L.

Kimball, L.

Dholakia, L.

King of Bridgwater, L.

Dixon-Smith, L.

Kingsland, L.

Dundee, E.

Kirkham, L.

Elton, L.

Knight of Collingtree, B.

Ferrers, E.

Linklater of Butterstone, B.

Flather, B.

Livsey of Talgarth, L.

Fookes, B.

Livsey of Talgarth, L.

Gardner of Parkes, B.

Lucas, L.

Gedds, L.

825

Mackay of Clashfern, L.

Rogan, L.

Maddock, B.

Roper, L.

Mancroft, L.

Rotherwick, L.

Mar and Kellie, E.

Saatchi, L.

Marlesford, L.

Saltoun of Abemethy, Ly.

Mayhew of Twysden, L.

Sandberg, L.

Miller of Hendon, B.

Scott of Needham Market, B.

Montagu of Beaulieu, L.

Seccombe, B. [Teller]

Mowbray and Stonrton, L.

Selborne, E.

Newby, L.

Selsdon, L.

Noakes, B.

Skelmersdale, L.

Northesk, E.

Smith of Clifton, L.

Northover, B.

Strathclyde, L.

Norton of Louth, L.

Thomas of Walliswood, B.

Oppenheim-Barnes, B.

Tordoff, L.

Pilkington of Oxenford, L.

Trefgame, L.

Plummer of St. Marylebone,

L. Trumpington, B.

Rawlings, B.

Wallace of Saltaire, L.

Redesdale, L.

Wilcox, B.

Rennard, L.

Williams of Crosby, B.

Rodgers of Quarry Bank, L.

Windlesham, L.

NOT-CONTENTS

Acton, L.

Hollis of Heigham, B.

Ahmed, L.

Howarth of Breckland, B.

Amos, B. (Lord President)

Howells of St. Davids, B.

Andrews, B.

Hoyle, L.

Archer of Sandwell, L.

Hughes of Woodside, L.

Ashton of Upholland, B.

Hunt of Kings Heath, L.

Bach, L.

Janner of Braunstone, L.

Bassam of Brighton, L.

King of West Bromwich, L.

Bernstein of Craigweil, L.

Lea of Crondall, L.

Billingham, B

Lipsey, L.

Blackstone, B

Macdonald of Tradeston, L.

Blood, B

McIntosh of Haringey, L.

Borrie, L.

McIntosh of Hudnall, B.

Brooke of Alverthorpe, L.

MacKenzie of Culkein, L.

Brookman, L.

Marsh L

Campbell-Savours, L.

Masseyof Darwen, B.

Christopher, L.

Merlyn-Rees, L.

Clarke of Hampstead, L.

Mitchell, L.

Clinton-Davis, L.

Morris of Aberavon, L.

Colville of Culross, V.

Nicol, B.

Crawley, B.

Parekh, L.

Davies of Oldham, L. [Teller]

Pendry, L.

Desai, L.

Pitkeathley, B.

Dixon, L.

Prys-Davies, L.

Donoughue, L.

Ramsay of Cartvale, B.

Dubs, L.

Randall of St. Budeaux, L.

Elder, L.

Rooker, L.

Evans of Temple Guiting, L.

St. John of Bletso, L.

Falconer of Thoroton, L. (Lord Chancellor)

Scotland of Asthal, B.

Sewel, L.

Farrington of Ribbleton, B.

Sheldon, L.

Faulkner of Worcester, L.

Simon V.

Filkin, L.

Stone of Blackheath, L.

Finlay of Llandaff, B.

Strabolgi, L.

Fitt, L.

Strange, B.

Fyfe of Fairfield, L.

SymonsofVernhamDean, B.

Gale, B.

Temple-Morris, L.

Gavron, L.

Tenby, V.

Golding, B.

Thornton, B.

Goldsmith, L.

Tomlinson, L.

Gould of Potternewton, B.

Triesman, L.

Grabiner, L.

Walpole, L.

Graham of Edmonton, L.

Warner, L.

Grocott, L. [Teller]

Whitaker, B.

Harrison, L.

Williams of Elvel, L.

Hayman, B.

Woolmer of Leeds, L.

Hogg of Cumbernauld, L.

Resolved in the negative, and amendment disagreed to accordingly.
12.56 p.m.
Clause 50 [Duration of permission and consent]:
The Deputy Chairman of Committees (Lord Carter):
I should tell the Committee that if Amendment No. 121 is agreed to I cannot call Amendments Nos. 121A or 121B on the ground of pre-emption.
Baroness Hanham Baroness Hanham moved Amendment No. 121:
Page 38, line 15, leave out from "amended" to "after' in line 18 and insert "so that"
The noble Baroness said: I shall not read out the group of amendments. They all refer to Clause 50.
Clause 50 would reduce the duration of permissions and consents from the default position of five years, as at present, to three years. We have received innumerable representations stretching well into double figures. It is fair to say that the provisions of the Bill have been universally condemned. Many concerns have been expressed. I shall try to summarise them for the Minister.
First, there is confusion as to why changes need to be made to the current system. Hence, the amendment to which I have added my name to remove Clause 50 from the Bill. Local planning authorities already have the power to shorten the consent from the defaul t five years if they deem it necessary.
Instead of Clause 50, the Government should issue best practice guidance on when it will be appropriate for councils to exercise their existing right to issue shorter consents such as when there is a strong likelihood of housebuilders banking land or on very simple developments which could be completed quickly.
There seems to be general consensus that far from saving a local planning authority time and resources, as it will no longer be able to grant extensions to planning permissions, applicants will be forced to submit an entirely new application and the local authority will be burdened further. It will then have to devote much time to going through the process again simply because time ran out.
For many developments, three years will not be long enough. This short consent will serve only to put off potential developers. That is especially so for major brownfield, city centre and mixed use developments— precisely the type of development the Government are keen to encourage as part of their sustainable communities agenda. Marginal schemes on complex sites in regeneration areas will be made more difficult. Funding commercial and mixed development is already problematic as it is much more risky than traditional housebuilding. The changes in the Bill would make it harder still. What the Government are trying to achieve with one hand, successful urban regeneration, will be undermined by the other. By reducing the duration of consent, developers will be discouraged from taking on precisely that type of project.
Many of the organisations that I spoke to on the issue pointed out the number of processes, many of which are outside the developers' control, which must be completed before work can start on the site. That may involve subsequent consents from the Highways

827
Agency, the Fire Brigade and the Environment Agency. Compulsory purchase may be necessary, and there will be issues such as decontamination of land, pre-letting, negotiating finance, tendering contracts and assembling interests. There will be many planning conditions that require details such as landscaping, drainage, internal plans and the external material for buildings to be submitted and approved before the planning can be implemented.
A three-year period will cause difficulties for many of the developers of which the Government are most supportive. In the vast majority of cases, it is costly for the developer to sit on land and it would be in their own interests to get on with the development as quickly as possible. It will not encourage developers to introduce desirable schemes more quickly. If permission is about to expire and planning policy and its planning merits still support the scheme, the developer will be able to renew the planning permission. Neither a local planning authority nor the Secretary of State will refuse planning permission for a project that they support simply because the original permission has not been implemented.
Clause 50(2) relates to outline planning permission. The effect of the Government's change to the planning Act is that an application to the approval of reserved matters must be made within three years of the grant of planning permission. The developer then has two years from the final reserved matters being approved by the local planning authority to begin development.
That has a number of strange results. First, while the Bill considers that full planning permission should be implemented within three years, outline planning permission will have five years or more. Three years are given to apply for reserved matters and some time for them to be approved, and two years afterwards. The Government's intention to reduce the period for implementing planning permission applies only to full planning permission.
Secondly, if reserved matters are approved and granted within six months of the grant of outline planning permission, the developer will have to start development in the next two years—that is, two years and six months after the grant of planning permission. If not, the permission cannot be implemented. However, the developer who failed to implement within two years and six months can make a further reserved matter application towards the end of the three-year period. That reserved matters application could be identical to the one previously approved. The local planning authority would have to consider it and, if it were approved, the developer would have a further two years to implement the permission. He would have resurrected the planning permission.
That is an odd result and comes about because the Bill proposes to revoke Section 92 of the planning Act, rather than amending the five-year period in the Act to three years. The Government have made a minor concession on the issue for the case of complex regeneration schemes, making provisions in the regulations for the local authorities to "look favourably" at requests for longer periods of durations for such schemes. However,
828
that is really not enough. As a default position, experience shows that it would require substantial effort by developers to convince local authorities of the need for a longer time-frame than three years.
Beyond the clause stand part debate, I have tabled a number of additional amendments designed to change the effect of Clause 50 in a number of ways. Amendments Nos. 121, 121A, 122, 123, 125, 125A and 126 would remove the provision to reduce the default time limit for implementing planning permissions from five years to three years. That would prevent many of the negative consequences of the clause as it stands. Five years is a much more realistic time-frame, especially for major projects on complex sites.
Amendments Nos. 122Aand 126ZA would remove the provision expressly stating that nothing in the clause prevents the development being started when the permission or consent is granted. I beg to move.
1 p.m.
Baroness Hamwee: We have two amendments in this group, Amendments Nos. 121A and 125A, and have put our names to several others. The short point is that we seek to understand why existing legislation is not being used. There is certainly widespread misunderstanding that local planning authorities can grant permission for periods that are more or less than five years, but it seems to us that we should not consolidate that misunderstanding or in any way support planners ignoring what they can or cannot do now.
I look forward to hearing what the evil is that the Government seek to cure. If it is "land banking"—to use a phrase now in common use—by developers, who are thought not be getting on with providing housing, for example, in particular, why is the amendment needed, given the provisions of the 1990 Act? Section 91(2) of that Act provides that the period within which a development must be started can be longer or shorter, and should be the period that the local planning authority considers appropriate, having regard to the provisions of the development plan and any other material considerations. I assume that will still apply, but I would be grateful if the Minister could confirm that, as it is not always easy to read one's way through interlocking provisions. Presumably, it would still apply but with a default period of three years. I simply do not understand why the existing provision is not an adequate tool.
I wonder whether the new provisions, proposed by the Government in Clause 50(1)(b), will encourage judicial review. I am not suggesting that legitimate opposition—or any opposition, perhaps, because until it has been tested one does not know whether it is legitimate—should be stifled. However, is it not better to have mechanisms in the planning legislation itself rather than have to go outside it and to use judicial review? If the Government are concerned that local planning authorities do not know what their powers

829
are now, there must surely be a place for issuing fresh guidance to remind the authorities and make the position absolutely clear.
Lord Lucas: I have a couple of amendments in this group, but I shall not speak long as my noble friend Lady Hanham has gone over the ground extremely well.
Of course I would not want the wording of Amendment No. 121B in the Bill; it merely sets out the concerns as to the reasons why three years will on many occasions be the wrong length of time. The ideal system is as set out by both opposition Front Benches: that we have guidance on the application of the existing arrangements, which can bias local authorities towards choosing three years where that is appropriate, when something is going to be done straight away and there are no complications.
Even in domestic situations, five years strikes me as the right default time. If one gets planning permission to put a third storey on one's house, which one might do before one sells it to clarify the planning arrangements, it might take two years to sell the house—and then the new purchaser is stuck with an extremely short timescale to implement the planning permission. Five years is the accepted, organised and reasonable time scale. I can see that with particular developments that a local authority wants done quickly, to shorten the timescale would be reasonable. However, five years seems the right default, certainly when one is dealing with anything at all complicated, as my noble friend says—when one needs to build up the site or to deal with problems on the site.
On Amendment No. 124, with the Bill as it is at the moment, a local authority that does not want a development to take place merely has to grant planning permission for it with a three-month timescale to start with, and then wait for the developer to be unable to comply with it. Under those circumstances, the developer would then be unable to appeal against the three-month timescale as being unreasonable, and would be blocked for two years under the other clauses of the Bill from submitting a repeat planning application. Surely, that is not the Government's intention. I hope that it is a misreading but, if not, I believe my amendment to be the right one.
Lord Cobbold: I rise to echo what has been said by the noble Lord, Lord Lucas, and what was said from the Front Bench by the noble Baroness, Lady Hanham. The question about this clause, and about other clauses, is whether it improves the situation or whether it would be better left as it is. It seems to me that, as the noble Lord, Lord Lucas, has said, five years is the logical period, not just for the big developers, for whom it is important, particularly with major schemes on regeneration, but also for the smaller schemes. One can have situations where finding finance is very difficult, where business circumstances change or even where economic circumstances change. All of those factors make a longer period necessary. Given that, under
830
existing law, local authorities are able to restrict the period to three years I query whether the proposed clause is appropriate for the Bill.
Lord Bassam of Brighton: It will not surprise noble Lords opposite and the noble Lord, Lord Cobbold, that I cannot agree with what is being offered. As has been described, it would essentially perpetuate the current system. Our view is that it is important that development, particularly where it relates to regeneration, should be begun as soon as possible.
Like other noble Lords who have been involved in these debates, I was involved in local government for a long time. I am well aware of land assembly and funding issues. But we can cope with that. The system that we are setting out will enable us to have the flexibility. Clause 50 is intended to encourage developers to start work on developments earlier and to prevent them sitting on planning permissions which, as noble Lords would accept, can be a problem, particularly when one is trying to regenerate an area that has long been neglected. I am sure we can all think of such areas from our local knowledge of planning development and regeneration issues. What we do not want is that sites should exist that are long unused and have planning permissions but where for a variety of reasons, sometimes understandable, sometimes less understandable, those planning permissions are not executed.
In our view the default period should not be as long as five years. The majority of permissions are implemented within a three-year period and for that reason we do not consider a three-year default period unreasonable. Developers that wish to extend the life of a permission should be required to submit a new application for planning permission. I appreciate that that will enable the local planning authority to consider the entire application afresh, enabling it to take account of changes to national guidance as well as to local circumstances and local funding issues. I do not think that is unreasonable because over a three-year period matters move on. We all appreciate that.
We recognise that there will be cases, particularly when complex regeneration issues are involved, when three years will not be sufficient time for a developer to commence work. Local planning authorities already have the power, as several noble Lords have suggested, to impose a period longer or shorter than three years. Therefore, when it grants a planning permission the planning authority will have the discretion to extend the period of validity for such cases. It will be plain where there is that complexity. For these reasons we do not wish to set the default period proposed in Amendment No. 121B of five years for major complex projects, those involving a high degree of risk or those with substantial upfront costs. In any case, these would be difficult to define in legislation.
We want to have flexibility for local planning authorities and developers to discuss what is appropriate in each case, rather than to set further arbitrary fixed periods. I find that notion particularly attractive because it will enable scope for discussion

831
and negotiation. The term "negotiation" has been used in many of our debates and noble Lords have recognised its importance.
We have already consulted on draft guidance that encourages local planning authorities to consider whether three years is likely to be long enough for the development in question and encourages applicants to seek to agree with the local planning authority that any permission or consent granted should be subject to a longer time period. The draft guidance formed part of a Bill-related draft secondary legislation package on development control issues.
Amendments Nos. 122A and 126ZA would prevent a developer beginning any work on a site where a consent had been granted but had been taken to judicial review. It would be entirely up to the developer to decide whether it wanted to start work. It is extremely unlikely that it would start work, and commit money and resources, on the back of a consent that could subsequently be overturned. However, there are works—for instance, on contaminated land sites—that would need to be completed, regardless of the type of development eventually granted. We want this type of work to be able to proceed.
We think that we have the package about right. We think that the flexibility is there. Certainly, we think that there will be scope for negotiation and discussion. I think that the example given by the noble Lord, Lord Lucas, would be subject to flexibility and that the local planning authority would have the necessary discretion to deal with those smaller issues which, I fully recognise, can occur with smaller scale developments. All of that said, I think we have the balance about right here. I stress the importance, particularly where regeneration sites are involved, of the need to make progress and move matters on. Where communities have waited a long time for an important site to be unlocked, it is right that we have the shorter timeframe so that progress can be made.
1.15 p.m.
Baroness Hamwee: The Minister has talked about why the period should be three rather than five years, but not, in a way that I can follow, about why it is necessary to change it on the face of the Bill, rather than having a period that is not the default period. Section 91(2) of the 1990 Act states that the period, which at the moment is five years,
"shall be a period which the authority consider appropriate having regard to the provisions of the development plan and to any other material considerations".
Do the Government take the view that that subsection is inadequate to cope with the kinds of things that they have been talking about?
Lord Bassam of Brighton: We do take that view. We have established that there is a get-out; there is flexibility and scope for negotiation if a longer timeframe is needed
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for development to take place. We rely on that to provide the necessary space for such matters as land assembly, finance and funding to be put together.
Baroness Hamwee: Does putting funding together and so on fall within this subsection? Developers will want to know. The subsection refers to,
"the development plan and to any other material considerations".
I do not think that assembling the site and organising funding are material considerations for planning purposes.
Lord Bassam of Brighton: The indications that I am getting from the box suggest that that is right. Obviously it is important that there is scope for negotiation with the local planning authority and that the issues are understood by the planning authority when a longer time period is required.
Lord Lucas: I should be very grateful for an answer to the points I made on Amendment No. 124 concerning the way in which I see the Bill as it is being used. Let us suppose that a local planning authority does not want a planning permission to succeed. It grants the planning permission with an extremely short time scale. There is no appeal under subsection (3) against that time scale because planning permission has been granted. It is not obvious to me how one then proceeds. Presumably one has to go through the whole process again. You cannot just appeal the time scale because of subsection (3). If you had a planning permission that had been granted and which had come to an end, one would have to go through the whole process again.
Lord Bassam of Brighton: I do not have an adequate response to the noble Lord's question. If I may, I shall provide him with a note on it. However, I think that this provision will not necessarily worsen the problem he foresees. I do not want to go any further than that. I want to provide him with a proper and full answer.
Baroness Hanham: What has most impressed me about the complaints and difficulties with this clause is the number of those who have received enormous legal advice—they have lawyers sitting all over them— telling them that this clause is an absolute nightmare as regards major projects. For minor projects such as putting on roofs, three years is probably sufficient; it is certainly sufficient for the people next door who are worried about what will happen to their light and view in the future. However, I respectfully ask the Minister to think again about major projects.
Like the noble Lord, Lord Bassam, I have seen a number of regeneration areas where it has taken a very long time to proceed even after planners had put together the whole scheme and obtained a perfectly proper and valid planning permission. It seems to me that developers do not have the time always to be looking over their shoulders and saying, "The two years and six months have nearly run out, after which we will have to put together and start this whole thing all over again".

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I also do not think that it is adequate to say, "Oh, well. After three years they can put in a new application for planning permission". Major planning applications and the rest of it cost enormous sums, particularly if it is being suggested that the local development orders or local development policy may have changed in the interim and they ought to be taking account of that. I do not think that we will have any regeneration if this sword of Damocles is hanging over people' heads.
I would be interested to know what those who have made representations to us think about this after they have read Hansard and understand what the Minister said. I will make sure that they do give us feedback. I do not think that the Minister's response will measure up to the particular problem. I think that there is more to come on this. For the moment, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 121A and 121B not moved.]
Lord Rooker: I beg to move that the House do now resume. In moving the Motion, I suggest that the Committee stage resume not before 2.25 p.m.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.

Business of the House: Terrorism Act 2000 (Continuance of Part VII) Order 2004
Baroness Andrews: My Lords, unless any noble Lord objects, I beg to move that the Motion in the name of the Lord President be postponed until after the Unstarred Question.
Moved, That the Motion in the name of the Lord President be postponed until after the Unstarred Question.—(Baroness Andrews.)
On Question, Motion agreed to.

Medical Services for Students
1.25 p.m.
Baroness Gardner of Parkes Baroness Gardner of Parkes rose to ask Her Majesty's Government how the changes in National Health Service funding have affected the provision of general medical services for students, in particular the effect on general practitioners' surgeries on university sites.
The noble Baroness said: My Lords, to begin, I would ask the Minister whether he is agreeable to amending the wording of the Question to the future tense, as it is not the past that I wish to discuss. The Question would then read:
"to ask the Government how the changes in National Health Service funding will affect the provision of general medical services for students, in particular the effect on general practitioners' surgeries on university sites".
The new NHS contract for general practitioners will come into force on 1 April. Seventy-nine per cent of GPs voted in favour of this new contract and 21 per
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cent were opposed; that is, one in five GPs. Most patients will be completely unaware of any change in their access to medical treatment, and indeed some practices will have a real opportunity to benefit from the new contract. Today I wish to bring to the attention of the House the particular and difficult situation in which some GPs—those in practices where the patients consist mainly or entirely of students— will find themselves. The Imperial College Health Centre has about 4,500 students and 500 local residents. I declare an interest as one of the 500.
The main problem for these practices is that the new GP contract changes the way in which GPs are paid from being remunerated for each patient and each service, to receiving a global sum for each practice. The Carr-Hill formula—a linchpin of the new contract— has been used as part of the calculation for the global sum. This formula assumes a certain profile for "normal" practices in that their workload will include caring for children, pregnancies, chronic diseases such as coronary heart disease and diabetes, and the elderly. I shall in general throughout this debate use the word university but I intend this to include those in higher education generally.
Most university practices have few such patients with chronic illnesses. Some dedicated student health services do not have any. Nevertheless, the demands on the health services by young adults, often away from home for the first time, are many. Their needs comprise not only of the usual health problems and anxieties, but also stem from increasing stresses and pressures, academic, financial and social. Student health services have invested a great deal of human and financial resources to provide the expertise necessary for the additional services that are essential for students. Services such as comprehensive mental health provision and sports medicine are not recognised by the new contract.
The Quality and Outcomes Framework—quoted as "one of the major new sources of income for practices"—is intended to provide opportunities for practices to earn more money. This framework does not recognise the high quality work, which includes comprehensive in-house services such as mental health, and sports medicine, done by university health services. By providing minor injury clinics the need for hospital referral or casualty attendance is replaced and it is better for students to be treated quickly and locally—and of course it saves the hospital costs.
The paradox is that at a time when the Government are seeking to widen access to university—and charge fees, thus increasing the burden of student debt and stress—they are simultaneously creating a primary care financial climate wherein many student health services will not be viable and provision of the essential services to care for and keep students in higher education will cease. In others, there will be insufficient funding to ensure continued investment and development leading to great difficulties in the recruitment of staff, including nurses and doctors.
Students cannot afford to lose time from their studies and coursework either academically or financially. Therefore, health services geared to their

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needs try to avoid the long waits associated with hospital referral, particularly in the field of mental health. Ironically, although this good practice is one of the goals of the new contract, because of the anomalous population in student health, it will not be funded under the current scheme.
There are two areas of development where university practices might be able to obtain extra funding—sexual health services and depression. I shall not go into detail, but there are particular difficulties in providing these services and remuneration is not commensurate. Primary care trusts are under no obligation to commission these services, and many university practices report that their PCTs are not commissioning special services of any description due to insufficient funds.
Persuading primary care trusts to fund student health centres as locally enhanced special services would be another possible area of extra funding. That would involve making a business case, including patient data, evidence of need, evidence of quality and hospital cost savings. There is not enough time for that data to be collected before April. The BMA is keen for the Minister to support that as an ongoing process.
In April the new GP contract will no longer pay for each patient and each service that a practice provides. Each practice will be given a global sum which assumes that basic services are being provided to a practice with a profile of patients of all ages and needs. In replies to questions asked in the House by the noble Lord, Lord Butler, and myself, the Minister has relied on the fact that if the global sum to be paid to a practice under the formula is below the current practice income, the contract will allocate a "minimum practice income guarantee"—MPIG. It will be based on practice data gathered over three-quarters of a year. That three-quarters includes the summer months. That would give a very false result, as NHS students leaving at the end of their courses come off the list in July and the replacement students do not arrive until the autumn. That means that the statistics of the number of patients of the practice being used for calculating the global sum will be distorted and will result in an inappropriate under-funding of those GPs. A practice must keep its staff and continue to operate throughout the whole year.
The MPIG is a combination of a practice's global sum, calculated on a quarterly basis, using the formula and a correction factor calculated on a once-and-for-all basis in April 2004. It is that correction factor that I would draw to the Minister's attention. The information that I have is that the PCT will decide the correction factor for each practice. PCTs should have been collecting information from practices to identify the amount of their funding allocation. Information from all of the practices in the area then goes from the PCT to the Department of Health which will in turn give PCTs their allocations.
The funding streams to PCTs have not yet happened. PCTs will soon send practices an indicative allocation. There will still be time for practices to speak to PCTs about adjustments to that allocation as the final allocation will not be made until after April 2004. The
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delay is that the final allocation is based on figures from the quarter ending March 2004. Global sums will be adjusted quarterly once the system is up and running. As well as talking about the correction factor, I urge the Minister to ensure that PCTs take account of the fluctuating quarterly patient lists so that university practices are not penalised. A university practice's global sum income will vary according to the annual "peaks" and "troughs" in university practice populations and list sizes. There will be a particular disadvantage in relation to the July to September quarter.
I am sure that the Minister is aware of the recent furore over the local government situation, where the official census figures differed widely from the local authorities' own records. We should try to avoid a similar discrepancy and its consequent recriminations occurring in the health service. Will the Minister ensure that PCTs are conscious of the particular situation of student health services and encourage them to use that correction factor to make some adjustment to offset the under-valuing of the numbers on the student health centre GP lists?
In any case, MPIG was not designed for university practices, but for those practices not in a position to make money under the new contract, primarily because of poor organisation. The assumption was that as those practices became better organised their income would increase with quality points. That will not work for university practices as their patient profile will work against them. University practices deal with young National Health Service patients. They are young adults who are as entitled to health care tailored to their needs in the same way as other groups of patients, such as children and the elderly.
The National Union of Students is running a health and welfare campaign this year, which aims to increase access to decent healthcare for students and to educate and inform students about ways to improve their overall levels of health. I quote:
"NUS is concerned that funding for sexual health services is falling. GPs' surgeries are unable to cope with the demand for sexual health screening and treatment with waiting lists often exceeding four or five weeks".
The BMA believe that the new general practitioners' contract will improve GPs' quality of care. But the BMA says:
"Compared to other practices, university practices may be financially disadvantaged under the new GP contract".
The BMA has met representatives from university practices, including representatives of the British Association of Health Services in Higher Education, and is keen to ensure that the valuable services provided to students remain at their present high level. The Royal College of Psychiatrists is concerned that there has been a progressive increase in the number of students seeking help for mental health problems.
There is no time to say more but can the Minister assure me of two things: first, that he will encourage PCTs to look at the correction factor in connection with the special situation of those practices; secondly, perhaps even more importantly, ensure that PCTs are aware of the fact that numbers of patients on university practice lists will not be consistent throughout the year, but will

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vary between quarters. If the Minister can do that, I will be hopeful that there will be better introduction of the new GP contract in those practices.
1.36 p.m.
Baroness Finlay of Llandaff: My Lords, I am grateful to the noble Baroness, Lady Gardner of Parkes, for having raised an important debate and raised her questions. I must declare an interest as vice-dean at the University of Wales College of Medicine and I have dealings with, and responsibility for, large numbers of students.
Student health is important and there are some specific issues for general practitioners providing general medical services to students that must be considered as the nature of the GP contract changes. First, there is of course the fluctuating workload for a practice, although that presents an opportunity for a practice to take in a term-time working partner or assistant—a position that might be ideal for a working parent of small children.
Students are by their nature concentrated in the 18 to 25 age bracket. Specific problems are psychologically and psychiatrically related, sexually related and infection linked. In that cohort of intelligent young people, the males have a particularly high incidence of schizophrenia and it is in that age-group that it manifests itself. Drug-related psychoses are prevalent in that population and, of course, acute psychiatric emergencies correlate closely with drug abuse. It has been estimated that about 40 per cent of those presenting as psychiatric emergencies are drug abuse-related overall.
I am not implying that students are drug abusers, but they are in that young, vulnerable age group. Another drug used by many students is alcohol. High risk drinking behaviour needs to be identified early and intervention focussed to detect the early alcoholic. Debt incurred from alcohol often compounds their problems.
Sexual activity in the age group makes them frequent users of post-coital contraception—the "morning after pill"—and at risk of sexually transmitted diseases. It has been estimated that one in eight of that sexually active population will be found to be chlamydia positive on testing. The long term implications are great, with the associated risks of pelvic inflammatory disease, ectopic pregnancy and infertility. There is a case for introducing rapid molecular diagnostic techniques in that population as a screening tool. Sweden introduced screening 25 years ago and has recently reported a decrease in prevalence of chlamydial disease and of ectopic pregnancy rates. That runs counter to the international and UK trends, where no screening programmes are in place.
Depression is also prevalent in that age group and with it the tragedy of suicide and parasuicide. Previously undisclosed abuse presents as a variety of symptoms, not only depression. The student may have felt unable to disclose to the GP at home, who is also the family doctor, but will disclose once they are away at university. Other manifestations of distress that are prevalent include anorexia and other eating disorders and those who self-harm. People who harm themselves
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do so as a way of release from their overwhelming distress. They can benefit from specialised intervention, but the management of self-harming is often outside the experience of the ordinary GP and local general psychiatric services may not have anyone with a particular interest in these complex cases.
But there is a much more complex issue in trying to improve health in this population. The time frame for intervention is short. They are a mobile population who are poor attendees for planned appointments but often need acute short interventions. They have a very low incidence of chronic conditions, clearly outlined by the noble Baroness, although of course a few will have conditions such as diabetes or physical disabilities requiring general medical input. They present with a variety of acute sports and other injuries related to lifestyle. They need to be seen there and then.
They tend to drop in to student health services in a panic, seeking rapid intervention. Peaks and troughs in demand coincide with terms and vacations although many are slow to register with the GP when they first arrive at university. So the practice does not have the benefit of the well non-attendee on its list as calculated for in the new ordinary remuneration rates: students present and register when they have a problem and need help.
Students coming from abroad and those travelling in vacation or as part of their course may bring with them infections that are less frequent in this country. Tuberculosis is on the increase in all parts of the world. Immunisation affords only partial protection, but many have never even had a BCG immunisation.
Loneliness is a major problem for some students, away from home and facing fear of failure. Acute isolation, debt and poor living conditions conspire against such a student to drive him further down the road of despair. He may feel fearful of seeking help and stigmatised by mental health problems.
Confidentiality is a major worry for some. They do not want to encounter their friends in the waiting room, so effective services will do all they can to ensure strictly that the reception staff are sensitive to the students. The acute emergency of meningitis is a time when the practice must suddenly alter its work pattern to work with public health to contain any outbreak. Students live close to each other and it is in this group that meningitis strikes and fatalities occur.
This Government have done much in the new GP contract to ensure that the true workload for general practitioners is reflected in remuneration. However, the additional services provided from those practices with a large student population will be in mental health and in public health particularly in relation to sexual activity.
The minimum practice income guarantee should mitigate against penalising existing practices, but there is little incentive in the contract for a practice to move into the area of student health. I hope that the Minister can give some assurance that primary care organisations will be asked to monitor the commissioning of student

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services from university practices and set standards for these to ensure that they are run by those with a particular interest in the health concerns of young adults.
The ability of the primary care organisations to commission enhanced services for those running student health services provides an excellent opportunity for the specific needs of this group to be met and to impact on sexual health, unwanted pregnancy rates and avoid, it is to be hoped, the awful incidence of suicide.
I also ask the Minister whether consideration is being given to the cost efficacy of a screening programme in under 25 year-old, non-pregnant, sexually active women to detect chlamydia. Student health services could be an ideal starting point for such an evaluation.
1.43 p.m.
Lord Butler of Brockwell: My Lords, I, too, thank the noble Baroness, Lady Gardner of Parkes, for tabling the Question and giving us a further opportunity to debate the issue. It is a problem about which I feel most concerned as a head of a college at Oxford University. In that respect, I declare an interest. I declare a further interest because I am on the list of one of the practices involved as part of the college.
The Minister was kind enough to answer a Question from me a few weeks ago and I do not want to go over the ground I mentioned then. However, there have been further developments to which I want to refer. I want to underline some of the points that have been made so competently by the noble Baronesses, Lady Gardner and Lady Finlay.
As has been said, the new GP contract is recognised as a considerable advance. It reflects the different needs of various sectors of the population, and the Carr-Hill formula is surely right in recognising that some sectors of the population have greater needs than others. I am advised that the rate under the formula for, for example, elderly women is six times that for young males. It makes sense, and those of us who are elderly will agree, that elderly members of the population should carry greater weight in the capitation rates for general practice. However, I am advised, and the Minister may wish to comment on this, that the similar formula in Scotland allows three times the weighting for elderly women compared with young males. Compared with the rate south of the Border, there appears to be a discrepancy.
Even if the relative weighting is right, as the noble Baronesses, Lady Gardner and Lady Finlay, have said, there are particular problems for students living away from home compared with those in a similar age group who are living at home with their families. And the statistics show that the consultation rate among students living away from home is much higher than for young people of similar age who are living with their parents.
The reasons for that are not difficult to see. Many such young people will be living away from home for the first time. They are exposed to experiences and risks to which others in more sheltered circumstances will not be exposed. Many are foreign students and the
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strain on them is particularly heavy. But even those who are in a familiar context are prone and vulnerable to mental stress, to the temptations which come from sexual experiences and to exposure to drugs.
Again, the Government have taken some excellent preventive initiatives in these areas and in my experience GPs dealing with such young people strongly support them. But they need funding. The preventive measures—the health education that is highly desirable and encouraged—need to be allowed for. The present formula does not allow adequately for it.
When I asked my previous Question, the Minister put a good deal of weight on the ability of the primary care trusts to provide extra funds for this purpose. Indeed, the noble Baroness, Lady Gardner, referred to that today. The question is whether the primary care trusts will have the funds and will be willing to recognise this particular need and to provide adequately for it. That is the unknown aspect that is creating great uncertainty in practices dealing with students.
Since I asked my previous Question, there has been a meeting between the British Association of Health Services in Higher Education and the BMA. At that meeting, the BMA recognised the problem and told the association that it had been making representations to the Government on its behalf.
The difficulty is that, as I understand it, the Carr-Hill formula will not be reviewed until 2006. By that time, a great deal of damage may have been done. The Government are saying, as the Minister said to me previously, that the formula is widely supported by the medical profession and that they are unwilling to reopen it. So there is a great deal of weight on the primary care trusts. If a solution is to be found, the first recourse must be there.
The danger I see is that it may be one of those situations where everyone acknowledges a problem and recognises a need but will be tempted to leave it to another body to solve it, so that it will not be solved. The noble Baroness, Lady Gardner, made some very practical suggestions of ways in which primary care trusts might be urged to take cognisance of the problem and provide for it. I warmly support her in urging those measures on the Minister and hope that he will be able to tell us that the department will encourage primary care trusts to take them seriously.
1.51 p.m.
Lord Addington: My Lords, the noble Baroness, Lady Gardner of Parkes, has put her finger on a specific problem in this debate. The new run-of-the-mill way of allocating funds for health services does not serve a particular group in a particular set of circumstances—that is, students. As has been said by all those who have spoken in the debate, things such as chronic disease, heart conditions and so on will not manifest themselves in that group. However, it then becomes apparent that that group has potentially much higher needs in other areas. Thus, there is a lack of funding and specific needs go unmet.

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Other speakers have called on the Government to try to address that by changing the way in which funds are allocated. The enhanced services being introduced by primary care organisations appear to be a way forward. I ask the Government for an assurance that encouragement will be given to ensure that those enhanced services are provided. The noble Baroness, Lady Finlay, listed what students will generally need. I am surprised that that was not taken into account. It is another example of how joined-up government does not really work.
Experimenting with drugs and alcohol, what is often the start of an active sex life, and sports injuries have been there as long as students have been around—let us face facts. The myths about those activities and in which combination they strike have also been universal, but let us not go into that. Everyone who has been to university since universities began would probably say the same.
The Government should ask why that was not factored in. No one has been talking to anyone; but everyone knows what goes on. The majority—indeed, the overwhelming majority—of civil servants are graduates, after all, so that is a big miss, to be perfectly honest.
Let us consider the benefits of taking those factors into account. The traditional gripe that I have against GPs concerning injuries, especially sports injuries, was that they would say, "Rest for three weeks". The noble Baroness, Lady Finlay, shakes her head; I agree that this is probably an historical problem, but it did happen. I remember saying, "Doesn't that mean that I will weaken the muscle, which means that when I start playing again I will stand a greater chance of getting a worse injury that may be permanent?". A look of panic spread across the doctor's face, and he said, "Rest for four weeks". That degree of ignorance existed; it is not as bad now, but elements of it remain. The fact is that doctors are not the best people to deal with that problem; we need physiotherapists or other specialists in the field.
What tends to happen with the young is that they are fit enough to patch over the injury but there is a profound weakness that means that the health service ends up paying for a lot more treatment later. If that type of injury is dealt with in a centre of excellence, there is a facility that others can use as well. The same applies to work-based injuries of the young and not so young doing manual work. Those centres will be better organised to provide such services. That point is unanswerable. The Government should be ensuring that within their structures encouragement is given to creating such services. People will be better able to use them and, in the long term, there will be savings.
Other points were raised about depression and the temptation to experiment with drugs or binge drinking, which it is currently fashionable to discuss. As a young rugby player, I fear that the origins of that were there among young and not so young rugby players-it was encouraged. Once again, with preventive healthcare in place and now that people, we hope, have more open minds, we can establish patterns of behaviour that will benefit us in future.
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It is worth bearing in mind that it is proposed to increase student numbers and to put increased pressure on those students by making them pay more to go to university. The mental health implications of that must be obvious. With the best will in the world on the Government's part, even if their policy is correct—I do not think it is; but that is neither here nor there—they must take into account that there will be greater pressure on students. As a greater percentage of the population will go through university, intervening early on will save resources in the long run.
The noble Baroness, Lady Gardner of Parkes, has raised a real problem that must be dealt with. The waiting system must be addressed quickly. If we get it wrong, we are just saving up cost implications for later. I hope that the Government will tell us today that they are encouraging the health service and those in charge of it to ensure that specialist services are available. In the long term, that will benefit all those in society and save resources. The noble Baroness is correct: the Government should act.
1.57 p.m.
Earl Howe: My Lords, I have the distinct feeling that everything worth saying in this debate has already been said, so I do not propose to speak for long. Nevertheless, not for the first time, my noble friend has raised a topic of considerable interest and importance. In preparing for the debate, I re-read the debates in Hansard on the two Starred Questions of 8 May and 15 January that related to the subject of this debate. I cannot say that I am surprised that my noble friend wanted to take a third bite of this sizeable cherry. We always receive well informed answers from the Minister, but last time, we were all left with the feeling that the issue was far from settled.
I start, as have others, with a statement of the obvious: with university students we are dealing with a vulnerable population group. They may not be vulnerable in the normal sense of that word, but they are vulnerable none the less as young adults who, as the noble Lord, Lord Butler, said, are spreading their wings away from home, often for the first time. There are a great many of them: 2.1 million at the last count; a figure that is growing every year.
Although they are not like the frail elderly, the health requirements of students can often be more acute than those of other age groups. One has only to glance at a BMA publication from last December entitled Adolescent Health to be reminded how many undesirable conditions affect young people in the 16 to 24 age range, above all other age ranges: alcohol use and binge drinking, drug use, depression, self-harm and sexually transmitted diseases.
The BMA laid great emphasis in its report on the need for early intervention in all areas of adolescent health to help to prevent problems escalating. It rightly made the point that young people need information and support in order to be able to access health services on their own. Once they access those services, the facilities must be there. In an area such as sexual health, we are all well aware—even apart from the

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context of this debate—how overstretched those services already are. A condition such as chlamydia is insidious because it can be asymptomatic, so screening facilities must be accessible to those at risk.
When we reflect on what the noble Baroness, Lady Finlay of Llandaff, said about students suffering from mental health difficulties—as many unfortunately do—we need to think in terms of providing services that are equipped to deal with substance abuse, which can often lie at the root of those mental health problems. The role of health education is also especially important here. It is not sufficient to have skeleton medical services on university campuses. The services must be there when they are required, and they must be of a particular kind if they are to meet the needs of the local population. It is against that backdrop that my noble friend's concerns about the new GP contract should be viewed.
I have taken the opportunity to do some fairly thorough reading-up of the GP contract; and in doing so I have been considerably assisted by a briefing paper published the day before yesterday by the BMA. It leaves me in no doubt that the GP contract, for all its merits, is highly likely to put the student population at risk of inadequate medical cover. First, there is the global sum payment. This is the payment that each practice will receive for the basic services that they provide to patients, and it is expected to make up at least half of most practices' incomes. The global sum payment will be calculated by reference to a weighted capitation formula.
There are two main reasons why this formula will disadvantage university practices in comparison with others. Because the practice population is classified as young and relatively healthy, the associated multiplier in the formula in respect of patient need, workload and costs will be smaller than it would be in a practice in which the age range of patients is more spread.
The way in which populations and list sizes are calculated in university practices will produce peaks and troughs. As my noble friend said, list sizes are reported on a quarterly basis for the purposes of calculating the global sum payment. If students who graduate in a particular year are removed from the practice's registered population by 1 July, the July to September quarter's figures will reflect that. If, as may happen, new students have not registered by 1 October, the October to December quarter's figures will also be depressed. The Minister said that practices that keep their practice lists up to date should not be disadvantaged. Frankly, I do not understand how he can say that, particularly when one bears in mind that practices have precious little control over when students choose to register and deregister.
If we look at other elements of the GP contract, there is little for our comfort in them. Practices can earn points in the quality and outcomes framework, QOF, but the value of those points depends on the prevalence of given chronic diseases, such as coronary heart disease, in the patient population. Because student practices have a low prevalence of these
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chronic diseases, payments based on QOF points will be less than they would be if the calculation of points was based solely on list size.
The Minister has laid considerable emphasis on the minimum practice income guarantee. The purpose of the MPIG is to prevent destabilisation and to protect practice income. The problem is that the MPIG is itself partly dependent on a practice's global sum calculated on the normal quarterly basis using the formula. It also includes a once and for all correction factor, to be calculated in April 2004. Like my noble friend, I would be interested to hear whether that correction factor could be specially tailored in respect of university practices.
The BMA said that, despite the MPIG, it is likely that the finances of university practices will fall relative to their colleagues elsewhere and that important enhanced services such as health promotion, treatment of sports injuries, and services for patients with eating disorders and depression are likely to suffer. These are services provided over and above the range of so-called "essential" and "additional" services. It might be thought—and the Minister has previously suggested this—that university practices will be in a good position to tender for these sorts of enhanced services, but if we look at what is actually happening on the ground, there is precious little evidence that they are being resourced in this way by the commissioning PCTs.
It is somewhat sobering to read this week's statement from the BMA calling on primary care organisations to ensure,
"that they commission an appropriate range of enhanced services for students".
There is absolutely nothing to ensure that primary care organisations will do so, and I am afraid that the BMA knows it. It is not only the BMA that is exercised. The British Association of Health Services in Higher Education have also expressed grave disquiet, as the noble Lord, Lord Butler of Brockwell, said.
Last time we debated these issues, I detected signs of a dry stone wall being erected on the other side of the Dispatch Box, so I hope that this time the Minister will be a little more forthcoming and will acknowledge, in the light of what has been said, that there is a real risk of university practices suffering cuts in staff or becoming unviable. We know that the whole situation will be reviewed after six months of operation, but can the Minister say whether in the mean time strategic health authorities will be performance-managing PCTs on this aspect of their activities? Can he also say whether in due course PMS contracts might be the answer on university campuses where doctor numbers become insufficient?
From what the BMA is now saying it is clear—at least to me—that GP practices on university campuses were simply overlooked when the GMS contract was being negotiated. That is an alarming state of affairs, and if there are unintended and detrimental consequences flowing from the contract, there is only one direction in which we can look for these to be rectified; that is, to Richmond House.
2.8 p.m.
Lord Warner: My Lords, I am grateful to the noble Baroness, Lady Gardner of Parkes, for raising her concerns on this important issue. It provides me with an opportunity to set out the new approach to contracting for primary care services that the Government are undertaking. The noble Baroness has great knowledge, experience and commitment to the NHS, and I always pay careful attention to her observations. As a parent who has had four children go through this experience, I am well aware of the needs and vulnerabilities of students. I do not need a lot of tuition in the problems that can arise. I reassure the noble Earl that if he had ever seen any of my dry stone walls, he would not be too worried about what is being erected here.
In responding to the concerns of the noble Baroness, Lady Gardner of Parkes, and others, I begin by placing the GMS contract in its proper context of higher investment in primary care. Across the UK, investment is increasing by about £1.9 billion. There is a 33 per cent increase in funding. There are more GPs in the National Health Service than ever before. Between September 1999 and June 2003, the number of GPs increased by more than 1,500, bringing the numbers in post to more than 30,000. That is the context in which the changes are taking place.
Much new equipment and facilities have been coming on stream. Up to 3,000 GP premises will be improved or replaced and 500 one-stop centres established by 2004. All that means improved access and quality of services for patients. Some of the concerns raised about resources for PCTs do not seem well founded. I will discuss that later.
With that level of increased investment, it is essential that reforms are made to how we deliver primary care so that it becomes more patient-centred with more individualised care and more choice. Alongside that, decision-making is being devolved from the centre to local areas so that the NHS can respond better to the specific needs of local communities, including those with high student populations. The new GMS contract is part of that approach. Some of the concerns expressed derive from an anxiety about how devolution of decision-making on priorities at local level will work in practice. It is important that as Ministers we resist the temptation to second-guess every set of decisions taken in this area where there is a difference of view at local level about priorities. We do not want to return to a world in which Richmond House intervenes at every instance of local unrest.
Under the new contract, the income that a practice receives to provide basic GMS services is termed the global sum. Funding for the global sum is determined by the needs of the local patients. The formula has been designed so that practices with more needy patients and that face higher costs are fairly rewarded. That is intentionally redistributive, and some practices—for example, those in affluent areas, or those with atypical populations—may see a reduction in their global sum compared to their previous income for equivalent items.
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I must make it clear again that the new contract has not been imposed on an unwilling profession. It is the result of 18 months' negotiation between the general practice committee of the BMA and the NHS Confederation. In a ballot of GPs, nearly 80 per cent voted for acceptance of the new contract.
The noble Lord, Lord Butler, raised contract comparison issues with Scotland. I will look into the point that he raised and write to him. However, I gently mention to him that health is a devolved function, and if the Scots wish to pursue a different agenda in this area they have a right to do so. They must exercise their judgment on what they think fit and suitable for the people of Scotland in their health service.
It has always been clear that the new contract will pose some transitional problems. That is why the minimum practice income guarantee has been devised with the profession to ensure that practices that might otherwise lose through the global sum will be protected. It ensures that no practice, wherever it is sited and whatever the make-up of its list, will receive less under the global sum than it did under previous equivalent funding mechanisms. There is a permanent commitment to the principle of that guarantee.
The baseline spend data on which the minimum practice income guarantee is based are collected over the 12 months from July 2002 to June 2003. That recognises the changing levels of a student population and ensures that there will be no distorting effect on the calculation of the minimum practice income guarantee that university practices are eligible to receive. The minimum practice income guarantee is designed to protect fairly all practices whose global sum funding is reduced under the new funding arrangements. That means that when the new arrangements come into operation in April there will be no drop in income for any practice.
It is also worth bearing in mind that the factors influencing funding allocations include increased funding to reflect list turnover, which will benefit university practices. That recognises the extra workload caused by higher levels of demand for services that patients, including students, usually make in their first year of registration. Many payments, including those made under the quality and outcomes framework, will be adjusted by list size quarterly to reflect the demands of a changing population throughout the year.
It is also important to recognise that the new GMS contract is being introduced in a context in which primary care trusts are responsible for ensuring that primary care services meet the needs of their local communities. That is to help the NHS become a more personal health service where meeting the needs of individual patients is paramount. PCTs will have more operational and financial freedoms, and new opportunities to develop locally based services that meet local community needs. They can, therefore, let practice-based contracts for specialised services geared to local circumstances.

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For practices, there will thus be new opportunities to offer enhanced services to cover the specific needs of university students, for example, and to address those problems more prevalent in student populations. Where appropriate, it will be open for PCTs to commission, for example, services for sports injuries— I am sorry to hear of the previous experiences of the noble Lord, Lord Addington, in that area—stress-related health problems, sexual health services or substance abuse, if those were considered appropriate and necessary for a university population. The noble Baroness, Lady Finlay, outlined very authoritatively, as is her manner, some of the important health needs of some students. It is important to mention that it is only some students. We should not generalise about students and assume that they all need such specialised services.
Practices sited on university campuses may already provide those more specialised services, and the new contracting arrangements ensure that they can get paid properly for that work. They will be well placed to develop new enhanced services and thus increase their income. Several noble Lords have referred to the BMA briefing for the debate. I wish to quote one part of it:
"university practices should be in a good position to tender for some national enhanced services such as the more specialised care of patients with depression and more specialised sexual health services, as well as local enhanced services such as sports injury service or a service for the provision of prophylactic care following a meningitis outbreak".
That is from the BMA circular; it is not government-speak.
The noble Baroness, Lady Gardner of Parks, mentioned the Westminster PCT in both the earlier Question and this debate. I have looked into that. The professional executive committee of Westminster decides what services to commission within that PCT. It met in December to decide on the range of services that it would commission as enhanced services. The provision of services was determined there locally by prioritisation, and sexual health services were not deemed a high priority for enhanced funding. But that was because local people made that decision on the basis of their understanding of what services were already available in that area.
The increased investment in primary care that I have mentioned will enable PCTs to commission those more bespoke local services. After all, NHS expenditure is increasing by an unprecedented 7 per cent in real terms a year over a five-year period, and PCTs now have at their disposal 75 per cent of NHS expenditure for commissioning services. But the Government have gone a little further—this will respond to some of the concerns expressed. They have identified specific and rising sums of money for enhanced services. Those are: £315 million in 2003–04, £385 million in 2004–05 and £460 million in 2005–06. Each PCT will be advised of its local floor—I emphasise, floor—for enhanced services below which it is not expected to spend. It is then down to it to decide how, when and from whom it commissions enhanced services. Local primary care practices must then convince the PCT of the local need
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and their capacity to respond to that need. I hope that that reassures several noble Lords who have spoken in the debate. There is very specific, rising provision for enhanced services.
I thought the noble Baroness, Lady Gardner, described well the iterative nature of settling PCT and practice budgetary allocations. I certainly would not wish to quarrel with what she said. PCTs do take account of the varying nature of quarterly list sizes. I am sure that in taking forward the new contract PCTs will look at the correction factor and the fluctuating list of practices with high numbers of students.
In conclusion, let me emphasise again that the British Medical Association welcomes the new contract that it negotiated and which the profession has overwhelmingly voted for. Its briefing for this debate is consistent with what I have said. The minimum practice income guarantee will prevent any immediate drop in income for all practices. We have also agreed with the profession that the funding allocation formula will be kept under review. This review will begin in October 2004 and any changes to the formula are unlikely to lead to a different resource distribution before 2006–07. Even then, the commitment that practices will not be destabilised will remain. It is down to local primary care organisations to use the growing volume of resources for enhanced services to meet local needs and to university medical practices to demonstrate locally the value of their local services. This is not a matter to be settled centrally. I am sure PCTs will study the concerns expressed in this debate.
The noble Earl, Lord Howe, is quite right. The SHAs do have a responsibility to monitor performance in their areas and respond to any concerns. It is open to other people on GMS contracts to move to PMS contracts—a salaried service, if you like—if they think that meets their particular circumstances. This could be a helpful way to respond to a local situation. This contract constitutes an essential reform to match this Government's unprecedented financial investment in the NHS. It will provide new, more autonomous, local service delivery geared to local circumstances that better meets the needs of patients and with the support of the great majority of GPs.
Encouraged by my noble friend to my left, I shall keep going. This will give me an opportunity to respond to a particular point raised by the noble Baroness, Lady Finlay of Llandaff. The cavalry is at hand, by the looks of it. Her point related to screening for sexual health services. We believe that an additional service will be set up to target women from the age of 25 to 64 for cervical cytology screening. But I will write to her in more detail to set out some of the thinking taking place in this area. I am grateful to my noble friend for his arrival. That ends my contribution to this debate.
Baroness Andrews: My Lords, I beg to move that the House do now adjourn during pleasure until 2.25 p.m.
Moved accordingly, and, on Question, Motion agreed to.
[The Sifting was suspended from 2.23 to 2.25 p.m.]

Planning and Compulsory Purchase Bill
House again in Committee on Clause 50.
Baroness Hanham Baroness Hanham moved Amendment No. 121C:
Page 38, line 18, leave out paragraph (b).
The noble Baroness said: These amendments would remove the provisions to extend the life of a planning permission or listed building consent if legal proceedings are brought against it. These provisions in the Bill are entirely novel. Since time limits were introduced in the Town and Country Planning Act 1968 there has been no provision which extends time for implementation because legal proceedings have been brought. I will explain why this provision is undesirable and unnecessary.
First, undesirability. Take as an example a planning permission granted in 2004, subject to a three year period for implementation. Judicial review proceedings are brought to quash the consent, and let us assume that they take the exceptionally long period of three years to be concluded. The implementation period would thereby be extended to 2010. If planning policy had changed in 2006 to make the project undesirable, the consequence would be that the development could be started four years after planning policy had opposed it. Without this extension period, the developer would have had to implement the permission or apply for a renewal of the planning permission. This is a mirror to the amendment we discussed earlier. The public would be consulted and environmental information would have to be updated. The local authority and the Secretary of State would be able to consider the new application in the light of the change in policy. They could refuse planning permission.
The effect of the extension provision will be to enable development to take place at times when local authorities and Ministers consider it to be undesirable. It overrides planning merits and policy and hinders good planning.
Time for appealing a court decision runs from the date when the court order is made, not when judgment is handed down. So appeal times can only be calculated by seeing the order, not from finding out when the judgment was delivered. Indeed many planning challenges are concluded without a judgment when proceedings are settled.
There are difficulties with the drafting of the Bill's provisions in any event. First, subsection (3B)(a) provides that proceedings are to be concluded
"when permission to apply for judicial review has been refused and no further application may be made."
An application for permission is considered first of all by a judge on the papers. If that is refused, the applicant may ask for the decision to be reconsidered at an oral hearing. That is not a further application.
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The Bill is unclear about whether applications for permission are concluded at the paper stage or the oral hearing.
Secondly, the time for bringing judicial review proceedings is uncertain in any event. Applications should be brought promptly and in any event not later than three months after the grounds to make t he claim first arose under the Civil Procedure Rules Part 54. Because of the promptness required, the time for making an application may expire before the three-month period is up. This issue has caused huge uncertainties among judges and lawyers. It is impossible for specialist lawyers, let alone the public, to say with certainty when no further application may be made. Additionally, the court may grant an extension of time for applying for permission. Again, it cannot be said when no further application can be made. The exclusion in subsection (3D) of any ability to grant permission to appeal out of time does not apply to an application for permission to apply for judicial review.
A challenge, as referred to in subsection (3A), to a local authority's action will be a judicial review of the grant of planning permission, not to the decision to grant planning permission, which may be a much earlier resolution of the authority. So subsection (3A) might not apply to those decisions. It is also uncertain whether proceedings against a later decision—for example, to grant reserved matters approval—which implicitly say that an error was made in granting planning permission in the first place, is a challenge for the purposes of subsection (3A). Our legal advice is that that is a real issue in environmental impact assessment cases where there can be challenges to reserved matters approvals which involve the original permission being unlawful.
Does subsection (3E) saying that development is not prevented before the proceedings are concluded affect the ability of a court to grant an interim injunction preventing development being carried out when a planning permission is being challenged? Finally, the provisions do not address cases being brought before the European Court of Human Rights.
Section 288 applications are challenges to the Secretary of State's decisions on planning appeals and call-in inquiries. About 160 such cases are brought each year, of which about 60 will be successful. Most Section 288 applications are brought by developers challenging the refusal of planning permission. Local authorities and third parties are less likely to challenge the grant of planning permission. It is likely that no more than 40 unsuccessful challenges to planning permission are brought by that route each year. Section 288 challenges are usually resolved more quickly than judicial reviews as they are one-stage processes. Permission to apply is not required and they can reasonably be over in three months.
Therefore, this provision will benefit perhaps 120 schemes a year, for periods averaging much less than nine months. However, the extended periods will be extremely difficult for even expert lawyers to calculate. They will allow some development to be

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carried out in the extended period, which would be refused under the new policy or circumstances. I beg to move.
2.30 p.m.
Lord Bassam of Brighton: These are not amendments with which we can agree. Amendments Nos. 121C and 125B would remove amendments proposed by the Government that permit the validity period to start after any judicial review proceedings have been completed. As I understand it, originally those amendments were laid in response to concerns raised by developers at the shorter validity period, coupled with the removal of the provision that enabled developers to seek to extend the life of the consent and could mean that the validity period had expired before judicial review proceedings had been completed.
We take the view that if the consent is not quashed as a result of the judicial review, there is little justification for requiring the developer to submit a fresh application simply because the validity period expired during the judicial review proceedings. For those reasons, we cannot see why that provision in the Bill should be removed.
The noble Baroness made a number of other points on which she had received legal advice and guidance. Today, at the Dispatch Box, I am not in a position to take those points. They are matters on which we should like to reflect carefully. If the noble Baroness is content to withdraw her amendment, we will happily address the more complex matters that she raised in correspondence and share that with other Members of the Committee.
Baroness Hanham: That is a fair response. Clearly, it is a complicated matter which is causing legal questions. I shall ensure that Hansard has my notes. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 122 to 126ZA not moved.]
On Question, Whether Clause 50 shall stand part of the Bill?
Lord Cobbold: Following our discussions, I withdraw my objection.
Clause 50 agreed to.
[Amendment No. 126A not moved.]
Baroness Maddock Baroness Maddock moved Amendment No. 126B:
After Clause 50, insert the following new clause—
"CONTROL OVER DEVELOPMENT
In Part III (meaning of development) of the principal Act in section 55(2), there is inserted after paragraph (a)(ii)—
"(iii) do not materially increase the overall retail sales floor area of the building by more than 10 per cent,"."
The noble Baroness said: Amendment No. 126B is a probing amendment that follows discussions in another place and in this Chamber at Second Reading
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on the issue of internal superstore expansions. The purpose of the amendment—I recognise that this amendment may not be fit for the purpose—is to ensure that where planning permission has been given in the past, particularly for out-of-town superstores, a material increase in the internal retail floor space cannot take place without further permission. That would ensure an opportunity to assess other important local factors that would change if a store increased its size hugely, such as traffic flows and the viability of other shopping facilities in the area.
I am grateful to Friends of the Earth, which has taken up the issue and has carried out a survey. Much of my evidence comes from Friends of the Earth. Its survey of local authorities reveals that supermarkets and other big retailers are building big internal extensions. That is a problem for local authorities, particularly where they are trying to ensure that their town centres are sustainable. It would seem that under original planning terms, it is easy to do this. There has been a habit in England that where planning permission is obtained further external development may need more permission, but further internal development does not.
As I said, there is considerable evidence of significant impact from those types of expansions around the country. That should be set against the fact that more than 13,000 specialist stores, including butchers, bakers, fishmongers and newsagents closed between 1997 and 2002, making a big difference to the viability of local shopping centres. The Government recognised that that was happening. It is not a simple problem. We are referring to planning permissions previously given. The Minister promised to look at the matter, and I hope that he will be able to report on his findings today.
Perhaps I may give just a few more examples of problems. I understand that Asda Wal-Mart plan to build 40 mezzanine floors in the United Kingdom. Much of that space will be used for non-food goods, which completely changes the nature of the store. Potentially, that is a threat to existing town centre stores. There is a particular problem with a store in Tamworth. In the survey carried out by Friends of the Earth, it spoke to a great number of local authorities, many of which realised the problems and have tried to deal with them. Even where conditions have been put on to a planning permission, local authorities were finding it difficult to make them stick. That is particularly the case with the store in Tamworth. There was a condition on the outline permission restricting the floor space, but it was allowed on appeal. The inspector concluded that the condition was not applicable because it did not specifically refer to the internal space.
There are other places, too, where that is happening. For example, in Norwich, Aldiss plans to build 3,000 square metres inside its store; at Chorley, there are plans for a further 1,850 square metres in a store; and at Warrington, 2,000 square metres have been installed. At Eastleigh Borough Council—an area that I know— there is a large out-of-town development at Hedge End that has been there for some years where Marks amp;

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Spencer wants to increase its area by more than 2,000 square metres. Permission for an extension to the building had previously been refused, so Marks & Spencer was actually getting its extension inside the building. The same thing is happening within the same borough, at Chandler's Ford. It is an Asda store, which I know well. It is already a huge bottleneck. Goodness knows what might happen.
The Minister may well be aware that his honourable friend Clive Betts, in another place, has raised the issue in Sheffield. I know that in York, Asda has actually boasted that its mezzanine-enhanced store will bring traffic from even further afield into the area.
When planning permissions were granted some years ago, I do not think anyone envisaged how matters might develop. As I said, it has been fairly standard that people have been able to change the insides of buildings. There is a widespread view that we need to get the balance right between out-of-town shopping and town centre shopping.
I recognise that this amendment is not the perfect answer, but we need to ensure that we have a planning system which guards against unforeseen developments that cause difficulties in the area.
Many Committee Members will have received the same letter that I received from Investors in Retail which was concerned that my amendment was a catch-all and worried that the Government might accept it. I explained how the Committee stage works and that it is rare for the Government to accept an amendment. It has happened to me in the past but I said it was most unlikely that this would happen; that it was a probing amendment; and that if the amendment was a catch-all the Government would certainly not accept it.
I hope that with that information and comments, and especially my opening and closing remarks about the nature of the amendment, the Minister can enlighten us a little as to how we can at least ensure that we do not lay ourselves open to this type of development. I beg to move.
Lord Lucas: I find myself very sympathetic to this amendment. I do not think it works, because Clause 55(2) of the old Bill is an "or" joined clause. I do not think that the formulation that the noble Baroness proposed works with that. Furthermore, it is too easy to get round because you would just have a succession of developments under the threshold, and there is no way under this amendment of dealing with that.
As to her objective—in the cause of building and maintaining sustainable towns and cities to enable the planning authorities to have a voice in what happens in existing out-of-town centres—I am quite happy with that. But if you apply the same percentage to an enormous development out of town and to a heel bar in the middle of town you are going to cause a lot of problems for the small shopkeepers who want to move their counter back a foot. The amendment requires some thought. I hope the Government have been giving it some thought.
2.45 p.m.
Lord Rooker: The noble Baroness, Lady Maddock, does not know how close I have come to saying "We will accept this, put it at Committee stage and get the draftsman to sort it out on Report" because that would be the firmest possible signal to send to the spivs in the retail industry, all of whom the noble Baroness listed, who do not care about rebuilding our city centres. Every single company that was mentioned by the noble Baroness has tried to get round planning policy guidance 6. They do not care about rebuilding vibrant city centres. They are hell bent on remaining out of town and will use anything they can to do it.
There is one exceptional firm that the noble Baroness did not mention, John Lewis, which has a good record of wanting to be part and parcel of rebuilding our city centres. So far as I am concerned it would be nice to accept the amendment, but there are so many technical difficulties with it that we could cause ourselves problems on Report. However, as I indicated at Second Reading, we are seriously seized of the issue and there is a case for action. There is no question about that. I cannot say whether it is required on the face of the Bill, but most of the major retail permissions since 1996, when the policy was reversed by John Gummer—much to his credit—specify maximum floor spaces in the conditions, and one can cope with that. Therefore planning authorities have the powers to control mezzanines in those circumstances.
That is well known—we recently publicised it through the draft planning policy statement 6, which we published before Christmas. We know there is still a problem with the pre-1996 consent. The 1996 policy has only just begun to bite in the past couple of years because of banking all those planning permissions; the companies suddenly realised and claimed that we had changed the policy but we had not.
We have commissioned a survey to assess the extent of the issue and the possible consequences. I want to take this amendment away and give it serious consideration. Ideally you have got to hit these companies so that they know you are serious, and that means doing it in primary legislation. On the other hand it may be more effective, and faster, to use secondary legislation, because they are moving ahead now and there is nothing we can do today to stop what is going on out there. They do not care about rebuilding the city centres because otherwise they would not be doing this. They pay lip service to their community involvement. I hope that all those companies mentioned by the noble Baroness will read what has been said here today.
Baroness Hamwee: I expect that the company mentioned with praise by the Minister will read this as well!
If we can propose an amendment along the lines of "the Secretary of State may make regulations" which will be helpful to the Government in taking this forward at the next stage, I hope that they will let us know, because I appreciate that if they are not quite

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able to firm up at the next stage but would like a further opportunity, we will be happy to provide that platform.
Baroness Maddock: I thank my noble friend for her helpful intervention, and the Minister for what he has said. I knew from Second Reading that he was sympathetic to the issue and I hope that we can do a little more at the next stage, if that proves to be most appropriate. In my opening comments I admitted that I was fairly sure that the amendment was not quite fit for purpose but it has raised the issue and the Minister has given me a very full reply. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 51 [Fees and charges]:
Lord Lucas Lord Lucas moved Amendment No. 127:
Page 40, line 19, at end insert—

"() that fees should be set to generate a prescribed degree of revenue in excess of costs for a local planning authority;

() that to a prescribed extent fees payable should be dependent on the performance of a local planning authority."

The noble Lord said: In moving this amendment, I shall speak also to Amendment No. 128. These two amendments address completely different matters, but none the less they are grouped together.
The first amendment, which I am sure is entirely unnecessary because it involves the power to do something that the Government can do if they want to, seeks to encourage the Government to set planning fees at a much higher level. In all the discussions that I have had with developers I have asked them whether they would be happy if planning fees were raised by a factor of five. I hope that the Government will take that attitude into account and find ways of turning the planning departments of local authorities into something resembling profit centres. If the department is run right, ultimately it should be able to make a cash contribution to the operation of the rest of the authority. To go down that road would be much welcomed by the development industry.
My only caveat is that if we are seriously to pursue the cash contribution element, some of that will have to be made conditional on performance. That is difficult to formulate and I would not dream of trying to do so in primary legislation. Setting a target number of applications dealt with within the target timescale should be considered, but to specify right down to the level of individual planning applications would probably be to invite abuse. Allowing those planning authorities which are generally prompt to charge more might be a better approach. For example, if a target is met, the fee charged could be 4 rather than 3. Ways may be found to encourage and reward good performance, making the planning department an area of the authority to be regarded as one that does well and is something to be proud of. If authorities ensure that their departments are run with the best possible staff in the best possible way, that would be to everyone's benefit.
Amendment No. 128 has been tabled in response to what I understand to be a change made in this Bill that will widen the ability of planning authorities to charge for the services they provide; that is, if authorities have a duty to do something, in general they can charge for it. One area in which local planning authorities are heavily involved is in giving advice before application. A developer can find it extremely valuable to sit down and work through with planning personnel what kind of application would be welcomed by the authority. However, the present difficulty for developers is that, although extensive evidence and correspondence may be submitted at that stage, when the application is finally presented, all the work and documentation is disregarded in the consideration of the planning application.
All that Amendment No. 128 seeks to do is to ensure that if a developer has paid for something, that something should have a value. It should be taken into account when the planning application comes to be granted or refused. It should not be the case that, having paid tens of thousands of pounds up front for all that work, consideration and documentation, it then counts for nothing. That would be the case in many instances if current procedures were followed. I beg to move.
Baroness Hamwee: I am not sure that I would go as far as to recommend making planning departments centres of profit. Perhaps that is pushing it too far in the sense that I understood the point being made by the noble Lord. We have touched previously on a suggestion that performance should be judged in terms of targets in the treatment of local planning authorities by the ODPM. However, the noble Lord's general point about setting realistic fees is one that I certainly want to be heard to support.
Lord Rooker: I am most grateful to the noble Lord for introducing his amendments. As he said, Amendment No. 127 seeks to ensure that the Secretary of State has the power to prescribe by regulations under Section 303 of the principal Act charges or fees that might exceed the cost of delivering the service for which the charge or fee is levied, and that the charge or fee might in part be related to the performance of the local planning authority. Amendment No. 128 seeks to set out the relationship between authorities' fee earning activities and the documents to which those fees relate.
The addition of the words on creating profit centres is not necessary. I understand the term, but the clause as drafted would permit this, and it is unnecessary to spell that out in this particular form of prescription. This is a policy question on whether we should allow planning services to operate at a profit in the manner suggested by the noble Lord, Lord Lucas. We have not yet decided exactly how we want to use the power in Clause 51, so I shall return later to some of the factors that we intend to address.

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The words of Amendment No. 128 would link the fee earning activities and the documentation in a new fee regime. We are not sure whether this would be a valid connection, but if it were, new subsection (2) to Section 303 of the principal Act—that subsection will be introduced by Clause 51 of this Bill—gives the Secretary of State wide powers of prescription in respect of charges and fees. These could include a policy of the kind put forward by the noble Lord.
The words in Amendment No. 127 on a performance relationship for fees raise an interesting concept. It is one that we want to explore and we are grateful to the noble Lord for suggesting it. We want to take it away and consider it further to see whether the existing draft of Clause 51 covers the point. The implication is that it does not. If we are positive about it, I hope to come back on Report with an amendment.
I have to say the following because the Bill is replete with regulations. Any regulations to make any prescription of fees or charges for planning would be subject to the affirmative resolution procedure of your Lordships' House and the other place. This will provide ample opportunity to debate those charges.
While my undertaking to take the amendments away and look at them sounds like a positive ministerial response, I can be more positive than that because we have been considering this issue. As preparation for a new charges and fees regime under the amended Section 303, the ODPM commissioned consultants to review the options open to us on the basis that nothing was to be ruled in and nothing ruled out. On 20 January we published their report, copies of which are available in the Library of the House. I hope that what I havejust said is right, given that it has been published for only such a short time. Among other things, the consultants looked at whether the current ceilings on fees for the biggest applications should be raised, if fees might be set locally rather than nationally, and whether more of the planning activity should attract the fee. a point referred to by the noble Lord.
The report concludes that fees should continue to be levied when applications are made, but not on other aspects of planning services; namely, on the implication of giving advice beforehand. It suggests that significant increases in fees are justified for three reasons. First, the basis of earlier assessments of authorities' planning costs has not properly taken into account the overheads borne by authorities. Secondly, a wider range of activities and types of applications could legitimately attract fees. Finally, the fee cap for the largest applications is currently too low and starves authorities of the proper resources to do the job. It also sets out a broad policy and more detailed prescription issues in taking forward a new fee regime.
I give one example of that concerning a matter I discussed this morning with our advisers at a meeting of external developers and local authorities. We have been considering for some time the failure to deliver RPG9 figures on housing for the wider south-east. There is a real problem with large sites. Any site over 500 dwellings presents a real capacity problem in terms
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of planning. That is a serious issue which we have to address. The resources required are a major problem and that is one area where more resources ought to be delivered. Large sites are the ones we want to develop. I should add that many of these are brownfield rather than greenfield sites.
However, as I said earlier, at this stage we have not taken a view about the way forward, in particular whether the fees should increase under the new provisions. There is a relationship to the service that is delivered by authorities and the fees they can charge. This is related to the extra assistance we are giving authorities through the planning delivery grant, which is the money achieved under the current spending round. We are coming to the end of the first year during which we dispensed only some £50 million to £60 million of the £350 million available. Moreover, there are issues surrounding the fact that planning is for the public good, so there has to be some element of the taxpayer supporting the system, not only those who use it.
Our long-standing policy, and that of the previous administration, was to set planning fees to recover the full aggregate costs, but no more, of the services to which the fees relate. In deciding how to proceed, we will take the noble Lord's well argued points into account, along with those of our consultants. I am happy to reassure the Committee that we would undertake full consultation with stakeholders before any charges were made.
I mentioned the £350 million planning grant, which is based on performance and is not ring-fenced. It is paid to the authority on the basis of performance but when it gets the money it can do what it wants with it. We have achieved our objective: a better planning performance based on a matrix of issues. It is not ring-fenced but it has the purpose that we were after, which is increased planning performance.
The grant is due to increase resources in the year 2004–05 by £130 million. That will take account of what we have paid out this year, which is £60 million approximately—so a figure of some £200 million— leaving some £150 million for the final year of the present spending round. It is designed to drive up performance and increase the quality of decision-making, raise the esteem of planners and to deal with some of the loss of resources for planning that occurred in the previous four or five years. The figure we had was that about a third of the planning resources was lost to local authorities, which caused considerable problems, as we know.
On the basis of those assurances, I hope that: the noble Lord will not press the amendments; I am certain he will not. I hope to come back with a report in due course.
Lord Lucas: I am encouraged and grateful. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 128 not moved.]
Clause 51 agreed to.
Clause 52 [Duty to respond to consultation]:
3 p.m.
Baroness Hanham Baroness Hanham moved Amendment No. 128A:
Page 40, line 34, at end insert "; and
(c) shall not include any requirement to consult members of the public or persons by reason of their proximity to the development"
The noble Baroness said: Clause 52 sets out a duty to respond to consultation. Depending on how broadly the Government envisage the limit of this duty to be drawn, this clause could have far-reaching consequences. Amendments Nos. 128A to 128D are intended to press the Government on this matter.
Subsection (2) requires consulteeswho are prescribed by development order—to respond to a consultation. Amendment No. 128A would prevent the obligation being applied to the consultation requirements on members of the public or neighbours. An obligation should not be imposed on private individuals.
Subsection (3) allows anyone to consult a consultee about a proposed development before an application is made. They do not have to be a person who might make an application. A person, under subsection (3), may be opposed to development. The costs and workload implications for consultees may therefore be substantial. The recovery of costs will allow those implications to be better absorbed and will discourage excessive pre-application consultations. That is the purpose of Amendment 128B.
Amendment No. 128C is a probing amendment to find out what consequence the Government expect if the consultees do not respond. Can planning permission be lawfully granted if someone, or a body, that is consulted has unlawfully failed to give a substantive response? This needs to be resolved because the consequences for local authorities, developers, other consultees, the public at large and even the Secretary of State could be severe.
This clause will impose obligations to respond. The responses must be substantive and the various requirements of information to be provided may be prescribed by a development order. Amendment No. 128D requires consultees to be adequately funded for this purpose. Many are local authority departments—for example, highway authorities—and others are government agencies such as English Heritage or the Environment Agency. They should still be properly resourced for having to do this. Some are interest groups, such as the Victorian Society, the 20th Century Society and the Theatres Trust. They receive some funding for dealing with consultations, but generally have a small staff and limited resources. If they had to respond to all consultations on applications, and to pre-application consultations, within tight timescales the implications might be harsh. There may be an additional obligation to report their compliance with these requirements to the Secretary of State or Assembly, under subsection (7).
The amendment ensures that the Secretary of State or National Assembly fund the bodies to discharge these obligations. I beg to move.
Lord Rooker: I believe can satisfy the issues raised by the noble Baroness, Lady Hanham.
Amendment No. 128A is straightforward. This clause does not apply to members of the public. They, and the adjoining owners and occupiers, are not persons who exercise functions for the purpose of an enactment and are not, therefore, consultees for the purposes of this clause. We cannot place a duty to respond on members of the public who happen to live close to a proposed development.
In respect of Amendment No. 128B, the proposal to allow statutory consultees to charge for advice given to any person or persons before they submit an application was mooted in the planning Green Paper and rejected. I have said that we will listen to any new arguments regarding charging, although that related to the planning authorities. We will listen to arguments in favour of charging, but consultation showed that there was no great demand for charging. It was considered that charging a fee would discourage applicants from seeking pre-application advice. That is why we came to the conclusion, as the consultation suggested, that the charge should be levied on the application. Many of the key statutory consultees were also against its introduction.
I shall take a little longer on Amendment No. 128C, but it is worth having it on the record. We do not see a need to introduce a requirement for a local planning authority to wait for a response from a statutory consultee. The introduction of a duty to respond within a prescribed timetable, and the requirement for a statutory consultee to provide a report on its performance, is intended to address concerns that statutory consultees cause delays or do not respond to consultation requests.
We recognise that in some cases there may be genuine reasons for extending the deadline, for instance, where the environmental impact assessment is needed. It may be noticed that there is a caveat in the draft amendments to the General Development Procedure Order to the effect that the local planning authority can agree to extend the deadline. The draft guidance we issued alongside the draft statutory instrument advises local planning authorities to consider such requests favourably.
We have already enabled statutory consultees to provide local authorities with what we call standing advice. This enables the consultee to provide pre-written advice on applications of a minor nature or where they provide the same advice over and over again. The local planning authority consults the standing advice instead of the consultee. with the result that the process is speeded up. The consultee gets a reduction in the number of applications and is then freed to deal with the ones they should spend time on.
We accept that the order provides that a local planning authority can determine an application 14 days after it has sought advice from a consultee. It is

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not likely to do so where the advice it seeks would be a material consideration in the determination of the application. To ignore such advice could result in the decision being subject to judicial review.
Statutory consultees will also be required to provide a report to the Secretary of State on their performance, which will be published. This will enable us to judge whether there are real concerns about the performance of statutory consultees.
On Amendment No. 128D, we do not agree that the statutory consultee should be funded separately for providing advice. Most of the statutory consultees are publicly funded and their funding should be a matter between them and their sponsoring department. I hope that that is an answer to the four amendments, which are slightly separate but useful to have had raised.
Baroness Hanham: I thank the Minister for that helpful clarification. It is clear that Amendment No. 128 does not require persons to reply. The only concern I have relates to Amendment No. 128C. I understood the Minister to say that a local planning authority has to await the outcome of a consultation before it considers an application. But what would happen if the material consultation, which is part of what a consultee might provide, should have been taken into account in the planning application? It seems we have a chicken and egg situation.
Lord Rooker: Consultees do not have to wait for the outcome and in some cases they will not. If they are waiting for a material consideration to the application and they make a decision which later becomes the subject of appeals, they leave themselves open to judicial review That is because they made the decision in the absence of the consultee's advice on what would have been a material consideration. It may be that they took a view that a particular example was not a material consideration, then got fed up with waiting and made the decision and everyone was happy with that decision. But there will be times when, although they can make a decision, they will not do so in the absence of the information because it is so vital to the making of the decision in any event.
Baroness Hanham: That is another helpful clarification. I thank the Minister for his response. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 128B to 128D not moved.]
Clause 52 agreed to.
Clause 53 agreed to.
Baroness Hanham Baroness Hanham moved Amendment No. 129:
After Clause 53, insert the following new clause—
"Prevention of activities required to cease by enforcement notices and slop notices
(1) For section 178(1) of the principal Act (execution and cost of works required by enforcement notice) there is substituted the following subsection—
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"(1) Where any steps required by an enforcement notice to be taken are not taken or activities required by such a notice to cease have not ceased within the period for compliance with the notice, the local planning authority may—

(a)enter the land and take the steps or remove any moveable objects which appear to them to be used for the activities; and

(b)recover from the person who is then the owner of the land any expenses reasonably incurred by them in doing so."

(2) In section 178(2) of the principal Act after "taken" there is inserted "or removing objects".

(3) In section 178(3) of the principal Act at the end there is inserted "or activities required by such a notice to cease".

(4) In section 184(6) of the principal Act (stop notices: supplementary provisions) for "section 187" there is substituted "sections 186Aand 187".

(5)In the principal Act there is inserted after section 186 (compensation for loss due to stop notice)—

"186A ENFORCEMENT OF STOP NOTICE

(1)Where any activities required by a stop notice to cease have not ceased before the notice takes effect, the local planning authority may—

(a)enter the land and remove any moveable objects which appear to them to be used for the activities; and

(b)recover from the person who is then the owner or occupier of the land any expenses reasonably incurred by them in doing so.

(2)Where a stop notice has been served or a site notice displayed in respect of any breach of planning control—

(a)any expenses incurred by the owner or occupier of any land for the purpose of complying with the notice, and

(b)any sums paid by the owner or occupier of any land under subsection (1) in respect of expenses incurred by the local planning authority in removing objects,

shall be deemed to be incurred or paid for the use and at the request of the person by whom the breach of planning control was committed.

(3)Regulations made under this section may provide that—

(a)section 276 of the Public Health Act 1936 (c. 49) (power of local authorities to sell materials removed in executing works under that Act subject to accounting for the proceeds of sale): and

(b)section 294 of that Act (limit on liability of persons holding premises as agents or trustees in respect of the expenses recoverable under that Act),

shall apply, subject to such adaptations and modifications as may be specified in the regulations, in relation to any activities required by a stop notice to cease.

(4) Regulations under subsection (3) applying section 289 of the Public Health Act 1936 may include adaptations and modifications for the purpose of giving the owner of land to which stop notice relates the right, as against all other persons interested in the land, to comply with the requirements of the stop notice.

(5) Regulations under subsection (3) may also provide for the charging on the land of any expenses recoverable by a local planning authority under subsection (1).

(6) Any person who wilfully obstructs a person acting in the exercise of powers under subsection (1) shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 3 on the standard scale.""

The noble Baroness said: I ask for the Committee's forgiveness because I need to outline the amendment in some detail. It is one which was moved in the other place, I think by my honourable friend Philip Hammond—it has certainly been around—and the issue to which it relates is the subject of a Private Member's Bill of my honourable friend Eric Pickles.
The amendment is tabled as a result of the problem caused by landowners who defy the planning system by sanctioning the unlawful stationing and occupation of residential caravans on lands they own, and then playing the appeals system for time in the full knowledge that they will eventually have to cease the activity but only after having had, perhaps, at least a couple of years of unlawful use.
The new clause is intended to provide local authorities with new enforcement powers so that they can achieve a rapid cessation of use of land in breach of planning controls. One of the occasions on which this will be most useful is when the land is being used for the stationing of residential caravans with the consent of the owner or tenant of the land.
At present, in the event of a development going ahead without planning permission, local planning authorities are able to issue enforcement and stop notices, but have little power to act further if these notices are breached. An enforcement notice calls for steps to be taken or for activities to cease. Unfortunately, this process can be extremely lengthy. There is a minimum of 28 days before it can take effect and usually a period for compliance thereafter which can, I know from experience, run into months. The notices can be appealed to the Secretary of State, taking up further time, and they do not take effect until after such an appeal has been finally determined. Breach of an enforcement notice after the period for compliance has passed is a criminal offence. If the steps required have not been carried out at the end of this period, the local planning authority may enter the land and carry out those steps.
When an enforcement notice is issued, the local planning authority may also serve a stop notice, which prohibits the carrying out of any activity required by the enforcement notice to cease, or any activity carried out as part of that activity or associated with it. For example, if the enforcement notice prohibits the use of land for residential caravans, a stop notice can also prohibit that activity. A stop notice can be effective immediately, cannot be appealed and is not suspended by an appeal against the underlying enforcement notice. Breach of a stop notice is an offence.
The effect of the new clauses would be to give local planning authorities a power to remove any objects that can be moved—it does not include buildings— which are being used for an activity prohibited by an enforcement or stop notice. For example, caravans could be removed or, where the activity is the unlawful construction of a building, the builders' equipment could be removed. It applies only in circumstances in which criminal offences are committed, although there is no need to bring a criminal prosecution.
Therefore if caravans, for example, are moved on to a site in breach of planning controls, the local planning authority can serve an enforcement notice and a stop notice. The amendment allows the authority to remove the caravans if the notice is not complied with.
The new stop notice clause, proposed new Section 186A, is the most important provision. If a stop notice is breached, the local planning authority cannot go on to the land under Section 178 and stop the activity until after any enforcement notice appeal has been concluded—and that could be nine months, or more, after a stop notice was issued. So Section 178 does not provide an adequate remedy in such cases, although I believe that the Minister in the other place, Mr Keith Hill, in a reply by letter to my honourable friend Philip Hammond, suggested that it did. Our argument is that it does not.
Planning injunctions can be sought under Section 187B in respect of any breach of planning control. Such injunctions are sought relatively infrequently, and usually after criminal proceedings have been brought. There is a cost to local authorities in seeking them which, in practice, may not be recoverable; and, again, hearings can take time to come on. Additionally, injunctions would be granted only where the court was prepared to gaol a person who breaches the injunction for contempt of court.
The availability of injunctions does not make enforcement notices or stop notices unnecessary or duplications. The planning Act contains all these remedies. It also does not answer the need for effective, quick on-site enforcement mechanisms for stop notices. Rather than pursue slow criminal or civil proceedings when a stop notice is breached, the local authority should be able to take steps to remove objects and to shut down the activities.
The amendments to Section 178 are largely consequential. Stop notices prohibit activities, whereas Section 178 action can be only to carry out steps required by enforcement notices. The new stop notice power has therefore had to be drafted against objects used in the specified activities. An enforcement notice may explicitly require objects to be removed from land, but it may alternatively simply require activities to cease. In the latter case, Section 178 cannot be used to remove objects which facilitate that activity. The amendment means that the Section 178 power will be able to be used against the same objects that the stop notice power could be used against, even if their removal was not referred to as one of the steps required by the enforcement notice.
The detail of the proposed new clause is as follows. Subsections (1) to (3) amend the Section 178 power for enforcement notices to allow the removal of items used for activities which are required to cease. The steps required by the notice may include the removal of such items, but the amendment ensures that the Section 178 power is not narrower than the new stop notice power.
Subsection (4) is a consequential amendment to Section 184(6). Subsection (5) introduces a new Section 186A which empowers the local planning authority to enter land and remove any moveable object used for any activity prohibited by a stop notice if that activity has not ceased. The provision is based on Section 178. Compensation is payable if a stop notice prohibits activities which are in fact lawful— Section 186—and this compensation provision will apply to Section 186A costs as well.
The references to the Public Health Act 1936, two of which are also in Section 178, allow the authority to sell any materials removed to cover their costs— Section 276—and limits the liability of an owner who is an agent or trustee to the sums available to him from the property.
Section 289 of the Public Health Act allows an owner to go to court to require another person interested in the land to permit him to take steps. This is not required for the stop notice provision, which is concerned only with activities.
I and my honourable friends in another place believe that there is a real need to give local authorities the power to react immediately and take action, rather than being forced to stand back and watch as the notices they have issued are openly flouted. I beg to move.
3.15 p.m.
Lord Lucas: I am not sure whether I support my noble friend's amendment. I understand the nuisance she is aiming at but one has to be very careful to ensure—particularly if this is applied to any of the Traveller communities—that the local authority in question is providing more than enough proper sites for the use of such communities.
If Section 183 of the 1990 Act remains as it was when it was originally drafted—it is very difficult to know because there have been several subsequent amendments to the Act and there is no consolidated, easily portable version of it available—this cannot be applied t0o a caravan if it is a person's main or only residence. If that is still the case, I am content with the way in which the amendment is drafted. If subsequent amendments remove that provision and the amendment would apply to Traveller communities I should not support it. I believe that there is a duty which many local authorities do not live up to: to provide proper accommodation for Traveller communities.
There is a long-standing prejudice. To my shame, I see it again today in a headline about Gypsies in one of the tabloid newspapers. It is the old prejudice of the settled folk against the Traveller; it has been present ever since people started farming. Those communities are few enough in number to enable us simply to say that we shall recognise and honour their differences and provide for them; and that we shall not set out on a course of action, however much trouble we may get from the tabloid press, which eases that pressure at the cost of harassing what I regard as a valuable part of the human community.
Lord Bassam of Brighton: I am grateful to the noble Lord for his intervention. He refers to an issue which has been raised a number of times in debates on this and other Bills, sometimes in concert with the noble Lord, Lord Avebury. I have a good deal of sympathy for his view although I recognise, from a personal perspective, that Traveller communities can and do cause difficulties for settled communities. Sometimes they react in a way which is unreasonable.
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On the underlying cause of the amendment, the noble Baroness seeks to beef up, in her view, the way in which Section 178 operates and to give added effect to it. We believe—I shall go through the points raised—that Section 178 is fit for purpose. We recognise that there are enforcement concerns. It is an issue we intend to address.
It is important to place on record how Section 178 operates. Under Section 178 a local planning authority may itself secure compliance with an enforcement notice once the period for compliance has expired. The power is exercisable in respect of any step required by the notice. So local planning authorities may enter the land and carry out the remedial action specified in the notice. It is a matter for discretion. They can also recover the reasonable costs of taking this action— again I appreciate that there can be problems in doing so—from the persons who then control the land.
Regulations may allow unrecovered local planning authority expenses (which arise from having entered the land) to be charged on the land.
Section 178 also provides that it is a criminal offence— the noble Baroness made this point—to obstruct a person from exercising his or her powers of entry and to take the steps necessary under the notice. The intention underlying the amendment seems twofold. First, it is designed to extend the current provisions of Section 178(1) in terms of non-compliance with an enforcement notice, by referring to activities required by a notice to cease and the removal of moveable objects. Section 178(1) already allows local planning authorities to be able to,
"enter the land and take the steps",
required by the notice.
We believe that it is unnecessary to extend the powers in Section 178(1) in the way the amendment suggests as the current powers can be used in connection with any step required by the enforcement notice to be taken. That includes steps to be taken to remedy the breach (including the removal of objects), to remedy any injury to amenity and to ensure discontinuance or the ending of a particular activity.
Secondly, the amendment seeks, mainly through a new clause, to give local planning authorities similar powers in respect of enforcement of a stop notice as they already have for seeking compliance with and taking remedial action in respect of an enforcement notice. Again, we do not believe that this is necessary. When a breach of planning control takes place, the local planning authority may take action to remedy the situation by serving an enforcement notice on the owner or occupier of the site where the breach has taken place.
In circumstances where there has been an extremely serious breach of planning control, a local planning authority can serve a stop notice under Section 183. Contravention of a stop notice is a criminal offence. However, the stop notice can be served only after or at the same time as the enforcement notice.

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Although both the enforcement notice and the stop notice set out the details of the activity or development which must cease, it is the enforcement notice which gives details of the remedial action which must be taken, not the stop notice.
As I have already said, local planning authorities have powers under Section 178 of the 1990 Act to enter land and take the steps required to enforce the notice and to remedy the situation. A stop notice can be served only on the back of an enforcement notice and must relate to the activity prohibited. Breach of that notice will mean in most instances that the enforcement notice has also been breached, and the powers of entry which were associated with the enforcement notice will be available, therefore, to the planning authority.
In addition, Section 187B already gives an express statutory power to serve an injunction in support of other enforcement functions. Therefore, an injunction can be used to enforce a stop notice's provisions where there has been a deliberate and flagrant flouting of the law.
It is also worth pointing out that the majority of those responding to our review of the planning enforcement system—there were over 500 of them; it was a well supported consultation—agreed that the range of enforcement powers currently available to local planning authorities gives them the right and appropriate tools to enforce planning control. But they did suggest a range of ideas and proposals on how to make planning enforcement more effective. The department continues to assess the issue of strengthening enforcement in respect of breaches of planning control and to consider whether any new powers are needed. These issues are being discussed currently by Ministers.
We recognise that while the regime may be right, fit for purpose and functioning well, it may require some things to be done to improve enforceability.
We believe that we have got the balance right. The noble Lord, Lord Lucas, made the point that we have to tread carefully. We recognise that there are some shortcomings. We think that the legislation is fine. We intend further to consider the issue of its operation. I hope that the noble Baroness will consider this a positive response to what I recognise is a serious issue and will feel able to withdraw the amendment.
Lord Avebury: Although I speak after the Minister's reply, perhaps I may be allowed to ask this of the noble Lord. Does he understand the problem addressed by the amendment to refer to people who would like to have acted under the Mobile Homes Act 1983 if they could have obtained the requisite permissions in attempting to develop sites for occupation of residents? Alternatively, is the evil which the noble Baroness seeks to address primarily that of local authorities who find that their powers are insufficient to cause Travellers obtaining land and stationing caravans on it to cease those activities?
As the noble Lord is aware, the Minister, Yvette Cooper, has already said that Circular 1/94 is to be withdrawn and replaced by different provisions. On 1
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January, the first day in Committee, we discussed that in a preliminary way. No doubt we shall return to the matter later. We cannot quite understand how those provisions will work when the scheme comes into operation.
However, we are faced with a gap in between. Manifestly, there are 3,000 fewer sites in the country than there are Gypsies and Travellers living in caravans. Therefore, there are incentives for Gypsies to buy land, station caravans on it without authority, seek planning permission and, if planning permission is refused—as it is in nine cases out of 10—to go to appeal, and if they fail on appeal to remain on the land thereafter. We have a problem and we have a period of uncertainty, between now and the new system coming into operation, when no one knows how it is going to work. I am anxious that Section 178 powers should not be used wilfully against Gypsies in the interim period. As the noble Lord, Lord Bassam, may be aware, the Traveller Law Reform Coalition is asking for there to be a moratorium on the removal of Travellers occupying caravans on land that has not been given planning permission, especially in cases where they are not disturbing any public purpose for which the land might otherwise be used.
When the noble Lord says that the department is satisfied that Section 178 gives local authorities all the powers that they need to deal with the unauthorised use of land in this way, I am anxious that the department should enjoin local authorities not to use those powers needlessly when we are, we hope, approaching a solution to the problem of Traveller accommodation, but we have not quite got there. It would be unreasonable and, if I may say so, stupid to continue to harry Gypsies from one place to another when we hope that we are about to arrive at a permanent solution to the problem.
3.30 p.m.
Lord Crickhowell: I hesitate to intervene at this stage as I have not done so at any earlier stage of the Bill because I was abroad. I have listened to this debate with interest and I rise to seek clarification. I have a great deal of sympathy with what my noble friend Lord Lucas, said about Travellers in the sense of traditional Gypsies. However, I look back to my time as a constituency Member of Parliament in Pembrokeshire, which was a very long time ago. The problem was not with the Travellers, in that sense, with or the Gypsies, it was with groups that were described in contemporary circles as "mutants".
They were not traditional Gypsies. They were travellers of a quite different kind who very often gathered into their groups criminal elements who found that they could shelter within these communities that arrived and very often did great damage to property. They created a situation that the police were very often unable to deal with effectively because they found that if they tried to enter these gatherings they were often attacked. We had cases of police cars being damaged and destroyed. That was followed by my attempt to pass a Private Member's Bill to deal with the problem. I did not succeed in that effort. To this

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day. if one goes down to west Wales one will see huge boulders blocking off areas alongside roads in an attempt to keep this kind of nuisance away.
In intervening, I am seeking clarification. Time has passed and I am not up to date with changes in the law, as other noble Lords are. I enquire whether this particular problem is being dealt with effectively nowadays. Certainly in Pembrokeshire in those days there were good, well provided Gypsy sites and every effort was made to make sure that there were adequate sites and that genuine Travellers were dealt with. Are we satisfied that the law as it stands enables us to deal with the far less attractive form of travelling that I have described to the House?
Lord Bassam of Brighton: This is very much off-script. I was not exactly sure how the noble Baroness was inspired to move these amendments, perhaps with the noble Lord, Lord Lucas. Perhaps the Traveller issue and the issue of Gypsies and non-settled communities may have inspired part of her desire to strengthen the enforcement regime in Section 178 of the 1990 Act. We have had some wide-ranging commentary on that.
It is not for me this afternoon to say on behalf of the Government that local authorities should have a moratorium on using Section 178, although I was being pointed in that direction by the noble Lord, Lord Avebury. Section 178 is there for many good reasons and for a wide range of enforcement activities that may, or may not, relate to Travellers and Gypsies so that is not something that I can subscribe to.
The noble Lord, Lord Avebury, is right that a new look is being taken at some of the problems that have arisen from the lack of provision of sites. The noble Lord, Lord Crickhowell, has touched on that very usefully. As to whether there is a generalised view on enforcement for what the noble Lord, Lord Crickhowell, describes as a "mutant" travelling community, I can talk only from personal experience. I am not prepared to do that to set out a Government position. There are some issues and concerns there and local authorities are often found to be lobbying on them. By and large it is thought that, so far as enforcement and travelling communities are concerned, all the powers that are required are in place, if it is felt appropriate to use them.
Therein lies the heart of the problem. It is something that is best left to local discretion. Coming back to the issue that prompted the debate, we think that Section 178 is about right and that it is part of a battery of powers that have worked well in general. How the enforcement is undertaken is more at issue and is being looked at and addressed by Ministers as I speak. That is where it is. I hope that, having said that, the noble Baroness will feel able to withdraw her amendment.
Baroness Hanham: I think that I made it clear when I moved this amendment that it was inspired in the other place by my honourable friend Philip Hammond. It is also the subject of a Private Member's Bill by my honourable friend Eric Pickles. It did not get an airing in the other place, so I said that I was quite happy to air it here.
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I want to make it clear from the outset that I understand that this is a sensitive area. Whether Gypsy families have a right to move around the country and to decide where they want to stay when they have the ability to move is one thing. I do not think that anyone is disputing that. What we are disputing is the quickest way of dealing with cases where the siting of caravans is in breach of the law or regulations that already exist. I laid out in my speech the difficulties that are encountered with the present system. I acknowledge that the Minister said that an injunction can be obtained. One of the purposes of the amendment is to enable local authorities to take action immediately upon a stop notice. The Minister has given a fairly full reply. I have given a very detailed outline of the amendment. Therefore, for the moment, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Greaves Lord Greaves moved Amendment No. 129A:
After Clause 53, insert the following new clause
"CONDUCT OF LOCAL GOVERNMENT MEMBERS INVOLVED IN DEVELOPMENT CONTROL DECISIONS

(1) The provisions of Part III of the Local Government Act 2000 (c. 22) (conduct of local government members and employees), the Local Authorities (Model Code of Conduct) (England) Order 2001 (S.I. 2001/3575) and any codes of conduct and other decisions made by local authorities or the Local Government Ombudsman, shall not prevent local government members taking part in discussion and voting on development control decisions in circumstances in which any conflict of interest only arises from one or more of the circumstances set out in subsection (2).

(2) The circumstances to which subsection (1) refers are—

(a)the simultaneous membership by one person of two or more councils when one of the councils is consulted on the decision by the council making the decision;

(b)representing a ward or division in which the planning application or other subject of the decision is located;

(c)discussing the planning application or other matter with local residents' third party groups;

(d)discussing the planning application or other matter with applicants or objectors;

(e)membership or former membership of third party organisations which are not applicants or directly involved with applicants, but which make formal comment on the matter which is the subject of the decision;

(f)membership or former membership of a national organisation whose local branch or branches make formal comment on the matter which is the subject of the decision;

(g)publication by a political party or election agent of comments in a leaflet, on a website or by any other means, on the matter that is the subject of the decision, or being the election agent who published such material;

(h) membership of a political group linked to a political party which has commented on the matter which is the subject of the decision in a manifesto or website or by any other means;

(i) any other circumstance which does not in itself result in the member having a personal and prejudicial interest within the meaning of Part 2 of The Local Authorities (Model Code of Conduct) (England) Order 2001.

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(2) Nothing in this section shall prevent a local authority from including in its code of conduct a requirement that a member must disclose any of the circumstances set out in subsection (2), or from setting out reasonable guidelines for the conduct of members in their discussion of planning applications with third parties.

(3) Nothing in this section shall absolve a member from the duty to declare a personal interest within the meaning of Part 2 of The Local Authorities (Model Code of Conduct) (England) Order 2001."

The noble Lord said: I rise to move Amendment No. 129A, which is about a subject that is a matter of great discussion among councillors involved with development control at the moment. It is generally known as "fettering discretion". This amendment does not claim to be a finely honed piece of writing that would fit neatly into the Bill. It is here to raise the issue, to set out the problem and to sponsor a debate. I shall seek leave to withdraw it at the end of the debate.
There are many councillors today who are on development control committees, whether they are small committees or committees of all the councillors in the area, who find themselves being instructed—I use the word "instructed" advisedly, although technically it is advice—that they are not allowed to take part in debate and decisions in committees under many circumstances. The matter has gathered in intensity in the past 10 years. No one had heard of the problem 10 years ago. In the past 10 years it has grown like Topsy, without any deliberate intent, and as a consequence of a number of factors. It is not a clear result as far as I can see of any particular planning statute.
The first factor is the intervention of the Local Government Ombudsman in many planning issues where it has been found that councillors ought not to have taken part because—I use the words again—they had fettered their discretion before the debate and maladministration had been found. Secondly, that has been compounded by appeal decisions where costs have been awarded against local authorities, again because it was thought that councillors had taken part in decisions when they should not have. The third factor is the whole recent development of rules governing probity within local government—the model code of conduct at national level, the codes of conduct and standards boards at local level, and so on—which have been used, not in every case, but in many cases to impose what may be seen to be unduly harsh restrictions on members taking development control from the application decisions.
I believe that, in many ways, the way in which this has developed is a good example of the law of unintended consequences. There is a major problem in many parts of the country and it needs looking at. It is all related to the doctrine that decisions on planning applications are quasi-judicial—another word that has crept in; I do not think that anyone had heard of it 10 years ago—rather than ordinary council decisions. In many cases, that is putting restrictions on locally elected representatives which is making it very difficult for them to balance the need to take planning decisions
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in a fair and open way and against their genuine and legitimate role as elected representatives of the people in their wards and throughout their local authority.
In the worst cases councillors are being told that they are acting as judges and should apply to themselves the kind of restrictions and conditions that judges would apply to themselves when they are adjudicating in court. I think that that is entirely wrong, but nevertheless it is something that crops up in many cases.
The problem is compounded by the fact that the position is very different in different local authorities. There is a huge variation from council to council as to what is allowed and what is not allowed. Some councils are still very relaxed about it. As long as people do not behave outrageously and there is still open political and democratic debate in the community, councillors are able to take part in this. Others have come to terms with what they see as very restrictive rules by working out a sensible balance and sensible working arrangements. In other councils the position is ludicrously strict.
One of those is the London Borough of Hackney. I have a copy of their rules, entitled the "Planning code for councillors". Its consequence is that the minority of councillors on the development control committee—the planning sub-committee, as they call it—have to go into purdah in order to carry out their job of determining planning applications. It is quite astonishing what they are not allowed to do. For example, they are not allowed to talk to other councillors about planning applications under any circumstances, at any time. Just imagine that you are canvassing in the local election and there is a big planning application problem in the area. You are knocking on doors and your candidate says, "Sorry; I cannot talk about this". There is a real conflict between what the Minister described earlier as the legitimate role of councillors and local politicians and the belief that they have to be stuck in an ivory tower like a judge, if that is where judges are stuck.
Those councillors are not allowed to read any post that refers to a particular planning application. I do not know how they will know not to read it before they have read it, but that is what the rules say. Where they receive such things, their post has to be handed to a council official and cannot be dealt with by a councillor. The rules continue:
"By becoming involved in a planning application"—
that means doing anything at all; talking to anyone about it—
"prior to the committee meeting other than to read the Planning Officer's report and to attend a Site Visit accompanied by the Planning Officers, the Member risks forfeiting his or her right to take part in the discussion or vote on that particular item".
Whatever the rights and wrongs of the issue, that seems draconian and well over the top. There is much more on that, but I do not have the time to go into it now.
I realised that there was a problem when I tabled the amendment. Before I tabled it I put out feelers through colleagues in the Association of Liberal Democrat Councillors and in the Local Government Association.

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In a very short time I received more than 40 examples of different kinds of problems relating to this fettering of discretion. Some are set out in the amendment. Subsection (2)(a) highlights that there is a real problem, real confusion and real anguish among people who are district councillors and are also members of parish councils, or who go as district councillors to parish councils to give help and advice as part of their normal ward work.
Again, the practice is very different in different places. In some places, having been consulted on a planning application, it is okay for people to take part in the debate and decision in the parish council if they make it clear that the district council will have to reconsider the matter and may take a different view. So that can be dealt with in two places. Elsewhere, people can take part in the parish discussion only if they are providing information and not giving views. In other places that is banned entirely; if you open you mouth on the parish, you are banned from the decision in the district. I have lots of examples of that.
As for paragraph (b), I gather that councillors on the development control committee in Birmingham were told that they could not take part in determining planning applications in their own wards because being a councillor and representing a place was thought to fetter their discretion. Surely that is nonsense.
The next few provisions talk about the role of a councillor in the community. On the one hand we have a Government who are quite rightly saying to councillors, "Get more involved in your community. Talk to people in the community. Go to the local community groups. Get involved in them. Represent them on the council". On the other hand, those same people are being told, "If you go to your local community association or residents' group and discuss a planning application, when it comes to the full council—sorry—you will have to declare an interest, leave, and take no part in it". Residents involved in the planning application cannot understand that. They say, "We elected those people to help to represent our views and yet they are being kicked out because they are trying to do exactly that". There is huge confusion and it needs clearing up.
On paragraph (d), a colleague of mine, a councillor in Hertfordshire who was chairman of a development control sub-committee, had to declare an interest and leave because there were representations from the local branch of the RSPB of which she was a member nationally. She was told that that fettered her discretion. That is the type of thing that is happening and some kind of advice needs to be available.
If you are representing an area and taking part in an election campaign when a big planning application is under consideration, how can you stop talking about that big issue when you go round knocking on doors and distributing leaflets? If you do not talk about that big issue then the other candidate, who is talking about it, will be elected. Having been elected, they will be told, "Sorry; you were elected on this issue but now
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you have to be silenced". There is a real conflict there between democratic representation and dealing with planning applications and it is not being sorted at all.
My honourable friend Matthew Green has talked in the House of Commons about the problems they had in Bridgenorth District Council where the Liberal Democrats put out a manifesto containing a very mild and fairly inoffensive comment about a planning application that was a major issue in the town. As a result of that, all the Liberal Democrats on the council, after that all-out election, were told that they could not take part in that debate because the party had mentioned the issue in its election campaign. Surely, if local democracy means anything at all, that cannot be right.
Finally, the issue of fettering discretion is giving a weapon to developers to knock out people who they think are opponents. All one has to do is to go along to a public meeting where an issue is being discussed. The particular councillor sits there saying nothing, and someone stands up to say, "You represent this ward. You sat there saying nothing. How about standing up and telling us what you think?". Even if people simply stand up and say, "I have to be careful what I say; I have to remain balanced and keep an open mind when I go to the committee, but this is how I see the matter". Even saying things like that is being used to knock people out. It is difficult for a councillor not to respond in a public meeting like that because the room is full of the people who elected him. They expect him to represent them. And yet the councillor is then told, "Sorry, you fettered your discretion. You cannot do anything about it".
My friend and colleague, Councillor Gordon Birtwistle, who is the leader of the Liberal Democrats on Burnley Borough Council, was sent a questionnaire by officers on the council asking for his views on wind farms. A few weeks or months later a planning application came in for a wind farm on the moors above the part of Burnley that he represents. He was told, "Sorry, you filled in our form and sent it back to us. You have told us what you think about wind farms. You have fettered your discretion. You cannot take part in the planning application".
I have a long list of examples with which I will take up no more of the time of the House, but having gathered all of that information I shall put it all together into what is now called a "dossier", although that may not now be an appropriate word to use. I will make that available to the Minister and I shall be asking him if he will spare me a few minutes to see me and talk about it. What can the Minister do now to make me happy about the amendment?
First, he can tell me that development control will remain, in the first instance, with local democratically elected councillors. The Bill does that and I think he will tell me that. Secondly, I hope that he will tell me that planning, including development control, is part of the local democratic process, including local political debate involving elected local representatives, who can represent their constituents; and that some sensible balance has to be reached without councillors

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being silenced in the way that is happening in many places—often being bullied by officers. Thirdly, I hope that the Minister will recognise that fettered discretion is causing real problems and needs to be looked at long and hard—and that a system, perhaps national advice, needs to be produced that results in fairness in the planning system and clarity about councillors' roles, because that is not there at the moment. People in different places are being told different things. There should be acceptance of the legitimate role of local representatives and an understanding that councillors are not judges.
Whatever the system is for dealing with planning applications, it is not like a court and there should be further rights of appeal that can guarantee applicants the ability for them to go further if clearly wrong decisions are made. The issue is a real problem. The existing system of involving local representatives in planning decisions is becoming untenable in parts of the country. I ask the Government, not necessarily through the amendment or even the Bill, to look at the matter with the LGA and come up with a proposal that makes more sense than what we have now. I beg to move.
Lord Hanningfield: I rise to support, not necessarily the exact wording of the amendment, but its thrust and purpose. All of us can quote various cases. I can, particularly with regard to my own county of Essex, where there is the enormous issue of Stansted airport. Because the airport covers several electoral divisions, it stops democratically elected people who happen to live in the area from talking about Stansted. They have no financial interest, although some may have their houses compulsorily purchased at a later stage, but at the moment they cannot talk about the issue.
Local councillors have appealed to me that it is unfair that they have been democratically elected by people in the area's villages and now cannot talk about the airport. They are even barred at county council meetings. A county council is only a consultee, it does not make the ultimate planning decision. I have brought the matter up with our monitoring officer and I have also been at a conference where I talked to a group of local authority monitoring officers. There were variations in the way that they were dealing with such issues. In the end, a council's monitoring officer is often not sure what to do, so he goes to the council, which then gives a different decision.
Even if we cannot tackle the issue now, it is time that the Government gave some thought to clarifying the position so that local people who are elected to represent their constituents can make comments about some of the planning applications. I support the thrust of the amendment.
Baroness Maddock: I rise not necessarily in support of the amendment or otherwise but to give information to the House. I was recently appointed as a member of the Committee on Standards in Public Life—formerly the Nolan committee and now the Wicks committee— replacing the noble Lord, Lord Goodhart. Standards boards were set up partly as result of trying to ensure that we had good standards in public life.
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The 10th report of the committee will report on investigations over the next few months into how issues such as standards boards are working in local government, as well as many other matters in public life. That will happen and we will take evidence. It would be helpful for the committee if planning matters, which is where we see some of the greater difficulties among others, could be clarified along with the definition of local government law and the roles of standards boards. The subject has been drawn to our attention and one of the reasons why we are revisiting such areas is to ensure that what happens is proportionate to the matters in hand.
Such matters as those my noble friend Lord Greaves has brought to our attention show that sometimes the steps we are taking are totally out of proportion to the matters and irregularities that we are trying to deal with. My comments are for information and I hope that the Government realise that it would be helpful for them to provide some guidance on planning law to the Committee on Standards in Public Life.
Lord MacGregor of Pulham Market: I rise to support the thrust of the amendment tabled by the noble Lord, Lord Greaves. I speak as a former member of the Committee on Standards in Public Life, from which I have just retired. I am grateful that the committee is taking on such issues in its 10th report, because I have felt for a long time that to some extent in some areas the issue is out of balance and defies common sense. One example is the declarations of interest that parish councillors now have to make. It often struck me when I was a Member of the other place that as MPs we all knew that planning issues could be among the most contentious and those to which one's constituents most turn.
I remember one of the largest public meetings that I ever had was on a proposal to build a wind farm close to many rural villages. I was astonished at the number of people who turned up—much more than would ever go to a political meeting—but it indicated their strength of feeling. I have always though it odd that the people who are most prevented from expressing a view on such issues are precisely the people who the electorate thought they should turn to most.
I do not suggest that every part of the amendment is correct, but it raises a real issue. In the case of the balance between a democratic member who represents a community and a member of a planning authority, the conflict of interest ought to be where that person has a financial or other interest himself. But to be unable to represent his constituents at all seems to have gone too far. I support the thrust of the amendment and I hope that the Government will look upon it sympathetically.
4 p.m.
Lord Rooker: This has been a useful debate and some good points have been raised. I could give several examples. It may be an accident of circumstance that a councillor ends up on the development control committee. Why should he have a greater right than any other councillor who may represent that particular

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ward to take the executive decision? That is the difference—councillors are taking executive decisions, unlike Members of the other place. I will give another example of that paradox, but you cannot have it both ways.
I suspect that if, for example, the current planning Minister, Keith Hill, Member of Parliament for Streatham, was taking planning decisions in London or his own constituency, there would be uproar—and quite right, too. You cannot have it both ways. The rules seem to work. Because a councillor gets on a particular committee, that should give him no greater rights than other councillors to do his bit for his own ward—and in most wards there is more than one councillor anyway. They would not both be on the development control committee, so what is the problem with one making the speech and the other making the decision?
There are real dilemmas and the noble Lord, Lord Greaves, was right to raise the issue. He singled out Birmingham, but I imagine that that rule applies everywhere. If it does not, it should, in my view, because the rule fits with public confidence in the system. I know it is difficult because I have been at public meetings when people have yelled at councillors—or, indeed, yelled at me as the MP asking why I could not tell the council what to do because I was in charge of planning. Most people believe that there is a hierarchy and they have to be wised up to the fact that there is not. You have to be level with people.
Because of the provisions of the Bill in terms of more openness and transparency, and people becoming involved earlier on, such confusion is less likely. The issue was addressed in the past and I have no doubt that it will be addressed in the future. It is a crucial one of propriety. All these rules can be traced back to particular cases and circumstances that were scandals of the day when everyone said, including Members of this House and the other place, "Something's got to be done about this!".
Much of it came down to pecuniary interests. That is where some of the major scandals have arisen. I will not list them because we can all think of them. Something had to be done to raise the level of standards and probity, both in local and central government. There is a list of rules about what Ministers can and cannot do in matters relating to their own constituency. Former members of the Cabinet will know that I am right. That way, one stands back and the people who make the decision are disinterested in the sense of electoral popularity on the one hand and financial interest on the other—but we are not discussing those issues because they would be wrong. We are looking at the other aspect of the system, but that is not to say we have it word perfect.
Applicants, developers and local residents may not have confidence in the ability of members of the local planning authorities to reach decisions objectively without bias, including, let us say, the threat of deselection or loss of their seat. That is a bias in the same way as others. We must say that it is an honest view that cannot be contradicted, but it is very difficult
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to explain to the public who are annoyed about a planning application when they have elected councillors and a Member of Parliament to represent their interests. If there is a bias in the decision, it would not be an objective decision based on all the material considerations of the issue and the whole system would be undermined. That must be the case and we know deep down that the system would be undermined. Cases would then come to public notice and this House and the other place would have to look at these issues again.
The Local Government Association has produced guidance on probity in planning in response to its 2000 codes of conduct, and any revisions and updating of the guidance will be a matter for the association. It is being treated at the highest level by local government It may be true that none of the circumstances listed in the clause proposed by the noble Lord, Lord Greaves, would automatically result in any impropriety or conflict of interest by a member in a development control case. That is conceivable. However, it would give rise to public concern that there was something improper about it or that there was some perceived interest.
That is the point. It is not a question of getting it right; it must be seen to be right. Perception is important and I plead with colleagues to take that seriously on board. When cases arise, it will be difficult to argue that there was nothing wrong. If it can be done as it is done now, at least you can take a robust case to angry members of the public showing that there is a process and it is undertaken by people whom they did not elect. I realise that the position is tougher on councillors than it is on Members of Parliament, because MPs outside the Government are not required to take executive decisions on specific issues.
The Local Authorities (Model Code of Conduct) (England) Order, which the proposed new clause seeks to amend, provides for the adoption of codes of conduct by all local authorities setting out the basic principles by which members of local councils must conduct themselves in order to provide their electors with assurances of their integrity. The code provides for the registration and declaration of interests, and specifically excludes members from attending meetings, including those of planning committees, where it may be perceived that they have a personal and prejudicial interest. "Prejudicial" is used in a legal sense and it would be biased in respect of elected representatives. The standards board for England has been set up with the task of providing councillors with advice on the code, and powers to investigate breaches which, if serious, can lead to disqualification. The Government take the view that it is important that the electorate should be confident that their elected members are acting with propriety in carrying out their public duties. The code provides that assurance, which we do not believe should be diluted by providing for exceptions.
I shall return to the matter—which is not to say that we will take it away and consider it, but I cannot control what appears on the Marshalled List. Perhaps a more narrow aspect of the matter can be considered

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on Report. I would warn against it because the case made by the noble Lord, Lord Greaves, is very seductive. I can agree with many of the points—they are very seductive—but it would be a very dangerous road to go down.
Lord Hanningfield: The point I made about Stansted is that we are only a consultee; we do not make any decisions on it. We do not have a development control committee that will take the decisions on Essex county council, yet members are barred from talking about it just because they happen to live in the area. That is most unfair on them, because they cannot represent their electorate.
Lord Rooker: That might be the case, but if the same situation applied at a different level—if, say, the matter was being taken forward by private legislation, Members of Parliament for the area in the other place would be denied membership of the committee that dealt with the Bill. In fact, Members representing that region would be denied membership of the private Bill committee. The procedure is incredibly restrictive, in order to maintain the perception that decisions are arrived at objectively. That is how the system works. If we can find odd examples in which we could change and the system would remain as safe as it is, that would be fine.
I ask the Committee to think about the matter. Every one of the rules was, by and large, introduced after a scandal—the Committee knows what I mean: after something occurred that it was thought should be put right and prevented to reinforce public confidence and develop confidence that decisions were being made on an objective basis, not a prejudicial one. "Prejudicial" includes being the elected representative for the area. In certain circumstances, that applies equally to Members of Parliament and councillors.
Lord Bradshaw: Does the noble Lord accept that there is a movement among local councils to push the restrictions to which my noble friend referred further and further? This week, I was told that a colleague of mine, who is leader of a neighbouring district council, has now had to submit to the appropriate officer of that council a full list of all the charities to which he contributes throughout the year. Being a fairly generous person, that will rule out whole gamuts of areas—medicine, the protection of birds and the National Trust. Before long, we will turn councillors into eunuchs; or, worse still, people who want to represent their communities will be unable to do so.
Lord Rooker: Well, if that happened to me, I would tell them to mind their own business.
Lord Monson: Does not the Minister agree that there is a certain proportion of the electorate—I would guess between 5 and 10 per cent—that is absolutely convinced that all politicians, be they in national or local government, are self-serving and corrupt and that nothing that the Government do by way of
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legislation will change their minds? It is not worth dismissing all the problems about which the noble Lord, Lord Greaves, told us, merely to try to satisfy that 5 or 10 percent when nothing that can be done will satisfy or convince them that politicians are 99 per cent honest and totally devoid of corruption.
Lord Rooker: I just think that that is a dangerous road down which to go. It would just make matters worse. As I said, the rules are there because of past practices; they are there to ensure that those things do not happen again.
Lord Greaves: I thank all the Members of the Committee who have taken part in the debate; listening to them has convinced me that it is an important issue. Frankly, I am disappointed by what the Minister said. I must not have communicated adequately with him, which is no doubt my fault; I shall continue to try to do so in future. He said that what I propose is very seductive and dangerous. Well, for many years in the 1980s and 1990s, I was chairman of various development control committees. None of those restrictions existed, but I do not think that the decisions that we took then were seductive, dangerous, wrong or anything of the sort. They were taken sensibly, within the rules and involving the public and their elected representatives. That is what is now being made extremely difficult.
The Minister said that being made a member of the development control committee is an accident and that only a few councillors are involved. Actually, quite a few councils now have an area committee system, under which planning applications go to the area committee. All the members of the council are therefore on development control committees. That certainly applies in Pendle, where I live. I was involved in introducing that and chaired the area committee in Colne. All the councillors are involved in taking planning decisions.
I must say that that concentrates people's minds, because it stops the basic dishonesty of councillors who are not on the development committee pretending that they are against an application when they know that their friends on the committee will pass it. They must face up to the issue. That is a much better system. Everyone is on a committee, so there is no question of some councillors having greater rights than others; the question is what is the best way to involve the public and their representatives.
I am sorry that I raised the issue of Birmingham; I might have known that the Minister would think it a personal attack on him, which it was not intended to be. I do not know of any other county in the country that imposes that rule—there may be one or two, but it is extremely unusual. Everyone else would think it ludicrous.
The Minister kept saying that the rules exist because of what happened in the past—that these are the rules. In many cases the rules do not work, and the system is in considerable crisis, but there are no rules that apply across the country.

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I am not talking about the need for councillors to declare personal and prejudicial interests on planning applications, just as they do on everything else that they look at. I am talking about all these extra rules and impositions that are being invented locally and imposed by council officials. On one council they will be imposed very strictly, another council will have a more balanced view, and another will have hardly any rules at all. Those are the facts on the ground. That is one reason why it is so difficult.
I had to laugh at one thing that was raised by my noble friend Lord Bradshaw and that is typical of what is said. It was the ludicrous suggestion that people had to make a list of all the charities that they donate to. That is exactly the sort of the thing that is going on. The Minister said,
"I would tell them to mind their own business".
The problem is that most of the councillors who are being put in this position are not as thick-skinned as I would be, or as the Minister would be, to have the confidence to say that. Most of them believe that the rules are the same everywhere. That is what they are being told—by their council officers, the legal officer, the monitoring officer, the planning officer or whoever. They believe that they must abide by those rules.
The Minister, on reflection, might consider that planning is a system—as the noble Lord, Lord Bridges, said earlier today—that councillors must operate within. However, in a wider sense, and with a small "p", planning is the most political issue that arises in an area. To exclude elected representatives from the debate, the meetings, the discussions, the lobbying, the information-gathering, is frankly ludicrous. The logical result of all this will be that democratic local representatives—councillors—will no longer be responsible for determining planning applications. The logic of the movement that is happening is to take it away from councillors and give it to some sort of "objective" panels or people, or judges. That would be unfortunate, but that is the way things are going.
I promise the Minister that I will be asking him to talk it over with me when I have a lot more facts written down on paper. Perhaps we can look at this a bit more objectively than we can in the slight argy-bargy across the Chamber. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
4.15 p.m.
Lord Bradshaw Lord Bradshaw moved Amendment No. 129B:
After Clause 53, insert the following new clause—
"RETROSPECTIVE PLANNING CONSENT
Where an application is made for planning consent after the work has been commenced (retrospectively) the planning authority involved may charge a fee for granting consent of up to three times the level for an application which has been made with proper notice."
The noble Lord said: I hope that this will be a fairly brief amendment. Its purpose is to establish what progress is being made on the subject of enforcement, which I believe is the subject of consultation that is in hand. The amendment deals with the question of
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retrospective planning consent. There are people who inadvertently fail to make a planning application. I am not trying to make a set at them. It is often a small breach, possibly born of ignorance about what they should do.
I was concerned in the amendment to draw attention to those people who consistently breach planning consents, who take a chance and go on building housing estates and odd extensions here and there, extending their factories and so on. Subsequently, when they are told to do so, they apply for planning consent—often after the local authority has been involved in considerable expense in various site visits, arguments, correspondence and all sorts of things in the hope of getting the breach put right, or at least having it brought within the planning system.
This amendment seeks to allow a local authority— not compel it—to make a charge above the normal planning charge when a consent is sought retrospectively. Of course, we are interested in what the Government think. A breach of planning ought to be an offence punishable not simply by having to pay some money, but by a proper fine, or in the most extreme cases, by a sentence of imprisonment. The penalties should be significantly increased for breaches of planning law, because people are making financial gains by ignoring planning law. We should seek to negative any gains that they make, and we should seek to remove the right of appeal to the Secretary of State against enforcement action. As the Minister knows, people use the mechanism of appeal to the Secretary of State as a means of stringing out the process while they make more money.
In moving the amendment, I seek an indication from the Minister on the Government's thinking on enforcement, and whether we might look forward to government amendments on Report. I beg to move.
Lord Monson: I confess that I spotted this amendment onlyjust over half an hour ago, but it seems wholly admirable. We all know of developers who are cynical chancers, and who reckon that in practice, even if not in theory, they will more often than not get away with an unauthorised development retrospectively. When they get away with it retrospectively, surely it is right that they should pay over the odds for retrospective planning permission.
If retrospection involves an ordinary householder who, for example, installs a dormer window in his roof without realising that planning permission is needed. perhaps a much lesser multiple would suffice, as the noble Lord, Lord Bradshaw, willingly conceded. The amendment permits that, as it uses the word "may" rather than "must", and allows flexibility in the multiple to be applied. It is the view of many of us that dodgy developers should be hit hard; indeed, a fee five times larger than normal might not be excessive.
Lord Rooker: I think that I have a reasonable answer to the point raised by the noble Lord, Lord Bradshaw, but not so much to the enforcement aspect that he raised. There is clearly a problem with developments carried out without permission. If that happens, the

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local authority has three choices. It can invite an application for retrospective permission; issue an enforcement notice; or decide to take no action, which in itself can cause problems later. If the development is likely to be acceptable subject to conditions, retrospective permission is the sensible route. If it is likely to be acceptable without conditions, it might be sensible not to take the matter further. But if it is unacceptable, enforcement is the right route to follow.
I have criticised enforcement, when one of my constituents had to take down the front of his house. He had installed panelling and a bay window that were way out of line with regulations. It was terrible but it had to be done. The authority went to town on that case, but there were good reasons for doing so, although my constituent did not think so. I had to persuade him to get a contractor to carry out the work. So enforcement does happen.
On the other hand, getting retrospective planning permission can be useful. The research report The Planning Service: Costs and Fees, which was mentioned earlier when we discussed fees, notes that,
"there have been suggestions from consultees that the normal fee should be increased [for retrospective applications)".
The report adds:
"this would be a largely punitive charge and could be difficult to justify in terms of costs of processing which may be similar to other applications".
The power in Clause 51 would enable that to happen, so in that sense the amendment is unnecessary. We have not yet decided our approach on fees, as I said to the noble Lord, Lord Lucas, and we will publish our own consultation paper later in the year.
However, it would not make sense to discourage people from making retrospective applications. If a development is acceptable in principle, planning permissioneven permission obtained retrospectively can impose controls through conditions. As the noble Lord, Lord Monson, said, this relates more to domestic developments than commercial ones. At least it would give legal status to the development so that for any subsequent owner or occupier the full security of the property is lawful.
Recently, I read correspondence to the department from someone who had purchased a property in the north of England under the category of "dwelling" and had extensions added without obtaining the necessary planning permission. Now on the one hand, the home condition reportthe old seller's packwill solve this problem because people would buy a property only in the full knowledge that all the necessary permissions were there. That is a good security for them. But the argument was about who should apply for the retrospective planning application, should it be the former or the current owner? In this case the estate agents had sold the property. The solicitors had done the searches and all the legal bits and the ownership was transferred. But there was no planning permission for this room.
Getting retrospective planning permission in a non-punitive way at least gives security for the new owner. The home information report that will come in
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through the housing legislation currently going through the other place should take care of that in future. It is a not unimportant point. We will need a good relationship between authorities and their communities. The punitive charge sounds okay but it would put off the making of retrospective applications so that would be a problem. The alternative is for the authority to serve an enforcement notice. When the developer appeals to the Secretary of State, they can argue for the grant of permission subject to conditions. However, that is incredibly wasteful of resources all the way up. It is an important point because there are people who go round deliberately flouting the law to cut corners and we do have to deal with them.
I hope that the home information report will deal with dwellings. We do not believe that that is the way to proceed at present but we will be coming forward with a consultation paper on fees and charges. I cannot promise whether or not we will levy higher charges. The policy intent would be not to put people off but to encourage them to get retrospective permission.
Lord Monson: The Minister argues that the higher charge for retrospective permission would be punitive. But would it not be vastly less punitive by a factor of about 10 times than ordering the individual to demolish the garage or the extension?
Lord Rooker: That would not be the alternative. The whole point is that if there is an enforcement notice and the conditions cannot be applied and whatever has been built has to be taken down, no amount of planning permission or punitive charges will alter that fact. If it has to come down, it has to come down. So I do not see this as an alternative. The issue also is how the matter becomes known to the local authority in the first place. People might say, "Oh, I didn't realise. I've chatted to the neighbours. I've got to have planning permission for this".
That is not generally the way it comes about. It comes through a complaint to the authorityhas this builder got planning permission for their work? In most cases they will have planning permission but in some they will not, so people ask those questions. Or it could come about with a change of ownership. If legal searches have not been done properly as in the case I referred to, that becomes an issue. It may come to light on the sale of the property when searches reveal something done without planning permission. It depends on how the knowledge comes to the planning authorities. If they decide to take action with conditions that is fine if those conditions can be met. But if an enforcement action is required to modify or remove whatever has been built, that is a serious issue and no amount of extra conditions would satisfy that.
Lord Bradshaw: I thank the Minister for that reply as far as it goes. I said at the beginning that I am not out to get the person who inadvertently fails to get planning permission and who subsequently gets it with conditions and agrees to abide by them. I am out to get the person who chances his arm repeatedly. In such a case, the Minister will acknowledge that the local

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authority does have considerable costs which can involve many site visits, meetings and arguments and, as the noble Lord, Lord Lucas, remarked, the planning system is hopelessly under-funded. While the Minister may describe my suggestion as an argument for punitive charges, I certainly believe those charges should meet the costs which the local authority legitimately incurs in dealing with retrospective applications. But I hope that when the scale of charges is revised that will be taken into account. As a result of the consultation on enforcement, I hope that we will be able to look forward to a better standard of enforcement in future. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Schedule 2 agreed to.
4.30 p.m.
Clause 54 [Correction of errors in decisions]:
On Question, Whether Clause 54 shall stand part of the Bill?
Baroness Hanham: This small provision should not take long. Why do we need four clauses to correct errors? Currently, there is a fairly well tried and tested procedure that enables anyone to make a submission to a judge. The error is changed, date stamped and all finished and done with.
Here we seem to be expecting the inspectors to make mistakes constantly. There would be a whole process of four pages to decide how the matter should be dealt with. Why do we not leave things well alone when they can be and not mess around with them?
Lord Rooker: That is a good question, but perhaps it should be directed to parliamentary counsel and not to the Minister. Clause 54 provides for the introduction of a "slip rule" for certain decisions made by the Secretary of State or an inspector under various planning rules. The Secretary of State or planning inspectors will have power, subject to various conditions, to correct specified types of errors contained in decision letters.
I assure the noble Baroness that a small error in a decision letter from the Secretary of State, which is abused and misused by the legal profession and those who agreed at the decision, even when the actual substance of the error has nothing to do with the main decision, causes us considerable difficulties and problems. That is a serious issue, which therefore probably justifies the four clauses.
Clause 54 sets out how the "slip rule" may be applied for this purpose. It is a simple reform that will allow for better administration and will avoid having to involve the courts on trifling matters. We are dealing only with trifling matters. This measure could be used to correct obvious clerical errors, typographical errors, omissions or accidental slips, which are obvious errors to the parties concerned. The system is abused because of a clerical error in a decision letter. The errors would not be material errors going to the substance of the decision, and would not enable the Secretary of State or an inspector to alter or vary a decision.
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But if those errors get in and the lawyers get at them, before we know it, we have to go to court to get it changed. In terms of time and resources, the amount taken up is astonishing. If desired, I can also detail Clauses 55, 56 and 57. However, there are good reasons why our excellent parliamentary counsel has drafted the clauses for the benefit of the House and the better conduct of public business. I hope that that satisfies the noble Baroness.
Baroness Hanham: I withdraw my objection.
Clause 54 agreed to.
The Deputy Chairman of Committees (Lord Ampthill):
Does the noble Baroness wish to speak to the subsequent clauses grouped with Clause 54?
Baroness Hanham: No.
Clauses 55 to 57 agreed to.
Clause 58 [Wales Spatial Plan]:
[Amendment No. 130 not moved.]
Clause 58 agreed to.
Clause 59 agreed to.
Lord Hanningfield Lord Hanningfield moved Amendment No. 130A:
After Clause 59, insert the following new clause—
"LOCAL DEVELOPMENT PLANS

(1) Part 2 of this Act shall apply to Wales with the modifications provided by this section.

(2) Sections 12(6); 13; 15; 18(2)(c) and (e); 23(3)(a), (4), (7) to (9); 27(4) and (5); 28 to 30; and 36(3) to (6) shall not apply.

(3) For "RSS" substitute "Wales Spatial Plan" wherever it appears.

(4) For "Secretary of State" substitute "the Assembly".

(5)For "the RPB" substitute "the Assembly".

(6)For section 18(2)(b) substitute "Wales Spatial Plan".

(7)For section 23(a) and (b) substitute "the Wales Spatial Plan".

(8)For section 23(2) substitute— "(2) A local planning authority—

(a)must request the opinion in writing of the Assembly as to the general conformity of a development plan document with the Wales Spatial Strategy;

(b)may request the opinion in writing of the Assembly as to the general conformity of any other local development document with the Wales Spatial Strategy."

(9) For section 23(5) substitute—

"(5) Whether or not the local planning authority make a request mentioned in subsection (2), the Assembly may give an opinion as to the general conformity of a local development document with the Wales Spatial Strategy.""

The noble Lord said: In introducing this amendment, perhaps I may say immediately that we are not trying to sabotage the planning system in Wales, although it may seem as if we are. Amendment No. 130A gives the Government another opportunity to justify their proposals for local development, as set out in Part 2 of the Bill. Specifically, we hope that the Minister will explain why, if something is good enough for England, it is not good enough for Wales. We do not begrudge

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Wales a decent planning system, but we are extremely unhappy that for some reason England has ended up with an unnecessarily complex set of arrangements.
As I have said throughout the Bill's passage, we support the Government's aims to streamline the planning system without compromising its effectiveness. However, there is no way that their proposals for local development schemes in England will achieve that aim. They are far too complex. District, borough and unitary councils will not know what they have done to deserve having such an unremitting, bureaucratic approach to local development thrust upon them.
The Bill is confused in relation to local development. An advantage of the present system is that each local planning authority has a single development plan. If we do not bring the logic of the Welsh system to the proposals for England, there will be widespread confusion about the weight of importance to be attached to all the various local development documents, not all of which will have the status of a development plan document.
In the other place, the Government agreed that in relation to local development documents it was essential for local authorities to achieve some common standards of form, content, timing and status. I hope that the Minister can explain how the Government reconcile this wish for a common standard within England with their proposals to have two standards within the United Kingdom.
Forgive me for reiterating this, but it is crucial. The main objective of this legislation is to speed up the planning process. My conclusion is that the proposals for local development in England will do nothing to simplify, speed up or make more transparent the plan-making regime, compared with the unitary development and local plans we have now.
The system proposed for Wales, by comparison, is based on a single development plan. It is simpler, and less likely to lead to confusion and delay through the creation of a new system. Businesses and the public will not be bewildered by the differences between statutory and non-statutory documents, nor by those between live and out-of-date planning documents.
The proposals for local development in England have been widely criticised. The simpler system of a Wales-style local development plan for each authority was supported by around 60 per cent of local authorities in a sample survey carried out by the Town and Country Planning Association. It is also supported by many other interested organisations, because the system in Wales has a quality that is becoming increasingly precious in proposed legislation—common sense.
I know that I have said it before, but I must ask again: if the Government support a single system for Wales, why not for England? I do not accept the response, "it is because of devolution". Devolution should not mean that the Government decide to do things better in Wales than in England. I am genuinely happy for Wales. They have less central diktat to respond to than in England.
Neither do I accept that it is because Wales has only two unitary authorities. I have heard that that somehow justifies English local authorities having to navigate a hugely complicated system, with the Secretary of State perennially lurking over their shoulders. That would be an excuse rather than a legitimate reason. We have unitary authorities in England. Perhaps the Minister would comment on that.
So why is there broad support in Wales for the proposals dealing with Welsh plans? Why do the Welsh feel that they are making the necessary changes without going to such radical lengths as we are in England? It is because a single development plan at the local level as proposed for Wales would deliver greater simplicity and efficiency for the benefit of the public and developers alike in England.
If nothing else were to be achieved in this debate, could the Minister answer one simple question? Does he think that Wales will have a simpler, and presumably quicker, planning system than England? I beg to move.
Lord Crickhowell: To return from Mexico, where I have been for some time, to hear that things are being done so much better in Wales than in England is a considerable pleasure for a Welshman and someone who has a home in Wales. I hope that those comments prove to be correct.
I want to make one observation based on experience which applies, I think, both to England and Wales. Simplicity is certainly a virtue, but one other requirement is particularly valuable and is set out in Clause 58 on the Wales spatial plan, agreed to earlier. Subsection (3) states that the Assembly must be prepared to,

(a) keep under review the Plan;

(b) consider from time to time whether it should be revised".

I want to emphasise how important the review process is in every country.
When I became Secretary of State for Wales in 1979, I arrived just at the point when the development plans for Wales had reached the end of a long and painful process of approval. It had been going on for months, if not years, involving public inquiries, inspectors' reports, and so forth. Most were signed off by my predecessor, but I may have had to put my signature to one or two.
Just at that moment, two things happened that no one—none of those engaged in the consultation, none of the planning inspectors and no one who had given evidence—had anticipated. First, no one had foreseen that the coal industry, which had been in gradual decline for half a century, might disappear over a matter of years. The possibility had not even been considered.
Secondly, no one had envisaged that anyone would ever again require a very large industrial site. No provision was made for a site of 20,000 acres in any of those plans. What happened? The Nissan company

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wanted to set up a large motor car manufacturing plant in the United Kingdom and, naturally, Wales wanted to compete. A desperate revision of the development plans was required to make it possible for Welsh local authorities in both north and south Wales to present submissions to Nissan.
I make those points only to emphasise that, while simplicity is a virtue—and I hope that we achieve it for England as well as, apparently, it has been achieved in Wales, although the proof of the pudding will be in the eating—let us also ensure that all local authorities, in preparing plans, understand that in this fast-changing modern world it is very difficult to forecast the future. It is therefore imperative that all those involved at every level in the planning process keep their plans under continual review and, if necessary, adapt them to change.
Baroness Hamwee: I have much sympathy with what has been said by the noble Lord, Lord Hanningfield. However, perhaps I misunderstood the amendment, but it seems to apply the English process to Wales rather than vice versa.
I have tabled five minor amendments in this group. Amendment No. 131A seeks to leave out Clause 62(2)(b) in order to remove the possibility that local planning authorities in Wales could simply delay submission of the local development plan to the Assembly by arguing that, in their opinion, it is never "ready", to use the term in the Bill.
Having made a sideswipe at the amendment moved by the noble Lord, Lord Hanningfield, for which I apologise, I think that he would be justified at making one at me. I am not convinced that this amendment succeeds. It deletes a negative without inserting a positive. However, this was not a point for discussion when we dealt with the English part of the Bill. I have learnt over the years that, sometimes, when one is minded not to move an amendment but one does so, the reply is often worth hearing, thus adding to the sum of human knowledge. You never know what might come out.
Amendment No. 131B returns to the term "sound", by seeking to add to Clause 62(5)(b) the words, "in all material respects". We spent a little time discussing this when considering the English part. The Minister argued quite robustly that no qualification was required for the term, but did undertake to check its previous uses. We may hear today that he has been able to do that.
Amendment No. 131C would add a new subsection (6) to Clause 62 to widen the range of people and bodies entitled to appear at the examination into the local development plan. As drafted, only objectors have a right to appear rather than anyone who has not previously objected. Can the Minister confirm that the provision does not exclude people who have not previously made an objection? I hope that is so. Will the Minister confirm that the Assembly has the power so to prescribe and that the inspector has the power to decide to hear the objectors?
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Amendment No. 13ID substitutes a new subsection (4) to enable a local development plan, agreed by the local planning authority but subject to a direction by the Assembly, to be treated as a material consideration for development control purposes pending the Assembly's final decision. We debated this matter in the English context and the Government rejected an equivalent proposal, saying that it would be wrong to consider an application with policies which the Secretary of State later rejects.
I understand that draft local development documents constitute material consideration for development control purposes. The weight attached to them increases as they come closer to adoption. Can the Minister say whether a plan ceases to be a material consideration once it is called in—or it is not a material consideration having been called in?
Finally, Amendment No. 131E would impose a duty on local planning authorities to carry out appropriate consultations at the time of a local development plan review, to which reference was just made. The Minister may say this is unnecessary, but so much is listed for prescription by the Secretary of State or the National Assembly for Wales, the more one focuses on items which are not listed to be prescribed and one wonders why they are not there.
4.45 p.m.
Lord Bassam of Brighton: I ought to congratulate the noble Lord, Lord Hanningfield, on putting up what is a wrecking amendment to provoke the debate, although he did say he was not trying to wreck the Bill.
Part 6 shares the objective of the Bill as a whole, which is delivering simpler, clearer and more transparent local planning that is faster, more flexible and with which the community can become more easily involved. The core of the argument is that the particular circumstances of Wales mean that this common objective is best achieved in relation to Wales in a way which, because of those different circumstances, differs from that which is proposed for England. It comes down to that.
Of great importance in understanding and explaining the difference of approach is the impact of devolution, whether the noble Lord likes that or not. Part 6 is a good example of devolution in action. Under the Government of Wales Act 1998 and the National Assembly for Wales (Transfer of Functions) Order 1999, the powers of the Secretary of State on town and country planning matters in Wales were transferred to the Assembly, as the noble Lord knows. The Assembly is now entrusted with overseeing the operation of the planning system.
In accordance with the settlement, the provisions of Part 6 have been developed through close co-operation between the United Kingdom Government and the Assembly with the goal of achieving planning reform in a way that reflects the Assembly's aspirations as to how the planning system should operate in Wales. I am sure the noble Lord knows that as Part 6 stands, it enjoys enthusiastic, all-party support in Wales. That includes the support of Assembly representatives of a party that the amendment's proposers represent here.

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Part 6 has been unanimously endorsed more than once by the Assembly's all-party Environment, Planning and Countryside Committee, as recently as 14 January this year.
Furthermore, the Assembly's public consultation on distinct proposals for development plans in Wales, outlined in Planning; Delivering for Wales 2002, revealed widespread public support in Wales for changes to the development plan procedures to improve the speed and quality of plan preparation which, at the same time, would recognise the distinctive institutional framework, geography and culture of Wales.
The differences between the development plan systems proposed for England and Wales reflect real and existing differences from England in the structures of local government and in the history of legislation on development plans. Wales has a uniform single-tier system of local planning authorities instead of the mixture of single-tier and two-tier arrangements which at present apply in England. As a consequence, Wales therefore also has a uniform system of unitary development plans.
This present system of single-tier local planning authorities and unitary development plans was put in place, as the noble Lord knows, only relatively recently. It was established under the Local Government (Wales) Act 1994. The reform, which builds very much on the present system, established less than 10 years ago, suits Wales better at this stage. The Welsh reforms are tailored to the particular challenges of plan making in Wales. They are different from those in England and, in our view, require different solutions.
As in England, we need development plans that are relevant and up to date and, as in England, we believe that the way to do this is to ensure that plans are prepared and adopted more quickly. It would be wrong, however, to ignore the fact that in Wales we are starting with a different local government structure and a system of development plans that is different from that which apply in England.
It is widely acknowledged that there has been a great deal of progress in Wales in implementing the reforms required by the 1994 legislation, and all local planning authorities have either adopted or are making good progress towards adopting their unitary development plan. But there is also no doubt that the development plans produced by local planning authorities in Wales need to be more focused and to be prepared more quickly. Moving to the system of local development plans proposed in Part 6 will achieve this for Wales.
The proposed new clause is therefore neither appropriate nor necessary. As the noble Lord knows, it would impose on the planning system for Wales provisions designed for the quite different position in England. The Bill provides for two different systems, each fit for purpose and right for their respective jurisdictions.
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The noble Lord's major charge was that the English system was too complicated. That is not the case. It gives England the right system for its pattern of communities, its system of local government and the way in which local government knits together. It will be quite clear what is in each local authority's local development framework and what its status is, and the regulations and guidance under Part 2 will achieve exactly that.
We have had a great deal of feedback on the system for England. By and large, English local planning authorities have welcomed the new system. The new local plan system has been widely supported and in seminars and regional presentations local planning authorities have been able to set out their ideas and their visions of how the system will work. There has been a welcome for the introduction of a spatial approach; there has been support for front loading in plan preparation; and support for the pattern and process of community involvement that we have discussed. Some have described it as visionary; others have embraced it enthusiastically.
The SCI builds on the good practice that is already there in local planning authorities. I am sure the noble Lord knows more about that than I do. Statements of community involvement are part of the currency of local government. They have developed over the past few years and the noble Lord has played a leading role in that development.
We are happy with the way in which we are making progress. We will just have to accept that, as far as planning is concerned, each part of the United Kingdom operates in a different way. We are not convinced that you can easily transpose one system exactly into another given the different structures of local government.
Let me pick up on the point made by the noble Lord, Lord Crickhowell, about the importance of review. It is a very good point. Certainly my experience in local government has taught me that plans need to be constantly kept up to date and almost in a perpetual state of review—not least because of changes which can happen in the national economy and the way that can have a micro-effect in a locality. You have to be realistic and deal with what is in front of you.
I do not need to say too much on Amendment No. 131. The noble Baroness, Lady Hamwee, was not terribly convinced by her own amendment. We think that seeking to delete the restriction in subsection (2)(b)—that a planning authority may not submit a local development plan in the way in which she suggested—is unwise. The requirement is an important one. It ensures that the local planning authority, before submitting a plan for independent examination, has to consider not only whether all procedural requirements have been observed, but also whether the plan is in substance ready for examination.
On Amendment No. 13IB, the noble Baroness asked whether we had checked on the use of the phrase, "sound in all material respects". I am unable to respond to the noble Baroness on that. However, I undertake to correspond on that and similar legal points.

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I shall go through Amendment No. 131C in some detail. The amendment seeks to enable the classes of persons who can demand a public inquiry or informal hearing and can insist on appearing before the inspector to be extended. The clause as drafted limits the persons who have those rights to those who have made a representation to change the local development plan—in other words, to objectors; to say "the usual suspects" is unfair and pejorative—to some aspect of the plan as prepared. There is no reason why the local planning authority or a person who does not want the plan to be changed should have the right to demand that there should be an inquiry or hearing. We think that that right would be pointless.
If, because there are objections, an inquiry or hearing has to be held, the inspector who holds the hearing will, in addition to hearing from those who have a right to appear, have a discretion to permit others to take part. That may satisfy the noble Baroness's point.
Amendment No. 131D seeks to give the provisions of a development plan which has been prepared by a local planning authority but called in for approval by the Assembly, the status of a material consideration in relation to development control decisions, in advance of the Assembly's decision whether to approve the plan. I believe that the issue was prompted by a question as to whether a plan is a material consideration when it has been called in. I think that the answer is no. I hope that that satisfies the noble Baroness.
We think that Amendment No. 131E is unnecessary because it adds nothing to provisions which are already in the Bill. Clause 75(2)(e) empowers the Assembly to make regulations which make provision as to,
"the nature and extent of consultation with and participation by the public in anything done under [Part 6]".
Where the Assembly makes such regulations in relation to reviews of local development plans, local planning authorities will be bound by them. The words which the amendment would add to Clause 67 would have no additional practical effect. That makes the amendment unnecessary.
I have spent some time on the points raised. I hope that it has been helpful.
Lord Crickhowell: Before the Minister sits down, perhaps I may ask one question while we are considering the Welsh clauses and local planning authority decisions. I cannot see from the proceedings that my question was answered at an earlier stage when the subject of major infrastructure projects was discussed. New powers were taken for the Secretary of State to be able to call in and appoint inspectors, and so on, on major infrastructure projects. That does not apply to Wales.
I accept that the situation is different in England and Wales and understand exactly what the noble Lord said earlier. However, perhaps at some stage, if not now, he could explain to me what equivalent power, if any, exists for the Assembly in Wales, or why no
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provision has been made for major infrastructure projects to be covered by the Assembly in the same way as by the Secretary of State. I should then be happier that the Bill adequately gives the Assembly what it wants. It probably does but I do not see that that has been covered.
5 p.m.
Lord Bassam of Brighton: My noble friend Lord Rooker says that the issue was not seen as a particular problem in Wales and that it arose partly in relation to issues emerging from consideration of Terminal 5. I do not want to give more of an explanation than that from the Dispatch Box this afternoon; I shall take the point away for further consideration. In fact, it would probably be better if I wrote to the noble Lord on the matter.
Lord Hanningfield: I thank the Minister for his response. Obviously, we tabled the amendment not wishing any change in Wales but wishing to find out from the Minister why the Government feel that the Welsh should have a simpler and more understand able system than the one we are getting in England.
The Minister said that people in England generally accepted and welcomed the proposals, but I do not believe that many of the average people participating in the day-to-day planning decisions in England are really aware of what is to come. Okay, some planning officers may know of the proposals, but I do not believe that councillors and others are aware as yet of exactly what is happening in England. When we come to the later stages of the Bill, we shall probably want to rewrite the amendment in a different way to see whether we can introduce some of the simplicity that they are getting in Wales into the English system. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 60 [Local development plan]:
[Amendment No. 131 not moved.]
Clause 60 agreed to.
Clause 61 agreed to.
Clause 62 [Independent examination]:
[Amendments Nos. 131A to 131C not moved.]
Clause 62 agreed to.
Clause 63 [Intervention by Assembly]:
[Amendment No. 131D not moved.]
Clause 63 agreed to.
Clauses 64 to 66 agreed to.
Clause 67 [Review of local development plan]:
[Amendment No. 131E not moved.]
Clause 67 agreed to.
Clauses 68 to 75 agreed to.
Clause 76 [Interpretations]:
[Amendment No. 13 IE A not moved.]
Clause 76 agreed to.
Clause 77 agreed to.
Schedule 3 [Crown application]:
Lord Bassam of Brighton Lord Bassam of Brighton moved Amendment No. 131EB:
Page 110, line 12, leave out from "After" to "Applications" in line 14 and insert "section 31 of the hazardous substances Act (exercise of powers in relation to Crown land) there is inserted the following section—
"31 A"
The noble Lord said: This is a large group of government amendments, most of which have a technical application. It also contains an opposition amendment. I shall move our amendment and enable the noble Baroness to speak to her amendment. I shall then respond to her.
These 13 government amendments seek to improve the Crown application and the associated provisions by clarifying some points, completing others and correcting some errors. My understanding is that the Opposition amendment does not do much of that, but I shall come to that later. I shall move my amendments in this simple way, unless noble Lords have any particular queries or questions on them. I shall move the government amendments and, having given way so that the noble Baroness, Lady Hanham, can speak to Amendment No. 131EE, I shall respond. I beg to move.
Baroness Hanham: Amendment No. 131EE would insert a new paragraph in Clause 89, which is entitled,
"Special provision for certain circumstances where disclosure of information as to national security may occur: Scotland".
Subsection (5) states:
"The Lord Advocate may appoint a person to represent the interests of any person who",
is forbidden for security reasons from attending a hearing or giving evidence. The Bill as it stands does not provide any detail on the nature and qualifications of the individual and the relationship to the person he or she represents. This amendment would require the person to be an advocate or solicitor of not less than five years' standing and to act in the best interests of the individual he or she represents. It would also be important that if the Lord Advocate appoints someone, he should be responsible for the remuneration of the person appointed and the amendment makes provision for this.
Lord Bassam of Brighton: It is my understanding that this amendment has been inspired by the Law Society of Scotland—I did not think that the noble Baroness would be too shocked if I revealed that important ingredient.
The amendment has three elements. The first is that special advocates should be legally qualified. Noble Lords who have been following the progress of the Crown application provisions in another place will know that the original clauses on national security required special advocates to be legally qualified. However, the Opposition spokesman, Mr Geoffrey Clifton-Brown MP, argued that this was too restrictive as it would prevent planning experts, who might be better qualified in certain cases, being appointed. He cited representations from the Law Society to support
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this view. Mr Matthew Green for the Liberal Democrats agreed with him. The Government also agreed and we brought forward an amendment at Report in the other place, which was well received by Opposition parties. Since that moment, there appears to have been a breakdown of communications between the Law Society in Scotland and in England and between the Conservatives in this House and in another place.
The second element is that the special advocate should act in the best interests of his clients. Section 265A of the 1997 Act gives the Scottish Ministers power to make provision by subordinate legislation as to the functions of a person appointed as a special advocate. We do not therefore consider it necessary to make provision about that on the face of the Bill. Further, the detailed relationship between a special advocate and the person on whose behalf that advocate has been appointed may vary from case to case depending on such things as the purpose of the appointment and the professional qualifications, whether legal, planning or otherwise, of the special advocate in question. Therefore, in our view, it is desirable to allow some flexibility in dealing with such matters. We believe that our proposed approach provides that. Scottish Ministers have undertaken to consult interested parties before making the relevant subordinate legislation, so this legislation can be rehearsed again in its appropriate jurisdiction.
The third element of the amendments is that the Lord Advocate should pay the fees and expenses of special advocates. That raises an important point. The Government's policy is that the Crown body which triggers the need for a Section 265A direction in Scotland should pay for the special advocate. We think that it is right that the developing department should pay. In any case, it would be difficult for the Lord Advocate to set a reliable budget as he would have little idea of how many cases might arise in any year. It is much more sensible for the developing department to pay as it will be able to budget for the special advocate in its scheme costs. That seems a logical way of dealing with that problem.
The important point is whether this policy should be expressed explicitly and, if so, whether it should be on the face of the Bill or in subordinate legislation. Fees and charges in planning are—as I am sure we all understand, and the noble Baroness will know better than most—delicate matters. So the Government will think about the issue and return to it at a later stage. We think that there are more discussions and debates to be had on it. In some regards we are on common ground. I therefore hope that the noble Baroness will not press her amendment.
On Question, amendment agreed to.
Schedule 3, as amended, agreed to.
Clauses 78 to 82 agreed to.
Clause 83 [Tree preservation orders: Forestry Commissioners]:
Lord Rooker Lord Rooker moved Amendment No. 131EC:
Page 61, line 37, leave out from "with" to end of line 42 and insert "a relevant plan which is for the time being in force.

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() A relevant plan is a plan of operations or other working plan approved by the Forestry Commissioners under—

(a)a forestry dedication covenant within the meaning of section 5 of the Forestry Act 1967, or

(b)conditions of a grant or loan made under section 1 of the Forestry Act 1979."

On Question, amendment agreed to.
Clause 83, as amended, agreed to.
Clauses 84 to 87 agreed to.
Schedule 4 agreed to.
Clause 88 agreed to.
Schedule 5 agreed to.
Clause 89 [Special provision for certain circumstances where disclosure of information as to national security may occur: Scotland]:
Lord Rooker Lord Rooker moved Amendment No. 131 ED:
Page 65, line 8, leave out "under" and insert "by virtue of"
On Question, amendment agreed to.
[Amendment No. 131EE not moved.]
Clause 89, as amended, agreed to.
Clauses 90 to 92 agreed to.
Clause 93 [Tree preservation orders: Scotland]:
Lord Rooker Lord Rooker moved Amendment No. 131EF:
Page 70, line 36, leave out from "with" to end of line 41 and insert "a relevant plan which is for the time being in force.
() A relevant plan is a plan of operations or other working plan approved by the Forestry Commissioners under—

(a)a forestry dedication agreement within the meaning of section 5 of the Forestry Act 1967, or

(b)conditions of a grant or loan made under section 1 of the Forestry Act 1979."

On Question, amendment agreed to.
Clause 93, as amended, agreed to.
Clauses 94 to 96 agreed to.
Clause 97 [Compulsory acquisition of land for development etc]:
5.15 p.m.
Baroness Hamwee movedAmendment No. 131F:
""(a) if in their opinion the acquisition of such land will facilitate the carrying out of development, re-development or improvement on or in relation to the land, or";"
The noble Baroness said: In moving the amendment, I shall not speak to Amendment No. 131G in the same group. I have a short question. Clause 97(2)(b) substitutes a new paragraph (a) in the section of the principal Act that is referred to. The paragraph which is being substituted ends with the word "or". Has that been lost or is it merely a matter of drafting that that word is not part of the paragraph in the language of parliamentary counsel? I beg to move.
Lord Monson: It is interesting that the Bill contains 121 clauses, only 11 of which—about 9 per cent— relate to compulsory purchase. Yet the Bill is entitled, the Planning and Compulsory Purchase Bill, giving equal weight to both planning and compulsory
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purchase, which is as it should be. Compulsory purchase has always been an emotive and controversial subject. That applies even when property is acquired at full market value, plus a little extra to compensate for disturbance, because no compensation is given for emotional or sentimental loss. It is hard to see how such compensation could be given in practice Therefore, it follows that compulsory purchase should be employed as sparingly as possible, but the Bill weakens that principle to some extent.
I was wondering whether I should declare a potential interest as a landowner, but I reflected that virtually all of us in the House must be landowners to a greater or lesser degree. Even if one owned no more than an eighth of an acre, with or without a house on it, one is still theoretically at risk from compulsory purchase. So I wish all the amendments to Part 8 well—minor though their ameliorating effects will be.
Lord Rooker: If the point that the noble Baroness made about Amendment No. 13IF is about the use of the word "or", then I shall limit my answer to that. I must also point out that it will assume that I have made 10 or 12 paragraphs of speech, which I have not. The "or" which the amendment seeks to insert is superfluous, as Clause 97 does not remove the existing "or" between paragraphs (a) and (b) of Section 226 (1). That is the answer.
Baroness Hamwee: A paragraph becomes different when it appears in a Bill. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 131G not moved.]
Clause 97 agreed to.
Clause 98 [Procedure for authorisation by authority other than a Minister]:
[Amendment No. 131GA not moved.]
Clause 98 agreed to.
Clauses 99 to 103 agreed to.
Clause 104 [Basic loss payment]:
Baroness Hamwee Baroness Hamwee moved Amendment No. 131H:
Page 88, leave out lines 23 and 24 and insert—

"() This section applies to a person who is displaced from land—

() if he has a qualifying interest in that land, and"

The noble Baroness said: In moving Amendment No. 131H, I shall speak also to Amendments Nos. 131J, 131K and 131L. Amendment No. 131H is tabled in order to clarify the persons eligible for the additional basic loss payment. The amendment provides that to be eligible the person be displaced from land as well as having a qualifying interest in it. I expect to hear that that is unnecessary or implicit and look forward to hearing why.
Amendment No. 131J adds a description to the reference to "interest" to clarify the basis on which the value of a person's interest is calculated. That calculation is related to subsection (6), which provides such basis.
Amendment No. 131K clarifies that a loss payment is not to be made to someone whose tenancy was granted after the compulsory purchase order had been made. The new section 33A(4) seems to be unclear as to whether it is intended that a loss payment could be made to someone whose tenancy is granted after the CPO, nor is the meaning of "subsist" made clear, especially when applied to a freehold. The amendment is designed to clarify the qualifying interest in land to be acquired compulsorily. The amendment would enable the freeholder and the lessee with at least three years' unexpired lease to benefit from the new right to basic loss payment.
Finally, Amendment No. 131L is a probing amendment—as are the others—to establish whether compensation for severance, injurious affection and disturbance is included or not. The amendment asks the Government to specify whether the term "amount of compensation" includes compensation for those matters. If not, presumably they are excluded and that should be made clear in terms. I beg to move.
Lord Hanningfield: We support the amendments.
Lord Rooker: I am interested to hear that. Noble Lords opposite should know that the combined effect of these amendments is severely to restrict the number of people able to claim under the new loss payments system but to give the lucky few much more money. They should understand that that is the combined effect of their amendments—to restrict severely the number of people able to claim the new loss payments under the system but give a lucky few a lot more money. If they want to withdraw them now, I shall not go through everything—
Lord Hanningfield: Explain it!
Lord Rooker: Well, that is okay but I do not want to be accused of being party-political. That is the point. Amendments Nos. 131H, 131J and 131L—and this is part of the problem—are similar to amendments tabled at the second Committee sitting in October in the other place but not reached. They spent too much time on other parts of the Bill. Amendment No. 131K is new.
Under Amendment No. 131H, owners of property who do not occupy it would not be eligible for homeless payments. That substantially defeats the point of providing a two-element loss payment system. The aim of the new scheme is to make some allowance for the inconvenience and disruption of being required to leave a property, or give up an interest in it, at a time not of the owner or the tenant's choosing, whether that person is in occupation or not. The intention behind the new provision is to encourage people to be more willing to co-operate in land assembly projects involving the potential use of compulsory purchase powers by providing this extra payment to sweeten the pill. This is an extra payment to sweeten the pill that Liberal Democrats and Conservatives are opposing by tabling these amendments.
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Those with qualifying interests in property but who are not in occupation would not be entitled to receive compensation for the inconvenience of giving up their property to compulsory purchase. They would therefore have no extra incentive to co-operate with the acquiring authority. The clauses are designed not to confiscate, or anything like that, but to ease compulsory purchase—in effect, by being more generous with payments.
That is the overall concept of the package, which, I admit, was not originally in the Bill. I think we had two clauses on compulsory purchase; the powers that be would not let us include the first few. When we got the Bill referred back to Standing Committee, we took the opportunity to include the rest of the package. It is now much more cohesive.
Amendment No. 131J appears to be a paving amendment for Amendment No. 131L. The extra cross-reference proposed by Amendment No. 131J is unnecessary, because the structure of new Section 33 A in the principal Acts is such that the meaning of the words "value of an interest" unfolds later on in the section. I am told that that is consistent with modern drafting methods.
Amendment No. 131K, like Amendment No. 131H, severely restricts the number of people who would be able to claim a new loss payment. I cannot believe that I am reading this out. The amendments are designed to stop people getting money that the Government want to give them. We must be serious about this.
The current definition in Clause 104 will include tenants on successive annual tenancies. Apparently, many Members of the Committee will be familiar with practice in the agricultural sector—although I do not see many of them around at the moment—where such tenancies are well known.
Amendment No. 131K would render such tenants ineligible, as the definition in Section 2(4) of the Land Compensation Act 1973 excludes them. The relevant words are,
"a tenancy thereof granted or extended for a term of years certain of which … not less than three years remain unexpired".
That means that only those whose leases were for a fixed number of years of which at least three remain will be able to claim.
That is very unfair. The amendments are unfair to the farming community in rural areas, but they have been tabled by the Conservatives and the Liberal Democrats. They are unfair not only in the agricultural but also in the commercial sector. A business that has a 25-year lease nearing the end of its term—with, say, two years to run—would be unable to claim. That takes no account of tenants' rights to have a new lease or to hold over under landlord and tenant legislation.
Amendment No. 131L would increase the amount payable by calculating it on the full compensation package instead of only on the value of the land taken. It is not intended that compensation for severance or injurious affection should be added when making those calculations, because such compensation relates to the depreciation in value of the retained land, not the land that is being acquired.

901
Similarly, disturbance payments are not compensation payable in respect of the acquisition of land, as they are intended to compensate occupiers for expenses that are consequential to the acquisition— expenses arising from the practical aspects of being forced to move, such as curtains, fixtures and fittings. The effect of the amendments would be to increase loss payments for the lucky few left able to claim once the effects of Amendments Nos. 131H and 131K had been taken into account, because they would be calculated on the basis of aggregated compensation, rather than solely on the market value of the land taken.
The loss payments system is designed to complement the Home Loss Payments Scheme, which is already part of the Land Compensation Act 1973. It has been firmly established for 30 years that home loss payments are calculated as a percentage of the figure representing the market value of the land acquired, excluding any compensation payable for disturbance. By adding payments for disturbance and injurious affection to the figure used as the basis for the calculation, the balance between, on the one hand, giving a fair measure of compensation to claimants and, on the other, not placing an excessive burden on acquiring authorities, would be upset.
Including those other elements of compensation might conceivably double the loss payment payable to some owners—a few—and give a disproportionate benefit to those occupiers who do not have a valuable interest in the land. The object is to compensate claimants for their inconvenience, not to provide them with a windfall that could compromise the financial viability of the scheme for which the land has been taken. The combined effect of the amendments, by restricting the number of claimants but increasing the payments fundamentally, changes the scheme of the new loss payments regime.
I hope that my explanations have convinced the noble Lords opposite that their amendments are in direct contradiction to the aims of both their political parties at any forthcoming election and would be very unfair on the claimants. Therefore, I hope that they will not proceed with these amendments.
5.30 p.m.
Baroness Hamwee: I really look forward to reading that. I cannot help but feel that the Minister is a bit demob happy as the end of the Bill comes into sight. I do not blame him for using all of that, because it was no doubt written for the rough and tumble of the Committee at the other end. Perhaps we can seek some masterclasses in how to probe the meaning of provisions in Bills without risking being told that we are completely upsetting the scheme of things. These were probing amendments. I am sure that the Minister would have even more fun if we put some objections to clause stand part in this part of the Bill. I thank him for his explanation—
Lord Rooker: For the avoidance of doubt, because of what the noble Baroness said when she stood up, I would not want anyone to think that civil servants wrote any of that political knockabout in my notes.
902
That was all added as I went along. I assure noble Lords that civil servants do not do that kind of thing, that is left to jerks like me who seek to make a cheap party point at the end of the Committee stage.
Baroness Hamwee: I wish that I could be fast enough to find a cheap party point to make somewhere in the remaining bit of the Bill. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 13U to 131L not moved.]
Clause 104 agreed to.
Clause 105 agreed to.
Clause 106 [Loss payments: exclusions]:
Baroness Hamwee Baroness Hamwee moved Amendment No. 131M:
Page 92, line 11, leave out "falling within subsection (4)" and insert "to which subsection (4) applies"
The noble Baroness said: The Minister has just referred to using more modern styles of drafting. The purpose of this amendment and the two others grouped with it, Amendments Nos. 13IN and 1311', is really just to ask whether there is some sort of style guide that parliamentary draftsmen are using to modernise language. Does the parliamentary counsel—I appreciate that the Minster may feel that he needs a shadow with him on the Bench—feel that lit is appropriate to use modern language inserted into an older-style Bill? Once this Bill is passed, we will have other legislation that moves from old to new and back again. I beg to move.
Lord Hanningfield: I rise to support the amendments, but I am a bit frightened to do so in case we get the same sort of answer from the Minister as we did the last time.
Lord Rooker: I have a perfectly good explanation for this. I sometimes think that we need separate notes from parliamentary counsel, because if there is a point about stylistic and modern drafting methods, I am unaware of it. The amendments in this group all appear to have been tabled with the intention of making minor changes to the drafting of Clause 106 without affecting its substance. They are superfluous, but as a group they are also deficient and defective. I will briefly explain why.
Amendments Nos. 131M and 131 N are a pair, which propose an alternative cross-reference to subsection (4) of the new Section 33D. It is not helpful to state that a notice is one to which subsection (4) applies. As it stands at the moment, the drafting of the new Section 33D is perfectly clear to readers and there is no reason to change it.
Amendment No. 13 IP is the second half of another pair of amendments, which would seek a similar effect for subsection (5) as Amendments Nos. 131M and 131N do for subsection (4) of the new Section 33D. The equivalent amendment to Amendment No. 131M has not been tabled—that is the deficiency. I said that it was one half of a pair, but the other half is not there. Amendment No. 131P is the same as Amendment

903
No. 131N in referring to "the notices" instead of "the orders", that is why they are defective. I hope that explanation will find favour with the noble Baroness.
Baroness Hamwee: My question was about style. It will be confusing for practitioners when, in a year or two, they look at what has made its way into the old legislation. I have made the point. No doubt, within the next two or three months, someone will tell me that my drafting is old-fashioned. I beg leave to withdraw the amendment.
Amendment by leave withdrawn.
Amendments Nos. 131N and 131P not moved.]
Clause 106 agreed to.
Clause 107 [Loss payments: supplementary]:
Lord Bassam of Brighton Lord Bassam of Brighton moved Amendment No. 131Q:
Page 95, line 26, at beginning insert "Except as provided in the following provisions of this section,"
The noble Lord said: In moving this amendment, I shall speak also to Amendments Nos. 131R, 131S, 139, 141 and 142.
This group of amendments is a positive response to criticisms raised by the Delegated Powers and Regulatory Reform Committee in its fourth report. Amendments Nos. 131Q and 131R together make changes to Clause 107, which inserts Section 33K into the Land Compensation Act 1973. New Section 33A, in Clause 104, and Section 33B, contained in Clause 105, of the 1973 Act established a right for those whose property has been compulsorily required to receive loss payments. New Section 33K currently provides for regulations to be made under the negative resolution procedure to alter the amounts and percentages specified in those sections.
The Government accept the committee's view that, because the power of the Secretary of State to increase the percentages could be very significant in policy terms, there should be an opportunity for such changes to be considered by Parliament. These two amendments, therefore, reflect the committee's recommendation that the negative procedure is appropriate only where the power in new Section 33K(2) is used by the Secretary of State only to reflect changes in the value of money or land. We also explicitly provide for any regulation made under Section 33K to make different provision for different purposes. As the Land Compensation Act 1973 has already been devolved in its entirety without qualification in the Transfer of Functions Order, the National Assembly for Wales will have the same power as the Secretary of State to make regulations, but subject to Assembly procedure.
Amendment No. 131S inserts a new clause giving the Secretary of State a contingent power to make an order amending any enactment to bring it in line with the provisions relating to compulsory purchase procedures in Part 8. Amendments Nos. 139 and 141 disapply the negative resolution procedure and apply the affirmative resolution procedure to orders made by
904
the Secretary of State under the new power. Amendment No. 142, when taken with Amendment No. 141, also applies the affirmative and not the negative resolution procedure to statutory instruments which amend or repeal enactments, and which are made by the Secretary of State under powers in the Bill. That follows the committee's recommendations. Here endeth my epistle. I beg to move.
Lord Hanningfield: With this amendment, we wish to test the Government's thinking on the Crichel Down rules. The general principle underlying the rules is that, when land has been acquired compulsorily or under threat of compulsion, and the acquiring body no longer needs the land as originally envisaged or for any other public purpose for which the land could have been compulsorily purchased, the original owner or his or her successor should be offered the opportunity to buy back the property at its current market value. As such, the rules provide some comfort for the dispossessed landowner. However, at present, the rules are nonstatutory and this fact helps explain the confusion that surrounds the application of the Crichel Down rules.
In the absence of formal legislation, it is not clear which organisations fall within the ambit of the rules. Clearly, the rules apply to all government departments, but they are discretionary for local authorities and inconsistently applied. A similar lack of clarity relates to the application of the rules to particular sites. The origin of the rules in relation to Crichel Down itself and the privileged position of agricultural land in the legislative framework led to an emphasis on agricultural land. The legacy of that has been to create confusion, as the application of the rules has been extended to cover urbanised land.
Finally, there appears to be conflict between the rules, both in principle and in operation, and other primary legislation, regulation and guidance. Having considered the various options for the future of the rules, the Government took the view that the most appropriate way forward was for the rules to be made statutory and to apply them to all land acquired or under threat of compulsion.
The deadline for responses on the Government's consultation on the proposed changes to the current nonstatutory rules and the proposal for statutory rules was 19 December 2003. Can the Minister explain why the Government do not see the Planning and Compulsory Purchase Bill as the ideal legislative opportunity to introduce the necessary order-making powers in primary legislation for the statutory rules? This amendment is the logical next step in the Government's reform agenda for compulsory purchase. I do not understand why the Government would not want to take this opportunity to signal their commitment to a fairer and more consistent approach to the Crichel Down rules. This amendment would not prejudice the results of the consultation exercise, which concerns the content and format of the rules themselves. The precise configuration of the rules could be dealt with in secondary legislation after the Government have analysed the results of this consultation.

905
Without this amendment I wonder how long it will be before the Crichel Down rules make it to the statute book? The sooner we have statutory force to the rules, the sooner we will have a clearer, fairer system.
Baroness Hamwee: I think we are all a little confused. Is this Amendment No. 131T?
Baroness Farrington of Ribbleton: Is the noble Lord seeking to group his amendment with those of the Government. He has spoken to them in the group. Is that correct?
Lord Hanningfield: Yes, I was also considering a further amendment which I have already talked to the Minister about. The noble Baroness has probably come to a sensible answer. Let me group it with the other amendments and then the Minister can reply.
Lord Rooker: Let me be clear. I am speaking exclusively to Amendment No. 13IT. I am glad to know I was not the only one who was confused. At present, although the Crichel Down rules set out arrangements under which the former owners of such land are to be given the first opportunity to buy it back, those rules are not statutory and are only mandatory for government departments and some agencies and non-governmental public bodies.
The current rules extend further than the proposed regulation-making power suggests. For instance, they apply in the case of land that has been acquired under the blight provisions in Chapter II of, and Schedule 13 to, the Town and Country Planning Act. Moreover, they cover the offering back of land not only to former owners in the strict sense but also their successors. They also provide for a house being offered to sitting tenants in the first place, rather than the former owner. So the proposed regulation-making power does not go wide enough.
The Office of the Deputy Prime Minister has recently undertaken a consultation exercise, to which the noble Lord referred. That included proposals for changes to the existing rules and their accompanying guidance on a separate proposal to put the rules on a statutory basis. The results are currently being analysed. They have not yet been put to Ministers. Therefore it would be premature to accept the amendment even if parliamentary counsel would have accepted it. We are limited in the number of clauses that can be included in the Bill. We must keep an open mind on this issue. We have not yet announced what we intend to do.
Lord Hanningfield: The Government announced five or more years ago that they thought the Crichel Down rules should be changed. This might have been an opportunity to get something in this legislation that might have taken the process forward without prejudicing the result of the consultation. I hope the Minister will consider this. A compulsory purchase Bill would be the ideal vehicle to contain such a measure. However, I shall not move my amendment.
5.45 p.m.
Lord Rooker: I can say only that I do not know anything about the detail. This is only Committee stage. I do not know the timetable for the assessment of the consultation, how long it will be before matters come before Ministers and whether there will be time to make decisions, but it is still some weeks to Report. I shall certainly get further and better particulars about the issue.
On Question, amendment agreed to.
Lord Rooker Lord Rooker moved Amendment No. 131R:
Page 95, leave out lines 29 to 33 and insert—

"(4) This subsection applies to regulations under subsection (2) which substitute—

(a) a percentage figure, or

(b) an amount, in a case where the change in value condilion is not satisfied.

(5) A statutory instrument containing regulations to which subsection (4) applies must not be made unless a draft of the regulations has been laid before and approved by resolution of each House of Parliament.

(6) The change in value condition is satisfied if the Secretary of State thinks that in the case of the substitution of an amount it is expedient to make the substitution in consequence of changes in the value of money or land.

(7)Regulations under subsection (2) may make different provision for different purposes.""

On Question, amendment agreed to.
Clause 107, as amended, agreed to.
Lord Rooker Lord Rooker moved Amendment No. 131S:
After Clause 107, insert the following new clause—
"CORRESPONDING AMENDMENTS OF OTHER ENACTMENTS

(1)This section applies to any enactment passed or made before or in the same session as the passing of this Act (other than an enactment amended by this Part) which makes provision—

(a)in connection with the compulsory acquisition of an interest in land,

(b)creating a power which permits the interference with or affectation of any right in relation to land, or

(c) for the payment of any sum in connection with the acquisition, interference or affectation.

(2)The Secretary of State may by order amend an enactment to which this section applies for the purpose of making provision which—

(a) corresponds to provision made by this Part, or

(b) applies any such provision or corresponding provision."

On Question, amendment agreed to.
[Amendment No. 13 IT not moved.]
Clause 108 agreed to.
Lord Rooker movedAmendment No. 131U:
After Clause 108, insert the following new clause—
"PARLIAMENT The Planning Acts and this Act have effect despite any rule of law relating to Parliament or the law and practice of Parliament."
On Question, amendment agreed to.
Clauses 109 and 110 agreed to.
Clause 111 [Grants for advice and assistance]:
Baroness Wilkins Baroness Wilkins moved Amendment No. 132:
Page 97, line 27, leave out "the public" and insert "any other person"
The noble Baroness said: First, perhaps I may apologise to Members of the Committee; illness prevented me from speaking to the two previous amendments standing in my name. I am very grateful to the noble Baroness, Lady Hamwee, and to other noble Lords for speaking to those amendments perhaps more eloquently than I would have done. I thank the Minister, too, for his response. I look forward to returning to those issues at a later stage.
Amendment No. 132 is a probing amendment to ascertain whether the wording of Clause 111 would allow the Secretary of State and the National Assembly for Wales to give grants to local access groups as well as to bodies such as Planning Aid. The wording may preclude that, and I ask for clarification. I would also welcome a statement from the Minister about how the Government intend to ensure a sustainable future for local access groups of disabled people, which many planning authorities and developers rely upon for expert advice on access issues, including advice on individual planning applications.
Although many local authorities already support local access groups, either by providing small amounts of funds—usually a few hundred pounds a year—or by providing support in kind, such as a meeting space or secretariat, they usually run on "fresh air and enthusiasm" with many members having to fund participation from their own pockets.
No central government funding is currently available to ensure a well-resourced, sustainable network of local access groups in every locality. The Government used to provide core funding and project funding to the Access Committee for England but withdrew that in 1998. Extra funding is required to enable local access groups to grow and develop in a sustainable way. A central government funding stream would be highly desirable to build the capacity of local access groups, to enable groups to be set up in areas currently deprived of such a vital source of advice, and to ensure that regional access groups are in place to inform regional spatial strategies.
The Government have suggested that funding for Planning Aid is the way they plan to facilitate disabled people's participation in planning. While funding for Planning Aid is very welcome, it will not address the need to give disabled people an effective voice in the planning system. As I understand it, the two have quite different functions. If disabled people need personal planning advice they can go to Planning Aid for assistance. They may also take part in consultation on development plans arranged by Planning Aid. Planning Aid confirms that its remit is not to provide support to access groups or specialist access advice. However, local access groups
908
exist to provide this expert advice and to provide direct input into the planning and development control system for disabled people.
The Disability Rights Commission is undertaking research scoping the location, resources and experiences of existing local access groups which will include recommendations on funding needs. Can we have an assurance from the Minister that serious consideration will be given to implementing any recommendations on funding that stems from this research?
Finally, would the Minister agree that should the current wording of Clause 111 preclude central funding for local access groups, it would be wise to amend it now to allow for future funding recommendations to be acted upon? I beg to move.
Lord Rooker: I am getting advice on one particular aspect, but this is where the play on language comes in. The noble Baroness's amendment would end up with the perverse effect of allowing local authorities to get money from Planning Aid. I have started off with my final point because otherwise it looks as if I am being negative and I do not want to appear that way.
Clause 111 is intended to allow the Secretary of State and the National Assembly for Wales to help financially bodies such as Planning Aid, which provide advice and assistance to members of the public who cannot afford to pay for advice on the planning process.
It will enable Planning Aid to become more proactive, as I mentioned earlier, and develop a greater role in targeting communities which traditionally do not get involved in the planning system, particularly groups in disadvantaged areas or groups representing the socially excluded. This includes people on low incomes; unemployed people; minority ethnic communities; disabled people and disability groups; tenants and community groups; and voluntary organisations and action groups.
As I have said, the effect of Amendment No. 132 would be to allow access to Planning Aid to bodies such as local authorities, because they come under the legal term, "any other person", whereas they are not normally thought of as "the public". That is where the distinction comes. We believe "the public" should have wide access to Planning Aid, but we certainly do not want—and it is not our intention—to provide help to such bodies which already have the resources and expertise to manage planning issues.
Although my notes say "bodies such as Planning Aid", this involves only Planning Aid. My assumption has been that the extra money has gone to Planning Aid, although not defined as such in the Bill. I do not know if there are any other bodies. If Planning Aid works with the groups that the noble Baroness is describing, and is proactive on their behalf, that would make a tremendous difference. Therefore not accepting the amendment does not mean I am not accepting the spirit behind the amendment. It is just that play on words—"any other person"would

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include local authorities and we need to say "the public" in order to exclude local authorities from getting their hands on this money. They have enough of their own as it is!
Baroness Hamwee: I wonder if the Minister can tell the Committee how many people are needed to make up the public for that purpose. Do you know when you see them? Presumably there is a point at which a small group of people covers a wide enough subject area to become "the public" for the purpose of this provision. I am happy to wait for an answer.
Baroness Wilkins: I thank the Minister for his reply. This matter obviously needs considerably further thought. I would be grateful for discussions with him and for now I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 111 agreed to.
Clauses 112 to 114 agreed to.
Schedule 6 [Amendments of the planning Acts]:
Lord Rooker movedAmendment No. 132ZA:
Page 125, line 14, at end insert
"In section 55(2)(b) (meaning of development) the word "local" is omitted."
On Question, amendment agreed to.
[Amendments Nos. 132A and 132B not moved.]
Schedule 6, as amended, agreed to.
Schedule 7 [Amendments of other enactments]:
Lord Hanningfield Lord Hanningfield moved Amendment No. 132BA:
Page 134, line 2, at end insert—
"(6A) In Schedule 26 (urban development corporations), in paragraph 1, leave out "11" and insert "15"."
The noble Lord said: This amendment has proved to be difficult because I have been advised that technically it is not possible to move it on this piece of legislation. However, I have discussed it with the Minister and I am now moving it so that he will be able to respond.
Concerns have been expressed about the competition and the ability of local authorities to be represented on UDCs. Given all the partners, the earlier legislation specifying numbers has proved insufficient. We shall refer to UDCs consistently throughout this Bill and on the important part they play in the planning process. I had hoped, therefore, that my amendment would be appropriate. However, I have been told that it is not. Perhaps the Minister will clarify the position. I beg to move.
Baroness Hamwee: The Public Bill Office allowed the amendment to be tabled and so I feel free to say a word about it. I congratulate the noble Lord on spotting what I thought was a good opportunity. I am aware that the consultation on the proposed UDC for the Thames Gateway comes to an end tomorrow and that one of the issues in that consultation has been that
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many local authorities have legitimate claims to be represented on the new UDC. That is if one accepts that this is the right way to go; I do not, but for the purpose of this amendment I shall leave that to one side.
I understand that this will rely on an order dependent on primary legislation, so the noble Lord has raised an extremely good point. If this is not the way, then I hope that we shall be able to find a means of achieving the objective within the Bill. Again, I congratulate the noble Lord.
Lord Rooker: I am reliably advised that we should not be debating this amendment because it should not be on the Order Paper. To be honest, I thought that this was a government amendment that we had given to the Opposition. A government amendment like this has been on my mind for months. We need to allow flexibility to increase the size of the UDCs because of what we plan to do with the sustainable communities plan and the growth areas where multiple local authorities are involved. We have made it clear that, as our partners, we want good stakeholder representation.
At the moment I know that we have some difficulties in one of the gateway UDCs which is not ready at the moment. Thurrock is ready, as is the Thames Gateway. Northampton and Milton Keynes are already out for consultation. So far as I know, all is well.
Earlier I was told that we do not need the amendment to achieve what we want, notwithstanding that it should not have been on the Order Paper. I was unaware that it had been ruled out in the Commons because to the best of my knowledge I have had no paperwork about it.
It has always been the Government's intention to use the opportunity provided by this Bill to make a modest change to enable us to increase the maximum number of people serving on urban development corporations. Apparently, however, it cannot be done because it is beyond the scope of the Bill. It will be dealt with in a regulatory reform order. Either way, I want to make it clear that this will be done. I am not prepared to stand here and be told that it cannot be done.
People outside in local government who we are desperately trying to keep as our partners on these issues, both in the market renewal housing pathfinders in the midlands and the north where UDCs may be the order of the day, and the Thames Gateway and the other growth areas of the south-east, would think that I am speaking with a forked tongue. All parties are involved, trying to work together in consensual arrangement. I am making it clear: we are not imposing anything. We will have full consultation and provide a good stake for the stakeholders. They can work it out just as I can. If we have to have a majority of independents, there will not be enough room for all the local authorities to be represented.

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I want to make it clear again that just because it has not been done during this stage, it does not mean that the Government will not honour their commitment to ensuring that those stakeholders are fully represented on the urban development corporations.
Lord Hanningfield: I thank the Minister. Considering that this matter was not supposed to be raised, we have had it reported fairly well and I am grateful for that. We are unanimous on this point and I hope that the Government can achieve it as soon as possible. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
6 p.m.
Lord Rooker Lord Rooker moved Amendment No. 132C:
Page 137, line 5, at end insert—
"() In section 26(2)(b) (meaning of "development"), for "local roads authority" there is substituted "roads authority (as defined by section 151(1) of the Roads (Scotland) Act 1984).""
On Question, amendment agreed to.
Schedule 7, as amended, agreed to.
Clause 115 agreed to.
Schedule 8 [Transitionalprovisions: Parts 1 and 2]:
[Amendments Nos. 133 and 134 not moved]
Schedule 8 agreed to.
Clause 116 agreed to.
Schedule 9 [Repeals]:
Lord Rooker Lord Rooker moved Amendment No. 134ZA:
Page 144, line 20, column 2, at end insert—
"In section 55(2)(b) the word "local"."
On Question, amendment agreed to.
[Amendments Nos. 134A and 135 not moved.]
Lord Rooker Lord Rooker moved Amendment No. 136:
Page 145, line 14, column 2, at end insert—
"In section 92(2)(a), "83, 84,"
On Question, amendment agreed to.
Schedule 9, as amended, agreed to.
Clause 117 [Commencement]:
Lord Rooker Lord Rooker moved Amendments Nos. 137 and 138:
Page 99, line 21, at end insert—
"() in Part 7, Chapter 1;"
Page 99, line 24, after "Schedules" insert "3, 4,"
On Question, amendments agreed to.
Clause 117, as amended, agreed to.
Clause 118 [Regulations and orders]:
Lord Rooker Lord Rooker moved Amendments Nos. 139 to 143:
Page 100, line 5, at end insert—
"(aa) an order under section (Corresponding amendments of other enactments)(2);"
Page 100, line 6, after "section" insert "96,"
Page 100, line 7, at end insert—
"(ca) provision amending or repealing an enactment contained in an Act;"
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Page 100, line 9, leave out from "instrument" to "has" in line 10 and insert "mentioned in subsection (5)(a), (aa) or (ca) must not be made unless a draft of the instrument"
Page 100, line 12, after "section" insert "96 or"
On Question, amendments agreed to.
Clause 118, as amended, agreed to.
Remaining clauses agreed to.
House resumed: Bill reported with amendments.
Terrorism Act 2000 (Continuance of Part VII) Order 2004
6.5 p.m.
The Lord President of the Council (Baroness Amos)The Lord President of the Council (Baroness Amos) rose to move, That the draft order laid before the House on 15 January be approved [6th Report from the Joint Committee].
The noble Baroness said: My Lords, the order was laid before the House on 15 January 2004 and will renew all but one of the Part VII powers currently in force. The 2003 continuance order renewed the Part VII powers up to and including 18 February 2004. The present order provides that the provisions should remain in force for a further period of 12 months.
A report on the operation of Part VII in 2003 by the noble Lord, Lord Carlile of Berriew, has been published. The Government have considered his views and are grateful that he has once again provided a well informed report.
In consideration of the prevailing security environment in Northern Ireland, the Government believe that it is necessary to retain the vast majority of the Part VII powers. The noble Lord, Lord Carlile, agrees with this conclusion. Intimidation, so-called punishment beatings and the threat from dissident groups opposed to the peace process remain in Northern Ireland. It is clear that the Part VII powers are necessary to combat such activity and to ensure that the rule of law—not the rule of the paramilitaries—is maintained.
I take no pleasure in recommending the renewal of Part VII for a further year. Indeed, I look forward to a time when it will no longer be required. The Government are committed to the ultimate removal of the Part VII powers when the security situation allows. But the Government also have a duty to protect the people of Northern Ireland from continued terrorist activity. We will therefore act responsibly in respect of this duty and ensure that the people of Northern Ireland are, at all times, given the security and protection they need. I beg to move.
Moved, That the draft order laid before the House on 15 January be approved [6th Report from the Joint Committee].—(Baroness Amos.)
Lord Glentoran: My Lords, I thank the Lord President of the Council for bringing the order before the House. I entirely agree that it is sad that we have to continue the order today. We, too, are grateful to the noble Lord, Lord Carlile, for this report and for his previous reports over the years.

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But we have to be realistic. The noble Lord points out that high levels of sophisticated crime, syndicated crime, paramilitary connections and intimidation still exist and that the control that paramilitary organisations exert over communities continues. It is the noble Lord's view that political progress and moves towards greater security and normalisation in Northern Ireland are dependent on a complete end to all forms of paramilitary activity by both republican and loyalist groups.
That central issue must be addressed in the forthcoming review of the Belfast agreement. Let us hope, yet again, that we will see an end to violence and terrorism in Northern Ireland. In the mean time, I support the order.
Lord Smith of Clifton: My Lords, I, too, thank the Lord President of the Council for introducing the order. Like her, I regret that we have to continue with it for yet another year. I welcome the report of my noble friend Lord Carlile and I thank him for compiling such a thorough, clear and accessible document. We are pleased that the Government have taken on board his recommendations that Section 97(3) should now lapse.
However, my noble friend also recommended that consideration should be given to the repeal of Section 67(3) in paragraph 3.17 of the report and that very serious consideration should be given to the repeal of Section 108. He also stated that paragraph 37 of Schedule 4 is now redundant in its application to paragraph 36, which was repealed last year, and that there could be procedural problems in the relationship between paragraph 37 and Section 112.
I have given the Minister notice of this question. Can the noble Baroness reassure the House that the Government are considering repeal of Sections 67(3) and 108? Does the Minister believe that further clarification of paragraph 37 of Schedule 4 is needed; and, if so, when might the legislative changes be made?
My further question refers to the Diplock courts. My noble friend Lord Carlile suggested that consideration should be given to a three-judge court instead of a single judge court and that that might help towards the normalisation process. Is that recommendation by my noble friend likely to be considered?
We support the continuation of the order.
Baroness Amos: My Lords, I thank both noble Lords who have spoken, in particular the noble Lord, Lord Glentoran. I agree with him that we all want to see a complete end to all forms of paramilitary activity. I particularly thank the noble Lord, Lord Smith of Clifton, for giving me notice of the questions he raised.
On the repeal of Section 67(3), there is little doubt that the noble Lord, Lord Carlile, presented a strong case for allowing Section 67(3) to lapse. He believes that judges apply the same test to schedule cases as to non-schedule cases in line with the convention. We
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have undertaken internal consultation on this matter and received helpful and informative responses from key stakeholders. We intend to launch a wide-ranging and comprehensive formal consultation exercise. I hope that any concerns relating to retention or repeal of the provision will be submitted and examined through that process. I hope that that addresses the concern raised by the noble Lord.
On the repeal of Section 108, noble Lords will be aware of the tragic circumstances that preceded the introduction of this provision in 1998. The House had the opportunity to debate the retention of the provision in the Terrorism Act and it is only this year that the noble Lord, Lord Carlile. has recommended repeal. I believe that the provision still has some utility and the convictions of Real IRA members in the Republic with the assistance of a similar provision reinforces this view. But we shall give careful consideration to the noble Lord's comments on Section 108. As the noble Lord, Lord Smith of Clifton, made clear, the report of the noble Lord, Lord Carlile, is clear and accessible.
As regards the intentions of paragraph 37 of Schedule 4, last year we said that we would consider the utility of paragraph 37 of Schedule 4. Although Schedule 4 is a permanent UK schedule to the Terrorism Act, paragraph 37 is treated as a Part VII provision by virtue of Section 112(5)(a). On advice from the noble Lord, Lord Carlile, we did not renew paragraph 36 of Schedule 4 last time round. Paragraph 36 enables the Secretary of State to make a restraint order in the place of the courts. Paragraph 37 creates an offence of contravening a restraint order and, logically, should fall away with paragraph 36. However, on further examination, the paragraph 37 offence applies also to restraint orders issued by the courts in Northern Ireland under paragraph 33 of the schedule. So if paragraph 37 is not renewed it would render unenforceable court restraint orders. On careful reflection, we conclude that paragraph 37 must be renewed.
As regards the final point of the noble Lord, Lord Smith of Clifton, in relation to the three-judge courts, it is inevitable that the move to three-judge courts would have significant cost and resource implications. I note that the noble Lord, Lord Carlile, is in his place. Paragraph 5.17 of his report states that,
"the present single-judge courts continue to offer a high standard of justice: there is no evidence of any deficit in the quality of single-judge courts".
My right honourable friend Jane Kennedy said in another place this morning that she would give careful consideration this year, along with Ministers responsible for criminal justice, to the issues raised by the noble Lord, Lord Carlile. The noble Lord recognises that there are a number of issues to weigh in the balance.
With those assurances that we shall give careful consideration to these matters, I hope that noble Lords feel able to support the order.
On Motion, Question agreed to.
House adjourned at a quarter past six o'clock.