§ House again in Committee on Clause 50.
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.
850 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 851 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?
§ Clause 50 agreed to.
§ [Amendment No. 126A not moved.]
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 852 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; 853 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
855 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 moved Amendment No. 127:
Page 40, line 19, at end insert—
§ 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.856
§ 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.
857 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 858 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.
§ Amendment, by leave, withdrawn.
§ [Amendment No. 128 not moved.]
§ Clause 51 agreed to.859
§ Clause 52 [Duty to respond to consultation]:
§ 3 p.m.
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).860
§ 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 861 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 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—
"186A ENFORCEMENT OF STOP NOTICE
§ 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.863
§ 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.864
§ 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.865
§ 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.
866 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.
867 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 1 868 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 869 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.
870 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 moved Amendment No. 129A:
After Clause 53, insert the following new clause
"CONDUCT OF LOCAL GOVERNMENT MEMBERS INVOLVED IN DEVELOPMENT CONTROL DECISIONS
§ 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 872 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. 873 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 874 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 875 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.
876 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 877 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 878 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 879 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 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
880 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.
881 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 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 882 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 883 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 884 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 885 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.
886 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.
§ 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?
§ 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 moved Amendment No. 130A:
After Clause 59, insert the following new clause—
"LOCAL DEVELOPMENT PLANS
§ 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 887 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.888
§ 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,
I want to emphasise how important the review process is in every country.
- (a) keep under review the Plan;
- (b) consider from time to time whether it should be revised".
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 889 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?
890 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. 891 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.
892 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.
893 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 894 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.895
§ Schedule 3 [Crown application]:
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—
§ 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 896 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 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.
() A relevant plan is a plan of operations or other working plan approved by the Forestry Commissioners under—
§ 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 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 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—
§ 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 moved
Amendment 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 898 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 moved Amendment No. 131H:
Page 88, leave out lines 23 and 24 and insert—
§ 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.899
§ 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 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 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.
900 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 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 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 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 moved Amendment No. 131R:
Page 95, leave out lines 29 to 33 and insert—
§ On Question, amendment agreed to.
§ Clause 107, as amended, agreed to.
Lord Rooker moved Amendment No. 131S:
After Clause 107, insert the following new clause—
CORRESPONDING AMENDMENTS OF OTHER ENACTMENTS
§ On Question, amendment agreed to.
§ [Amendment No. 13 IT not moved.]
§ Clause 108 agreed to.
§ Lord Rooker moved
Amendment 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 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 909 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 moved
Amendment No. 132ZA:Page 125, line 14, at end insertIn 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 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 910 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.
911 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 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 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 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 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 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;
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.
§ 6.5 p.m.
§ 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.
913 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 914 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.