HL Deb 16 March 2004 vol 659 cc230-58

Further consideration of amendments on Report resumed.

[Amendment No. 144 not moved.]

Baroness Maddock moved Amendment No. 144ZA: After Clause 51, insert the following new clause— "Meaning of development In section 55 of the principal Act there is inserted the following paragraph at the end of subsection (2)— () the carrying out of the improvement or maintenance of any building of works which fall within regulations made by the Secretary of State and which do not materially increase the overall retail sales floor area of the building by such percentage as the Secretary of State prescribes".

The noble Baroness said: My Lords, I shall try to be brief. We had a lengthy discussion on the matter in Committee. The noble Lord, Lord Rooker, was sympathetic to my intentions concerning mezzanine development in out-of-town stores. As he has not managed to table an amendment on Report, I suspect that he is still considering the issue. Therefore, I shall not repeat all my previous remarks; I shall just go through the purpose of the amendment.

The amendment is slightly different from the one that I tabled in Committee. It would not prohibit any further internal expansion of retail stores; it would simply bring it within the planning system. Any proposals could then be properly assessed at the local level and brought within the democratic process of the planning system. Local planning authorities would then be free to set their own policies in their local development frameworks to allow or restrict such developments. That is totally in line with a plan-led system.

We have seen in the cases that I discussed at an earlier stage of the Bill that local communities find it difficult to defend their policies and town centres. That is why we wish to include a provision in the Bill to improve the situation.

At an earlier stage of the Bill, the Minister thought that we could perhaps address the matter through secondary legislation. There is a problem there because the secondary legislation would contradict provisions enshrined in the Town and Country Planning Act 1990.

I know that the Government have been consulting on the new PPS 6, which concerns retail development. If we do not take the opportunity to include a relevant clause in the Bill, it will be a long time before we have another chance. We have pointed out at several stages of the Bill that planning law is not changed very often and that we shall not have an opportunity to deal with the issue at a future date. That would be a shame because we have realised in recent years that if we are serious about sustainable development and keeping our town centres, we need a robust planning system. More recent planning permissions have understood that. It would be a shame if all that disappeared because we cannot manage to consolidate it with the Bill.

The issue falls within the scope of PPS 6, on which the Government have consulted. I draw noble Lords' attention to two points. Following our interesting exchanges in Committee, I had tea with representatives of Asda, who felt rather hard done by for having been picked out. They thought themselves to be the small players in the supermarket game. I shall speak about that in a moment. I made the point to them that the issue relates not just to town centres or supermarkets, but to sustainability as whole.

Climate change is affected. It is a much wider issue. When it comes to food and supermarkets, the average person now travels 893 miles per year to shop for food, and 60 per cent of that travelling is by car. Food shopping now accounts for 5 per cent of all our mileage in Britain. That is why the issue is a broad one and why we need to deal with it. Various local authorities have explained how they have had difficulty. I gave examples last time, so I shall not go through them again. Even when these authorities have put restrictions on planning, they have not been able to carry this through, and developers and owners of out-of-town retail space have appealed and won.

Just so that Asda does not feel that it is the only company being got at, we are not only talking about Asda—which we have to remember is Walmart, the world's largest company—but also Tesco, as well as lots of do-it-yourself companies like B&Q and Homebase. They have a dominant position in the market, and they obviously have an agenda: they want to expand their business. They have found that, because of the way the planning system works, one can change things inside a building without getting permission.

As there are no amendments down, I am not sure the Minister is going to be able to say anything tonight. I hope that he will be able to come forward with something at Third Reading. Given the late hour, I am not going to say anything else on this, other than that I beg to move.

Lord Rooker

My Lords, I can be commendably brief. The amendment proposes, among other things, the application of planning control to mezzanine floors of a certain size. As I stated on 5 February, we are giving this issue serious consideration. That consideration is not yet concluded. I am therefore unable to support the amendment this evening, but I hope to come back to the House as soon as possible.

Baroness Maddock

My Lords, I am grateful to the Minister. I suspected that that was where we had got to. I know it is not easy, because the consultation on the planning policy dealing with out-of-town shopping and trying to preserve our town centres does not only concern the Office of the Deputy Prime Minister, but also, of course, crosses over in to the Department of Trade and Industry, where I suspect some of the problems lie. I hope the Minister will be able to resolve this issue, and I look forward to seeing what he comes forward with. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 52 [Fees and charges]:

Lord Bassam of Brighton moved Amendment No. 144A: Page 40, leave out line 17 and insert— () provision as to the calculation of the charge or fee (including the person by whom it is to be calculated); () circumstances in which no charge or fee is to be paid,

The noble Lord said: My Lords, in Committee, in response to an amendment tabled by the noble Lord, Lord Lucas, we undertook to explore further the concept of a performance relationship for fees, and consider whether this is allowed for by the current wording of this clause. I can tell the House that, on examination, we have found that the wording of the clause does not cover such a relationship. However, we do think the concept is an interesting one, and we would like the Bill to allow for it. Therefore, we are tabling amendments 144A and 144B.

These amendments seek to allow the provision of a performance relationship, subject of course to the provision that, where authorities set their own fees, they must ensure, taking one year with another, that the income from the fees and charges does not exceed the cost of performing the function, something that was described very aptly in the local government and financial matters Bill that my noble friend Lord Rooker piloted through your Lordships' House last year. This is in line with our longstanding policy, and actually in line with that of the previous administration, which, I think, bears to be slightly congratulated on this one. Planning fees can be set to recover the full aggregate cost, but no more, of the services to which the fees are related.

I have a longer speaking note, but I think I have probably said enough on this matter. I hope that the amendments we are moving this evening find favour in your Lordships' House. I beg to move.

Lord Lucas

My Lords, I am very grateful that the Government have chosen to pursue this course, although I could never have drafted anything as skilfully as the government draftsmen have.

I would have tabled Amendment No. 144B a little differently; I would have allowed local authorities to make some surplus, perhaps within a prescribed limit. It is quite hard to be told that one must never make money; there is always a processing of the loss that means that, to some extent, there is always a burden on ratepayers. To chastise my noble friend again, I do not think that Kensington and Chelsea sets its parking fees so that it never makes a profit. Whereas one wants to keep such matters within bounds, to say that there should never be a surplus is to say that there always has to be a loss, which is not how I would like to see it. None the less, one should not quibble, and I am delighted that we have made some move in the right direction.

Baroness Hamwee

My Lords, the drafting is so skilful that I was grateful for the explanation; I have to say that I wondered what the amendment was about. We have probably had a helpful letter, too.

On the previous occasion, the Minister said that the Government's long-standing policy, and that of the previous administration, was to set planning fees to recover the full aggregate costs. I thought then that the chance would be a fine thing. It is entirely right that the costs should be covered with perhaps even a surplus to allow a bit of scope. However, I want to put on record that I have very considerable reservations indeed about performance-related fees.

I have reservations about the Government's approach to assessing performance generally, and I can see a lot of problems and elephant traps in somehow relating what can be charged to the performance. It could be the start of a rather difficult slope into thinking such as, "Well, we'd better say yes because of the financial implications". There is enough of that in the exercise of planning functions now, with development control committees being told, "Think of the costs it' you appeal".

I would also like to voice a note of concern about what I understand as allowing local planning authorities to set individual rates. That could affect where developers choose to develop. The whole point of having spatial strategies, development plans and so on is to both control such matters and encourage development where it is wanted. Fees are in a separate compartment from that, and it will be difficult if there is any mixing up of the two.

Lord Bassam of Brighton

My Lords, I am grateful for the welcome from the noble Lord, Lord Lucas. I take it that he is in spirit with me and is one of those who wants to see a bit of municipal entrepreneurialism. Actually, I would rather like to see a good deal more of it than we have been allowed to achieve in the local government sector in the past. That was why I was rather pleased with the most recent piece of local government legislation, which we put through this House in the previous Session.

I am sorry that we had a less than enthusiastic response from the Liberal Democrats. As leader of a local authority, I struggled to get the planning function to perform at any great speed or to the satisfaction of clients at all during my tenure and watch in that office. It was one of my continuing and enduring frustrations. The provision may well operate as an incentive to some local authorities that do not get a move on, basically, in considering planning applications and do not commit sufficient resource or enthusiasm to the planning process. That is what we need to do. If we were to adopt the concern enunciated by the noble Baroness, I rather think that local authorities would be stuck in the past for ever and would not respond to any sort of incentive or encouragement at all.

With those comments, I hope that noble Lords will generally welcome what we have done.

On Question, amendment agreed to.

Lord Bassam of Brighton moved Amendment No. 144B: Page 40. line 25, at end insert— () After subsection (5) there are inserted the following subsections—

9.30 p.m.

Lord Rooker moved Amendment No. 144C: Page 40, line 40, leave out subsection (4) and insert— () The consultee must give a substantive response to any consultation mentioned in subsection (2) or by virtue of subsection (3) before the end of—

  1. (a) the period prescribed for the purposes of this subsection, or
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  2. (b) such other period as is agreed in writing between the consultee and the appropriate authority or the local planning authority (as the case may be)."

The noble Lord said: My Lords, this amendment ensures that the duty to respond within a prescribed period includes a degree of flexibility to allow for situations where a statutory consultee might not be able to respond within a fixed period, for example when an environmental statement is required. We decided that the Bill as drafted did not enable us to provide this flexibility. This amendment will put that right. I beg to move.

Baroness Hanham

My Lords, I am slightly sorry about that explanation. We were looking not so much for flexibility from consultees within these clauses, but an indication that the consultee was going to have to reply within a reasonable space of time, so as not to hold everything up. The Minister may be correct that the flexibility is useful here, but equally useful would have been that the consultee—it could be anyone who needs to reply, English Heritage, the fire brigade—does not hold the proceedings up by not replying within due course. I think that the Minister's amendment does that. There was a slight overemphasis on flexibility, but the prescribed period will presumably be laid down in regulations, because it is certainly not here, or the period will be agreed presumably each time that there is a requirement for a consultee to make a response. Might the Minister be able to give us a bit more indication of what the prescribed period will be, and prescribed by whom?

Lord Rooker

My Lords, I took those out in the interests of making progress. We have already consulted on draft amendments to the Town and Country Planning (General Development Procedure) Order 1995, and its associated guidance, which explains how we want the duty to respond to work. The draft order specifies that the duty to respond will be 21 days or such period as may be agreed in writing by the local planning authority.

On Question, amendment agreed to.

Lord Bridges moved Amendment No. 144CZA: After Clause 54, insert the following new clause— "ENFORCEMENT OF PLANNING CONTROLS

  1. (1) A local planning authority must exercise its powers so as to ensure compliance with planning controls in its area.
  2. (2) A local planning authority may decline to take enforcement action in a case where planning permission would have been granted without conditions."

The noble Lord said: My Lords, I rise to speak to my amendment about enforcement. I had not anticipated the Government's decision in their Amendment No. 143A, which has effectively side-tracked my amendment. I would like to suggest a somewhat different line of approach.

I welcome the Government's decision to take action on the long review of enforcement which ended in December 2002. The procedure envisaged of issuing stop notices is worthy of serious consideration. There is one aspect that still concerns me. Hitherto, a planning authority has had some discretion of action in enforcement matters. These authorities were often reluctant to move decisively, because they were under no statutory duty to take such action if the conditions of the planning decisions were not being fulfilled. Understandably, the local authorities preferred to spend more resources on those areas where they did have statutory obligations. Curiously, although the authorities are given extensive new powers in the government amendment, enforcement is still apparently a discretionary activity, permissible but not obligatory.

My reaction to the government amendment is that, while the extensive new powers are welcome, they should be made even better by being linked to the obligation to enforce the terms of the original planning consent as a specific statutory duty. Unless this is included, I fear that the Government's bold initiative will not produce the required results in improving our planning procedures, whatever it does to the Gypsies. I beg to move.

Lord Rooker

My Lords, notwithstanding what the noble Lord just said, the intention behind the amendment is unclear. It seems to be designed to ensure that the local planning authority exercises its powers in such a way as to ensure that breaches of planning control do not occur. The amendment appears to place a duty on local planning authorities to take enforcement action in every case where there is a breach of planning control, except where planning permission would have been granted without conditions. Currently, local planning authorities' enforcement powers are discretionary, as the noble Lord said. That issue has been considered as part of our review of the current planning enforcement arrangements on which we intend to announce the outcome of a public consultation later this year.

Local authorities have the primary responsibility for taking whatever action may be necessary in the public interest. This provides flexibility to tailor their approach to each case to fit the nature and circumstances of the alleged breach of planning control. Minor breaches can often be remedied without the need for a form of enforcement action. Indeed, often such breaches arise out of a genuine misunderstanding of the planning position or a mistaken belief that planning permission was not required.

It is important that a balance is able to be struck between situations where development, though unauthorised, is not causing particular harm and those where enforcement action is essential in order to remedy a more serious breach of control. If unauthorised development is not causing particular harm and where, had an application for planning permission been made it would have been granted unconditionally, the better approach is to invite submission for a retrospective application. The response should be proportionate to the breach alleged to have occurred.

A duty to enforce in all cases, irrespective of the nature and circumstances of the breach, would place an additional and, we think, unwarranted burden on local authorities, even in cases where planning permission would have been granted without conditions. It is important that they can target their resources on the most important cases.

Local planning authorities need to consider taking enforcement action in order to ensure compliance with planning controls in their area where a breach is brought to their attention. Obviously, complaints about alleged breaches of control should be recorded and investigated. If a local authority, having considered the circumstances of the alleged breach, has decided that enforcement is unnecessary, it should be prepared to explain and justify that decision. Failure to take enforcement action which was plainly necessary can result in a finding of maladministration by the local government ombudsman. Alternatively, it might be the subject of judicial review by the court.

A duty to take action in all cases, as this amendment seems to imply, would remove the freedom for local authorities to exercise judgment. The responsibility is on local authorities. They should be able to exercise judgment in a responsible, reasonable and, as I said, proportionate way. Therefore, I hope that the noble Lord will be satisfied that the amendment is not justified.

Lord Bridges

My Lords, I am grateful to the noble Lord, Lord Rooker, for replying so fully. I do not read the new clause that he has tabled in quite the same way that he does. I would not say that the local authority would have to take action in every case. But their tendency is not to take action even when pressed to do so. I have prepared a dossier of cases which, if we were speaking at a somewhat different hour, I might have read out one or two examples for the noble Lord. But I am fairly confident in feeling that the degree of voluntary activity left to the local authority will not produce the required results. Having said that, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Hanham moved Amendment No. 144CA: Page 114, line 19, at beginning insert "For

The noble Baroness said: My Lords, at the outset I should like to say that if the Minister was to view this amendment sympathetically and if it were to be included in the Bill at a later stage, it would affect my own borough, the Royal Borough of Kensington and Chelsea. I need to put on record that an amendment I am moving would be of interest to the borough.

The Planning and Compulsory Purchase Bill 2004 seeks to extend planning control to Crown land. However, in respect of the continuation of uses on the transfer of Crown land, the Bill reduces planning control. Amendment No. 144CA seeks to reverse that change and to provide that the continuation of a use by private interests following the disposal of Crown land requires planning permission.

In principle, if land is disposed of by the Crown a private purchaser can continue the use without requiring planning permission. That was decided in a case involving Newbury District Council; namely, Newbury District Council v Secretary of. State for the Environment [1977] J.P.L. 373. For instance, if the Crown is allowing its playing fields to be used for commercial events or other events that cause a great deal of disturbance to local residents in terms of, for example, amenity and traffic congestion, the new owner would be able to continue that use.

That problem was recognised when limited planning control over Crown land was introduced by the Town and Country Planning Act 1984. That Act provided for agreements to discontinue uses when land was disposed of by the Crown.

The 1984 Act provisions are now contained in Section 301 of the Town and Country Planning Act 1990. Section 301 provides that a local planning authority and the Crown may make an agreement with respect to a material change of use which has been made or is proposed to be made by the Crown on Crown land. The effect of an agreement is that the particular use will have to be discontinued if the land is disposed of. This is achieved by treating the particular use as having planning permission subject to a condition that the use be discontinued if the Crown cease to use the land. Planning permission will have to be sought if the use is to be carried on by private hands. The local planning authority will be able to consider whether it should continue and, if so, whether conditions should be imposed.

The Bill requires the Crown to seek planning permission for changes of use which take place after the commencement of the new Crown land provisions. It repeals Section 301 agreements, except that those agreements already made shall continue in force (page 114, Schedule 3).

The Bill, therefore, has the following effects. First, if the Crown makes a material change of use after the new provisions are in force, planning permission will be required. The planning permission may provide that the use is discontinued if the Crown ceases to use the land. Alternatively the local planning authority may be content that a private purchaser can continue the use.

Secondly, if the Crown agrees before the Crown land reforms take effect that a use shall be discontinued if it disposes of the land, the agreement continues to bite against a subsequent purchaser. Thirdly, if the material change of use occurs before the new Bill comes into force, but no agreement is in place at that time, the use can be continued by a purchaser. It will not be possible to enter into a Section 301 agreement. Consequently, the ability to control Crown land on disposal is, in an important respect, reduced because of the reforms.

Briefly, therefore, the proposed amendment provides for the discontinuance of uses of land which have not received planning permission, on their disposal by the Crown. It substitutes new text for Section 301.

Where a material change of use has taken place before the new Crown land provisions, the amendment treats the land as having had planning permission subject to a condition requiring the discontinuance of the use when it ceases to be used by the Crown. This is the same legal mechanism that is used in the present Section 301 agreements, except that the requirement will now apply automatically. Planning permission will need to be secured either by the Crown or by a private purchaser to enable the use to continue.

The amendment does not apply to post-relevant date changes of use by the Crown as planning permission will be needed for those areas and those uses. It does not affect the use of land which is disposed of by the Crown before the Crown land reforms take effect.

The final amendment in this set removes the carry over provisions for existing Section 301 agreements. These are no longer required as the amended Section 301 has the same effect. I beg to move.

Lord Rooker

My Lords, our policy is that Crown development which has been agreed under the current arrangements, as set out in Circular 1884, shall be treated as if it had planning permission granted under Part 3 of the principle Act. That is set out in paragraph 3 of Schedule 4 to the Bill. That means that authorised uses will run with the land as for any other land with planning permission. That renders Section 301 redundant, which is why we intend to repeal it.

Amendment No. 144CB in effect makes all Crown land subject to Section 301 agreements. That will mean that planning permission will have to be obtained for all disposals of developed Crown land if that use is to continue, even in the most trivial of cases. This amendment would place an unnecessary and disproportionate burden on both the Crown and the local planning authorities, and I hope that the noble Baroness's local planning authority will thank me for making sure that it does not suffer this unnecessary burden.

9.45 p.m.

Baroness Hanham

My Lords, I can assure the House categorically that my local planning authority will not be happy with that response. It is a major concern not only for my authority but for others that the use of land that has been carried out by the Crown passes automatically to a private landowner without any further permission. I think that I am right in saying that it would not have required permission in the first place, as it was Crown land.

I am disappointed with the Minister's reply. It does not get to the heart of the problem. Most planning authorities would not be upset at being required to consider again the use of land that was in Crown hands. That is what the amendment was looking for. The onus on planning authorities would not be great, because it probably would not arise that often. It is a particular problem for my authority, and it will be for others. I am disappointed that the Minister's reply was so negative on the matter. It will cause considerable problems.

I thank the Minister for his reply, and I will consider whether to return to the matter at the next stage. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 144CB and 144CC not moved.]

Clause 79 [Special provision relating to national security]:

Lord Rooker moved Amendment No. 144CCA: Page 54, line 35, leave out "such a person" and insert "a person appointed under subsection (5) or (6)

The noble Lord said: My Lords, in moving Amendment No. 144CCA, I shall speak also to Amendments Nos. 144CCB to 144CCF and to the related amendments, Amendments Nos. 144CCK to 144CCM, which deal with special advocates under the national security provisions.

I shall speak mainly to Amendments Nos. 144CCA and 144CCB, which amend the principal Act. The amendments make changes and additions to amendments already made in Section 321 of the Town and Country Planning Act 1990. That section enables the Secretary of State to direct that evidence must be withheld from a planning inquiry on the grounds of security and national interest. Where such a direction is sought, the amendments already made provide for the appointment of a special advocate to represent the interests of any parties that would otherwise be prejudiced by their inability to hear or inspect all the evidence. If a direction is made, the special advocate will represent the interests of those parties to the inquiry.

Amendment No. 144CCA is consequential on new subsection (6) of Section 321, which was substituted on Report in another place. As currently drafted in subsection (7), the Lord Chancellor's rules, which set out the special advocate's functions, would apply only when the special advocate had been appointed under the new subsection (5), which relates to occasions on which the Secretary of State is considering whether a direction should be made. The amendment makes it clear that the rules will also apply when the special advocate has been appointed for the purpose of a planning inquiry, after direction has been given, as under the new subsection (6).

With regard to Amendment No. 144CCB, noble Lords will recall that my noble friend Lord Bassam of Brighton agreed to look into specifying who should pay the special advocate, when we discussed the amendment in Committee on 5 February, as reported at cols. 896 of Hansard. Noble Lords will also recall that my noble friend said that the policy was that the Crown body that triggered the need for a Section 321 direction would pay the special advocate, who is called the "appointed person". However, we must allow for the possibility that a private person might also ask for a direction to withhold information, hence the formulation of the first subsection in Amendment No. 144CCB. The second subsection provides for the Secretary of State to determine any dispute about the fees and expenses payable to the special advocate. The third subsection provides for the amount claimed by the special advocate to be certified, whether it was agreed or determined by the Secretary of State. The fourth subsection provides that the certified amount is recoverable as a civil debt.

The provisions have been derived in part from Section 250(4) of the Local Government Act 1972, which is a general provision dealing with the Secretary of State's costs at public inquiries. The concepts in this Bill are not novel.

I turn briefly to the Scottish amendments, which are Amendment No. 114CCK to Amendment No. 144CCM in Clause 90. These make similar provisions for the Scottish principal Act. There is a variation in that both the Secretary of State and the Scottish Ministers have the power to give a direction under the new Section 265A depending on the circumstances. We therefore have provision for whoever is considering giving or has given a direction to specify who should pay the special advocate fee and settle any such disputes.

The Scottish provisions do not have to be repeated because the new Section 265A is carried through in the Scottish Listed Building and Hazardous Substance Acts by means of subsections (2) and (3) of Clause 90. I beg to move.

Baroness Hamwee

My Lords, can the Minister be any more detailed about the first paragraph in Amendment No. 144CCB? He has explained that it would allow the Secretary of State to direct that the developing department, which was the term used at the last stage, or an individual who has brought about the situation, should pay the fees. But the stipulation that any person he thinks is interested in the inquiry is wide. What, for instance, if the Secretary of State were to say, "Mr So-and-So has taken up three weeks of this inquiry with ridiculous questions and should be paying".

The term "interested in the inquiry" does not immediately suggest to me that those who may find themselves the target of the Secretary of State's direction would necessarily fall within those referred to by the Minister in his explanation. I do not know whether the Minister will be able to help tonight.

Lord Rooker

My Lords, most certainly not. I believe that the noble Baroness has put an interpretation on the subsection which is wholly unjustified. The noble Baroness does not trust my right honourable friend the Secretary of State and that has been apparent throughout the passage of the Bill. She believes that he will always behave unreasonably. I have not got a chapter and verse explanation as to whether he would direct any person whom he thinks is interested in the inquiry. That would be legally binding. There will be chapter and verse in making sure that he gets the correct person and not the incorrect one, to pay the fees and expenses of the appointed person. If there is anything else I need to say, or if it is necessary for me to write to the noble Baroness, I shall do so.

Baroness Hamwee

My Lords, with the leave of the House, and as I have said before, it is not the Minister's right honourable friend whom I distrust necessarily. It may be somebody else's right honourable friend when it has to be applied. It is not a question of trusting; it is a question of what the legislation actually provides.

If Parliament says that this is what the legislation should say, it would be perfectly reasonable for a future Secretary of State to use it in any way which falls within what we appear to be about to agree.

On Question, amendment agreed to.

Lord Rooker moved Amendments Nos. I44CCB to 144CCF: Page 54, line 38, at end insert— () If a person is appointed under subsection (5) or (6) (the appointed person) the Secretary of State may direct any person who he thinks is interested in the inquiry in relation to a matter mentioned in subsection (4) (the responsible person) to pay the fees and expenses of the appointed person. () If the appointed person and the responsible person are unable to agree the amount of the fees and expenses, the amount must be determined by the Secretary of State. () The Secretary of State must cause the amount agreed between the appointed person and the responsible person or determined by him to be certified. () An amount so certified is recoverable from the responsible person as a civil debt. Page 55, line 12, leave out "such a person" and insert "a person appointed under sub-paragraph (7A) or (7B)"

Page 55, line 15, at end insert— () If a person is appointed under sub-paragraph (7A) or (7B) (the appointed person) the Secretary of State may direct any person who he thinks is interested in the inquiry in relation to a matter mentioned in sub-paragraph (7) (the responsible person) to pay the fees and expenses of the appointed person. () If the appointed person and the responsible person arc unable to agree the amount of the fees and expenses, the amount must be determined by the Secretary of State. () The Secretary of State must cause the amount agreed between the appointed person and the responsible person or determined by him to be certified. () An amount so certified is recoverable from the responsible person as a civil debt. Page 55, line 32, leave out "such a person" and insert "a person appointed under sub-paragraph (7A) or (7B) Page 55, line 35, at end insert— () If a person is appointed under sub-paragraph (7A) or (7B) (the appointed person) the Secretary of State may direct any person who he thinks is interested in the inquiry in relation to a matter mentioned in sub-paragraph (7) (the responsible person) to pay the fees and expenses of the appointed person. () If the appointed person and the responsible person are unable to agree the amount of the fees and expenses, the amount must be determined by the Secretary of State. () The Secretary of State must cause the amount agreed between the appointed person and the responsible person or determined by him to be certified. () An amount so certified is recoverable from the responsible person as a civil debt.

Schedule 5 [Crown application: Scotland]:

Lord Bassam of Brighton moved Amendments Nos. 144CCG. 144CCH and 144CCJ: Page 121, line 42, at end insert "(including any enactment comprised in, or in an instrument made under, an Act of the Scottish Parliament) Page 122, line 17, at end insert "(including any enactment comprised in, or in an instrument made under, an Act of the Scottish Parliament) Page 122, line 29, at end insert "(including any enactment comprised in, or in an instrument made under, an Act of the Scottish Parliament)

The noble Lord said: My Lords, I shall attempt to be brief. I shall move these three amendments and speak also to Amendment No. 144CCN and Amendments Nos. 154 to 160. These relate to the Scottish provisions of the Bill on the removal of Crown immunity and in particular to the commencement of these provisions.

Amendments Nos. 144CCG to 144CCJ relate to Schedule 5 of the Bill on Crown Application: Scotland. Paragraphs 10, 11 and 13 of the schedule contain powers to amend statutory provisions relating to applications for planning permission, conservation areas, listed building consents and hazardous substances consents made by or on behalf of the Crown. These powers allow us to amend the statutory provisions where they might be inappropriate when applied to applications by the Crown. There are equivalent powers in Schedule 3 relating to England and Wales.

Given the lateness of the hour, I propose to say no more on the matter. The amendments are quite straightforward. I will be happy to take questions on particular amendments, if that would be convenient to noble Lords. I beg to move.

Lord Bassam of Brighton moved Amendment Nos. 144CCH and 144CCJ: Page 122, line 17, at end insert "(including any enactment comprised in, or in an instrument made under, an Act of the Scottish Parliament) Page 122, line 29, at end insert "(including any enactment comprised in, or in an instrument made under, an Act of the Scottish Parliament)

Clause 90 [Special provision for certain circumstances where disclosure of information as to national security may occur: Scotland]:

Lord Bassam of Brighton moved Amendments Nos. 144CCK to 144CCM: Page 65, line 17, at end insert "and as to the functions of a person appointed under subsection (5) Page 65, line 20, at end insert "and as to such functions Page 65, leave out line 21 and insert—

  1. (a) under paragraph (a) of subsection (5) and either no direction in relation to the evidence in question has been given under subsection (3) or any such direction so given has been given by the Secretary of State, the Secretary of State may direct any person who he thinks,
  2. (b) under paragraph (a) of subsection (5) and such a direction has been given under subsection (3) by the Scottish Ministers, the Scottish Ministers may direct any person who they think,
  3. (c) under paragraph (b) of subsection (5) and the direction referred to in that paragraph was given by the Secretary of State, the Secretary of State may direct any person who he thinks,
    4. 244
  4. (d) under paragraph (b) of that subsection and the direction so referred to was given by the Scottish Ministers, the Scottish Ministers may direct any person who they think,
is interested in the inquiry in relation to a matter mentioned in subsection (4) (the responsible person) to pay remuneration or allowances to, and to reimburse any expenses incurred by, the appointed person.
  1. (a) paragraph (a) or (c) of subsection (6A). the amount must be determined by the Secretary of State,
  2. (b) paragraph (b) or (d) of that subsection, the amount must be determined by the Scottish Ministers.

Clause 97 [Subordinate legislation: Scotland]:

Lord Bassam of Brighton moved Amendment No. 144CCN: Page 72, line II, at end insert— ()In subsection (3), "instrument" includes an instrument made under an Act of the Scottish Parliament.

Clause 98 [Compulsory acquisition of land for development etc]:

Lord Hanningfield moved Amendment No. I 44CD: Page 72, line 21, leave out "think" and insert "have reasonable grounds to believe

The noble Lord said: My Lords, these amendments concern local authorities' powers to acquire land compulsorily. In principle, as the Minister knows, I am in favour of anything that widens the powers of local authorities. There is no doubt that the current provisions in the Bill do that. However. I also recognise that powers such as compulsory purchase must strike a delicate balance between the needs of local authorities and the rights of private individuals.

Local authorities already enjoy significant powers to enable them to purchase land compulsorily for the purpose of development, redevelopment or improvement. On this occasion we must pay heed to the significant unease regarding the new provisions, expressed by those sectors of the community most likely to be affected.

Both the National Farmers Union and the Country Landowners' Association have publicly opposed the provisions in the Bill. I am keen to avoid making the lives of local authorities more difficult because the new provisions are widely opposed and discredited. There is clearly a danger of that happening, and such an outcome would be very unfortunate in an area that is obviously sensitive and requires delicate handling.

The amendments that I have tabled are supported by both the NFU and the CLA. They expand on the current provisions for local authorities regarding compulsory purchase but also offer the safeguards that the NFU and CLA are keen to see maintained in the system. In the long run it would be in the interests of local authorities to work within a framework of powers that are broadly supported by the communities affected. These amendments will achieve that balance. I beg to move.

Baroness Hamwee

My Lords, I support the amendments. The Minister may say that the purpose of the first and third amendments, which would delete the term "think", will be met by the requirement that a local authority's decision is reasonably based on Wednesbury principles. In the House of Commons, the Minister simply said that that was implicit; perhaps the Minister in this House can be clearer.

On Amendment No. 144CE, it was said that there were adequate safeguards against the wide provision for facilitating in the Acquisition of Land Act 1981. But that does not seem to explain why it is necessary to use the term "facilitate" rather than have the test of necessity; nor does it say why it is no longer necessary for there to be any obligation to have regard to any plan.

When the Country Land and Business Association contacted me, I asked what was its understanding of this change in the legislation. I hope that I am not putting too many words into its mouth, but, as an active member of the Government's own consultative group, it was still unclear and unconvinced. In response to my question whether the association had had any correspondence with the Office of the Deputy Prime Minister, it sent me a letter in which the ODPM expresses its concern that to replace "will facilitate" by "is necessary for" would impose a more onerous requirement on the local authority; that a requirement to determine what is necessary would introduce less certainty; and that there would be difficulties in determining what is necessary. Are those terms any less clear than what is in the current Section 2261A of the 1990 Act, which uses the term "required": required in order to secure the carrying out of development, redevelopment, or improvement'"? Or: required for the purpose for which it is necessary to achieve in the interests of proper planning of an area". I do not immediately see—nor, indeed, have I thought about it for a bit—that there is a difference between the two terms "necessary" and "required", and why one is less certain than the other.

I asked the Country Landowners' Association why it thought the clause was in the Bill. I expected to hear that there would be problems about ransom strips and so on. They were not able to help me on this. I hope that the Minister can.

10 p.m.

Lord Rooker

My Lords, I will, but it will take some time as I insist on having a proper reply to the lengthy submission of the CLA and the NFU. Having read it myself, and asked for extra notes to be prepared, I am damned it' I am not going to use them.

I am certain that there is a satisfactory answer. The whole point of Clause 98 is that it clarifies, in simpler terms, the existing planning compulsory purchase powers. By referring to the acquiring authority "thinking" that the necessary circumstances apply, the authority is required to have a belief in what it is doing. We think that this is right and the word "think" should remain. I cannot see what distinction colleagues would seek to make by amending "think" to "have reasonable grounds to believe" except that it does not express what is required so simply.

Local authorities are subject to the overriding requirement that their decisions are justifiable as reasonable in all circumstances. It is therefore superfluous, unnecessary and complicated to add this. The reference to "think" has been used extensively in other parts of the Bill. I am not going to refer to them all. In my letter of 18 February which was sent to noble Lords and noble Baronesses, I also referred to the use of the word "think" elsewhere in the Bill, in the light of questions about whether this was a suitable term for legislation. As that letter explained, an electronic search of the UK statutes database revealed 7,897 uses of the word "thinks", and gave examples.

Amendment No. 144CE seeks to replace "will facilitate" by "is necessary for". While seeking to impose a more onerous requirement on the local authority, the amendment in fact introduces less certainty by imposing a requirement to determine what is meant by "necessary". It may be trying to suggest that there has to be an absolute necessity, but having regard to what, and how would that be assessed?

It may be that the noble Baroness is concerned that acquiring authorities will exercise their compulsory purchase powers in an unreasonable manner. There are, however, already perfectly adequate safeguards—by way of judicial review and challenge—to ensure that authorities act reasonably and cannot acquire land compulsorily unless it is in the public interest to do so. There is also the safeguard that any compulsory purchase order has to be confirmed by the relevant Secretary of State, which I will return to in a moment.

Clause 98 will require a local authority to show why it thinks that the development, redevelopment or improvement for which the land is to be acquired would be likely to contribute to the achievement of the promotion or improvement of the economic, social and/or the environmental well-being of its area.

"Development" is the usual definition contained in the planning legislation. In seeking to use its compulsory purchase powers as a mechanism for implementing its duty of well-being through that means, a local authority will need to be able to establish why it thinks that the compulsory acquisition of the land concerned will contribute to a achieving that objective.

For an authority to be able to demonstrate conclusively that the acquisition is justified to secure the well-being of their area, they will need to be able to show that it is in accordance with their up-to-date planning proposals prepared in full consultation with those living and working in the area. These may, for example, be in the community strategy or the pathfinder area prospectus. Ideally, these policies will already have been given a spatial dimension in the authority's development plan. But where there has not yet been time to update that to reflect the current proposals for which the land is required, it does not make sense to delay the acquisition of the land until such time as it is.

Secondly, as I mentioned, in order to be implemented, a compulsory purchase order has to be confirmed by the Secretary of State. He has not only to be satisfied as to the statutory grounds for making the order, but he also has a discretion as to whether to confirm. This is an important safeguard because the Secretary of State acts as an impartial adjudicator of whether the compulsory acquisition of an owner's land is truly justified in the public interest. In exercising his discretion, the Secretary of State must have regard in particular to whether the public interests in compulsorily acquiring the land outweigh the interests of the owners and occupiers in retaining their land. Such owners and occupiers who object will have had an opportunity to make representations at a public inquiry.

Thirdly, if the Secretary of State does not have proper grounds for confirming a compulsory purchase order, an aggrieved party may challenge its validity in the High Court, which has the power to quash it. I realise that that is a daunting and potentially expensive prospect for any potential litigant, but its value is as a safeguard to ensure that decisions are not taken frivolously.

Clause 98 enables a local authority to acquire compulsorily land which it thinks will facilitate the carrying out of development, redevelopment or improvement as a means of bringing economic, social or environmental benefit to its area. It will assist authorities to fulfil their duties under Section 2 of the Local Government Act 2000 to promote the economic, social and environmental well-being of its area. Local authorities have welcomed that.

I hope that the noble Baronesses are now reassured that while Clause 98 will make compulsory purchase an effective tool to help authorities to fulfil their duty of well-being, there are more than adequate safeguards in the compulsory purchase process to ensure that acquiring authorities act at all times reasonably, having regard to the balance which needs to be struck between public and private interests.

I apologise for the length of my reply, but I think it was worth making in view of the quite substantial and detailed note from the CLA and NFU which I read yesterday. I asked for my notes to be extended to take account of it.

Lord Hanningfield

My Lords, I thank the Minister for that very detailed reply. We have previously pointed out the problem of using the word "think" in this legislation and other legislation, as the Minister said. Such usage is unsettling to outside organisations as they do not always understand what the Government and the legislation mean by the word "think". The Minister has given a detailed reply which we, the CLA and the NFU will read. We will see if those organisations are sufficiently reassured by the reply. I thank the Minister and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 144CE and 144CF not moved.]

Clause 100 [Procedure for authorisation by a Minister]:

Lord Rooker moved Amendment No. 144D: Page 78, line 7, leave out "appropriate authority" and insert "Minister

Lord Rooker moved Amendments Nos. 144E to 144W: Page 78, line 8, leave out "it" and insert "he Page 78, line 26, leave out "appropriate authority" and insert "Minister Page 79, line 18, leave out "appropriate authority" and insert "Minister Page 79, line 19, leave out "it has considered the objection and either" and insert—

  1. "(a) the appropriate authority has considered the objection, and
  2. (b) one of the conditions in sub-paragraph (5A) is satisfied.
(5A) The conditions are Page 79, line 20, leave out "it" and insert "the appropriate authority Page 79, line 20, leave out ", or Page 79, line 23, leave out "it" and insert "the appropriate authority Page 79, line 38, leave out "appropriate authority" and insert "Minister Page 79, line 43, after first "the" insert "Minister or. if there is a remaining objection in respect of the order, the Page 79, line 47, leave out "appropriate authority" and insert "Minister Page 80, line 2, leave out "appropriate authority" and insert "Minister Page 80, line 3. leave out "complying" and insert "the appropriate authority has complied Page 80, line 4, leave out "it" and insert "he Page 80, line 4, leave out "complying" and insert "the appropriate authority having complied Page 80, line 5, leave out "it" and insert "he Page 80, line 7, leave out "appropriate authority" and insert "Minister Page 80, line 8, leave out "it" and insert "he

Lord Hanningfield moved Amendment No. 145: After Clause 108, insert the following new clause— "RETURN OF LAND TO FORMER OWNER The Secretary of State may by regulation make provision regarding the return of land to its former owner by way of sale if—

  1. (a) acquired by or under the threat of compulsory purchase; and
  2. (b) which was no longer required for the purpose for which it was acquired."

The noble Lord said: My Lords, with this amendment we return again to the issue of the Crichel Down rules. I am grateful to the noble Lord, Lord Rooker, for the letter in which he set out the next steps to be taken by the Government on this issue. These will include considering recommendations based on an analysis of their recent consultation on changes to the rules and then publishing a new circular setting out revised non-statutory rules as an interim measure.

We welcome these moves. However, we do not see why our amendment would undermine that process. We appreciate that there is still rather a lot of work to do to work out the terms of the effects, especially in terms of costs on local authorities and others to whom the rules are only commended. We do not want unnecessarily to increase the administrative burden on local authorities.

I set out in Committee why we felt that there was a lot of confusion and inconsistency of application surrounding the Crichel Down rules and why we felt that this amendment represented an important opportunity to put into primary legislation a provision regarding their improvement. So 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 give the Secretary of State an order-making power in terms of the application of the Crichel Down rules. It would not force him either to exercise that power or prevent the Government from introducing a more comprehensive set of changes to the Crichel Down rules at a later date. Certainly, we do not believe that this amendment either prejudges the analysis of the consultation or prevents parallel changes that Wales might want to apply. Without the amendment, I wonder how long it will be before the Crichel Down rules make it on to the statute book. I beg to move.

Lord Rooker

My Lords, as the noble Lord said, following our debate on 5 February, I wrote to him on 12 February setting out fully our reasons why in our view it would be premature at this stage to put in train primary legislation. The letter was copied to other noble Lords and placed in the Library. I do not intend to repeat its contents because they are now on the record.

Given where we are now in our review of the Crichel Down rules, we think that it would be premature to embark on primary legislation when we have not fully worked out all the necessary detail and the potential impact on disposing authorities. We need to give further thought to the scope of the legislation, including discussing parallel arrangements for the National Assembly for Wales. In particular, we need to consider how wide a power we should give to the Secretary of State: whether it should be open-ended or constrained by a statement of principles.

We are committed to rectifying the deficiencies in the current non-statutory system, which is why our first step will be to revise and update the current rules. I cannot go beyond what I set out in my letter, but I suspect that I may be required to give a further update at Third Reading, which I shall be happy to do if that is desired.

Lord Hanningfield

My Lords, I thank the Minister for that reply and for his suggestion that he will return to it at Third Reading. As I said earlier about the Crichel Down rules, I think that the Government announced a review something like six years ago. We are concerned that this may go on for another six years. I think that we should try to use the opportunity provided by this legislation to take a step forward.

However, I thank the Minister for his suggestion that he will come back to the matter at Third Reading. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 110 [Crown]:

Lord Bassam of Brighton moved Amendment No. 145A: Page 96, line 20, leave out subsection (2) and insert— (2) The amendment of an enactment by or by virtue of Part 8 applies to the Crown to the extent that the enactment amended so applies.

The noble Lord said: My Lords, I shall be brief so that I can spend more time on the next set of amendments. This amendment has become necessary as a result of noble Lords agreeing in Committee that Clause 109 should be inserted into the Bill to enable the Secretary of State to make an order amending any enactment where this is necessary to bring it in line with the provisions in Part 8. I beg to move.

Clause 114 [Grants for advice and assistance]:

Baroness Wilkins moved Amendment No. 146: Page 98, line 24, at end insert— () The appropriate authority may also make grants for the purpose of assisting any person to provide advice and assistance to regional planning bodies, local planning authorities and developers in connection with access issues for disabled people arising from planning applications, local development plans and frameworks and regional spatial strategies.

The noble Baroness said: My Lords, Amendment No. 146 would provide for central government funding to support local access groups in the same way that grants are to be made available to Planning Aid.

In Committee I asked whether the current wording of this clause would allow the Secretary of State and the National Assembly for Wales to give grants to local access groups, a question that I am not sure was answered. My noble friend on the Front Bench replied saying that there could be some potential unintended consequences of the proposed wording of my original amendment. Consequently the wording has been revised to rule that out. My noble friend did say that he was not unsympathetic to the aim of my amendment, and I hope that he will now elaborate.

Would my noble friend consider reinstating government funding for local access groups, withdrawn in 1998, given the renewed emphasis which government guidance places on consultation with local access groups for building awareness of inclusive design and assisting developers and local authorities alike to achieve inclusively designed buildings?

The ODPM's recent good practice guidance speaks of the importance of developers and local authorities liaising with access groups to achieve the most appropriate solutions for disabled people. It exhorts local access groups to build awareness of inclusive design issues within local authorities and to assist with training. Surely it is unreasonable to expect access groups to fulfil such key functions without providing any financial support from government.

Many local access groups, as I argued in Committee, run on fresh air and enthusiasm and face an uncertain and unsustainable future. Many local authorities help with funding or support in kind, but it simply does not go far enough and many disabled people fund participation out of their own pockets. In the disability movement, there is a saying, "Nothing about us without us". Local access groups made up of local disabled people provide disabled people with a voice and a direct input into the system in a way which no other organisation can.

I repeat a further point made in Committee: Planning Aid could not, and does not intend to, fulfil the remit of supporting local access groups. Therefore, a separate funding stream is essential.

I urge my noble friend the Minister to follow the example set by the Scottish Executive. Following an earlier grant to set up an umbrella organisation under the auspices of the Scottish Disability Equality Forum to provide support for local access panels, the Scottish Executive has recently announced an award of £525,000 for local access panels. This is to be distributed by the umbrella body to the 43 functioning access panels in Scotland, which means that each will receive about £12,000.

The Disability Rights Commission is currently undertaking research scoping the location, resources and experiences of existing local access groups, which will include recommendations on funding needs. Can my noble friend the Minister give me an assurance that serious consideration will be given to implementing any recommendations on funding stemming from this research? I beg to move.

10.15 p.m.

Lord Lucas

My Lords, I support this amendment totally. It would be immensely useful to anyone who wants to achieve the object of making more accessible the developments with which they are involved. Individuals cannot be expected to know what best practice is, the alternatives, the options, or what new thoughts have been developed elsewhere in the country on how facilities might be provided. It is extremely difficult, as an individual faced with a problem, to find sources of advice. I tried the other day to find a source of advice on how the Disability Discrimination Act applies to schools. Nobody could tell me. I talked to people at the Disability Rights Commission, but they did not know. There is no one to talk to. You could pay a solicitor several hundred pounds an hour, but they would not even recommend a particular solicitor. You can face such problems and try to search for some friendly advice, but simply be unable to find any. There are no signposts and nowhere to turn. It is extremely frustrating when you are trying, essentially, to do good.

I hope that the Government will see their way to funding such resources so that anybody who is involved in the development process and wants to help to make progress in the direction of increased access for the disabled and others is able to do so efficiently and quickly.

Lord Bassam of Brighton

My Lords, the noble Baroness, Lady Wilkins, is right: I expressed considerable sympathy for the amendment in Committee. I remain sympathetic, not least because in good measure what the Government are already doing goes some way to meet the point, particularly on funding, which is probably at the core of this amendment.

The amendment would allow grant to be made to a person for the provision of advice and assistance to regional planning bodies, local planning authorities and developers in connection with access issues for disabled people arising from the planning process. The purpose of draft Clause 114 is to allow the Secretary of State or the National Assembly for Wales to give grants such as planning aid to bodies which provide advice and assistance to members of the public on all aspects of the planning process. It will enable Planning Aid to become more proactive and will develop a greater role in targeting communities which traditionally do not get involved in the planning system, including disabled people and disability groups.

It is not our intention to give grants to those who provide advice to bodies which have the resources and expertise to manage the planning issues with which they are dealing, such as local authorities and regional planning bodies; nor to those which provide advice to developers.

Our good practice guide on planning and access for disabled people which was published last March following a recommendation by the Disability Rights Task Force already advises that each local authority should seek to appoint an access officer. I think I can fairly say that the better authorities—I am sure that they have some representation in the Chamber this evening—already attempt to achieve that very important objective. As a minimum, it recommends that each local authority should be able to call on appropriate professional advice whenever necessary, either through information and resource sharing with other local authorities or by the appointment of consultants with the appropriate experience. That guide also recommends that developers should appoint access specialists to their design teams. To assist this, the National Register of Access Consultants is a resource for building owners, occupiers, developers or planners seeking advice on a inclusive environment.

We recognise the valuable service that local access groups can provide to local authorities, regional planning authorities and developers by giving them the benefit of their personal and practical experience. But this service should not be used by organisations and private companies which have resources as a substitute for an access officer or specialist. We appreciate that most local access groups operate, as has been said, on a voluntary basis. That is why we advise local authorities in the guide not to place too large a burden upon them.

In our view, it should not be beyond the resources of the local authorities or the regional planning bodies and developers to pay the expense of access group volunteers or to support the group with contributions when they call on their service. I say that because, through the planning delivery grant, the Government have made an extra £50 million available to local authorities in the current financial year to improve their planning services. A further planning delivery grant of £130 million in 2004–05 and £170 million in 2005–06 is being made available. There has thus been a considerable expansion of resource which we think should be used in part to enable better representation to be made by access group volunteers.

The planning delivery grant is designed to drive performance improvement but not at the expense of quality. The grant is not ring fenced and can be spent as authorities see fit. The employment of an access officer could and. one might argue, should be financed through the grant. That is the direction our guidance suggests. Similarly, local authorities could use the grant to contribute to local access groups.

Our case is this: we are putting extra money into the planning delivery process. It is our belief that the decision on how that resource should be used should be made locally. We identify the need identified by the noble Baroness in her amendment and we hope that the extra grant that we have been making available to local authorities could and should in part be used so that access officers are taken on by local authorities so that they can match and meet best practice in this specialist area of planning expertise.

For those reasons, I hope that the noble Baroness will feel able to withdraw her Amendment No. 146. I was interested in the Scottish example. I had not been aware of that, but it is clearly something that we could consider. We should obviously look also at any follow-up research that has been undertaken to assess its impact.

I hope that it is more than sympathy. It is backed by a solid cash commitment and a desire by the Government to see improvements regarding quality and access for groups which have been in the past excluded.

Baroness Wilkins

My Lords, I thank the noble Lord, Lord Lucas, for his kind support and the Minister for his reply which I found extremely disappointing. The extra money towards local authorities to provide access officers is welcome. However, an access officer in a local authority is a very lone person without the support of an access group to advise him and to deal with the huge variety of developments which he meets. I know that from my own local authority which has a good access officer but he is desperately in need of the support of a local group. Volunteers need training and informing. An access group run on the basis of volunteers is bound not to be as well informed as one which is sufficiently resourced.

I hope that the Government will consider the Scottish example. Although I am happy to withdraw the amendment, I shall return to the issue at Third Reading.

Amendment, by leave, withdrawn.

Schedule 6 [Amendments al the planning Acts]:

Lord Rooker moved Amendment No. 146A: Page 127, line 12, leave out paragraph 4.

The noble Lord said: My Lords, in moving the amendment, I speak also to Amendments Nos. 148A, 148B, 148C, 152 and 153.

Following amendments made to the Bill in Committee in this House which gave county councils a statutory role in the revised planning system in relation to regional spatial strategies, it has been decided that the provisions relating to statutory consultation between local planning authorities, regional planning bodies and county councils on planning applications would sit better on the face of the Bill in primary legislation rather than secondary legislation. That is the purpose of the amendments. I beg to move.

Lord Hanningfield

My Lords, I thank the Minister very much. It seems that our work on the early parts of the Bill has paid off. I thank him for the amendments. We agree with him on them.

Baroness Hamwee

My Lords, I join in the thanks. At the risk of being told that I do not trust anyone—it is not a matter of trust—perhaps I may ask a question on sub-paragraph (3)(a) which refers to, a development which would by reason of its scale or nature or the location … be of major importance". Is it intended by the Government to define that more closely through regulations or other means? "Major importance" may be in the eye of the beholder.

The example which came to my mind when I read the amendment—it is not an exact comparison is that the Mayor of London is entitled to direct refusal of certain planning applications. Those are basically strategic and major applications. They are defined carefully in secondary legislation. Is it a matter which will be left open to interpretation? I am not sure how I would define it more closely but I can envisage that there could be scope for argument.

Lord Rooker

My Lords, there is always scope for argument, even at the last minute when you look a gift horse in the mouth. I do not know. The provision is drafted fairly widely but whoever uses that subparagraph would have to make the case for a development. It refers to scale, nature or location. It could be small scale in an important location. There could be mix and match as a matrix. It is a little like the elephant on the doorstep: you cannot describe it but when you see it you recognise it. I cannot be more specific about that. Throughout the passage of the Bill, noble Lords have been asking us to put stuff on the face of the Bill, and here am I lifting a load of stuff from regulations on to the face of the Bill and I am still being queried.

I do not have an answer for the noble Baroness. In due course it may be a matter for the courts to decide if someone does not like it. The definition is fairly wide, but it does not mean that you can do what you want. You are restricted by having to define the scale, location and nature.

On Question, amendment agreed to.

10.30 p.m.

Baroness Hamwee moved Amendment No. 146B: Page 127, line 15, at end insert— Sections 82 to 87 (simplified planning zones) are omitted and Schedule 7 (simplified planning zones) is omitted.

The noble Baroness said: My Lords, this amendment is consequential on Amendment No. 139. I beg to move.

[Amendments Nos. 147 and 148 not moved.]

Lord Rooker moved Amendments Nos. 148A and 148B: Page 130, line 25, leave out sub-paragraph (4) and insert— () For paragraph 7 there is substituted the following paragraph— 7 (1) A local planning authority must not determine an application for planning permission to which the consultation requirements apply unless it complies with sub-paragraph (7). (2) The consultation requirements are—

  1. (a) consultation with the RPB for the region in which the authority's area is situated if the development is one to which sub-paragraph (3) applies;
  2. (b) consultation by a district planning authority with the county planning authority for their area if the development is one to which sub-paragraph (4) applies
(3) This sub-paragraph applies to—
  1. (a) a development which would by reason of its scale or nature or the location of the land be of major importance for the implementation of the RSS or a relevant regional policy, or
    2. 256
  2. (b) a development of a description in relation to which the RPB has given notice in writing to the local planning authority that it wishes to be consulted.
 (4) This sub-paragraph applies to—
  1. (a) a development which would materially conflict with or prejudice the implementation of a relevant county policy,
  2. (b) a development in an area in relation to which the county planning authority have given notice in writing to the district planning authority that development is likely to affect or be affected by the winning and working of minerals, other than coal,
  3. (c) a development of land in respect of which the county planning authority have given notice in writing to the district planning authority that they propose to carry out development,
  4. (d) a development which would prejudice a proposed development mentioned in paragraph (c) in respect of which notice has been given as so mentioned,
  5. (e) a development of land in relation to which the county planning authority have given notice in writing to the district planning authority that it is proposed to use the land for waste disposal, or
  6. (f) a development which would prejudice a proposed use mentioned in paragraph (e) in respect of which notice has been given as so mentioned.
 (5) The consultation requirements do not apply—
  1. (a) in respect of a development to which sub-paragraph (3) applies if the RPB gives a direction authorising the determination of the application without compliance with the requirements;
  2. (b) in respect of a development to which sub-paragraph (4) applies if the county planning authority gives a direction authorising the determination of the application without compliance with the requirements.
 (6) A direction under sub-paragraph (5) may be given in respect of a particular application or a description of application. (7) If the consultation requirements apply the local planning authority—
  1. (a) must give notice to the RPB or county planning authority (as the case may be) (the consulted body) that they propose to consider the application,
  2. (b) must send a copy of the application to the consulted body, and
  3. (c) must not determine the application until the end of such period as is prescribed by development order beginning with the date of the giving of notice under paragraph (a).
 (8) Sub-paragraph (7)(c) does not apply if before the end of the period mentioned in that sub-paragraph—
  1. (a) the local planning authority have received representations concerning the application from the consulted body, or
  2. (b) the consulted body gives notice that it does not intend to make representations.
 (9) A relevant regional policy is—
  1. (a) a policy contained in a draft revision of the RSS which has been submitted to the Secretary of State in pursuance of section 6(6) of the 2004 Act, or
  2. (b) a policy contained in a structure plan which has effect by virtue of paragraph 1 of Schedule 8 to the 2004 Act.
 (10) A relevant county policy is—
  1. (a) a policy contained in a local development document which has been prepared in accordance with a minerals and waste scheme and submitted to the Secretary of State in pursuance of section 20(1) of the 2004 Act or adopted by the county planning authority in pursuance of section 23 of that Act, or
    2. 257
  2. (b) a policy contained in a structure plan which has effect by virtue of paragraph 1 of Schedule 8 to the 2004 Act.
 (11) RPB and RSS must be construed in accordance with Part 1 of the 2004 Act. (12) The 2004 Act is the Planning and Compulsory Purchase Act 2004." Page 132, line 24, leave out paragraph 28.

Schedule 8 [Transitional Provisions: Parts 1 and 2]:

Lord Rooker moved Amendment No. 148BA: Page 144, line 15, at end insert— The Secretary of State may by regulations make provision—

  1. (a) for treating anything done or purported to have been done for the purposes of Part 2 before the commencement of that Part as having been done after that commencement;
  2. (b) for disregarding any requirement of section 19 in respect of anything done or purported to have been done for the purposes of any other provision of Part 2."

The noble Lord said: My Lords, the amendment makes provision for local planning authorities to work on preparation of development plan documents before the Bill is commenced. It enables the Secretary of State to prescribe in regulations that actions taken before commencement of the Bill but carried out in pursuance of Part 2 of it will count towards the preparation of development plan documents. I beg to move.

Schedule 9 [Repeals]:

Lord Rooker moved Amendment No. 148C: Page 145, leave out lines 22 and 23.

[Amendment No. 149 not moved.]

Baroness Hamwee moved Amendment No. 149A: Page 145, leave out line 26.

[Amendments Nos. 150 and 151 not moved.]

Lord Rooker moved Amendments Nos. 152 and 153: Page 146, line 4, leave out "4(2) and 7 Page 146, leave out lines 16 and 17.

Clause 120 [Commencement]

Lord Rooker moved Amendments Nos. 154 and 155: Page 100, line 5, after "subsections" insert "(2B), Page 100, line 16, at end insert—

Clause 121 [Regulations and orders]:

Lord Rooker moved Amendments Nos. 156 to 158: Page 100, line 41, leave out "120" and insert "120(11" Page 100, line 41, at end insert— () an order under section 120(2B); Page 101, line 7, at end insert—

Clause 123 [Extent]:

Lord Rooker moved Amendments Nos. 159 and 160 Page 101, line 20, leave out from "sections" to "extend" and insert "110(1), 117(2), 119 to 121, this section and section 124 Page 101, line 22, leave out ", 118(2) and Schedule 5" and insert "and 118(2)

House adjourned at twenty-seven minutes before eleven o'clock.

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