Planning and Compulsory Purchase Bill

HL Deb 25 March 2004 vol 659 cc865-946

3.42 p.m.

Read a third time.

Clause 2 [Regional Spatial Strategy]:

Baroness Maddock moved Amendment No. 1: Page 1, line 11, at end insert— ( ) The RSS will set the spatial framework for the strategies of the regional development agency in its region.

The noble Baroness said: My Lords, I beg to move Amendment No. 1. I feel like I am playing ping-pong with my noble friend Baroness Hamwee, because I dealt with this in Committee, she dealt with it on Report, and we are back to it here on Third Reading. I hope that the Government will be persuaded to move today at our third time of asking.

This is a very simple amendment. It would ensure that the regional spatial strategy sets the overarching spatial framework for all other regional strategies within a region. I emphasise the word "spatial". If the regional spatial strategy is to be a truly spatial framework, it should, by definition, integrate all regional level strategies and set the framework within which those strategies can operate.

The Bill fails to do this. It would perpetuate an unhelpful tension between the narrow pursuit of economic growth by the regional development agencies—which often do not regard environmental consequences—and the wider spatial planning objectives such as urban renewal.

On Report, the Minister indicated that the Government were very supportive of the amendment. There was some discussion about whether we were setting a hierarchy. I do not think that we are. Not all strategies are spatial strategies, but we need a spatial strategy at the head. I would not interpret it in that way.

As we have heard many times during the debates on the Bill, the Government might agree with us but they do not think that it is the right place to put it, or they do not want to include it in the Bill. That is what the Government said last time.

I repeat, draft planning policy statement 11, which deals with regional planning, is not clear on this point. It needs to be made clear on the face of the Bill. If we are serious about people working together and the strategies feeding into each other at regional level, this is vitally important. I beg to move.

The Deputy Speaker (Baroness Thomas of Walliswood)

My Lords, with the permission of the House, before I continue the process, I have to notify the House of a mistake in the figures announced for those voting Not-Content in Division No. 4. The correct figure is 104, not 103, but that of course does not affect the result.

The Minister of State, Office of the Deputy Prime Minister (Lord Rooker)

My Lords, as the noble Baroness says, we have been round this course not once, but twice. I have no objection to doing it a third time, but I do not think we need to spend much time on it because there is not a great division between us.

We have covered this ground before, and on the basis of what I have said previously, I am clear that the amendment does not seek to create a hierarchy of regional strategies with the regional spatial strategy at the top. I agree that the regional spatial strategy should set the spatial framework for other regional strategies in the region, including the regional economic strategy. Draft planning policy statement 11 says that.

The document also makes it clear that this is an iterative relationship, with the regional spatial strategy reviews needing to take account of these other strategies. This is not an easy model to prescribe in legislation. The issue is whether amending the Bill is necessary and would help achieve what we are agreed is the policy aim. I genuinely do not think that we need any additional provisions in the Bill to secure this, as it is already an intrinsic part of the system.

Baroness Maddock

My Lords, I thank the Minister for that clear and precise answer. There is obviously a difference of opinion between the Minister and ourselves—and a number of people outside the House. I hope that what the Minister says is right, and that this works out as we would all like it to.

I am conscious of the time—and the time that we have spent on this matter—and I hope that the Minister's statements will back up what is in planning policy statement 11 when it is eventually finalised. For the present, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 5 [Assistance from certain local authorities]:

Baroness Hamwee moved Amendment No. 2: Page 2, line 39, at end insert— ( ) The RPB shall publish its response to advice given in accordance with subsection (2), and in the case of advice from an authority relating to the preparation of a draft revision of the RSS which it does not accept, the RPB shall discuss the matter with the authority before a examination in public of the draft revision of the RSS is held.

The noble Baroness said: My Lords, I moved a similar, though not identical, amendment at Report, building on the government amendment that we had at that stage, setting out a role for the counties and unitary authorities in their dealings with the regional planning body.

At that time I proposed that the regional planning body should not proceed for a period of four months if it did not accept the advice given by any of those authorities. That period of four months was for the regional planning body and the authority to discuss the matter.

I have not been so prescriptive in this amendment. We propose simply that the two entities should discuss the matter before any examination in public. I did not regard the four months that I proposed before as being likely to lead to a delay on such a disastrous scale as has been suggested.

The noble Lord, Lord Bassam, said that the previous amendment was overly prescriptive. As it is late I shall not trade arguments about who has been the more prescriptive in their proposals over the past two or three months. He said that our proposal was onerous, unwieldy and bureaucratic and was concerned that I sought a requirement to publish and to respond in detail to all the responses and advice from the counties and unitary bodies.

I did not think then, and, now that I have thought further about the matter, I do not think now, that my amendment suggests an item-by-item listing or such an approach for each authority. It proposes that the regional planning body should be clear and say in terms on a given issue, "Some authorities thought this, but because of (set out the reason) we have decided thus". In other words, it would be a mechanism to aid the transparency of the whole process. Of course no one would expect that every authority in a region would take exactly the same view on any given matter. But the regional planning body's submission of its spatial strategy, assessment and reasoning to the Secretary of State is out of the public eye. A requirement for the regional planning body to articulate why it is doing something would be a helpful prompt that would avoid what one might call sloppy thinking and would focus everyone's mind.

I wish to pre-empt the suggestion that the Minister has made previously that, knowing that the material would go to the Secretary of State, I am again showing distrust of his right honourable friend: I reiterate the point that nobody knows whose right honourable friend will hold that position in the future. I have thought seriously about the Government's points and have sought to build on them. I hope that my amendment will be regarded as reasonable. I beg to move.

Lord Rooker

My Lords, on the noble Baroness's previous point, I promise not to say that. However, on later groups of amendments, she will see that we are amending the Bill so that the Secretary of State and everybody else must give reasons for virtually everything that they decide to do. I understand why the amendment is made but we do not think that it is necessary. It implies a much less open and collaborative approach to preparing a draft revision of the regional spatial strategy than is actually the case, and which would be supported by regulations and guidance.

Regional planning bodies in county councils and other authorities with strategic planning expertise will not only deal with each other through formal requests and responses, they share many of the same members. There will be ongoing informal discussion and opportunities to discuss advice given and what the regional planning body will do with it.

The final version of planning policy guidance 11 on regional planning will make clear that each regional planning body should be proactive about making information available in line with the Freedom of Information Act. The regional planning body is under an overriding duty to act reasonably in considering advice that it receives from county councils and other authorities with strategic planning expertise. Ultimately, if it fails to take proper account of that advice, it could find itself subject to legal challenge. But in practice the regional planning body and other authorities will discuss their differences. They will not take them through the courts every day of the week. That is the common-sense approach, which, the noble Baroness will know, will be the overwhelming thrust. We do not feel that we need to legislate for that.

Baroness Hamwee

My Lords, let me be the first to congratulate the Government on taking up the point to which the Minister has just referred. I am very glad that they have written in the requirement to give reasons. We shall come to that shortly.

For the record, I am unclear how our proposal could mean a less open regime. I hear what the Minister says about guidance; it is becoming like a record that is stuck. He says that guidance is not the same as primary legislation, not even secondary legislation; it might be changed. But guidance that we have not even seen in draft—I think that I am right in saying that, but the point would apply in any case—is not the same commitment as we had hoped to see in a Bill that is very detailed in parts.

I hear what the Minister says. We shall probably want to get on with business. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 6 [RSS: revision]

Baroness Hamwee moved Amendment No. 3: Page 3, line 35, at end insert— ( ) In preparing a draft revision the RPB shall consult persons who appear to the RPB to have an interest in matters relating to the development and use of land within the region.

The noble Baroness said: My Lords, I beg to move Amendment No. 3, which is grouped with government Amendments Nos. 4 and 7. The amendment relates to consultation by the regional planning body on the spatial strategy. Before I saw the government amendments, I made a note that, although the Minister had always accepted that consultation was important, he relied on regulations to deal with those matters. When we discussed the matter previously, I felt that, if local authorities are bound by the legislation as regards consultation, the regional bodies should also be bound. Otherwise, it might be suggested that what the region does in that regard is less important.

I welcome the Government's amendments. I am sure that the Minister will have noticed that we had given up on the statement of community involvement, so I am particularly pleased to see its inclusion. The cynical among the Members of this House might say that our short amendment was more effective because the statement that is the subject of the government amendment might be inadequate. In other words, the regional planning body is to prepare a statement and stick by it; we say that it should actually consult, so we have spelt out some of the content of the statement. I would not be so cynical. I beg to move, but I foresee that I shall have to withdraw the amendment.

Lord Hanningfield

My Lords, my name was attached to the amendment. I welcome the Government's decision to include in the Bill a requirement for regional planning bodies to prepare, publish, revise and comply with the standard of community involvement with regard to the revision of the regional spatial strategy. The requirement is all the more important because the recent publication of the Barker report, which seems to advocate that the whole planning system should be driven by the requirements of the housing market, illustrates all too clearly just how important it is that people have a voice in planning decisions that affect their communities.

We have argued for a statement of community involvement from the beginning, so it is heartening that the Government have listened and, ultimately, improved the Bill. Statements of community involvement will be a difficult but necessary challenge for regional planning bodies to meet.

Lord Bassam of Brighton

My Lords, government Amendments Nos. 4 and 7 follow on from commitments that we gave on Report to bring forward amendments on the issue. I am grateful that the noble Baroness, Lady Hamwee, acknowledges that we have gone further, at least in one respect, than she had earnestly anticipated. I am glad that that is the case. We gave that commitment; it has always been our intention that regional planning bodies would involve people in the process and that they would consult widely. We intended to put that into regulations. Our amendment includes that requirement in the Bill.

Consultation and involvement are covered in draft regulations and draft PPS 11. The new duty does not change that; it merely brings thinking to the forefront and includes it in the legislation.

It is perhaps worth giving a clue to our thinking on this. At this stage, we think that we should require the regional planning body to prepare a document setting out how it has complied with its statement, building on what the regulations already require. We intend also in the final version of PPS11 to make clear that the regional planning body should seek views on a draft of its statement and take them into account before deciding on its final version.

I am grateful for the acknowledgement, and I am grateful for the noble Baroness saying that she welcomes this and intends to withdraw her amendment. I would like to think that ours fits the bill.

4 p.m.

Baroness Hamwee

My Lords, I do not know whether that is a lower case or upper case "b". With all the graciousness that I can muster, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Rooker moved Amendment No. 4 After Clause 6, insert the following new clause— "RSS: COMMUNITY INVOLVEMENT

(1) For the purposes of the exercise of its functions under section 6, the RPB must prepare and publish a statement of its policies as to the involvement of persons who appear to the RPB to have an interest in the exercise of those functions.

(2) The RPB must keep the policies under review and from time to time must—

1. (a) revise the statement;
2. (b) publish the revised statement.

(3) The RPB must comply with the statement or revised statement (as the case may be) in the exercise of its functions under section 6.

(4) The documents mentioned in section 6(5)(b) and (c) include the statement and revised statement."

On Question, amendment agreed to.

Clause 9 [RSS: further procedure]

Lord Bassarn of Brighton moved Amendment No. 5: Page 5, line 14, after "publish" insert "— (a)

The noble Lord said: My Lords, I can be extremely brief here, because again this is an issue on which we had extensive discussions at an earlier stage. This group of amendments creates a number of additional express duties to give reasons that will rest with the Secretary of State or the National Assembly for Wales. These commitments have now been matched.

I could go through each amendment, but I do not think that there is much point in doing that because they are almost standard in their effect. They simply place requirements on the Secretary of State to give reasons. I beg to move.

On Question, amendment agreed to.

Lord Rooker moved Amendment No. 6: Page 5, line 15, at end insert ", and his reasons for making the changes.".

On Question, amendment agreed to.

Clause 11 [Regulations]

Lord Rooker moved Amendment No. 7: Page 6, line 12, at end insert— ( ) the procedure to be followed by the RPB in connection with its functions under section (RSS: Community involvement);

On Question, amendment agreed to.

Clause 12 [Supplementary]:

Lord Bridges moved Amendment No. 8: Page 6, line 35, at end insert— ( ) In all ordinary circumstances, planning authorities shall pay heed to the existing statutes which confer protection on landscapes in the National Parks, in this case section 62 of the Environment Act 1995 (c. 25) (duty of certain bodies and persons to have regard to the purposes for which National Parks are designated) and in the case of areas of outstanding natural beauty, section 86 of the Countryside and Rights of Way Act 2000 (c. 37) (establishment of conservation boards).

The noble Lord said: My Lords, I raised this issue at earlier stages, and it concerns the relationship between this Bill and existing legislation regarding the status of areas of outstanding natural beauty and national parks. It still concerns me that the powers entrusted to the new regional planning bodies clash with the status and protection conferred on the national parks and the AONBs in laws still on the statute book. I quoted the statutes concerned in the earlier debate on 24 February at column 173 of the Official Report, and I do not need to cite them again.

The noble Lord, Lord Rooker, kindly wrote to me on 6 March explaining his view that it was a question of finding a balance between environmental, social and economic considerations. I regret to say that I find this formula seriously misleading. You cannot balance contrary principles; in this case economic development and nature protection. This seems to have been recognised by Mr Alun Michael, whose official Defra press release attributes to him these words: Conservation is not enough…We cannot say that we have achieved sustainability unless the parks are viable, economically and socially as well as environmentally". This is in direct conflict with the words in the statute in the Environment Act 1995 which clearly states: If it appears that there is a conflict between these purposes, the authority shall give greater weight to the purpose of conserving and enhancing the natural beauty … of the areas comprised in the national park". This is the heart of my case. Ministers are seeking to alter the provisions of earlier legislation not directly by amendment to the statute, but by public statement and administrative means. Another example may be found in the text of the new draft guidance of PPS7 circulated for consultation last September. Paragraph 25 states: The Government does not believe that local countryside designations are necessary. Planning authorities should remove any existing designations and instead adopt criteria-based policies in development plans". It is not clear to me whether this is intended to apply to existing national designations such as those of the national parks and AONBs, or to local classifications only, such as special landscape areas. Even if the latter only is intended, and the circular is ambiguously drafted—I trust not with deliberate intent—the local designations are extremely important in some cases and allow the planning authorities some degree of control over the more rapacious developers.

As regards Mr Michael's speech, which causes me grave anxiety, I remind the House of another matter that I raised at an earlier stage in the debate, namely the references in the Bill to the wishes of the Secretary of State, "however expressed". I suggested then that these words might have undesirable and unforeseen consequences and could lead to policy making in speeches or public remarks made on the hoof or off the cuff, what I called at the time "legislation by mouth". Ministers indignantly denied this possibility, saying that the phrase "however expressed" frequently occurred in statutes, although they did not quote me an example. It appears to me that legislation by mouth is exactly what Mr Michael has been doing.

The conclusion is clear. If the Government want to alter the priority given by existing law to environmental considerations, they should proceed legally, by seeking to alter the current statutes. We could then debate the merits of their proposals in the usual way. Meanwhile, we can protect the natural environment by inserting into this Bill the words suggested in the amendment. It is deliberately phrased in moderate terms, speaking of all ordinary circumstances, which leaves scope for some debate and discussion about particularly difficult cases that may arise.

I hope that the Minister will feel able to agree to the amendment. It should not cause him any serious anxiety. He can, if he wishes, undertake to suggest an improvement to the Bill when it returns to another place. If he is unable to help me, I expect to find it necessary to seek the opinion of the House. I beg to move.

Lord Chorley

My Lords, I was glad to add my name to my noble friend's amendment, especially as I was unable to be present on the earlier occasion to which he referred. The central point is that throughout this Bill national parks are treated as just another authority. They are not just another authority. I tried to emphasise that at Second Reading.

National parks are national and have their own legislation; notably, the 1949 Act and the 1995 Act. My noble friend quoted at Report stage and again today from Section 62 of the 1995 Act, in particular subsection (2). I shall not go over that again.

Time and again governments—I say governments because this has happened over the years—and other agencies make statements which suggest that they are barely aware of, or would like to ignore, Section 62. The 2002 Defra review of national parks in England felt constrained to make the same point; namely, that Section 62 needed to be more widely publicised and that there should be more effective monitoring to ensure compliance with the statute.

My noble friend chided Mr Alun Michael. Equally, he could have chided the Planning Minister over PPS7—the draft paper on sustainable development in rural areas. On the whole, that is a good document, but it completely ignores Section 62, especially subsection (2). I shall go no further into that issue because my noble friend did so in some detail.

This is a planning Bill. I suggest that it is necessary to remind planners and others of Section 62. It is important to ensure that national park purposes are properly integrated into the land use planning system. This is not a criticism of just this Government. I could go on at some length about some of the dubious planning decisions made over the years, particularly before the 1995 Act.

I shall confine myself to one anecdote that is historical but relevant today. In the late 1940s, shortly after the passing of the 1947 planning Act, the National Trust consulted Mr Hugh Dalton. It wondered whether it needed to acquire any more land since landscapes were now capable of being protected by statute. Mr Dalton—well known as a great outdoor man and a Chancellor of the Exchequer—is alleged to have replied in the immortal words: Put not your trust in Princes and still less in Ministers of the Crown. Go for acquisition and inalienability". Luckily, the National Trust followed those wise words.

That is why we need this amendment. That is why my noble friend has wisely included AONBs. If we forget about national parks, we are even more likely to forget about those Cinderellas of landscape, notwithstanding that by statute they are deemed to be of equal landscape quality to national parks.

I therefore hope that the Minister will agree to this modest amendment. In doing so, perhaps he will also commit the Government to fleshing out or buttressing it by providing guidance in the proposed PPS11 on regional planning bodies and PPS12 on strategic and local planning authorities. I support the amendment.

Baroness Hamwee

My Lords, I hope that what I shall say will not be taken as unsympathetic to noble Lords who have spoken. Their concerns are very much to the point. We shall come to a debate on sustainability. To take those words a little further, recognise the importance of AONBs and national parks as part of our country that we need to sustain. Certainly, on these Benches, we recognise that.

However, I have some difficulty with the amendment. As regards legislation, above all, Ministers of the Crown should comply with it, as should planning authorities. But saying that again does not make the original legislation any stronger. Indeed, it may weaken it. The amendment starts with the words, "In all ordinary circumstances". The two sections that are referred to do not have that sort of exception within them, which seems to beg some questions. I would prefer to rely on, if you like, the parent legislation. If that legislation is not good enough, it ought to be changed rather than adopting a "let's say it louder, let's say it again" approach.

I hope that the Minister can reassure noble Lords on the points that have been raised because they are of concern.

Lord Marlesford

My Lords, I rise to speak in support of the amendment moved by the noble Lord, Lord Bridges, because it covers perhaps one of the most important aspects of the whole of the conservation of England, enshrined as part of it is in the 1949 Act, one of the great achievements of the post-war Labour government. The noble Lord, Lord Chorley, was so right to quote Hugh Dalton. I do not feel confident, although not so much in the case of the present Government. We all read the piece in the Times by Simon Jenkins, which I thought was rather unfair about the noble Lord, Lord Rooker. On amendment after amendment he has shown that, on the whole, his heart is in the right place.

However, the article was certainly not unfair about what the Government are trying to do. I think that the time has come to reinforce the earlier legislation. Unless the Minister can use words that would enable Hansard to be used in place of legislation in a court hearing, I shall certainly support the noble Lord, Lord Bridges, if he chooses to seek the opinion of the House.

This is a very important issue. The National Trust has had to continue to acquire land such as, for example, coastal land in Cornwall. Had it not been acquired, we would not have the coastline we have today. Anything which threatens or appears to threaten the integrity of the most designated areas—national parks and AONBs—such as the speeches by the Minister quoted by the noble Lord, Lord Bridges, must set alarm bells ringing loudly in those of us who see it as part of our wish in life to protect our countryside, which is under great pressure.

Lord Hanningfield

My Lords, I rise to express our support for the thrust of this amendment. We hope that the Minister will be able to give some assurances to the noble Lord, Lord Bridges, in his response.

4.15 p.m.

Lord Rooker

My Lords, I certainly hope that I can do so. The noble Lord, Lord Marlesford, just referred to what I thought was a quite ignorant and mischievous piece in the Times yesterday, notwithstanding that I took personal offence at the description of myself as the, ermined friend of the construction industry". The article was written in ignorance by someone who has never read the updated communities plan; has not read any of the debates; has not read our further annual report and has not paid even scant attention to anything either I or my right honourable friend have said about protecting the countryside, higher densities and other matters. Therefore the article is based on ignorance and is not worthy of a response.

This amendment is worthy of a response and I hope that I shall be able to satisfy all noble Lords who have spoken. The underlying thrust of the amendment is to ensure that the statutory protection already in place is not undermined by anything in this Bill. I hope that I will be able to show that it is not.

I shall set out briefly the existing legislation and add a few remarks. Section 62 of the Environment Act 1995 requires relevant authorities, when exercising their functions, to have regard to the purposes of national parks as defined in Section 61. These are, first, of conserving and enhancing the natural beauty, wildlife and cultural heritage of the areas", and, secondly, of promoting opportunities for the understanding and enjoyment of the special qualities of those areas by the public". I declare an interest here because with my stick, boots and wet weather gear I use those areas, in particular the Lake District.

If it appears that there is a conflict between those two purposes, Section 62 requires relevant authorities to attach greater weight to the conservation and enhancement of, the natural beauty, wildlife and cultural heritage". Section 85 of the Countryside and Rights of Way Act 2000 requires relevant authorities when exercising their functions to, have regard to the purpose of conserving and enhancing the natural beauty of the area of outstanding natural beauty". Section 87 makes it clear that an area of outstanding natural beauty conservation board must attach greater weight to, the purpose of conserving and enhancing the natural beauty of the area of outstanding natural beauty", if it appears that there is a conflict between this and, the purpose of increasing the understanding and enjoyment by the public of the … area". That is the law. We would argue that nothing in the Bill, or anything that has been said, would change that.

I was surprised by the reference to my right honourable friend Alun Michael. I can assure the noble Lord that if Alun had said anything, he would certainly send a letter to follow it up. He is a great letter writer. I do not accept the criticism that this is legislation by mouth. The fact is, nothing that is said or written by a Minister would change those parts of the statute—the law—that I have just mentioned. I can also assure the House that the regional planning bodies will have regard to the statutory purposes of national parks and areas of outstanding natural beauty in preparing draft revisions of their regional spatial strategies. Local planning authorities arc specifically given this duty in the Acts referred to in the original speeches. As I have made clear to the noble Lord previously, the Government attach great weight to the preservation of the landscape in national parks and areas of outstanding natural beauty. The draft of new planning policy statement 7 on sustainable development in rural areas make this clear.

I should add that officials of the Office of the Deputy Prime Minister have had positive discussions with national park representatives about their role under the new planning arrangements. Indeed, we will strengthen the references to national parks in the final version of planning policy statement 11. We are also exploring with the Department for Environment, Food and Rural Affairs whether there is scope for producing a joint best practice guidance note on the involvement of national park authorities in regional spatial strategy reviews and revisions.

I wish to make progress and so, in case I am asked why we do not extend the good practice to areas of outstanding natural beauty, I should indicate that we shall consider the issue. But the national parks are local planning authorities in their own right and therefore, for that reason, they are particularly critical to the delivery of the regional spatial strategies.

I hope that I have said enough to convince the House that we are serious in our intent not to undermine the existing statutory framework governing the national parks and areas of outstanding natural beauty. I would not be a party to it.

Lord Bridges

My Lords, I am extremely grateful to the noble Lord, Lord Rooker, for his helpful tone and remarks. I do not entirely follow the logic of what he said but it is encouraging to know that he supports the existing legislation. However, it seems to me that, in setting up this completely new framework of planning, it would be desirable to have some cross-reference to the earlier statutes. That is all I am seeking to do. I do not seek to alter anything; merely to have that in the text which will be so important for the future.

I, of course, do not agree with the unkind remarks made in the Times newspaper about the Minister. I am sorry to hear about that.

The Minister made some friendly remarks about his colleague, the Minister, Mr Alun Michael. I sent to Mr Michael a copy of the letter I sent to the noble Lord, Lord Rooker, a week or so ago, hoping that this whole intervention in the debate would be unnecessary. But Mr Michael certainly has not replied to me.

One should perhaps look at this issue in a slightly broader context. There are wider interests than the precise wording of government circulars or even ministerial speeches. I refer to the interest of the British public in the protection of environmentally precious places, including beautiful landscape. It matters a great deal to public opinion, in my judgment.

I do not often get on to a high horse when addressing your Lordships, but I regret that I find it necessary to do so on this occasion. If the Government think that they will attract public support by encouraging economic development in national parks—which is what Mr Michael is proposing, in his own words—they are facing a grave political shock. I believe that the opposition—indeed hostility—they will provoke will surprise them.

Let us not forget that the conservation of these beautiful places began with some of our great 19th century cultural innovators, people such as William Morris and Ruskin, to name only two.

There are places which are important to us as individuals. The best expression I know of this in literature is contained in the poem by Gerard Manley Hopkins entitled Binsey Poplars, in which he describes with sorrow the destruction of his favourite trees. Let me quote some lines which refer to the destruction of nature. Hopkins wrote:

• "Where we, even where we mean
• To mend her we end her,
• When we hew or delve:
• After-corners cannot guess the beauty been"

. That is the kernel of the case. I fully share Hopkins's sentiments.

Let me give a brief illustration from my own life. I have had a particular affection since childhood for North Yorkshire, which I visited regularly as a boy and which sustained me in moments of difficulty. On my mantelpiece at home there are two photographs. The first is a picture of me and our eldest son on the summit of Pen-y-Ghent in the 1960s. We had just returned from a difficult and unsatisfactory assignment in Latin America, where circumstances had not worked in our favour. On returning home after two and a half years of unhappy and unrewarding toil, I knew that I needed a few days in North Yorkshire to recover my balance. It worked. The photograph records that moment. The second picture next to it, taken 20 years later in exactly the same place, shows the same son, this time accompanied by his eldest child on the summit of Pen-y-Ghent. I am sure that many of our citizens have similar bonds with particular beautiful places that enjoy the protection of the law at present. We should not connive at their development for the sake of currently fashionable causes.

I am grateful to the Minister for what he said in a reassuring speech, but one of his colleagues is speaking in a very different way. As we are setting up an entirely new arrangement for regional planning, it would help to insert these words into the Bill. I therefore wish to seek the opinion of the House.

4.25 p.m.

On Question, Whether the said amendment (No. 8) shall be agreed to?

Their Lordships divided: Contents, 50; Not-Contents, 100.

Division No. 6
CONTENTS
Alton of Liverpool, L.	Hodgson of Astley Abbotts, L.
Bridges, L. [Teller]	Howe of Idlicote, B.
Brittan of Spennithorne, L.	Hunt of Wirral, L.
Brougham and Vaux, L.	Kingsland, L.
Byford, B.	Kirkham, L.
Caithness, E.	Lamont of Lerwick, L.
Campbell of Alloway, L.	Listowel, E.
Carnegy of Lour, B.	Marlesford, L.
Chorley, L.[Teller]	Molyneaux of Killead, L.
Clement-Jones, L.	Murton of Lindisfarne, L.
Cobbold, L.	Naseby, L.
Craig of Radley, L.	O'Neill of Bengarve, B.
Crickhowell, L.	Patten, L.
Dearing, L.	Pilkington of Oxenford, L.
Deedes, L.	Platt of Writtle, B.
Denham, L.	Rees, L.
Eccles of Moulton, B.	Renton, L.
Eden of Winton, L.	Sanderson of Bowden, L.
Elles, B.	Sandwich, E.
Elton, L.	Shaw of Northstead, L.
Fookes, B.	Slim, V.
Geddes, L.	Soulsby of Swaffham Prior, L.
Glentoran, L.	Swinfen, L.
Hanham, B.	Tebbit, L.
Hanningfield. L.	Tenby, V.

NOT-CONTENTS
Acton, L.	Falconer of Thoroton, L. (Lord Chancellor)
Ahmed, L.
Alli, L.	Farrington of Ribbleton, B.
Amos, B. (Lord President of the Council)	Faulkner of Worcester, L.
	Filkin, L.
Andrews, B.	Finlay of Llandaff, B.
Archer of Sand well, L.	Fitt, L.
Ashley of Stoke, L.	Fyfe of Fairfield, L.
Ashton of Upholland, B.	Gale, B.
Bach, L.	Gibson of Market Rasen, B.
Bassam of Brighton, L.	Golding, B.
Berkeley, L.	Goldsmith, L.
Bernstein of Craigweil, L.	Grenfell, L.
Bhatia, L.	Grocott, L. [Teller]
Blackstone, B.	Harrison, L.
	Haskel, L.
Bragg, L.	Hayman, B.
Brooke of Alverthorpe, L.	Hogg of Cumbernauld, L.
Brookman, L.	Hollis of Heigham, B.
Burlison, L.	Howells of St. Davids, B.
Campbell-Savours, L.	Howie of Troon, L.
Carter, L.	Hoyle, L.
Christopher, L.	Hughes of Woodside, L.
Clarke of Hampstead, L.	Hunt of Kings Heath, L.
Clinton-Davis, L.	Irvine of Lairg, L.
Corbett of Castle Vale, L.	Janner of Braunstone, L.
Crawley, B.	Layard, L.
Davies of Coity, L.	Lea of Crondall, L.
Davies of Oldham, L. [Teller]	Lipsey, L.
Desai, L.	Lucas, L.
Dixon, L.	McIntosh of Haringey, L.
Donoughue, L.	MacKenzie of Culkein, L.
Dubs, L.	Mackenzie of Framwellgate, L.
Elder, L.	Massey of Darwen, B.
Evans of Parkside, L.	Merlyn-Rees, L.
Evans of Temple Guiting, L.	Mishcon, L.

Mitchell, L.	Stone of Blackheath, L.
Morris of Aberavon, L.	Strabolgi, L.
Parekh, L.	Symons of Vernham Dean, B.
Pitkeathley, B.	Temple-Morris, L.
Plant of Highfield, L.	Tomlinson, L.
Rea, L.	Triesman, L.
Rendell of Babergh, B.	Turnberg, L.
Richard, L.	Turner of Camden, B.
Rogers of Riverside, L.
Rooker, L.	Walpole, L.
Sainsbury of Turville, L.	Warner, L.
Sawyer, L.	Warwick of Undercliffe, B.
Scotland of Asthal, B.	Whitaker, B.
Sewel, L.	Wilkins, B.
Sheldon, L.	Williams of Elvel, L.
Simon, V.	Woolmer of Leeds, L.

Resolved in the negative, and amendment disagreed to accordingly.

4.36 p.m.

Lord Rooker moved Amendment No. 9: Page 6, line 40, at end insert— ( ) Subsection (4) does not apply for the purposes of section 6(3)(a).

The noble Lord said: My Lords, this is a small technical amendment. Its purpose is to ensure that in preparing the draft regional spatial strategy revisions a regional planning body has regard to relevant national policy issued by any Secretary of State. Examples of such policy include the air quality strategy for England, Scotland, Wales and Northern Ireland; the waste strategy; and the UK sustainable development strategy on modern ports—a UK policy. I beg to move.

On Question, amendment agreed to.

Clause 13 [Survey of urea]:

Lord Lucas moved Amendment No. 10: Page 7, line 15, at end insert— ( ) the type and extent of demand for housing and commercial property;

The noble Lord said: My Lords, I am not going to earn myself any brownie points with Mr Jenkins or the CPRE for moving this amendment. This is very much in response to the Barker review, which I view with enormous positivism. I think that it is a great step forward in our view of development and property. At last we are looking at giving a voice to the have-nots as well as to the haves. For far too long the whole planning system has leant in the direction of protecting the interests of those who already own or have interests in property while paying far too little attention to those who wish to have interests in property, by which I mean mostly those who would like houses of the kind they wish to live in.

This is not the time or the place—I hope that we will have a time and place—for an extensive conversation on the Barker review. I should very much look forward to a debate on that. One of the things that she calls for on several occasions in her report is a better evidence base. What she most wants evidence on is evidence of demand—what kind of houses people want, where they want them, what the trend of house prices and other indicators has been—so that planning authorities can take decisions with a proper view of what it is their public are expecting them to provide.

I know that this amendment is not necessary—the Government can achieve this under current provisions of the Bill—but I very much hope that I can get from the Minister an assurance that, in response to the Barker review, steps will be taken to gather the evidence that she wants to see. I beg to move.

Lord Marlesford

My Lords, I really cannot allow my noble friend's total distortion of the purpose of the planning system to stand unchallenged. The planning system is intended to allow everyone to enjoy a countryside that is unspoiled. It is about the public good and about public access, and that dates right back to the 1920s. For my noble friend to say something like that is in accord neither with the founding fathers who gave us the means of protecting our countryside as it is today, nor, I would suggest, in the spirit of the Tory party to which I belong.

Lord Rooker

My Lords, at the risk of falling foul of the noble Lord, Lord Marlesford, notwithstanding what Kate Barker said in her report about producing more homes, if we deliver on the growth areas of the south-east in the sustainable communities plan it will alter the amount of land used for urbanisation in this country by a little above 1 per cent, from about 12 to 13 per cent. That is the scale. We do not have to go to the barricades to defend the countryside. We have to be mindful and watchful, as the previous debate demonstrated. That is crucial and fundamental.

The Government are grateful for Kate Barker's analysis. I can give the commitment to the noble Lord, Lord Lucas, that we are considering it in a sympathetic way. There is no doubt that we want to be guided by the evidence. We are taking forward these issues in the way I have deployed during debate. I do not wish to curtail the debate. I am more than happy to come to the House to debate in a general way, without being tied to amendments and nuances of words, what underlies the sustainable communities plan published in February of last year and the two updated plans. The House has not had the opportunity to do so.

Housing supply and demand are firmly on the Government's agenda. On the four growth areas, we have designated half the growth over the next 15 years or so. It can then be managed so that it is not urban sprawl or despoliation of the countryside and we can ensure that the best use is made of the brownfield sites and buildings spread across the country, although unevenly. For historic reasons, there are more in some regions than others.

Some of the measures referred to by Kate Barker in her useful report last week form part of the Bill. I refer to the speeding up of the process. While the planning delivery grant is not part of the Bill, it is part of the operation seeking to put more resources into planning to improve its quality and other factors. We shall consult on how planning policy on housing should be revised to include guidance on the application of market information and signals into the system and a presumption in favour of granting planning permissions which conform to local plans. In the future, those will be the development plan documents. We shall consult with stakeholders. The Government are not rushing forward without consulting and operating the proper processes.

We take on board the reason why the noble Lord tabled the amendment. In answer to the noble Lord, Lord Marlesford, I hope that I have indicated that the countryside is not under threat in the way that some extremists using extravagant language would have people believe. Of course, I do not refer to the noble Lord. Notwithstanding that, I am more than happy to come to the House on a general debate on the issue because that would be helpful for the wider public debate.

Lord Lucas

My Lords, I hope that such a debate can be arranged. It should be enjoyable for the Minister. With a broad smile on his face, he can sit back and watch the noble Lord, Lord Marlesford, and I harass each other. I do not think my noble friend and I are that far apart. We share a great appreciation of the great joys of the countryside. I wish that a small part of the debate could be devoted to the cause of the 95 per cent of the people who do not live in the countryside and who do not want to live in little rabbit hutches which are increasing in price and decreasing in size at the rate they have been over the past 20 years.

I am encouraged by what my noble friend says and to know that the CPRE will be voluble in its defence of the countryside. The countryside will need such allies if we are going to make progress on the Barker review. I am also delighted by what the Minister said, and I hope that the matter will be in front of us soon. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

4.45 p.m.

Clause 18 [Statement of community involvement]:

Baroness Hamwee moved Amendment No. 11: Page 10, line 20, at end insert "and use of land

The noble Baroness said: My Lords, on Report, I thanked the Minister for his letter to me explaining the difference between "development", "use" and "development and use". Development requires planning permission. As he explained, references to development alone refer to development control matters. I shall take this opportunity to correct what Hansard referred to as "development and control"; I am not surprised that those who do not live with such terms find difficulty with them. However, that may have added to the confusion, which I hope that we are on the way to sorting out. References to "development and use" extend to the continuing use of land without necessarily any change in that use.

Clause 18 deals with the statement of community involvement. That statement should recognise that, among the community, there may well be interests in the use of land within the authority's area without development. To pre-empt the Minister, who has made clear his view of the nimby brigade—I wonder if that is one acronym that we can keep in—we can be concerned about use without development for altruistic reasons, and not only for selfish reasons. In any event, even if the motives are those which some of us might deplore, that does not mean to say that people who hold them should not be consulted.

The Minister said that he would triple-check the position. As we are now at Third Reading, it might be the moment to say what the outcome of that triple-check is. I beg to move.

Lord Bassam of Brighton

My Lords, when the matter was debated on Report, my noble friend Lord Rooker indeed said that he would triple-check. Everyone knows that he is extremely diligent, and he did exactly that. My speaking note confirms that he would have reported to the House, were I not doing so, that the current wording was fully inclusive. Clause 18(2) mentions those who, have an interest in matters relating to development". So far as we are concerned, that would inevitably include those whose interest was in the preservation of the use of land.

The phrase "matters relating to development" is broad and captures not only those interested in promoting development, but those interested in preventing it. Both are covered—the provision is all-inclusive and does the job. The Bill as it stands ensures that people whose interest is in there being no development will fall very much within the ambit of a local authority's statement of community involvement; after all, they are part of the same community. I understand the noble Baroness's insistence on the point but, with that explanation, I hope that she will feel able to withdraw her very well intended amendment.

Baroness Hamwee

My Lords, I will not insist on it. I understand that explanation. A few years ago, there was a fashion in teenage lingo for saying, "I think so—not". The issue is really about development—not. It is helpful to have the explanation on record, and I am grateful to the Government for that. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 20 [Independent examination]:

Lord Rooker moved Amendment No. 12: Page 21, line 26, leave out "a view to" and insert "the objective of

On Question, amendment agreed to.

Clause 21 [Intervention by Secretary of State]:

Lord Rooker moved Amendments Nos. 13 to 15: Page 12, line 10, after "unsatisfactory" insert "— (a) Page 12, line 12, at end insert— (b) if he gives such a direction he must state his reasons for doing so. Page 12, line 37, at end insert "and the reasons of the person making the recommendations

On Question, amendments agreed to.

Clause 24 [Conformity with regional strategy]:

[Amendment No. 16 not moved.]

Clause 27 [Secretary of State's default power]:

Lord Rooker moved Amendments Nos. 17 and 18: Page 15, line 15, after "recommendations" insert "and reasons Page 15, line 19, at end insert— ( ) The Secretary of State must give reasons for anything he does in pursuance of subsection (4).

On Question, amendments agreed to.

Clause 38 [Development plan]:

Baroness Wilkins moved Amendment No. 19: Page 21, line 16, at end insert— ( ) Planning authorities may set targets in their development plans in respect of the proportion of new housing to be constructed to Lifetime Homes standards and wheelchair access standards respectively.

The noble Baroness said: My Lords, Amendment No. 19 is supported, as are all the disability access amendments, by the Disability Rights Commission, RADAR, RNIB, the Town and Country Planning Association, Habinteg Housing Association, the JMU Access Partnership, the New Economics Foundation and John Grooms.

I raised the need for concerted action on lifetime homes and wheelchair-accessible homes at Report. My noble friend the Minister then promised a Government announcement on the subject before Third Reading and he was true to his word. I congratulate him on the decision to bring forward a review of the building regulations with a view to strengthening accessibility requirements through adoption of the Lifetime Homes standards which provide a standard for the design of new homes to ensure that they are accessible and adaptable as the needs of the occupants change. That would be a considerable improvement on the current building regulations, especially regarding issues such as parking, lighting, access around new homes and future adaptability. All new social housing is now developed to this standard in Wales and Northern Ireland. There will be huge benefits to disabled people, to older people and to every family as their needs change. There will also be huge savings to the taxpayer.

I also warmly welcome the commitment to consider how best to meet the need for more wheelchair accessible homes where there is now a real crisis. I understand that the new standards are unlikely to be in place for two years—I hope that the proposed timetable can be speeded up, because disabled people have waited a long time already.

The purpose of my amendment, however, is to invite the Government to acknowledge that the Lifetime Homes standards and wheelchair access standards cannot be successfully achieved at the detailed design stage unless the issue is raised and the principles and overall design concept agreed at the earliest possible stage in the planning process. In any case we need to plan to meet the current shortfall of 300,000 wheelchair accessible homes and to meet the needs of our ageing, diverse population for homes that can be easily adapted. I urge my noble friend to give a clear statement that the Government understand that this is a planning issue.

Can he give me an assurance that planning authorities will be encouraged in revised planning policy statements to follow the example of the GLA by setting appropriate targets for lifetime homes and wheelchair-accessible homes? I beg to move.

Baroness Maddock

My Lords, I rise briefly to support the noble Baroness, Lady Wilkins. She has explained precisely why we need the amendment. If we are serious about sustainability and good design, the amendment fits into that. At a meeting this week I was somewhat surprised by someone, who I thought should know better, who thought that good design was simply about what things looked like. It is not. The amendment is part of good design and I hope that the Minister will be helpful. I fully support the noble Baroness.

Lord Rooker

My Lords, I hope that I can say something helpful, because we are very sympathetic to what is behind the amendment. However, I cannot be helpful in the sense that I can accept it.

The amendment is discretionary, not mandatory. Local authorities already have a discretion to introduce planning policies within the national policy framework, provided that they can be justified and relate to the use and development of land, because that is how the system works. The amendment states what can already happen. Therefore, we believe that we do not need to amend the Bill.

On the other hand, I am very grateful for what the noble Baroness said about the announcement by my honourable friend in the other place, Phil Hope, on 10 March. I understand that groups such as the Disability Rights Commission have welcomed the announcement in respect of the building regulations. My honourable friend made clear our commitment to ensuring that the building regulations encourage accessibility and design features that make the home sufficiently flexible to meet the changing needs of a family. In other words, as the noble Baroness, Lady Maddock, said, it is not just about looking nice but also about practicalities. Of course, we shall consult on possible amendments in due course.

It is envisaged that new standards could be in place in two years. I have to say—I do not want to mislead people—that that is very speedy. My experience of changing building regulations is not good. It takes a while. On the other hand, the noble Baroness is quite right that people have waited long enough for new standards. We in this country fall miles behind the standard of housing that was built and designed for people with disabilities in Sweden in the mid-1980s, and I suspect that we shall not achieve anything like that standard that I saw almost 20 years ago. We have much to overcome, partly because we do not replace our stock at anything like the rate of our continental partners. They replace their stock at a rate of about 1 per cent per year; we replace ours at a rate of about 0.1 per cent per year, although there have been opportunities for us to do so.

With regard to the London plan, the Government Office is in dialogue with the Mayor about the implementation of the Mayor's policy. Some points need to be cleared up. The Government Office has drawn the Mayor's attention to the draft planning policy statement 1, the review of the building regulations, which I have already mentioned, and has pointed out that the Mayor's policy would need to be reviewed and revised in the light of the new building standards.

In principle, local plan policies can include provisions for a proportion of accessible homes, provided that they are justified by need. However, any specific standards for accessibility should not cut across the building regulations. Local authorities already have an enormous amount of discretion. If the will is there, it is very easy for them to identify the need, which then conforms with the overall policies. The fact that we have given it a push, by a review of the regulations as well, is no excuse for them not to do anything in the intervening period where there is an identified need.

I regret that I cannot be more positive on this. However, I can assure the House that I shall be much more positive on the amendments to be tabled by the noble Baroness later today.

Baroness Wilkins

My Lords, I thank the Minister for his encouragement and beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 39 [Sustainable development]:

Lord Rooker moved Amendment No. 20: Page 21, line 26, leave out "a view to" and insert "the objective of

The noble Lord said: My Lords, I undertook to look further at the issue of the application particularly of Clause 39(2).

At Report, the noble Baroness, Lady Hamwee, said: I would like to think that every objective is automatically achieved but I do not believe that that is the case in life … I make sustainable development the objective with the hope, though not necessarily the confidence, that by doing so it will always be achieved".—[Official Report, 1/3/04; col. 482.] As I have previously explained, the original drafting of the clause, with a view to contributing to the achievement of sustainable development, sought to avoid placing too great a weight on regional planning bodies and local authorities by recognising that the plan-making system cannot alone be held responsible for sustainable development. It is one of a number of factors or actions that bear on sustainable development.

I hope that the noble Baroness will agree that this amendment is a sensible compromise. Contributing to the achievement of sustainable development is a clear objective for regional planning bodies and local authorities in their regional spatial strategies and local developments, but it does not open up every planning policy to challenge. That is crucial. I remember saying that as long ago as Second Reading.

We have always looked at and been careful about the kind of amendments we could table. We wanted to be positive—no one will claim that we have the perfect wording in the Bill—but I said that opening up the issue was fraught with danger. I hope that the Government's amendment will be accepted. It is almost in lieu of Amendment No. 21. I beg to move.

5 p.m.

Baroness Hamwee

My Lords, my Amendment No. 21 is grouped with the government amendment. I did a dangerous thing last night by looking up the definition of "objective" in the Shorter Oxford English Dictionary. It was dangerous because I was diverted and spent a lot of time on more interesting questions. It was defined in part as, Expressing, designating, or referring to the object of an action … Sought or aimed at". In other words, I do not believe that the wording of my amendment tabled at the previous stage or now puts sole responsibility on a person or body exercising the relevant function. However, it does provide that the objective of that person or body in creating the regional spatial strategy or local development documents, and the objective of the strategy as a document itself, is to achieve sustainable development. There are no ifs or buts about that.

I have been discourteous because I should have started by thanking the Minister for moving down the road with the compromise he described. It is welcome. Will we now have in place the provision that the planning system must not endorse unsustainable development—or at any rate the regional spatial strategy and the local development documents? This is more than just semantics. If I had thought quickly enough, I would have asked the question before I made my other point in order to give time for thought. I am asking the Minister to confirm that the plans—the spatial strategy and the local development documents—must not directly or indirectly endorse unsustainable development.

Lord Rooker

My Lords, off the top of my head, given the weight we have put on this matter, that the clause is in the Bill and that the new strapline of the Office of the Deputy Prime Minister is "creating sustainable communities"—and at no cost to the taxpayer because we invented it ourselves—it is taken extremely seriously. Therefore, I would concur and expect that planning authorities and regional spatial strategies will not go around endorsing unsustainable developments.

On Question, amendment agreed to.

[Amendment No. 21 not moved.]

Lord Rogers of Riverside moved Amendment No. 22: Page 21, line 27, at end insert "through high quality design

The noble Lord said: My Lords, in moving Amendment No. 22 and speaking to Amendment No. 23, I rise to add my wholehearted support for the Government in seeking to strengthen the sustainability duties on planners in Clause 39. Throughout the passage of the Bill, the Minister has listened to arguments put forward by myself and other noble Lords that design policy and sustainable development must go hand in hand. Whenever he has had the opportunity, he has made the point himself, but the spirit of the law is quite clear. Planners must consider design as part of their objective of contributing towards achieving sustainable development. We have been assured that planning policy statement I will be sufficiently robust in terms of design. That is excellent news.

But what about the letter of the law? Throughout your Lordships' consideration of the Bill, I have called for the word "design" to be included alongside the duty contained in Clause 39. Other noble Lords from all sides of the House have added their support, including the noble Lord, Lord Lucas, my noble friends Lady Blackstone and Lord Alli, and the noble Baroness, Lady Maddock. I am grateful for their support.

The Government have listened to our arguments carefully. They have concluded that a strengthened Clause 39—taken together with a robust planning policy statement 1—is sufficient to ensure that design is taken fully in to account in planning decisions. Later government amendments, which I shall be delighted to support, place design at the heart of the planning application process.

If we are to have sustainable development—if we are to have the urban renaissance—we must ensure quality design. High quality design is the means to that end. Either amendment would make that absolutely clear on the face of the Bill. It would send out a message loud and clear to planning authorities and developers alike.

I know that my noble friend the Minister understands this perfectly well, and I expect him to be reassuring in his response. I expect him to say that if we include design, then should we not include access and a whole range of other issues? I would argue that "high quality design" by definition means inclusive design, and therefore includes such important issues.

I urge the Government to consider the amendments. I am relaxed about which one they should accept, although on balance Amendment No. 22 is clearer, as it makes explicit the causal link between quality design and sustainable development. I beg to move.

Baroness Maddock

My Lords, I rise to support the amendment which has my name attached to it.

The point that I wish to emphasise is that, if we are serious about sustainability, then good design is part of that. Good design is functional, and therefore fulfils its purpose. Good design uses environmentally friendly materials. All this leads to homes, buildings and other infrastructures which stand the test of time and are much more sustainable in the widest sense. That is why I support the noble Lords, Lord Rogers and Lord Lucas, in their attempt to attach this to the Bill. I look forward to hearing what the Minister has to say.

Lord Lucas

My Lords, my name is attached to this amendment too. I suspect that I support the second amendment more than the first, but I wait to hear what the Minister says.

Design is a crucial part of making something out of sustainable development which the rest of us can appreciate. Getting a thing right in terms of our enjoyment and use of an urban space, in particular, is very much a matter of good design.

Design is not curlicues on doorknobs, it is the way the whole space works, the way in which people interact with it, the way that the new bit of the city interacts with the old. It is putting effort into getting things right for the long term, rather than hoping that they will work out for themselves. It is doing what we did not do in Docklands, though that has worked out well in the end. It could have come better and faster if we had put a bit of effort into planning and designing the area properly. It still might be a better place to live than it is now.

This is an important part of producing sustainability. As the noble Lord, Lord Rogers, has said, the Minister has gone a long way in bringing design into the Bill. This last bit is necessary.

Lord Cobbold

My Lords, my views on sustainable development have been expressed in earlier stages of the Bill, so I shall not go into them.

I support this group of amendments. I particularly support Amendment No. 23, which, as the noble Lord, Lord Lucas, has said, combines the important concept of good quality design in this strange concept of sustainable development.

Lord Rooker

My Lords, if it were up to me, I would certainly prefer Amendment No. 23 to Amendment No. 22. In some ways, it is not up to me; it is almost not up to the Government. Earlier I gave the commitment that, one way or another, I would talk to the planning Minister and the Deputy Prime Minister about the need to include the word "design" in the Bill, but our problem has always been to find a suitable location for it. In some ways, that is the real difficulty. In instructing parliamentary counsel, we have taxed to the limit efforts to find the right place to insert the word without causing untoward problems. That has been our difficulty.

I have said throughout that the clause on sustainable development was extremely difficult. The previous amendment is about as far as we dare go in touching that clause. As the House knows, I will move a government amendment to include the word "design" on the face of the Bill. Having said that, I would be more than happy, if it were up to me, to include Amendment No. 23. I have been unable to do that. I have tried but failed in that sense simply because I have had to accept the advice that we muck around more with Clause 39 at our peril later. I do not want to have on the statute book something that looked okay as a quick fix; I would much rather have the amendment that the Government will bring forward to Clause 43. It gets the thrust of what we want but does not cause problems later. That is the advice that I have received.

We fully agree that, without proper attention to design, we will not deliver sustainable development. We remain of the view that the case for referring specifically to design in this clause gives us such difficulty that we cannot accept it. We want to ensure that both design and access are established as fundamental planning issues. The key is a strong planning policy statement 1, which makes clear that good design and consideration of access issues are crucial to the delivery of sustainable development. They are not separate from it; yet they recognise the importance of sound design and access policies in local development frameworks.

To further underpin that, we will require in the secondary legislation that is to be made under Part 2 of the Bill that local authorities must include design and access within their portfolio of local development documents. That reinforces the strong statements on both areas already made in the consultation draft of planning policy statement 1. We will also work with the Royal Institute of British Architects and the Commission for Architecture & the Built Environment, on the coverage of design issues in planning policy statement 1, and with the Disability Rights Commission and the Disabled Persons Transport Advisory Committee, on the coverage of access issues. We consider that the policy is already clear and strong, but we are more than willing to consider ways of further improving it.

I know from looking at the document that it mentions design and access throughout in a number of different contexts. We may need to consider whether what we mean in each different context is clear enough for policymakers, but we are more than ready to listen. That approach will mean that design and access issues are properly considered in the plan-making process and will encourage local planning authorities to take them seriously. This House is sending to planning authorities a powerful message, with this short debate and the later one on the amendments concerned, that Parliament is taking the issue extremely seriously and we expect to see it put into practice.

Lord Rogers of Riverside

My Lords, I thank my noble friend the Minister for his response. I can understand the Government's reluctance to reopen Clause 39. It is very delicately worded and has been the subject of much discussion in your Lordships' House. However, we may be missing an important opportunity to make the vital connection between sustainable development and design quality absolutely clear on the face of the Bill. Today we may have given less confidential local planning authorities an important tool in order to reject applications on design grounds.

I can see, however, that the Government can offer no further ground. I do not want to go against my Government. With a little reluctance, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Lucas moved Amendment No. 23: Page 21, line 27, at end insert "with an emphasis on high quality design

The noble Lord said: My Lords, the Minister's heart is in the right place, but not yet his pen. I would like to give him another opportunity to have a go at writing this into the Bill. I beg to move.

5.15 p.m.

On Question, Whether the said amendment (No. 23) shall be agreed to?

Their Lordships divided: Contents, 43; Not-Contents, 87.

Division No. 7
CONTENTS
Addington, L.	Lucas, L. [Teller]
Alderdice, L.	McNally, L.
Alton of Liverpool, L.	Maddock, B. [Teller]
Barker, B.	Northover, B.
Beaumont of Whitley, L.	Park of Monmouth, B.
Biffen, L.	Phillips of Sudbury, L.
Bradshaw, L.	Quinton, L.
Chorley, L.	Redesdale, L.
Cobbold, L.	Rodgers of Quarry Bank, L.
	Roper, L.
Dholakia, L.	Sandberg, L.
Falkland, V.	Selsdon, L.
Finlay of Llandaff, B.	Sharp of Guildford, B.
Fowler, L.	Shutt of Greetland, L.
Greaves, L.	Smith of Clifton, L.
Hamwee, B.	Thomas of Gresford, L.
Harris of Richmond, B.	Thomas of Walliswood, B.
Holme of Cheltenham, L.	Tope, L.
Howe of Idlicote, B.	Tugendhat, L.
Laird, L.	Walmsley, B.
Lester of Herne Hill, L.	Weatherill, L.
Linklater of Butterstone, B.	Williams of Crosby, B.

NOT-CONTENTS
Acton, L.	Currie of Marylebone, L.
Ahmed, L.	Davies of Oldham, L. [Teller]
Amos, B. (Lord President of the Council)	Desai, L.
	Dixon, L.
Andrews, B.	Donoughue, L.
Archer of Sandwell, L.	Dubs, L.
Ashley of Stoke, L.	Elder, L.
Ashton of Upholland, B.	Evans of Parkside, L.
Bach, L.	Evans of Temple Guiting, L.
Bassam of Brighton, L.	Falconer of Thoroton, L. (Lord Chancellor)
Berkeley, L.
Bernstein of Craigweil, L.	Farrington of Ribbleton, B.
Bragg, L.	Faulkner of Worcester, L.
Brooke of Alverthorpe, L.	Filkin, L.
Brookman, L.	Fyfe of Fairfield, L.
Campbell-Savours, L.	Gale, B.
Carter, L.	Gibson of Market Rasen, B.
Christopher, L.	Golding, B.
Clarke of Hampstead, L.	Goldsmith, L.
Clinton-Davis, L.	Grenfell, L.
Corbett of Castle Vale, L.	Grocott, L. [Teller]
Crawley, B.	Harris of Haringey, L.

Harrison, L.	Rea, L.
Haskel, L.	Rendell of Babergh, B.
Hayman, B.	Richard, L.
Hogg of Cumbernauld, L.	Rooker, L.
Hollis of Heigham, B.	Sainsbury of Turville, L.
Howells of St. Davids, B.	Sawyer, L.
Hoyle, L.	Scotland of Asthal, B.
Hughes of Woodside, L.	Sewel, L.
Hunt of Chesterton, L.	Sheldon, L.
Hunt of Kings Heath, L.	Simon, V.
Irvine of Lairg, L.	Slim, V.
Janner of Braunstone, L.	Stoddart of Swindon, L.
Judd, L.	Stone of Blackheath, L.
Layard, L.	Symons of Vernham Dean, B.
Lea of Crondall, L.
Lipsey, L.	Temple-Morris, L.
McIntosh of Haringey, L.	Tomlinson, L.
MacKenzie of Culkein, L.	Triesman, L.
Mackenzie of Framwellgate, L.	Turner of Camden, B.
Massey of Darwen, B.	Warner, L.
Mishcon, L.	Wilkins, B.
Mitchell, L.	Williams of Elvel, L.
Pitkeathley, B.	Woolmer of Leeds, L.

Resolved in the negative, and amendment disagreed to accordingly.

5.25 p.m.

Clause 40 [Local development orders]:

Lord Rooker moved Amendments Nos. 24 to 27: Page 23, line 5, after "unsatisfactory" insert "— (a) Page 23, line 7, at end insert— (b) if it gives such a direction it must state its reasons for doing so.". Page 23, line 13, after "authority" insert "— (a) Page 23, line 14, at end insert— (b) must, if it revokes a local development order, state its reasons for doing so.

On Question, amendments agreed to.

Clause 42 [Statement of development principles]:

Baroness Hamwee moved Amendment No. 28: Page 25, line 16, at end insert— ( ) whether sufficient information has been provided by the applicant to enable a decision to be made;

The noble Baroness said: My Lords, Amendment No. 28 seeks to amend Clause 42, which provides for a new section after Section 61 D of the Town and Country Planning Act 1990. It is grouped with the amendment tabled by the noble Baroness, Lady Hanham, which seeks to remove the clause altogether.

The clause concerns statements of development principle which, in our eyes, go hand in hand with how the Government intend to deal with outline planning permission. I am glad to see that the Government are not now proposing to use this Bill to give themselves the option of repealing outline planning permissions. However, we remain concerned that this part, along with other elements in the Bill, despite the time that the Bill has taken to chunter through its parliamentary progress, has still not been adequately developed—I intend no pun in that.

I turn to my amendment. The Minister has said that, as a matter of common sense, when a local planning authority is asked by a prospective developer to supply a statement of development principles it would, if it did not have enough information, ask for it. But that is not the end of the story because, as the clause is drafted, the local planning authority "must issue a statement". In our view, the local planning authority must be able to say, "We are not saying 'yes' or 'no' because you have not told us enough". Further, the local planning authority must be able to say, "Give us the information so that we can deal sensibly with the matter".

The authority may not want to say "no" to a development on the site. All noble Lords can envisage the problems that that could give rise to in the complex and technical world of town and country planning. It must be able to require the information.

The Minister said on Report that the Government were still considering the matter. He stated: Some work remains to be done on the nature of the information that would need to be provided with applications for outline planning permission. The Government still need to be satisfied that the information will meet our objectives".—[Official Report, 1/3/04; col. 513.]

He ends by saying that he hopes to "comment further soon". The Minister went on to tell the House that discussions with "interested parties" were continuing. I hope that the Minister can tell us what progress has been made and who are the interested parties involved.

We support making outline permissions more useful, more precise, more able to achieve certainty for everyone, without allowing the outline permission to be morphed or distorted into something that was not originally anticipated by the planning authority. So, all power to the Government's elbow, let them get on with that and produce a solution—but not this solution; not statements of development principles and alternatives.

We are concerned about the workload this will cause for local planning authorities; we know the strains under which planning departments work. And for what? Not to produce anything that a developer can take to a bank and say, "Please will you finance this?" It is not a fundable permission; it is only a statement. If the Government had changed the "must" issue a statement to "may" issue a statement, I would have had more sympathy in considering whether the idea is a useful one.

It is clear from the Barker review that we shall have to come back very soon to many of the issues surrounding planning and the achievement of sustainable developments and sustainable communities. As the Government now concede that they are not going to use the Bill as an opportunity, to be exercised at some time in the future, to repeal outline planning consents and take them off the agenda, they will have to return to Parliament to deal with that matter. Both issues should be brought back together.

My short amendment seeks to make this a more workable provision. However, I would prefer to see the back of the idea, for the time being at any rate, until we have a proper and complete package together. I beg to move.

5.30 p.m.

Lord Hanningfield

My Lords, I wish to speak to my Amendment No. 29, which is grouped with Amendment No. 28.

Amendment No. 29 seeks to remove Clause 42 from the Bill and thus the Government's provisions for statements of development principles. I wish to add to the comments of the noble Baroness, Lady Hamwee, with which I agree. Clearly the amendment would represent a significant change to the Bill. Nevertheless, we feel that it is crucial, for the fundamental reason that it will make the legislation better.

I should like to say a little about our previous debates before I outline our opposition 'to statements of development principles because it may help explain why we now seek to remove Clause 42. On previous occasions, in Committee and on Report, when we tabled amendments concerning statements of development principles I expected there to be some debate and discussion. More importantly, I thought that the Government would take those opportunities to elucidate the reasoning behind statements of development principles. I did not expect necessarily a compelling justification, but certainly I expected more in the way of how statements of development principles were envisaged as improving the planning system.

I am disappointed that the Government did not really engage with the basic questions of how and why statements of development principles would add value to the planning system. To some extent, that may have been due to the way in which my previous amendments addressed the specific problems we saw in the detail of Clause 42. However, one usually expects clarity and justification to flow from the general discussion that follows. This did not happen. That means that we are left to choose between getting rid of statements of development principles altogether, or leaving them as they are.

Let me explain why I think we must remove Clause 42. As I said at Report, statements of development principles are an exercise in ivory-tower thinking. For the planners on the ground and organisations such as CPRE there is no evidence that statements of development principles will help meet the Government's objectives for the planning system. There is very little support for them, partly because there is precious little information available that justifies their introduction.

On top of all the structural changes that will flow from this Bill, we have an anomalous new process which developers and planners alike do not understand and do not support. Anyone can apply for a statement of planning principles, although no one has any idea how many applications there will be. There is considerable scope for them to be exploited as spoiling tactics for legitimate development, which I am sure the Government do not want to happen. There is even more scope for them to clog up the system, as the noble Baroness, Lady Hamwee, said by overburdening planning departments' work loads, because statements of development principles will effectively subsidise the applicant's preparatory work with no discernible benefit for the local planning authority or the public.

These negative features are compounded by the fact that the Government have not decided a way forward on the retention of outline planning permission, as the noble Baroness, Lady Hamwee, said. We think that the statements of development principles cannot be considered in isolation from the future of outline planning permission. We have the Statement by the planning Minister, Keith Hill, on 15 December, 2003 which helps a little, but I do not think that primary legislation on statements of development principles is appropriate when so much related work remains outstanding.

As I said before, the Government should have listened earlier to those who actually use and manage the outline planning provision process in order to improve the level of information and community involvement in that process. Outline planning permission is key to securing funding for development. Statements of development principles, when they seem so unworkable, cannot replace outline planning permission. If they have to run in parallel, why add more bureaucracy to the system? It certainly will not help speed up the planning process.

If we introduce statements of development principles, we will shift the burden of planning applications from the applicant to the local authority at a time of severe staffing problems and in times of great operational and structural change. It seems that they can be issued on the basis of very little information to anyone who wants them. As I said before, they could be used to hold up development against the wishes of the Government. The Government can help improve the pre-application process of the planning system, but they should start by dropping statements of development principles. Planners, developers and other interested organisations do not support their introduction, and they have the potential to be an expensive and confusing failure. They are no way forward. I beg to move.

Lord Lucas

My Lords, I entirely support what my noble friend said. I ask one additional question: if the Bill goes through as it is, although the Government said that they want to keep outline planning permission, will the Bill give them the ability to abolish it at any time by secondary legislation?

Lord Marlesford

My Lords, I strongly support this amendment. If the clause remains the whole planning system will be much woollier. Any planning application should be much more specific than is allowed for in this provision. It is quite wrong to allow people to require the local authority to do the work and fill in the gaps. Frankly, if the local authority is swamped with planning applications on which it has a lot of work to do it will be much less able to devote the proper care and attention to specific planning applications.

Lord Rooker

My Lords, there have been some changes in this part of the Bill. The Government have already announced that they have decided to retain outline planning permission. Subject to other moves and discussions, it may be that one would not go to the wall over this matter. In keeping outline planning permission, we consider that statements of development principles could provide a valuable addition to the tools available in the planning process. They would enable anyone to obtain an early indication from a local planning authority whether a proposed development would be accepted in principle. They will also identify the kind of issues a developer would need to consider before submitting an application. The developer would then have a clearer idea whether to think about making the planning application. The statement of development principles is not a planning application: hence the need not to provide the kind of detail needed for a planning application. That is why we do not consider that these other details should be mandatory, where the local authority can pile in for a list of other information it wants from a developer. The idea of this statement is that it would be flexible enough for simple and complex questions to be asked, to get an answer back, and to decide whether to proceed with the application. There would be a fee system anyway, so it would not be a question of a gumming-up of the system. We said that we would consult on the issue later this year, if this issue remains in the Bill at the end of the day when it becomes an Act.

If the amendment to leave out the clause is carried, then outline planning would be kept anyway. We are not going to proceed down the route of abolishing outline planning permission. I hope that the general thrust of the question by the noble Lord, Lord Lucas, is answered, because we are keeping outline planning and therefore the status quo is maintained.

Weaponry is the wrong word. This is another tool that the planning authorities may wish to use, but they may not wish to use it. In due course, it is not something over which we would go to the stake.

Lord Marlesford

My Lords, before the noble Lord sits down, am I not right in saying that the provision for informal consultation on a planning proposal already exists, and has existed for a long time? Does that not do the job?

Lord Rooker

My Lords, indeed that may beg the question why, now that we are keeping outline planning permission, anyone would want to use this tool. It may be that local authorities say, "Outline planning is maintained. We can already undergo early discussions". That would probably be behind closed doors, of course. The statement of development principles must be a much more open and transparent issue, about giving detailed, principled answers about a piece of land.

Baroness Hamwee

My Lords, I would describe the Minister's description of his own clause in the words of W.S. Gilbert, as "modified rapture". I was being consulted by my Chief Whip, but my noble friend told me that he said that we would consult on all of this if this provision remains in the Bill.

The Minister said that local authorities could "pile in for a list of information" but, as we have discovered on many other subjects, they would have to be reasonable in doing so. I do not think, therefore, that the point is one which goes very far.

The Government have now decided not to go ahead with repealing outline permissions. I must say that those two amendments towards the end of today's list are the first time in many years when my name heads the amendment and that of the Minister is tacked on afterwards: not even parliamentary counsel could find fault with "leave out line so-and-so". Now that they are not going ahead at this point in that way, it must be right to put the whole lot into a pot and to consider it all together.

The Minister has convinced me that I should beg leave to withdraw my amendment, in order that the clause can be removed from the Bill. I hope that the noble Lord will be moving that in a moment, so I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Hanningfield moved Amendment No. 29: Leave out Clause 42.

The noble Lord said: My Lords, I was very grateful for the Minister's reply. He has given me the very reason why we should take the view of the House on removing the entire clause. I think that everyone has said that the provision should be considered later when we consider the future of outline planning permissions. I beg to move.

5.45 p.m.

On Question, Whether the said amendment (No. 29) shall be agreed to?

Their Lordships divided: Contents, 107; Not-Contents, 87.

Division No.8
CONTENTS
Addington, L.	Dholakia, L.
Alderdice, L.	Dixon-Smith, L.
Anelay of St Johns, B.	Dundee, E.
Astor of Hever, L.	Eccles of Moulton, B.
Attlee, E.	Eden of Winton, L.
Avebury, L.	Elles, B.
Baker of Dorking, L.	Elton, L.
Barker, B.
Beaumont of Whitley, L.	Falkland, V.
Belstead, L.	Finlay of Llandaff, B.
Biffen, L.	Fookes, B.
Blatch, B.	Fowler, L.
Bradshaw, L.	Geddes, L.
Bridgeman, V.	Glentoran, L.
Brittan of Spennithorne, L.	Hamwee, B.
Brooke of Sutton Mandeville, L.	Hanham, B.
Burnham, L.	Hanningfield, L.
Byford, B.	Harris of Richmond, B.
Caithness, E.	Higgins, L.
Campbell of Alloway, L.	Hodgson of Astley Abbotts, L.
Carlisle of Bucklow, L.
Carnegy of Lour, B.	Howe, E.
Chorley, L.	Hunt of Wirral, L.
Clement-Jones, L.	Jenkin of Roding, L.
Cobbold, L.	Jopling, L.
Colwyn, L.	King of Bridgwater, L.
Cope of Berkeley, L. [Teller]	Kingsland, L.
Craigavon, V.	Lester of Herne Hill, L.
Cumberlege, B.	Liverpool, E.
Deedes, L.	Lucas, L.
Denham, L.	Luke, L.

Lyell, L.	St John of Fawsley, L.
McColl of Dulwich, L.	Sanderson of Bowden, L.
Maddock, B.	Seccombe, B. [Teller]
Mancroft, L.	Selsdon, L.
Marlesford, L.	Sharp of Guildford, B.
Miller of Hendon, B.	Shaw of Northstead, L.
Mowbray and Stourton, L.	Shrewsbury, E.
Newton of Braintree, L.	Shutt of Greetland, L.
Northbrook, L.	Skelmersdale, L.
	Smith of Clifton, L.
Northesk, E.	Stewartby, L.
Northover, B.	Stoddart of Swindon, L.
O'Cathain, B.	Swinfen, L.
Park of Monmouth, B.	Taylor of Warwick, L.
Peel, E.	Tebbit, L.
Phillips of Sudbury, L.	Thomas of Gresford, L.
Rawllings, B.	Thomas of Walliswood, B.
Reay, L.	Tope, L.
Redesdale, L.	Tugendhat, L.
Rees, L.	Walmsley, B.
Renton, L.	Weatherill, L.
Rodgers of Quarry Bank, L.	Wilcox, B.
Roper, L.	Williams of Crosby, B.
Rotherwick, L.	Windlesham, L.

NOT-CONTENTS
Acton, L.	Haskel, L.
Alton of Liverpool, L.	Hayman, B.
Amos, B. (Lord President of the Council)	Hogg of Cumbernauld, L.
	Hollis of Heigham, B.
Andrews, B.	Howells of St. Davids, B.
Archer of Sandwell, L.	Hughes of Woodside, L.
Ash ton of Upholland, B.	Hunt of Chesterton, L.
Bach, L.	Hunt of Kings Heath, L.
Bassam of Brighton, L.	Irvine of Lairg, L.
Berkeley, L.	Janner of Braunstone, L.
Bernstein of Craigwell, L.	Judd, L.
Blackstone, B.	Layard, L.
Bragg, L.	Lea of Crondall, L.
Brooke of Alverthorpe, L.	Lipsey, L.
Brookman, L.	McIntosh of Haringey, L.
Campbell-Savours, L.	MacKenzie of Culkein, L.
Carter, L.	Mackenzie of Framwellgate, L.
Chandos, V.	Massey of Darwen, B.
Christopher, L.	Mitchell, L.
Clarke of Hampstead, L.	Pitkeathley, B.
Clinton-Davis, L.	Rea, L.
Corbett of Castle Vale, L.	Rendell of Babergh, B.
Crawley, B.	Rogers of Riverside, L.
Davies of Coity, L.	Rooker, L.
Davies of Oldham, L. [Teller]
Desai, L.	Sainsbury of Turville, L.
Donoughue, L.	Sawyer, L.
Dubs, L.	Scotland of Asthal, B.
Elder, L.	Sewel, L.
Evans of Parkside, L.	Sheldon, L.
Evans of Temple Guiting, L.	Simon, V.
Falconer of Thoroton, L. (Lord Chancellor)	Slim, V.
	Stone of Blackheath, L.
Farrington of Ribbleton, B.	Symons of Vernham Dean, B.
Faulkner of Worcester, L.	Temple-Morris, L.
Filkin, L.	Thornton, B.
Fyfe of Fairfield, L.	Tomlinson, L.
Gale, B.	Triesman, L.
Gibson of Market Rasen, B.	Turner of Camden, B.
Golding, B.	Warner, L.
Goldsmith, L.	Whitaker, B.
Grenfell, L.	Whitty, L.
Grocott, L. [Teller]	Wilkins, B.
Harris of Haringey, L.	Williams of Elvel, L.
Harrison, L.	Woolmer of Leeds, L.

Resolved in the affirmative, and amendment agreed to accordingly.

5.56 p.m.

Clause 43 [Applications for planning permission and certain consents]:

Lord Rooker moved Amendment No. 30: Page 26, line 29, at end insert— (5) A development order must require that an application for planning permission of such description as is specified in the order must be accompanied by such of the following as is so specified—

1. (a) a statement about the design principles and concepts that have been applied to the development;
2. (b) a statement about how issues relating to access to the development have been dealt with.

(6) The form and content of a statement mentioned in subsection (5) is such as is required by the development order.

The noble Lord said: My Lords, this is not a concession but, having just pocketed one concession well in advance of when it may have been offered, I am mortified—it was not supposed to be that way.

In moving the amendment, and speaking also to government amendments Nos. 31 and 32, I will not repeat what I said earlier. However, the thrust of the amendments is to require applications for planning permission for development to be accompanied by a design statement, an access statement or both. The contents of the statements and the types of development to which they apply would be prescribed by regulations or in a development order.

Previous discussions, at this stage and earlier, have highlighted the importance of providing the right framework to promote design and access, including the ability to stand up to developers where necessary. Along with Clause 39 and planning policy statement 1, that means ensuring proper attention to design and access at all stages of the planning process. If the development does not address those issues, I do not see how it can be regarded as truly sustainable. I beg to move.

Lord Rogers of Riverside

My Lords, I add my wholehearted support to the Government for Amendment No. 30. Noble Lords will remember that I first raised the subject of design statements at Second Reading on 6 January. I am grateful to the noble Lord, Lord Lucas, my noble friend Lady Blackstone, and the noble Baroness, Lady Maddock, for their support for amendments in our names calling for applications for planning permission to be accompanied by design statements. I am also grateful to the Royal Institute of British Architects for supporting me and others in our efforts.

Perhaps most of all, I am grateful to the Minister and his colleagues. The Government have listened and responded well. One need only read the debates that we had on design in Committee and on Report to see how well they understand the key argument: that without ensuring design quality there is no urban renaissance. In Committee, my noble friend Lord Rooker said: If we deliver poor design, we know that we will not deliver sustainable development".—[Official Report, 22/1/04; col. 1253.] He also undertook to take the Bill back to his department and insist that design be included in it. He has kept to his word and the Bill—which until today did not feature the word "design" at all—is now all the stronger for it.

In speaking to Amendment No. 34, which is in my name and those of other noble Lords, I seek only clarification from the Minister that "planning permission" in Clause 43 embraces outline planning permission. I am aware of the Written Statement made in the other place by the Minister for Housing and Planning, Keith Hill, on 23 March. The Minister announced that applications for outline planning permission will have to be accompanied by design statements. Will Clause 43 have that effect or do the Government envisage another legislative route?

The Government's amendment places design at the heart of the planning process and that is where it should be. I am delighted and I urge noble Lords to support the amendment.

6 p.m.

Baroness Maddock

My Lords, I thank the Minister for bringing forward the amendment at this stage. There has been cross-party support for it all around the House. We have discussed in some detail what we mean by "design". I have two questions for the Minster.

In his letter to us explaining what the amendment does, he said that, The amendments require that in appropriate circumstances. Will the Minister clarify what he thinks those circumstances are? I would hate to think that we were talking about only a few large projects.

He also told us that, The detail of the information, and the circumstances in which it should be provided would still be for secondary legislation and guidance, on which we will consult further". Will the Minister explain that a little more and give us some extra detail about how that might happen? Having said that, I welcome the amendment and hope that the Minister can clarify those points.

Lord Lucas

My Lords, the Minister has achieved a great deal with the amendments in the group and I am extremely grateful to him.

Baroness Blackstone

My Lords, I wish to add my thanks to my noble friend the Minister and endorse what my noble friend Lord Rogers of Riverside said. We are enormously grateful to the Minister. As a result of his intervention, there will be many more better designed buildings all over the country, and he will have a place in heaven.

Lord Cobbold

My Lords, I, too, echo the words of the noble Baroness on the matter of design. I wish to ask the Minister a question in respect of Amendment No. 32, which relates to listed building consent and which is, presumably, consent to alter an existing building. What implication will that have as a statement after issues relating to access to a listed building have been dealt with?

Lord Rooker

My Lords, I am grateful for what has been said, but it is the Minister for planning and the Deputy Prime Minister who have agreed to this, but I have pointed out the strength of feeling in your Lordships' House, on all sides. Then I had to point out why there are four sides in your Lordships' House, of course.

I regret that I am not in a position to answer the detailed questions. As I have said earlier, there has to be consultation. I do not take the phrase "in appropriate circumstances" as a get-out or anything like that. I assure the noble Baroness, Lady Maddock, that it is not put there to undermine the thrust of what we are saying. There may be other circumstances, although I cannot imagine what they might be. The issue of "in appropriate circumstances" is for consultation and secondary legislation, but my notes say it refers to the difference between a domestic application and other applications. In other words, "domestic" might be work that someone wishes to carry out to their home, but that would be slightly different in relation to a new development.

Regarding her question on consultation—there is ongoing consultation on, for example, the standard form provisions in preparation for the powers of Clause 43. The Office of the Deputy Prime Minister has commissioned consultants to consider the design and content of the standard form for planning permission, listed building and conservation area consent applications, statement of development principle applications—which might now be a waste of time—tree preservation order applications, advertisement consent applications, applications for lawful development certificates; and the consultants have been asked to produce guidance to help applicants complete the forms.

Emerging work from the review suggests that rather than having separate forms for each type of application it would be more efficient to have a basic form for general details, with additional sheets covering different regimes—much like the design of a tax form, it says here.

Noble Lords

Oh!

Lord Rooker

My Lords, no, I have to say that the design of the Inland Revenue tax forms is fantastic, compared to what it has been. It is incredibly user-friendly, one does not need an accountant to fill it in and, with separate sheets, it works extremely well. The consultants' reports that are nearing completion should be available on the ODPM website by the end of March. Before prescribing any form, we vv ill consult on the standard form and its associated guidance. I am informed that we should be in a position to undertake the consultation by the summer, which to me is June, July and August.

On Question, amendment agreed to.

Lord Rooker moved Amendments Nos. 31 and 32: Page 27, line 19, at end insert— (b) the form or content of any document or other matter which accompanies the application. Page 27, line 30, at end insert— ( ) In section 10 of that Act after subsection (3) there are inserted the following subsections— (4) The regulations must require that an application for listed building consent of such description as is prescribed must be accompanied by such of the following as is prescribed—

1. (a) a statement about the design principles and concepts that have been applied to the works;
2. (b) a statement about how issues relating to access to the building have been dealt with.

(5) The form and content of a statement mentioned in subsection (4) is such as is prescribed."

On Question, amendments agreed to.

Baroness Hamwee moved Amendment No. 33: After Clause 43, insert the following new clause— "DUTY TO HAVE DUE REGARD TO NEED FOR ACCESSIBLE BUILDINGS

(1) In dealing with an application to which this section applies, the local planning authority, or as the case may be, the Secretary of State must have due regard to the need to ensure reasonable access and ease of use for people, regardless of disability, age or gender is provided in the context of the works in question. (2) This section applies to—

1. (a) an application under section 62 or 73 of the principal Act for planning permission;
2. (b) an application under section 92 of the principal Act for the approval of reserved matters;
3. (c) an application for the approval of details required under a condition of a grant of planning permission (including a permission granted by a development order);
4. (d) an application under section 10 of the listed buildings Act 1990; and
5. (e) an application under section 2 of the Ancient Monuments and Archaeological Areas Act 1979 (c. 46).

(3) For the purposes of subsection (1), the local planning authority or the Secretary of State must have regard to national policies and advice contained in guidelines issued by the appropriate authority. (4) The appropriate authority is—

1. (a) the Secretary of State in relation to England;
2. (b) the National Assembly for Wales in relation to Wales."

The noble Baroness said: My Lords, in moving Amendment No. 33, I shall speak also to government Amendments Nos. 94 and 97.

The purpose of this amendment is to place a new duty on planning authorities to have due regard to the need to ensure that reasonable provision is made so that buildings and their approaches are accessible to and usable by people, regardless of disability, age or gender, when considering planning applications. Amendments Nos. 30 and 32, to which your Lordships have just agreed, are perhaps more pertinent to developments that are the subject of particular applications.

It is widely accepted that the current system is failing. I very much welcome the repeal of Section 76, which is the subject of the two government amendments in this group. However, having warmly welcomed the amendments that the Government have agreed, I look forward to whatever news the Minister has for the noble Baroness, Lady Wilkins, about the Disability Rights Commission and the other organisations that she mentioned. Nevertheless, I felt that it was still worth discovering whether your Lordships would agree to this additional amendment.

The Minister did not comment on the matter when it was before the House at the last stage. However, as I understand it, in mainstreaming inclusive design and access, the Government would prefer to rely on planning policy statements, saying that those would be material considerations in planning decisions. If the development plan fails to set clear policies on access, the planning authorities will need to look at the relevant planning policy statement.

The Disability Rights Commission—I am grateful for its briefing, with which I agree—and others say that that is not good enough, for the following reasons. First, access for disabled people is already a material consideration but experience shows that the system is not delivering. I remember that at Second Reading the noble Baroness, Lady Wilkins, gave a number of examples of ways in which the system is failing, relating some personal stories of how individuals had come up against the system and quite literally banged their heads against problems.

Secondly, the guidance does not end the enormous variances in the ways in which different local planning authorities address access to the built environment.

Thirdly, of course, the courts are the ultimate arbiters of what is a material consideration, and they do not always quite go along with government guidance. We know as regards Section 106 agreements that the courts have to some extent rewritten the rules. In any event, the courts attach more importance to statutory duties than to guidance, and so they should.

Finally, unless and until there are clear duties in planning law on inclusive environment—it is probably human nature but it is part of our role to try to change the culture—too many planning officers and inspectors will continue to overlook access issues in determining planning applications. I beg to move.

Lord Rooker

My Lords, I have a considerable degree of sympathy with what the noble Baroness said. It applies to other parts of the Bill and to what is currently happening. The Bill will change the culture and the process. One could argue that her example relates to the idea that the Bill is designed to change the present system. We recognise that it has failed properly to address access and inclusion. There is no doubt about that—the present system has failed and we plead guilty.

We want a new system and the provision is intended to ensure that local authorities promote an inclusive environment and fully consider the needs of those with disabilities throughout the planning system. That means that issues such as level access are considered at the earliest possible stage. Access is considered by developers before we reach the application process. Therefore, Amendment No. 33 is unnecessary because the new system makes access just as important as other planning considerations. Furthermore—and I know that this is a little niggly—we are advised that legally speaking the amendment would not add anything. If the need to ensure reasonable access and the ease of use is a material consideration in relation to a particular application, the Secretary of State would have to have regard to it regardless of the amendment. The new planning system which is part of the Bill will produce more effective and focused results and clearer consideration of access issues throughout the process.

That is not a criticism of the amendment far from it. It is merely a question of the amendments and the debates catching up with what is now in the body of the Bill.

Baroness Hamwee

My Lords, I know not necessarily when I am beaten but when I have to withdraw. I beg leave to do so.

Amendment, by leave, withdrawn.

[Amendment No. 34 not moved.]

Clause 44 [Power to decline to determine applications]:

Lord Rooker moved Amendment No. 35: Page 28, line 10, leave out "a" and insert "more than one

The noble Lord said: My Lords, in moving Amendment No. 35, I shall speak also to Amendments Nos. 36 to 38. We propose in Clause 44 to inhibit the use of repeat applications to wear down the opposition to controversial developments. Clause 44 provides for an amended Section 70A in the principal Act. The substituted Section 70A enables a local planning authority to refuse to determine a planning application where any of the conditions set out in subsections (2) to (4) of that section are satisfied and the authority considers that there has been no significant change in the relevant considerations in the period of two years since a previous application was determined. The applicant cannot engage the right of appeal under Section 78 of the principal Act because that section does not allow an appeal in these circumstances.

If the applicant wishes to challenge the decision of the authority, he or she must do so by way of judicial review. The conditions set out in subsection (4) provide that where in a two-year period preceding the receipt of a planning application the authority has refused a similar application and there has been no appeal to the Secretary of State against refusal, the authority may refuse to determine the current application.

The Government have received representations from house builders who want a right of appeal against the planning authority declining to determine a repeat application. They consider that without this, it would be unfair to developers who genuinely attempt to resolve issues that are of concern to the local authority. We have been persuaded of the merit of this proposal.

We consider that there should be a right of appeal on grounds of non-determination, but that it should be limited to a second application only. That is the general thrust of these amendments. I beg to move.

On Question, amendment agreed to.

Lord Rooker moved Amendments Nos. 36 to 38: Page 28, line 12, leave out "that refusal" and insert "any such refusal Page 29, line 32, leave out "a" and insert "more than one Page 29, line 34, leave out "that refusal" and insert "any such refusal

On Question, amendments agreed to.

Clause 45: [Major infrastructure projects]:

Lord Hanningfield moved Amendment No. 39: Page 31, line 14, at end insert— ( ) Any planning application that the Secretary of State declares is of national or regional importance, as designated through subsection (1), must be subject to an economic impact report. ( ) Any planning application for a major infrastructure project based on a site-specific proposal in a national policy statement White Paper shall be considered by an inspector who shall be able to question the need for a specific development.

The noble Lord said: My Lords, we now come to this extremely important amendment to the Government's proposals for major infrastructure projects. We did not discuss the amendment in great detail on Report because of the lateness of the hour. However, we had a useful exchange of views, which has been supplemented by a letter from the noble Lord, Lord Rooker, reiterating the points that he made in this House on 1 March. I thank him for that letter.

The amendment is intended to ensure that major infrastructure projects are subject to an economic impact report and to exclude site-specific proposals from White Paper national policy statements, to prevent them from reducing the scope of a public inquiry. The two provisions in the amendment are crucial to enhancing the democratic element of the Government's proposals in this part. I shall speak to each in turn.

The first paragraph of the amendment would require the Secretary of State to conduct an economic impact report on any planning matter that he deems to fall within this part of the Bill. Major infrastructure projects that may cause great damage to the environment are usually promoted on the basis that they will deliver economic regeneration benefits. Thus, a robust appraisal of whether demonstrable economic benefits will accrue must take place.

The noble Lord, Lord Rooker, may say that the first paragraph of the amendment is unnecessary because the Government expect the promoter of a development of a type such that the Secretary of State is likely to declare a major infrastructure project to engage with all parties concerned at as an early stage as possible. Apparently, that would be well in advance of the stage at which the amendment proposes an economic impact assessment. However, as important as is the sequence concerning when an economic impact report is produced, it is more important that there is a guaranteed mechanism in the Bill by which the economic logic and justification for any development is subject to rigorous scrutiny. Statutory economic impact reports would comprehensively probe new infrastructure proposals for their genuine economic implications—both positive and negative. They would provide a firm, realistic basis for discussion of a project's likely economic consequences.

I agree with the noble Lord, Lord Rooker, that the arguments about the economic impact should be in the public domain at an early stage. However, perhaps if the Secretary of State made it clear earlier in the process whether the proposed development was a major infrastructure project, a statutory economic impact report would then be in the right part of the sequence to maintain the scrutiny required to ensure that the economic assumptions of the development were fully tested.

Local people affected by major proposals will not wait until an inquiry to make their voices heard. They want to confront the issues head on. By the time that the inquiry comes round—perhaps one or two years later—positions will have hardened and there will be little chance of persuading people of the merits of a particular development. That is all right if we are not too concerned about taking the local community with us, but I believe that that is wrong. We should make every effort to ensure that local people fully understand the rationale behind such planning proposals.

For those people in favour of a development, getting strong economic arguments into the public domain as early as possible should be welcome. I should have thought that the Government would seek to reshape local debate in that way. Robust economic documents and their potential to win over critics will be crucial for the processes of planning major infrastructure projects in future—Stansted Airport, bridges across the Thames and so on. Only impartial statutory economic impact reports can guarantee people's trust in the system.

The second paragraph of the amendment is equally important. It would enable an inspector to examine the justification for site-specific proposals in a White Paper. Planning by White Paper is simply unacceptable. Of course, we support the use of White Papers to provide a framework for guiding the planning of major infrastructure. However, bypassing the checks and balances in the planning system by making site-specific recommendations is another matter entirely. As I said on Report, that is what has happened at Stansted.

The noble Lord, Lord Rooker, has said that a national policy White Paper should help reduce the argument at planning inquiries about the need for specific development of a site. Although a White Paper does not authorise or preclude any development, it sets out clear national policies that are designed to speed up the process of major infrastructure projects.

The Minister is walking an impossible tightrope, while trying to leave the theoretical possibility of an inquiry. At an inquiry, the need for a site-specific development could be subject to challenge. The logic of that argument is clearly that the White Paper would pre-empt such questions from being asked.

Major infrastructure projects rarely enjoy all-round support, but they must have public legitimacy. A White Paper consultation does not adhere to the same checks and balances as a planning application. Even if a White Paper has gone through the Houses of Parliament, the planning system has not been nationalised yet. I mention that because the Minister mentioned the weight that should be attached to White Papers.

White Papers are very important, and I strongly believe that they should not undermine the democratic and local conventions of the planning system in this country. It is essential that democratic safeguards in the planning system, which help protect the environment and enhance the quality of life of local communities, are not bypassed. This is an important amendment. I beg to move.

Baroness Hamwee

My Lords, I was struck by what the noble Lord, Lord Hanningfield, said at the last stage. He has more or less repeated that.

On 1 March he talked about people not wanting to, wait until an inquiry to make their voices heard". I was particularly struck by his suggestion that: By the time the inquiry takes place, positions will have hardened".—[Official Report, 1/3/04; col. 535.] The Campaign to Protect Rural England has been a vigorous supporter of this amendment. That organisation might be thought to be less concerned with economic impact assessments than with pinning down every last detail of environmental appraisal. The fact that it is not—and I do not think there is anybody in the Chamber whom I will provoke too much by stating this view—is probably a major achievement of the EU.

At the last stage the Minister spoke at length on this amendment, but he did not say why he opposed it. He suggested that it was unnecessary—he says that in his letter.

On the second limb, the EU environmental impact assessment directive requires consideration of the alternatives to many major projects. The Minister said that the inspectors should not have to spend inquiry time on an alternative. That either means that the amendment is otiose, or it is necessary because of the confusion. But neither way is it wrong. We support the amendment.

Lord Bassam of Brighton

My Lords, as the noble Lord, Lord Hanningfield, has said, this is an issue that has been debated many times, and at least twice in your Lordships' House. Although the debate was not as full as the noble Lord would have liked, we recognise that it was an important debate.

The noble Baroness, Lady Hamwee, has anticipated some of the arguments that we intend to deploy this evening. At an earlier stage, we said that we thought that the amendment was unnecessary because a promoter of the type of development which the Secretary of State is likely to declare a major infrastructure project—either of national or regional importance—would engage with all parties concerned as early as possible. Intelligent developers will do that, whatever the nature of the development, particularly if they want to be successful.

We would expect some form of economic impact assessment or report to have been completed in preparation for the application, in much the same way that we would expect an environmental impact assessment or statement to have been prepared. This should be—would be—well in advance of the stage at which the amendment envisages it happening. Any major developer will look at those issues right at the outset, to understand the opportunities and options—and the likelihood of the application's success. We would expect the promoter of a development of the type that we are discussing to engage at an early stage with all concerned. That would mean that, by the time an application for planning permission was made to the local planning authority, the community would have already been actively engaged in the processes.

It puzzles us slightly why the noble Lord, Lord Hanningfield, feels that only an economic impact report should be a statutory requirement for a major infrastructure project inquiry. What about all the other important impacts, such as those on transport, highways, amenity value and loss, and social, environmental and cultural factors? All those seem highly relevant, so why just focus on the narrow concern of economic impact?

On the second subsection of the amendment, I shall repeat what was said both in Committee and on Report. Clearly, where there is a national policy statement, or White Paper, it will help to reduce argument at a planning inquiry about the need for a specific development of a particular type at a particular site. Where need is established by a national policy statement, the inspector should not have to spend lots of inquiry time considering whether a need for the development exists. He should instead consider whether the need identified is outweighed by other factors. That does not rule out the possibility that the inspector will spend some time looking at need, but it will be in the context of what is said about need in the national policy statement. I do not think that we can say more than that. The Government do not want to require through primary legislation that an inspector considers need. There may be circumstances where there is agreement on the issue of need and when inquiry time could be more usefully spent considering other issues specific to the proposed development.

I recognise the importance of the amendment and understand why the noble Lord, Lord Hanningfield, tabled it, particularly given his experienced background and knowledge of major development proposals in and around Essex. However, it is too narrowly concerned and too narrowly crafted. In the circumstances, we do not wish to see the amendment pushed forward. We do not think that it adds anything further to the legislation, so I hope that the noble Lord will withdraw it.

Lord Hanningfield

My Lords, I thank the Minister for that response. We have debated the matter but not as fully as one would have liked, and it has normally been at a late hour. I thank the noble Lord, Lord Bassam, for his comments today. Major infrastructure developments are normally put forward for economic benefit and need—I do not like to return to Stansted, but it is in the context of economic benefits and need. That is why we are suggesting an economic impact assessment first, rather than all the other impact assessments. I agree that they must take place, but they should come as part of the inquiry and the debate on the whole issue. That is why it is important that the inquiry should have the opportunity to discuss all the issues relating to a major project.

I agree totally that inquiries should not last three or five years, for example, and that we should speed up the processes. But there must be the opportunity at an inquiry to question the need and the positioning of a runway or a bridge, for example. Later we will have bridges along the Thames, which will involve another big debate. I am not saying that those projects should not happen; governments have a right to put in White Papers that they should happen. But there must be local debate and a proper inquiry to ascertain the positioning, potential need and the reasoning behind projects.

I do not think that the Government have fully allayed people's fears that there will be enough freedom and democratic input to those major national decisions, which affect so many people's lives and affect our country for ever. Therefore, I feel that I need to test the opinion of the House.

6.29 p.m.

On Question, Whether the said amendment (No. 39) shall be agreed to?

Their Lordships divided: Contents, 91; Not-Contents, 80.

Division No. 9
CONTENTS
Addington, L.	Glentoran, L.
Alderdice, L.	Greaves, L.
Anelay of St Johns, B.	Hamwee, B.
Astor of Hever, L.	Hanham, B.
Attlee, E.	Hanningfield, L.
Avebury, L.	Harris of Richmond, B.
Barker, B.	Higgins, L.
Beaumont of Whitley, L.	Hodgson of Astley Abbotts, L.
Biffen, L.	Howe, E.
Blatch, B.	Hunt of Wirral, L.
Bradshaw, L.	Jenkin of Roding, L.
Bridgeman, V.	Jopling, L.
Brittan of Spennithorne, L.	Kingsland, L.
Burnham, L.	Lester of Herne Hill, L.
Byford, B.	Liverpool, E.
Caithness, E.	Lucas, L.
Carlisle of Bucklow, L.	Luke, L.
Colwyn, L.	Lyell, L.
Cope of Berkeley, L. [Teller]	McColl of Dulwich, L
Craigavon, V.	Maddock, B.
Deedes, L.	Mancroft, L.
Denham, L.	Marlesford, L.
Dixon-Smith, L.	Miller of Hendon, B.
Eccles of Moulton, B.	Monson, L.
Eden of Winton, L.	Mowbray and Stourton, L.
Elton, L.	Newby, L.
Falkland, V.	Newton of Braintree L.
Finlay of Llandaff, B.	Northbrook, L.
Fookes, B.	Northesk, E.
Fowler, L.	O'Cathain, B.
Geddes, L.	Park of Monmouth, B.

Peel, E.	Seccombe, B. [Teller]
Phillips of Sudbury, L.	Selsdon, L.
Pilkington of Oxenford, L.	Shaw of Northstead, L.
Rawlings, B.	Shrewsbury, E.
Razzall, L.	Shutt of Greetland, L.
Reay, L.	Skelmersdale, L.
Redesdale, L.	Smith of Clifton, L.
	Stewartby, L.
Rees, L.	Swinfen, L.
Rennard, L.	Taylor of Warwick, L.
Renton, L.	Thomas of Walliswood, B.
Roper, L.	Tope, L.
Rotherwick, L.	Tugendhat, L.
St. John of Bletso, L.	Wilcox, B.
Sanderson of Bowden, L.	Williams of Crosby, B.

NOT-CONTENTS
Acton, L.	Hayman, B.
Ahmed, L.	Hogg of Cumbernauld, L.
Alton of Liverpool, L.	Hollis of Heigham, B.
Amos, B. (Lord Privy Seal)	Howells of St. Davids, B.
Andrews, B.	Hughes of Woodside, L.
Archer of Sandwell, L.	Hunt of Chesterton, L.
Ashton of Upholland, B.	Hunt of Kings Heath, L.
Bach, L.	Irvine of Lairg, L.
Bassam of Brighton, L.	Janner of Braunstone, L.
Bernstein of Craigweil, L.	Judd, L.
Blackstone, B.	Lea of Crondall, L.
Bragg, L.	Lipsey, L.
Brooke of Alverthorpe, L.	McIntosh of Haringey, L.
Brookman, L.	MacKenzie of Culkein, L.
Campbell-Savours, L.	Mackenzie of Framwellgate, L.
Carter, L.	Massey of Darwen, B.
Christopher, L.	Mitchell, L.
Clarke of Hampstead, L.	Pitkeathley, B.
Clinton-Davis, L.	Rendell of Babergh, B.
Corbett of Castle Vale, L.	Robertson of Port Ellen, L.
Crawley, B.	Rogers of Riverside, L.
Davies of Coity, L.	Rooker, L.
Davies of Oldham, L. [Teller]
Desai, L.	Sainsbury of Turville, L.
Donoughue, L.	Sawyer, L.
Dubs, L.	Scotland of Asthal, B.
Elder, L.	Sewel, L.
Erroll, E.	Simon, V.
Evans of Parkside, L.	Stone of Blackheath, L.
Evans of Temple Guiting, L.	Symons of Vernham Dean, B.
Falconer of Thoroton, L. (Lord Chancellor)	Temple-Morris, L.
	Thornton, B.
Farrington of Ribbleton, B.	Tomlinson, L.
Faulkner of Worcester, L.	Triesman, L.
Filkin, L.	Turner of Camden, B.
Gale, B.	Warner, L.
Gibson of Market Rasen, B.	Whitaker, B.
Golding, B.	Whitty, L.
Goldsmith, L.	Wilkins, B.
Grocott, L. [Teller]	Williams of Elvel, L.
Harris of Haringey, L.	Woolmer of Leeds, L.

Resolved in the affirmative, and amendment agreed to accordingly.

6.40 p.m.

Clause 46 [Planning contribution]:

Lord Lucas moved Amendment No. 40: Page 33, line 9, at end insert ", or ( ) by agreement or otherwise

The noble Lord said: My Lords, in moving Amendment No. 40 I shall speak also to Amendment No. 41. I shall be extremely brief and I hope that the Minister will be able to give me the comforts I am looking for. The purpose behind these amendments is to ensure that after all the changes to and arguments over this Bill, it will still be possible for developers to make unilateral undertakings and for someone with an interest in land to enter into a planning obligation. I am not clear that this will be possible given the way the Bill is now set out. I have written to the Minister at length and I now look forward to his response. I beg to move.

Baroness Hanham

My Lords, I wish to speak to the five further amendments in the group, Amendments Nos. 42, 44, 45, 96 and 99. They all concern Section 106 and the proposed planning contributions to be made in the form of a tariff.

On Report the Minister gave a firm indication that Section 106 of the Town and Country Planning Act would not be repealed, rather it would be included in regulations. Of course the Bill does repeal it in Schedule 6. We discussed at length the question whether, if it was repealed in this Bill, it could then be resurrected in regulations at a later stage. In speaking to Amendment No. 96, I want to put on the record that I think this is a very strange way of proceeding. Although the Minister is shaking his head, it is odd to repeal a section and then bring it back in regulations which may or may not come before Parliament again. However, we accept that Section 106 is going to continue in some form.

I turn to the tariff system. Again, on the last occasion that we discussed this, it had been decided, as the result of an intervention by the noble Lord, Lord Best, that tariffs needed to be looked at because of the impact they might have on affordable housing. I understood that a ministerial task force was being set up to look at the whole question of tariffs and decide how best to put them together. Again, this is a very strange way of proceeding at such a late stage of a Bill that has been meandering through Parliament for almost a year and a half. When the Bill was first introduced the tariffs were not included in it. They appeared at the end of the Bill's consideration in the other place.

I understand that the task force has been set up. It is due to report by September 2004. However, it has not had an auspicious start. An initial scoping meeting was held and a provisional date of 23 March was agreed for its first meeting. That did not take place and no subsequent date has been set. That does not set a good precedent for the importance that the Government attach to the task force. Perhaps the Minister can tell us why the meeting did not take place and whether it is envisaged that the six-month programme, which will not be completed until September, is still on target.

There is an added complication to the question of tariffs. We have touched on the Kate Barker housing review many times today. It states that the tariffs are "second best". What Kate Barker wants is a proper planning development tax, which of course is not what is provided in this Bill.

In the letter sent by the noble Lord to the noble Baroness, Lady Maddock, earlier this week, he stated: The Government has a clear view of the broad shape of the tariff system, but has no details". That really sums it up.

The only part about which I am dubious is whether the "broad vision" is correct because, despite the matter being discussed on many occasions in the House, we still have no idea what the tariff will involve. The only saving grace is that the Government have made no case for hanging a sword over Section 106, which appears to be widely accepted by developers, and that section will be maintained.

We need a little more explanation of what is going on in regard to planning contributions. What are the proposals for ensuring that Parliament will have an opportunity to consider how the tariff system, if it comes into being, will operate? I understand that Section 106 is due to be reviewed as part of the work of the task force. We will need to consider the implications of that.

This is a serious matter and I hope that the Minister will be able to give satisfactory answers.

Baroness Maddock

My Lords, I support very much what the noble Baroness, Lady Hanham, has said. Indeed, I am grateful to the Minister for sending me a detailed letter about primary and secondary legislation in the area of Section 106 agreements and tariffs.

We have made it quite clear that we would prefer to see an improved Section 106 system, not another new tariff system. As other noble Lords have said, the Barker review was published this week and contains, perhaps, a third method of dealing with the issue. Perhaps the Minister will explain today how this all fits together.

Like the noble Baroness, Lady Hanham, and others, we are concerned that at the previous stage we were given reassurances about the consultation on this matter. In particular, the noble Lord, Lord Best, raised issues in regard to affordable housing. Since then, the National Housing Federation and the British Property Federation have written to me and have expressed great concern, as the noble Baroness, Lady Hanham, said, about the progress of the consultations that were supposed to take place.

In the letter, the Government query our wish to retain Section 106 and state that other people have been very critical of it. That is true, but we want to keep a reformed version of it. Even some of the people who are critical of it want to see it reformed. We were given a summary of the consultation on the tariff system but there was not a single number in it quantifying any of the decisions. As I said at the time, if anyone undertaking a GCSE project had handed a summary like that in, they would not have been allowed to get away with it. But we are supposed to use it as a basis for moving forward on this important issue.

The Barker review will make a difference. I hope that the Minister will explain how the Government intend to deal with it. Again, I know that the British Property Federation is concerned about this and that it feels that if the Government press ahead with their current proposals we will end up with another change in a couple of years' time. I hope the Minister will be able to answer that point.

We have discussed this matter at some length—and I think the Minister knows where we all stand on it—but, because of the lack of clarification and the fact that all the detail will be in secondary legislation, it will be extremely difficult for this House to scrutinise the legislation properly and have a proper input. The Minister often refers to consultation and so on. If I had an office with three or five people researching for me, I could perhaps respond in detail to all the consultations. I cannot do that, but if matters are in primary legislation I have an opportunity to debate them on the Floor of the House.

This is a very serious matter. I am disappointed in the way it has been dealt with and I hope that the Minister will explain how it will be taken forward. Perhaps he will say how the Government intend to ensure that it works and that someone approves of it. Having seen all the planning proposals coming out of the Kate Barker review, I think I now understand why so much of what we have been discussing has to be in secondary legislation. It is so that the Government can bring in whatever they want from what has been said. That is not the right way to carry forward such an important issue. I look forward to hearing what the Minister has to say.

Lord Rooker

My Lords, I will first deal with the bones of the amendment and then say something about Barker. I can say to the noble Lord, Lord Lucas, that the Government sympathise with the intent of Amendments Nos. 40 and 41, but believe that they are unnecessary. The amendments appear to be aimed at ensuring that planning contributions can be made by unilateral undertakings. Unilateral undertakings are most often made when a local planning authority refuses a planning application and the applicant then appeals to the Secretary of State. The applicant can offer a planning obligation at that stage, even if he has not been able to agree the terms of an obligation with the local planning authority.

The Secretary of State is able to take the unilateral undertaking into account when deciding whether to grant planning permission on appeal if he is satisfied that the undertaking is sufficient to make the application acceptable in planning terms. I give a clear assurance to the House that under the new system, the Government fully intend that developers will be able to make contributions by unilateral undertakings. Clause 46(2)(b) contains sufficient power to enable the Secretary of State to do that. I hope that that is sufficient response for the noble Lord.

On Section 106, I know that it is late and I do not want to wind anybody up, but I have to say that there is an unreasonable degree of impatience about the tariffs. It is not a function of Parliament to write all the details. That is not our role. I am not teaching my aunt to suck eggs, but I am asking for patience. There will be ample opportunity for this House and the other place to fully scrutinise the proposals that the Government bring forward, which will, after all, involve money. There will be full opportunity and bags of time, but it should not happen now. That is all. I am asking for a little patience. It is wholly unreasonable to expect the information now in view of all the detail. This issue was originally in the White Paper, taken out of the Bill and then it returned 18 months later. I fully accept all that, but it had not been on the back burner; it had been off the agenda altogether until we had another look at Section 106 in the light of the Bill being carried over from one Session to the next.

We are abolishing Section 106 from primary legislation, but there is nothing unusual about moving blocks of legislation around. It is sometimes necessary. As I said at an earlier stage, it would be much better to have the legislation on the planning applications in the round, effectively in one document. The new optional charge will be introduced alongside the negotiated or unilateral undertaking route. It will be an optional charge. Obviously, there will be substantial consultation on that. It is no good people outside setting up aunt sallies and talking about red herrings. I apologise if the detail is not there, but that is the way of the world. It is too soon.

The advisory group was due to have its first meeting this week, but that has been postponed until April to give time to reflect on the implications of the Barker proposals. It is easy for me to say this, but I genuinely ask the House to bear with us. Although it was known what was in Barker as it came to the end of its deliberations, it was not possible to go around talking to the relevant parties to find out what was involved until it was published as part of the Budget day operation. We needed time to have a look at it. The stakeholders are quite content with the arrangements for taking on board what Barker has said and having the first meeting in April. There has been no problem and no complaint from any of the stakeholders. I mean that genuinely, because we are dealing with a practical point of view.

Baroness Hanham

My Lords, both the noble Baroness, Lady Maddock, and I have received letters from major stakeholders saying that the meeting has not taken place and that they are very concerned.

Lord Rooker

My Lords, I have given them an explanation. My note says that the stakeholders were content with the change in the arrangements. The change was because Barker was published only last week on 17 March. It is a very substantial document, not a few pages of A4. It is a major document, notwithstanding the fact that there had been an earlier interim report.

We want people to use Barker and to get the best out of it, so that we can get as much of a consensus as possible. I am not aware of people complaining about it. There is no secret, no ulterior motive or problem, other than to allow the Barker report fully to sink in with people.

I have more than a few paragraphs on Barker here, and I will not go through them all. However, there are a few points in respect of the planning obligations reform which are worth putting on record. It is an initial response to the Barker recommendations. That is all it is: an initial response. Please do not complain that it is not full and detailed. It is an initial response by the Government to the Barker review, because this is very substantial and cuts across many departments.

First, we have to be clear about the context of the recommendations. Barker gives broad support to the direction of the Government's reforms to planning obligations, in particular the increase in certainty, clarity and transparency, and the reduction in negotiation costs for both local authorities and developers.

The Barker report proposes a new planning gain supplement. This would be a charge levied at the point of planning permission and related in size to the increase in the land value caused by the grant of planning permission. The grant of planning permission would depend on a payment of the planning gain supplement. The aim of this supplement would be to ensure that a proportion of landowner development gains are recycled back into the community. It is the community that grants the planning permission in the first place.

The report goes on to recommend that, if the Government were to introduce this new supplement, first, planning obligation should be scaled back to the aim of direct impact mitigation, and the Office of the Deputy Prime Minister should issue guidance or new legislation to this end. It is Parliament that issues legislation, of course, but that is the thrust of it.

Secondly, planning obligation should retain its current affordable and/or social housing requirements, as set out in circular 698. Thirdly, local authorities should receive a direct share of the receipts from planning gain supplement generated in their area, which local authorities should be free to spend as they wish.

The question is, how do the Government respond to these recommendations? I have already written to all the noble Lords who have spoken in these debates on planning obligations, setting out our response, and I will take this opportunity to state the views to the House.

First, we welcome Barker's support for the direction we are taking in planning obligation reform. These issues that is, certainty, clarity and transparency—have consistently been identified in criticism of the current system, and it is right that we focus on them.

Secondly, the Chancellor of the Exchequer has proposed a national debate on the basis of the Barker report and has said that he will consider this particular proposal over the next 18 months. That is a reasonable point for the Chancellor of the Exchequer to make. He is not going to rush to judgment on this substantial issue. We do not think that the Barker conclusions or the Chancellor's proposal cause us to change our policy approach. We regard the reform of planning obligations as urgent, in view of the widespread criticism there has been of the present arrangements. On the other hand, I freely admit that, listening to the debate in this House, anyone would think that everything is hunky-dory and perfect. We did start off by saying that there were major problems with the way Section 106 had operated, and that remains our position.

We continue to believe that developers should have the choice of a charge or a negotiated agreement, depending on which seems to be the best and speediest option for them in the particular circumstances of their development. We want the new arrangements to be provided for at local level in the new development plans.

I am coming to the end of this. It is only an interim response. We should also note that Kate Barker says that if the Government decide not to proceed with her suggestion of a planning gain supplement, we should proceed with our present package of reforms, offering the choice of a charge or negotiation.

Were the Chancellor to decide in due course to proceed with a planning gain supplement, the provisions in the Bill would allow us to adjust our proposals to make them, if need be, complementary to the planning gain supplement.

Some might suggest that in the event of the Government accepting Barker's recommendations they might move to a framework for planning obligations using only the negotiated route. That would present a reason for deleting the clauses and the provision for an optional charge. However, that overlooks a significant point. An important advantage of reconstituting Section 106 in regulations is that it would allow us to ensure that planning contributions that are negotiated or contained in unilateral undertakings could be limited in future to direct impacts and affordable housing—that is, the Barker approach—if that is the route we decide to follow in due course. Under the present law we do not have that flexibility. Therefore, maintaining this approach and proceeding with the Bill as it is gives us the flexibility of converting Section 106 into the regulations.

7 p.m.

Baroness Hanham

My Lords, it is not for me to reply on this amendment, but I am so shocked that I think I have to say something before the noble Lord, Lord Lucas, replies. I am almost speechless. Here we are at the end of the Bill, in its dying days, and we are suddenly told that Section 106 is in the melting pot along with Kate Barker's report. The Government should withdraw all these clauses and put them into different legislation that everyone can examine. It is not as though we have not consistently been asking for details about the planning contribution. The Minister says that it is not possible to give details.

It is outrageous that legislation should go through in this hibbledy-hobbledy way. One minute we are told that the clauses are included, but the next we are told that the whole thing is effectively going to be reviewed on the back of Kate Barker. If it was not so late I would be very tempted to test the opinion of the House. I will not do that, but I do think there is a big mess here. It is very serious that this should arise at this late stage of the Bill, which—with the White Paper—has been in, around and through Parliament for jolly nearly two years.

Lord Lucas

My Lords, I cannot but say I agree with my noble friend. However, I am grateful for the reply to my amendments. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 41 and 42 not moved.]

Clause 47 [Planning contribution: regulations]

Lord Bassam of Brighton moved Amendment No. 43: Page 34, line 17, at end insert— ( ) for a person obstructing the taking of such steps as are prescribed to be guilty of an offence punishable by a fine not exceeding level 3 on the standard scale;

The noble Lord said: My Lords, this amendment supplements the Secretary of State's power to make regulations to provide for planning contributions. The amendment enables the Secretary of State to provide in regulations that where a person instructs a person authorised by the local planning authority to carry out steps to enforce a planning contribution, it shall be an offence punishable by a fine not exceeding level 3 on the standard scale.

As we have made clear, the Government intend to reconstitute the current Section 106 provisions in the regulations to be made under Clauses 46 and 47 which we will be publishing for consultation in due course. We therefore also intend to recreate the existing offence at Section 106(8), making it an offence to obstruct the enforcement of a planning obligation. However, for the avoidance of doubt about the power to make such a provision in the regulations, we have decided that this particular element of the current Section 106 should be explicitly provided for. For that reason we are seeking to make this amendment to Clause 47(6). I beg to move.

Baroness Maddock

My Lords, I listened with some amazement and wondered precisely what level 3 was. I discovered that, actually, it is £400. It does not seem a very large fine or likely to put off people not doing the right thing. However, I am pleased that it is the same as Section 106. And for the record, perhaps I can say that we did not say that Section 106 was perfect. We said that it should be reformed.

Lord Lucas

My Lords, I was a little disturbed by the noble Lord's use of the phrase "for the avoidance of doubt". Does he mean that it is generally accepted but not totally accepted wisdom now that you can create criminal offences by secondary legislation with no mention of them in the primary legislation, or did he actually mean that there is no doubt at all that you cannot do it?

Lord Bassam of Brighton

My Lords, I probably meant "so that it was generally understood".

On Question, Motion agreed to.

[Amendment No. 44 not moved.]

[LORD BASSAM OF BRIGHTON]

Clause 48 [Planning contribution: Wales]:

[Amendment No. 45 not moved.

Lord Rooker moved Amendment No. 46: Before Clause 49, insert the following new clause— "DEVELOPMENT TO INCLUDE CERTAIN INTERNAL OPERATIONS

(1) In the principal Act in section 55 (meaning of development) after subsection (2) there are inserted the following subsections—

• "(2A) The Secretary of State may in a development order specify any circumstances or description of circumstances in which subsection (2) does not apply to operations mentioned in paragraph (a) of that subsection which have the effect of increasing the gross floor space of the building by such amount or percentage amount as is so specified.
• (2B) The development order may make different provision for different purposes."

(2) This subsection applies if—

1. (a) section 55(2) of the principal Act is disapplied in respect of any operations by virtue of a development order under section 55(2A) of that Act,
2. (b) at the date the development order comes into force a certificate under section 192 of the principal Act (certificate of lawfulness of proposed use or development) is in force in respect of the operations, and
3. (c) before that date no such operations have been begun.

(3) If subsection (2) applies the certificate under section 192 of the principal Act is of no effect.

(4) A development order made for the purposes of section 55(2A) of the principal Act does not affect any operations begun before it is made."

The noble Lord said: My Lords, on the last two occasions that we have discussed the issue—perhaps I may call it the mezzanine issue I promised the House that I would come back with a proposal when we had fully considered how to deal with proposals for additional floor space in buildings. I hope that the Government's new clause meets that commitment and will satisfy the concerns of the noble Baroness who initiated the debate and has pressed for change.

The new clause would have the effect of bringing within planning control the creation of additional floor space within existing buildings. At present Section 55(2)(a) of the Town and Country Planning Act excludes from the definition of development, the carrying out for maintenance, improvement or other alteration of any building of works which … do not materially affect the external appearance of the building".

This means that additional floors can be built within a building, even very large ones, without needing planning consent. But, unless this potential growth in floor space is brought within planning control, there is a risk that our wider retail planning policies could be undermined.

The new clause provides for Section 55 to be amended so as to enable the Secretary of State by a development order to bring specified proposals for the provision of extra floor space in existing buildings within the definition of "development". In future, a planning application will be required for those proposals to create additional floor space above the limit to be specified in the order.

We envisage that the development order will specify the type of floor space to which it applies and the scale of additional floor space which will require permission. It could, for example, specify that additional retail floor space above a certain threshold would be defined as "development". Our aim is to bring forward draft secondary legislation as soon as possible. Naturally, as a listening Government, we will consult widely before finalising the order. I hope that the provision meets with the satisfaction of the House. It is not an instant knee-jerk reaction but a considered view on what is identified as a serious problem. I beg to move.

Baroness Maddock

My Lords, I thank the Minister. It was not a knee-jerk reaction. He probably had to fight hard for it within his department. I and others are grateful for his efforts. My amendment, Amendment No. 48, which is grouped with the amendment, would put the matter on the face of the Bill. The Minister is providing for it through secondary legislation. I recognise that that is probably the best we shall get but I am pleased and thank the Minister.

Perhaps I may quote from a briefing I received from the CBI. It states: It should be accepted that mezzanine accommodation is a particularly effective way of meeting the need for further floorspace, within the context of sustainable development". Part of the problem is that what we mean by sustainable development is not understood. When I met with Asda, this was part of my argument. If one seeks to control expansion in particular in out-of-town shopping, while seeking a sustainable traffic policy, with town centres as part of the sustainable package, such an argument drives a coach and horses through the proposal. I thought it an extremely poor argument. I do not agree. It is sad that many businesses do not understand what we mean by sustainable development. They would gain for their customers if they did understand its meaning.

Having said that I am sure that the provisions are the best that we can get and that I am grateful for them, I am a little concerned that there are changes in proposed planning policy statement 6 from planning policy guideline 6. I have concerns that it appears to favour big stores. There is a problem with privileged individual applicants' business muddles being taken into account, and that acts a little against what we are trying to do on the mezzanine floors. Also, the Government have withdrawn the need to apply the sequential approach to extensions.

Although I welcome the provisions, I hope that the Minister will look carefully at planning policy statement 6 and make sure that it does not undermine what he has obviously worked very hard to get into the Bill. Lots of people outside the House will also welcome the Minister's hard work.

Lord Lucas

My Lords, I add my voice to the welcome for the clause. Some careful drafting of the secondary legislation will be needed to make the provisions work fairly and simply for the vast majority of shopkeepers. What concerns me about my reading of the Bill is that there seems to be some long period in which the noble Lord's favourite retailers will be calling in the builders to get something started, so that they do not come under the ambit of the clause. Am I reading it right, or will that start when the Bill receives Royal Assent?

Lord Rooker

My Lords, as I said, the change in the law proposed would be in secondary legislation, so we would have to consult on that. It would not come in now. obviously, because the details would have to be made in the regulations about how one measures the floor area. Some planning permissions have been given on the basis of floor area; that is the basis on which they were given, and one cannot go along putting in other floors. However, some have not. We have done enough checking on the matter, to make sure that there is a need. However, it is true that the provisions cannot be brought in overnight. We accept that; there is not much that we can do about it.

People talk about certain key retailers, but one also has to remember the existing policy. Our approach of putting town centres first remains the case; town centres first is the order of the day. PPG6 and PPS6, as it will be, do not change that. We have not gone soft on that at all. The sustainability of the town centres is crucial. One has to take that on board. There is another case, which is that some major players have made their investment decisions on the basis of PPG6—they have stuck to town-centre developments and have not gone out of town. We do not hear the CBI or others championing those. No one champions the individual shops in a town centre, because they are not a collective group; they are all diffused and small.

If one supports out-of-town development without looking at sustainability, one is attacking town-centre development, the very thing that we want to make vibrant, mixed and cohesive so that we do not have such pressure on the countryside and the green fields nearer the town centres. It works both ways; people are silent on one side and proactive on the other. To that extent, it is a one-sided approach from the large representatives of business and employers.

The town-centre approach stays first. Draft planning policy statement 6 is a draft—it is not the end. Quite clearly, we have received comments both for and against the changes, and they will be considered very carefully before we finalise the statement. I assure the House that the Deputy Prime Minister is absolutely adamant that we get sustainability and development in town centres as a first priority. That is existing policy; there is no change on that.

On the other hand, we need to look at some aspects of the drafting. We want to ensure that policy can cope better with some of the inevitable tensions, so that we are being fair. But we want to be fair to town centres and to those retailers and developers who have stood by sustainable town centres and have made multimillion pound investments on the basis of that policy remaining. The CBI will not be opening the door to work with them, because they are not asking for a change. I suspect that the CBI will be looking at the subs of its representatives, who are speaking just for one section of developers. We have here a sensible change. It is practical; it cannot be brought in overnight, but it sends a clear signal that we are not happy about exploitation of existing loopholes.

On Question, amendment agreed to.

7.15 p.m.

Baroness Hanham moved Amendment No. 47: After Clause 51, insert the following new clause— "PREVENTION OF ACTIVITIES REQUIRED TO CEASE BY ENFORCEMENT NOTICES AND STOP NOTICES

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

(2) After section 186 (compensation for loss due to stop notice) there is inserted the following section—

"186A ENFORCEMENT OF STOP NOTICE

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

1. (a) enter the land and remove any moveable objects which appear to them to be used for the activities, and
2. (b) recover from the person who is then the owner or occupier of the land any expenses reasonably incurred by them in doing so.

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

1. (a) any expenses incurred by the owner or occupier or any land for the purpose of complying with the notice, and
2. (b) any sums paid by the owner or occupier of any land under subsection (1) in respect of expenses incurred by the local planning authority in removing objects, shall be deemed to be incurred or paid for the use and at the request of the person by whom the breach of planning control was committed.

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

1. (a) section 276 of the Public Health Act 1936 (power of local authorities to sell materials removed in executing works under that Act subject to accounting for the proceeds of sale) and
2. (b) section 294 of that Act (limit on liability of persons holding premises as agents or trustees in respect of the expenses recoverable under that Act), shall apply, subject to such adaptations and modifications as may be specified in the regulations, in relation to any activities required by a stop notice to cease.

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

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

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

The noble Baroness said: I shall return briefly to a long amendment that I introduced last time, following which I had a discussion with the Minister, and I thank him for that courtesy, because it was helpful in clarifying my mind as to whether we should continue with the amendment.

Its purpose is to try to ensure that an illegal or unlawful planning process can be stopped, with the powers that are available once an enforcement notice has been issued, in the same way as for a stop notice. Part of the discussion last time related to whether the effect of my amendment could also to the temporary stop notice. Once a stop notice has been issued, as the Minister rightly said to me when we met, it becomes a fact and that stop notice means that people immediately become in breach of the law.

However much the Minister waxes lyrical about the matter, people do not always stop the breach, however much we would like to think so. The Minister asked me to give some examples. In fact, I will refer to Hansard, where the Minister himself gave me some good examples to justify the need for the temporary stop notice. They are exactly the same sort of examples that I would have given. I shall read from Hansard: These might include the inappropriate change of use of someone's backyard to a car paint-spraying business or the construction of an extension without planning permission".—[Official Report, 16/3/04; col. 201.]

I talked about the use of a barn for musical entertainment that was causing a nuisance. There are many good examples where a temporary stop notice is effective, where an enforcement notice could well follow, but where the process of the enforcement notice takes a great deal of time. As part of the enforcement notice, one could go on to the land and take possession of whatever is causing the problem, or take down the building. However, one cannot do that on either a temporary, or a full scale, stop notice. The trouble is that if one cannot do that and one cannot use Section 178, which allows the enforcement action, then the problem will carry on potentially for months—during the enforcement action and the appeal—before anything much can be done.

The temporary stop notice would be ideal if we also were able to introduce the provisions proposed in the amendment, because it would mean that the temporary stop notice of 28 days would allow the use of section 178 provisions immediately. One would probably end the enforcement problem within a very short time, instead of the months that can now follow.

That is the burden of my long amendment, which has been shortened substantially to the matters I have just mentioned and I hope that, as a result, the Minister will feel able to take the amendment on hoard, so that we have the means to prevent people who have been committing an offence from carrying on with that offence. I beg to move.

Lord Bassam of Brighton

My Lords, I am grateful to the noble Baroness, Lady Hanham, for her amendment. Although I was not a party to her discussions with my noble friend Lord Rooker, I understand the kinds of cases to which she referred. I can joyously remember, as a local authority leader, having to deal with such matters, having to ensure that residents were leaned on to prevent nuisances continuing and having endlessly to chase officers to do the best that they could in difficult circumstances in which they did not have adequate powers. I therefore understand the frustrations.

We have previously rehearsed the arguments relating to this matter. We believe that the powers sought by the amendment are unnecessary. Local planning authorities already have the enforcement notice, which requires activities to stop and remedial action to be taken, including entering and restoring the land. They also have the stop notice, which stops development, but can be served only after or at the same time as the enforcement notice and must relate to the activity prohibited by the enforcement notice.

Local planning authorities will soon have the temporary stop notice to which the noble Baroness referred. That will stop development at once, so that there will be no need to enter land to remove equipment. It is an offence not to comply with a stop notice and will be an offence not to comply with a temporary stop notice. We therefore believe that we have achieved a solution to the problem.

We can argue endlessly about this matter. I believe that we have to give it a go, use what we have put in and ensure that it works well. I hope that will mean that some of the nuisances to which the noble Baroness referred by back-referencing Hansard will be dealt with much more swiftly in the future.

Baroness Hanham

My Lords, will the Minister accept from me that the provisions of the temporary stop notice are exactly the same as those of the stop notice? I do not know what the penalties are for breaching those provisions—I have not looked at them—but the penalties exist. If someone carries on and refuses to stop the breach, then nothing more can be done until the enforcement exercise takes place. I know that injunctions can be taken out. So far as I am aware, the temporary stop notice has no powers different from those of the stop notice. If someone chooses to commit a criminal act in breach of a temporary stop notice, our amendment seeks to give power to have that breach stopped and the equipment dismantled and removed.

Lord Bassam of Brighton

My Lords, I do not believe that the noble Baroness has yet understood exactly how the temporary stop notice process will work. I understand that it will provide the immediate remedy that the noble Baroness seeks and that there will be no need to make enforcements in the way in which she envisages. I believe that it will work in the way that she deems it necessary. That is why we think that her amendment is not required in the circumstances.

Obviously, the noble Baroness is not satisfied. There may be cause for some debate, not on this Bill but in the future. I believe that the Bill provides the remedy that is being sought. I had hoped that my explanations and those of my noble friend Lord Rooker would have satisfied the noble Baroness. We think that the present proposal deals with the problem.

Baroness Hanham

My Lords, I can only say that I do not believe that it will. It seems to me—I have discussed this with the Minister—that the terms of the temporary stop notice are not much different from those of the stop notice, in which case it will not have the effect of permitting entry on to land and the taking away of equipment. If I am incorrect about that, I shall be very glad to hear it, because that would also put at ease the minds of those in the other place who also wanted to see this amendment tabled.

I do not believe that I can take the matter further and I therefore beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 48 not moved.]

Clause 52 [Temporary stop notice]:

Lord Avebury moved Amendment No. 49: Page 38, line 11, at end insert— (aa) the use of any caravan for residential purposes;

The noble Lord said: My Lords, I had understood that a temporary stop notice was fundamentally different from the stop notices in the original Act, by reason of the fact that under this provision one does not need an enforcement to accompany the temporary stop notice.

The delays to which the noble Baroness referred arise from the fact that if someone appeals against the enforcement proceedings, the stop notice is suspended until those proceedings are disposed of. That is how people managed to delay use of the stop notice under the parent Act.

I want to turn to a different point; that is, the discussion on Report when the Minister said that the regulations which were to be made on temporary stop notices would protect Gypsies and caravan dwellers presumably in the same way as they already protect people who live in houses. A temporary stop notice cannot prohibit the use of a building as a dwelling house. If I have correctly understood the Minister's undertaking, it would not prohibit the use of a caravan for residential purposes on the land that it occupied at the time of any notice. That notice could prohibit ancillary works such as the provision of additional hard standing, amenity blocks and so on, but if the owners of the caravan had to be compelled to move off the land, either enforcement proceedings would have to be taken or the powers of the Criminal Justice and Public Order Act would have to be used.

The temporary stop notice is not intended—and I hope that the Minister will confirm this—as an additional weapon in the armoury available to local authorities for dealing with unauthorised encampments by Gypsies or other Travellers who have nowhere they can lawfully go. Those people are homeless by virtue of Section 126 of the Housing Act 1996. It is already the duty of local authorities under Section 3(1)(b) of the Homelessness Act 2002 to develop a strategy for, securing that sufficient accommodation is and will be available for people in their district who are or may become homeless".

Perhaps the Minister is aware that hardly any of the 157 local authorities with unauthorised encampments in their area have complied with that requirement or allocated land in their development plans for the provision of the additional site that is so obviously needed. It would have been perverse to reward them by conferring extra powers on them to shuffle off the responsibility for dealing with unauthorised encampments on to neighbouring authorities., where the process would then continue.

Rather than leaving this to be dealt with in regulations, I would like to see it on the face of the Bill where the process would continue. This morning, I spoke to members of the Commission for Racial Equality who told me that they were still awaiting their lawyers' opinion, but they clearly feel that there are doubts about the lawfulness of this provision and, equally, about the provision in the parent Act.

Their doubts have been reinforced by the Joint Select Committee on Human Rights, whose comments were published the day before our discussion on Report. I missed it at the time, but we have a duty now to consider the advice it gave. I draw your Lordships' attention to the committee's conclusion: As at present advised, we have serious doubts as to the compatibility of the provisions"— that is to say the temporary stop notice— with the Convention right to peaceful enjoyment of possessions under Article 1 of Protocol 1 to the ECHR, and with the Convention right to be free of discrimination in relation to the right to possessions under Article 14 of the ECHR taken together with Article 1".

The temporary stop notices were introduced to the Bill on Report—without vast notice either to the JCHR or to your Lordships, or any explanation or how the Government arrived at their conclusion regarding the compatibility of the provisions with the convention rights, as the JCHR pointed out. At that stage, the Minister simply asserted that advice had been given, without disclosing the reasons why those conclusions had been reached.

The Government should now address the argument to the contrary set out in detail on three pages of the report to which I referred. If the Government are now saying that to bring the legislation into conformity with the convention, it is necessary to exclude the possibility of a stop notice being used against a person living in a caravan—although it may, as I have explained, be applied to other, connected developments of the land that have taken place without permission—why should that not be plainly stated in the Bill, as is the exclusion of a dwelling house?

Parliament has the responsibility of ensuring that the Bill complies with the convention. The right way to do that is to make the wording as nearly identical in the two cases as possible, showing that we intend that there should be equality of treatment between Gypsies and everyone else. It follows that if the Government now undertake that the regulations will achieve equality between Gypsies and others regarding the application of stop notices to their respective residences, they are obliged to read that principle of equality back into the parent Act and the stop notices that are already available to local authorities under it.

In a letter that the Minister kindly wrote to me the day before yesterday, he said that it is not intended that the regulations will apply back into the parent Act because, Local authorities already have advice on the use of stop notices in PPG 18, Circular 10/97 and the Good Practice Guide".

He continued by stating that he was not aware of stop notices causing any problems for Gypsy and Traveller groups, and that the Government had ascertained that in 2002, only three stop notices of a total of 180 had been used against caravans.

It so happens that only yesterday, the Court of Appeal heard a case—Chichester Borough Council v First Secretary of State and Doe, Eames and Yates, in which the local authority had issued a stop notice but had not yet prosecuted because there had been an appeal against the enforcement proceedings and the stop notice was suspended pending the hearing. When Lord Justice Auld granted the appeal, the stop notice automatically lapsed. In the three cases that he mentioned, the Minister may not have taken into consideration the use of stop notices in conjunction with enforcement proceedings where the stop notice was not ultimately proceeded with because the enforcement proceedings were unsuccessful.

In another case, Lewes District Council issued a stop notice against a Gypsy, Mr Silas Lee, but has not yet prosecuted him. I draw your Lordships' attention to the fact that Lewes is an authority in which the chair of the planning committee set fire to a mock-up Gypsy caravan with model people inside it in the recent notorious Thirle bonfire incident. I suspect that if the council takes Mr Lee to court, it may face Human Rights Act arguments. It is better that we resolve that here and now.

I also remind your Lordships that another reason why the matter needs to be resolved by Parliament is that, in the case of Wrexham County Borough Council v Berry in the House of Lords, it was found that Mr Berry, having relinquished his nomadic habit of life by reason of serious ill-health, had thereupon ceased to be a Gypsy and was not entitled to the considerations mentioned by the inspector as sufficient to override national and statutory development policies. Local authorities may well have been waiting for the Berry judgment before deciding how to proceed in other cases in which a Gypsy occupies land that belongs to him but for which he has not been granted planning permission. So in future there may be more cases of stop notices being issued, if local authorities are encouraged down that route by the Bill.

We need to see what the Government are going to do about the provision of Gypsy sites generally when they have considered the results of their recent seminars. I congratulate them on holding those seminars, which were an extremely useful exercise, and their promise that they will announce their findings on the Niner report in April or, at the latest, May.

It would be wrong to precede the measures to be announced to solve the problem of Traveller accommodation with yet another tightening of the screw against the unauthorised encampments that are the very result of the Government's failure to address the problem earlier. I beg to move.

Lord Rooker

My Lords, I am grateful to the noble Lord for bringing back this amendment. I shall respond to him initially, and then make a couple of comments on the points that he raised about the letter and the report from the Joint Committee.

As the noble Lord said, Amendment No. 49 seeks to place on the face of the Bill a provision that would prevent local planning authorities from using temporary stop notices against those who reside in caravans. I recognise that the noble Lord is trying to achieve equal treatment for a minority who choose to have caravans as their homes. I have repeatedly said in this House—and I said this when I was at the Home Office—it is not illegal to have a nomadic life, and those people should not therefore be penalised and discriminated against.

In introducing the temporary stop notice amendment last week, we have already recognised that Gypsies and Travellers who choose to lead an alternative lifestyle should be protected in a similar way to those who choose to live in bricks and mortar.

The distinction is made between buildings and caravans because of the nature of the development. The effect of caravans moving onto land and being lived in will be greater than an existing building already situated on land being used for residential purposes. This is because there is an opportunity with buildings for local planning authorities to take enforcement action at any stage when the building is being built, before it is occupied as a residence; whereas, with caravans, this initial opportunity for enforcement will not be available.

The Government's approach of restricting the use of temporary stop notices by local planning authorities with conditions to be set out in regulations is more effective and sensible. The noble Lord has spoken before on the need to consult with affected groups and this is what we intend to do.

The regulations will also provide us with the flexibility to change the provisions for caravans as further details of the policy on Gypsy and Traveller accommodation develops, and as local authorities make greater site provision in their area. I can assure the House that the temporary stop notice provisions will not commence until the regulations to protect Gypsies and Travellers are in place.

The noble Lord's second amendment seeks to reintroduce the 1990 Act's provision that would prevent a stop notice being used when those residing in caravans were on a site and were in breach of planning controls.

We do not believe that the amendment is necessary. A stop notice as set out in the 1990 Act can be used against caravans; however, the service of the stop notice—as the noble Lord said in his initial remarks—is parasitic upon the service of an enforcement notice. Further, there is a liability to pay compensation in certain circumstances for loss flowing from the service of the stop notice. Those circumstances are where the enforcement notice does not take effect, because it is quashed, varied or withdrawn, or the stop notice itself is withdrawn.

My honourable friend Yvette Cooper has written a long letter to Sarah Spencer, the Deputy Chair of the Commission for Racial Equality on policy issues. I think that it has been copied, and if not it can be made available. I hope that it will satisfy the issues raised in the letter that we had from the CRE on 15 March.

The Joint Committee on Human Rights provided a detailed report setting out its concerns, and we take this extremely seriously. I provided a response in a detailed letter, which I shall come to in a moment.

My response has been available to the noble Lords opposite. I hope it has been received; the chances are that it has not been. That is unfortunate. It could have been put on the internal notice board but it was not. I regret that it has not been received. I would have delivered it in person had I known that was going to happen.

That brings me to an error in the letter. My response is very detailed. It is a four or five page letter, and it is difficult to set out here. We explained that, although the temporary stop notices interfere with a person's use of their land, this is necessarily the case with planning enforcement matters. We believe that the power is proportionate and reasonable. We would expect the planning authorities to use this power in a reasonable and responsible manner—indeed, they are not allowed to use it in any other manner. The commitment that the power would not take effect until the regulations are in place is important. I shall not go over the details because we debated temporary stop notices when they were introduced. I have always said that, if a local planning authority used its power unreasonably or incorrectly, its decision would be subject to judicial review.

After three instructions from me, the whizzes who drafted the letter have still produced an error. I was out all day yesterday, visiting pathfinders in the north, so I gave instructions from the train. It is a minor point but it annoys because it worries me about the rest of the letter. On three separate occasions I gave instructions that the word "House" in the penultimate sentence of the final paragraph should be changed to "committee". It is a small point. The fact that the five-page letter was put together by a committee is no excuse. I was writing to the chair of the Joint Committee on Human Rights to apologise because it had not been fully informed of the amendment. The sentence reads: It was certainly not my intention not to inform the House of the amendment". Given that one must bring amendments to the House anyway to get them through, clearly the word "committee" should have been used. I told the whizzes three times that there was a mistake, including yesterday, and just two minutes ago I saw the final letter that was sent out. I am pretty annoyed about it, to say the least.

Lord Avebury

My Lords, my noble friend received the letter, although I did not. The sentence that he mentions has been corrected; it says "committee".

Lord Rooker

My Lords, then I withdraw everything that I have just said. I asked for a copy of the letter that I had sent to noble Lords; that is the one that I was given. I am not blaming anybody, but I was given the wrong letter. As a result, I am not coming armed with all the letters that I have written. On that basis. I think that I have given a brilliant reply to the amendment.

Lord Avebury

My Lords, I did not receive the letter and have only just been handed it by my noble friend, but I can see that the Minister's reply to the Joint Committee is six pages long. It would be impossible for me to make any sensible comments about the contents. We are in some difficulty here. The Joint Committee complained that it was given inadequate time to look at the provisions introduced at the very last minute on Report. It exerted itself to produce a thorough report the day before we met, and the Minister's reply to the committee was sent on 24 March and has just been handed to one or two noble Lords now.

The same applies to the letter to Sarah Spencer. I have not seen a copy of that letter, so it would be useless for me to comment on the adequacy or otherwise of the response to the Commission for Racial Equality. All that I can say is that, whatever Sarah Spencer has said to the ODPM, it was not the commission's final word because it told me this morning that it still awaited legal advice on the lawfulness of the proposals.

Perhaps I could sweeten my complaints by saying that I am grateful to the noble Lord for the further assurance that he gave today that the regulations would not come into effect until adequate provision was made to ensure that persons living in caravans, whether Gypsies or others, are not displaced from the homes that they occupy, which, to them, are just as important as the homes already dealt with under the Bill. I would have much preferred it if we could have had proper time to consider all the matters.

I have no alternative at this late stage but to withdraw the amendment, but I hope that when the regulations finally appear, they will be fully informed by the further comments that I expect that the Commission for Racial Equality will make. The Traveller Law Reform Group has also expressed great concern not only about the effect of stop notices under this Bill, but at the possibility of increased use of stop notices under the parent Act. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

7.45 p.m.

Lord Rooker moved Amendment No. 50: Page 39, line 15, leave out from "certificate" to end of line 16 and insert "in respect of the activity is issued under section 191 or granted under that section by virtue of section 195

The noble Lord said: My Lords, this is in response to points made during the Report stage of the Bill. The amendment seeks to amend the new provisions for the temporary stop notice compensation by allowing compensation to be paid in cases where lawful development certificates have been issued not only by the local planning authority, but by the Secretary of State. I beg to move.

On Question, amendment agreed to.

[Amendment No. 51 not moved.]

Clause 53 [Fees and charges]:

Lord Lucas moved Amendment No. 52: Page 40, line 16, after "exceed" insert "by more than a specified percentage

The noble Lord said: My Lords, this is rather ungrateful of me, since at the last stage the noble Lord, Lord Rooker, was very kind in producing something that went nine tenths of the way to what I want, and here I am trying to get some more. As I have said before in this House, all the developers that I have spoken to say that planning fees are far too low, they would much rather that they were much higher, and they got a really good service out of local authorities.

To my mind, for that to happen, a local authority has to be sure, in these straitened days, that the planning service will not lose money for it. One of the earliest things that I learnt about consumer law is that if you specify 500 grams on a tin of beans, you have to put 505 grams in, to make sure that you never make a mistake. If we set the law that a local authority can never make a profit on its planning division, the only way that it can do that is by always making a loss. That seems to be the wrong way round. I would like there to be a small margin, just 5 to 10 per cent, something like that, so that the local authority can be sure that this will not be a loss-making division, and that it will recoup the money it spends on planning, and the money that it spends on giving a good service. I beg to move.

Lord Bassam of Brighton

My Lords, I am almost beginning to wish that I had my previous reincarnation as a politician. Having listened to the noble Lord, Lord Lucas, on this, I would be rubbing my hands with glee if that were the case. I have a deal of sympathy with what he is saying. I suspect that local authorities will find ways to achieve his objective.

Our view is that there is no necessity to prescribe further the powers of authorities in the manner in which the noble Lord, Lord Lucas, has suggested. We are committed to the policy that fees charged should not be in excess of the functions provided. The longstanding policy of this Administration, and the previous Administration, has been to set fees at a cost recovery level to ensure against local taxation. While this means that authorities may make a loss in one year, prescribed function is taken on a year-on-year basis. I suspect that year-on-year the local authority will be able to raise fees in such a way as to ensure that they do not make a loss and that they more than cover, or at least cover, their costs.

The provision that we have outlined in Clause 53 is in line with Section 93 of the Local Government Act 2003, which we all enjoyed debating at length last Session. What the noble Lord is after is achievable, probably not in a single year of accounting, but over time. The full detail of the fee system will be subject to consultation with stakeholders, and that should be completed this summer. No doubt some of the issues raised by the noble Lord during debates on fees will surface then. My notes say that your Lordships will therefore have further opportunity to debate any scheme of fees and charges that we propose. I therefore hope that the noble Lord is satisfied with that and feels able to withdraw his amendment.

Lord Lucas

No, my Lords. He is not satisfied but he is resigned to it. It is extraordinary. On looking at previous debates that we have had over the past few months in this House, we have been conscious of how close to the limit council tax has been. We have talked about different ways of raising money for local authorities. Here is a group of people who want to contribute money to local authorities to enable them to have more money to spend, but they are being denied the chance to give it to them.

At the same time, in the next week or two, we shall debate the Traffic Management Bill, which proposes an additional tax for local authorities to allow them to make a profit out of those who want to provide services to the rest of us so that they will get all their road mending done at the expense of the gas, electricity and telephone companies.

We are doing it. We need to do it. We know we need to do it. We are doing it in other aspects. But here, where we have a willing group of taxpayers—people who want to be taxed—we will not let them pay. That seems extraordinary. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 58 [Effect of correction]

Lord Rooker moved Amendment No. 53: Page 42, line 36, leave out from "in" to end of line and insert—

1. "(a) paragraph (a) of section 59(4) below, or
2. (b) paragraph (b) of that section, if it is a decision mentioned in section 177 of the principal Act (grant or modification of planning permission on appeal against enforcement notice)."

The noble Lord said: My Lords, Amendments Nos. 53 and 54 are purely technical amendments which rectify an oversight in drafting. They correct the position so that Clause 58 will apply also to decisions issued under Section 289 of the Town and Country Planning Act 1990. I beg to move.

On Question, amendment agreed to.

Lord Rooker moved Amendment No. 54: Page 42, line 36, at end insert— ( ) Section 289 of the principal Act (appeals to the High Court relating to enforcement notices and notices under section 207 of that Act) applies to the correction notice as if it were a decision of the Secretary of State mentioned in—

1. (a) subsection (1) of that section, if the decision document in respect of which the correction notice is given records a decision mentioned in paragraph (b) of section 59(4) below (not being a decision mentioned in section 177 of the principal Act), or
2. (b) subsection (2) of that section, if the decision document in respect of which the correction notice is given records a decision mentioned in paragraph (c) of section 59(4) below."

On Question, amendment agreed to.

Clause 65 [Intervention by Assembly]:

Lord Rooker moved Amendments Nos. 55 to 57: Page 47, line 19, after "unsatisfactory" insert "— (a) Page 47, line 21, at end insert— (b) if it gives such a direction it must state its reasons for doing so. Page 47, line 42, at end insert "and the reasons of the person making the recommendations

On Question, amendments agreed to.

Clause 71 [Assembly's default power]:

Lord Rooker moved Amendment No. 58: Page 49, line 20, at end insert— ( ) The Assembly must give reasons for anything it does in pursuance of subsection (4).

On Question, amendment agreed to.

Clause 80 [Special provision relating to national security]:

Lord Rooker moved Amendment No. 59: Page 54, line 34, leave out first "person" and insert "representative

The noble Lord said: My Lords, Amendment No. 59 is the first of a group of 27 amendments on the topic of national security. I could stop there and say that therefore I cannot say any more, which is not really on. The first 25 amendments, which apply to Clauses 80, 81 and 91, make further provisions for special advocates. I shall speak mainly to Amendment No. 63, which has got most of the meat in it. A lot of them are consequential and minor technical amendments.

Although Amendment No. 63 is very long, the substance can be found in the first new subsection, which introduces new Section 321 A into the principal 1990 Act. Noble Lords will recall from Report stage that we introduced new provisions to enable the Secretary of State to direct the "responsible person" to pay the fees of the special advocate. Those provisions were added to Section 321 of the principal Act. The new problem that we have identified is that Section 321 applies only when there is an inquiry, so the provisions added at Report stage would also apply only when an inquiry takes place.

They do not cover the situation when an inquiry is in prospect, the special advocate is appointed and does some work, but the inquiry is then cancelled. Without Amendment No. 63, the Secretary of State would have no power to direct the "responsible person" to pay the fees. Indeed, there would be no "responsible person". Therefore, we need to say that when no inquiry is held, the payment provisions will nevertheless apply.

One element that may not be clear from reading is new Section 321(4), which states that this section does not affect Section 322A. Section 322A of the principal Act makes supplementary provision for costs orders at planning inquiries so that costs can be awarded when an inquiry has been arranged but does not take place. We therefore want to make it quite clear that the provisions for paying special advocates' fees when an inquiry does not take place are separate from the normal provisions for costs in these circumstances, which apply when one of the parties has been at fault.

The second and third new subsections in Amendment No. 63 amend the respective schedules to the listed buildings Act and the hazardous substances Act in identical fashion. They combine the material already in the Bill with new material equivalent to new Section 321A of the principal Act in a new paragraph for ease of reference.

There is one other change, in that the special advocate is now to be called the "appointed representative" instead of the "appointed person". Noble Lords might like to refer to new paragraph 6A(4) for an example. The reason for this is that the term "appointed person" is already used in the schedules to mean the planning inspector who conducts an inquiry. I am sure the House will agree that having the same expression meaning two different things in the same schedule would be somewhat unwise. This accounts for Amendments Nos. 59 to 62 which change the references to the "appointed person" in Section 321 to "appointed representative" for consistency. The following amendments are consequential and make minor technical changes. I beg to move.

On Question, amendment agreed to.

Lord Rooker moved Amendments Nos. 60 to 63: Page 55, line 2, leave out "person" and insert "representative Page 55, line 3, leave out first "person" and insert "representative Page 55, line 7, leave out first "person" and insert "representative Page 55, line 11, leave out subsections (2) and (3) and insert— ( ) After section 321 of the principal Act (planning inquiries to be held in public subject to certain exceptions) there is inserted the following section "321A APPOINTED REPRESENTATIVE: NO INQUIRY (1) This section applies if—

1. (a) a person is appointed under subsection (5) or (6) of section 321, but
2. (b) no inquiry is held as mentioned in subsection (1) of that section.

(2) Subsections (9) to (12) of section 321 apply in respect of the fees and expenses of the person appointed as if the inquiry had been held. (3) For the purposes of subsection (2) the responsible person is the person to whom the Secretary of State thinks he would have given a direction under section 321(9) if an inquiry had been held. (4) This section does not affect section 322A. ( ) In Schedule 3 to the listed buildings Act (determination of certain appeals by person appointed by the Secretary of State) after paragraph 6 there is inserted the following paragraph— 6A (1) If the Secretary of State is considering giving a direction under paragraph 6(6) the Attorney General may appoint a person to represent the interests of any person who will be prevented from hearing or inspecting any evidence at a local inquiry if the direction is given (2) If before the Secretary of State gives a direction under paragraph 6(6) no person is appointed under sub-paragraph (1), the Attorney General may at any time appoint a person as mentioned in sub-paragraph (1) for the purposes of the inquiry. (3) The Lord Chancellor may by rules make provision—

1. (a) as to the procedure to be followed by the Secretary of State before he gives a direction under paragraph 6(6) in a case where a person has been appointed under subparagraph (1);
2. (b) as to the functions of a person appointed under subparagraph (1) or (2).

(4) If a person is appointed under sub-paragraph (1) or (2) (the appointed representative) the Secretary of State may direct any person who he thinks is interested in the inquiry in relation to a matter mentioned in paragraph 6(7) (the responsible person) to pay the fees and expenses of the appointed representative. (5) If the appointed representative 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. (6) The Secretary of State must cause the amount agreed between the appointed representative and the responsible person or determined by him to be certified. (7) An amount so certified is recoverable from the responsible person as a civil debt. (8) Rules made under sub-paragraph (3) must be contained in a statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament. (9) Sub-paragraph (10) applies if—

1. (a) a person is appointed under sub-paragraph (1) or (2), but
2. (b) no inquiry is held as mentioned in paragraph 6(1).

(10) Sub-paragraphs (4) to (7) above apply in respect of the fees and expenses of the person appointed as if the inquiry had been held. (11) For the purposes of sub-paragraph (10) the responsible person is the person to whom the Secretary of State thinks he would have given a direction under sub-paragraph (4) if an inquiry had been held. (12) Sub-paragraphs (9) to (11) do not affect paragraph 6(8). ( ) In the Schedule to the hazardous substances Act (determination of certain appeals by person appointed by the Secretary of State) after paragraph 6 there is inserted the following paragraph— 6A (1) If the Secretary of State is considering giving a direction under paragraph 6(6) the Attorney General may appoint a person to represent the interests of any person who will be prevented from hearing or inspecting any evidence at a local inquiry if the direction is given. (2) If before the Secretary of State gives a direction under paragraph 6(6) no person is appointed under sub-paragraph (1 ), the Attorney General may at any time appoint a person as mentioned in sub-paragraph (1) for the purposes of the inquiry. (3) The Lord Chancellor may by rules make provision—

1. (a) as to the procedure to be followed by the Secretary of State before he gives a direction under paragraph 6(6) in a case where a person has been appointed under subparagraph (1);
2. (b) as to the functions of a person appointed under subparagraph (1) or (2).

(4) If a person is appointed under sub-paragraph (1) or (2) (the appointed representative) the Secretary of State may direct any person who he thinks is interested in the inquiry in relation to a matter mentioned in paragraph 6(7) (the responsible person) to pay the fees and expenses of the appointed representative. (5) If the appointed representative 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. (6) The Secretary of State must cause the amount agreed between the appointed representative and the responsible person or determined by him to be certified. (7) An amount so certified is recoverable from the responsible person as a civil debt. (8) Rules made under sub-paragraph (3) must be contained in a statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament. (9) Sub-paragraph (10) applies if—

1. (a) a person is appointed under sub-paragraph (1) or (2), but
2. (b) no inquiry is held as mentioned in paragraph 6(1).

(10) Sub-paragraphs (4) to (7) above apply in respect of the fees and expenses of the person appointed as if the inquiry had been held. (11) For the purposes of sub-paragraph (10) the responsible person is the person to whom the Secretary of State thinks he would have given a direction under sub-paragraph (4) if an inquiry had been held. (12) Sub-paragraphs (9) to (11) do not affect paragraph 6(8).

On Question, amendments agreed to.

Clause 81 [Special provision relating to national security: Wales]

Lord Rooker moved Amendments Nos. 64 to 71: Page 56, line 35, leave out from "section" to "there" in line 36 and insert "321A of the principal Act (inserted by section 80 above) Page 56, line 40, leave out "reference in section 321(5)" and insert "references in section 321(5) and (6) Page 57, line 16, leave out "reference in paragraph 6(7A)" and insert "references in paragraph 6A(1) and (2) Page 57, line 20, leave out "6(7C)" and insert "6A(3) Page 57, line 23, leave out "6(7C)" and insert "6A(3) Page 57, line 36, leave out "reference in paragraph 6(7A)" and insert "references in paragraph 6A(1) and (2) Page 57, line 40, leave out "6(7C)" and insert "6A(3) Page 57, line 43, leave out "6(7C)" and insert "6A(3)

On Question, amendments agreed to.

Clause 91 [Special provision for certain circumstances where disclosure of information as to national security may occur: Scotland]

Lord Rooker moved Amendments Nos. 72 to 75: Page 65, line 27, leave out "to any inquiry held" and insert "in relation to the holding of inquiries Page 66, line 10, leave out "a local" and insert "any such Page 66, line 22, leave out "appointed person" and insert "representative Page 66, line 37, after "inquiry" insert ", or prospective inquiry,

On Question, amendments agreed to.

Lord Rooker moved Amendment No. 76: Page 66, line 40, leave out "appointed person" and insert "representative

The noble Lord said: My Lords, I have a problem in that I think that these amendments are covered by what I said when speaking to the first group.

The Chairman of Committees (Lord Brabazon of Tara)

My Lords, on my list these amendments are grouped separately. Nevertheless, we will take them en bloc.

On Question, amendment agreed to.

Lord Rooker moved Amendments Nos. 77 to 83: Page 66, line 41, leave out "appointed person" and insert "representative Page 67, line 1, leave out "appointed person" and insert "representative Page 67, line 7, at end insert— ( ) Subsections (7) to (11) apply even if the inquiry does not take place. Page 67, line 19, leave out "an inquiry held" and insert "the holding of an inquiry Page 67, line 20, leave out "an inquiry held" and insert "the holding of an inquiry Page 67, line 26, leave out "an inquiry held" and insert "the holding of an inquiry Page 67, line 27, leave out "an inquiry held" and insert "the holding of an inquiry

On Question, amendments agreed to.

Clause 92 [Urgent Crown development: Scotland]:

Lord Rooker moved Amendment No. 84: Page 68, line 30, leave out "Subsections (7) and (8) above are" and insert "Subsection (7) above does not apply to the extent that the document or other matter is

On Question, amendment agreed to.

Clause 93 [Urgent works relating to Crown land: Scotland]

Lord Rooker moved Amendment No. 85: Page 69, line 33, leave out "Subsections (7) and (8) above are" and insert "Subsection (7) above does not apply to the extent that the document or other matter is

On Question, amendment agreed to.

Clause 99 [Compulsory acquisition of land for development etc]

Lord Hanningfield moved Amendment No. 86: Page 74, line 16, leave out "think" and insert "have reasonable grounds to believe

The noble Lord said: My Lords, with these amendments we return to the subject of local authorities' powers of compulsory purchase. On Report I said that we welcome the provisions of Clause 99 to the extent that they clarify and widen the powers of local authorities. Clause 99 will assist local authorities to fulfil their duties under Section 2 of the Local Government Act 2000 to promote the economic, social and environmental wellbeing of their areas. However, we remain concerned that, although the Minister gave a substantial response at the previous stage, he has not engaged with the causes of unease expressed by the Country Landowners' Association and the National Farmers Union, bodies representing those sectors of the community most likely to be affected by Clause 99.

Clearly it is important that when compulsory purchase orders are made as a final resort, the Country Landowners' Association and the National Farmers Union are signed up to the legitimacy of this process. Although the Minister outlined extensively the safeguards within the current system, a pragmatic solution would be to adopt these amendments as a way of reassuring the concerned parties that their substantial interests in the compulsory purchase regime are being taken into account.

These amendments would not make substantial changes to the legislation, but they usefully emphasise the delicate balance that local authorities must strike between the rights of private individuals and the public interest. As such, they reiterate the nature of compulsory purchase as an avenue of last resort, while not in any way undermining the Government's objectives. I believe that, in the long run, local authorities will want a robust system that is broadly supported by the communities affected. I beg to move.

8 p.m.

Earl Peel

My Lords, I apologise to the House for intervening at this rather late stage, but I have been following the debate on this issue with some interest. I also declare an interest as an owner of land. I have come to the conclusion that the Government's proposals under these new compulsory purchase powers are far too wide and impinge on fundamental property rights.

Having read what the Minister said in response to the same amendment on Report, I confess that I am no wiser as to why the Government feel it necessary to turn the existing legislation on its head and provide local authorities with such wide-ranging powers for compulsory purchase. What baffles me is the fact that the Government invited the Compulsory Purchase Policy Review Advisory Group to investigate the effectiveness of the existing law. To the best of my knowledge, its findings from the various case studies that it undertook were that everything was working perfectly well. Furthermore, when the advisory group invited local authorities to provide examples of where the present law had proved inadequate, there were no responses.

So I think it is perfectly reasonable to say to the Minister that it is incumbent on him, given the magnitude of the proposed changes, to give the House compelling reasons, or even examples, of why he feels that the existing system has failed so badly that he has to introduce these draconian measures simply to allow an authority to enter into the compulsory purchase process because it thinks that the land in question is likely to contribute to the promotion of the economic, social or environmental wellbeing of that area.

As the law stands, there are a number of clearly defined tests by which local authorities must abide before such rights can be compulsorily acquired. Ideally, I would like to see the status quo retained but I appreciate that the Bill will change matters sufficiently for a compromise to be necessary. I believe that the amendments are sufficiently robust to reintroduce a proper degree of equity into the proceedings.

In his response to my noble friend Lord Hanningfield on Report, the noble Lord, Lord Rooker, stated that a local authority, when considering acquiring lands through compulsory purchase powers, would be obliged to have regard to its planning proposals, and that these may be found in either the community strategy or the pathfinder area prospectus. The point is, as I see it, that the community strategy is no more than an aspiration and does not have the same legal status as the local development plan to which the local authority must have regard under existing law before entering into compulsory purchase negotiations. Furthermore, there is nothing in the Bill, as far as I can see, which requires the local authority to have regard to the community strategy, which rather undermines the Minister's argument.

As I said, the Minister also made reference to the pathfinder area prospectus in the context of it being a part of a local authority's planning proposals. I am not aware of such a term, so I invited someone to look it up on the website of the Office of the Deputy Prime Minister. Much to my surprise, it revealed no results at all; there was no reference to it. I then got my contact to refer to the Google website. The only reference to it was in the Minister's speech at Report. So I am none the wiser. No doubt the Minister will give an explanation for that when he replies.

The Minister—and, indeed, the Minister in another place, Barbara Roche—suggested that these new wide-ranging compulsory purchase powers granted to local authorities should not be of concern to those who might be affected as they could always challenge the local authority in the courts. The noble Lord, Lord Rooker, described judicial review as a "perfectly adequate safeguard". I regard that as being a rather cavalier attitude. A reference to courts is surely a blanket cover for bad legislation. Given that the right of the owner to challenge the decision would arise only after the decision had been made, it would inevitably result in very considerable expense. Surely it must be preferable to have a properly worded Bill that requires the local authority to consider at the outset whether it was necessary to acquire the land in the first place.

I will briefly say a few words about human rights. Two of the convention rights refer to the compulsory acquisition of someone's property Article 8 and Article 1 of the first protocol. Without going into details, both articles lay down conditions that must be satisfied if the acquisition of property is to be human rights compliant. Among them is the requirement for necessity. Clearly, Amendment No. 87 would comply with both articles.

The Minister stated that the whole purpose of Clause 98 was to clarify the existing compulsory purchase powers. I strongly suggest that the Government are deliberately extending them and that there is no justification for that. The compulsory purchase of private land should be a matter of last resort and anything that compromises that fundamental right represents a dangerous shift of power from the individual to the state.

I conclude by quoting the late Lord Denning, in the case of Colleen Properties Ltd v Minister of Housing and Local Government (1971). He said: When seeking to deprive the subject of his property and cause him to move himself, his belongings and perhaps his business to another area, the onus lies squarely on the local authority to show by clear and unambiguous evidence that the order sought for should be granted". The local authority may think that the acquisition of private land is appropriate, but that falls a long way short of showing clear and unambiguous evidence. I hope that the House will support my noble friend's amendment.

The Earl of Liverpool

My Lords, I do not wish to detain the House at this late hour, but I would like to say that I wholeheartedly support the comprehensive remarks of my noble friend Lord Peel. I want to place on record my wholehearted support for the amendments.

Baroness Hamwee

My Lords, I am persuaded that Amendments Nos. 86 and 88 are not necessary. I anticipated the "reasonableness" point that the Minister explained to the House at the last stage. On Amendment No. 87, I asked then whether there was a problem in applying Section 226 of the current Act, which uses the term "required". We have heard that inquiries have been made about whether there is a problem with local authorities pursuing regeneration proposals and whether the CPO powers are inadequate. However, I am confused. If the current "required" is not working properly, how can the Minister ask the House to assess "necessity", which was his response to this amendment at the last stage?

I have a problem with the terminology. I assume that the Government are looking for something different from "required", but they have not explained why, and they should be able to explain their own terminology.

Lord Bassam of Brighton

My Lords, I am grateful to the noble Lord, Lord Hanningfield, for moving these amendments and to the noble Earl, Lord Peel, for coming to the House to explain his interest in these matters so clearly. I want to go very carefully over the issues that they raise.

Amendment Nos. 86 and 88 to Clause 99 seek essentially to redraft the conditions under which a local authority may compulsorily acquire land for planning purposes under Section 226(1)(a) of the Town and Country Planning Act 1990, and they substitute "have reasonable grounds" for "think". On previous occasions my noble friend has explained that the purpose of Clause 99 is to clarify and to put in simpler terms the existing planning compulsory purchase power. I suppose the noble Baroness, Lady Hamwee, has challenged us to clarify further some of our terminology.

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 consider that thesis right and we think that the word "think" should remain. As has been said before, we cannot see what distinction the noble Lord is seeking by amending "think" to "have reasonable grounds to believe", and we remain firmly of the view that it does not express what is required.

Local authorities are subject to the overriding requirement that their decisions are justifiable as reasonable in all circumstances. In our view, it is superfluous and unnecessarily complicated to state this explicitly. Also, the point has been made that "think" has been used extensively in other parts of this Bill and is used in numerous other examples of modern legislation.

The noble Baroness, Lady Hamwee, shared some concerns about Amendment No. 87, which seeks to replace "will facilitate" by "is necessary for". We have made the point previously that, while seeking to impose a more onerous requirement on the local authority, this proposed amendment would in fact introduce less certainty by imposing a requirement to determine whether the acquisition is necessary. What is meant by "necessary"? It may be that it is trying to suggest that there has to be an absolute necessity, but having regard to what? How would that in any event be assessed?

Perhaps the noble Lord is concerned that acquiring authorities will exercise their compulsory purchase power in an unreasonable manner. We have explained that there are already perfectly adequate safeguards—an expression which the noble Lord repeated—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. For an authority to be able to demonstrate conclusively that acquisition is justified in the public interest to secure the well-being of its area, it will need to be able to show that it is in accordance with its up-to-date policy proposals, prepared in full consultation with those living and working in the area.

The noble Lord made light of the community strategy, saying that it was just an aspiration and I thought that he also made light of pathfinder area prospectuses. They are important documents; they have great value; and I think that they are now becoming increasingly understood.

Earl Peel

My Lords, perhaps the noble Lord would be kind enough to explain to me and to the House what they are. I tried to explain that there was no evidence that they existed on the website. It would be a fascinating revelation to know whether they play a genuine part in local planning procedure.

Lord Bassam of Brighton

My Lords, perhaps the noble Lord did not instruct his researcher to make as good a use of Google as he or she could have done. Had they done so, they would have discovered that these are part of the Community Plan thinking. They set out the basis on which funding is to be made in line with those plans, and they are important documents for that.

Perhaps there has not been time to update the authority's development plan to reflect the current proposals for which the land is required. It does not make sense to delay the acquisition of land until such time as it has happened. The main safeguard is that a compulsory purchase order is subject to confirmation by the Secretary of State. He has not only to be satisfied as to the statutory grounds for making the order: he also has a discretion as to whether or not to confirm. In this way, the Secretary of State acts as an impartial adjudicator on whether the compulsory acquisition of an owner's land is genuinely justified and in the public interest.

In exercising his discretion the Secretary of State must have regard in particular to whether the public interest in compulsorily acquiring land outweigh the interests of the owners and occupiers in retaining their land. Such owners and occupiers who object will have an opportunity to make representations at a public inquiry. Then, 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. This provides a safeguard to ensure that decisions are not taken frivolously.

It may be too much to hope that I will have persuaded noble Lords opposite that their fears—which have inspired their repeated attempts to amend Clause 99—are groundless. The Government took great care in putting the set of propositions in Clause 99 into legislation. We had rounds of consultation on the Green Paper and the White Paper. The Bill, as the noble Baroness, Lady Hanham, has said on many occasions, has been long in the making. We think that we have these clauses about right. I hope that noble Lords opposite will feel confident in not pressing their amendments.

8.15 p.m.

Baroness Hamwee

My Lords, before the Minister sits down, perhaps I can say that I speak as one who is familiar with the community strategy and with pathfinders and so on. I have no problem with that. Perhaps, with the leave of the House, I can say that I ask this question as one who might be better persuaded if the Government were clear about the difference between facilitating and the provisions they are changing. I think that facilitating is much less than the provisions of Section 226(1). I would find it much easier if we had a more straightforward debate about accepting it. What I am saying is perhaps legalistic, but it is not politically inspired.

The Minister challenged noble Lords on how necessity could be assessed. There were two or three challenges around that. How is that different from the current Section 226(1), which says that a local authority has power to acquire land that is, suitable for and required … to secure … development … or required for a purpose which it is necessary to achieve in the interests of the proper planning of an area"? The Government are being completely opaque about why the change is necessary. What the Minister said in challenging Amendment No. 87 could apply equally to Section 226(1). If there is a problem with Section 226(1), which to my mind there must be if there is going to be a problem with changing "facilitating" to "necessary"—

Lord Elton

Will the noble Baroness give way?

Baroness Hamwee

Perhaps I may just finish the sentence.

If so, I hope they will be able to explain what the problem is and why they need to change the provision.

Lord Elton

My Lords, I do not know whether the noble Baroness has finished. I just wanted to suggest that she might do so in view of the Standing Order on how we conduct business at Third Reading.

Baroness Hamwee

My Lords, I beg your Lordships' pardon. I asked the question before the Minister sat down, to try to clarify something.

Lord Bassam of Brighton

My Lords, I am reluctant at this late stage to be drawn further into a debate about this wording. The noble Baroness may have touched on a point about "facilitate", which I think she interpreted as being rather weaker than "necessary". I was almost wishing there was a further stage of the Bill so that I could come back and usefully clarify the issue; but there is not. For further elucidation and reflection, I am inclined to offer to write. I know that that is an unsatisfactory answer to the noble Baroness's point, but I think it would be wisest. I do not want to have to make this up as we go along and speculate about the wording. This is the wrong time to do that.

Lord Hanningfield

My Lords, it has been a valuable debate. It is unfortunate that it has come at a somewhat late stage of the Bill. Previous debate on this issue has always been late in the evening. There is considerable concern in sections of the community about the changes in the legislation on compulsory purchase. The noble Lord, Lord Bassam, referred to the word "think" which several noble Lords have questioned. The word appears several times in the legislation. The noble Lord has justified its use by saying that "think" does not necessarily mean what outside people might assume. There is concern in the outside world about authorities being able simply to "think" that they need land rather than having real reason compulsorily to purchase it.

As my noble friend Lord Peel said, the compulsory purchase of land is fundamental to human rights. It is important that people understand clearly their rights, and the rights of local authorities to purchase land. There is concern and confusion over Amendment No. 87. Our wording may be more satisfactory than the wording of the Government.

I shall not repeat my noble friend's arguments. He set them out carefully and clearly. We may have to test the opinion of the House on Amendment No. 87. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Hanningfield moved Amendment No. 87: Page 74, line 16, leave out "will facilitate" and insert "is necessary for

The noble Lord said: My Lords, I beg to move.

8.22 p.m.

On Question, Whether the said amendment (No. 87) shall be agreed to?

Their Lordships divided: Contents, 26; Not-Contents, 39.

Division No. 10
CONTENTS
Alderdice, L.	Howe, E.
Attlee, E.	Jenkin of Roding, L.
Byford, B.	Liverpool, E.
Carlisle of Bucklow, L.	Luke, L.
Cobbold, L.	Maddock, B.
Cope of Berkeley, L. [Teller]	Mancroft, L.
Craigavon, V.	Monson, L.
Elton, L.	Northesk, E.
Fookes, B.	Peel, E.
Hamwee, B.	Seccombe, B.
Hanham, B.	Shrewsbury, E.
Hanningfield, L. [Teller]	Thomas of Walliswood, B.
Harris of Richmond, B.	Wilcox, B.

NOT-CONTENTS
Acton, L.	Grocott, L. [Teller]
Ahmed, L.	Hayman, B.
Amos, B. (Lord President of the Council)	Hogg of Cumbernauld, L.
	Howells of St. Davids, B.
Andrews, B.
Archer of Sandwell, L.	Irvine of Lairg, L.
Bach, L.	Lea of Crondall, L.
Bassam of Brighton, L.	McIntosh of Haringey, L.
Brooke of Alverthorpe, L.	Mackenzie of Framwellgate, L.
Campbell-Savours, L.	Mitchell, L.
Carter, L.	Robertson of Port Ellen, L.
Corbett of Castle Vale, L.	Rooker, L.
Crawley, B.	Sawyer, L.
Davies of Oldham, L. [Teller]	Sewel, L.
Desai, L.	Simon, V.
Dubs, L.
Elder, L.	Stone of Blackheath, L.
Evans of Parkside, L.	Triesman, L.
Farrington of Ribbleton, B.	Turner of Camden, B.
Gibson of Market Rasen, B.	Wilkins, B.
Golding, B.	Woolmer of Leeds, L.

Resolved in the negative, and amendment disagreed to accordingly.

8.30 p.m.

[Amendment No. 88 not moved.]

[Amendment No. 89 not moved.]

Clause 115 [Grants for advice and assistance]:

Baroness Wilkins moved Amendment No. 90: Page 100, line 15, leave out "to the public

The noble Baroness said: My Lords, the purpose of Amendment 90 is to enable the Government to make grants available to local access groups of disabled people. I shall be brief and will not detain the House on the case for funding which I set out at length in Committee and at Report stage. I again invite my noble friend to consider reinstating government funding for local access groups, which was withdrawn in 1998. Core funding used to be provided to the Access Committee for England which successfully nurtured and supported the network of access groups.

We desperately need this national umbrella or framework to build anew in both England and Wales. The Disability Rights Commission has now completed its research into access groups in England and Wales and is ready with recommendations which I would urge Ministers to heed. With hopes of favourable news, I beg to move.

Lord Rooker

My Lords, I shall not beat about the bush—we are happy to accept the amendment. We would be interested to see the forthcoming research report from the Disability Rights Commission on the work of local access groups in England and Wales and will give serious consideration to the recommendations, in particular any underfunding of resources.

I have to say that we do not have a fund set aside for assisting local access groups. Nevertheless, we wish to hold discussions with the noble Baroness, Lady Wilkins, the Disability Rights Commission and others, to see how we may take the issue forward. In the mean time, I am happy to accept the amendment.

Baroness Wilkins

My Lords, I am extremely grateful to the Minister for the way he has listened. His decision will greatly benefit developers and local authorities alike in creating an inclusive environment for disabled people. I also add my thanks for the Government amendment to Clause 43.

On Question, amendment agreed to.

Schedule 3 [Crown application]

Baroness Hanham moved Amendment No. 91: Page 117, line 19, at beginning insert "For

The noble Baroness said: My Lords, I want to return briefly to the matter of Crown immunity, which I raised on the last occasion. At that stage I declared an interest, in that this amendment, if agreed, would have an effect on the Royal Borough of Kensington and Chelsea, which asked me to table it. The amendment is different from the one that I introduced on Report. It arises as a result of having read Hansard and the reply of the noble Lord, Lord Rooker, which stimulated everyone into thinking again about it.

The Minister objected to the previous amendment on the grounds that it would mean that planning permission would have to be obtained for all disposals of Crown land if the use was to continue, as he said, even in the most trivial cases. He considered that the amendment would place an unnecessary and disproportionate burden on both the Crown and local planning authorities.

This amendment relates to the attachment. of a planning permission as Crown land is turned into private ownership. The purpose of this amendment is not to seek to control those uses where the impact of that use is trivial, but to control those uses where the use causes a great deal of disturbance to local residents or has other adverse impact on the local community.

As the amendment as originally proposed was not acceptable, the suggested way forward that this amendment produces is to give to local planning authorities the power to take enforcement action when there is a disposal of Crown land to a private owner. Local planning authorities would therefore be able to take enforcement action only when it is expedient to do so. The normal sanction of an award of costs for an unreasonable exercise of the power by a local planning authority will apply. The amendment also proposes that the time for taking such enforcement action, rather than the usual 10-year period, is a more limited period of five years from the date of the disposal of the land, and residential users would be excluded.

The kinds of uses that we have in mind are major fairs and tented events that take place on Crown land, where enormous lorries cause great difficulty for residents. There are many uses of fringe Crown land, which would not require planning permission as a result of being transferred to private owners where the Crown had immunity in the past.

I hope that the Minister will be able to consider this matter a little further and that I do not receive quite such a brush off as I did last time. Although the amendment affects my own borough, it also affects any local authority's Crown land that passes or is sold into private ownership. I beg to move.

Lord Rooker

My Lords, having been accused of a cursory reply on Report and a brush-off reply now, I do not feel obliged to apologise for the length of my reply at this time of the day. I had intended to use the first and last paragraph, but clearly that is not sufficient.

The noble Baroness has returned to the issue of Section 301 of the principal Act, as she indicated she might when we debated this matter on Report. We have heard that a new approach has been adopted by giving local planning authorities up to five years to serve an enforcement notice on the purchaser of Crown land if the use instituted by the Crown is continued after disposal. Although the noble Baroness's proposals have changed, we still believe that these amendments represent a disproportionate attempt to solve a problem that should not arise very often.

It appears that the requirement for planning permission arises only after the Crown has disposed of the land. Until that date, the Crown may have a notice, which is to be treated as though it were planning permission, under paragraph 3 of Schedule 4. In any event, the requirement for planning permission appears to bite only when the land is sold. If that is right, the Crown could not apply for planning permission in anticipation of disposal and the purchaser could not be sure that he would be able to obtain planning permission after disposal. If he failed to obtain permission, the local planning authority would be able to commence enforcement action within Five years. That would put the Crown in a worse position than it is now in, because it can now apply for planning permission in anticipation of disposal.

This procedure would cut across the transitional provisions of Part 1 of Schedule 4, which will have effect after commencement. Where a proposed change of use has been through the Circular 1884 procedure and has been found acceptable, paragraph 3 of that schedule will apply. The effect will be that the notice of the acceptability of the development will be treated as if it is planning permission, subject to any conditions stated in it. This is directly contradictory to the noble Baroness's amendment.

The noble Baroness's amendment seems to me to go even further into overkill. Its effect is that any use instigated by the Crown will be vulnerable to enforcement if the land is sold into private use. This will be so even if the local planning authority itself has agreed to the change of use through the Circular 1884 procedure without suggesting discontinuance on disposal by the Crown.

The provision is not expressly limited to recent changes of use and its effect in this respect is not clear. It may be that changes of use instituted by the Crown many centuries ago could be caught by this amendment. The effect will be that disposal programmes will be thrown into uncertainty, which is an unsatisfactory outcome for all parties.

In short, the amendment exceeds what is necessary to cure the evil at which it is aimed. If a problem exists in a particular case, the local planning authority has a remedy. It can make an order requiring the discontinuance of the offending use, and pay compensation in the normal way. The noble Baroness's amendment is therefore a disproportionate means of resolving the problem, which should be small if local planning authorities, particularly her own, approach the Crown with sensible proposals. Her local authority is a sensible authority. It can use the remedy which already exists and therefore I urge her to withdraw her amendment.

I hope that that reply will be considered fulsome and wholesome. It is certainly not cursory or intended as a brush-off.

Baroness Hanham

My Lords, with those stirring words, I thank the Minister for his full reply. Unfortunately, it does not get me anywhere but it is all there and I take note of it. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 92 and 93 not moved.]

Schedule 6 [Amendments of the planning Acts]

Lord Rooker moved Amendment No. 94: Page 130, line 11, at end insert— Section 76 (Duty to draw attention to certain provisions for benefit of disabled) is omitted.

On Question, amendment agreed to.

Baroness Hamwee moved Amendment No. 95: Page 130, line 14, leave out paragraph 5.

The noble Baroness said: My Lords, I am delighted to have this starry list of proponents of the amendment. Amendments Nos. 95 and 98 take out of the Bill the prospective repeal of outline planning permission. We have more than touched on the matter earlier today and at this hour of the night I do not believe that I need to persuade the House of their benefits. I beg to move.

On Question, amendment agreed to.

[Amendment No. 96 not moved.]

Schedule 9 [Repeals]

Lord Rooker moved Amendment No. 97: Page 150, line 22, at end insert— Section 76.

On Question, amendment agreed to.

Baroness Hamwee moved Amendment No. 98: Page 150, leave out line 23.

On Question, amendment agreed to.

[Amendment No. 99 not moved.]

Lord Bassam of Brighton

My Lords, I beg to move that this Bill do now pass.

Moved, That the Bill do now pass.—(Lord Bassam of Brighton.)

On Question, Bill passed and sent to the Commons.

House adjourned at a quarter before nine o'clock.