§ The Minister of State, Office of the Deputy Prime Minister (Lord Rooker)
My Lords, I beg to move that the Bill be now further considered on report.
Moved, That the Bill be further considered on Report.—(Lord Rooker.)
On Question, Motion agreed to.
§ Clause 46 [Simplified planning zones]:
Baroness Hanham moved Amendment No. 139:
Leave out Clause 46.
§ The noble Baroness said: My Lords, Clause 46 amends the Town and County Planning Act's provision for simplified planning zones. According to the clause, a local authority may designate a simplified planning zone only where the need has been identified by the regional spatial strategy. Consequently, the Secretary of State will have significant power as to when and where they are established. My amendment would remove the clause from the Bill.
§ Business planning zones have had a chequered and unloved career. They have been widely disregarded by both the business community and local authorities, and there are considerable doubts from both as to whether the zones would actually speed up the planning process, strengthen accountability and public confidence in planning, secure development in the area where it is needed, or deliver the high-quality development that is required to meet the Government's urban renaissance programme.
§ These zones were introduced ostensibly to aid economic growth and were based on an assumption, which has now been exploded by the recent research carried out by Roger Tym and Partners for the Office of the Deputy Prime Minister Select Committee, that planning is bad for the economy and competitiveness. As proved, there is no evidence that planning control hinders either of these desirable outcomes, and it is critical the planning controls should not be jettisoned in a misguided attempt to promote economic growth at the expense of high standards. Against this background, it is quite unacceptable that simplified planning zones should be imposed on local authorities by regional planning bodies, particularly as it is clear 166 from all the discussions we have had that spatial strategies could include such policies as the promotion of development on large greenfield sites.
§ Rather than proceed further with these zones, it would be better now for them quietly to hit the dust. The fact that they have had little take-up and no friends would indicate that they are an obsolete part of the business and economic armoury and should be abandoned. I beg to move.
§ Baroness Hamwee
My Lords, we have added our names to this amendment and indeed I think that we led on the issue in Committee. We are in amity with the noble Baroness. We have tabled Amendments Nos. 146B and 149A in this group and those are consequential amendments.
At the previous stage of the Bill I asked two questions in connection with simplified planning zones, which I do not think were answered. I referred to the Green Paper's advocacy of business planning zones—I take it that simplified planning zones are what business planning zones become—which would avoid,delays [which] can prove a significant obstacle to the development of [fast-moving business]".I also referred to research for the Select Committee indicating that it is a myth that planning is bad for competitiveness and for the economy. I ask the Minister to take the opportunity to explain what evidence there is that planning hinders competitiveness.
I also asked how simplified planning zones relate to local development orders, since, from what I have read about the proposed use of local development orders, it might well be that they would give the latitude on a local basis to achieve what the Government say is necessary and would be achieved by simplified planning zones.
I have a third question today, which I hope the Minister will be able to answer along with those two. In Committee on 2 February (at col. 475 of the Official Report) the noble Lord twice said that simplified planning zones would be "high-quality" and "high-tech. I can understand "high-tech", if that is what the regional spatial strategy or the Secretary of State identify as being the objective of any simplified planning zone, but how does a simplified planning zone guarantee high quality?
The noble Baroness, Lady Hanham, has said again today that this is not a much-loved provision. She said in Committee that the Bill had few friends and was losing them along the way. The Local Government Association is among those who doubt that simplified planning zones would speed up the process, would strengthen accountability or public confidence, secure development or deliver high quality. It points out that there is little support for them among local authorities—and they are in a position to say so—and we know that the business community does not seem to have come out in enthusiastic support, which one might have expected if it was going to be affected.
167 As the Minister was speaking in Committee, I thought that he rather backed up what the noble Baroness was saying about losing friends, because by the end of his brief he was clearly rather relieved to find the assurance that any simplified planning zones would be a long way off. He thought that that might win the Committee over. I think there is a lack of logic in that, if I may say so. Certainly, as he continued, the value of the provision seemed in his own eyes to be diminishing. We support the deletion of the clause from the Bill.
§ Lord Rooker
My Lords, I have never been very good at spin. There really is not the content to spin this one anyway. Nevertheless, I have to do my duty.
Clause 46 amends the provisions relating to the creation of the simplified planning zones so that they cannot be made by a planning authority unless the need for one has been identified in the regional spatial strategy, or the spatial development strategy in the case of London.
The provision enables the lifespan of a simplified planning zone to be for a period of up to 10 years, rather than restricting it to 10 years. That provision facilitates the creation of areas of high-tech businesses that will be referred to as business planning zones, as first proposed in the planning Green Paper in December 2001. Those business planning zones will provide a flexible planning regime to facilitate the rapid development of high-quality, high-tech business clusters, and encourage investment for growth and regeneration. I do not have any facts and proof to back that up, but that is clearly the aspiration.
As I said originally, we anticipate only one or two business planning zones per region, which must be identified in the regional spatial strategy. It is planned for them to have a low environmental impact. Their locations will be chosen to meet identified strategic needs, and any business planning zone schemes brought forward will be required to undergo environmental impact assessment and public consultation.
The zones are, of course, strategic tools, addressed in the first instance at the regional level. The local development orders are the local instruments, to be promoted entirely at the discretion of local planning authorities to meet a wider range of local needs. That deals with the issue of the similarity to local development orders. Business planning zones will serve a valuable and positive purpose, and should be supported. I therefore ask the noble Baroness to withdraw her amendment.
§ Baroness Hanham
My Lords, I have heard more enthusiastic speeches from the Minister, and have had more convincing replies. I have never really known the Minister to spin, and he certainly was not spinning today. I think that we should put him out of his misery; we should test the opinion of the House to see if we can get rid of the zones for him.
168 5.29 p.m.
On Question, Whether the said amendment (No. 139) shall be agreed to?
§ Their Lordships divided: Contents, 169; Not-Contents, 114.170
|Division No. 3|
|Addington, L.||Hayhoe, L.|
|Alton of Liverpool, L.||Henley, L.|
|Anelay of St Johns, B.||Higgins, L.|
|Arran, E.||Hodgson of Astley Abbotts, L.|
|Astor, V.||Home, E.|
|Astor of Hever, L.||Hooper, B.|
|Attlee, E.||Hooson, L.|
|Avebury, L.||Howe, E.|
|Barker, B.||Howell of Guildford, L.|
|Beaumont of Whitley, L.||Hunt of Wirral, L.|
|Biffen, L.||Jenkin of Roding, L.|
|Blackwell, L.||Jopling, L.|
|Blaker, L.||Kimball, L.|
|Bledisloe, V.||King of Bridgwater, L.|
|Bowness, L.||Knight of Collingtree, B.|
|Bradshaw, L.||Lane of Horsell, L.|
|Bridgeman. V.||Lester of Herne Hill, L.|
|Bridges, L.||Lindsay, E.|
|Brigstocke, B.||Livsey of Talgarth, L.|
|Brooke of Sutton Mandeville, L.||Lucas, L.|
|Brookeborough, V.||Luke, L.|
|Brougham and Vaux, L.||Lyell, L.|
|Buscombe, B.||McColl of Dulwich, L.|
|Byford, B.||MacGregor of Pulham Market,|
|Campbell of Alloway, L.||L.|
|Carlisle of Bucklow, L.||Mackay of Clashfern, L.|
|Chalker of Wallasey, B.||Mackie of Benshie, L.|
|Chester, Bp.||Maclennan of Rogart, L.|
|Chorley, L.||McNally, L.|
|Colwyn, L.||Maddock, B.|
|Cope of Berkeley, L. [Teller]||Mancroft, L.|
|Courtown, E.||Marand Kellie, E.|
|Cox, B.||Masham of Ilton, B.|
|Craig of Radley, L.||Methuen, L.|
|Craigavon, V.||Michie of Gallanach, B.|
|Crathome, L.||Miller of Chilthorne Domer, B.|
|Crickhowell, L.||Miller of Hendon, B.|
|Cumberlege, B.||Monro of Langholm, L.|
|Deedes, L.||Moore of Lower Marsh, L.|
|Dholakia, L.||Mowbray and Stourton, L.|
|Dixon-Smith, L.||Moynihan, L.|
|Dundee, E.||Naseby, L.|
|Eden of Winton, L.||Newby, L.|
|Elton. L.||Noakes, B.|
|Falkland, V.||Northbrook, L.|
|Fearn, L.||Northesk, E.|
|Ferrers, E.||Oakeshott of Seagrove Bay, L.|
|Fookes, B.||O'Cathain, B.|
|Forsyth of Drumlean, L.||Onslow, E.|
|Fowler, L.||Palmer, L.|
|Fraser of Carmyllie, L.||Park of Monmouth, B.|
|Freeman, L.||Peel, E.|
|Gardner of Parkes, B.||Perry of Southwark, B.|
|Geddes, L.||Pilkington of Oxenford, L.|
|Glentoran, L.||Platt of Writtle, B.|
|Goodhart, L.||Plumb, L.|
|Goschen, V.||Plummerof St. Marylebone, L.|
|GrayofContin, L.||Prior, L.|
|Greaves, L.||Quinton, L.|
|Griffiths of Fforestfach, L.||Rawlings, B.|
|Hamwee, B.||Reay, L.|
|Hanham, B.||Redesdale, L.|
|Hanningfield, L.||Rees, L.|
|Harris of Richmond, B.||Rees-Mogg, L.|
|Renfrew of Kaimsthorn, L.||Stoddart of Swindon, L.|
|Rennard, L.||Swinfen, L.|
|Renton, L.||Taverne, L.|
|Rodgers of Quarry Bank. L.||Tebbit, L.|
|Roper, L.||Thomas of Gresford, L.|
|Rotherwick, L.||Thomas of Gwydir, L.|
|Russell, E.||Thomas of Walliswood, B.|
|Saltoun of Abernethy, Ly.||Thomson of Monifieth, L.|
|Sandberg, L.||Tope, L.|
|Scott of Needham Market, B.||Tordoff, L.|
|Seccombe, B.||Trumpington, B.|
|Selborne, E.||Ullswater, V.|
|Selsdon, L.||Vinson, L.|
|Sharman, L.||Waddington, L.|
|Sharp of Guildford. B.||Wade of Chorlton, L.|
|Sharples, B.||Wakeham, L.|
|Shaw of Northstead, L.||Walmsley, B.|
|Shutt of Greetland, L. [Teller]||Walpole, L.|
|Skelmersdale, L.||Watson of Richmond, L.|
|Smith of Clifton, L.||Wilcox, B.|
|Stewartby, L.||Windlesham, L.|
|Acton, L.||Grocott, L. [Teller]|
|Ahmed, L.||Harrison, L.|
|Alli, L.||Haskins, L.|
|Amos, B. (Lord President of the Council||Hayman, B.|
|Hilton of Eggardon, B.|
|Andrews, B.||Hollis of Heigham, B.|
|Ashley of Stoke, L.||Howarth of Breckland, B.|
|Ashton of Upholland, B.||Howie of Troon, L.|
|Bach, L.||Hoyle, L.|
|Barnett, L.||Hughes of Woodside, L.|
|Bassam of Brighton. L.||Hunt of Chesterton, L.|
|Bernstein of Craigweil, L.||Hunt of Kings Heath, L.|
|Bhatia, L.||Irvine of Lairg, L.|
|Billingham, B.||Jay of Paddington, B.|
|Blackstone, B.||Jones, L.|
|Borrie, L.||Kennedy of The Shaws, B.|
|Bragg, L.||Kirkhill, L.|
|Brooke of Alverthorpe, L.||Layard, L.|
|Brookman, L.||Lea of Crondall, L.|
|Brooks of Tremorfa, L.||Lockwood, B.|
|Burlison, L.||Lofthouse of Pontefract, L.|
|Campbell-Savours, L.||McCarthy, L.|
|Carter, L.||McIntosh of Haringey, L.|
|Christopher. L.||McIntosh of Hudnall, B.|
|Clark of Windermere, L.||MacKenzie of Culkein, L.|
|Clarke of Hampstead, L.||Mackenzie of Framwellgate, L.|
|Clinton-Davis, L.||Marsh, L.|
|Corbett of Castle Vale, L.||Mason of Barnsley, L.|
|Crawley, B.||Massey of Darwen, B.|
|David, B.||Merlyn-Rees, L.|
|Davies of Coity, L.||Mitchell, L.|
|Davies of Oldham, L. [Teller]||Morris of Aberavon, L.|
|Dean of Thornton-le-Fylde, B.||Morris of Manchester, L.|
|Dearing, L.||Orme, L.|
|Dixon, L.||Parekh, L.|
|Dubs, L.||Patel, L.|
|Elder, L.||Patel of Blackburn, L.|
|Evans of Parkside, L.||Pendry, L.|
|Evans of Temple Guiting, L.||Peston, L.|
|Falconer of Thoroton, L. (Lord Chancellor)||Pitkeathley, B.|
|Ramsay of Cartvale, B.|
|Farrington of Ribbleton, B.||Randall of St. Budeaux, L.|
|Faulkner of Worcester, L.||Rea, L.|
|Filkin, L.||Rendell of Babergh, B.|
|Fyfe of Fairfield, L.||Rooker, L.|
|Gale, B.||Sainsbury of Turville, L.|
|Gibson of Market Rasen, B.||Sawyer, L.|
|Gilbert, L.||Sheldon, L.|
|Goldsmith, L.||Simon, V.|
|Goudie, B.||Smith of Leigh, L.|
|Gould of Potternewton, B.||Symons of Vernham Dean, B.|
|Graham of Edmonton, L.||Temple-Morris, L.|
|Thornton, B.||Wedderburn of Charlton, L.|
|Tomlinson, L.||Whitaker, B.|
|Triesman, L.||Whitty, L.|
|Turner of Camden, B.||Wilkins, B.|
|Warner, L.||Williams of Elvel, L.|
|Weatherill, L.||Woolmer of Leeds, L|
§ Resolved in the affirmative, and amendment agreed to accordingly.
§ 5.39 p.m.
Baroness Maddock moved Amendment No. 139A:
Before Clause 47, insert the following new clause—
"APPLICATION OF SECTION 106 OF THE PRINCIPAL ACT
The Secretary of State shall, prior to the commencement of section 47, publish additional guidance on the application of section 106 (planning obligations) of the principal Act.
§ The noble Baroness said: My Lords, the purpose of the amendment is to ensure that Section 106 agreements operate better than at present to produce housing and infrastructure that is needed in so many areas. I shall not rehearse in detail the arguments and fears that I and others expressed in Committee. We on these Benches believe that there is much merit in the present Section 106 system, and much to be built on. I know from consultation on planning tariffs that other people agree with us. I am grateful to the Minister for writing to us since Committee to explain how he sees the Section 106 agreements working in the mean time, before they are abolished in favour of planning tariffs.
§ Grouped with the amendment is Amendment No. 140, which would delete the clause that deals with planning tariffs. There has been consultation on that. I read the summary of that consultation and was really rather shocked. In 23 pages, there is absolutely no quantitative analysis of the results whatever. There are phrases such as "some consultees", "many consultees", "consultees generally" and "a number of consultees". Dare I suggest that if one were doing a project for GCSE and summarised in that way, it would be considered totally inappropriate? We were told how many people actually responded to the consultation, but I am shocked that it is on the basis of such a report that we will decide what to do on the issue.
§ Since the last time we met and we discussed this issue, one of the big concerns around the House was how the planning system was going to help to deliver more affordable housing. Many of us had fears. The noble Lord, Lord Best, is unable to be with us today, but he put forward graphically the situation from the point of view of housing associations. I declare an interest as the vice president of the National Housing Federation, and I am grateful to it for my briefing. I understand that since that time, the Minister and others at ODPM have met with the noble Lord, Lord Best. I look forward to hearing what the Minister says about the result of that meeting. It may be more appropriate for me to make those comments when the Minister has spoken, because I have concerns about what I think may happen.171
§ I am concerned about this. The Bill has been through two Committee stages in the Commons, and we are now on the last day of Report; but we are still in a mess over this whole area. Kate Barker will probably announce her second report tomorrow. I wonder how we will deal with all of this. Today, I was even more horrified to read in a building magazine—though I do not believe everything that I read, and this gives the Minister an opportunity to say that it is perhaps not true—that Chancellor Gordon Brown is considering imposing a land tax on house builders in the Budget this week.
§ I hope that the Minister will be able to clarify exactly where we are going on the issue of affordable housing and the planning system. I think that the Minister agrees that there is much good in the Section 106 system, and I think that he will be telling us that they will be looking at how they can make it work better. I will not say any more at this point, because I hope that when he replies the Minister will clarify some of the points that I have raised. I beg to move.
§ 5.45 p.m.
§ Baroness Hanham
My Lords, we have several amendments in this group, which are designed to delete all the clauses relating to these planning contributions on the grounds that all of this is becoming completely incoherent.
Since Committee stage, we have received—I certainly have, and I hope that other noble Lords have—a letter from the noble Lord, Lord Best, who apologises for not being in his place today. He spoke persuasively last time about the difficulties that could be erased if the Government persisted with their current proposals at the expense of the advantages that can be achieved through Section 106 provisions, particularly in the area of affordable housing. As laid out in his letter, which would have formed the basis of his speech, the Government have—I will be grateful if the Minister could confirm this set up a task force to consider the implications of making some changes to Section 106 provisions and to think through further the tariff systems and their implications.
I am sorry to be so conditional about this—the letter would have been more helpful if the noble Lord, Lord Best, had been able to speak to it. As I understand it, the Minister is thinking of setting up a task force of all the interested bodies to advise on these clauses. That is a strange situation. These clauses were put into the Bill at a late stage in the Commons. It was clear that they had no scrutiny there—at least no meaningful scrutiny—and they arrived here virtually untouched. As it stands, under paragraph 6 of Schedule 6, the Bill would take out the Section 106 provisions completely and just leave us with this rather odd system of tariffs.
In previous stages, the Minister has said that the Section 106 provisions would run alongside the tariff systems to start with. If the proposed omission is left in Schedule 6, we are concerned that, at some stage, it will be put into being and the Government will remove the Section 106 provisions. Our Amendment No. 148 172 would delete the paragraph in Schedule 6 that refers to Section 106 not being part and parcel of the Bill, so that there is no doubt left in anyone's mind that the Section 106 provisions will remain.
We have Section 106, about which there have been some not very firm views as to why it is not working. There are clearly, as always with these things, ways in which this could be improved, but we are back to babies and bath water. It seems a great pity to ditch the Section 106 system when it is now widely perceived as being not only helpful to local authorities but also particularly to the affordable housing areas. The tariff system has been opposed all the way along the line. If this task force is to be set up, then its discussions will take place outside the time-scale of the Bill. This House would not have an opportunity to discuss anything that was decided by it.
I am being a bit hesitant, because I am waiting to see what the Minister has to say. However, that would be unacceptable, in the sense that we have been struggling for the last two stages of the progress of this Bill to sort out what these new provisions would be, how they would be implemented, how local authorities were to deal with them—which is a big area of concern—and how localised the elements in them of the cost of land would have to be.
I very much support what the noble Baroness, Lady Maddock, said. I hope that the Minister may be able to amplify a bit what the noble Lord, Lord Best, would have said. I would certainly like to hear his views on the understanding of the noble Lord, Lord Best, that a task force is being set up. I would very much like to know how these matters will be dealt with when this Bill has left this House.
§ Lord Rooker
My Lords, I say at the outset that this area has been complicated, and it has changed a couple of times since the planning Green Paper, when the Government rejected tariffs and went for Section 106. Later, because we had more time to deal with the Bill and more time to think about it because of coming from one Session to another, we have put what looks like tariffs back in, but not at the expense of Section 106. I want to repeat that again. We do not want to throw the baby out with the bath water. I hope to deal briefly with the central issues; it would frighten the House if I held up all my notes. I believe that I have a positive answer to the issues that have been raised.
There is a problem about why we have these clauses in the Bill. We have pursued the reform of planning obligations in recent years because there are difficulties in the current system. From my experience in planning when it was my day job, I know that performance varies around the country. Some smaller authorities do not fully exploit all the positive aspects of Section 106. Sometimes, there are legal arguments about whether an issue raised under Section 106 is directly related or ancillary to the development. Some of the issues are very narrow.
We want to capture more of the value of the details of infrastructure projects. We have been looking for easier, more transparent and faster means of doing 173 that. Sometimes, more time is spent debating and discussing Section 106 than the original planning application. The present process causes problems. Therefore we have been searching for a means of reform.
There is a consensus about the need for reform. There is not a consensus about the solution. Given that there is a problem, the Government now think that they have some answers. Planning obligations affect most or all of the players in the planning process, which is why everyone has an opinion on them. It is important that the system is a good one. Business wants a system that is quick and certain, so that it knows what it will have to contribute and can get on with their developments—their prime function.
Likewise, local authorities want a system that is quick, so that they do not have to spend precious local authority resources on lengthy negotiations. Indeed, some authorities do not have the resources to spend on the negotiations, so they lose out on the benefit that Section 106 provides.
Local communities want agreements that are fair, where developers make a fair contribution in respect of the impact of new developments on the local community. As I say, there are arguments that lawyers can have about that. It is also right that the obligations are honoured and spent as intended. Local communities want to see the money properly spent. Developers want an assurance that their contributions have been properly used.
In turn, planning obligations can be a key tool in delivering sustainable communities, whether in a rundown industrial town in need of regeneration or in a growth area seeking infrastructure and services to support new housing. That infrastructure could run right across a community; it does not apply just to transport. It could include old disused railway lines, closed stations that trains still run through, education and/or health facilities. Planning obligations are a part of that, which is why reform of the current system is a priority.
Our solution is twofold. The first and most important change is that planning obligations policy will be established by local authorities up front in the plan-making process. They will need to identify the matters for which they would typically seek a contribution from developers, such as affordable housing, and, where provided in cash, how they would use such contributions. That will promote transparency for local communities and predictability for the development industry. We hope that it will encourage greater participation by the local community in making the development—whatever it may be—acceptable.
The second important part of the proposals relates to the optional planning charge. It is, optional—an alternative. We are not getting rid of the present system, although there is a technical point in the way that the Bill is drafted: Section 106 would disappear, but it would be reconstituted as an alternative in the new tariff system in the regulations. So it is not being 174 abandoned. We will not be left with tariffs only. I repeat, we will not be left with tariffs only. That is exactly the opposite of our proposals.
Under the optional planning charge, the local authorities would attach a cost to the contributions that they would expect from the development which they plan in their local community. That would give developers further certainty about the extent of the contribution that they would be expected to make and could speed up the process of agreeing the development. There is no doubt that it also promotes greater transparency and openness and should reduce the number of negotiations taking place behind closed doors. We want to avoid people arguing that a council has been bribed in order to obtain planning pennission. That is the sort of thing that my constituents would have said.
Regarding an individual proposal, the developer will have a choice: to pay the charge or to negotiate a Section 106 agreement. The charge offers speed and predictability. The conventional negotiated route offers greater flexibility. There is a choice. We recognise that where developers opt for the charge, in some cases there are likely to be issues still requiring negotiation and it will be possible to have a separate agreement alongside the charge. As I said at an earlier stage, they will not have to pay for the same thing twice. It will not be possible to negotiate a charge and for the local authority then to try to obtain, under Section 106, the same thing through the other route. The developer will not pay twice for the same items, which is a principle set out in the Bill.
The negotiated system will remain in place very much as it is at present. We intend to reconstitute Section 106 in the secondary legislation; that is, the regulations. That is why Amendments Nos. 148 and 151, which aim to retain Section 106 alongside the new clauses, are unnecessary. That is the broad vision of the Government. Obviously, there are details to be worked through. I could go on, but it would take a lot longer than I think would be useful. Those are some of the issues in terms of regulations and the new advisory group that I think are helpful to the House. That should put the lid on the fact that we are serious and genuine about this.
In Committee, concern was expressed about the process of developing the system proposed by the Government. The view was that there should be full consultation, and not to have a new system rushed through Parliament without proper consideration and broad support from stakeholders. That is true. Initially, there was an intention to consult on tariffs in the Green Paper. When a change was proposed, the ODPM became involved. We looked at it. There was a policy decision not to proceed down that route. I remember telling a senior industry official that we would not slip changes in the Bill through the back door. However, a year later, because of the way the Bill changed due to changes in respect of compulsory purchase and moving into the next Session, we have sought alternatives and additions to give another tool 175 to local authorities to look particularly for infrastructure products. Basically, we have had another year in which to work on it.
In addition to the consultation that we propose on the draft regulations and draft circular—which will happen because they will come back to this House—I would like to announce today that the Government are to set up a special advisory group of stakeholders to advise them on the reform of planning obligations. We are very grateful to the Royal Town Planning Institute and the other organisations that have expressed an interest in participating. Together they represent the full range of the sectors, including the Royal Town Planning Institute, the British Property Federation, the Chartered Institute of Housing, the Confederation of British Industry, the House Builders Federation, the Local Government Association, the National Housing Federation, the Royal Institution of Chartered Surveyors and Shelter.
The group will meet regularly over the next few months to work through the detail of the proposals. My right honourable friend Keith Hill, the Planning Minister, will chair those meetings where possible. The next months will be critical in developing the detail of the new system so that we can look forward to the valuable input of the special advisory group on the shape of the reforms. We shall also have its views on the draft regulations, the circular and the good practice guide.
I can go through a considerable number of reassurances. I hope that I have convinced the House that the repeal of Section 106 is necessary technically because it is moving from one part of legislation to another. It is not being abandoned; it is still there. As regards affordable housing, concern was expressed by the noble Lord, Lord Best. I understand why he cannot be here today. One of the problems of membership of this place is that of holding down a job that is not in London.
However, the noble Lord and the noble Baroness, Lady Maddock, are very positive about the consequence of the charge for the delivery of affordable housing. In particular, they were both concerned that developers would prefer to pay cash and, as a result, local authorities would obtain less affordable housing through planning obligations. I reassure the House that our objective remains the same. We are committed to the policy objectives of promoting mixed communities and the supply of affordable housing. More will be said about that tomorrow. I am certain that no one here today would remotely expect me to comment on the little bit that I might know, but I am such a small cog in the wheel that I do not know anything. It would be quite inappropriate, but it will all be good and positive news.
Our reforms of the planning obligations, including the charge, do nothing to change our objective of mixed communities and of promoting the supply of affordable housing. There have been misunderstandings regarding our proposals and, frankly, in some ways I am not surprised, simply because of the way the Bill has processed through 176 Parliament. It is an object lesson. It is the first time that we have carried a major flagship Bill from one Session to another and made changes during that carry over. There have been lessons to be learned in the way that was done, particularly when you need to be able to take the outside world with you because the Bill affects thousands of people—councillors and developers—whom we need to keep on board with what we are doing.
It also looks a bit daft for a Minister to stand up and say that we are going to operate Section 106 where noble Lords can find bits of the legislation that say, "Section 106 is hereby repealed", and then I have to explain why it is repealed. But it is not. In other words, developers will not be left with only the charge. There will be planning obligations under Section 106 that are broadly the same as they are now. Therefore the package of legislation on planning obligations will give the optional charge—the optional charge—for the developer if it is wanted. It will be there as an alternative. Developers will not be required to pay twice for the same thing. That will be of benefit and hopefully help speed up the process, giving greater certainty, clarity and flexibility where required, and certainly transparency.
I hope that I have said enough to indicate that we are serious and genuine about that. There has been a misunderstanding about Section 106 disappearing, but developers will not be left only with the charge. That would be the direct opposite of what we intend.
§ 6 p.m.
§ Baroness Hanham
My Lords, I am hound to say that we need to return to this aspect of Schedule 6 next time. You cannot have an absolutely categorical statement in one part of legislation which the Minister says does not mean what it says because "we are going to be doing something else and we will put that in regulations". The Minister would be very wise to accept my Amendment No. 148, which takes that out of legislation. I do not expect that to happen today because I appreciate that that would be unfair, but I think that I will return to that. If Amendment No. 148 is not agreed, then in future people will have to refer to Hansard and the regulations in order to decide whether Section 106 is running alongside the tariffs. I never look for mischief in the Minister—who does not do spin—but I see the possibility of difficulties arising if that clause is left in Schedule 6. We might want to come back to that.
The second point is that I am concerned that a task force that will now discuss a major aspect of the Bill and come to some conclusions is taking place outside this House and without this House having the opportunity to consider what those bodies come up with. Legislation is part of the responsibility of this House and therefore how it translates through ought to be part and parcel of our job. Maybe that aspect of 177 the Bill can come back in an affirmative order which we can consider, but I would like the Minister to consider how we deal with that.
§ Lord Rooker
My Lords, I do not know the mechanics of how that will work, but what is sure is that we are not seeking to bypass this House. That will be legislation—regulation as well as guidance. I will ensure that, before the House is presented with a final decision, at least it will get a report from the special advisory group so that the House knows in advance what is happening. I do not know how long it will take—there is a time scale. It will be chaired by a Minister. It will not meet behind closed doors—one has only to look at the list of participants. I will ensure that the House is not presented with a fait accompli: that is the important point for which the noble Baroness is asking.
We have one opportunity at Third Reading to make sure that, beyond any shadow of doubt, there is clear understanding of what we propose to do in respect of Schedule 6.
§ Baroness Hamwee
My Lords, noting what the Minister said about the presentation of a report on unamendable regulations, could he at the next stage also explain to the House—which is perhaps the converse of the noble Baroness's point—why it is necessary to include the repeal on the basis of what he has just told the House?
§ Lord Rooker
My Lords, it is in my notes, but I have been too brief. In respect of the repeal, several members expressed concern in Committee at the repeal of Section 106—which is the subject of Amendments Nos. 148 and 151. The Government intend to reconstitute the existing provisions relating to planning obligations in our regulations to ensure that a negotiated route remains open to applicants. In my comments to the House in Committee, I said that the clause provides for this in regulations, "lock, stock and barrel". That is still the position. There may be some minor modifications as a result of the consultation, but we expect the broad shape to remain the same.
The reason that we are repealing Section 106 is not because we want to do away with the negotiated route. We want to retain the negotiated route. I hope that the House can see that to seek to abolish it would be completely inconsistent with the desire for choice and flexibility, which are at the heart of our proposals.
In fact, we are repealing Section 106 because to leave it would mean that a local authority could not only seek a planning contribution through the proposed new system, but also seek a quite separate one under the existing system. That is unacceptable because it could involve a developer having to negotiate twice and pay twice. That will not be allowed.
What I can say clearly, however, is that we will not commence the repeal of Section 106 until the new regulations are in place. Otherwise there would be a period when no planning obligations procedure was available at all. Since the regulations are subject to the affirmative resolution procedure, that means that this 178 House would need to be satisfied with the proposed reconstitution of the negotiated route in regulations before Section 106 can be repealed.
On top of that I have also made a genuine offer, off the cuff, that we will make a report to the House before the House is presented with regulations so that there is no fait accompli.
§ Baroness Hanham
My Lords, I am very grateful for that assurance. Would it not be easier and more in conformity with the legislation to accept my Amendment No. 148, which preserves Section 106, and make it clear in regulations that it cannot be used as an adjunct to planning contributions? That way round you preserve the legislation and the legislative framework—you see that Section 106 stays as part of the legislation as it stands, but there is a brief explanation that they cannot be used twice. That would seem to be the obvious way, though I am sure that the Minister may not agree, but I shall return to that at Third Reading.
§ Baroness Maddock
My Lords, at last I am able to reply to the Minister. I am sure that the Minister is genuine in his views about how that has happened, and he understands the problems that we have raised, but he has not convinced me of the need to repeal Section 106. As the noble Baroness, Lady Hanham, said, if the Government want to achieve what the Minister just said then they do not need to repeal it. We are putting in place something rather complicated, outside the system and too late. I am grateful to the Minister for offering to make sure that we get a report from the task force. Before he said that, I was going to ask him whether he might give us the minutes of its meetings so that we could follow what was happening.
We have got this all the wrong way round. We have had the Bill, and we have had consultation. Now, we are going to have a task force. It should have been the other way round. I am worried, and I think that others are too. I can see from the body language in the Chamber that noble Lords support us. They are concerned that something will happen and that it will be difficult for us to scrutinise it as it should be scrutinised.
Much of the consultation that has already taken place supports the idea that Section 106 has worked well over the years, and people have begun to get to grips with a difficult situation. In his letter to me, the Minister said:Several local authorities, such as Leeds City Council, Watford Borough Council and Worcester City Council have in fact been operating a range of approaches based on formulae and standard charges in recent years within existing policy and negotiated agreements".If they can do what the Minister wants them to do under the present system, why must we change it?
The Minister said a lot in his reply. I hope that he will give me and other Members who have taken an interest a little more detail in a letter. It would be helpful to see exactly where we are. We shall have to consider the matter carefully before the final stage, 179 which is only next week. We will have all those wonderful statements from Kate Barker tomorrow. We will have to consider the matter carefully.
§ Lord Rooker
My Lords, I want one more shot. This is serious. I am thinking of the practicalities of what we are planning as an alternative approach. There are two ways of doing it: there is negotiated Section 106, as I shall call it, or there is the charge route that the developers had.
From the point of view of administering the system, it would be better for the planners, the developers and their advisers to have that package of alternative planning obligations consolidated into one document—the regulations—with one set of guidance relating to planning obligations, rather than, as the noble Baronesses would have it, having part of it in primary legislation because Section 106 was still in the Bill and another part in regulations. The guidance would be split between the two. With all that we are doing—lock, stock and barrel, as I said—Section 106 is not disappearing. We would effectively consolidate all planning obligations and planning gain legislation in one set of regulations covering the two different approaches and the guidance. From an administrative point of view, that would be better for planning offices, consultants, architects and planning advisers throughout the country. Rather than making them go to separate bits of legislation, we offer them one document with guidance. That is a practical solution, and it should knock on the head the idea that we are getting rid of Section 106. We are not.
§ Baroness Maddock
My Lords, the problem is that regulations are not amendable. That is one of the problems for those of us who have taken an interest in the issue. If there is to be genuine choice for people, why can we not have the two systems?
In his letter, the Minister said that the Government would repeal Section 106. We still doubt the wisdom of that. Local planning authorities are heavily pressed. As the Minister said, it is difficult, particularly for smaller authorities. Planning officers have begun to get to grips with Section 106. Now, they will be faced with something else.
§ Lord Rooker
My Lords, they will not. The noble Baroness is setting a hare running, and she is totally wrong. Negotiated planning obligations under Section 106 will not disappear. They are simply moving from primary legislation to regulations—lock, stock and barrel, as I said. My notes said that that was the case.
The same system that operates today can operate in the future. If the developer wants an alternative route and that route is supplied—a tariff based on whatever has come up; there are various things, but I will not go into them now—that is open to him. The local authorities will be able to operate the same system—the one with which the noble Baroness says they are comfortable—in the future as now. We are not changing their role. Let us not set the hare running that we are removing their choice to operate Section 106 180 agreements. I do not know what we call such agreements; perhaps we ought to call them Section 106 agreements in the regulations.
On the other point, I must ask why, if we are moving the process lock, stock and barrel to regulations, does the noble Baroness want them to be amendable? She is satisfied with what is operating now, and we have just said that we will operate it through regulations—lock, stock and barrel. What is the problem? The fact that the regulations are not amendable should not be a problem. No one is seeking to change the system now, because it works well. Because it works well, we want to keep it, and we will do so in the regulations, as an alternative to the charge option. I rest my case.
§ 6.15 p.m.
§ Baroness Maddock
My Lords, the point that I was making was that local authorities would have a new system as well as the kept Section 106 system in the other form that the Government want. We would not just be using the system that we have and making it better. At previous stages of the Bill's progress, the Minister said that he would improve the way that Section 106 worked. Is he now saying that he will not improve it?
We have had a long debate. I would appreciate a letter from the Minister setting out exactly how things will work and what the timetable will be. People are worried about the timetable and about when things will come into operation. In all fairness, we need to know that. At the moment, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Clause 47 [Planning contribution]:
§ [Amendment No. 140 not moved.]
§ Clause 48 [Planning contribution: regulations]:
§ [Amendment No. 141 not moved.]
§ Clause 49 [Planning contribution: Wales]:
§ [Amendment No. 142 not moved.]
Baroness Hamwee moved Amendment No. 142A:
Before Clause 50, insert the following new clause—
"APPEALS AGAINST PLANNING DECISIONS
(1) In section 78 of the principal Act (right of appeal against planning decisions and failure to take such decisions) after subsection (2) there are inserted the following subsections—
(2A) Where a local planning authority approves an application for planning permission, and—
(2B) Persons who may by notice appeal to the Secretary of State against the approval of planning permission in the circumstances specified in subsection
(2A) above are any persons who have lodged a formal objection to the planning application in writing to the planning authority for the area in which the land to which the application relates is situated.
(2) Section 79 of the principal Act (determination of appeals) is amended as follows.
(3) In subsection (2). leave out "either" and after "planning authority" insert "or the applicant (where different from the appellant)".
(4) In subsection (6), at the end insert "(except for appeals as defined in section 78(2A) and where the appellant is as defined in section 78(2B))".
§ The noble Baroness said: My Lords, I suppose that the amendment is something of a continuation of a theme. We persist in seeking a provision regarding third-party rights of appeal, which is the shorthand way of describing it, because we want to ensure transparency, trust and confidence in the system. In Committee, I spoke at some length to a similar but more extensive amendment, and I do not intend to go again through the reasons for our support for a third-party right of appeal.
§ In Committee, the Minister said that such a provision would slow down the system and would not be consistent with a democratically accountable system of planning. He relied on the increased community involvement that he anticipates with the Bill. I think that I have said that we have had a plan-led system for over a decade. Much as I hope that there will be real community involvement, we all know how difficult it is to interest citizens in what happens in their neighbourhood until there is a concrete proposal.
§ I raise the point again, in order to ask the very good question asked by a Member of the House of Commons, when it debated the provision: if the Government want to speed things up, have they given any thought to removing the right of appeal from an applicant, when the local authority's decision is in line with its own current plan? That question is new to this House, which is why I felt that it was worth raising the matter again. Having heard what the Government had to say about safeguards, I cannot be as enthusiastic about the effectiveness and usefulness of judicial review, given that it is somewhat cumbersome and costly, the powers of the local government ombudsman and other similar administrative arrangements.
§ I still feel that there are unanswered points. As the question was not asked last time, I shall ask it now. I beg to move.
§ Lord Chorley
My Lords, I supported third party rights of appeal at Second Reading and at Committee and accordingly I support this amendment, which I find rather easier that Section 106. The restrictions of the rights which this amendment now carries seem entirely reasonable. At earlier stages the Government seemed to have two objections, the first being delay. But is that of much weight given the limited circumstances in which it would now apply and which would trigger an appeal? Moreover, the threat of an appeal alone may well improve both the quality of the planning decision and may even bring the developer to the negotiating table. If planning is a mediating process between conflicting interests and objectives, and I am a firm believer that it is, then this is surely just one desirable aspect of the mediation process. On 182 reading Hansard it seemed to me that the Minister agreed that the delay argument was not very substantial.
The second notion was that the third party right of appeal, as the noble Baroness has just said, is somehow undemocratic. To me the notion that a planning decision by an authority in its own favour should for that reason override the right of appeal, simply because the authority has been elected, is extraordinary. It boils down to a notion of democracy which has no concept of checks and balances. which surely is the hallmark of democracy.
The argument that the appellant can resort to judicial review is lacking in both common sense and reality. It is expensive and restrictive, that is to say, not always applicable. To be fair, the Minister recognises that and he does not put that forward as an argument.
There is the question, which I believe I raised originally at Second Reading, of designated areas which are planning authorities. I mentioned at that stage the case of the national parks. To argue that ministerial appointees are democratic because the Minister represents an elected government is to stretch credulity to breaking point.
What about SSSIs? The Minister made some remarks in Committee on the subject of national parks, which I found difficult to construe from reading Hansard. He said:At some [time] I will address the national parks issue".—[Official Report, 5/2/04; col. 814.]After that he was rather difficult to follow so perhaps the noble Lord can help me when he replies and say how other designated areas fall into the scheme.
§ Lord Bridges
My Lords, I moved an amendment in rather similar terms at Committee stage, but I did not press it to a Division because of lack of support. I am very happy to see it again. Re-reading the speeches made at Committee stage, I believe that a common criticism of what I said was that planning decisions should be taken by elected councillors and that if one did not like that decision, one should kick out the councillors at the next election. I remember the noble Lord, Lord Lucas, speaking effectively in that vein.
But I do not believe that that argument is very convincing. The fact is that fewer and fewer planning decisions are now taken by meetings of the elected councillors. There are two reasons for that. One is the cabinet system which will take a political view about a particular development and will require the ruling majority to support that line in committee. Thus the cabinet effectively excludes the elected councillors meeting together on many occasions.
Secondly, there is a very tight timetable now in force for the taking of the majority of planning decisions, which are delegated to the officers. These matters come before the councillors as cooked meals: there is nothing that the councillors can do about it. I believe that a reasonable third party right of appeal is an 183 essential concomitant of the excellent planning system which we have and would be a notable improvement. I hope that this proposal will now find favour.
§ Lord Lucas
My Lords, when these amendments came before us in Committee I was rude about them, as the noble Lord, Lord Bridges, said. I am much happier with this cut-down version. I believe that the noble Baroness, Lady Hamwee, made a good point when she referred to the possible restriction on applicants who were seeking to do something outside the plan and had been turned down because of the council getting through to the Secretary of State. I would prefer not to go down that road, but to follow the route suggested in this amendment. That would provide some degree of parity.
When we have gone through a process to agree a plan, a variation should allow for a right of appeal. As the noble Lord, Lord Bridges, said, some of the structure which has been imposed on councils recently has led to a diminution in the involvement of councillors in the democratic process in considering individual applications. I would be happy to see something of the kind referred to in the Bill. I would like to see a junk filter in there somewhere. I would like the Secretary of State to have the right to decline to consider an appeal if the matters raised were not substantial in his opinion. Otherwise, people will allege that something is outside the plan and force the department to go through some kind of process to prove the contrary. It should be restricted to significant cases. I do not have a clear idea of how that is to be done, but the amendment is heading in the right direction.
§ Lord Rooker
My Lords, I said at the outset that I do not believe that the issue of removing the right of appeal by the applicant was raised in earlier debates. At this point we have no plan to remove the right of appeal from applicants.
The new clause reflects the one we debated in Committee, which obviously sought to introduce the right for third parties to appeal against the grant of planning permission by the local authority in specified circumstances. But this clause envisages a more limited third party right of appeal than on the previous occasion. Therefore, I can use a long note rather than a massive one, which is what I was faced with previously.
I genuinely understand the concerns that the clause seeks to address. In her concluding remarks in a previous debate about the issue, the noble Baroness, Lady Hamwee, expressed her concern about two types of circumstances in which this amendment seeks to provide a third party right of appeal. Those circumstances are where the decision to grant planning permission is a departure from the development plan or in which the local authority itself has an interest.
We believe that the proposed measures are neither necessary nor appropriate in these limited circumstances and I shall seek to explain why. As is known, the Government acknowledge that we need greater community involvement in the planning process. If one 184 takes this matter in isolation and ignores the rest of the Bill, a very powerful case would have been made, as indeed it has, by the noble Lords, Lord Chorley, Lord Lucas and Lord Bridges.
But one has to look at the rest of the changes that we are making in the Bill to the planning system, which provide opportunities for community involvement. But the Bill builds on that and strengthens those opportunities. I have set out in detail the way in which that will happen so I will not repeat it today.
The Bill will strengthen the opportunities for people to comment on and influence development proposals much earlier in the process and even before a planning application has been submitted. So we believe that it makes sense to continue with a plan-led system of development control. That is why so much of the Bill focuses on improving the processes for developing such plans. The plan provides a framework to engage people in the way in which their communities might grow and change. For businesses it provides an essential source of information about where to propose new developments and of the type likely to be appropriate. There are established, clear and strict rules and procedures to ensure the propriety of the decision-making process and the decisions taken. Therefore, the planning decision must be decided in accordance with the development plan unless material considerations indicate otherwise.
Where proposals for developments do not accord with the development plan, the Secretary of State must be notified so that he can consider whether to call in the application for his own determination. The Secretary of State does not call in every notified case because in many circumstances a decision contrary to the local plan would not conflict with national policies, have significant effects beyond their locality or give rise to substantial controversy.
I am on record as saying that the reason I wanted a third-party right of appeal, prior to becoming the Planning Minister, when I was an elected Member of the other place, is that at every occasion we sought to use it to stop a development. I wanted to use it as a veto on development—I make no bones about that. A decision to depart from the local plan may well be the appropriate one, even if it is not popular. The call-in review process is a safeguard in that respect.
The second proposal in the new clause is for a third-party right of appeal in cases involving planning applications where the local authority has an interest. There appears to be a presumption—it was not spelt out in detail, but it must be the case—that the local authority will act improperly in deciding such cases. I have set out previously the lengthy list of legal and administrative safeguards that apply in decisions in cases where local authorities have a pecuniary interest in the proposed development. The safeguards are designed to ensure that local authorities act in a fair and unbiased manner. Local authorities operate under very strict rules to deal with possible conflicts of interest. We had a list of some of them in Committee. Although they seem extreme at one end, they serve to prevent any impropriety where the local authority has an interest in an application.
185 Moreover, in the event that impropriety can be shown—I realise that it does not happen often; I have given figures judicial review by the courts is available. I have demonstrated in Committee that the remedy of judicial review is actively employed by third parties, and decisions of local planning authorities have been overturned as a result. The activity is relatively low, for reasons that we understand, so we would not expect that there would be a need regularly to resort to such proceedings. Judicial review is but one of a range of powerful legal and procedural safeguards in the planning process; it is not the sole recourse in the event of an alleged impropriety in the process. We do not believe that we need to add to this armoury an appeal route to the planning inspectorate. We do not argue against doing so on the basis that it would not be useful on the very few occasions where there may have been an improper decision that should be overturned; rather, our concern is that such a provision would be used by third parties inappropriately, and all too frequently. As I said, too many proponents—I was one of them—of a third-party right of appeal want to use it to veto development, either by obtaining a different decision from the planning inspector or by a process of attrition. We do not want the planning system to be slowed down in that way—I make no bones about that.
I understand that the new clause envisages that the right of appeal would apply to anyone who had objected at the application stage. Our concern is that the provision would confuse and slow down the initial consideration of the planning application. Providing a right of appeal to anyone who had objected at an application stage is likely to encourage the submission of objections in order to safeguard the right of appeal should permission be granted at the application stage. That cannot be a desirable outcome.
We must remember that it is the responsibility of the local planning authorities to act in the public interest when determining planning applications. They must take account of the views of local people on planning matters before taking decisions. Elected members must justify their decisions to their electorate. I realise that, in that respect, it is almost a contradiction of some aspects of the examples taken. They would not take decisions affecting their ward or electorate, because sometimes they would be ruled out. However, as regards their responsibilities, not only do they represent a ward, they are local authority councillors representing the district council and are required to take an overview on certain issues, in the same way as Members of the other place are sometimes required to take a national view rather than a constituency one.
Developers need certainty in order to invest in local areas and they want decisions quickly. A third-party right of appeal would mean that planning approvals could not be implemented pending an appeal, and it would inevitably lengthen the existing decision-making process. Our proposals for greater community involvement throughout the whole planning process—that is, our new proposals in the Bill—coupled with the existing range of legal and procedural safeguards, 186 including the availability of judicial review, render unnecessary the third-party right of appeal, even a limited one as set out in the clause.
For all those reasons, I do not see any merit in introducing a third-party right of appeal. I genuinely believe that, because I know from my own practical experience how I would have gone down the road of the third-party right of appeal for the reasons that I have given. I am not saying that everyone would take that approach, but the vast majority would.
I apologise for not answering the point about national parks in the previous debate, despite having said that I would. It is not an elected body; however, the organisation is supposed to work in the best interests of the area of special amenity value. We are not convinced of the need for a third-party right of appeal, even in a major case. I hope that I have made clear that I do not rest the case exclusively on the issue of it not being democratic and elected. In some ways, it is much more serious than that because of how the system would be blocked up. It is a much broader objection. It is a fairly important point, but it is not one on which I rest the case exclusively. To that extent, we expect the planning authorities to work in the best interests of the public at all times in any event.
§ 6.30 p.m.
§ Baroness Hamwee
My Lords, I thank the Minister for his response. I note his additional remark that it is one that he really believes in. He will need to be careful, otherwise Members of the House will start to separate his responses into those that he is reading and those that he believes in.
The point about whether applicants should be refused a right of appeal is a good one. I do not claim credit for it; Clive Betts in another place raised it. As regards the conduct of local authorities, I do not assume impropriety. I seek a way for local authorities to be seen to be conducting business properly.
The noble Lord, Lord Lucas, raised an interesting point about leave to appeal, which, I can see, might be put in place in the same way as some appeals through the courts require leave before the appeal itself can be instituted. I am not sure whether I am right, but I think that one needs leave before starting a judicial review. I would like to consider that interesting point later. I shall not attempt, therefore, to respond to all the points that the Minister has made. I beg leave to withdraw the amendment.
Amendment by leave withdrawn.
Baroness Hamwee moved Amendment No. 142B:
Before Clause 51, insert the following new clause—
"DURATION OF PLANNING PERMISSION AND CONSENT
(1) Section 91 of the principal Act (limit on duration of planning permission) is amended by inserting at the end of subsection (2) the words "and any other matters which the authority consider relevant
(2) Section 18 of the listed buildings Act (limit of duration of listed building consent) is amended by inserting at the end of subsection (1)(b) the words "and any other matters which the authority consider relevant.
§ The noble Baroness said: My Lords, included in this group are Amendments Nos. 142C and 142E, in the names of the noble Baroness, Lady Hanham, and the noble Lord, Lord Hanningfield, but to which my noble friend and I have attached our names, and Amendments Nos. 142DS and 142E, which are tabled in my name and that of my noble friend. All the amendments relate to the duration of planning consent.
Amendment No. 142B was designed to achieve what the Government appear to be concerned about. It would amend Section 91 of the 1990 Act, the provision dealing with duration, which has a default period of five years but provides that that period can be whatever the authority considers appropriate having regard to the provisions of the development plan and other material considerations. The new clause would provide for the addition of the words,
and any other matters that the authority considers relevant".
A similar provision would be made in the listed buildings Act.
§ Under the existing legislation the authority can have regard to material considerations. I am certainly not sufficiently informed of case law on what is "material", hut, as I read the provisions in the existing legislation, it is matters that are material to the application, not to the applicant. In response to a point that I put in Committee, the Minister indicated that matters such as site assembly and putting in place the funding are not material for this purpose. In other words, the local authority could not have regard to those difficulties under the existing legislation. That is why I want it to look at other things it thinks are relevant, because putting the site together for a large scheme is relevant.
§ The Government is concerned about "land-banking", slowly putting together land and holding on to it until it seems to be a good time, from their point of view, to develop it. I am not saying that we, from these Benches, disagree with the Government wholly in this. But their way of dealing with what they perceive as being a problem is going to make matters worse. The Minister said in Committee that the majority of permissions are implemented within three years—the default provision within the Bill. Surely those are the small, easy applications and not the big schemes. They are not the sites that are difficult, which require remediation—a word I think the Minister had to define yesterday.
§ I am sure that noble Lords concerned with planning know about the difficulties of contamination, the desirability of building on brownfield land and the obstacles that may be added to that if its developers have to do it in the way that is provided here. We all know about the complexities of funding arrangements. The Government want to get house-building schemes achieved, and we share that objective. To suggest that developers should be required to submit a new 188 application to extend a three-year permission will mean a real danger that developers will not undertake the most difficult sites—the brownfield sites in particular—which we want to see developed or redeveloped.
§ The Government want flexibility—that term has been used—for local planning authorities and for the developers to discuss what is appropriate in each case. "Flexibility" is a favourite word. Our proposal in Amendment No. 142B to allow the authority to extend the matters to which it can have regard, if we are stuck with a three-year provision, would be a helpful one. However, I would prefer that we stay where we are, and support the amendments of the noble Baroness, Lady Hanham, which I appreciate would pre-empt my Amendments Nos. 142D and 142F. We support leaving out subsections (1), (2) and (4), which are the subjects of the amendments on which she will lead, and to which we have attached our names.
§ The Minister has told us that there has already been a consultation on the three-year default period. I admit that I have not researched this. But I suspect that there must have been a resounding "No" from the development industry in this consultation on just the sort of sites that the Government is concerned about. The more I think about the reduction to three years, the more I am concerned that it will do precisely the opposite of what the Government seek.
§ Our amendments, which I very much hope will be pre-empted in the course of our agreeing Amendments Nos.142C and 142E, also provide for an alteration to dealing with the three-year period. This is a suggestion which has come from the industry: to start the clock running when all associated consents, permissions or clearances have been given, with a top limit of five years. "Associated consents" means such matters as the following, from the five main statutory agencies which most often require them: the Highways Agency, almost invariably when the scheme is of any size the permission cannot be implemented until there is a new junction or access; the Environment Agency, involving permits for the control of pollution legislation, sewage, water services and so on; water authorities like British Waterways, again involving water and sewage removal; English Heritage, where listed building consent is required and where a separate application to English Heritage for approval is needed; fifthly, English Nature, where the site is a particularly sensitive one and there may be a lengthy, and no doubt important and useful, negotiation period.
§ I am told, and certainly it has been my own experience, that the Highways Agency has been the cause of—I quote the British Property Federation—"most concern" for a number of organisations in its requirements. I am aware that the president of the Royal Town Planning Institute has written an open letter to the Government about the negative impact that the Highways Agency has on the development process.
§ I thought it appropriate to speak on those clauses at this point, as I will not be able to come back until the very end of this debate. But I will make it clear again 189 that although we start with Amendment No. 142B, we hope to stick to the live-year period and for the Government to explain to local authorities that they have these powers: that the five years is a period which can be shortened should that be the right thing to do. I beg to move.
§ 6.45 p.m.
§ Baroness Hanham
My Lords, I have tabled Amendments Nos. 142C and 142E in this group. As the noble Baroness, Lady Hamwee, has said, my amendments address directly the time of planning permissions and the reduction, as the Bill would have it, of the consents from a position of five years to three years. We have received an enormous number of representations on this, and it is fair to say that this part of the Bill has been almost universally condemned. There are many concerns that have been expressed and I will try not to cover again the ground that the noble Baroness, Lady Hamwee, already has. I will briefly charge over those.
First, there is confusion as to why these changes need to be made to the current system. Local planning authorities already have powers to shorten the consent from the default five years if they want to. Instead of Clause 51, the Government should issue best practice guidance on when it would be appropriate for councils to exercise their existing rights to issue shorter consents, such as when there is a strong likelihood of house builders banking land, or in very simple developments that could be completed quickly. For once, the option is there for the Government to pick up. But it seems to be the general consensus that, far from saving the local planning authority time and resources, they will no longer be able to grant extensions to planning permissions. Applicants will be forced to submit an entirely new application, and the local authority will be burdened further if the three-year period has been superseded. For many developments, three years is simply not going to be long enough, and this short consent will only serve to put off potential developers. This is especially the case for brownfield city centre sites and mixed use developments—precisely the developments that the Government insist on telling us all the time that they are keen to encourage as part of their sustainable communities agenda. Marginal schemes on complex sites and regeneration areas will be much more difficult.
Funding commercial and mixed development is already problematic, as it is much more risky than traditional house-building, and the changes in the Bill make it harder still. It seems that what the Government are trying to achieve with one hand—successful urban regeneration—will be undermined by the other. By reducing the duration of consent, developers will be discouraged from taking on precisely this type of project.
Many of the organisations we have spoken to have pointed out the same matters raised by the noble Baroness, Lady Hamwee: consents from the Highways Agency; consents from the fire brigade; consents from the Environment Agency; compulsory purchase may 190 be necessary to decontaminate contaminated land; pre-letting; negotiating of finance; and the tendering of contracts.
A whole range of matters are encompassed within the granting of planning permission. Another issue is the time scale within which these matters have to be sorted out before planning and development can actually start. A three-year period will cause immense difficulties for developments of this scale and nature. It will not encourage people to bring them forward. Three years is adequate for smaller-scale planning permissions, but those arrangements are already working well.
Clause 51(2) is concerned not with the granting of full planning permission but with the issue of outline planning permission. The effect of the Government's changes to planning applications is that an application for the approval of reserved matters must be made within three years of the grant of that planning permission. The developer has two years after the local planning authority's approval of the final reserved matters to begin the development. That has a number of strange results. First, while the Bill considers that full planning permission should be implemented within three years, an outline planning permission will have five years or more. The Government's intention to reduce the period for implementing planning permissions applies only to full planning permission.
Secondly, if a reserved matter approval is sought and granted within six months of the grant of outline planning permission, the developer will have to start development in the next two years; that is, two years and six months after the grant of planning permission. Within that time the developer has to sort out the money and everything else that is needed before the development can start.
For the reasons that the noble Baroness and I have outlined, we are strongly against Clause 51 in all its manifestations. We on these Benches very much support her amendments in this group, even if mine pre-empt them.
§ Lord Lucas
My Lords, I thoroughly support my noble friend in this. It seems that the default ought to be the value which is appropriate in most circumstances. The vast majority of planning permissions are small domestic and personal matters. It seems to me that it is widely accepted that five years is a reasonable time scale for the generally disorganised and stumbling public to have to contend with. It gives someone a reasonable time within which to complete the development for which they have permission without placing them under any undue stress. They can plan things properly; they can get things organised; and they can allow their builders to overrun by two years, as has happened to me on occasion. All the ordinary difficulties that happen to the inefficient individual ought to be allowed for in the general time scale of planning permissions.
As both Front-Benchers said, there is a class of difficult major schemes which require long time scales. There is undoubtedly a class of relatively simple new-builds or major refurbishments which jolly well ought 191 to be got on with and finished in three years. If it has been agreed to build 15 new houses in a village, everyone will want to know when it will start so they can take all the other action. If it is part of providing housing in the area, five years would clearly be too long.
In those circumstances, the process should be telescoped to two years, three years or whatever is appropriate for that development. However, that should be done by giving strong guidance to authorities that they should squeeze the time limit in commercial developments when they can, when it is important, to ensure that housing is provided as swiftly as reasonably possible. That is the way to do it. Exceptions should be dealt with in guidance. We should not distort the overall legislation. We should not make almost every planning permission an exception to the default in legislation. Everyone will want to say, "I need more than three years because I cannot be sure of the builders; my wife cannot decide what colour she wants the bedroom; and I don't want to put the window in until we have that straight".
We are used to a five-year time scale. Everyone seems to be generally happy with it. It is a default that we should stick with. Let us deal with the exceptional cases in an exceptional way and not in the body of the Bill.
§ Lord Bassam of Brighton
My Lords, my guess is that, ultimately, there ain't a lot between us on the objective; the question is simply how we get there. I have listened carefully, particularly to the practical words spoken by the noble Lord, Lord Lucas. However, I am not persuaded of his point. For that reason, and because it is right that I should do so, I shall go through the points very carefully.
I understand exactly why Amendment No. 142B has been tabled—to address concerns that when a local planning authority considers the length of time that a planning application should remain valid it will not consider matters such as the length of time it takes to assemble the site and organise funding.
Section 91(2) of the Town and Country Planning Act 1990 and Section 18(1)(b) of the Planning (Listed Buildings and Conservation Areas) Act 1990 require the local planning authority to consider "other material considerations". Ultimately, of course, the courts are the ultimate arbiters of what constitutes a material consideration. Our view is that these matters could be material considerations in a decision on how long an application or consent should remain valid. In such a case, a local planning authority considering the duration of time needed for a planning permission might have regard to the time needed to assemble finance and land, particularly in the case of complex regeneration projects. It is perhaps worth pointing out that there are few benefits for the authority in setting periods which prove unworkable if that would result in the developer submitting a new application or consent.
As the noble Baronesses, Lady Hanham and Lady Hamwee, explained, Amendment No. 142C would delete the provision making three years, instead of five 192 years, the default duration of planning permission. It would delete the provision that where planning permission is granted, and that grant of permission is subsequently challenged in judicial review proceedings, the duration of permission will be from the date of grant until three years—or other period as directed by the determining authority—after the completion of the proceedings. It would retain the existing provisions of Section 92 of the Town and Country Planning Act 1990.
Amendment No. 142D would require a permission to be implemented within three years or a later date within five years depending on the date on which the last of all associated consents has been granted, including consents by a judicial body.
Amendment No. 142E would delete the provision making three years, instead of five years, the default duration of listed building consent. It would delete the provision that where listed building consent is granted, and that grant is subsequently challenged in judicial review proceedings, the duration of consent will be from the date of grant until three years—or other period as directed by the determining authority--after the completion of the proceedings.
Amendment No. 142F would require a listed building consent to be implemented within three years or a later date within five years depending on the date on which the last of all associated consents has been granted, including consents by a judicial body.
We have already had a lengthy debate on this, but it is worth going through the points in a little more detail. I want the reasons for the Government's position to be clearly understood.
The noble Baroness, Lady Hanham, said that she did not like Clause 51 because it reduces the period of validity of a planning permission, listed building consent and conservation area consent from five to three years. Local planning authorities will be able to agree longer periods where appropriate. There is a right of appeal to the Secretary of State.
The clause also prevents a developer from seeking to extend a permission by submitting an application to vary a condition. Any developer wishing to extend the time limit will have to submit a new application for planning permission and the local planning authority will consider the entire application afresh.
In Committee, the noble Baroness, Lady Hanham, asked why this clause was necessary as local authorities already have the power to shorten planning consent from the current duration of five years. She has repeated that question today. It was also suggested that instead of this clause the Government should issue best practice guidance—another point repeated today. Furthermore, it has been argued that, for major developments, three years will not be long enough.
I understand those points, but it is our view that the clause is designed to create a clear framework and to send a strong signal that the planning system is to be speeded up. Our intention is to encourage developers to start work at the earliest possible point. No longer will they be able to sit on permissions for years on end without starting works. Circumstances can change in 193 three years and a shorter default period for planning permission would allow changes to national guidance to take effect more quickly.
As we have made clear, we recognise the need for flexibility. It is extremely important. Moreover, as I have said before, cases will arise involving complex regeneration projects that take time to put together. They will require a longer period. We intend to specify in guidance that local planning authorities should consider actively longer periods in those cases. In setting time limits, local authorities will need to be mindful of the requirements they impose on the form of planning conditions.
The noble Baroness, Lady Hanham, has contrasted the provision for the implementation of full planning permission within three years with the current position that outline planning permission has five years or more. As we have already indicated, the future of outline planning permission is under review. Whatever we decide about outline planning permission, our resolve to speed up the operation of the planning system remains. I must say that I have been impressed by the fact that, at several different points during debates on the Bill, all sides have concurred with the view that we need to apply more pressure to speed up the planning process. I have not heard too many words spoken in defence of the way in which the current system operates, where delay is inherent.
Both noble Baronesses, Lady Hamwee and Lady Hanham, have raised questions about the provisions set out in subsection (1)(b) on judicial review. Amendments Nos. 142D and 142F address this issue. The noble Baroness, Lady Hanham, raised several legal concerns about the clarity of this subsection. We understand the force of the argument about judicial review and we are now considering carefully how to proceed on this point. A local planning authority might also wish to consider the time needed to secure associated consents—the issue raised in the amendments—when deciding on the appropriate duration for planning permission or a listed building consent.
I also listened carefully to what was said by the noble Lord, Lord Lucas, on this issue. His argument was based on what I think is fair to describe as the large volume of planning cases comprising small, domestic matters that are brought to planning authorities for resolution. The noble Lord defended the right of people to take their time. I understand that entirely, but certainly in my experience most people complete their plans for domestic applications within the three-year period.
We have sought here to ensure that there is pressure to complete such planning matters within the three-year period. We have allowed flexibility for longer and more complex planning applications, in particular those involving regeneration because we recognise their complexity. Furthermore, we have given a commitment to consider some of the additional points raised by the noble Baroness, Lady Hanham, about the drafting of the judicial questions.
194 Clause 51, with its core intention to reduce the default period for planning permission, is a central and key part of the Government's programme for modernising and speeding up the planning system. I repeat, I have not heard voices arguing for delay and obfuscation in planning, and I cannot believe that they would be raised, in particular in your Lordships' House. I cannot accept the amendments, although as I have indicated, we will consider how best to deal with the concerns expressed on the issue of judicial review.
For all those reasons, and because of a desire to make the system swifter and more efficient, as well as to create more realistic but flexible and clear targets, I hope that the noble Baronesses will not press their amendments.
§ Baroness Hamwee
My Lords, the noble Lord says that there is little between us, but there are two years between us here. It is not a question of choosing the bathroom tiling or deciding which colour to paint the back bedroom; it is the question of two years and, certainly in my case, it is the big scheme. To flatter the Minister by copying him, I should say that I genuinely believe in what I am saying—which is likely since I wrote the words.
The noble Lord, Lord Bassam, has said that ultimately the courts are the arbiters of what are material considerations. Today I seem to have heard a slightly different response on whether certain matters may be material from that given on previous occasions, but to be told that associated consents may not be material considerations leaves me, to be frank, too puzzled to want to rely on the courts.
Basically, we are being asked to agree to a strong signal being sent to local authorities to get on with it, or to ensure that the developers do so. However, that strong signal could be given in the form of further guidance to local authorities on the application of Section 91(1)(b) and 91(2) of the Town and Country Planning Act 1990 which states in terms that the permission must be started within five years or,such other period (whether longer or shorter) beginning with that date as the authority … may direct".The Government are not usually coy about advising and guiding local authorities, therefore they can remind them that a limit of three years can be put on the permission.
I am not going to be taken down the road of considering what would be good planning, whether in terms of speed or quality. I return instead to my real concern. The provisions that the Government are seeking to enact in Clause 51 will mean that the major developments we want to see, in particular in housing, will be so much harder to achieve. Members on these Benches are not noted for adopting the developer's point of view in a knee-jerk way, but we do listen to the arguments that have been made. We are very persuaded by those arguments. I should like to test the opinion of the House.
§ 7.8 p.m.
§ On Question, Whether the said amendment (No. 142B) shall be agreed to?
Their Lordships divided: Contents, 122; Not-Contents, 99.196
|Division No. 4|
|Addington, L.||McNally, L.|
|Anelay of St Johns, B.||Maddock, B.|
|Astor, V.||Mar and Kellie, E.|
|Attlee, E.||Masham of Ilton, B.|
|Avebury, L.||Methuen, L.|
|Barker, B.||Michie of Gallanach, B.|
|Biffen, L.||Miller of Chilthorne Domer, B.|
|Blackwell, L.||Miller of Hendon, B.|
|Bowness, L.||Moore of Lower Marsh, L.|
|Bradshaw, L.||Moynihan, L.|
|Bridgeman, V.||Newby, L.|
|Brookeborough, V.||Noakes, B.|
|Brougham and Vaux, L.||Northbrook, L.|
|Byford, B.||Northesk, E.|
|Carlisle of Bucklow, L.||Northover, B.|
|Clement-Jones, L.||Norton of Louth, L.|
|Colville of Culross, V.||Oakeshott of Seagrove Bay, L.|
|Colwyn, L.||Onslow, E.|
|Cope of Berkeley, L.||Palmer, L.|
|Craigavon, V.||Park of Monmouth, B.|
|Crathorne, L.||Peel, E.|
|Crickhowell, L.||Platt of Writtle, B.|
|Deedes, L.||Rawlings, B.|
|Dholakia, L.||Reay, L.|
|Dixon-Smith, L.||Redesdale, L.|
|Dundee, E.||Rees, L.|
|Eden of Winton, L.||Renfrew of Kaimsthorn, L.|
|Erroll, E.||Rennard, L.|
|Falkland, V.||Renton, L.|
|Ferrers, E.||Rodgers of Quarry Bank, L.|
|Fookes, B.||Roper, L.|
|Forsyth of Drumlean, L.||Rotherwick, L.|
|Fowler, L.||Russell, E.|
|Freeman, L.||St. John of Bletso, L.|
|Geddes, L.||Scott of Needham Market, B.|
|Glentoran, L.||Seccombe, B.|
|Goodhart, L.||Selborne, E.|
|Gray of Contin, L.||Selsdon, L.|
|Greaves, L.||Sharman, L.|
|Greenway, L.||Sharp of Guildford, B.|
|Hamwee, B.||Sharples, B.|
|Hanham, B.||Shaw of Northstead, L.|
|Hanningfield, L.||Shutt of Greetland, L.|
|Harris of Richmond, B.||Skelmersdale, L.|
|Henley, L.||Smith of Clifton, L.|
|Hodgson of Astley Abbotts, L.||Soulsby of Swaffham Prior, L.|
|Home, E.||Strathclyde, L.|
|Howe, E.||Swinfen, L.|
|Hunt of Wirral, L.||Tebbit, L.|
|Jenkin of Roding, L.||Thomas of Gresford, L.|
|Jopling, L.||Thomas of Gwydir, L.|
|Kimball, L.||Thomas of Walliswood, B.|
|King of Bridgwater, L.||Tope, L.|
|Kingsland, L.||Tordoff, L.|
|Knight of Collingtree, B.||Trumpington, B.|
|Lester of Herne Hill, L.||Ullswater, V.|
|Livsey of Talgarth, L.||Vinson, L.|
|Lucas, L.||Waddington, L.|
|Luke, L.||Wakeham, L.|
|Lyell, L.||Walmsley, B.|
|Walpole, L.||Watson of Richmond, L.|
|Acton, L.||Hughes of Woodside, L.|
|Alton of Liverpool, L.||Irvine of Lairg, L.|
|Amos, B. (Lord President of the council)||Janner of Braunstone, L.|
|Jay of Paddington, B.|
|Andrews, B.||Jones, L.|
|Bach, L.||Judd, L.|
|Barnett, L.||Kirkhill, L.|
|Bassam of Brighton, L.||Levy, L.|
|Bernstein of Craigweil, L.||Listowel, E.|
|Blackstone, B.||Lockwood, B.|
|Borrie, L.||Lofthouse of Pontefract, L.|
|Bragg, L.||Mcintosh of Haringey, L.|
|Brooke of Alverthorpe, L.||McIntosh of Hudnall, B.|
|Brookman, L.||MacKenzie of Culkein, L.|
|Brooks of Tremorfa, L.||Mackenzie of Framwellgate, L.|
|Burlison, L.||Mar, C.|
|Carter, L.||Mason of Barnsley, L.|
|Chan, L.||Massey of Darwen, B.|
|Clarke of Hampstead, L.||Merlyn-Rees, L.|
|Corbett of Castle Vale, L.||Mitchell, L.|
|Crawley, B.||Morgan of Huyton, B.|
|David, B.||Morris of Aberavon, L.|
|Davies of Coity, L.||Morris of Manchester, L.|
|Davies of Oldham, L.||Orme, L.|
|Dixon, L.||Parekh, L.|
|Dubs, L.||Patel of Blackburn, L.|
|Elder, L||Pendry, L.|
|Evans of Temple Guiting, L.||Pitkeathley, B.|
|Farrington of Ribbleton, B.||Ramsay of Cartvale, B.|
|Faulkner of Worcester, L.||Rendell of Babergh, B.|
|Filkin, L.||Rooker, L.|
|Fyfe of Fairfield, L.||Sainsbury of Turville, L.|
|Gale, B.||Sawyer, L.|
|Gibson of Market Rasen, B.||Scotland of Asthal, B.|
|Gilbert, L.||Simon, V.|
|Goldsmith, L.||Smith of Leigh, L.|
|Gordon of Strathblane, L.||Symons of Vernham Dean, B.|
|Goudie, B.||Taylor of Blackburn, L.|
|Gould of Potternewton, B.||Temple-Morris, L.|
|Graham of Edmonton, L.||Thornton, B.|
|Harris of Haringey, L.||Tomlinson, L.|
|Harrison, L.||Triesman, L.|
|Haskel, L.||Turner of Camden, B.|
|Haskins, L.||Warner, L.|
|Hayman, B.||Warwick of Undercliffe, B.|
|Hilton of Eggardon, B.||Weatherill, L.|
|Hollis of Heigham, B.||Whitaker, B.|
|Howarth of Breckland, B.||Wilkins, B.|
|Hoyle, L.||Woolmer of Leeds, L.|
On Question, amendments agreed to.
§ Resolved in the affirmative, and amendment agreed to accordingly.
§ 7.18 p.m.
§ Clause 51 [Duration of permission and consent]:
§ The Deputy Speaker (Lord Lyell)
My Lords, I advise the House that if Amendment No. 142C is agreed to, I cannot call Amendment No. 142D.
§ [Amendment No. 142D not moved.]
§ The Deputy Speaker
My Lords, if Amendment No. 142E is agreed to, I cannot call Amendment No. 142F.
§ [Amendment No. 142F not moved.]
§ [Amendment No. 143 had been withdrawn from the Marshalled List.]
Lord Rooker moved Amendment No. 143A:
After Clause 51, insert the following new clause—
"TEMPORARY STOP NOTICE
After section 171D of the principal Act (penalties for non-compliance with planning contravention notice) there are inserted the following sections—
§ "Temporary stop notices
§ 171E TEMPORARY STOP NOTICE
§ (1) This section applies if the local planning authority think—
- (a) that there has been a breach of planning control in relation to any land, and
- (b) that it is expedient that the activity (or any part of the activity) which amounts to the breach is stopped immediately.
§ (2) The authority may issue a temporary stop notice.
§ (3) The notice must be in writing and must—
- (a) specify the activity which the authority think amounts to the breach;
- (b) prohibit the carrying on of the activity (or of so much of the activity as is specified in the notice);
- (c) set out the authority's reasons for issuing the notice.
§ (4) A temporary stop notice may be served on any of the following—
- (a) the person who the authority think is carrying on the activity;
- (b) a person who the authority think is an occupier of the land;
- (c) a person who the authority think has an interest in the land.
§ (5) The authority must display on the land—
- (a) a copy of the notice;
- (b) a statement of the effect of the notice and of section 171G.
§ (6) A temporary stop notice has effect from the time a copy of it is first displayed in pursuance of subsection (5).
§ (7) A temporary stop notice ceases to have effect—
- (a) at the end of the period of 28 days starting on the day the copy notice is so displayed,
- (b) at the end of such shorter period starting on that day as is specified in the notice, or
- (c) if it is withdrawn by the local planning authority.
§ 171F TEMPORARY STOP NOTICE: RESTRICTIONS
§ (1) A temporary stop notice does not prohibit—
- (a) the use of a building as a dwelling house;
- (b) the carrying out of an activity of such description or in such circumstances as is prescribed.
§ (2) A temporary stop notice does not prohibit the carrying out of any activity which has been carried out (whether or not continuously) for a period of four years ending with the day on which the copy of the notice is first displayed as mentioned in section 171 E(6).198
§ (3) Subsection (2) does not prevent a temporary stop notice prohibiting—
- (a) activity consisting of or incidental to building, engineering, mining or other operations, or
- (b) the deposit of refuse or waste materials.
§ (4) For the purposes of subsection (2) any period during which the activity is authorised by planning permission must be ignored.
§ (5) A second or subsequent temporary stop notice must not be issued in respect of the same activity unless the local planning authority has first taken some other enforcement action in relation to the breach of planning control which is constituted by the activity.
§ (6) In subsection (5) enforcement action includes obtaining the grant of an injunction under section 187B.
§ 171G TEMPORARY STOP NOTICE: OFFENCES
§ (1) A person commits an offence if he contravenes a temporary stop notice
- (a) which has been served on him, or—
- (b) a copy of which has been displayed in accordance with section 171E(5).
§ (2) Contravention of a temporary stop notice includes causing or permitting the contravention of the notice.
§ (3) An offence under this section may be charged by reference to a day or a longer period of time.
§ (4) A person may be convicted of more than one such offence in relation to the same temporary stop notice by reference to different days or periods of time.
§ (5) A person does not commit an offence under this section if he proves—
- (a) that the temporary stop notice was not served on him, and
- (b) that he did not know, and could not reasonably have been expected to know, of its existence.
§ (6) A person convicted of an offence under this section is liable—
- (a) on summary conviction, to a fine not exceeding £20,000;
- (b) on conviction on indictment, to a fine.
§ (7) In determining the amount of the fine the court must have regard in particular to any financial benefit which has accrued or has appeared to accrue to the person convicted in consequence of the offence.
§ 171H TEMPORARY STOP NOTICE: COMPENSATION
§ (1) This section applies if and only if a temporary stop notice is issued and at least one of the following paragraphs applies—
- (a) the activity which is specified in the notice is authorised by planning permission or a development order or local development order;
- (b) a certificate is issued by the local planning authority in respect of the activity under section 191;
- (c) the authority withdraws the notice.
§ (2) Subsection (1)(a) does not apply if the planning permission is granted on or after the date on which a copy of the notice is first displayed as mentioned in section 171E(6).
§ (3) Subsection (1)(c) does not apply if the notice is withdrawn following the grant of planning permission as mentioned in subsection (2).
§ (4) A person who at the time the notice is served has an interest in the land to which the notice relates is entitled to be compensated by the local planning authority in respect of any loss or damage directly attributable to the prohibition effected by the notice.
§ (5) Subsections (3) to (7) of section 186 apply to compensation payable under this section as they apply to compensation payable under that section; and for that purpose references in those subsections to a stop notice must be taken to be references to a temporary stop notice.""199
§ The noble Lord said: My Lords, this is a group of four new clauses. Amendment No. 143A forms a positive response to the review of the planning enforcement system in England, and to the noble Lords opposite who have sought to introduce their own amendments regarding enforcement powers.
§ The amendment provides local planning authorities with a new discretionary power to serve temporary stop notices to halt breaches of planning control for a period of up to 28 days.
§ New Section 171E enables the local planning authority to issue a temporary stop notice where there has been a breach of planning control where they consider it expedient to do so to prevent further development. The new section also sets out how the stop notice should be issued, in what form and to whom. The notice must set out the reason for issuing the notice. The temporary stop notice will have effect immediately; it is displayed on the land and ceases to have effect after 28 days unless it is withdrawn earlier.
§ New Section 171F sets out restrictions for the use of the temporary stop notices. Temporary stop notices do not prohibit the use of a building as a dwelling house and will not prohibit the carrying out of an activity that has already been carried out for four years or more.
§ New Section 171F also enables the Secretary of State to prescribe in regulations other activities that a temporary stop notice shall not apply to, even though those activities are in breach of planning control. Regulations may set out these activities either by describing them or by setting out the circumstances when an activity cannot be prohibited by a temporary stop notice.
§ New Section 171G sets out a new offence of breaching a temporary stop notice and the penalties that result from conviction. The penalties for contravening a stop notice are: on summary conviction in a magistrates' court, a fine not exceeding £20,000; and, on conviction on indictment in a Crown Court, a fine. In deciding the level of any fine, the court may take into account the financial gain accrued while the temporary stop notice was breached. The penalties replicate those that already exist in relation to stop notices under Section 187 of the 1990 Act.
§ New Section 171H sets out the circumstances in which compensation can be claimed from the local planning authority and is limited to: when the activity subject to the temporary stop notice already had planning permission when the stop notice was issued; when the activity has permitted development rights; when the activity has or acquires a lawful development certificate; or when the authority withdraws its notice. These provisions for compensation against losses offer protection against local planning authorities which serve notices in error. The procedure for claiming compensation replicates the provision in the 1990 Act for stop notices.
§ We have introduced the amendment as a result of the review of the planning enforcement system. This was one of the proposals put forward for comment, 200 and over 200 respondents agreed that such powers would be helpful in speeding up the process of enforcement. The proposed temporary stop notice gives a new power to local planning authorities and the means to prevent unauthorised development at an early stage without first having to issue an enforcement notice.
§ Local planning authorities' enforcement powers are discretionary. The amendment is designed to enable action to be taken which is appropriate to the breach. Currently, stop notices can be served only in conjunction with an enforcement notice and can be used to tackle the most serious breaches.
§ Before an enforcement notice is issued the local planning authority will usually wait to see whether the unauthorised development is likely to cause harm. Under the current system, in order for work to stop, an enforcement notice has to take effect or a stop notice has to be issued to stop any further work taking place. In the case of an enforcement notice, this can be several months after development or the planning breach has started, particularly if an appeal is made against the enforcement notice. If stop notices are served, no further work can be done.
§ The temporary stop notice will bring an early halt to development which does not have planning permission. It will help to end the practice whereby a developer can build and apply retrospectively for planning permission for a completed building. If any breach of planning has to be stopped immediately, the planning injunction can be used. But injunctions are only used to prevent serious harm. They require court time and of course are expensive.
§ The temporary stop notice provides the local authority with a power to stop a breach of planning control for a limited period of time to enable it to decide whether further enforcement is appropriate and what action should be taken without the breach being "compounded" by being allowed to continue.
§ The planning system exists to control the development and use of land and is in the public interest. Ignoring planning controls is unfair and undermines public confidence in the system. Unauthorised development can be dangerous and damaging to the locality.
§ Better, faster, more efficient enforcement will help engender confidence and trust in the planning system. Prompt action will act as a disincentive to those who might seek to deliberately ignore planning controls and will give local authorities the confidence to take appropriate action. This power will, I am sure, be welcomed by local planning authorities to use in addition to the panoply of discretionary powers they already have across the range of planning breaches they encounter every day.
§ As I said, it can be extremely frustrating when a development goes ahead without planning permission. It affects neighbours and it can sometimes be months before any action, if any, is taken by local authorities. I know that from my own experience as a constituency Member of Parliament.201
§ A temporary stop notice does not have to be used in all enforcement cases; local authorities already have at their discretion a number of different ways of taking action. It would be used only where local planning authorities consider it expedient to stop a breach immediately. Current arrangements may be sufficient in most cases. I would expect any use of this power to be reasonable, responsible and proportionate.
§ These temporary stop notices could be used in a variety of circumstances, many of which have been raised with us in the enforcement review and during the passage of the Bill through Parliament. These might include the inappropriate change of use of someone's back yard to a car paint-spraying business or the construction of an extension without planning permission.
§ They would also clearly be an option for local authorities to consider where Gypsy and Traveller groups have begun unauthorised development on an inappropriate site, perhaps in the green belt. We are, however, concerned to ensure that the temporary stop notice should not be used unfairly or inappropriately. We are mindful of the difficult circumstances surrounding accommodation for Gypsies and Travellers. A major review is under way in the Office of the Deputy Prime Minister at the moment. As we have said before, to address these problems we need greater site provision—that is, more sites—including greater support for Gypsies and Travellers to identify appropriate sites of their own to develop, alongside more effective enforcement on inappropriate sites.
§ We are currently reviewing circular 1/94 with the intention of providing more support for Gypsies and Travellers to identify their own appropriate sites. We are also reviewing the operation of housing needs assessment to build in consideration of Gypsy and Traveller accommodation needs at an early stage. These changes will take some time to implement. In the meantime, we are keen to ensure that Gypsies and Travellers are not treated unfairly relative to other groups.
§ We therefore intend to introduce regulations which will replicate the current exemption for buildings used as dwellings to caravans used as dwellings. The content of the regulations will be a matter for consultation. However, the intention is that they will include measures that, although caravans which are occupied as a sole or main residence on site will be allowed to remain until any follow-up enforcement action is taken, any further associated works will be "caught" by the stop notice.
§ We are introducing this exemption through regulations rather than on the face of the Bill for two reasons. First, we want the temporary stop notice to replicate the shape of the existing stop notice; secondly, we want the flexibility to change the position with regard to caravans as further detail of the policy around Gypsy and Traveller accommodation develops and as local authorities enable greater site provision in their areas. I hope that broadly explains why we are bringing in this group of new sections.202
§ We are very sympathetic to the spirit of the noble Lord's Amendment No. 143AA that it is right to afford similar protection to Gypsies and Travellers dwelling in caravans as those who live in houses. It is our clear intention to do so. I believe that regulations are a more effective and flexible way of achieving this as they will be subject to consultation, ensuring that the exemptions we propose are both workable and acceptable to those that they cover. The proposal for using the regulations I referred to a short while ago will permit caravans already on site to remain. I hope that answers the points that the noble Lord will make in due course.
§ Amendment No. 143B seeks to amend the new provisions for the new temporary stop notice compensation by removing the reference to local planning authorities being the only authority to issue a lawful development certificate. It allows lawful development certificates granted on appeal to the Secretary of State to be included in the compensation provisions. That is a valid point which we shall consider.
§ Amendment No. 144 seeks, through a new clause, to give local planning authorities similar powers in respect of enforcement of a stop notice as they already have for seeking compliance with and taking remedial action in respect of an enforcement notice. That includes steps to be taken to remedy the breach, to remedy any injury to amenity and to seek to cease activity on the land, including the removal of objects. These powers are already available to local planning authorities.
§ Local planning authorities already have powers to enter land and take the steps required by the enforcement notice to remedy the situation. They can also recover from the person who is then the owner of the land any expenses reasonably incurred by them.
§ The stop notice 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. Although both the enforcement notice and the stop notice set out details of the activity or development which must cease, it is the enforcement notice which gives details of the remedial action which must be taken, not the stop notice.
§ We are sympathetic to the aims behind the amendment but duplicating the powers of the enforcement notice in the existing stop notice will not solve the problem of stopping unauthorised development or intensification of the land in the first 28 days after the breach has occurred. We think that a better way to deal with this problem is the new temporary stop notice—provision is in the four new clauses I have introduced—which will give local planning authorities power to stop breaches of planning control immediately the notice is served.
§ I hope, therefore, that that will be sufficient and that in due course the noble Baroness and noble Lord, having moved their amendments, will feel able to withdraw them. I beg to move.203
§ 7.30 p.m.
Lord Avebury moved, as an amendment to Amendment No. 143A, Amendment No. 143AA:
Line 57, at end insert—
(7) No such notice shall be issued in relation to breach of planning control by gypsies or other travellers unless the Secretary of State has certified that sufficient accommodation exists for gypsies or other travellers residing in or resorting to the region of which the local planning authority forms a part.
§ The noble Lord said: My Lords, the Minister said that this set of amendments was introduced as a result of the review of the planning enforcement system in which 200 respondents said that it would be helpful to have these additional powers. If that is the case, why could not the amendment have been tabled earlier instead of—as it was—on the Thursday before the first day on Report? If we had not been rather slower than the Government expected and hoped, we should have had 24 hours in which to consider the amendment and to put down our own amendment, with no time to consult those outside concerned in particular as regards the interests of Gypsies and Travellers. As the noble Lord said, they will be affected by the temporary stop notices. I should not be surprised to hear, if the noble Lord can tell me, that no representations among the 200 responses he cites were received from Gypsy or Traveller organisations because they are universally opposed to the provisions of the new sections.
§ During the two extra weeks we were given to consider the amendments, the Minister will be aware that there was a debate in another place on a Private Member's Bill in which some light was cast on the Government's proposals by the honourable Member for Brentwood and Ongar and some of his colleagues. In reply to that debate, the Minister for Housing and Planning, Mr Hill, said that the Government had anticipated most of the wishes expressed by the honourable Member in his Town and Country Planning Enforcement and Stop Notices Bill. He said that these new temporary stop notices were specifically designed to allow rapid intervention in potentially inadmissible developments and were a response to the strength of feeling demonstrated by Members during Committee and Report stages of the Bill. He added that the Government were greatly concerned about Gypsies carrying out developments without planning permission. Therefore, it is clear that the amendment is not directed against people who use their backyards for paint spraying. It is firmly and exclusively directed against Gypsies and Travellers.
§ The Government recognise that under the existing planning regime it is virtually impossible for Gypsies to get planning permission. That is why they said the Minister repeated it today—that they will scrap circular 1/94 which Ministers said at the time of the infamous Criminal Justice and Public Order Act 1994 was then designed to enable Gypsies to make provision for their own accommodation in place of the obligation that previously existed on local authorities to provide sites for Gypsies and Travellers.204
§ Obviously, since no local authority has ever given Gypsies any indication of the places where they could develop their own site, but have all adopted under circular 1/94 criteria-based policies which were designed to lead to refusals whenever they sought planning permission, what Gypsies had no alternative but to do was to buy land wherever they could, apply for planning permission, and then to appeal when they were refused, as inevitably happened.
§ The Minister, Mr Hill, knows perfectly well that it is futile to suggest to Gypsies, as he did in reply to the debate in another place, that they should work with planning authorities to identify land that is suitable for development. If that had been the way forward, there would have been no need to replace circular 1/94 and to make provision in the regional spatial strategy and local development documents for specific numbers of sites and pitches as the noble Lord, Lord Rooker, foreshadowed in our first debate on this subject on 20 January.
The noble Lord has reiterated that stop notices are used only rarely and in extreme circumstances. As Mr Hill, the Minister in another place, put it,
for an extremely serious breach of planning control".
That is not what the Government say in these amendments. No doubt the Minister will be able to tell the House how many times this "draconian" power—as expressed by a specific district council—has been used since Section 9 of the Planning and Compensation Act 1991 came into effect, substituting new provisions for Sections 181 and 183(1) to (5) of the principal Act. I should like the answer when the Minister replies because the use of the stop notices in the past is some indication of how the temporary notices will be used in the future.
§ A stop notice may prohibit any use of land, whether ancillary or incidental to the main use of the land. It may prohibit a particular activity taking place on part of the land or intermittent or seasonal use of the land. It may not prohibit the use of any buildings as a dwelling house. I welcome what the Minister said about the extension of that exclusion to persons living in caravans on sites, whether or not they be Gypsies.
§ In the case of a stop notice issued under the 1991 Act, immediately beforehand the local authority has to issue an enforcement notice which is appealable. While the appeal is awaited the enforcement notice is suspended. The idea of a stop notice was that there were some uses of the land, as the Minister explained, that were so harmful to the community or environment, that for those uses to continue even to the time it took for the appeal to be heard was intolerable. So the stop notice could require immediate cessation of the activity in question with no right of appeal. As the Minister explained, the failure to comply could result in summary conviction and a fine of up to £20,000 or—as he did not say but is the case—an unlimited fine if convicted on indictment.
§ As the Minister is aware, the ODPM is a listed public body with a legal duty under the Race Relations Act 1976 to eliminate unlawful discrimination, promoting a policy of opportunity and good race 205 relations. It is also required to assess the impact of any new or proposed legislation on different racial groups and to consult on the impact that the legislation may have on those groups. Where there would be an adverse impact on a particular group or groups which could not be justified within the wide range of policies then changes would need to be made.
§ The Commission for Racial Equality is not aware of any consultation having taken place, nor of any impact assessment having been made. It would be unlikely that any such processes could have taken place without the knowledge of the CRE. However, if they did, can the Minister say what impact the ODPM considered these provisions would have on Gypsies and Irish Travellers? It is crystal clear that the temporary stop notices are directed against those communities and not against other serious breaches of planning laws that no doubt occur.
§ In the absence of any such consideration by the ODPM, the Government have acted unlawfully in bringing the amendment forward. It should be taken away pending consultations with the CRE—which it is seeking—and it should be referred also to the Joint Committee on Human Rights. I drew the attention of the clerk of that committee to the Minister's amendment on March 5, but the committee has obviously not been able to consider the matter and offer its advice. On previous occasions, the committee has repeatedly expressed concern about how little time it is allowed to comment on proposals which may have serious human rights implications and I would be surprised if it does not repeat that concern in this instance. If the Minister has received any letter from the chairman of the Joint Committee on Human Rights, I would be grateful if he would tell the House about it in his reply. If he has not received a letter, perhaps lie could tell us how your Lordships can take into consideration any advice that the committee may give when this stage of the Bill has been passed.
The CRE, Travellers' organisations and the cornrn unities or partnerships which act on behalf of many Gypsies and Travellers have criticised the existing provisions in Section 183 of the principal Act. The CRE expressed concern that the exemption from stop notices of any building used as a dwelling house, but not of a caravan on a site used by Travellers as a dwelling, could be in conflict with the Race Relations Act. It is seeking counsel's opinion, particularly in light of Article 14 of the EU race directive, which requires member states to,
take necessary measures to ensure that any laws, regulations and administrative provisions, contrary to the principle of equal treatment, are abolished".
I welcome what the Minister said when introducing his amendment; namely, that the regulations would exempt caravans in the same way as dwelling houses. However, it is profoundly unsatisfactory for us to have to rely on some undertaking as to what is going to be in future regulations when what is in the Bill is so clearly discriminatory. That article of the EU directive is reflected in our own law in the Race Relations (Amendment) Act 1976 Amendment Regulations 2003. I would be grateful if the Minister could explain
what advice he has sought or obtained about the bearing of those regulations on stop notices and, in particular, about the use of stop notices without a preparatory enforcement notice.
§ I acknowledge that the ODPM is at last addressing the problem of accommodation for Gypsies and Travellers. It is not a moment too soon given that one in five of them in this country is homeless. If the new planning regime set out in the Bill is implemented in accordance with what the noble Lord, Lord Rooker, described previously as the "lead option", a solution is in sight, but it will take some years to achieve, as the noble Lord has acknowledged in moving the amendment.
§ In the mean time, the proposal will tighten the screw on Gypsies who have nowhere to live because of the 1994 Act and fix in statute the exclusion of the whole Traveller community from the supposed aim of the Government of a decent home for all. My amendment would merely ask the Government to delay the coming into force of those powers until, region by region, they have implemented their own undertaking. I beg to move.
§ Baroness Whitaker
My Lords, in supporting Amendment No. 143AA, I would like very much to welcome what my noble friend said to guarantee the rights of Gypsies to a home. However, there are difficulties—all those raised so powerfully by the noble Lord, Lord Avebury—but I just briefly want to make two other points. First of all, I should like to ask my noble friend when he plans that these regulations should be in force. If there is any gap between the coming into force of the Act and regulations, you can be sure some local authorities will take advantage of it because that has been the practice of many, but not all, of them.
Lastly, the point of the amendment of the noble Lord, Lord Avebury, is that it gives an incentive to local authorities to provide such sites, whereas, as I understand from my noble friend's rapid résumé of his regulations, caravans will be allowed to remain on site. Now, the site may well not be suitable. It would be much, much better if the local authority had an obligation to find that a proper site existed rather than keep the caravans on a site that was breaching planning requirements.
§ Baroness Hanham
My Lords, I shall move an amendment shortly, but perhaps I may first make two comments on the Government's amendment. The Law Society has briefed us on it and I shall quickly put forward its points, so that they are considered by the Minister.
First, the Law Society is concerned that the amendment has been tabled at this stage, when the consultation is barely complete. No particular responses have arisen from that. It is hard to see what a temporary stop notice would achieve that a stop notice would not. The Minister has given us some details, but three concerns arise.
207 The temporary stop notice is to be issued if the local planning authority "thinks"—we are back to that word again—that a breach has occurred. The corresponding language in the 1990 Act is "where it appears to the" local planning authority to be the case. Does that change of wording bring uncertainty into the provisions? The Minister might like to take some cognizance of that.
Under the existing system set out by the 1990 Act, a stop notice can be issued only following the serving of an enforcement notice. While there is no appeal against the stop notice, there is provision for appeal against the enforcement notice. By contrast, the new provisions offer no appeal against a temporary stop notice despite the fact that non-compliance carries penal consequences. The only remedies available to the recipient of such a notice would be to seek a declaration from the court that the temporary stop notice is invalid.
The provisions for compensation are also unsatisfactory. It is not clear whether a lawful development certificate has to be issued before or after the issue of the temporary stop notice to justify compensation. That is another example of unsatisfactory drafting.
Compensation on the grounds of the withdrawal of the temporary stop notice is of particular concern. As the new provisions stand, the local planning authority can serve and issue a temporary stop notice requiring a particular activity to cease. If nothing else happens, the notice will have effect for 28 days. Presumably, in that time, the authority will have to institute more permanent enforcement action, but there is no requirement to do so. Compensation may be payable where the local planning authority withdraws a temporary stop notice, but not where the notice simply expires at the end of the 28-day period.
Those are matters that the Minister may not be able to address this evening, but if he can, I would be grateful.
§ Baroness Hamwee
My Lords, as the noble Baroness said, creating a criminal offence, particularly one where there is no appeal, is a serious business. I shall ask a question that arises from the detail of that. Under proposed new Section 171E (4), the temporary stop notice can be served on,the person who the authority think is carrying on the activity"—or,a person who the authority think is an occupier of the land"—or,a person who the authority think has an interest in the land".In other words, the person on whom the temporary stop notice is served may not be the one who is carrying out the activity. Nevertheless, an offence under new Section 171G(1), with penal consequences, would have been committed.
If one thinks of a landlord who does not know what his tenant is up to, one can see why the Government might want to push the landlord to enforce the terms 208 of the lease. However, the lease might not be very well drafted. It might not be possible for the landlord to use his own means to make sure that the stop notice is observed. It is hardly a criminal offence to draft a lease. At least, I hope it is not. It may not be possible for the person on whom a stop notice is served, as I read it, to make a third party stop the activity. Again, it may not be possible to have the detail of this debate today, but I do not know whether the answer is that one does not contravene a stop notice within Section 171G if one is in the position I have just described. I would certainly like to know the answer at some point.
§ Lord Lucas
My Lords, while I found myself entirely in sympathy with the objectives of the noble Lord's administrative amendments, I have great doubts about the drafting, and about the implications. The very idea that it should be possible to deprive someone of his home just by sticking a notice on a telegraph pole outside it, and that he and his family should then have immediately to quit that home without any sort of appeal, does not square with justice, or indeed the Human Rights Act. I cannot see how that could even be contemplated under this sort of legislation.
I have great doubts, too, about doing this to a business. If the local authority can effectively close down a business if it thinks it contravenes planning obligations, it then only has to pay compensation if, under Section 171H(1)(a), the activity that is specified is actually authorised by planning permission. But what if it is something that does not require planning permission, and the local authority just made a mistake? Under those circumstances it would seem that there is no compensation available, and certainly no mechanism for someone who has their business closed down in this way to take action to get the mistake rectified. It seems to me to be leaving citizens without access to justice in a way that we have been familiar with under this Government recently. but which I find entirely reprehensible.
As far as the amendment of the noble Lord, Lord Avebury, is concerned, I support it entirely. I shall admit to a couple of romantic reasons for doing so. I grew up on a farm that employed a large number of Travellers at harvest time, and I was an avid reader of Tintin and an admirer of Captain Haddock, so I am a great believer in the rights of Gypsies and other Travellers to live among us, and in our obligation to make the necessary provisions to make that possible. It is something that the general community often finds inconvenient, as it does with providing proper accommodation for other activities that most people find inconvenient, but which are none the less lawful. It is something that the Government ought to do. These things are very difficult to resolve at local level. It is up to the Government to place obligations on local authorities and others to make these provisions, so that we can all share the burdens fairly, as it does with airports. That seems to me to be a central function of Government. Something that allows a particular community to be victimised just because they are 209 inconvenient to other people, and no provision has been made for their proper accommodation, seems to me to be entirely unreasonable.
§ Lord Rooker
My Lords, if I might say so, I think that speech was unreasonable as well. I exempt the noble Lord, Lord Avebury. However, if I were from another planet, I would know that all the speeches I have just heard were from people who have never been in the other place, for a start, and have never had to deal with their constituents when they are beside themselves because someone has done something in flagrant breach of planning permission. In other words, I have just heard four or five speeches basically saying that anything goes. That is not what we are doing.
§ Lord Rooker
My Lords, I know I wound the noble Baroness up. I intended to, to be honest, because I think some of the points that have just been made are wholly unreasonable. True, I may have rabbited on with my notes a bit too fast. Some of the things I have been criticised for not saying, I actually did say in the speech—they are in the notes, to which I stuck very carefully, because of the importance of this issue. But if the noble Baroness insists on getting up, naturally I shall give way to her.
§ Baroness Hamwee
My Lords, I am far from actually wound up, but I want to explain that it is not only Members of Parliament who have to deal with wound-up and agitated local residents who get very upset about what their neighbours are doing. I am sure that the noble Baroness, Lady Hanham, and I have both, in our local government careers, had the experience of having to deal with such residents. I make that point not to claim particular experience, but to say that the experience is shared. I hope that the Minister would understand that, to put it in the vernacular, where some of us are coming from is perhaps not where he thinks we are coming from.
§ Lord Rooker
All right, my Lords. I am well aware of councillors who get phone calls from local business on small factory estates who arrive on a Monday morning and find that none of the 20 enterprises can get on to the car park, because on the previous evening it has been totally occupied by a load of other people. They get the phone calls just the same—that is what I am pointing out. There is a real world out there, and some of the speeches I have just heard ignore what we are actually doing to help the section of the population against whom we do not want to discriminate. I am going to answer all the points. It is important, bearing in mind the lateness of the issue coming before the House, and naturally I accept that point, and also the fact that we have only Third Reading still to come.
We have already said, and I do not want to repeat it, that a review of the policy for circular 1/94 is being undertaken, including the revision. Indeed, Ministers will be meeting Gypsies and Travellers and their 210 representatives, as well as the Commission for Racial Equality and local authorities, to hear their views. We are fully engaged with the Gypsy and Traveller groups, hence the series of seminars, and they will be consulted on the regulations. Those regulations will be designed to protect Gypsies and Travellers; I make no hones about that, and I made that point earlier on.
The powers are general and discretionary, and we said that we expect local planning authorities to use these powers reasonably, responsibly and proportionately. I also said in my speech that the proposed regulations will offer similar protection to those in caravans as to those in bricks and mortar, and will ensure that their home is protected. So the nonsense I heard in one speech about a local authority coming along and kicking people out of their home would not be proportionate in any event. That is extravagant language that sends completely the wrong signal to those outside about what we are seeking to do.
Regarding stop notices, there is a problem: a temporary stop notice can only go with an enforcement notice. I explained that the practicalities of getting an enforcement notice mean that it can take months before any action can be taken. There were 183 stop notices issued in England in 2002. We are not aware, although that is not to say that it has not happened, of any of them being used against Gypsies. We do not have any information on that, but certainly no notices have been brought to our attention as being served against Gypsies and Travellers.
The powers will not commence until the regulations are in place, and the regulations will protect the Gypsies and the caravan dwellers—not every caravan dweller classes themselves as a Gypsy. There is nothing illegal about being a nomad. I make that absolutely clear, I have said that before, and that is our position.
The temporary stop notice refers to a situation where the local planning authority thinks—and we are going to come to that later on; we have done a word search on the computer about the number of times "thinks" appears in legislation, and, I can tell the noble Baroness, it is quite a lot—a breach has occurred, whereas a stop notice under the 1990 Act is slightly different. The wording makes it clear that the local planning authority has the discretion to decide whether it is appropriate to issue the temporary stop notice. Our legal advice confirms that the provisions are not in breach of the Human Rights Act, although ultimately it is for the courts to interpret the provision and decide if any action of a local planning authority is to be challenged. However, we would not be proceeding if our legal advice were to the contrary, so I hope we are secure in that.
We are keen to encourage Gypsies and Travellers to make more provision for themselves, providing it complies with planning regulations. That is not a contradiction. In recent years, the number of caravans on authorised, private and owner-occupied sites has risen by 1,245 since 1997, around 130 per year. That is a considerable contribution to addressing needs. Private provision now stands at approximately 4,800 211 spaces, up from 1,000 when the caravan count started in 1979. On the other hand, unauthorised developments have more than doubled since July 2000, rising from 803 to 1,664 in July 2003.
I shall deal with the impact assessment on Gypsies and Travellers. There has been ODPM consultation, and consultation by the Commission for Racial Equality with Gypsy and Traveller groups. Let us deal right away with the idea that we have not done anything on the subject. I do not expect people to come along and say "Thank you", but we have to date made £33 million available via the Gypsy sites refurbishment grant to bring underused sites and local amenities back into action and improve the quality of life for residents. The grant now provides funding for authorities to create new transit and stopping places for Gypsies and Travellers.
Provision for compensation will be dealt with in the regulations. The intention is that they should replicate the current provisions. Therefore, clarification of how and when to claim compensation will be in the regulations.
A point was made about there being no right of appeal to the Secretary of State against the issue of a temporary stop notice. The remedy available would be judicial review of the local planning authority's decision to issue the temporary stop notice. Any person affected by the temporary stop notice would be able to exercise other rights under planning legislation. The person would be able to apply for retrospective planning permission for any development that had taken place under Section 73A, and for planning permission in relation to further proposed development. Alternatively, of course, the person may apply for a lawful development certificate where it is considered that the development is indeed lawful.
There is no blanket ban. We are not sticking a note on a pole outside people's homes telling them to leave those homes—far from it. We are genuinely attempting to: meet the needs of people who are discriminated against—I make no bones about that—because of the changes in legislation in the 1990s; to make proper provision for Travellers and those who live a nomadic existence; and to encourage them to make better provision for themselves, in conformity with the regulations. There is no attempt to allow local authorities simply to put up a stop sign and say, "No more Travellers here". It would be quite unacceptable for anyone to seek to do that, because it would not be proportional or a reasonable use of the policy.
As I said, the regulations will be fully consulted on with those affected by them, with an attempt to get regulations that will work and be practical, and that will be helpful in protecting people who do not have sufficient protection under present legislation. That said, I hope that the amendment that I moved, with its proposed new sections, can be part of the legislation. My point about it still stands: we want to put the support in the regulations rather than in the Bill. It would be done after consultation anyway, and there will be plenty of that to come.
§ 8 p.m.
§ Lord Avebury
My Lords, I do not want to delay your Lordships, as I know that there is important business to come after our debate. I shall say only that I am not aware of the consultations in which the ODPM engaged, which the Minister mentioned, and the CRE is not either. It believes that some aspects of the amendment are in breach of our obligations under the Race Relations Act. The best thing for me to do is to withdraw my amendment at this stage, consult the CRE, and perhaps to come back at Third Reading. Before I do so, I thank all those who have taken part in the debate, particularly the noble Baroness, Lady Whitaker, and the noble Lord, Lord Lucas, who spoke in support of my amendment.
I shall conclude by asking the Minister whether he can signify, perhaps by nodding, whether the regulations exempt those who live in caravans on exactly the same basis as those who live in ordinary bricks-and-mortar houses from the applications of stop notices. Will that be read back into the stop notices under the 1992 Act, as well as applying to the temporary stop notices to be issued as a result of the Bill? It would be very incongruous if the Minister were to say that that was not the case. In spite of the fact that he said that he was not aware of any stop notices being used against Gypsies in 2002, if temporary stop notices could not affect people residing in caravans if there were a prohibition on using temporary stop notices against people who lived in caravans but the regulations did not read that back into the original stop notices that accompanied enforcement notices under the 1992 Act—local authorities might be persuaded to use the original power in preference to the temporary stop notice.
§ Lord Rooker
My Lords, that is a very fair question to ask and I have no way of answering it, off the top of my head. It might sound reasonable in one sense, but I do not know; I would have to take advice on it. I shall certainly get some advice before Third Reading. The present stop notices can be issued only after the enforcement notice procedure, which is a different kind of procedure. Whether that concession can be read back from the temporary stop notice into the current stop notice is a misuse of the terminology in a way. They are both called stop notices, but we are talking about something where the process is completely different. I shall have to take advice, but it is a wholly reasonable question to ask.
§ Lord Avebury
My Lords, I am grateful to the noble Lord. Perhaps we can be in touch, even though it is a very short time before Third Reading. If we can have the answer to that question before we make a decision on whether to table another amendment for Third Reading, that would be most helpful. With that, I beg leave to withdraw the amendment.
Amendment No. 143AA, as an amendment to Amendment No. 143A, by leave, withdrawn.
Baroness Hanhammoved, as an amendment to Amendment No. 143A, Amendment No. 143B:
Line 89, leave out "by the local planning authority" and insert "or granted
§ The noble Baroness said: My Lords, I can deal with the matter quite quickly, because I appreciate that noble Lords want to get an Unstarred Question started. I thank the Minister for what he said, which was that he would look at Amendment No. 143B carefully, and perhaps that we would come back to it a later stage.
§ Amendment No. 144 returns to a matter that we introduced before. It relates to stop notices and would give local planning authorities a power to remove objects, not including buildings, used for prohibited activity from land if that activity were a breach of a stop notice. We gave an example last time that caravans could be removed, and we had a big discussion on that. Where the activity was the unlawful construction of a building, for example, builders' equipment could be removed, and where noisy or un-neighbourly activity starts up, a local authority would be able to remove the troublesome equipment. Many noble Lords are aware of what goes on in barns, sometimes with parties and late night activities. It applies only in circumstances where criminal offences are committed, although there is no need to bring a criminal prosecution.
The amendment is a revision of the amendment discussed in Committee. We have removed the amendments to Section 178, which are not critical to what we are seeking to achieve. The new stop notice clause, Section 186A, is a most important provision. I want to explain why it is needed, because the noble Lord. Lord Bassam of Brighton, said in Committee that,
local planning authorities have powers under Section 178 of the 1990 Act to enter land and take the steps required to enforce the notice and to remedy the situation. A stop notice can be served only on the back of an enforcement notice and must relate to the activity prohibited. Breach of that notice will mean in most instances that the enforcement notice has also been breached, and the powers of entry which were associated with the enforcement notice would be available, therefore, to the planning authority".—[Official Report, 5/2/04; col. 867.]
§ Unfortunately, I am advised that that explanation was not correct. The purpose of the enforcement notice is to require a person to remedy a breach, or cease an unlawful activity. An enforcement notice only takes effect—the Minister said this earlier on—when an appeal has been concluded. No breach can arise until after that stage. The purpose of a stop notice is to require an activity to cease before an enforcement notice takes effect. Indeed, under Section 184 of the Town and Country Planning Act 1990, a stop notice will cease to have effect when the enforcement notice takes effect. The Government are wrong to say that there can be a simultaneous breach of a stop notice and an enforcement notice. At the later stage when an enforcement notice is breached, the local authority can then go on to the land under Section 178 and end the breach. If a stop notice is breached, the local planning 214 authority does not have that power to go on to the land under Section 178 and stop the activity. Section 178 does not provide an adequate remedy.
§ This is the difference between enforcing the enforcement notice and stop notice regimes. Given the harm to amenity, which often provokes the issue of a stop notice, a power for local authorities to go on to the land quickly and end the breach will give the lead to hard-pressed local residents. Planning injunctions can be sought under Section 187B, in respect of any breach of planning control. Such injunctions are sought relatively infrequently and usually after criminal proceedings have been brought. There is a cost to local authorities in seeking them, which in practice may not be recoverable, and hearings can take time to come on. Additionally, injunctions will only be granted where a court is prepared to gaol a person who breaches the injunction in contempt of court.
§ The availability of injunctions does not make enforcement notices or stop notices unnecessary or duplication. The Town and Country Planning Act 1990 contains all these remedies. It also does not answer the need for effective, quick, on-site enforcement mechanisms for stop notices. Rather than pursue slow criminal or civil proceedings when a stop notice is breached, the local authority should be able to take steps to remove objects to shut down the activity. That is the purpose of the amendment. I beg to move.
§ Lord Rooker
My Lords, I do not want to be too repetitive, but I gave an answer on this. My advice is that the words of my noble friend Lord Bassam of Brighton are correct. There is a dispute about the interpretation, and I will have to take the views of my learned friends in the Box behind me that we are right on this.
I made the point that we are sympathetic to the aims behind this amendment, but in fact it duplicates the powers of the enforcement notice in the existing stop notice. That will not stop the problem of stopping unauthorised development, or intensification of the use of the land in the first 28 days after the breach has occurred. That is why the introduction of the temporary stop notice is a solution to that problem. I am not saying that it is perfect, but that is the way to do it. The powers are already there for local planning authorities to enter land and take steps to require by the enforcement notice to remedy the situation. They recover from the person who is the owner of the land any expenses.
Although both the enforcement notice and the stop notice set out details of the activity or development that must cease, it is the enforcement notice that gives details of the remedial action that must be taken, not the stop notice. There is a dispute here about interpretation of the current legislation. Obviously, I will take further advice between now and Third Reading. The better way to solve the problem is t he use of the temporary stop notice, which was the subject of the four new clauses that I moved.
§ Baroness Hanham
My Lords, I thank the Minister for that reply. We are slightly at odds here; my advice 215 is certainly that a temporary stop notice will not do sufficiently what my amendment does. I wonder whether the Minister would be kind enough between now and Third Reading to meet me to discuss it so that we can assess where our differences lie. I do not think that they are great, but this is an important issue.
§ Baroness Hanham
My Lords, I thank the Minister. I beg leave to withdraw the amendment.
Amendment No. 143B, as an amendment to Amendment No. 143A, by leave, withdrawn.
On Question, amendment agreed to.
§ Lord Bassam of Brighton
My Lords, I beg to move that further consideration on Report be now adjourned. In moving the Motion, I suggest that the Report stage begin not before 9.15 p.m.
Moved accordingly, and, on Question, Motion agreed to.