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House of Commons
Session 2007 - 08
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General Committee Debates

Planning Bill

The Committee consisted of the following Members:

Chairmen: Sir John Butterfill, Mr. Eric Illsley
Benyon, Mr. Richard (Newbury) (Con)
Betts, Mr. Clive (Sheffield, Attercliffe) (Lab)
Brake, Tom (Carshalton and Wallington) (LD)
Clark, Paul (Gillingham) (Lab)
Curry, Mr. David (Skipton and Ripon) (Con)
Dhanda, Mr. Parmjit (Parliamentary Under-Secretary of State for Communities and Local Government)
Duddridge, James (Rochford and Southend, East) (Con)
Ellman, Mrs. Louise (Liverpool, Riverside) (Lab/Co-op)
Ennis, Jeff (Barnsley, East and Mexborough) (Lab)
Fitzpatrick, Jim (Parliamentary Under-Secretary of State for Transport)
Healey, John (Minister for Local Government)
Lait, Mrs. Jacqui (Beckenham) (Con)
Llwyd, Mr. Elfyn (Meirionnydd Nant Conwy) (PC)
Main, Anne (St. Albans) (Con)
Michael, Alun (Cardiff, South and Penarth) (Lab/Co-op)
Mole, Chris (Ipswich) (Lab)
Neill, Robert (Bromley and Chislehurst) (Con)
Reed, Mr. Jamie (Copeland) (Lab)
Rogerson, Dan (North Cornwall) (LD)
Sheridan, Jim (Paisley and Renfrewshire, North) (Lab)
Watts, Mr. Dave (Lord Commissioner of Her Majesty's Treasury)
Alan Sandall, Committee Clerk
† attended the Committee


Robert Upton, Secretary General, Royal Town Planning Institute
Rynd Smith, Head of Policy, Royal Town Planning Institute
Sir Simon Milton, Local Government Association
Graham Jones, Local Government Association, Planning Officers Society
Katrine Sporle, Chief Executive, Planning Inspectorate
Leonora Rozee, Deputy Chief Executive, Planning Inspectorate
Andrew Whitaker, Head of Planning, Home Builders Federation
John Slaughter, Director of External Affairs, Home Builders Federation
Stephen Ashworth, Denton Wilde Sapte, British Property Federation
John Rhodes, RPS Planning, British Property Federation

Public Bill Committee

Tuesday 8 January 2008


[Sir John Butterfill in the Chair]

Planning Bill

4 pm
The Committee deliberated in private.
4.6 pm
On resuming—
The Chairman: Good afternoon ladies and gentlemen. Our first witnesses this afternoon are from the Royal Town Planning Institute, represented by their secretary-general, Mr. Robert Upton. I am pleased to see you and thank you for coming Mr. Upton. Would you introduce your colleague please?
Robert Upton: This is Mr. Rynd Smith, who is the head of policy at the Institute.
The Chairman: Would you like to make a short statement or would you sooner take the questions and then, if you feel inclined, make a statement afterwards? How would you like to play it?
Robert Upton: If it would suit, I would be happy to make a very short opening statement.
The Chairman: If it is short that would be helpful.
Robert Upton: Our thanks to the Committee for the invitation to give oral evidence. I should explain that the Royal Town Planning Institute exists to advance the art and science of planning and that is, among other things, to promote good practice in planning and to contribute to the formulation of policy and legislation. We have been actively involved in discussing proposals for planning reform over quite a few years now and we are broadly supportive of the proposals in the Bill, but we have two major concerns, which I would like to flag up at the beginning.
The first relates to the national policy statements and their role in the new procedure that is proposed. As we see it, the whole system proposed for development consents for major infrastructure projects depends entirely on the adequacy of those national policy statements. In our view, there are four tests that must be met there: clarity; consistency with each other; credibility in terms of the evidence base in the consultation; and the extent to which they manage to be location specific, that is, that they give a sufficiently clear indication of what is required so that impacts can reasonably be assessed. We think that it is essential that the Infrastructure Planning Commission should be required to make an annual report to Parliament on the adequacy of the statements with which it is working, to give a suitable degree of parliamentary scrutiny.
The Chairman: Thank you very much indeed. We will now proceed to questions.
Q 8181 Mr. David Curry (Skipton and Ripon) (Con): Mr. Upton, you were a local authority chief executive in a previous incarnation, were you not?
Robert Upton: Yes I was.
Mr. Curry: So you will be particularly concerned, presumably, about how the infrastructure levy is going to work?
Robert Upton: Yes. We support the idea of the CIL.
Q 82 Mr. Curry: On a scale of nought to 10, if 10 is you know absolutely everything about how it is going to be working and nought is you know nothing about it, where would you place the Bill?
Robert Upton: Of course, what it gives is powers to the Secretary of State to introduce a scheme and the details have yet to be seen.
Q 83 Mr. Curry: If you were sitting where the Secretary of State or the Minister are sitting and they were sitting where you are, what are the three key questions you would want to ask, to shift that zero up to about five, say?
Robert Upton: I think that I would want to know the Secretary of State’s intentions in terms of whether the entire capture from a local plan-based tariff was to be kept locally or whether there might be provision for some of it to be transferred for regional or sub-regional infrastructure because I think that that is a question that attracts a lot of interest. I think I would want to know how the money was going to be banked—
Mr. Curry: How it is to be banked?
Robert Upton: Yes.
Mr. Curry: You mean not in Northern Rock, I take it?
Robert Upton: In other words, the arrangements by which the money would be disbursed. I think that I would want to know how this would be seen as affecting the process of approving the plan—the local development framework—because it becomes a very important part of the local development framework and the extent to which that is sound and robust.
Q 84 Mr. Curry: Would you also want to know a little bit more about the relationship between site-specific gains, through section 106, and perhaps wider infrastructure gains? With site-specific gains, social housing would probably be the classic one.
Robert Upton: Yes, that is an important area to work through. My presumption at this stage, which has to come out of the detail, is that section 106 requirements will be reduced to very site-specific issues.
Q 85 Mr. Curry: Finally, because we are rather time limited, although I may catch the Chairman’s eye again later, you said in your national policy statements, with happy alliteration, that there should be “clarity, consistency, credibility”—but then you could not find a “c” for the last one—and that you hoped they were going to be, if I heard you right, very “location specific”.
Robert Upton: As locationally specific as possible.
Q 86 Mr. Curry: But if that is the case, Mr. Upton, then the national policy statement is a planning permission, is it not? What is left for this wonderful, great, huge quango to decide, if the national planning statement says where the location of a development is going to be?
Robert Upton: I think that the national policy statement states an intention. We think that that intention should be as specific as possible, so that there can be the most adequate consultation, but I do not think that it amounts to a planning consent. There are questions around what the IPC should be able to consider in seeking to determine whether a development consent should be given. Should it be restricted simply to the national policy statement or should it be in general accordance with the national policy statement? To what extent should the IPC have regard to all other national policy statements, to planning policy statements and to local development frameworks?
Mr. Curry: I may be fortunate, Mr. Chairman—but we have run out of time.
The Chairman: I have been indulgent to date, but we will see how things go.
Q 87 Mr. Elfyn Llwyd (Meirionnydd Nant Conwy) (PC): Mr. Upton, you will be aware of the fact that in some planning systems there is a qualified third-party right of appeal. In the paperwork that you have submitted regarding this Bill, you have expressed concerns that might arise from third-party communities and whether they would be heard and so on. Are you satisfied that the conduct of cross-examinations, as foreseen in the Bill, is going to deliver what you are concerned about? Or is it going to impede hearing what third parties have to say?
Robert Upton: There are two elements to that. First, we broadly support the idea of the IPC taking an inquisitorial approach. We think that that is right for the management of the process. We think that it is important that the IPC should be required to hear anybody and everybody who can demonstrate an interest.
Although I said that there were two elements to this, if I can have a third, there is also an interesting question about the extent to which bodies such as Planning Aid, for which we are responsible, can help communities to take effective part in the process.
Q 88 Mr. Llwyd: Are you satisfied that that is so under the Bill as it stands—that third parties will be allowed to take a reasonable part in these proceedings, especially if they might be directly affected?
Robert Upton: We feel that some of the wording might be tweaked to make it clearer that there is an absolute right to be heard if you are affected.
Q 89 Mr. Llwyd: On the issue of the timetable proposed by the Bill, are you satisfied that that would allow sufficient time for all interested parties to have their say?
Robert Upton: In relation to the national policy statements?
Mr. Llwyd: No, in relation to a challenge to a decision made by the IPC.
4.15 pm
Robert Upton: Well, it is tight, but it is very specific. It gives a clear indication of how a challenge must be made. It is probably sufficient for those who know that they are aggrieved to see whether they can take up that option.
Q 90 Mr. Llwyd: But many people will not be well versed in planning law, will they? I am concerned that they might be left behind.
Robert Upton: Again, I would hope that if, for example, we are able to support those who are less well versed through the operation of planning aid, we would be able to flag up to them their options and the time scale in which they need to exercise them.
Q 91 Mrs. Jacqui Lait (Beckenham) (Con): You began to talk about consultation quite a bit. You say you prefer the inquisitorial to the adversarial. Many local communities will want to be able to present their views, but surely they will also want the opportunity to quiz developers more closely about their proposals. How do you envisage that that will work in an inquisitorial rather than adversarial system?
Robert Upton: I accept that it is a matter of judgment, and I can see the intellectual case for sticking with an adversarial approach, but the danger is that adversarial approaches become unmanageable in the end—the process of inquiry loses its focus and sense of purpose. It is important that developers, when putting forward proposals, should be required to give as much detail as possible, and that those who have concerns should be able to express them clearly.
Q 92 Mrs. Lait: You refer to the developer putting forward detailed proposals. There is a requirement that they should consult local bodies before those proposals even come through. Can you outline what scale of consultation you think a developer should undertake before putting in a planning application?
Robert Upton: I think that they should give as much detail as they possibly can. To make a more general point, it is one thing to look at it in terms of processes, but the real issue as I see it is not a particular process; it is the requirement to develop much more transparency and clarity about our purposes in seeking to provide infrastructure of one sort or another and to enable a proper public debate about it. That is the real step forward that the Bill seeks to achieve.
Q 93 Mrs. Lait: But I am afraid that when we go into Committee, we will be looking at the process, so I shall take you back and ask you again what level of consultation a developer should undertake. Are you just saying that they should publicise their proposals, or should they go further and meet the various local authorities or any other body that wants to meet them or negotiate before the application is made?
Robert Upton: Yes, I think that they should be prepared to do all those things. Obviously, it depends to some extent on the nature of the application, but they should meet local authorities and be prepared to hold public meetings and put out information. When it comes time for them to put in the final proposal, they should be prepared to include a statement of the mitigation proposals that have arisen from their consultations and discussions.
Q 94 Mr. Clive Betts (Sheffield, Attercliffe) (Lab): I should like to pursue two issues with you. The first is that, while generally supporting most of the Bill, you have come out strongly against local member review bodies, which have generally been welcomed as part of devolving responsibilities. Maybe it would do one or two of your members out of a job to reduce the amount of work going to the planning inspectorate, but nevertheless, why are members at the local level not capable of making a final decision on the very smallest of planning applications where a dispute arises about the initial decision made by an officer?
Robert Upton: May I first say that it is not the case that they have been generally welcomed? As I understand it, that provision is the one in the Bill that has attracted the most hostility—87 per cent. of consultation responses have been opposed to it. The first point is one of principle and goes back to what I called the 1947 settlement, under which it was accepted that in return for having their rights over land possibly curtailed, people should have a right of appeal to a body other than the body that took the original decision. That principle has worked extremely well over the years, and I cannot see any evidence to show why it should change now.
There are two main parts to clause 150, which brings this measure in: the first is the ability of the Secretary of State to designate what should go to elected member review bodies, and the second is his or her ability to specify what decisions might be taken under delegated powers by officers. That is a good thing, which may well increase the speed and efficiency of the process in the case of some less efficient local authorities or local planning authorities, but the concomitant of that is that the public require the reassurance that their appeal will not be heard—as Mr. Curry says, I had the honour to be the chief executive of a very good local authority, but even in very good local authorities, there are dynamics that would reduce the public perception of the safety of the system.
Q 95 Mr. Betts: I might characterise that statement as saying that taking a bit of democracy away and giving decisions to officers is a good thing, while putting a bit of democracy back in and giving more responsibility to members is a bad thing, but that would perhaps be unfair. However, let us say that the local member review body comprised councillors from neighbouring authorities, not the authority for which the officers who took the original decision worked. Would that not get around the objection that you have made?
Robert Upton: I have seen it suggested that there might be joint bodies, although I cannot remember where I saw that suggestion. The answer to that question is, “But why? What are we achieving?”
Q 96 Mr. Betts: If you take decisions at local level, you avoid involvement by the national planning inspectorate, do you not?
Robert Upton: I do not think that there is an issue of democracy here; we are talking about a quasi-judicial process. What the public want in those circumstances is the certainty that their appeal is being considered by somebody who is very competent, very independent and very much to be trusted.
Q 97 Mr. Betts: The implication that we might draw out of that is almost that local councillors are not competent and not be trusted.
Robert Upton: You are talking about an appellate process. I think that local authorities absolutely should be charged as far as possible with responsibility for local development decisions.
Mr. Betts: May I raise one other issue, Sir John?
The Chairman: Later. I have been quite indulgent.
Q 98 Robert Neill (Bromley and Chislehurst) (Con): Mr. Upton, if the planning inspectorate is perceived as highly competent and is very much trusted by the general public as you say—I do not disagree with you for one moment— why are its inspectors not the best people to decide on the location-specific element of any proposal?
Robert Upton: You mean in relation to major infrastructure projects?
Q 99 Robert Neill: Yes. Why do you need the separate IPC to do that? Why not have Parliament take the decision on the national policy and then let the trusted and competent planning inspectorate decide whether the application is appropriate for a particular site? Why can we not do that?
Robert Upton: I think that that is perhaps a question that you might address more fruitfully to Ministers than to me, because I have very limited influence here. However, as I understand it, the Government’s concern is to achieve not only a body that is seen as entirely free standing and which has a range of expertise, some of which may well come from the ranks of the inspectorate, which has a great deal of expertise to offer, but a body that is seen as being focused on all the major infrastructure decisions, as opposed to the vast generality of cases, which run very effectively through the planning inspectorate. That is the distinction. However, you should perhaps put that more firmly to the Secretary of State.
There is one other point that I would like to make on behalf of the institute. I would like to emphasise the significance of the national planning statements, rather than the mechanism by which the development consents are decided downstream. What gives us the chance to move forward in a big way is the requirement that there should be clarity and transparency about what is proposed and that the community, including the business community, has the chance to be engaged in it. That is potentially very important.
Q 100 Robert Neill: I understand that point. I suppose that that not only achieves those objectives, as you rightly say, but prevents re-runs of the terminal 5 situation, in which national policy considerations are mixed up with the individual site inquiry. That is why I was interested in your final two points. You say that the national policy statement must be credible in terms of the evidence base, but it also must be as location specific as possible. If it is to be location specific, how will you have robust and credible testing of the evidence base without allowing the parties interested in the identified site the right to appear before and be heard by the body that decides the national policy statement? Shall we grasp that nettle?
Robert Upton: First, I think that national policy statements will vary quite considerably in kind. When it comes to discussions about airports, it is quite hard to imagine hypothetical airports. We by and large know where they are or where they might be. When you are talking about wind farms, I think that it is unreasonable to expect the national policy statement to say exactly where 150 wind farms in East Anglia will or will not go; that just will not happen. There is a big difference, but to the extent that national policy statements are more locationally specific and should be more locationally specific, the consultation on those national policy statements should indeed engage with the communities concerned.
Q 101 Robert Neill: At whatever level, you envisage the need for robust testing of the evidence base?
Robert Upton: Yes.
Q 102 Robert Neill: By cross-examination if necessary?
Robert Upton: Not by cross-examination; through an inquisitorial system led by the commission.
Robert Neill: Perhaps I shall return to that if I get the chance.
Q 103 Mrs. Louise Ellman (Liverpool, Riverside) (Lab/Co-op): There is provision in the Bill for existing policy statements to be designated as national policy statements. Have you any views on that?
Robert Upton: It is fair to say that we are concerned about some possible implications of that, because it is not clear to us what national policy statements might then emerge that are perhaps less robust and less well evidenced than things that we would hope to see downstream. I suppose that there is always the risk that grandfathering in some policy statements that are needed, as the Government see it, urgently might prejudice the operation of the system. That is why at one stage we considered recommending that all national policy statements should be subject to some form of parliamentary scrutiny.
Q 104 Mrs. Ellman: Do you think that the criteria for designating what is a nationally important decision are correct?
Robert Upton: You mean in relation to the categories and thresholds?
Mrs. Ellman: Yes.
Robert Upton: I think that others are more expert than we are. We have heard some doubts expressed about the thresholds being either too high or too low, but in terms of the basic coverage, it looks okay and there is the provision to extend them if that is required.
Q 105 Jeff Ennis (Barnsley, East and Mexborough) (Lab): Mr. Upton, in your opening remarks you mentioned that you thought that the IPC ought to report annually to Parliament, which is a reasonable suggestion to make. Have you any thoughts as to what mechanism ought to be pursued to achieve that? Would it be the appropriate Select Committee or some other mechanism?
Robert Upton: To be honest, I have not developed that point.
Q 106 Alun Michael (Cardiff, South and Penarth) (Lab/Co-op): I am very interested in the comments that you made about the importance of and the emphasis that you as a planning body place on consultation and engagement in advance. Planning officials within the Government have traditionally taken the view that an application should be considered without regard to who is the applicant. You referred a moment ago to wind farms. It seems to many of us that there is a case for engagement and even ownership of the application by the local community—wind farm developments are a classic example of this—being a relevant consideration to be included in the balance. For instance, if the local community has identified where in East Anglia there would be community benefit resulting from a location, that should be a relevant consideration. Would you agree?
Robert Upton: I am sorry. I am slightly deaf and I possibly have not followed you.
Q 107 Alun Michael: The point is that there has traditionally been an approach within Government whereby the consideration of an application should be neutral as to whom the applicant is, whereas the whole point of consultation and engagement in advance and even community ownership of an application—which has happened in some locations with wind energy—is that it changes the view of the application. Do you see that as a relevant consideration in the planning process, given the emphasis that you put earlier on advance consultation and engagement?
4.30 pm
Robert Upton: In terms of those who are managing the application, the issue of ownership should not be relevant, but obviously in terms of how it affects the communities concerned and their response to it, it may just be relevant. I do not think that it should be given any special relevance—or any relevance at all, really—in terms of the process.
Robert Upton: I wonder whether that is the only distinction between the two cases.
Alun Michael: It is a consideration to weigh in the balance. I accept that. It cannot be a totally black-and-white situation.
Robert Upton: Well, in the context of a national policy statement on wind farms, I would expect that to take no cognisance of whom the applicant is. I think at that level, this has to be the case.
Q 109 Alun Michael: Then at the subsequent consideration of individual applications, it would be a relevant consideration?
Robert Upton: My colleague, Rynd Smith, is trying to put me right here. It is very hard to say whether it would count as a material consideration, in terms of how it was put forward.
Q 110 Dan Rogerson (North Cornwall) (LD): You spoke earlier about local development frameworks in the context of the community infrastructure levy. As the renewal and introduction of new local development frameworks is a constant process, and as local authorities are at different stages in that, do you think that they ought to be revisited in light of the changes being made by this Bill, because some communities where the LDF is finalised after the Bill becomes law may be at an advantage in terms of negotiations afterwards?
Robert Upton: I think that all local planning authorities should press on with their local development frameworks as fast as they possibly can and review them as they need to. The introduction of a community infrastructure levy will potentially have a very powerful effect on what constitutes a sound local development framework—in other words, what it is then within the ability of that local authority or planning authority to achieve for its community. I would not want them to stop. I think they should get on with it now.
Q 111 Paul Clark (Gillingham) (Lab): Can I tempt you back to the community infrastructure levy and perhaps take a different approach from my parliamentary colleague, David Curry, being a listening member of the Committee? I am sure my ministerial colleagues are also listening. The opportunity now to feed into the debate about how the community infrastructure levy should be calculated, and so on, is one of the options that needs to be taken forward. I would be interested to know whether you have taken a view as to what might go into that process, and I was particularly interested in what you said in your response about whether it was going to be kept entirely local, or how far it would go regionally and sub-regionally. I am interested in your views on this.
Q 112 Paul Clark: Let me just follow that through. Can you see an instance, for example, where a sub-regional contribution would be relevant, or would be taken forward? For example, if there were a policy, in a sub-regional major redevelopment area, of environmental enhancement—in the sense of green area or green grid—could that mean something as part of a contribution?
Robert Upton: That should be a possibility, but there are other, more mundane possibilities such as a light rail system, guided busway or something else that is deemed to produce an environmental effect across a sub-region.
Q 113 Mr. Curry: May I pursue that issue for a minute, Mr. Upton? In my neck of the woods, we have the Leeds city region concept of Leeds. Craven, one of the district councils in my constituency, has affiliated itself to that city region. The top-left hand corner of Craven is on the Cumbrian border and must be about 70 miles from Leeds city centre. Would you think that a development in Bentham or Ingleton should be levied for a project taking place around Leeds railway station?
Robert Upton: That is exactly the sort of issue that should be thrashed out by local communities in debating the proposals in the local development framework and the application of community infrastructure living.
Q 114 Mr. Curry: If I may say so, Mr. Upton, you should not be allowed to get away with that as an answer. The local development frameworks for Leeds and Ingleton are separated by some 60 or 70 miles. Let us move closer to Leeds, then, to the edge of Skipton, which is on the boundary of the Bradford metropolitan area and the Leeds met. Would it be legitimate to say that a development in Skipton should be eligible to make some contribution, or vice versa?
Robert Upton: It is an issue of degree and judgment. If the case can be made to the people of Skipton that they will be beneficiaries, they might agree to that and want to see it. Otherwise, they might object to it being part of the local development framework.
Q 115 Mr. Curry: I shall not hazard a guess as to which of those two options they might decide. I return to the operations of the commission. I hope I have quoted you correctly as saying that the IPC should be required to hear everybody and anybody who has an interest. What do you mean by “to hear” in this context?
Robert Upton: That they should provide in their programme of hearings the opportunity for that person or community or group to appear, so that whatever they have to say can be incorporated into the commission’s processes.
Q 116 Mr. Curry: Right; I ask this with very serious intent. In my constituency, there are none of the big projects that we are talking about—it is quite difficult to put them in the middle of the Yorkshire dales. If I wanted to stop something happening, I would do my best to try to generate at least 10,000 people who wanted to give evidence to the commission, yet we are told that they have got to decide it all within a timetable for the procedures, with the whole lot encapsulated within about nine months, which is an interesting length of time. The Minister reiterated, in her statement, that everybody should be heard. I am not clear how one reconciles the pledge that everybody can be heard with the accelerated timetable, which is, after all, the reason why the Bill exists in the first place. I know that you are not responsible for the Bill, and I do not want to give the impression that I have interrogated you about something of which you are not the author, but do you share my perplexity on this?
Robert Upton: There is certainly an issue there, but the commission will have to decide such questions as it establishes itself. It will have to decide whether 9,000 carbon-copy objections—objections all in the same wording—constitute 9,000 different objections or just one.
Q 117 Mr. Curry: It is a difficult issue, is not it? The deputy director-general of the CBI told us this morning that he hoped that the procedure would command a consensus, and that people had ownership of it—to use the jargon—and would feel that it had been fairly arrived at and that all the usual aggro that we associate with these sorts of planning decisions might not happen.
Robert Upton: There is no magic solution that will produce consensus around what are inherently controversial and contentious issues over which reasonable people having different values can disagree. We should not pretend otherwise. I think that all that one can reasonably aspire to do is to create a system and process that recognises that, does not try to sweep it all under the carpet and allows everyone to have their day—or at least part of a day—in court.
Mr. Curry: If I may, Sir John, I would like to ask just one more question?
The Chairman: Just one.
Q 118 Mr. Curry: When I asked you about site-specific section 106 agreements, you said that you thought that they would be very site specific. Could you tell me what you think is the role for what might be called the classic section 106 agreement, and is there a danger that certain babies might go out with the bathwater?
The Chairman: I think that it is now time for Mr. Betts to have a few more bites of the cherry.
Q 119 Mr. Betts: I go back to an issue that David Curry raised, but perhaps with a slightly different bias in my question. Is it not the fact that, at present, there can be major, significantly sized developments just outside the boundaries of our large cities that nevertheless put a considerable demand on their infrastructure, and there is no way for those developments to make a contribution under the current arrangements? Is it not therefore reasonable that, in looking at the community infrastructure levy, we might find a way of allowing that to happen through that mechanism?
Robert Upton: I think that that is something that should be explored.
Q 120 Mr. Betts: I shall come on to an issue that I raised this morning with the representatives of the CBI, who commented on it. Essentially, the skills that your planning officers have relate to looking at the types, nature and appropriateness of development and the nature of the charge that we are perhaps getting towards, and the community infrastructure levy would look at those sorts of issues in determining the charge for particular schemes. One aspect, however, that is in the Bill and can be considered when determining the nature or size of the levy is the uplift in valuation that arises when value on the site is increased. Would you have concerns about that criterion being used to calculate the levy and would that cause concerns for planners as it is not a skill they normally have in their locker?
Robert Upton: With respect, the members of my institution have many skills covering a wide range of issues and are not limited to the ones that you set out, and there are certainly some who would be very competent at looking them. The point, however, is that clause 163(2) refers to the increase in the value due to the permission for development, and we are not convinced that that is necessary or is an issue of value. We think that it is theoretically possible that someone might wish to carry out a form of development that was perceived to reduce the value of the land, but in doing so might raise an infrastructure requirement, and we do not see why they should not contribute to that.
Q 121 Robert Neill: I am interested in your point about how you deal with the evidence being gathered and that you feel that it should be dealt with through an inquisitorial process. In the High Court, great savings have been made, particularly in the commercial division, by judges being much more proactive in the management of hearings by insisting that the issues be defined in advance and intervening much more to pull up counsel. Is there perhaps something that we should learn from that about how to manage inquiries, not just by the IPC, but perhaps by planning inspectors generally, and might not much more robust judicial management—for want of a better term—of the process save a lot of time and prevent duplication?
Robert Upton: You will have the privilege of seeing my good friends Katrine Sporle and Leonora Rozee from the Planning Inspectorate later, so I will let you put that question to them.
4.45 pm
Robert Neill: I am interested in your views as the representative of a professional, expert body.
Robert Upton: In relation to the IPC, there is a very large task for it to do when it is established, whoever makes it up. These issues of procedures are not trivial at all. I am sorry, but I keep coming back to the same point—that process is hugely important but more important still is clarity and transparency about what we, as a community, are trying to achieve in terms of infrastructure, because everything flows from that.
Q 122 Robert Neill: I understand that. Given that that is what we want to achieve, my final question is how do you satisfy interested parties that there is clarity and transparency if they are left with a sense that “I was not able to ask the questions I wanted to in my own way”?
Robert Upton: I accept that that is very difficult. I also accept that there is no planning issue of any significance in the world which ends up with all parties being satisfied. As I think I said in answer to Mrs. Lait, there is a judgment to be made here, but by and large our view is that the inquisitorial system is more likely to achieve the necessary outcome than the adversarial system.
Q 123 Mrs. Lait: Can I assume that the RTPI has membership throughout all parts of the United Kingdom?
Robert Upton: And in 90 other countries.
Q 124 Mrs. Lait: Right. As some parts of the Bill cover the whole of the United Kingdom, some England and Wales and some just England, can I then ask whether your members in devolved parts of the UK have expressed any views on how effective this Bill will be in delivering national policy statement aspirations?
Robert Upton: Our perception is that it is a bigger issue in Wales than it is in Scotland, because there seems to be a clearer disjunction with the operation of devolution in Scotland. In Wales it would have significant implications for generating stations, both onshore and offshore, and in so far as it is tied to the totality of the development consent and then relates to the infrastructure onshore, in the worst case it could take quite a bite out of devolved powers in Wales. I think our colleagues are anxious that there should be a discussion at some stage between the appropriate parts of Government about what should be transferred.
Q 125 Mrs. Lait: Thank you very much. That is useful, but I am fascinated by your saying that there is a greater disjunction between the UK and Scotland. To me, that means there is a greater difference. Therefore I would have thought that your members would have been just as perturbed about the proposals to deal with the Scottish aspects of energy in this particular case as they are in Wales. Let us not give one region any greater importance than the other.
Robert Upton: I think that the point is that the process of devolution in relation to planning matters goes further in Scotland than it does in Wales. That does not make the issues any less; it just makes them different. In terms of issues such as energy and other things like that, there will need to be as much agreement as possible between the Administrations in England and in Wales about what the future policy is going to be, which means discussion. That cannot be legislated for; it just has to happen.
Q 126 Mrs. Lait: But is there going to be a battle between Scotland and the UK? In Scotland we are expecting a national policy statement which will cover energy throughout the UK and the Scottish Administration have already ruled out the provision of nuclear.
Robert Upton: I do not think that any legislative process can resolve that problem; it comes back to the need for discussion between the Administrations concerned.
The Chairman: We do not have time for another question. Thank you, Mr. Upton, and your colleague, Mr. Smith, for giving evidence to us. We are very grateful.
We now welcome Sir Simon Milton to the Committee. It is very good of you to come to see us on behalf of the Local Government Association. Could you introduce your colleague?
Sir Simon Milton: Certainly. I am accompanied by Graham Jones, who represents the Planning Officers Society.
The Chairman: Thank you very much. Is there a brief opening statement that you would like to make for the record before answering questions?
Sir Simon Milton: A very brief one, Sir John.
Local government view planning as a key strategic function. It is the thing that enables us to help to develop prosperous mixed and well-planned communities and to do so with community consent. Therefore anything that takes away that operation should be done very carefully and on a very limited basis. We are persuaded that there is a case for handling very large projects through a different procedure, but with two safeguards. First, the definition of such projects should be drawn very tightly. Secondly, there should be a clear method for local views to be heard and paid attention to through the new process, given that the normal mechanisms of lobbying the local planning authority will not be available.
The Chairman: Thank you.
Sir Simon Milton: The whole process starts with having a valid local development framework. There have been a number of difficulties for councils getting their LDFs through. One of the things we have lobbied the Government about is simplifying the process. Part of the Bill seeks to tackle that. Through that process you should as a local area be able to come up with an agreed vision of the community infrastructure needs. That will vary from area to area. We are keen that there should be maximum flexibility for councils and communities to define their infrastructure needs. It might be crèches, cycle paths or combined heat and power plants. We should not be prescriptive in the Bill or in guidance as to what that should be. That requirement should then be partly funded through this levy. That is how it should work. Yes, I believe that councils have the capacity to come up with an agreed statement of needs for their local community. That is at the heart of what councils can and should be able to do.
On the second point of your question and whether we see some kind of competition between authorities, the development decision to invest in an area and to seek to develop to build is subject to a whole range of economic and market factors. It could be that in time the demands of a community levy would become a material factor, but I doubt whether it would become such a factor as to outweigh all of the other things such as land values, complexity of development and the reputation of the planning authority as to have a significant and material impact.
Q 128 Mr. Curry: Would you envisage that across the country developments broadly similar in character might attract levies of significantly different values?
Sir Simon Milton: That certainly would follow logically from communities being able to define their needs. If their proposed tariff were set too high, it could discourage development, but that is the case with any planning policy that you put in place. If you make it too onerous to comply with, you will deter development after a certain point.
Q 129 Mr. Curry: In point 5.2 of your submission, you say that
“the Bill should be amended to provide councils with ... the power to define local infrastructure requirements”.
You have just alluded to that. They should also have
“discretion over how and when CIL funds are used”
“the ability to drive decisions about funding for sub-regional projects”.
What do you mean by that?
Sir Simon Milton: I heard the tail end of the last sitting, so I heard your Craven example. Councils are coming together now in sub-regional partnerships. They are coming together in multi-area agreements and through those are defining what kind of infrastructure is needed for their areas, particularly to do with transport, but also on skills development, economic development and housing. I think that it is entirely reasonable that councils that have come together in that way can agree among themselves to devote a small portion of the levy towards meeting those wider sub-regional needs.
Q 130 Mr. Curry: That presupposes a more formal structure of decision taking within city regions, for example.
Sir Simon Milton: It does, but that is the direction that we are going in. The Government are talking about devolving significant decision making and budgets to those clusters of councils that voluntarily come together to promote prosperity in their sub-region, and we hope that they will do so.
Q 131 Mrs. Lait: Can I move on to the national policy statements and the IPC? One of the things that concerns me greatly is the degree of consultation that is needed with the national policy statements and the IPC. I wonder whether the Local Government Association has a view on how consultation should be carried out on the development of the national policy statement. A slightly different issue—I am running the two together—is how the planning commission should hear the views of local people.
Sir Simon Milton: This goes to the point that I made in my introductory statement about ensuring that there are safeguards to ensure that local views are heard in the new process. The LGA believes that there are one or two mechanisms that would help that could be introduced by amending the Bill. First, on the national policy statement, the Secretary of State should be required to commission and pay for a statement of local community impact, particularly when it comes to allocating a project to a different part of the country. That would be one safeguard. Secondly, when you have a scheme that is going through the commission, the commission should be required to pay for a statement of local views and impact. That would allow the local authority to pull together local opinion and local consultation and present it to the commission. There should be a requirement for those views to be taken into account through the probing and questioning that the commission undertakes on the specific application.
Q 132 Mrs. Lait: Should the Government accept such an amendment, would you see the hearings by the commission as being on an inquisitorial or an adversarial basis?
Sir Simon Milton: We know that the Government wish to get away from the sort of cross-examination that goes on where everyone has their QC. That is where all of the costs come in and I think that the direction is to get away from that. Nevertheless, it is important and necessary that the views that are expressed are tested properly in the hearing. I am sure that a commission, if it was adequately resourced and had the capacity, could undertake that role. We would be very keen to ensure that the issues thrown up by the statement of community impact were tested in that forum. That is extremely important.
Q 133 Paul Clark: Briefly, just to pick up on the point about the community infrastructure levy, I was interested in what you said about issues, such as skills or transport, and so on, that require a wider view, perhaps, than that of the immediate local planning authority. I have seen that need in my neck of the woods. You say that the Bill should be amended to provide councils with that ability to drive decisions. How far should the Bill go in laying that out? How detailed should it be?
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Sir Simon Milton: I do not believe that it should be detailed, because then you create a straitjacket that is too prescriptive. I think these things are best handled by negotiation. Yes, that sometimes takes slightly longer, but it is likely to lead to a better outcome. The LGA would be opposed to having percentage thresholds, with so much going to the sub-region and so much staying locally. I think it has got to be done through negotiation with the affected councils and through their LDF process, which is necessarily consultative.
Q 134 Paul Clark: Thank you for that. On another tack, you are very supportive of the mechanism in terms of local member review bodies in the Bill. I do not know whether you heard Mr. Upton, secretary-general of the Royal Town Planning Institute, who is clearly against such a mechanism, saying that it is an issue of principle that there should be a separation between decision taking and the appeal process. May I ask you to explain your reasons for supporting that mechanism and particularly for your supporting joint authority local member review bodies?
Sir Simon Milton: I did not hear the RTPI evidence, but I know that it is hostile to politicians getting involved in planning matters. Local member review boards are the right mechanism. It is ridiculous to assume that councillors are qualified to take decisions on very complex major developments but not competent to take decisions on minor planning matters that had been delegated to officers on which there is an appeal. So there is no issue there about the skills or capacity of elected councillors to do the job.
I do not accept that councils would automatically rubber-stamp the decisions that had been taken by officers. That is not the experience of how planning committees work. Councillors operate pretty independently. I think that they would be quite capable of assessing the evidence that was put before them by the appellant and of taking a de novo decision on whether the right initial decision had been taken. That has more legitimacy than having a planning inspector from Bristol come in and seek to take a decision without any real knowledge of local context.
Q 135 James Duddridge (Rochford and Southend, East) (Con): The LGA’s support for the Bill seems to be conditional on there being, from the words on your brief, “a very small number” of nationally significant infrastructure projects. I shall not be ridiculous and try to pin you down and ask for an exact number, but could you indicate what the range might be?
Sir Simon Milton: In a year, it would be single figures. At the moment, the schedule that I have seen suggests that there could be as many as 40-plus, which seems to me to fail the test that I mentioned at the beginning: we must be strict in departing from the principle of locally determined planning matters. There are things in the schedule that, to my mind, fail to meet that test.
Q 136 James Duddridge: So the Bill as it stands does not have the support of the LGA, because far too many projects would be captured under the Bill.
Sir Simon Milton: If I can be more precise, the definition of “nationally significant infrastructure projects” does not have our support at the moment. That is different from saying that we do not support the Bill.
Q 137 James Duddridge: And it would need to be reduced to single figures. Has the LGA a view on particular definitions?
Sir Simon Milton: Yes, I think that we do. We believe that it should be confined to matters of national economic or security importance. For example, the largest category that would come before the commission is Highways Act trunk road schemes. If you were building a trunk road to link a new port, it would clearly be part of that application, but trunk roads per se are not matters of national economic importance; they are quite suitable for being determined by local planning authorities. It is a nonsense, in our view, that they should fall within the remit of the new national commission.
Q 138 James Duddridge: It is possible, even if we think that we have got the definition right and it fits the criterion of single figures, that actually the numbers can start to creep up. Would the LGA like to see a specific amendment to limit the number going through each year, so that, effectively, there has to be a prioritisation process?
Sir Simon Milton: We would not necessarily favour that mechanism, but a mechanism is needed to prevent mission creep. There should be a requirement to come back to Parliament to change the definition in future.
Q 139 Dan Rogerson: You referred to enforcement in your submission. Would you like to say a little more about the sort of things that you are worried about there?
Sir Simon Milton: Yes. By their nature, we are talking about very large complex projects, which are likely to carry with them all sorts of specific conditions for permission being granted. There then comes the question of who will police those conditions.
The Government do not want there to be a residual involvement by the commission in monitoring every single application that goes through, and I think that they are right; so it will fall to local authorities to monitor the implementation of the new schemes. That carries with it a burden for investigation and, where necessary, taking enforcement action. It will have a significant cost requirement and we are saying that local government should be covered for those costs.
Q 140 Dan Rogerson: To return to the issue of local member review bodies, do you foresee the need for second opinion advice to be available to members? Usually, when things go to committee, the device is there for officers, perhaps to reject, but at least to consider, so do you see the need for advice from other sources for members when considering such matters?
Sir Simon Milton: If planning authorities are very small then it might be difficult to have a fresh pair of eyes to look at it professionally, in which case authorities could work together in clusters so that you could draw on the professional expertise of other authorities, but it would need to be managed in an equitable way in terms of cost burdens.
Q 141 Mrs. Ellman: There is a provision in the Bill that states that existing policy statements could be designated as national policy statements. Do you have concerns about that?
Sir Simon Milton: No, provided that the same safeguards that we seek for national policy statements were carried out; namely, that there should be community impact statements, where you designate a particular location.
Q 142 Mrs. Ellman: On the role of the commissioners, are you uncomfortable with the concept of experts deciding things instead of elected people?
Sir Simon Milton: Yes, of course, as a matter of principle we are, but we accept that there are a small, limited number of schemes where a national mechanism could be useful.
I would urge you to consider whether the commission should include either elected member or officer representation from local government, in addition to the other experts who will be on the commission.
Q 143 Mrs. Ellman: Could you say a little more about that? Are you saying that they should be among the commissioners?
Sir Simon Milton: Yes.
Q 144 Mrs. Ellman: Would you like that to be specified?
Sir Simon Milton: Yes.
Q 145 Mr. Llwyd: You called in your memorandum for a clear definition of major infrastructure projects. I happen to believe that you are right in calling for that. Do you share my concern that, looking at clause 13(1)(a) to (m), the vast majority of those examples are potential bad neighbours in terms of planning?
Sir Simon Milton: I do not have the schedule in front of me.
Q 146 Mr. Llwyd: I will read a few:
“extension of a generating station...electric line above ground...underground storage of gas...airport...reservoir...waste water treatment...hazardous waste facility.”
They are a concern.
Sir Simon Milton: They are for many people undesirable developments to be living next to.
Q 147 Mr. Llwyd: Bearing that in mind, should not the process leading up to such a development be more sympathetic to potential neighbours rather than less, and not be truncated in the way in which the Bill appears to suggest.
Sir Simon Milton: If we want to go back to basics, why is this Bill here in the first place? It is because Government have deemed it necessary to expedite the way in which we handle applications for schemes and projects of this type. We believe that it is justifiable where it is clearly in the national economic or national security interest to have a process that allows that to be expedited and where there are clear limits and clear guidelines.
If you accept that that is the case then you accept that you are going to ultimately disappoint some people who will not like the decisions that are made because they will not like living next to something which is a bad-neighbour use. However, that is the case in any planning system. There is nothing like a controversial planning application to get people turning up to a meeting at the town hall. We know that people can become very exercised. The best that you can offer as a planning authority, whether you are a council or the national commission, is that people have the opportunity to make their points and that they will be taken into account in making the final decision, whether you like that final decision or not.
Q 148 Mr. Llwyd: You made the point earlier in your evidence about the need for councils to be enabled to undertake full assessments of the impacts of these developments. It is crucial, is it not, that they should be properly financed for that work?
Sir Simon Milton: Absolutely. I think it would be a mistake if this was viewed as a cost-saving measure. If this is done properly, there will be costs that will need to be borne by the applicant.
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Q 149 Robert Neill: Sir Simon, you made the point about the legitimate desire to avoid costs. It is perhaps not appropriate for people in my position to say that if you want to avoid the costs of a Queen’s counsel you instruct an experienced junior—that might be taken in the wrong way. Your Mr. Jones might be able to help, but is it your experience that one of the real problems, and the reason that the legal fees become expensive, is that some inquiries of this large kind drag on because all too often they get sidetracked into the issues that are intended to be part of the national policy statement—the desirability or otherwise of more air travel, nuclear power or whatever.
One of the important things that one would want to see to cut things down—silks or no silks—is the removal of that element from the discussion as to whether the particular application is appropriate in that particular site.
Graham Jones: I would agree with that and I would go further. One of the fundamentally important aspects of this legislation and the procedures attached to it is that it is an opportunity to limit or rather to define the areas for consideration at the outset, before the process starts. Going back to what we were discussing earlier, the opportunity to have a similar sort of process to that which we have in appeals, where the local authority and the applicant can agree on what they agree on and therefore decide what they disagree on, before the commission undertakes its process, is one which should not be missed. That is one way in which the time scales and the areas of concern can be strictly limited. That is in everybody’s favour, if one puts it alongside an inquisitorial rather than an adversarial process.
Q 150 Robert Neill: The interesting point, Mr. Jones, is that although you speak about an inquisitorial process, and you say in your submission that local councils should have a special status for the reasons that you have advanced, you then say at paragraph 4.11 that effective councils must have an opportunity to conduct a cross-examination of evidence from other parties or to require the commission to take that into account in its own cross-examination. It is the specific use of “cross-examination” that interests me. In some cases, that is the best and most robust means of testing the evidence, provided that it is kept within bounds in the way that we have discussed, and limited to the issues that are really germane.
Graham Jones: I think that that is the point—it must be kept within bounds and it must be germane; those areas of evidence must be clearly defined and set before the process starts.
Sir Simon Milton: May I add to that, Sir John? Clearly, looking at the genesis of this, we are trying to get away from people misusing and abusing the process by prolonging it through quite ridiculous cross-examination in order to frustrate the development.
Q 151 Robert Neill: I understand—as opposed to the legitimate testing?
Sir Simon Milton: Yes.
Q 152 Mr. Betts: Looking back to the community infrastructure levy and paragraph 5.2 in your submission, to which David Curry referred earlier, my understanding is that you are generally supportive of the proposals. I am trying to get my head around why you say that the Bill should be amended to provide councils with the power to define local infrastructure requirements, with discretion over how and when CIL funds are used. I thought that that was essentially what the Bill did, and I wondered whether I was missing something if you thought that it needed amending.
If it does need to be amended, do you think that the role of passenger transport authorities should be referred to in the Bill, as they are clearly a key to transport developments in the community?
Sir Simon Milton: The references to community infrastructure levy in the Bill are pretty sketchy because they are to be expanded through secondary legislation, guidance and various other things. It is therefore not very clear at the moment, and we are seeking to put down markers as the Bill progresses. The intention always was that it should be developed as the Bill progresses, so that we can ensure that those things happen—in other words, that councils are at the centre of determining what the needs are, and that there is flexibility and so on.
The scenario that I favour is one where the councils, through their LDFs, come up with a statement of need. A range of other interested parties will feed into that process to ensure that the LDF takes account of their needs, and passenger transport authorities would be one of those. I see them feeding in through the LDF.
Q 153 Mr. Betts: May I ask you about the proposals, for want of a better word, to “streamline” the local development framework? Some people are concerned that taking away some of the requirements that local authorities currently have to pursue would weaken the requirements on sustainability. Others would argue that the measures are necessary because, to date, LDFs have not gone as quickly through the process as was envisaged. Indeed, many authorities still do not have them in place—and some of those probably did not have a unitary development plan in place beforehand.
Sir Simon Milton: The reason why LDFs have become so log-jammed is interesting. Depending on who you speak to, you could apportion blame in various ways. However, I think that everyone agrees that the process is far too complex at the moment. One of the things that it completely fails to do, in my view, is to engage the public, yet that is so critical to communities. However, it is a very technical subject. I looked at the consultation being put out by my authority for our LDF, and the truth of the matter is that nobody other than highly trained experts would be capable of responding to it. It is not because we are particularly jargon-prone—no more so than any other council. It is because the requirements set out in the legislation are so demanding and complicated. By simplifying that, we will start to make progress.
I had a meeting, on behalf of the LGA, with the housing and planning Minister at which we agreed to conduct a no-blame review as to why it was that of 40-odd LDFs that had been presented, only nine got through the process. The others had been either rejected or withdrawn. There is a variety of reasons, but it is clear that unless we get that process working smoothly, the whole of the rest of the planning system will fall, because everything is founded on that.
Q 154 Mr. Betts: So you are generally supportive of the proposal?
Sir Simon Milton: Yes, we are.
Q 155 Mr. Curry: Sir Simon, as you know, probably more than 50 per cent. of social houses in Britain are built through planning gain. Are you absolutely satisfied that nothing in the Bill will make it more difficult or threaten the construction of social housing through the planning gain 106 procedure?
Sir Simon Milton: There is nothing specific in the Bill that would do that. It is, however, the case that the more onerous you make development, the less development occurs. I have a—I keep saying “I”; I hope that I am speaking for the LGA when I say that we are looking to the planning system to deliver more and more social benefits, and quite properly, possibly, social benefits from affordable housing to sustainability. The latest iteration is national security. The more you require the planning system to deliver, the more complex you make it and the slower development then becomes. You also risk choking off some development. There is nothing specific in the Bill that would threaten the ability to deliver affordable housing, other than if we end up making the whole planning system too complex, too costly and too onerous.
Q 156 Mr. Curry: Because any levy is going to end up on the price of a house, is it not?
Sir Simon Milton: Yes. As with all these things, you have to pitch it in a way that optimises the amount of development you get. At the moment we debate endlessly what is the right target for affordable housing to have in your planning policy—what percentage figure. You can take different views on that, but you need a clear understanding of the point at which it becomes uneconomic for a developer. That is about not just the percentage, but the thresholds for when the affordable housing requirement kicks in.
Graham Jones: It is vital that there is local flexibility as far as the CIL is concerned. Otherwise, it could easily become a straitjacket; it could become a disincentive in certain areas. It must be right that the local authority has the flexibility to determine its priorities. If its priority is affordable housing, it should be able to prioritise that against other requirements on a case-by-case basis but within an overall LDF framework.
Q 157 Mr. Curry: You give interesting examples of councils that are developing or planning a tariff. I think I am right in saying that quite a lot of the Thames Gateway area is already applying a sort of roof tax.
Graham Jones: And quite a few of the housing growth areas are.
Q 158 Mr. Curry: So do we need legislation to do this? Is there anything that prevents local authorities from applying what is envisaged in the Bill already?
Sir Simon Milton: No, and some pioneering authorities have done that, but the LGA would say that having statutory underpinning for that would be extremely helpful.
Q 159 Mr. Curry: Would you look to the Government to have some sort of statutory capping? To what extent would you look to the Government to try to create a level playing field or some sort of—
Sir Simon Milton: I think that is undesirable, for the reasons that Graham has just given. You have to have local flexibility to make this work. The moment you start trying to devise national tariffs, you end up pinching the shoe somewhere in the country.
Q 160 Mr. Curry: Would you have a mechanism in place? Would you envisage monitoring what is happening just to ensure that any concerns about social housing were not being realised and to be able to make representations rapidly and seek changes in the event that you felt that there was a problem? After all, housing is less accessible now than it has been for—
Sir Simon Milton: Housing is a national priority. Because it is a national priority, there are all sorts of ways in which local authorities are now being monitored to see how they perform against that national priority. I do not think there is a need for an additional form of monitoring.
Q 161 Mrs. Lait: You referred earlier to wishing to see in front of the planning commission a number of cases in single figures, and in your document, at paragraphs 4.2 and 4.3, you are trying to reduce, or ensure that there is no, mission creep, as you put it, and ensure that trunk roads are excluded. But we have something like 50-odd wind farms waiting for planning permission. I just wonder how you envisage getting the numbers down to between five and 10 just by implementing those two points that you have made.
Sir Simon Milton: I believe that wind farms per se are not a matter of national economic significance, but it is a matter of scale. There are quite a few smaller wind farm developments that local authorities should be able to, and should be given the ability to, determine. I accept that very large schemes would tip into the national category, and so I think it is a matter of agreeing a threshold for wind farms, but I do not think that all wind farms, as a matter of course, ought to come under the new national arrangements.
Q 162 Mrs. Lait: I was using wind farms as a “for instance”, as just one of the things that would take the numbers over 10—there is a wide range of areas that come under this. As the Government themselves, I think, are saying that there would certainly be 30 and possibly up to 45 a year, I am wondering how you think you can get it down to fewer than 10.
Sir Simon Milton: Most of those schemes should be determined by the local authority.
Q 163 Mrs. Lait: How would you amend the Bill to get it down to fewer than 10, other than trunk roads?
Sir Simon Milton: It is about a definition, which would include a scale definition.
Q 164 Mrs. Lait: On all of the various waste, water—
Sir Simon Milton: Yes.
Q 165 Mrs. Lait: We would be most interested to see how you would define it.
Sir Simon Milton: Perhaps we could write to you with some further thoughts on that and make a further suggestion?
Q 166 Mrs. Lait: That would be very helpful because we have concerns that the sheer number of these major applications will in fact clog up the whole system and nothing will happen.
Can I go on to a very different, slightly tetchy area—the single consent regime? Many planning applications—if we think back to Heathrow terminal 5—are bedevilled by the sheer number of consents that are required, both under national legislation and under town and country planning. I wonder whether you think that bringing them all under a single consent regime will help, and whether, in that case, we should be looking to repeal the legislation that stands by itself at the moment.
Graham Jones: I think this comes back in a way to the criteria for the development that will be going through the commission. If we are looking at a handful of national schemes per year, for those particular schemes it is quite feasible that we could devise a unified consent regime.
It also comes back to the issue we were talking about: how you discharge conditions and enforce them, and make sure that all those things can be dealt with properly at a local level, rather than having to go through another layer of consents, which would be locally based rather than nationally based. I think that if we are looking at a much larger number of developments, involving a different scale of development as well, then the issue of unified consent becomes more difficult, because it is affecting a much broader array of schemes, some of which will, by their very nature, be of much more local interest where those other consents would normally kick in, rather than being of national interest. It comes back to the issue of criteria. If the criteria are right, the unified consent regime could work.
The Chairman: I am afraid that time is now up; we have exhausted the time available. Thank you, Sir Simon, and you, Mr. Jones, for appearing before us today. It is most helpful to us in our consideration of the Bill. We are very grateful.
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Sitting suspended.
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On resuming—
The Chairman: Ladies, we are very grateful to you for your indulgence in the need for a brief break for members of the Committee. I take the opportunity to welcome you, Katrine Sporle, and your colleague, Leonora Rozee. If you would like to make a statement before answering questions, now is the opportunity. You could also do so at the end if you think that anything has been missed and has not been teased out of you by the questions. Is there anything that you would like to say first by way of a brief statement?
Katrine Sporle: I will just introduce my colleague in a little more detail and tell you that Leonora is deputy chief inspector of the Planning Inspectorate. She is head of profession and has 18 years experience as an inspector. I felt that that might be useful to the Committee as you proceed. I am here specifically to cover work load, resource, and those kind of issues. Leonora is the expert on matters relating to professional issues.
I also want to assist the Committee in clarifying that the Planning Inspectorate is an arm’s length Executive Agency. Our sponsors are the Department for Communities and Local Government and the National Assembly for Wales, and we do work for other Departments. I should be very clear that we are not an independent body. We are there to take decisions on behalf of the appropriate Secretary of State of whichever Department, or in order to recommend to the Secretary of State. So we do all our work on case work within existing policy frameworks. I felt that it might be helpful to set that out.
The Chairman: Thank you. That is very helpful.
Katrine Sporle: I need to start by saying again that we are not here to determine policy; we are here to deliver established policy and to look at the evidence that is put before inspectors before coming to a decision, independent of the parties. Everything depends on the quality of the evidence put in front of the inspectors.
Q 167 Mr. Curry: Sorry, but we are examining a Bill that represents Government policy. What do you think you are here to do?
Katrine Sporle: We are here to ensure that we can deliver Government policy.
Q 168 Mr. Curry: What do you expect to have to do under the Bill? What roles will you play under the Bill that you are not playing already? Will half of your team be seconded to this super-duper college of cardinals that will make these decisions?
Katrine Sporle: I suspect not. We are very clear that we have worked right the way through the passage of the White Paper and the Bill in partnership with the Department for Communities and Local Government to ensure that we can improve the process of appeals and ensure that it is proportionate, cost effective and customer focused. We are not in competition with local authorities or the new IPC. We expect to be able to deliver an improved service at the end of this process.
Q 169 Mr. Curry: Let me ask you another question. A lot of us are concerned about how the twin objectives of this new process can be reconciled. One objective is to get things done quicker. After all, we have most of the industrial support for this Bill because we faff around for too long getting planning permission in Britain compared with other countries and it damages national competitiveness. At the same time, the Government have said very clearly that everybody who wants a say has got to have a say. You have just heard the Local Government Association saying that the new planning process should be more, not less, responsive to the views of local people.
You are the ones who go out there and sit and listen to various representations. If you were writing the guidance for this body, how would you ensure that those two things were reconciled? What do you mean by the voice of the public and that everybody who wants to be heard should be heard?
Katrine Sporle: I am going to hand over to my colleague. The thing that we need to be clear about is that the experience of the Planning Inspectorate and the inspectors to date is that we have been able to significantly improve on the processes and that we are able to more proactively manage inquiries. We are able to hear evidence in different ways at different times, as appropriate for the appeal that is being looked at. We have speeded up quite considerably the examinations in public when it comes to core strategies under the local development framework proposals. The Bill is building on the experiences of inspectors being able to proactively manage in the way that has been discussed.
Q 170 Mr. Curry: Who is going to be doing the listening under the new body? To whom are locals going to make their representations? If they want their voice to be heard, who do they tell? Who do they go and talk to? How do they do it?
Leonora Rozee: The important thing is to start from first principles. The proposals for the IPC include a wide range of both pre-application and post-application processes. One should not simply restrict oneself to looking at the inquiry. The expertise of the Planning Inspectorate has been in managing major inquiries, which is part of that decision-making process. The IPC proposals are a much wider process because they involve some proposals particularly around the application and pre-application process. For example, in response to comments made by Jacqui Lait, if I may refer to that, there is a clause that requires the applicant, under a duty to consult, to carry out consultation processes. One of the things that the commission can do is to give guidance on the extent of the consultation that is required to ensure that you start off by flushing out the issues that will be of concern to local people. This is not an assumption that by consulting you get consensus, but that on the basis of consulting it is clear to the community exactly what is being proposed.
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Once the application has been brought to the commission, it has a range of different mechanisms by which that application can then be considered. Early procedural meetings and early discussions with parties to try to flush out what the issues are that need to be tested and explored are very much part of an inquisitorial process. The inquisitorial process does not simply mean the commissioners sitting in a room like this and asking questions of people sitting around the table. It is a much more involved process. It is about how you get to the point of the application and the identification of what the issues may be once it is being examined—flushing them out early and allowing people to exchange views through the early exchange of written representations to draw out the issues. Then the commissioners with their expertise test and explore and, as the Bill allows, offer the opportunity for cross-examination as and when it is necessary and appropriate. All of this is allowed for in the Bill.
Q 171 Mr. Curry: But this is the key. My constituents will want to talk to the judge. They do not want to talk to the accused, if you see what I mean. I am still not clear whether the procedures you have set out are there in order to stand between the final decider and my constituents or to provide a pathway to the final decider for my constituents. Which is it?
In response to your point about the 10,000 people, again our experience is that with careful management you can often narrow that number down to spokespeople who are prepared to come together and agree that out of your 10,000 a smaller number of spokespeople will be putting the points.
Q 172 Mrs. Lait: I have listened closely to all the points that you have been making. The impact that they have had on me is that I now feel that with a bit of tweaking there would be nothing to stop the planning inspectorate doing this job and so we do not need to set up this new commission. I have been a civil servant and I know the position you are in. However, you might like to comment on how effective your current powers are such as the open-floor system and the speeded-up procedures that have been used under the 2004 Act. Why cannot the planning inspectorate do this job?
Katrine Sporle: There are two points that we should be clear about. The first is that lovely phrase used by Sir Simon Milton: “statutory underpinning”. There is a need to ensure that everyone understands the process from the start. While there is discretion to do much of what Leonora has described at the moment, the new Bill provides that statutory underpinning. The other issue is that, as I said at the beginning, the planning inspectorate is there to work on behalf of—and, for transferred appeals, to stand in the shoes of—the Secretary of State. We are not independent decision takers, and the IPC is about decision making independent of Government.
Q 173 Mrs. Lait: That is probably one of the points of contention on which I will not ask you to comment, because democratic accountability is quite important. How effective do you think the currently trained planning inspectors would be if they became commissioners?
Katrine Sporle: The planning inspectorate has evolved procedures over time, and a number of the procedures that we use are more akin to an inquisitorial process, for example, the hearings that we hold. About 19 per cent. of our cases are done by hearing. The examination processes that have been evolved for the development plan—both regional special strategies and development plan documents—are based on an inquisitorial process. The 2005 legislation on town and country planning, which only relates to planning proposals and not to most of the proposals covered by the Bill, is still based primarily on an adversarial process. Stansted G1 was done within the spirit of the 2005 rules, and involved more inquisitorial-type procedures. Planning inspectors certainly have the expertise to operate within an adversarial and, indeed, a more inquisitorial type of process.
Mrs. Lait: Thank you.
Q 174 Mr. Betts: You were answering the question about whether you could take on the work of dealing with this handful of major infrastructure projects. You said, essentially, that your role was different in that you have the Secretary of State above you. You are effectively making recommendations, and ultimately it is the Secretary of State’s decision on the matters that you deal with. Do you ever suggest to Ministers or to senior civil servants that you could have a specialist wing of your inspectorate which would take on this responsibility with no Secretary of State standing above you?
Katrine Sporle: We have obviously had very wide-ranging discussions. I should correct myself slightly so as to not give the impression that the only distinction is the independence of decision making. The Bill provides also for the development of the planning application in its early stages, which we currently do not do. With DCLG, we have looked at the model that is currently in force at An Bord Pleanala, the Irish equivalent of the planning inspectorate. An Bord Pleanala, however, is already an independent body, and therefore had an extra wing put on to it to deal with this kind of major infrastructure proposal. It was, I suggest, an easier step than putting a wing on to the planning inspectorate.
Q 175 Mr. Betts: One of the suggestions we will come to tomorrow, which some groups have put forward, is that we ought to give time for the 2005 rules for major infrastructure project inquiry procedures to be validated. We have had one or two inquiries and they put Stansted forward as a model of how things might work quite well under existing procedures as now adopted. Have you any comments on whether that is all we really need to do?
Katrine Sporle: In factual terms, the 2005 rules have not yet been used in full. They will be used for Stansted G2, for which the planning application is currently under development. Stansted G1 was, however, done under the spirit of those rules. It is important to remember that those rules only apply to proposals under town and country planning legislation. They do not apply to the bulk of the proposals in the Bill, because they come under different types of legislation for which such rules do not exist.
Q 176 Mr. Betts: So, in order to get that sort of procedure, it will be necessary to have new legislation for those sorts of issues?
Leonora Rozee: I am not a lawyer, but I assume so.
Mr. Betts: Finally, I want to ask you about the consumer infrastructure levy. Concerns have been expressed about the problems that might occur if the levy is levied at too high a level by the developer. It could stop a developer full-stop, and there is no effective right of appeal in the proposals, as they stand, if the development scheme comes to a stop because of that. The British Property Federation, which we will come to later with the Home Builders Federation, will propose some sort of right appeal against the level of the levy. Have you given any consideration to that and how it might operate as far as the inspector is concerned?
Leonora Rozee: In relation to a right of appeal, one would need to go back to the process by which the levy was initially produced, or defined. I am aware that the precise details of that process and the precise consultation arrangements for identifying what the levy should be are still under discussion.
If you get the right sort of consultation arrangements for the definition of the levy in the first place, the issue of whether that levy is too high should not arise. It may well be much like current policy—for example, with affordable housing—in which one issue can be the viability of the development at a certain level of provision. Sometimes, there is a negotiation between the parties, whether it be the local authority and the developer or, ultimately, through an appeal process, to decide whether there may be an exception to a policy to allow a development to proceed because that development should proceed in the public interest, without necessarily making the contribution that is expected by the policy. I shall put that in simple terms, as it sounded unbelievably complicated. If you have a CIL, the viability of which was prejudiced in a particular development, but there were other public interest reasons why that development should go ahead, one could, conceivably, allow that development as an exception to that policy.
Mr. Betts: Or it might be possible to allow it on appeal—that might be an issue.
Leonora Rozee: Either on appeal or, hopefully, at the local authority level.
Q 177 Mr. Llwyd: A few minutes ago, Ms Sporle mentioned that it was very important that people come to understand the new processes. Part of that process will involve a potential developer/promoter having to take on board the views of those who oppose his or her application. How confident are we that that developer will act in good faith and pass on the views properly articulated in the process? It seems to me that there is a basic conflict of interest between a developer and/or third-party and/or person affected who might object to a development. How confident are we that that developer will relay those feelings adequately? Let me short-circuit my question with these comments. I am sure that other Members present have had a similar experience: as a group, the mobile phone industry is not exactly clean in this regard, and I wonder whether commercial interests will outweigh the need to be perfectly honest and straightforward in the process.
Leonora Rozee: I think that the best way to answer that is to say that where there are disputes—it is necessary to hear disputes such as those we hear currently on appeal, which may well affect telecommunications or wind farms—the process must be robust and the evidence that is being examined must be robustly tested. The way to do that is to be inquisitorial if you do not think that all the issues have come to the table, and/or to allow cross-examination and/or to ensure that people can be heard. Whichever is appropriate, it is the process that must allow for robust testing, so that in the event that any party has been economical with the truth or whatever, it can be exposed. That is the purpose of a robust testing of evidence at cross-examination, whether at a hearing, an inquiry or an independent examination.
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Q 178 Mr. Llwyd: I agree. We have all seen situations in which 200 similar letters arrive saying effectively the same thing and they should be properly filtered out fairly quickly. However, my concern is about the new process in the Bill. Let us suppose that the promoter is less than honest in how he or she might put forward the objections to the development, that it goes further and that the commissioner says, “I am not allowing any cross-examination here.” My concern is that it could undermine the whole process for the person out there who might be affected.
Leonora Rozee: First, I want to refer to the Bill and to the various duties that have been placed on promoters. Under clause 42, headed “Duty to consult local community”, the proponent would first have to identify how it is going to be done, and then do it. Secondly, the commission would have the power to reject an application if it did not consider that the promoter had carried out proper consultation. A further safeguard is the role of the local authority, because it is one of the parties that has to be consulted. The local authority would have a role in representing the views of its community and should draw the commission’s attention to any inadequacies that it became aware in the consultation processes.
There are a number of safeguards built into the Bill that do not currently exist; there are no similar provisions in the planning legislation that relates to duties on the proponents of schemes. There are all sorts of duties on local authorities but those duties are expressly about making sure that the proponents of a scheme do the work that they should do before it ever comes to the commission. There are a lot of safeguards built in there.
Q 179 James Duddridge: Change is never easy. It is uncomfortable for an individual if a new boss is put in over your head. If a new organisation is put over your head or alongside you, I would imagine that that is uncomfortable, too. What is morale like at an individual level? Are you already losing employees?
Katrine Sporle: The very straightforward answer to that last question is no. We are experiencing no inspectors getting on their bikes at all. I repeat what I said to you earlier: we are not in competition with local authorities and we would not be in competition with an independent planning commission. Each of us has different jobs to do. In working in partnership with the Department for Communities and Local Government we have always said that we see ourselves as having a role to play in being able to work with the IPC, particularly on the training and skilling of inspectors, either to provide an inquiry service or to go on to become commissioners in the future. There is no competition between the two bodies.
Q 180 James Duddridge: Will there be a necessity for an anti-poaching agreement in the early days so as not to decimate some of your key departments or are you confident that the numbers involved in the IPC are so small that you can work hand in hand?
Q 181 James Duddridge: In terms of the salary for the IPC, do you think that it is about right? From memory, there were three deputy chairmen all being paid £135,000 each. Does that seem in the marketplace for someone with the skills required, or does it seem an outrageously large sum of money?
Katrine Sporle: I am not sure we should comment on that. I think it depends on the size, scale and nature of the schemes that will go to the IPC. That is down to whatever thresholds are determined.
Q 182 Robert Neill: To summarise where we have got to, I think that we could say that, factually, there is nothing in the current situation to prevent an inspector sitting as part of a panel or on their own.
Leonora Rozee: I think that there may well be because inspectors are salaried civil servants and the proposed commissioners are not intended to be civil servants.
Q 183 Robert Neill: Yes, but I was thinking about examinations in public, which are very often carried out by more than one inspector.
Katrine Sporle: It is perfectly possible for inspectors to sit as a panel. That is currently done for examinations in public, for example, on a regional spatial strategy and, indeed, we will use teams of inspectors for major case work.
Q 184 Robert Neill: We all know that inspectors—my experience is the same as the evidence that you have given us—have become much more alert to the opportunities to, if you like, for want of a better word, judicially control the inquiry through getting involved at an earlier stage, being more proactive, limiting the issues to try and avoiding the delays as far as one can.
You referred, Mrs. Sporle, to the number of the safeguards, which I agree are in the Bill but are not in place at the moment. Those can certainly be adapted to the system proposed in the Bill. Is there anything that, purely practically, prevents them being adapted to the current system, with an inspector?
Leonora Rozee: Which particular provisions are you referring to?
Q 185 Robert Neill: Those ones that Mrs. Sporle just referred to—those safeguards that are in the Bill, but are not in place at the moment. They can work under the proposed system, but they could work under the current system as well, if that had been the decision.
Leonora Rozee: The issue is the fundamental distinction between the independent role of the IPC and the non-independent role of the Planning Inspectorate. For the Planning Inspectorate to take on what is proposed in the Bill seems to me to require the Planning Inspectorate to be a different body from that which it is at the moment.
Q 186 Robert Neill: In what ways would it have to change?
Leonora Rozee: It would need to be an independent body, which it is not at the moment.
Q 187 Robert Neill: Like the Irish system.
Katrine Sporle: And it would need to have the additional capacity and skills that the Irish system has brought in, in order to deal with the pre-application side of major projects.
Q 188 Robert Neill: That is why the Irish system recruits from among planning inspectors.
My final point is that you have emphasised on a number of occasions the importance of striking a balance in the way that you conduct hearings—Ms Rozee, in particular—to ensure that there is fairness as well as efficiency. What would you say is the key thing? Does that sometimes involve allowing cross-examination, where appropriate, and I suppose sometimes limiting the cross-examination when it is going to get out of hand?
Leonora Rozee: Absolutely. Certainly the 2005 rules under the Town and Country Planning Act make it clear that there should be appropriate controls exercised over cross-examination. My own view is that the principle of a process that is primarily inquisitorial is the right principle with the appropriate safeguards that are built into the Bill and where, if necessary, questioning by opposing parties is an appropriate process.
It may be useful for the Committee to know that we have now been having discussions for three years or so with the planning Bar about how to make the procedures in both inquiries and examinations in public much more effective without going back into the adversarial processes. Those can be built upon for the IPC, so that you do provide these safeguards.
Q 189 Jim Sheridan (Paisley and Renfrewshire, North) (Lab): Excuse my ignorance, but we did not have a brief for your remit and the areas that you cover. I am reliably informed by my good friend, who has now left the building, that you only cover England and Wales. Is there a comparative body to yours in Scotland, and is there any interaction between you and that body, particularly on issues such as the delivery of energy provision, which may impact on the whole UK?
Katrine Sporle: There is a body in Scotland that deals with planning appeals; it is set up slightly differently from the way that we are set up. There is a body in Northern Ireland and An Bord Pleanála in the rest of Ireland. We have a great deal of interaction, we exchange good practice and we discuss policy issues and how they are going to be delivered. But we do not discuss the side of work that does not relate to us: the promotional schemes to fulfil Government policy. We discuss how we deal with appeals.
Q 190 Jim Sheridan: But in discussions with your counterparts in Scotland do you make it clear to them that, for instance, the Scottish Administration’s opposition to nuclear power could impact on the whole of the UK’s energy policy?
Katrine Sporle: No, because that is not our remit.
Q 191 Mrs. Lait: I should like to ask three questions, which seem unrelated but are related. There is a provision in the Bill under which the Secretary of State could overrule or call in an inquiry under the national infrastructure planning process. Would you envisage the Planning Inspectorate advising the Secretary of State in those circumstances?
Katrine Sporle: No.
Q 192 Mrs. Lait: Who would be advising: the Department?
Katrine Sporle: Policy advisers.
Q 193 Mrs. Lait: This is where the unrelated bit comes in. Roughly what percentage of work will the local member review bodies, in effect, be taking from the Planning Inspectorate?
Katrine Sporle: I had not worked out the percentage. We can do that quickly. About 6,000 planning appeals a year are household appeals. We deal with about 23,000 appeals a year.
Q 194 Mrs. Lait: So you will be losing about a quarter of your cases. And you will be losing whatever percentage of your cases that are, in effect, national infrastructure cases.
Katrine Sporle: A very small proportion.
Q 195 Mrs. Lait: Yes, but a big time load and costly.
Katrine Sporle: That is an interesting question, because we have a small number of specially skilled inspectors who deal with the major projects and that probably does not impact on the resource and the work load issues of the Planning Inspectorate as a whole. The 23,000 appeals that we deal with annually are, by and large, town and country planning appeals, as opposed to those major cases that come mainly through other Government Departments, including those dealing with energy and roads. So I do not see there being a big issue in terms of loss of work to the Planning Inspectorate.
We need to be clear that the inspectorate’s workload has risen by nearly 50 per cent. over a five-year period, so there is an issue about whether it is appropriate for inspectors to be dealing at national level with something that is obviously a very local issue of local importance. In the meantime, we have made a clear case for what we have called fast-tracking householder appeals. So, for the first time, we are seeking to be clear that different types of appeal should have a slightly different process that is more proportionate, more cost-effective and much more customer-oriented.
We are clear that we have a lot of work to do on householder appeals to give better customer service to householders and that, if there are local member review bodies in future, that streamlined process should be the one passed on to those bodies.
The Chairman: I am afraid that we are now overtaken by time. We have less than a minute left. It is my pleasant duty to thank you, ladies, very much for your evidence. It has been most helpful and your specialised knowledge of the subject has been amply revealed.
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Gentlemen, welcome. I am not quite sure who is leading your delegation, but think that it is probably Andrew Whitaker.
John Slaughter: It is not.
The Chairman: I apologise, Mr. Slaughter; you were second on our list. It is good of you to come and give evidence to us today, and perhaps you would begin by introducing your colleagues.
John Slaughter: On my right is Andrew Whitaker, who is the Home Builders Federation’s head of planning, and our other two colleagues are Stephen Ashworth and John Rhodes, who represent the British Property Federation.
Stephen Ashworth: My name is Stephen Ashworth and I am a partner in the law firm, Denton Wilde Sapte, and specialise in planning and public law.
John Rhodes: I am John Rhodes, a planning consultant from a firm called RPS.
The Chairman: Before we go into questions, would you like to make any preliminary statements?
John Slaughter: If we could, we might briefly split this as I want to make a few remarks and then Stephen might want to follow on.
The Chairman: If you each want to make one, that is fine.
John Slaughter: On behalf of the Home Builders Federation, we want at a high level to welcome the Bill, which we think is helpful in a broad sense for the major housing issues that we face as a country, to both increase supply and, from our perspective, meet the extremely challenging objective of building to a zero-carbon standard from 2016 onwards. The general objectives of the Bill are helpful in that respect, and we support the objective of improving the speed, efficiency and effectiveness of decision making on national infrastructure because that will be broadly helpful with regard to spatial planning in achieving housing objectives as well.
We particularly welcome the fact that we are going to have a process for developing legitimate, properly consulted-on national policy statements. However, from our perspective there are two main areas on which we want to focus today. First, it is perhaps useful to say for the benefit of the Committee that the community infrastructure levy in many ways reflects comments that we made to the Government in the run up to the preparation of the Bill about the best approach to be taken to achieve a suitable contribution from development towards infrastructure requirements to support that development.
We are particularly keen on the fact that this is based on a localised approach that we believe will help to produce a positive climate for development and a sense of discussion among the partners. There are, however, a number of material points that we would like to raise about it, so I shall hand over to Stephen in a second. Briefly, we would like to say that the aspects of the Bill that relate to the town and country planning system are also very important from our point of view, and there are a number of issues there that we would like to go into if we have time.
Stephen Ashworth: The British Property Federation welcomes the Planning Bill as a whole and the efforts that it is making to speed up the planning system. We particularly welcome the proposals on national policy statements and hope that that will achieve the swifter delivery of major infrastructure schemes and assist the development of major infrastructure projects that are necessary to support development, which is the life blood of the British Property Federation’s membership. We have concentrated in our memorandum and in our comments to the Committee on the community infrastructure levy. We support it in general terms, but with four key points. First, we believe that it must be locally based. Secondly, it can be locally based by ensuring that it comes through the local development framework system, and we would look for clarity in the Bill to be sure that that is the case. Thirdly, we would ensure that it was dealt with alongside and as part of a planning application process. That is a well-tried, tested and trusted mechanism, so that appeal mechanisms of the sort that you discussed with the Planning Inspectorate can be used to resolve final issues about the incidence of the levy. Finally, some clauses in the Bill refer to the infrastructure levy being dealt with on the basis of increases in value. We think that those are slightly misleading in the way that they approach the infrastructure levy, and we would look for those provisions to be removed.
The Chairman: Thank you. That was very helpful. We now start the questions.
Q 196 Mr. Curry: How much will the Bill put on the price of a three-bedroomed house in Ripon?
John Slaughter: The short answer is that it will not put anything on the price because the housing market is driven by what the market price is at any particular time. The issue is very much about what contribution can viably be made from any given housing development.
Q 197 Mr. Curry: Let me clear about this. It is going to be a roof tax—it has been christened a roof tax—and the developers will pay it as a contribution to the infrastructure that, according to your memo, you might wish to deliver. Are you saying that it will have no impact at all on the price that you will charge for properties?
John Slaughter: I will have to justify my answer and give you a slightly longer explanation. The sale of new houses is a maximum of 10 per cent. of the residential property market at any given time. In selling our homes, we are not in a position to influence that general price level. You have to sell your product competitively.
Q 198 Mr. Curry: I realise at the moment that we are virtually into a “buy one, get one free” situation from some developers—or so I see from the adverts in the Financial Times and local newspapers.
John Slaughter: Sure, but whatever the market situation is, the validity of the point that I am making still applies. You have to work within the parameters of the price that prevails in the market at any given time. The key issue for us is what is a viable level of infrastructure levy, taking into account—
Q 199 Mr. Curry: That was my next question. Perhaps you might proceed to answer it. What is an acceptable levy rate on a three-bedroomed house?
John Slaughter: I would have to echo the answer of some of the other witnesses this afternoon. It will vary from case to case, and it will depend upon what we hope will be a robust process of assessing what a reasonable charge would be under the local development framework.
Q 200 Mr. Curry: Your members must be saying to you what they would regard as being an acceptable rate of levy. Nobody is suggesting that the levy should fund the whole of the infrastructure. It is discrete part of it, however, and you are anxious that it should be ring-fenced—and, if I understand you correctly, you do not anyone to come back for a second helping.
John Slaughter: That is correct.
Q 201 Mr. Curry: You must have an idea of what would be a reasonable rate to apply.
John Slaughter: Perhaps we could ask Andrew to comment on that, because he probably has more detailed knowledge. One makes an analogy with some of the current situations where we have roof taxes. One could give a broad estimate of what may be acceptable, but the important point is that those cases will vary, so we cannot say that there would be a single level of charge across the country.
Mr. Curry: Absolutely. I quite agree.
Andrew Whitaker: I think John’s answer is correct. The Milton Keynes roof tax, as it is called, is £18,000 per roof, but it is applied in a particular way with a particular formula that suits the infrastructure being provided for the level of development taking place at Milton Keynes. I am not suggesting that you could pick up that calculation and put it in Ripon. Ripon will need to undertake its own calculation, based on its land values, the level of development and its own infrastructure needs. It will have to discuss that with the development industry.
Q 202 Mr. Curry: Mr. Whittaker, you are not telling me that in Ripon—or anywhere else for that matter—it is just a question of the local authority working out what infrastructure it wants and coming along to you and saying to the builders, “Oh, by the way, this works out at £18,000, £28,000 or even £120,000 per roof”? You do not buy that, do you? It is not demand-led in that sense.
Andrew Whitaker: In simplistic terms, that is how you would work out the levy.
Q 203 Mr. Curry: You would not build anything under that system.
Q 204 Mr. Curry: Could you explain a bit further for me how that process will take place? We have already heard that in a sense it is going to be a competitive market. You have said that it depends on the housing situation locally. You have just said, very obviously I think, that if they try to squeeze the pips too much, they will not get any buildings. What process do you envisage? Do you look for some sort of agreed code, as it were, with a tolerance threshold of development? Do you look for some sort of arms race between local authorities? Do you expect to shop around?
Stephen Ashworth: Perhaps I can assist by giving two practical examples. The first is in connection with the emerging Kent Thameside town where there is a charge for transport infrastructure of about £5,000 per house. That has quite a long history and pedigree behind it because a need has been identified for a transport infrastructure to serve Kent Thameside, with a bill of about £160 million. That has gone to the DCLG and the Highways Agency, saying that they have to make a significant contribution, leaving a balance that is being looked for from the development community and other sources, including existing sources of public funding.
After consultation with the development community, landowners in the area and other public agencies, a view is being taken about what is generally affordable. That is a relatively subjective exercise and there is a lot of debate about whether it should be £3,000, £4,000, £5,000 or £6,000. That debate is now playing out in a supplementary planning document that is being promoted by each of the local authorities in the area. They are listening to the consultation and I suspect that over the next two or three months they will reach a conclusion about the level of the charge. In the meantime—this is quite an important transitionary point for the Bill as a whole—a number of developers have already started paying at the level of £5,000 per house. Land Securities has signed an agreement that will make a £40 million contribution to that infrastructure.
Q 205 Mr. Betts: It is fair to say that the proposal for a planning charge that you put forward as organisations was borne out of your resistance to the planning gains supplement, which was resisted on the grounds of complications over trying to assess increases in value. Is that why you are now getting alarmed at the use of the word “value” in clause 166 as one of the possible methods of calculating what the infrastructure levy might be? Is this a fundamental stumbling block for you in terms of your support for what the Government are putting forward?
The process that the Government have announced is similar to the one that we promoted. Instead of being based on value, it is based on an assessment of infrastructure needs and their affordability across a local authority area. We were therefore surprised to see reference to value in the Bill. Affordability and viability are important. We have just had a short debate about that, but that is very different from saying that the CIL is based on securing a certain proportion of value; it is not. It is based on assessing the requirements for infrastructure in an area, seeing what element of that needs to be raised from the development that is planned and sharing that cost against development. There are references to value in the Bill that we think are unhelpful. Among our members and others in the property industry, that has caused concern that the planning gains supplement is not dead.
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John Slaughter: Maybe I can add to that. The key question is workability and the concern about references to changes in land value in relation to planning gain supplement—it was, as much as anything, that a lot of experts looked at it and found that it would be very hard to operate in practice. The issues about PGS were much wider than that.
One of the other key aspects that we were collectively concerned about, as developers, was the weakening of the link between development and the local provision of infrastructure. We particularly want to stress today the value of the levy from the point of view of hopefully strengthening that local connection, having a proper assessment and buy-in to what is needed to support development in an area, and, as a result of that, making more things happen rather than less. But it is critical technically that the basis on which the levy is assessed stems, as we have said, initially from the identification of needs according to a legitimate process, and then one works towards viability. We are concerned that the references in the Bill to value may, at best, be confusing and, at worst, could introduce complications into the process. We would like a clearer understanding of how the mechanism of setting the community infrastructure levy would work in practice. It is important, from our point of view, that we get that emphasis right in the enabling provisions of the Bill.
Mr. Betts: May I just lead on to some references you have made to the relationship between the levy and section 10, which will still be around? You referred, in paragraph 2.11 of your submission, to the fact that we ought to be able to define one set of infrastructure demands, which will be done under section 106, and another that would be done under the levy, and that there should not be a “creep” between the two. Is that not realistically impossible? There will be the odd bit of road linking a development to a major highway, which might well be pertinent to section 106, as being very specifically part of that scheme, but there will be a need for a wider contribution from a number of developments to other more significant transport improvements that are necessary because of the general development of an area.
Also, you go on in paragraph 2.13 to state that developers might elect to have elements of the infrastructure provided through section 106 and that that should be offset against the CIL, then in paragraph 2.19 you discuss the fact that the CIL might simplify arrangements because it would mean that there would be less need for agreements under section 106. Is there not some confusion in what you are saying there?
John Slaughter: Perhaps I can ask Stephen to comment on those questions.
Stephen Ashworth: The question comes in three separate parts. There is a question about whether a bright, shining line can be drawn between infrastructure that will be subject to the CIL and infrastructure that will be dealt with under site-specific agreement. You are right if you are treating it as an absolute question. There will always be a blurred boundary. We think that that can be dealt with in a number of ways. If the nature of infrastructure that can be subject to CIL is identified in the Act, as it goes forward, that makes very clear what a subsequent section 106 agreement cannot comprise, so you start to get a demarcation between the two which is able to be policed.
You then move on to the question of offsetting. Offsetting works in practice; that is the simple response to that. In Milton Keynes, with each of the agreements that has gone forward on a site-specific basis, the developers have said, “We will deliver that piece of infrastructure. This is the cost of delivering it and we will set it off against our future payments of tariff.” Identical arrangements are working in the London Thames Gateway, for example. So offsetting for identified pieces of infrastructure that have been costed does work in practice.
In relation to simplifying it: yes, absolutely you can simplify it, because if there is a CIL requirement, a condition imposed from planning consent that says, “Pay x before you build” is very easy and simple to police and it will avoid a lot of the issues that arise in negotiations at the moment. It does, I accept, get more complex if the developer is delivering some pieces of infrastructure, but I promise you that it will be far simpler to deal with that, and has been far easier to do so in Milton Keynes in the context of the simple offset provisions, when you compare it with the sort of approach that is adopted in the normal negotiated planning agreement.
Mr. Betts: This is not Milton Keynes. We are talking about something here in the CIL, which, by its very nature will be more complicated than a flat-rate levy on a road.
Stephen Ashworth: That is why I mentioned the London Thames Gateway Development Corporation, which is, I suspect, at the other end of the range that people will be looking at. It is largely a deprived urban area with significant elements of brownfield land, where it has gone through the exercise that was discussed earlier of looking at the infrastructure costs. Those costs were between £25,000 and £30,000. It recognised that that amount could not be charged for each of the areas within it, and said that it would have to discount it to £6,000 and £10,000. Even with that sort of mechanism, there are still provisions for offset that it is willing to accept.
Q 206 Mrs. Lait: Concerns have been raised with us from a variety of different organisations about which industries or businesses will be levied. Can you give me some idea of the organisations or areas of the economy that you think will be paying this levy?
John Slaughter: Ourselves—that is the starting point.
Q 207 Mrs. Lait: You mean housing?
John Slaughter: Housing, commercial, retail, development—
Q 208 Mrs. Lait: Did you say commercial, retail or commercial retail?
John Slaughter: Commercial, retail—both sectors—and, I guess, some industrial development beyond that. We have focused primarily on our own sphere of interest, and that would broadly cover our own sphere of interest. We are aware that there is potentially a debate about where to draw the line. One way of looking at it might be to work back—we have discussed the desirability, if we can do it, and there are challenges in doing it—and identify a sensible list of what would be financed by a community infrastructure levy. On the whole, one might reasonably expect that entities or developments that feature that kind of infrastructure provision would not necessarily contribute to the levy. The honest answer is that discussion about this process is still in play. We clearly see the levy as applying to our members, but we do not necessarily have a clear-cut view on where one draws the line beyond that.
Q 209 Mrs. Lait: Who do you think should pay the levy—the owner of the land, the developer or a mixture?
John Rhodes: I expect that the levy, in practice, is likely to be paid by the developer. It is associated with the grant of planning permission being secured through a condition or a standard section 106 agreement. One advantage of developing the levy through the LDF process, and one advantage relative to PGS, is that it would be relatively straightforward to work out your likely liability to CIL before you go through the planning process, or even before you buy the land if you are the developer. On that basis, while the cheque might be written by the developer, the cost is likely to be passed through to the land with a reduced land acquisition cost.
Q 210 Mrs. Lait: Do you always assume that the developer will buy the land?
John Rhodes: No.
Q 211 Mrs. Lait: So, how would you see that working?
John Rhodes: The developer may be the owner of the land already, in which case, clearly, the liability falls on the developer as the owner. The prospect of having to pay CIL is something that the developer would have to take into account when promoting a development.
Q 212 Mrs. Lait: What I am getting at is that it is perfectly possible for a development to be done on land that is owned by somebody else—freehold or leasehold.
John Rhodes: Not easily without the consent of the landowner.
Q 213 Mrs. Lait: That is why I am asking who you expect to pay the levy—the developer or the landowner—if you are in a freehold or leasehold situation.
John Rhodes: I would expect the developer to pay the levy but reach an agreement with the landowner that allows the development to proceed and, on that basis, for a sensible commercial decision to be reached, relative to the circumstances of that site, as to how the CIL and other costs associated with the development are apportioned between them.
Q 214 Mrs. Lait: Do you foresee, in the housing field, an extension of leasehold property?
Andrew Whitaker: I would not have thought so. I do not understand quite where you are going with that. I think that Mr. Rhodes’s answer deals adequately with the point. If it does not, you need to expand slightly on what it is that you are getting at. I do not see that it makes any difference whether one builds leasehold or freehold properties. A development that has planning consent is liable for a CIL payment, just as it would be at the moment if a section 106 contribution had been agreed. How it is paid for—where the value comes from or where it is derived from—is up to the developer, who will have to come to some deal with the landowner about where it will come from. There are only two ways that we make money in land development. One is land value, and the other is development profit. We will continue to make development profit. Otherwise, we will not develop.
Q 215 Tom Brake (Carshalton and Wallington) (LD): Following that through, if the ultimate impact is that land values are reduced and landowners do not get as much money for their land, do you foresee a reduction in land availability? Will landowners simply sit on their land because it is not as profitable for them to sell it?
Andrew Whitaker: It is a concern for us that that could be the case. That is why we require pragmatism in the process of setting the levy. If you set it too high, you will stifle development. Do not forget that we are already paying large amounts of money under section 106. The whole point of CIL is to take away some of that obligation under section 106, although we think that overall CIL will be able to raise more money than we currently get under section 106 because it will apply to more schemes, not because it will raise more on each individual scheme. We see that as an offset. Do not forget that we are not starting from a blank sheet of paper. Most development schemes—certainly those of any size—pay money under section 106 and make contributions under section 106.
Q 216 Tom Brake: I understand that you are already paying—or the landowner, in some respects, is already paying—through section 106, but given that you accept that the overall amount raised will be greater than under the current arrangements, do you have a feel for at what point that overall amount will start to bite in terms of land availability?
John Slaughter: I am tempted to make a slightly philosophical point, but I hope that it is not unhelpful. If you go back to what we like about the community infrastructure levy—it will hopefully create a better climate for development locally—the danger of these conversations is that we always look at the situation as a zero-sum game. Half of the approach is really about getting out of that and incentivising more development by creating a sensible process whereby local communities can see the value that will be provided, and one can have a sensible conversation about how to achieve that.
If we get into that positive circle, I am not sure that your premise will be the case. If we achieve that great magic circle trick—a trick in some senses; it is nevertheless a real objective to aim at—we can achieve more all around. It would create more development, it would not over-affect land values and it would make a necessary contribution to local needs. We must be careful not to look at it too rigidly.
Q 217 James Duddridge: Going back to the Milton Keynes plan for a roof tax, is the tax a flat tax in the sense that it is the same for a two-bedroomed apartment, a three-bedroomed house and a four-bedroomed house, or is it variable in some way?
Andrew Whitaker: We have been discussing with various groups—both groups in the Home Builders Federation and joint groups with the British Property Federation—the formula that might be used. It seems obviously inequitable to charge the same for a one-bedroomed flat as for a four or five-bedroomed detached house. Those discussions are going on at the moment, and I am afraid that we have not got to a conclusion. It seems perfectly obvious to have a different levy, but we have not worked out how to calculate it.
Q 218 James Duddridge: What is the case or current position in Milton Keynes?
Stephen Ashworth: Milton Keynes is charged on a per-house basis. It is a flat £18,500 per house. Exactly that debate went on in Milton Keynes. There is a desire to encourage larger accommodation, so there was a balance between some of the inequities, as Andrew mentioned, and the need to encourage a particular type of housing provision.
Q 219 James Duddridge: And in Milton Keynes that cost was the same for apartments or flats.
Stephen Ashworth: Yes, and it applies to affordable housing as well.
6.45 pm
Q 220 James Duddridge: So, all other things remaining equal, if we got stuck into that type of situation it would encourage property developers to build bigger houses that were less affordable for hard-working families.
Andrew Whitaker: And do not forget—I keep stressing this—that we are not operating in a vacuum. The town and country planning system is very complex, as you all know. There are lots of other policy drivers within that system, not least the need for affordable housing and its provision through planning agreement. I was interested in the “buy one, get one free” comment, because that is what it feels like when providing housing. Under a 50 per cent. requirement for affordable housing, you are indeed building one and getting one free. The policy requirement for affordable housing will remain. Indeed, the industry is currently being berated for building too many small units and not providing enough affordable houses or larger-type units. This environment of strategic housing market assessment, strategic housing land availability assessment, the local development framework and the local development documents is still there and still forms the basis of the policy stance against which we should be assessing all these things.
We are trying, via CIL, to provide a much more efficient, transparent and quick methodology for making the contributions that we are already making under section 106 agreements, but because that system is complex it takes a long time and we have to repeat a lot of work, time after time, and we are trying to simplify that process. It is not as if we are operating in a vacuum.
Q 221 Mr. Curry: The levy will be part of a funding stream, will it not? What would be the situation if your levy were being demanded and there were no reassurance that the other elements of the funding that would meet a particular capital project were in place?
John Slaughter: That is a concern. Some of the points that we made in our memorandum addressed that.
Stephen Ashworth: I am happy to add to that. One of the clauses that is potentially missing from the Bill is one dealing with the delivery of infrastructure. There is a useful provision that makes it quite clear that the levy that is raised must be applied to certain infrastructure, but there is no mechanism for ensuring that the multiple bodies that are required to deliver infrastructure co-operate in delivering the infrastructure for which payment is being made. Trying to ensure that the health trusts, education authorities and everybody else delivers the infrastructure in accordance with the infrastructure plan is a missing element of the Bill.
To date, developers have been willing to sign up and make payments on the basis of promises from the local authorities—from the Milton Keynes Partnership, for example—that the infrastructure will be provided. To a large extent, they have taken a leap of faith in relation to that because all that they are getting back at the moment are reasonable-endeavours obligations to deliver infrastructure. At the moment, there is trust that that infrastructure will be delivered. The next few years are critical to make sure that that trust is repaid.
Q 222 Mr. Curry: Would it be reasonable to have a provision that said that the levy did not become payable, even though the amount to be paid had been agreed, until such time as the funding streams were assembled, or to have a sunset clause whereby the levy will be returned if a development did not take place within a specified time? Or will it all go into a local NatWest?
John Rhodes: There are two issues. You have heard us say that we are keen that this should operate through the LDF process. Draft PPS 12, which is out to consultation, already goes quite a long way to explaining that a local authority will have to produce an infrastructure plan and a delivery plan that goes with that. The LDF will not be regarded as sound and capable of being adopted unless there is a delivery plan that persuades the inspector conducting the examination, whose recommendations are binding on the planning authority, that if the money is raised through the CIL policies it will be spent. For that and lots of other reasons, we regard the LDF process as a protection whereby we will not be paying money that simply sits in a bank account.
Q 223 Mr. Curry: Would you feel more comfortable if the Planning-gain Supplement (Preparations) Act 2007 were repealed?
John Rhodes: We are happy that this Bill proceeds as it is. We are having a very constructive discussion with DCLG about—
Q 224 Mr. Curry: It is not a daft question. We all went through the hassle a little while ago of having the planning-gain enabling Act. You yourself expressed concerns, because there appears to be some ambiguity in the Bill—it opens the possibility of the levy having some relationship to increase in value. Would these provisions not knock that on the head, both by addressing the matter in the Bill and by making sure that the Government were not given this other instrument?
John Rhodes: Yes, that would be an easy way to approach it. We have not promoted that. What we have promoted are changes to the clauses that make it clear how the system is intended to work. So, the deletion of reference to “value” was important, but even more important to us than that is ensuring that the clauses take the opportunity, which they do not at the moment, to explain that this is going to operate through the planning system. There are three specific clauses—163, 166 and 167—where the option could be taken to say CIL will be raised through the LDF process. We do not understand why that is not in the Bill at the moment. It is the only sensible way in which local communities can engage in this, in which the property industry can have confidence that the CIL is going to be properly raised, and in which there is independent examination.
Through the LDF process you would create CIL policies. You will then have a planning system that creates a presumption in favour of any policies in the plan, and we have an application process and an appeal process already in place, through the planning system, in which the industry has confidence. As long as that is the way in which CIL is intended to be developed, then we are happy to contribute our views to try and make that work as best we can. In so far as there is any residual concern that it may be a different system, then we do have concerns. For instance, there are two references in the clauses to an appeals process being established for CIL. We would like to see those deleted from the Bill. We do not understand the need for a separate appeals process. There is a more than adequate planning appeals process already in existence.
Q 225 Mr. Betts: The last point that you make on this issue in your submission is about the right of appeal. You are almost proposing a separate right of appeal, if there is a concern about the viability of a project because of the amount of the levy that is going to be charged. I have just asked the people from the Planning Inspectorate whether they believed that that could be subsumed into the normal planning process and be a matter for an appeal that could be taken in the normal course of events. Would you be satisfied with that or do you still have real concerns over this issue?
John Rhodes: I think that we may not have explained ourselves properly if you have got an impression that we are seeking a separate appeals process. We are looking for CIL to be embedded in the LDFs, so that there is a policy that requires the CIL to be paid. Planning application is then made, and lots of considerations are taken into account, but it may be that in certain cases a developer argues that he cannot afford to pay CIL. The local authority may take the view that that is then contrary to the LDF. Planning permission is refused and there is an appeals process to the Planning Inspectorate—the existing appeals process—which allows an appeal to be considered on the basis, which, as Leonara Rozee, I think, confirmed, works in exactly the same way in relation to social housing policies. The developer makes an argument that he cannot afford to meet the full requirement for affordable housing. Planning consent could be refused on that basis, if the planning authority is not convinced. That decision can then be appealed to the Planning Inspectorate. It is a simple, straightforward planning appeal. The Planning Inspectorate then has to ask itself a question: are the merits of this development, without sufficient affordable housing to meet the policies, sufficient to outweigh the objection that there is not enough affordable housing in accordance with the policy, should planning consent be granted? We think that CIL can operate in exactly the same way. If it becomes a policy of the development plan, it can be dealt with through the planning appeals process.
Q 226 Jim Sheridan: You may have partly answered this question. You will be aware that the Government recently identified the need to build thousands of houses, particularly affordable houses, throughout various parts of the UK, especially for first-time buyers. Can I therefore ask whether there is any tangible evidence that, if this levy is implemented, it will impact in any way on the ambitious plan that the Government have for building significant numbers of new homes?
The Chairman: Order. There is a Division in the House.
Further consideration adjourned.—[Mr. Watts.]
Adjourned accordingly at five minutes to Seven o’clock till Thursday 10 January at Nine o’clock.

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