 House of Commons |
Session 2007 - 08 Publications on the internet General Committee Debates Planning Bill |
Planning Bill |
The Committee consisted of the following Members:Alan Sandall,
Committee Clerk
† attended
the Committee
Public Bill CommitteeThursday 24 January 2008(Afternoon)[Mr. Eric Illsley in the Chair ]Planning BillClause 45Advice
for potential applicants and
others
Amendment
moved [this day]: No. 232, in
clause 45, page 21, line 10, leave
out
‘The
Commission may give advice’
and insert
‘The Secretary of State may, in
connection with securing propriety, by regulations make provision about
the giving of advice by an existing government body appointed for this
purpose’.—[Robert
Neill.]
1
pm
The
Chairman:
I remind the Committee that with this we are
discussing the following amendments: No. 233, in
clause 45, page 21, line 15, leave
out ‘Commission may not under subsection (1)’ and
insert
‘body appointed
by regulations under subsection (1) may not under that
subsection’.
No.
234, in
clause 45, page 21, line 17, leave
out subsection
(3).
No. 235, in
clause 45, page 21, line 25, leave
out ‘Commission’ and insert ‘appointed
body’.
Robert
Neill (Bromley and Chislehurst) (Con): I am delighted to
see the Minister back in his place. I know that he has had a busy lunch
time. We hope that he remains with us and is not reshuffled or promoted
anywhere, after the multi-tasking he was doing on the lunch-time news.
We do not want him to go until we have seen the guidance on the Welsh
elements of the Bill. We hope that there will not be any drift in the
Wales Office in preparing those, for obvious
reasons.
To return to
the point that I was making, the amendment relates to advice for
potential applicants and others. I was discussing a concern that the
Campaign to Protect Rural England raised in their written submissions,
which has also been raised with us by a number of practitioners in the
field.
It is not a
problem with the giving of advice and assistance, as I hope that I have
already made clear. I do not have any problem with greater use of
pre-application discussions, for example, between applicants. It is
sensible to involve other affected parties at that early stage, hence
our reference to the great success of the Shortlands scheme in the
London borough of Bromley, between the constituencies of my hon. Friend
the Member for Beckenham and myself—just to eke out the press
release.
The concern raised is over the
propriety of the commission being the organisation to give that advice.
That concern arises because, ultimately, the commission has to act as
the decision maker in the process; it must be the holder of the ring.
The commission must maintain the confidence both of applicants and of
affected parties, for reasons that we have rehearsed at considerable
length, and that I will not
repeat.
Against that
background, is there a risk that, if the commission is the giver of
advice, its impartiality as the decision maker will be compromised?
That is why we put forward in our amendment an alternative formulation
and suggest that other Government agencies could happily provide that
function.
For
example, the Planning Inspectorate, the planning advisory service, and
the advisory team for large applications already exist. If they were
used, and we leave it open in our amendment as to which would be most
convenient, there would be the advantage of ensuring that bodies
discrete from the decision maker provided advice to applicants. There
could not then be even any suggestion of discussions behind the scenes
that might be misinterpreted by those who are affected and are unhappy
at applications. It would enable the commission, if we are to have one,
in spite of our reservations, to be more readily seen than
Caesar’s wife in the matter, so to speak. In essence, that is
the reason for the amendments. I hope that the Minister will realise
that we are trying to be helpful to the work done by the
commission.
The
Minister for Local Government (John Healey):
The hon.
Gentleman is right to probe that area, to be concerned about standards
and propriety and to want to be sure that the commission’s
process for giving advice is as clear and open as possible. I argue,
however, that it is a good thing that it will be the commission giving
advice about the process to potential applicants because its members
will be experts on the application process for major infrastructure
projects.
It is
obviously of equal importance that any contact and discussion between
the commission and potential applicants does not prejudice the
decision-making process in any way, that it is seen not to do so and is
accepted as not doing so. That is the purpose of the regulation-making
power covering the commission’s role in giving advice,
particularly with regard to the disclosure of that advice more widely
and to the public.
By way of practical
example, the regulations could require minutes of the
commission’s meetings or the advice that it will give to
potential applicants to be made available to all parties. The
commission will, of course, be subject to freedom of information
legislation and to the powers of the ombudsman over questions of
administration.
I
think that the hon. Member for Bromley and Chislehurst will accept that
there is rightly further work to do on the nature of appropriate
advice, that it is probably better not to put it in primary legislation
and that the regulation-making power is important. I hope that he will
accept that that will help to ensure that it is clear to everyone that
the commission acts impartially, openly, with complete propriety and
that it will be seen to do so.
Given that the provision is
underpinned by a commitment to make the process as transparent and
unquestionably proper as possible, I hope that the hon. Gentleman will
be willing on the basis of that reassurance to wait until the details
of the regulations are specified. In preparing those regulations, we
will discuss and consult widely because that is the way that we are
most likely to get a framework of regulations that meets his concerns
and can command the confidence of those who want to see the commission
acting properly.
Robert
Neill:
I am grateful to the Minister for the way in which
he has dealt with that and am reassured. I hope that in the
consultation it might be possible to look, among other things, at how
the bodies that I have mentioned and others operate. I am glad that he
recognises the sensitivity and importance of the issue and, with that
reassurance, I beg to ask leave to withdraw the
amendment.
Amendment,
by leave,
withdrawn.
Robert
Neill:
I beg to move amendment No. 13, in
clause 45, page 21, line 13, after
‘representations’, insert
‘including oral submissions and
cross examination of
witnesses’.
The
Chairman:
With this it will be convenient to discuss the
following amendments: No. 20, in
clause 79, page 37, line 23, at
end add—
‘(4) Subject to
subsection (3) above, nothing in this section shall restrict the rights
of interested parties to make oral representations or cross-examine
witnesses.’.
No.
328, in
clause 80, page 37, line 36, at
end insert
‘including
receiving requests to be heard orally pursuant to section
84.’.
No. 21,
in
clause 82, page 38, line 19, leave
out ‘is to’ and insert
‘may’.
No.
267, in
clause 82, page 38, line 20, after
‘written’, insert ‘and
oral’.
No. 22,
in
clause 82, page 38, line 20, at
end insert
‘subject to
the right of interested parties to make oral representations and
cross-examine
witnesses.’.
No.
268, in
clause 82, page 38, line 20, at
end insert
‘and the
carrying out of a site
visit’.
No.
269, in
clause 83, page 38, line 42, after
‘representations’, insert
‘whether personally, or by its
counsel, solicitor or
agent’.
No.
270, in
clause 83, page 38, line 42, at
end insert
‘and to call
and to cross-examine
witnesses’.
No.
271, in
clause 84, page 39, line 12, after
‘representations’, insert
‘whether personally, or by its
counsel, solicitor or
agent’.
No.
23, in
clause 84, page 39, line 12, at
end insert ‘and to cross-examine
witnesses’.
No.
272, in
clause 84, page 39, line 12, at
end add
‘and to call and
to cross-examine
witnesses’.
No.
319, in
clause 84, page 39, line 12, at
end add—
‘(4) Any deadline
fixed under subsection (1) shall not be less than 56 days after the day
on which the date of the open-floor hearing is
announced.’.
No. 24, in
clause 85, page 39, line 23, leave
out from beginning to second ‘the’ in line
24.
No. 273, in
clause 85, page 39, leave out lines
23 to
25.
No. 88, in
clause 85, page 39, line 25, at
end insert
‘but where a
local planning authority requests that a party be cross-examined, the
Examining Authority will be obliged to grant the
request;’.
No.
25, in
clause 85, page 39, line 39, leave
out subsection
(7).
No. 274, in
clause 85, page 39, line 43, leave
out
‘exceptionally’.
No.
275, in
clause 85, page 39, line 44, leave
out ‘necessary’ and insert
‘appropriate’.
No.
276, in
clause 87, page 40, line 45, at
end insert
‘and’.
No.
277, in
clause 87, page 41, line 3, leave
out from ‘application’ to end of line
5.
Robert
Neill:
It looks a bit of a mouthful, but essentially the
point that we seek to deal with in this regard is an important one that
we will return to elsewhere in the Bill. We have already flagged up the
fundamental importance of the ability to have oral submissions and the
cross-examinations of witnesses, and we differ with the Government on
that. I know that the Minister has said, in relation to other aspects
of the Bill, that there will be scope for the commission to allow
cross-examination and oral submissions in certain cases. I take all
that on board, but we do not regard it as adequate. This issue is so
fundamental that it should be a right, not something that is at the
behest of the commission. That is the fundamental difference between
our position and the Government’s. The reason for this is
profound: people could be affected not only in their personal lives,
but in their livelihoods, their professional situations and their
proprietary interests in
land.
In certain
circumstances, the commission will be able to issue a development
consent order that includes the compulsory acquisition of land. It
seems to us absolutely inconceivable that a person confronted with that
possibility should not have the right—not just the
discretion—to present their case in the way that they choose.
They should be able to do so themselves or through the representative
of their choice, to ask the questions that they want to ask and to test
any evidence that is called to support the proposal that could deprive
them of their
land.
Where
we do agree, we are anxious to stress it. Subject to that right, the
commission should be able to control cross-examination through the test
of relevance, as do planning inspectors. As will be remembered, we have
already rehearsed our alternative construct. If policy issues are
decided in the national policy statements, it will not be necessary to
go down the route of the terminal 5 inquiry, which had the longueurs of
repeated cross-examination trying to reopen the issue of whether there
should even be an
airport.
In our
judgment, at the application stage, there should be a debate simply
about the merits of the particular site. That could be controlled in
the same way as it is in other judicial circumstances. I will not bang
on about this point because we have made it
before. We are sorry that the Government have not
gone down this route, but if that test were applied, the
cross-examination need not be oppressive, repetitious or the cause of
the inquiry being dragged
out.
It is important
that there is a balance between seeking efficiency in the process and
respecting the rights of individuals. The right to a fair hearing has
been enshrined in common law almost since mediaeval times. It is also
consistent with human rights legislation. The Secretary of State has
signed the usual certificate saying that the Bill is compliant with the
European convention on human rights. However, we suspect that if there
is no clear right to cross-examination in the Bill, it will be a
potential charter for more and more challenge through judicial review.
In terms of planning, it will be the usual lawyers who are making the
money. That is not a threat, but a statement of reality. Those who feel
aggrieved and do not think that they can get a fair crack of the whip
through the commission process will feel pressed to go to court to seek
a
remedy.
To
use an analogy, the Government are falling for a false economy. They
think that they will save money by making the process quicker by this
prohibition. We think that it may make the situation worse through the
amount of challenges and the damage that will be done to the
commission’s reputation for being independent. That is why we
tabled the amendment, which is mirrored in other amendments that we are
proposing throughout the Bill. It would ensure that even at that early
stage in the process, part of the advice to the applicant or,
crucially, to other interested parties is about making representations
on the application. The Bill should spell out explicitly the right to
make oral submissions and cross-examine. That is the point of principle
that we seek to flag up through the
amendment.
Dan
Rogerson (North Cornwall) (LD): I support the hon.
Gentleman’s argument for the protection of the right to
cross-examination. He has a lot more experience of that than me, but I
have appeared before a planning inspector as a witness on behalf of a
dedicated band of constituents. I was up against two barristers: one
from the Environment Agency and one from a water company. It was great
fun.
I stand to speak
to amendment No. 319, which I
tabled.
John
Healey:
I understand the hon. Gentleman’s previous
involvement in the process, but does he accept that having fun is not
one of the objectives set out for the IPC in the application
process?
1.15
pm
I
return to the issue of the time that objectors have to participate in
various stages of the process. Based on our previous discussion about
the pre-application stage, I appreciate that the Minister said there
would be an incentive for the applicant to ensure that the consultation
is as thorough as possible to prevent later delay in the application
stage. I can see his point, although it pains me to admit it.
At the
application stage, however, it certainly is not in the interests of the
applicant for the objectors to have plenty of time to put their point
across. Amendment No. 319 therefore refers specifically to the period
in which any potential objector has the right to notify the IPC or the
applicant that they want to be heard at an open-floor hearing. That is
a crucial part of the process for the objectors, because it is where
they can get their point across and make their voice heard; if for any
reason, the time scale was not appropriate, it would mean that they
missed out on that chance. That would be hugely to the detriment of any
sense of fairness in ensuring that the application was considered
properly, and anyone who had that experience would be very
disillusioned with the process.
I hope the Minister agrees
that we should consider a longer time frame for this crucial issue to
ensure that people can appeal to have their views heard at an
open-floor
hearing.
Mr.
Clive Betts (Sheffield, Attercliffe) (Lab): I will speak
briefly to amendment No. 88. I am not convinced by the argument that
everybody and anybody should have the right to cross-examine. It has
been suggested that that right exists now under planning law, but the
vast majority of planning applications are considered by the planning
committees of local authorities, where the right to cross-examine does
not exist. Indeed, the format of procedure that the commission is
likely to adopt will be adopted by committees now. Individuals will be
allowed to state their case and they may be asked questions by members
of the committee—a form of cross-examination—who will
then reach a view.
It
is up to the commissioners whether they adopt that form or allow
cross-examination, as the proposal states. However, a category in the
interpretation clause 92 at the end of chapter 4 specifically
defines a relevant local authority as a recognised “interested
party” throughout the process of the
hearings.
To meet
concerns about the potential removal of democratic accountability and
the voice of the people, my amendment recognises that the commission
will conduct the hearings as it so chooses—there is no automatic
right for everyone to cross-examine—but that representations
from local authorities should be treated differently because they are
different and distinct. Therefore, if a local authority representing
its community in a democratic, elected way, asks for the right to
cross-examine, it should be allowed to do so because it is a different
and distinct organisation, as the Bill
recognises.
John
Healey:
We discussed most of the issues and principles
that the hon. Member for Bromley and Chislehurst raised at some length
in our debates on parts 1 and 2. I also dealt in detail with some of
his concerns in the memorandum that I submitted to the Committee two
days ago. I shall try to deal with a couple of the main points that he
made when moving his amendment. He is right in his observations about
the present system and the extent to which there are rights at present.
As I have said, rather than simply importing the 2005 rules relating to
major infrastructure and basing a system entirely on them, we are
trying to create a new system of examination for considering nationally
significant infrastructure
projects.
Therefore,
the Bill sets out a way of proceeding for the IPC that strengthens the
pre-examination process; tries to identify and deal with issues that
might be contained in the proposals up front rather than leave them to
be argued over at great length in the inquiry stage; draws on a
national policy statement so that matters of policy do not become the
meat and drink of the inquiry; makes much greater use of written
representations while ensuring that oral hearings will be heard when
necessary; and aims to test, probe and assess the evidence through
direct questions led by the IPC rather than by cross-examination. Such
cross-examination is normally conducted by hired third-hands and
lawyers who are only available to those with deep pockets, particularly
in long inquiries. We have already seen and discussed the situation
where even a local authority—the borough of
Hillingdon—ran out of money and was unable to maintain its
involvement in one of the Heathrow
inquiries.
To be
clear about the new rules and the suggestion that they somehow will not
provide a tried, tested and established system and that we should
simply use what is currently in place of the IPC, I suggest that no
major infrastructure project has yet been dealt with under those rules.
As we sit at the start of 2008, we can anticipate that it might well be
2009 before the first major infrastructure project is put forward as an
application, and that would be on the table as a matter to be dealt
with by the Planning Inspectorate under the current system. Therefore,
it is not as if we have a tried, tested and established model that we
could be confident is up to the job.
Cross-examination might have a
place in hearings and can be a useful method for testing and probing
evidence and ensuring that people’s concerns are properly
established. However, as I have said to the hon. Gentleman, to somehow
equate the right to be heard and have views registered with the right
to cross-examination is to make a profound mistake.
Also, cross-examination has
its problems. It can be costly and time consuming, and it can be
difficult to estimate how long that part of the process might take. It
can add to the uncertainty for all involved in any inquiry for which it
is the major method for trying to establish the facts. It can be
legalistic, adversarial and, therefore, intimidating, particularly for
ordinary members of the public who perhaps have neither the experience
nor the access to the sort of resources that are required for
professional cross-examination.
For those reasons, it is
better to have an IPC process that allows for cross-examination but is
nevertheless essentially predicated on the view that the commission
will lead the evidence testing in a similar way to how Select
Committees conduct their business, with which we are familiar as
Members of the House. Of course, the commission will also have access,
should it require it, to additional expert
advice.
On the
subject of those who may be subject to compulsory purchase orders as
part of the consent order regime and process for a major project, again
we are taking a slightly different approach to the current system, but
one that helps us to achieve our objectives while ensuring that there
is sufficient reassurance and rights for those who might be affected.
First, the Bill explicitly gives parties subject to CPOs the ability to
trigger an oral hearing, and a right to be heard at that
hearing. Secondly, I have talked about cross-examination as one method,
but not necessarily the primary or only method of testing
evidence.
Robert
Neill:
If the property of those parties is likely to be
subject to compulsory acquisition and they are to have the right to an
oral hearing, what mechanism will there be to guarantee them not only
the ability to put their point of view, but to challenge the basis of
the assertion on which compulsory acquisition is sought? It is terribly
important for whatever form we have that someone who may be going lose
their land, perhaps for the greater good, has the chance to challenge.
That, almost invariably, involves testing and probing the evidence
put.
John
Healey:
Indeed. I think that I made it clear a moment ago
that the responsibility for testing and probing will rest with and be
led by the commission, but it may involve cross-examination. Clearly,
any party giving evidence at an oral examination would want to try to
ensure that the right questions and testing were undertaken by the
commission. It can use cross-examination if it wishes. The framework
that we have set out emphatically does not rule that out if it is
necessary.
There
are two principal reasons for which cross-examination might be
necessary. The first helps to address the hon. Gentleman’s
point, and the second is equally important. Cross-examination may be
necessary to ensure that adequate testing and representations have been
made to the commission, and an interested party potentially affected by
a CPO may have views on that. However, if cross-examination is
necessary to ensure the representation of interested parties, clause 85
allows that to happen and for the commission to ensure that it happens.
I hope that that is a sufficient
explanation.
Robert
Neill:
The Minister makes it sound reasonable, but we are
concerned that things will not work out that way in practice. That is
why we regard the matter as one of important
principle.
It
is suggested that cross-examination is somehow useful only to those
with deep pockets. The reality is that the situation will probably be
the reverse. The ability to cross-examine is likely to be most
important to the little people, as it will probably be the only means
by which they will be able to get their case across and to challenge.
They will not be able to have a detailed written submission put in by
an expert in the same way that the applicants and the big battalions
will be able to do. Their ability to have their say and to ask
questions is probably more important. So it is, in fact, a protection
for the little people, rather than the well
resourced.
With
respect to the hon. Member for Sheffield, Attercliffe, I do not think
that his first point entirely follows, because the type of applications
that we are talking about are not of the class likely to be considered
by a local authority planning committee. Even in the current situation,
they will invariably be called in and there will be a public inquiry.
Therefore, there would be a hearing of one kind or another. That is the
distinction.
The hon.
Gentleman’s other point about local authorities, although
superficially attractive to those of us with backgrounds in local
government, runs into one problem. A situation could occur perfectly
easily in
which the local authority broadly supports a proposed development, but
it has concerns about certain details and wants to pursue a particular
way of dealing with the development. It has a right to cross-examine,
but members of the local community who do not share its supportive view
are then placed at a disadvantage. There is almost an inequality of
arms created under those circumstances between different classes of
people who are interested parties at the hearing. In a sense, that
disadvantages the little people as opposed to those who are well
resourced. In practice, it might not have the benign effect that I am
sure he intended, which is why we cannot support
him.
As it is an
issue of principle—I will not repeat it because we have
crystallised the issue in the way that the hearing would seek to
do—our view is that cross-examination can be sensibly
controlled.
1.30
pm
John
Healey:
The hon. Gentleman is right: he has crystallised
the issue. Does he not accept that he has done so by testing and
probing the position and the representations that I wish to make to the
Committee, rather than by
cross-examination?
Robert
Neill:
If the hon. Gentleman were putting himself forward
as an expert witness, I might need to cross-examine him in a different
format. It is often said, rightly by those who do rather more of this
work than I ever did at the Bar, that the more expert witnesses there
are—there will be tonnes of experts on these type of
applications—the more the skilled professional is needed to
test, probe and cross-examine. It will not be the little objector who
will be subjected to heavy cross-examination, but the expert witness
for the applicant who will need to be pushed hardest in
cross-examination. It is the little people for whom the measure is most
important. Although we want to see all the controls put in place, which
we have agreed can be done through a different route, we regard this is
as a matter of principle and so will press the matter to a
Division.
Dan
Rogerson:
I was doing something dangerous for a man: I was
attempting to multitask while the Minister spoke. I am not sure whether
he addressed my point about time issues. Does he have anything further
to add about the time frame involved in securing the right to an
appeal? I cannot remember the clause, but it is up in the 80s. It has
been grouped with this amendment because we are talking about
open-floor hearings. I would welcome anything that the Minister can say
on that. If he cannot respond, I shall press amendment No. 319 to a
vote because it is a crucial issue. It would be a huge problem if
someone missed out on that fundamental
right.
Mr.
Betts:
When my hon. Friend responds to that could he also
come back to my point about the special position of local authorities
and whether he thinks that needs to be reflected further in the Bill?
They are clearly given a special position in chapter
4.
John
Healey:
To answer my hon. Friend’s point directly,
the case is not clear for special treatment in this part of the Bill.
The hon. Gentleman is right: questions of timing appear later. They are
connected principally with the application process. We are dealing with
the pre-application process. I propose to deal with that point in more
deal when we get to the relevant
clause.
Dan
Rogerson:
On a point of order, Mr. Illsley.
Will we be able to vote on amendment No. 319 when we reach that
clause?
Question put,
That the amendment be
made:—
The
Committee divided: Ayes 6, Noes
11.
Division
No.
11
]
AYESNOES
Question
accordingly negatived.
Robert
Neill:
I beg to move amendment No. 202, in
clause 45, page 21, line 21, leave
out subsection (4) and
insert—
‘(4) The Commission
shall disclose a person’s request for advice under subsection
(1) and the advice given under subsection (1) to a person to the public
generally.’.
The
amendment returns to the first issue that we discussed about
transparency and the disclosure of requests for advice. I agree with
the Minister’s points about the importance of transparency and
probity in such cases. It is precisely because we set such store by
that that we believe it should be in the Bill, rather than having the
power as set out in the clause to achieve it by creating regulations.
The transparency issue might give rise to legal challenge and so would
be better spelled out in the
Bill.
There
could be circumstances in which objectors or affected parties want to
know what has taken place between the commission and applicants,
particularly when they are drawing up their own cases. I accept that
the Freedom of Information Act 2000 will apply, but sometimes it takes
a long time to get information under that process. I am also concerned
that sometimes applicants might seek to pressure the commission into
not disclosing all of the discussions, sometimes under the guise of
commercial confidentiality. The amendment would strengthen the
Government’s desired position of ensuring that there is the
maximum possible openness about pre-application
discussions.
Again,
this is a Caesar’s wife point. Because of the important
principle that is involved, we think that it
would be better for this power to be in the Bill,
rather than it being left to regulations. I am interested in how the
Minister thinks we can guarantee the preservation of these
people’s rights so that they can have access to material
discussions between the applicant and the
commission—particularly if it is the commission and not a
separate body that is giving the advice—so that they can use it
in drawing up their own
cases.
John
Healey:
In many ways, I think that we had this discussion
in the debate on amendment No. 232. I dealt with the same points that
the hon. Gentleman made then, and he was good enough to nod and accept
them and did not press that amendment to a vote. I would like to invoke
a refer-back provision rather than take up the Committee’s time
in discussing this amendment. I hope that he will take the same view
with this amendment as he did with amendment No.
232.
Robert
Neill:
If the Minister is reassuring me that the
consultation on the regulations will take the same form as he has
already indicated, I beg to ask leave to withdraw the
amendment.
Amendment,
by leave,
withdrawn.
Clause
45 ordered to stand part of the
Bill.
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