Decisions of Panel and Council
The Chairman: In the absence of the hon. Member for Meirionnydd Nant Conwy, unless someone moves any of the amendments in the group, the group will fall. The second amendment in the group is tabled by the hon. Member for Sheffield, Attercliffe, who is rising to his feet.
(ba) any relevant content of a national planning framework or national spatial strategy prepared for Scotland, Wales or Northern Ireland, where the subject matter of the application or order will affect land in Scotland, Wales or Northern Ireland,
(bb) any relevant content of planning policy statements prepared to support decision-making under the Planning Acts,
(bc) any relevant content of the development plan made under the Planning Acts,
(bd) any statement of impacts and mitigation prepared under section (Duty to identify and mitigate adverse impacts),.
The Chairman: With this it will be convenient to discuss the following amendments: No. 331, in clause 94, page 43, line 39, leave out from other to end of line 40 and insert material considerations.
No. 414, in clause 94, page 43, line 40, at end insert
including other statements of policy which the Panel or Council thinks are relevant even if they have not been designated as a national policy statement under section 5 of this Act..
No. 323, in clause 94, page 43, line 40, at end insert
(d) whether the proposal is consistent with the principles set out in the local authoritys local development documents (as defined under section 17 of the Planning and Compulsory Purchase Act 2004, (c. 5)),
(e) the likely impact of the proposal on communities within the relevant local authority area,
(f) whether the proposal meets with the approval of persons residing in the relevant local authority area,
(g) any other matter which the relevant planning authority considers appropriate.
(2A) A local authority area is relevant under subsection (2) if any location specified in the application is situated in the local authority area, or is in a geographically adjacent local authority area..
No. 332, in clause 94, page 43, line 40, at end insert
(2A) The Secretary of State may by order prescribe that a consideration is not material for the purpose of decisions made on a particular application or order or on a classs of applications or orders..
No. 333, in clause 94, page 43, line 41, after application, insert generally.
No. 334, in clause 94, page 44, line 2, after application, insert generally.
No. 335, in clause 94, page 44, line 6, after application, insert generally.
No. 426, in clause 94, page 44, line 8, at end insert
(5A) This subsection applies if the panel or Council is satisfied that deciding the application in accordance with any relevant national policy statement would be inconsistent with the protection accorded to any site under any enactment or directive..
No. 336, in clause 94, page 44, line 10, after application, insert generally.
No. 337, in clause 94, page 44, line 11, at end insert
(6A) This subsection applies if the Panel or Council is satisfied that deciding the application generally in accordance with any relevant national policy statement would lead to unduly adverse impacts, where the Panel or Council is satisfied that these impacts have not been reasonably and sufficiently managed..
No. 338, in clause 95, page 44, line 22, after relates, insert
(aa) any relevant content of a national planning framework or national spatial strategy prepared for Scotland, Wales or Northern Ireland, (where the subject matter of the application or order will affect land in Scotland, Wales or Northern Ireland),
(ab) any relevant content of planning policy statements prepared to support decision making under the Planning Acts,
(ac) any relevant content of the development plan made under the Planning Acts,
(ad) any statement of impacts and mitigation prepared under section (Duty to identify and mitigate adverse impacts),.
No. 339, in clause 95, page 44, line 23, leave out from other to end of line 24 and add material considerations.
Mr. Betts: The amendments tabled in my name are fairly straightforward, and I cannot think of a good reason for the Minister to refuse them, but I am sure that he will try hard to do so in the next few seconds.
It seems right to me that decisions made by the commissioner, or the Secretary of State in some circumstances, should take account of the national policy statements. We discussed in an earlier sitting the importance of those statements and how they would shape, and in many cases determine, the decisions that are eventually reached by the commission on particular applications.
Amendment No. 330 would give greater responsibility to the commissioner or the Secretary of State to look at other relevant information. While the Bill allows the commission or the Secretary of State the discretion to look at other matters that they think are important and relevant, there should be a requirement for them to consider planning policy statements. Those give the Governments guidance on planning that any local authority would have to follow in coming to a decision about a planning application. I cannot see any good reason why similar consideration should not be given by the commissioner or the Secretary of State in cases where they make the decisions.
It also seems to me that there should be regard for local development plans when any application is before the commission. The local development framework will be a document on which there has been thorough consultation and it will have been approved by the Secretary of State. We are not trying to slide in any undermining of the process. We are not attempting to stop applications in their tracks or provide more obstacles for them.
The planning policy statements and local development plans are very important documents that should be at least considered by the commission or the Secretary of State in coming to a view on an application. They could, of course, consider them and decide that they are in contradiction to a national policy statement. The intentions of the national policy statement override any planning policy statements or local development plans, but that would be for the commission to determine in each case. As it stands, it is possible for the commission or the Secretary of State
The other amendments in the group are smaller ones that try to tease out the reasoning behind the wording in the Bill. I am told that amendment No. 331, which would change the wording to other material considerations, uses the wording found in other planning legislation. That concept is well understood in planning and planning law. I would like to know why it was thought necessary to include the different wording in the clause when other material considerations is traditionally used in such legislation. That would also give a little more scope to the commission to consider matters in the round, rather than in the prescriptive way proposed in the Bill.
I will summarise the most important points. It is right that the commission or the Secretary of State must take account of national policy statements. Of course, they should be able to take other matters that they feel are appropriate into account, but surely they must take into accountif only to disregard them as inconsistent with the national policy statementsthe Secretary of States own planning policy statements and the local development plans, which have been consulted on and arrived at by local councils, and approved by the Secretary of State.
Mrs. Lait: As we did not run fast enough to the Clerk, I am very happy to support the hon. Member for Sheffield, Attercliffe in his supplications to his Minister on these issues. I want to expand briefly on amendment No. 331, which would insert material considerations in place of important and relevant matters. We all know that the Town and Country Planning Act was enacted in 1947, although I am advised that it took until 1970 before the courts had defined what material considerations meant in planning terms. That means that there was a period of some 23 years before it became clear, in planning terms, exactly what had to be taken into consideration when coming to a decision. I would be most grateful if the Minister would explain whether the use of the term important and relevant in the clause is the Governments attempt to change the definitions, or whether there is some advice that important and relevant equals material considerations. If that is the Governments advice, why bother? If they are trying to change the criteria for making decisions, are they actually prepared to spend the next 23 years tied up in legal cases while this is all sorted out?
If that is the consequence of changing from material considerations to important and relevant, it rather shoots the Government in the foot when they argue that this is a way of speeding up the planning system. One suspects that the only people whom this will benefit in the long run is my hon. Friend the Member for Bromley and Chislehurst and other learned Members. I am sure that that is notwe keep being assured that it is notthe Governments intention.
We have also tabled amendment No. 414. Should the Government accept the amendment proposed by the hon. Member for Sheffield, Attercliffe regarding material considerations, we would, as a consequence,
Amendment No. 426 reiterates the need to ensure that sites already protected under the habitats directive, or any other protected site, would be regarded as a material considerationI use that phrase rather than important and relevant for the sake of the Government and their policyin the decisions of the panel and council.
Dan Rogerson: Not because of the hon. Ladys speech, which, as always, enlivened the debate, but because of my lack of sleep last night. I am also grateful to the hon. Member for Sheffield, Attercliffe for stepping into the breach and moving the amendment, not only because of the argument that he advanced, which is very similar to one I would support, but for giving me time to realise that amendment No. 323 is in my name.
I have re-read that excellent amendment, which would do something similar to what the hon. Gentleman has already spoken about: making it clear in the Bill that we ought to look at documents that mean a great deal to people in the local community, who might have invested a great deal of time in getting them right, in terms of their provision for the communitys future.
The proposal should be consistent in some way with the local authoritys local development documents. Any conflicts should at least be considered, with the likely impact on communities within the relevant local authority area examined and some account taken of the general approval of people in the area. The amendment would ensure that a local dimension was brought to bear. I certainly support the arguments that the hon. Gentleman advanced
John Healey: In clause 94, we are trying to set out in the clearest possible terms the factors that the commission should take into account when considering an application: first, the relevant national policy statement; secondly, other matters which may be set out in secondary legislation; and, thirdly, any other matters that the commission thinks are important and relevant to its decision.
As I have stressed to the Committee a number of times, the primary factor is the national policy statement. The application must be decided in accordance with the national policy statementall members of the Committee have expressed strong support for that conceptexcept when one or more of a list of considerations apply. Broadly, those considerations are that an application must be lawful, that any adverse impact of the proposal
Let me deal first with local authorities and the understandable concern expressed by my hon. Friend the Member for Sheffield, Attercliffe about their position. Local authoritieslocal planning authoritiesand the devolved Administrations will already be consulted by the promoter of a project under the provisions of part 5. No doubt they will make clear to the promoter in those consultations how the proposal fitsor perhaps does not fitwith their development plans. Local authorities and devolved Administrations will also be statutory parties to the examination of an application and no doubt will use the opportunity to explain in their evidence how the proposal fitsor perhaps fails to fitwith their development plans as well as with the views of their residents. The commission will have to take those factors into account in weighing up whether any adverse local impacts of the proposal outweigh its benefits. I hope that that much is clear from the Bill.
However, it is very important to our objectives that the national policy statement, developed after wide consultation and parliamentary scrutiny, should be the primary consideration for the commission in taking its decisions. I say to my hon. Friend, in particular, that adding in other factors with the amendments as if they had equal weight in the Bill would confuse the clarity of that framework and widen significantly the scope of factors that the commission would have to take into account on a similar basis. As we discussed in relation to part 2, national policy statements will incorporate existing planning policy when it is relevant. In time, we would expect local development plans to reflect the national infrastructure policy statement.
On the point raised by the hon. Member for Beckenham, the IPC, in reaching decisions, can depart from a national policy statement when not to do so would lead the UK to be in breach of its international obligations, or would lead the commission to be acting unlawfully. That will ensure that the hon. Ladys concern about the habitats directive is met, because the Bill does nothing to compromise that directive. We do not need to mention it in the Bill because it is already part of UK law, so the commission will be required to comply with the terms of the directive in this context.
On material considerations, the hon. Lady might or might not be right that it has taken 23 years to get to the current point and a body of case law that relates to what counts as a material consideration. In a sense, she makes the point for me about the case for a different approach. It is precisely because the phrase material considerations has proved to be so unclear in practice that such a vast amount of case law has been spawned. As a result of that accretion of case law, the definition is not necessarily clearer. Often, as a result of the accretion of case law and precedent, the picture is muddled and confused and can hinder rather than help the effective examination of an application and the resulting decision.
We seek not to incorporate material considerations in that context, but to limit the additional matters to which the IPC must have regard to those that the
I hope that my explanation has helped and that the Committee will not feel it necessary to support the amendment.
Mrs. Lait: Should the provision go through, I hope that the Government are prepared to spend the next 23 years defining important and relevant. I am not a lawyer, but I could undoubtedly ask a lawyer whether there is a legal definition of important or relevant. However, I suspect that the Government could be setting up another 23 years of litigation to define those words.
I am advised that the legal definition was clarified in 1970, and that during the next 38 years there was no challenge to it. It will surely be safer to stay with that body of case law. Everything the Minister has said that the panel and the council have to take into account can in my mind be described as material consideration as much as it can be described as important and relevant.
I am still struggling with why the Government wish to change what is now understood in planning law not for one but for two new conceptsimportant and relevant. I originally thought that we might vote against the provision, but I am tempted to take further advice in the light of what the Minister had to say; I believe that it is potentially so important that we may have to return to the subject. The definition of important and relevant could shoot holes through everything that the Minister is trying to achieve.
Robert Neill: My hon. Friend makes a powerful point. It is reinforced by the thought that material consideration in the current context is clearly distinguished from immaterial considerationsthose that make no difference to the consideration of the application. If they are material and they make a difference to the application, one would think that anything important or relevant would be caught.
The Minister does not seem to have said what might be excluded that is material that would not be important or relevant. My hon. Friend is right that it will be a field day for litigation and confusion.
Mrs. Lait: What better advice could the Committee have than from a practitioner? I am grateful to my hon. Friend for making that point.
We need to take further advice about the Ministers explanation. Much as we all want the planning system speeded upalthough we may disagree on how the Government propose doing ita new concept that would take 23 years to be defined is enough to strike a chill down all developers spines, whether they work for national infrastructure projects or, dare I say it, on an extension to a house.
Mr. Betts: We all accept that national policy statements are the most important documents for the commissions decisions; that is what shapes and guides
any matters prescribed in relation to development of that description.
I presume that the Minister was indicating that at some point we might have further guidance through secondary legislation that might take on board some of the concerns about the omission of planning policy statements from clause 94.
On local development plans, my hon. Friend said that the local authority will be engaged right from the beginningfrom the consultation stage and through the hearing processand will be able to relate its own development plan to the proposal so that the commission has that advice. With that understanding and reassurance, I shall not press the amendments that are in my name.
Dan Rogerson: There are clearly concerns about the degree to which local views will be taken into account, and about existing policies on which there has been a great deal of consultation. However, as we want to make progress, and it is clear that the points have been made to the Minister, I shall not press my amendment.
Mr. Llwyd: We had a debate on the matter covered in my amendment No. 65 on another occasion and I have received separate assurances about it. The Minister assured us that, in any event, the views of the Environment Agency, the Countryside Council for Wales and Natural England would be taken into account in formulating the national policy statement, and that they would be kept fully apprised of what was happening.
Amendment, by leave, withdrawn.
Clause 94 ordered to stand part of the Bill.
Clause 95 ordered to stand part of the Bill.
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