Clause
94
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.
Mr.
Betts:
I beg to move amendment No. 330, in
clause 94, page 43, line 37, at
end insert—
‘(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
authority’s 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 Government’s 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.
4.15
pm
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
legally to reach a decision that cannot be challenged, if they decide
that a planning policy statement or local development plan is not
relevant for them to consider. That is quite a difficult position to
understand. 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
account—if only to disregard them as inconsistent with the
national policy statements—the Secretary of State’s 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 Government’s attempt to change the
definitions, or whether there is some advice that “important and
relevant” equals “material considerations”. If
that is the Government’s 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 not—we keep being assured that it is not—the
Government’s 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,
have to amend our amendment to take out “relevant” and
insert “consistent”. I am sure that the Government
recognise that this is a consequential amendment and that, in essence,
it makes the point that has already been
made. 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 consideration—I use that phrase rather than
“important and relevant” for the sake of the Government
and their policy—in the decisions of the panel and
council.
The
Chairman:
I call Dan
Rogerson.
Dan
Rogerson:
Thank you, Mr. Illsley, for waking me
up, as well as for calling on me to
speak.
Dan
Rogerson:
Not because of the hon. Lady’s 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 community’s
future.
The proposal
should be consistent in some way with the local authority’s
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 statement—all members of the
Committee have expressed strong support for that concept—except
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
would outweigh its benefits, and that other conditions that might be set
out in secondary legislation are met. By and large, the amendments in
the group would widen—some might say dilute; I would say
confuse—that clear framework for decision making by the
IPC. 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 authorities—local planning
authorities—and 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 fits—or perhaps does not fit—with 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 fits—or perhaps fails to fit—with 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. Lady’s 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
commission can explain as being important and relevant to the decision.
I submit to the Committee that the Bill is much clearer about what
should and should not be taken into account by decision makers
alongside, or in addition to, the national policy statement. I hope that my explanation has
helped and that the Committee will not feel it necessary to support the
amendment.
4.30
pm
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
concepts—important 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
considerations—those 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 Minister’s explanation. Much as we
all want the planning system speeded up—although we may disagree
on how the Government propose doing it—a 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 commission’s decisions;
that is what shapes and guides
them, and they will have to be approved by Parliament. I am not sure
whether there will be secondary legislation to flesh out subsection
(2)(b), which deals with
“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 beginning—from the consultation
stage and through the hearing process—and 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.
Mr.
Betts:
I beg to ask leave to withdraw the
amendment.
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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