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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 CommitteeTuesday 5 February 2008(Morning)[Mr. Eric Illsley in the Chair]Planning BillFurther written evidence to be reported to the HousePB 30 Friends of the
Earth Supplementary
PB 35 High
Peak Borough Council
PB 36
Friends of the Earth - Postcards
Clause 172Relationship
with other powers
10.30
am
Dan
Rogerson (North Cornwall) (LD): I beg to move amendment
No. 589, in clause 172, page 97, line 10, after
‘obligations)’, insert ‘subject to the
requirements that—
(i) in any
development where a contribution to affordable housing is secured by
the charging authority, such contribution is calculated without regard
to such CIL as may be
payable;
(ii) in cases where
sub-paragraph (i) applies, the payment of CIL may be reduced if the
return on the investment in the development as a whole can be shown by
the applicant to fall below a specified threshold;
and
(iii) the method for
calculating that threshold and the level of residual CIL payment
referred to in sub-paragraph (ii) shall be specified in CIL
regulations;’.
The
Chairman:
With this it will be convenient to discuss the
following amendments: No. 617, in clause 172, page 97, line 14, after
‘CIL’, insert
‘, and about how
to ensure that developers do not pay for the same infrastructure under
two different
powers’.
No.
610, in
clause 172, page 97, line 14, at
end add—
‘(3) Powers under
section 106 of TCPA 1990 and section 278 of the Highways Act 1980 shall
not be exercised to secure obligations to pay for and contribute
towards infrastructure of a class included within any CIL calculation
except—
(a) where the
developer has elected to off-set an element of CIL liability against a
section 106 agreement, provided for under section 168(4),
or
(b) where the infrastructure
is needed to access the site bound by the obligation and the need for
that infrastructure is wholly or mainly a consequence of the
development
site.’.
Dan
Rogerson:
I welcome you back to the Chair, Mr.
Illsley, as we continue our deliberations into the final
straight.
The
amendments tabled in my name are fairly straightforward. We touched on
whether the affordable
proportion of housing developments should be subject to community
infrastructure levy in earlier debates. This is a related but separate
matter.
Gains have
been made in affordable housing and in local
authorities strengthening their arm in negotiations with developers;
they are getting better at it and securing more affordable housing as
part of delivery. We do not want to see a conflict between CIL and the
affordable housing element of a scheme, in terms of what the developer
can afford to fund.
If
there is such a conflict, the amendment seeks to ensure that the
affordable housing element is handled first, so that as much affordable
housing is delivered as possible, and the CIL element is considered
after that. I hope that the Minister will support that principle. He
might tell me that that is fine, and that as far as he is concerned the
Bill will do that anyway, but I will be interested to hear his
justification for that.
The amendment is therefore
aimed at securing that progress towards achieving the affordable
housing rate that we all want, to ensure that we at least begin to
tackle the country’s affordable housing
crisis.
The
Minister for Local Government (John Healey):
I
can pretty quickly give the hon. Gentleman the
assurance that he seeks. He might recall that, on Thursday, on the back
of a Government amendment, the Committee discussed the nature of
affordable
housing.
Ultimately,
one of the principal drivers of the levy is to create a way in which we
can support and unlock housing growth, rather than hold it back or
prevent it. That was the reason that, last Thursday, we introduced the
Government amendment that would allow infrastructure to have an
incorporated definition of affordable housing. However, I also made it
clear that the Government intend that affordable housing will continue
to be secured through agreements, rather than through the obligation
process and the levy. That is our preferred way of operating. Clearly,
it makes sense to have that back-stop, should we require it, if the
fears of some that affordable housing might be choked off or reduced as
a result of the levy are
realised.
Dan
Rogerson:
May I briefly clarify one point? Obviously, we
are entering a period of negotiations as to how CIL will work and be
constituted, but it is not clear to me what powers are available to
individual local authorities in that regard. For example, perhaps years
in advance of a negotiation, local authorities might have set what CIL
means to them, including its level and the types of infrastructure that
it would fund. If they were at risk of not delivering through a
separate section 106 agreement, would they then able to revisit it, to
ensure the affordable housing element? If the benefit of CIL is that it
is clear to all developers in the local authority in advance what the
levy will be, how could they vary it in an individual circumstance if
the section 106 negotiations were not delivering the affordable housing
element?
John
Healey:
If the hon. Gentleman and others have further
concerns about this matter, they would be properly dealt with when we
move from the primary legislation to the process of production and the
settling
of charging schedules. However, he has registered his concerns clearly
this morning and I have taken note of
them.
Mrs.
Jacqui Lait (Beckenham) (Con): I apologise for
being slightly wrong-footed, but I was expecting
another group of amendments to be called before this one. My concerns
are very similar to those of the hon. Member for North Cornwall.
However, mine go a little further than just affordable housing. I am
concerned about ensuring that section 106 agreements can continue more
or less as they are, not just for affordable housing, but in other
areas because of the impact that the community infrastructure levy
could have on the willingness of developers to contribute to section
106
agreements.
Sometimes,
a properly agreed and managed section 106 agreement
will be more effective for local communities than CIL. If there is a
real need for something in a local community, a section 106 agreement
might be more acceptable to that community than an infrastructure levy
that is used to develop infrastructure outside the community that is
not of immediate benefit to it. Amendment No. 610 would deal with
concerns of that nature. If the Minister could reassure us on those
points, I would be
grateful.
John
Healey:
I think that I can reassure the hon. Lady in two
areas. First, I will reflect on her further concerns about the
interaction between section 106 agreements and CIL. There is an
implicit flex in the intention of the amendment that would make the
levy reflect contributions to affordable housing. She will appreciate
that there is difficulty in that because it would take us back to one
of the principal criticisms of the planning gain
supplement, with its site-specific arguments and evaluations. To adjust
levy liability for individual developments to reflect the level of
affordable housing would take us into the territory of greater
uncertainty, lengthy negotiations and inevitable
disputes—particularly under the terms of the
amendment—over rates of return on investment and how to define
and establish such matters.
Secondly, I understand the hon.
Lady’s concern that developers should not pay twice for
infrastructure, through section 106 agreements and through the levy.
Does that issue underpin her
concerns?
Mrs.
Lait:
The impact could be that developers pay twice, but
my concern is about which method has primacy. If a local community
wants a health centre more than it wants the replacement of a road
junction, could it insist on the use of section 106 rather than CIL to
ensure that it gets the health
centre?
John
Healey:
I think that the hon. Lady will find the document
that we published nearly two weeks ago helpful on this matter,
particularly paragraphs 64 to 66. Essentially, we suggest that section
106 agreements are appropriate in three areas: on technical matters
such as restrictions on the use of land; on site-specific impacts,
which are prerequisites for planning permission; and on affordable
housing. Those are the matters to which section 106 agreements are best
suited.
Amendment No.
610 would establish a boundary between section 106 agreements and the
levy by using
classes of infrastructure, whereby local planning
authorities could seek funding for certain types of infrastructure from
only one source: either from section 106 agreements or from the levy.
The associated amendment would give the Secretary of State the power to
provide guidance on how that might work.
In our
discussion paper, we specifically asked what approach should be taken
to that question, which I hope reassures the hon. Lady and members of
the Committee that we are working for the best solution. Through the
discussion document, I want to seek views and then formally consult.
Those are the two stages that I intend to go through on that. In fact,
the document floats an option that is stronger than guidance: a
statutory boundary between the two. That might not be the answer, but
it is one of the options that we have flagged up in the discussion
document, and that underlines the importance of the area.
Given that I have tried to
explain how important that set of concerns is, how seriously we are
taking it and the work that we have got in train to sort out the best
solution, I hope that the hon. Members who tabled the amendments will
feel that they have been useful probing amendments and will not press
them to a
vote.
Mr.
Clive Betts (Sheffield, Attercliffe) (Lab): I apologise
for not being here at the beginning of the debate. My hon. Friend the
Minister was just dealing with amendment No. 617, which stands in my
name. Certainly, the issue raised is in the minds of organisations such
as the British Property Federation. In a debate last week, I asked
whether a developer who paid for affordable housing on a particular
site under section 106—negotiable with the local authority, as
all section 106 agreements are—would be subject at the same time
to CIL, particularly if CIL was on a fairly rigid formula. That relates
to some of our discussions last week on how to measure CIL, and I
accept that there are still a lot of discussions and negotiations to be
had on whether it is a rigid formula.
A developer could come along
who wants to negotiate 106 but feels that, despite giving away more on
106, he will still end up paying the same amount of CIL. Alternatively,
will CIL, in practice, be more of a negotiation between the developer
and the local authority? Although I accept that it would reduce the
certainty that developers look for in some cases, it might also allow
precisely that bit of leeway for a developer to come along and ask,
“Well, I would like a little more work on highways on site, but
will agreeing to that under 106 reduce the CIL I pay, or will CIL be
fixed in any case? Should I really give nothing away on 106 because I
will not get the benefit when CIL is calculated?” Will the
Minister assure me that there is still room for negotiation between the
various parties that he and his officials are talking to before a final
scheme is
determined?
John
Healey:
I shall not go over all the points that I made
before my hon. Friend joined us, but the short answer is that there is
plenty of scope and a process for detailed further discussion. I remind
him, however, as we have said at several stages of our discussions,
that our principal intent is to set out the levy in a charging schedule
and, where possible, to avoid uncertainty, site-specific negotiation
and a lack of predictability
and openness about the process, as in the situation that he cited. In
such a situation, there could be disputes about the
right and realistic expectation of a developer’s contribution on
a site-by-site basis. In relation to his concerns, I am anxious that we
are not dragged back to that sort of situation.
Clearly, there is plenty of
discussion still to be had on how the proposal might work in practice,
but my hon. Friend generally underlines the case that I made to the
Committee last week for affordable housing principally being best
suited to 106 agreements and not to specification as an eligible type
of infrastructure that could be paid for under the levy. We made the
amendment last week as a back-stop. If the level of affordable housing
that the country badly needs, and that the Government badly want to
see, starts to dry up as a result of the proposal, we would have the
capacity in primary legislation to designate affordable housing as an
allowable form of infrastructure to be supported by the levy. That is
not our intention, however, as we believe that affordable housing is,
as now, best dealt with through section 106
agreements.
10.45
am
Dan
Rogerson:
The hon. Member for Sheffield, Attercliffe has
hit on the point that I was trying to make, although not very clearly
or eloquently, in my intervention on the Minister about the conflict
between a process of negotiation under 106 and something that is fixed
in advance. One of the benefits of CIL is that it is transparent.
Everyone will know what is expected of them before they bring their
development to the table. If a problem comes to light
in relation to the implementation of CIL, that will impact on
negotiations under 106.
While I am pleased to hear that
CIL can be revisited to take account of the amendment we discussed last
week, it would be too late for many developments that might already
have taken place. As I have mentioned previously, I have 70 parishes in
my constituency, and some are very small—if
one development has happened, that will be it for the next 10 years.
That is the cause of my concern. I will not press the amendment to a
vote but further examination is needed so that we do not lock the
stable door after the horse has bolted and lose out on an opportunity
to get affordable housing in some areas. I beg to ask leave to withdraw
the
amendment.
Amendment,
by leave,
withdrawn.
Amendments
made: No. 568, in clause 172, page 97, line 11, at end
insert—
‘(1A) CIL
regulations may include provision about the exercise of any other power
relating to planning or
development.’.
No.
569, in
clause 172, page 97, line 12, leave
out from ‘how’ to ‘and’ in line 14 and
insert
‘a power relating to planning or
development is to be
exercised;’.
No.
570, in
clause 172, page 97, line 14, at
end add—
‘(3) Provision may
be made under subsection (1) or (1A), and guidance may be given under
subsection (2), only if the Secretary of State thinks it necessary or
expedient for—
(a)
complementing the main purpose of CIL
regulations,
(b) enhancing the
effectiveness of CIL regulations,
(c) preventing agreements, undertakings or other
transactions from being used to undermine or circumvent CIL
regulations,
(d) preventing
agreements, undertakings or other transactions from being used to
achieve a purpose that the Secretary of State thinks would better be
achieved through the application of CIL regulations,
or
(e) preventing or
restricting the imposition of burdens, the making of agreements or the
giving of undertakings, in addition to
CIL.
(4) CIL regulations may
provide that a power to give guidance or directions may not be
exercised—
(a) in
relation to matters specified in the
regulations,
(b) in cases or
circumstances specified in the
regulations,
(c) for a purpose
specified in the regulations,
or
(d) to an extent specified
in the regulations.’.—[John
Healey.]
Question
proposed, That the clause, as amended, stand part of the
Bill.
The
Chairman:
With this it will be convenient to
discuss new clause 5—Abolition of planning
contributions
‘Sections
46 (planning contribution), 47 (planning contribution: regulations),
and 48 (planning contribution: Wales) of the Planning and Compulsory
Purchase Act 2004 are
omitted.’.
Mrs.
Lait:
This will be brief as the new clause is intended to
elicit information from the Minister. Clause 172 is commonsensical and
we do not have any problems with it, but the new clause relates to
planning contributions under the 2004 Act. Given that we are talking
about CIL and section 106, we would be grateful if the Minister could
advise us on the role of planning contributions under that Act. We
might have a third stream of contribution that could clobber
developers, particular in a market where land
properties and values are going down, and it would make it increasingly
difficult to get the developments that he is looking forward to
seeing.
Given that the planning
contribution system was designed to replace section 106, the repeal was
not included in the 2004 Act. However, now that we are moving to
introduce the levy, I have considerable sympathy with the hon.
Lady’s argument. I will look further at her proposal and return
to the matter on Report.
Mrs.
Lait:
I am grateful to the Minister and look forward to
Report, because we can chalk that up as the No. 1
possibility.
Question put and agreed
to.
Clause 172,
as amended, ordered to stand part of the
Bill.
Clause
173 ordered to stand part of the Bill.
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