Planning Bill

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Schedule 6

Mr. Dhanda: I beg to move amendment No. 614, in schedule 6, page 129, line 4, column 2, at beginning insert—
‘Section 61A(1).’.
The Chairman: With this it will be convenient to discuss the following amendments:
No. 615, in schedule 6, page 129, line 10, at end insert—
‘In Schedule 4A, paragraph 2(4) and (5).’.
No. 611, in clause 188, page 106, line 2, after ‘154,’ insert
‘[local development orders: removal of requirement to implement policies],’.
Government new clause 29—Local development orders: removal of requirement to implement policies .
Mr. Dhanda: Government amendments Nos. 614, 615, 611 and new clause 29 make a change to the requirements for the making by local planning authorities of local development orders. An LDO grants planning permission for the type of development which it specifies. It can apply to a specific site, an area or across the whole of a local authority area. It thereby removes the need to make an application for planning permission, in almost the opposite way to the article 4 direction that we discussed under part 9.
The Town and Country Planning (General Permitted Development) Order 1995 sets the national baseline for permitted development. The Government have made clear their desire to extend the scope of permitted development generally. However, alongside this aim, Ministers also want to make it easier for permitted development rights to be amended at the local level to reflect local circumstances, either extending them through the use of an LDO or restricting them by the making of an article 4 direction.
The power to make an LDO came into force on 10 May 2006 and as yet no LDOs have been made. There may be a number of reasons for this, including the national reviews of householder permitted development that we have already carried out. However, we believe that other changes can be made that might help streamline the process of making an LDO. One change is to remove the requirement for the Secretary of State’s approval before the LDO is made. That mirrors what we also propose for article 4 directions, and we intend to amend secondary legislation to achieve that.
The second change relates to the current restriction whereby a local planning authority can only make an LDO to implement a policy contained in a development plan document, or a local development plan in Wales. We believe that making that a prerequisite can cause unnecessary delay in the making of an LDO, given the time and resources that would be needed to see one adopted in the relevant development plan. As we want to facilitate the use of LDOs, we propose to simplify the process by removing that requirement.
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New clause 29(2) therefore removes the requirement, laid out in section 61A of the 1990 Act, that LDOs can only be made to implement policies in a development plan document or local development plan. Subsections (3) and (4) make consequential amendments to the 1990 Act. The existing requirement to consult all those likely to be affected by the making of an LDO and to take into account representations made before it comes into force are sufficient safeguards to ensure the appropriate use of the power. Amendment Nos. 611, 614 and 615 are consequential amendments to the commencement provisions in clause 188 and the repeal provisions in schedule 6.
Mrs. Lait: I am grateful to the Minister for explaining new clause 29 and the consequential amendments in greater detail, but will he reassure me on some of the issues that have been raised, particularly by the Campaign to Protect Rural England? He said that the Government have been in negotiations, and I wonder what the outcome of those negotiations with the CPRE have been. It has certainly indicated to me that it believes the clause to be fundamentally flawed because it would prejudge the detailed and development control planning process and the public consultation that underlines it. That is, of course, a theme that has emerged from the Opposition Benches throughout our debates. If consultation is curtailed and local people do not feel that they have an adequate opportunity to register their concerns and objections, planning and development will risk not being acceptable to or accepted by local communities.
The CPRE also thinks that that could undermine the “plan, monitor and manage” approach to housing site allocation and release greenfield land for development, which the Opposition are not in favour of. A consequence of that could be that housing is in the wrong place at the wrong time. The CPRE is also concerned about damage to the ability to protect designated landscapes such as national parks and areas of outstanding natural beauty, which follows on from the previous point.
The CPRE believes that the environmental impact assessment could be made on the basis of inadequate information and would be unable to take account of the likely cumulative effect of development, as we can see when one development follows another, either creeping along roads or extending a village into a town without anyone really wishing it to happen—although they would certainly notice it happen. All of that can be open to our old friend, legal challenge. I would be grateful if the Minister could reassure us on all of those points and confirm that the Government are still in consultation with the CPRE and other bodies that will inevitably have similar concerns.
Mr. Dhanda: I am grateful to the hon. Lady for making the point about the CPRE, because it is important that we consult it when taking those steps and, as I understand it, that has been ongoing within the Department. The key thing for her to consider is that the measure is about flexibility and enabling local authorities to use the power as they see fit, through proper consultation at a local level. I do not envisage the threats to greenfield land arising from the way in which local planning authorities make the small-scale changes that we are talking about. I am quite happy to put that on the record. It is important that such things are done through local authorities so that there is democratic accountability.
The Government’s approach is the right way to proceed. Hopefully, we will have continued discussion and consultation with the CPRE and will be able to reassure it. I am happy to give such reassurances on the record. However, we must also provide local government with the flexibility that it has in article 4 directions, where certain planning rights can be taken away to allow for small-scale developments.
Mrs. Lait: I am grateful to the Minister for that response, from which I take it that he can assure me that discussions with the CPRE and other bodies with similar concerns will continue. Perhaps the outcome of such discussions will be reflected in amendments on Report.
Mr. Dhanda: The only further thing to add is that there will be a further round of consultation, of which I am sure the CPRE and others will want to be part.
Amendment agreed to.
Mrs. Lait: I beg to move amendment No. 217, in schedule 6, page 129, line 4, column 2, at beginning insert ‘Section 74(1)(b)’.
The Chairman: With this it will be convenient to discuss the following amendments: No. 218, in schedule 6, page 129, line 4, column 2, at beginning insert ‘Section 101’.
No. 220, in schedule 6, page 129, line 8, at end insert ‘Section 302’.
No. 219, in schedule 6, page 129, line 10, at end insert ‘Schedule 8’.
No. 221, in schedule 6, page 129, line 10, at end insert ‘Schedule 15’.
No. 222, in schedule 6, page 129, line 20, at end insert—
‘Section 43(1) in so far as it relates to section 70B of the TCPA, 43(2), 43(3) in so far as it relates to section 81B of the Listed Buildings Act, and 43(4) in so far as it relates to section 81B.
Sections 45 to 48.
Section 50.’.
No. 223, in schedule 6, page 129, line 21, at end insert—
‘Planning-gain Supplement (Preparations) Act 2007 (c. 2)
The whole Act.’.
Mrs. Lait: From our point of view, amendment No. 223 is the most important in the group because it would repeal the Planning-gain Supplement (Preparations) Act 2007 and take it firmly off the statute book. Throughout our discussions on the community infrastructure levy, we made it clear that while the planning gain supplement remains on the statute book, people will be concerned that at some point the Government will bring it back. Their commitment to CIL is suspect until the 2007 Act is repealed. We fought very hard against that Act while it was going through the House and are concerned that it is still on the statute book. There is a broader philosophical debate that to make CIL work properly, it would be an act of good faith for the Government to repeal PGS. We are therefore helping them down a road that I am sure they want to take.
On amendment No. 217, we do not believe that the Secretary of State needs to make a direction because the Town and Country Planning Act 1990 does not otherwise prevent planning permission from being granted that is inconsistent with the development plan. The provision is unnecessary and we recommended its removal.
The amendments are complex and I shall outline the reasons behind them. The revocation of section 101 and schedule 8 of the 1990 Act would remove the power of the Secretary of State to appoint a planning inquiry commission to inquire into proposed development. I referred to this in our earlier debates on the infrastructure planning commission, which, equally, we do not like. The planning inquiry commission was first mentioned in legislation in 1968, but the provision to establish it was never used. The provision was repeated in legislation in 1990, but it was never used. Again, we are trying to get the statute book into better order and wish to repeal the power to establish the planning inquiry commission because it is redundant.
Amendments Nos. 220 to 221 relate to section 302 and schedule 15, for the enforcement against breaches of planning control carried out during the second world war. I do not think that any of us in this room remember the second world war. We can understand potentially why that provision was included when the Town and Country Planning Act 1947 came into force—[Interruption.] Does the Minister wish to intervene?
Mr. Dhanda: I will explain in a moment.
Mrs. Lait: I look forward to it.
When the 1947 Act first came into force, obviously there was a need to repair the damage caused by the second world war. Possibly, we have moved on sufficiently and can remove those provisions from the statute book. I look forward to hearing any reasons as to why not.
Amendment No. 222 would repeal various development control provisions in the Planning and Compulsory Purchase Act 2004 which have not been brought into force, including those that we originally talked about on planning contributions. Sections 45 and 50 of that Act are relevant.
The amendment would tidy up legislation on the statute book which is not being implemented. I would have thought that it would be a demonstration of good governance by the Government, to which they maintain that they are committed, if they were to clear out some of the redundant provisions in various pieces of legislation. Primarily, we want to see the 2007 Act repealed in full.
Mr. David Curry (Skipton and Ripon) (Con): We are dealing with the Banquo’s ghost of the planning-gain supplement. It is a spectre that has flickered in and out of our planning law for many years. It has been tried on a number of occasions and has failed each time, first, because it is a daft idea and, secondly, because the parties that were in opposition then made it clear that they would not put up with it when they got into government. Therefore, everyone has had a good interest in ensuring that it will not work. In fact, the PGS has had a deleterious effect.
My hon. Friend is right in that we should help the Government to clear out the debris in the attic. It is said that the two most painful things that can happen are to be divorced and to have to move house. I am no expert in the former; as to the latter, turning out the attic is the main traumatic event. We would like to help the Government clear out this particular attic.
In the attic, I still think that there is a rule that I must go and practise archery in the churchyard every Sunday afternoon, although no doubt the rules of the Health and Safety Executive would get in the way if I ever attempted to put that into practice. In fact, the executive’s motto seems to be, “Go and find out what they are doing and tell them to stop it.” That is rather like the experience of Field Marshal Bernard Montgomery, who said in his autobiography that his nanny used to be given instructions by his mother to go and find out what Bernard was doing and tell him to stop it. The Health and Safety Executive has clearly adopted the same motto.
Mr. Llwyd: I do not know whether the right hon. Gentleman had time to read The Times this morning, which reported that the annual pancake race in Ripon was now off the agenda because of health and safety issues.
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When the Minister was at the Treasury he had a certain paternity for the Bill. No doubt he has an attachment to it, having acted as sort of “midhusband” during his time there. The other thing about this wretched measure is that it featured in the Barker report. The Government are prone to commissioning reports and then regarding them as a form of holy writ to which they constantly refer. The Barker report contained some sensible things but some pretty daft things too. The sage of Thaxted did not get it right on every occasion and Kate Barker did not get it right on this one.
The real question is why the provision should remain on the statute book. What do the Government want to do by keeping it? What is the purpose of that? It has been overtaken by a much more sensible measure which, subject to the way it operates, we all agree is a sensible way forward. We do not want this ghost lurking in the woodshed.
Mr. Richard Benyon (Newbury) (Con): I do not want to mix analogies here, but at the public evidence hearing with the Minister, it was not so much Banquo’s ghost, but a sword of Damocles that the Government threatened to hang over us if we did not support CIL. It is retained as a threat.
Mr. Curry: I suppose that must be the case, but the Government consulted the industry. They have set out in the explanatory document how the levy would work. It lists how the concept of CIL is already functioning in a number of places. For once we have a measure that has been tested and been shown to yield benefits. We do not need to think that CIL is going to fail. It is voluntary and does not need to be applied. Why do we have this embryonic measure in reserve? If the Government are going to keep it, what on earth is it for?
Are the woods of Dunsinane going to march on communities that fail to apply CIL and threaten them with the PGS? I hope that the Minister will say that they have put it there pour encourager les autres, as the French might say. They want to encourage the industry to engage in real consultations about a more sensible way forward, but they have a more sensible way forward. It works and therefore we can put Banquo’s ghost safely back to bed. I hope that the Minister will conspire with us in doing that. Then the Committee can share one heroic achievement.
Mr. Dhanda: I am afraid that I cannot promise everything that the right hon. Gentleman would like, even on pancake day in Ripon, and I commiserate with him on that loss.
Amendment No. 217 is specifically about going against one’s own local development plan by sticking a supermarket in an out-of-town location, for example. As things stand, the Secretary of State can call it in. That would not be the case with the amendment. Whether it was deliberate or consequential, I hope that the hon. Lady withdraws it.
Amendments Nos. 218 and 219 would repeal section 101 and schedule 8 of the Town and Country Planning Act 1990, which provide for the constitution of planning inquiry commissions, as the hon. Lady suggested. I accept that there has never been a planning inquiry commission. Indeed, there is no prospect of one either. I sympathise with the thrust of the amendment, although we would have to check whether any consequential changes were needed before considering it further. As the provision in the 1990 Act is effectively harmless, its removal is not a priority and there are other pressures on parliamentary time.
Amendments Nos. 220 and 221, which hark back to the second world war, would repeal section 302 of the 1990 Act and its associated procedural schedule 15. Section 302 enables local planning authorities to enforce against wartime breaches of planning control by the Crown for five years after the land has been sold, and although we know of only two or three cases in the past 30 years, the provision is not entirely dead. For example, it could have been used as a consequence of the Government’s deciding to build an airfield without planning permission during the war years. It could also have occurred if garages, for example, had been built without permission at the time. However, if a developer were to purchase that land now they may well apply for planning permission on the wider footprint of the area because of that development. The clause allows us enforcement to prevent that from happening for up to five years after the purchase.
Although I accept that the likelihood of any further cases arising is increasingly remote, we should not dismiss the possibility and close the door on potentially legitimate enforcement. The Department had not received any representations on section 302 prior to amendments Nos. 220 and 221 being tabled, which suggests that the continued existence of section 302 is not a significant cause of concern among local authorities or practitioners.
Amendment No. 222 would repeal provisions in the Planning and Compulsory Purchase Act 2004 that have yet to come fully into force—section 43(1) in so far as it relates to section 70B of the 1990 Act and section 81B of the Planning (Listed Buildings and Conservation Areas) Act 1990—which allow a local planning authority to decline to determine an application for planning permission, listed building consent or conservation area consent where an identical or similar application is already under consideration.
The practice, known as twin-tracking, is a device sometimes used by developers so that if a planning authority fails to make a decision within the statutory determination period of eight weeks for minor applications and 13 weeks for major applications, they can appeal on one application while leaving the other application to continue to be considered by the local planning authority. We recognise that that can be a waste of local resources, but we have not yet commenced the provision because, as we indicated during the passage of the measure, the power should not come into force until the performance of local planning authorities has improved. Given the significant improvement in their performance in recent years, twin-tracking can only reduce, but we cannot accept the amendments as we want to see a continued improvement in the eight and 13-week targets.
I cannot accept the proposal in amendment No. 222 to repeal section 25 of the 2004 Act. It relates to simplified planning zones and would require them to be identified in regional spatial strategies. As the hon. Lady pointed out, that provision has not been commenced. Repealing the provision has some attractions with regard to tidying up the planning zones, but the amendment is not the most appropriate means of doing so in this case; nor is it the right time to do so, because we are seeking to look more widely at simplified planning zones, their role and relevance now that local authorities can make use of local development orders to achieve the same ends.
To that end, we published a consultation draft of “Planning Policy Statement 4: Planning for Sustainable Economic Development” in December, which includes a specific question on whether we need a separate policy on simplified planning zones. The consultation period on draft PPS 4 is open until mid-March, and that will allow local authorities, industry and the public an opportunity to give their considered views on the merits of that policy area. It is right and proper that we allow that time before making any decisions on it. To act now would be premature, so I cannot accept the repeal of section 45.
The amendment would also repeal the provisions in the 2004 Act that allow for the creation by regulations of a system of planning contributions. My hon. Friend the Minister for Local Government mentioned that in connection with new clause 5, which would have the same effect, and we cannot accept the amendment for the reasons that he gave.
The amendment would repeal the provision in section 50 of the 2004 Act and thereby allow a local planning authority, for a limited period of time, to share jurisdiction over the determination of a planning application alongside the Planning Inspectorate in cases where there has been an appeal on the grounds of non-determination. That measure would provide extra flexibility for authorities to decide cases that were originally put to them, which might be helpful when the reason for non-determination might simply be the cyclical nature of Committee meetings, for example. We have not yet implemented that provision because we are engaged in a programme of reform of the appeals system, which we would like to complete before considering any further changes of that sort.
Amendment No. 223 would repeal the planning gain supplement. It is important to recall that the Planning-gain Supplement (Preparations) Act 2007 is a short, straightforward, three-section Act that cannot be used to introduce PGS. It only allows certain authorities to incur preparatory expenditure in getting ready for PGS, does not permit the Government to introduce the PGS, and would require new primary legislation, as was made clear during its passage.
Mr. Curry: So what is its point?
Mr. Dhanda: I shall come to that.
Mr. David Jones (Clwyd, West) (Con): How much of that expenditure has actually been made?
Mr. Dhanda: As I said, it is a short, three-section Act, and that is as far as we have got with regard to PGS. There is no need to repeal the preparations Act, as it is only a narrow, preparatory measure designed to ensure the regulation and probity of Government expenditure in accordance with Government accounting rules. It is important that the preparations Act cannot be used to impose PGS, and further primary legislation would be needed to do so. That in itself is a strong enough commitment from the Government, and one that hon. Members should accept. It would require further primary legislation to progress with the PGS.
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Mr. Curry: The Minister has demonstrated that there is no earthly use for the legislation on the PGS. Nothing can be done with it and nothing has been done because of it. It is there because it is there because it is there. Why not get rid of it? Why should it sit there like a barnacle on the hull of the planning system, having no earthly use, being totally inedible and slowing things down? It is a pointless piece of legislation. The Minister’s only case is that the Government passed it, but it can do nothing. It is sitting there, dead in the water and all that it can do is impede the passing traffic.
Mr. Dhanda: There is a danger of there being a little paranoia on the Opposition Benches about the existence of an Act that requires further primary legislation to go through this House before it takes effect. Hon. Members should accept the Government’s commitments on the PGS. It is not unusual for measures to exist that have gone through the House and have not been withdrawn. That is consistent with many other measures that we have seen, not least those that I talked about when discussing this string of amendments.
Mrs. Lait: It is surely not a matter of pride for the Government to have legislation on the statute book that they do not expect to implement, that requires other primary legislation for it to be used, that they have not spent any money on and that they are not defending, but replacing. It should be a matter of pride for them to get rid of unnecessary legislation.
Mr. Curry: Would not a Government obsessed with recycling feel that this legislation should be disposed of in a hygienic manner? The Government seem to be putting it into landfill.
Mrs. Lait: An advert that I hear from time to time on my car radio says that it is composed of reused soundbites. I am afraid that the Minister sounds like he is recycling his and his Government’s soundbites.
I do not wish to rehearse the arguments that I have put forward for the other amendments. We have received a glimmer of hope on some of them, such as the commitment made by the Minister for Local Government. We will go away and think about them. However, on many of these issues the Government have said, “It is our legislation and we dare not repeal it because it will show that we are weak.” They would actually be strong if they were to repeal things. It would show that they have every intention of cleaning up the statute book.
Mr. Llwyd: The Under-Secretary’s last remarks were that it is commonplace to have redundant legislation. Will he give examples of where that has happened, by giving examples not of Acts that have become redundant over time, but of recent pieces of legislation that have been put on the statute book for no earthly reason at all?
Mrs. Lait: I have great sympathy with that request. I, too, would like to see such a list. However, I suspect that the Minister, with the best will in the world, could not produce it off the top of his head, although many of us probably could. Perhaps we can put a request to him that by Report stage he comes back to us with that list. Meanwhile, on the grounds that we will go away and think about these matters, we press the Government to think very clearly about introducing—
Mr. Curry: A confidence-building measure.
Mrs. Lait: As my right hon. Friend says, the Government should have sufficient confidence in themselves to repeal redundant legislation. That would send a good signal to all of us who feel weighed down by unnecessary legislation. On the grounds that we are giving them the opportunity to do the right thing and on the basis that we can return to these matters on another occasion, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Mrs. Lait: I beg to move amendment No. 362, in schedule 6, page 129, line 4, column 2, at beginning insert ‘Section 2B(6)(b)’.
The Chairman: With this it will be convenient to discuss the following: Amendment No. 363, in schedule 6, page 129, line 10, at end insert—
‘Planning (Listed Buildings and Conservation Areas) Act 1990 (c.9)
Sections 74 and 75.
In sections 81A and 81B, subsections (5) and (8).
In section 82F, the words “or conservation area consent”.
In section 91, the words ““conservation area consent” has the meaning given in section 74(1);”.
In Schedule 4, paragraph 4, the words “and 74”.
In Schedule 4, paragraph 6, the words “or conservation area consent”.
In Schedule 4, paragraph 7, the words “74 and 75”.’.
Amendment No. 364, in schedule 6, page 129, line 21, at end insert ‘Section 59(4)(f)’.
New clause 10—Abolition of conservation area consent
‘(1) After section 179 of the Town and Country Planning Act 1990 there is inserted—
“179A Demolition in conservation areas
(1) A person commits an offence if the person executes or causes to be executed any works of demolition of a building in a conservation area which constitute the carrying out of development without the required planning permission.
(2) Without prejudice to subsection (1), if a person executing or causing to be executed any works of demolition of a building in a conservation area fails to comply with any condition relating to the demolition works and attached to a planning permission, he shall be guilty of an offence.
(3) In proceeding for an offence under this section it shall be a defence to prove the following matters—
(a) that works to the building were urgently necessary in the interests of safety or health or for the preservation of the building;
(b) that it was not practicable to secure safety or health or, as the case may be, the preservation of the building by works of repair or works for affording temporary support or shelter;
(c) that the works carried out were limited to the minimum measures immediately necessary; and
(d) that notice in writing justifying in detail the carrying out of works was given to the local planning authority as soon as reasonably practicable.
(4) A person who is guilty of an offence under this section shall be liable—
(a) on summary conviction, to imprisonment for a term not exceeding six months or a fine not exceeding £20,000, or both; or
(b) on conviction on indictment, to imprisonment for a term not exceeding two years or a fine, or both.
(5) In determining the amount of any fine to be imposed on a person convicted of an offence under this section, the court shall in particular have regard to any financial benefit which has accrued or appears likely to accrue to the person in consequence of the offence.”
(2) In sections 81A and 81B of the Planning (Listed Buildings and Conservation Areas) Act 1990 references to “a relevant consent” or “relevant consent” shall be replaced by “listed building consent”.
(3) In paragraph 5 of Schedule 4 to the Planning (Listed Buildings and Conservation Areas) Act 1990 for the words “to 75” there is substituted “to 73”.
(4) The Secretary of State may by regulations make transitional provision consequent upon the abolition of conservation area consent.
(5) The regulations made under subsection (4) may in particular—
(a) make provision in respect of conservation area consents and planning permissions granted before subsection (1) comes into force;
(b) make provision in respect of applications for conservation area consents and planning permission made before subsection (1) comes into force.’.
Mrs. Lait: New clause 10 is the key, as the other amendments are consequential upon it. I am sure that many of us have encountered constituency cases in which buildings outside listed areas, but which are precious to the community, have been demolished without consent. We are trying to protect those buildings, so that planning permission must be granted to demolish them. Many towns and villages have cherished buildings that are part of the townscape or of the village that people love, which are sometimes demolished without permission.
Sadly, in my constituency there is now only a site where once there was Lavender cottage. I saw it being knocked down on a Saturday morning, which made me suspicious. I got hold of the planning department, but, by the time the bureaucracy had ground into action, the building was unreplaceable. Needless to say, there has subsequently been a planning application for multiple dwelling units on that site. Meanwhile, the street in which the house existed is altered fundamentally because of the demolition. Although I have personal experience of that, I know that I am not alone in wishing that there were greater controls over demolition of buildings. That is why I have tabled the new clause.
Mr. Dhanda: I hope that I have some better news for the hon. Lady, although I am resisting new clause 10.
The Department for Culture, Media and Sport is planning to publish a draft heritage protection Bill in the spring. It will contain provisions to abolish conservation area consent as a separate consent and merge it with planning permission. What does that mean? It is intended that, at the same time as the Bill comes into force, amendments will be made to the demolition direction and the general permitted development order to provide that demolition and partial demolition in a conservation area, to which the hon. Lady alludes, is development and will require planning permission. It will not be permitted development simply to knock down those buildings in conservation areas. We therefore believe that any changes in new clause 10 would be better sited and considered within the DCMS Bill.
Mrs. Lait: I am grateful to the Minister for his response, but there is more than one form of conservation area. There are local conservation areas as well as nationally recognised ones. Will the provision apply to a local conservation area?
Mr. Dhanda: I apologise to the hon. Lady for not having the details of the draft Bill to hand, but all this discussion will be pertinent to that Bill and to consideration of it in Committee. Rather than rushing to try to include something in this Bill, I hope that she will go away and consider that and take a closer look at what is happening in the legislation proposed by the DCMS.
Mrs. Lait: I am grateful to the Minister for those reassurances. We look forward to the DCMS Bill. I hope that that Department will hear what we are saying. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Mrs. Lait: I beg to move amendment No. 365, in schedule 6, page 129, line 4, column 2, at beginning insert ‘In section 193(3)(a) the word “and”’.
The Chairman: With this it will be convenient to discuss the following: Government amendments Nos. 612 and 613.
Government new clause 30—Appeals: miscellaneous amendments.
New clause 9—Lawful development certificates—
‘(1) The Town and Country Planning Act 1990 is amended as follows.
(2) In section 193(3) (certificates under sections 191 and 192: supplementary provisions), at the end of paragraph (a) “and” shall be omitted, and there shall be inserted after paragraph (b)—
“(c) not to determine an application for a certificate under section 191 or 192 before the end of such period as may be prescribed;
(d) to publicise the application or require the applicant to publicise the application in such manner as may be prescribed;
(e) to take into account in determining such an application such representations, made within such period, as may be prescribed; and
(f) to give to any person whose representations have been taken into account such notice as may be prescribed of their decision.”
(3) In section 195 (appeals against refusal or failure to give decision on application) there shall be inserted after subsection (1)—
“(1A) Any appeal under this section shall be made by notice served within such time and in such manner as may be prescribed by a development order.
(1B) The time prescribed for the service of such a notice must not be less than—
(a) 28 days from the date of notification of the decision; or
(b) in the case of an appeal under subsection (1)(b), 28 days from the end of the period prescribed as mentioned in subsection (b) or, as the case may be, the extended period mentioned in that subsection.”.’.
Government new schedule 1—‘Appeals: miscellaneous amendments.
Mrs. Lait: This is a friendly agreement between us and those on the Government Front Bench because we are trying to do exactly the same thing but are using different formats to do it. If the Minister disagrees with that, I look forward to hearing why, but my reading of the proposals is that the Government are trying to do the same as us.
Mr. Dhanda: I congratulate the hon. Lady on wishing to introduce time limits for making an appeal against a local planning authority’s refusal to issue a lawful development certificate, and to set the minimum time limits that may be prescribed for making an appeal. It is gratifying that we are on the same wavelength in that respect. As Opposition Members will be aware, paragraph 3 of new schedule 1 will make similar amendments to section 195 of the Town and Country Planning Act 1990, together with other changes that I shall come to in a moment. However, we do not agree with the proposed amendments to section 193, because there is no need for those requirements.
As the Committee may be aware, there are two types of lawful development certificate. The first applies where the applicant asks whether development that has taken place is lawful development—essentially, whether it is immune from enforcement action or benefits from permitted development rights. There is no reason for that to receive publicity, because the development already exists, so why would we want to advertise it in a local newspaper or otherwise? Whether the development is or is not lawful is a matter between the applicant and the local planning authority.
In the second case, the applicant asks whether proposed development can be done without planning permission—generally, whether it benefits from permitted development rights. Again, there is no need for publicity, because the development in question by definition will be minor. Requiring publicity for lawful development certificates would be entirely disproportionate. If development does not need planning permission, third parties need not be involved.
If hon. Members are concerned that applicants for lawful development certificates might not be telling the truth, I remind them that the burden of proof is on the applicant. It is therefore for the applicant to back up their claim—for example, by saying that the development in question was undertaken so long ago that it is immune from enforcement action. An example might be an extension to a house that was put up several years ago. We are saying that there is no need to publicise or advertise that, but it would be incumbent on the applicant to prove that the development had been there for a sufficient period.
Mr. Llwyd: I understand the logic of what the Minister is saying, but may I put this example to him? The farming community often have permitted development rights to put up, for example, a byre or something similar. What if a farmer decided to put up a large byre next to a housing estate and to keep thousands of pigs in it? How, if at all, would the occupiers of the adjoining estate express their views?
12 noon
Mr. Dhanda: I am not sure that I quite understand the hon. Gentleman’s point.
Mr. Llwyd: I shall say it again. A farmer will often have permitted development rights to put up an agricultural building. Let us say that he or she decides to put up an extensive byre next to a council estate or other housing estate and to fill it with thousands of pigs. What procedure would there be for the people living nearby to express their opinion about the propriety or otherwise of permitting that development?
Mr. Dhanda: My understanding is that such developments are not minor, but very significant. The detail of our proposals will obviously have to be laid out in regulations, but the case that the hon. Gentleman raises is completely different. People would not be able to do such things without planning permission and the publicity associated with that.
Mr. Curry: I can assist the Minister. The sensible reaction of the people on the council estate would be to wait, because anybody trying to raise pigs intensively in Wales would fail within a few months given the price of pig meat and grain at the moment.
Mr. Dhanda: The right hon. Gentleman is on good form. We have had pig meat and pancakes, and I put that down to his trendy new haircut, which has obviously helped his thinking and concentration.
Mr. Benyon: Just to be thoroughly boring and technical, my understanding is that the general development order, which is what I think the hon. Member for Meirionnydd Nant Conwy is referring to, contains a proximity clause. I believe that the farmer would not be permitted to undertake such a development within a certain distance of the estate, although my memory of the Town and Country Planning Act 1990 is fading.
Mr. Dhanda: That is a helpful intervention. As I said, however, the hon. Member for Meirionnydd Nant Conwy is talking about something significant but different from what we are talking about on this set of provisions.
Hon. Members are concerned that applicants for lawful development certificates might not be telling the truth, so it is important to remind the Committee that the burden of proof is on the applicant. It is for the applicant to back up their claim that the development in question was, for example, undertaken so long ago that it is immune to enforcement action. If the local planning authority has any doubts, it can approach neighbours to see whether they can verify what the applicant says. If it cannot establish that the development is lawful, a certificate would be refused. Guidance is available to local planning authorities in circular 10/97 on enforcement planning control.
It is entirely right that there should be consultation on determinations of planning applications. If a lawful development certificate is not forthcoming and planning permission is required, the subsequent application will receive publicity in the normal way. I therefore invite the hon. Member for Beckenham not to press the amendment to a Division.
On Government amendments Nos. 612 and 613, new clause 30 and new schedule 1, I shall address my main remarks to the substantive provisions in the new schedule, but first let me deal briefly with the other provisions. The amendments insert references to new clause 30 and new schedule 1 into clause 188(3) so that the provisions in them can be brought into force separately in England and Wales. New clause 30 introduces new schedule 1.
The substantive provisions start at paragraph 2 of new schedule 1, which provides that a notice of appeal made under section 78 of the Town and Country Planning Act 1990
“must be accompanied by such information as may be prescribed”.
The power to prescribe is exercisable by the Secretary of State in England and by Welsh Ministers in Wales. The provision relates to clause 160, which requires the Secretary of State to determine the appeal method. We want to give appellants the opportunity to state in their appeal notice their preferred method of appeal and why. That is to ensure that any circumstances that may have a bearing on the appropriateness of an appeal method may be brought to the attention to the Secretary of State or the Planning Inspectorate acting on her behalf.
When determining the appeal method, the fact that clause 160 and schedule 5 apply only in England must be taken into account. However, the Welsh Assembly Government wish the provision to apply in Wales and to be commenced there by Welsh Ministers. It is therefore more appropriate for the provision to be included in a separate schedule. Paragraphs 3 to 6 of new schedule 1 make similar provision to paragraph 2 for other types of appeal. Paragraph 3 on lawful development certificate appeals has two additional elements that were covered on the debate on new clause 9.
Mrs. Lait: My only thought is that any pig farmer who wished to build a farm for thousands of pigs close to a residential area must hate the residents, because the smell is not the most pleasant.
As indicated before, I am not inclined to press the amendment. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Amendment made: No. 615, in schedule 6, page 129, line 10, at end insert—
‘In Schedule 4A, paragraph 2(4) and (5).’. —[Mr. Dhanda . ]
Schedule 6, as amended, agreed to.
Clause 186 ordered to stand part of the Bill.
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