Planning Bill

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Clause 187

Amendment made: No. 159, in clause 187, page 105, line 15, leave out ‘16’ and insert ‘[Gas reception facilities]’.—[Mr. Dhanda.]
Clause 187, as amended, ordered to stand part of the Bill.

Clause 188

Amendment s made: No. 611, in clause 188, page 106, line 2, after ‘154,’ insert
‘[local development orders: removal of requirement to implement policies],’.
No. 612, in clause 188, page 106, line 2, after ‘158,’ insert ‘[Appeals: miscellaneous amendments]’.
No. 613, in clause 188, page 106, line 2, leave out ‘Schedule 3’ and insert ‘Schedules 3 and [Appeals: miscellaneous amendments]’.—[Mr. Dhanda.]
Mr. Dhanda: I beg to move amendment No. 513, in clause 188, page 106, line 10, at end insert—
‘(4A) Section [Powers of National Assembly for Wales] comes into force at the end of two months beginning with the day on which this Act is passed.’.
The Chairman: With this it will be convenient to discuss the following: Government new clause 22—Powers of National Assembly for Wales
‘In Part 1 of Schedule 5 to the Government of Wales Act 2006 (Assembly measures: matters within Assembly’s legislative competence), after the heading “Field 18: town and country planning” insert—
“Matter 18.1
Provision for and in connection with—
(a) plans of the Welsh Ministers in relation to the development and use of land in Wales, and
(b) removing requirements for any such plans.
This does not include provision about the status to be given to any such plans in connection with the decision on an application for an order granting development consent under the Planning Act 2008.
Matter 18.2
Provision for and in connection with the review by local planning authorities of matters which may be expected to affect—
(a) the development of the authorities’ areas, or
(b) the planning of the development of the authorities’ areas.
Matter 18.3
Provision for and in connection with—
(a) plans of local planning authorities in relation to the development and use of land in their areas, and
(b) removing requirements for any such plans.
This does not include provision about the status to be given to any such plans in connection with the decision on an application for an order granting development consent under the Planning Act 2008.
Interpretation of this field
In this field—
“local planning authority” in relation to an area means—
(a) a National Park authority, in relation to a National Park in Wales;
(b) a county council in Wales or a county borough council, in any other case;
“Wales” has the meaning given by Schedule 1 to the Interpretation Act 1978.”’.
And the following amendments thereto: (a), leave out from ‘Matter 18.2’ to ‘Planning Act 2008’, and (b), leave out from ‘“local planning authority’” to ‘in any other case;’.
Mr. Dhanda: I apologise to members of the Committee for the delay in tabling the new clause. The framework powers that it contains have been the subject of detailed negotiations to ensure their scope, and that their content is right. It did not prove possible to finalise the new clause as early as we would have liked. The Government of Wales Act 2006 provides powers for the National Assembly for Wales to pass legislation known as Assembly Measures. In relation to matters set out in schedule 5 to the 2006 Act and in line with the principles of the devolution settlement, new clause 22 inserts three new matters into the town and country planning field in schedule 5. That will allow the Assembly to make its own legislation in relation to the plans made by Welsh Ministers and local planning authorities on the development and use of land in Wales. Those powers are subject to an exception that prohibits the National Assembly from making provision about the status of plans in relation to development consents for nationally significant infrastructure projects.
The Assembly may also pass measures about the matters that local planning authorities should keep under review that affect the area’s development. For example, a measure could prescribe a list of specific matters that authorities must keep under review, such as population, housing and other key cross-boundary issues. A memorandum setting out the detail of those powers has been published alongside the Bill. New clause 22 has been included at the specific request of Welsh Ministers. The Assembly Government believe that the power to make their own legislation in those areas would enable them to respond quickly and positively to the needs and challenges faced by the Welsh planning system in the future.
The development plan system in Wales is distinctive. Each local planning authority must prepare a single local development plan for its area. In doing so, it must have regard to a number of things, including the Wales spatial plan, which is prepared by Welsh Ministers. Proposed new matter 18.1 would enable the Assembly to change the status of the Wales spatial plan in relation to local development plans. It would also enable the Assembly to make provision in relation to the plan’s content and its preparations and review requirements. The new development plan system in Wales is in its infancy and no local planning authority in Wales has yet gone beyond the early stages of local development plan preparation. As the new system beds in, the Welsh Assembly Government will consider the plan requirements and any legislative changes. They will use the framework powers when appropriate, following consultation and in accordance with Welsh priorities and time scales—although the times scales are the same.
Amendment No. 513 is consequential and provides for the powers to come into force two months after Royal Assent. Amendments (a) and (b) would enable the National Assembly to legislate only in relation to plans about the development and use of land in Wales prepared by Welsh Ministers. It would not be able to legislate for local development plans. The Assembly Government are responsible for overseeing the operation of the town and country planning system in Wales, so the effect of the amendment would be to enable the National Assembly to legislate only in relation to part of that system. We consider that to be inconsistent and to risk an incoherent and, as I have said, inconsistent approach between national and local tiers of plan-making in Wales. That is clearly not acceptable. Wales has its own distinctive development plan system that is still in its infancy. It is entirely appropriate for the National Assembly to have powers to enable it to respond positively to the needs and challenges faced by the Welsh planning system in the future. Key stakeholders, including the Welsh Local Government Association, support these proposals. Therefore, I strongly resist the amendments.
12.15 pm
Mr. Jones: Just as the Minister commenced his speech with an apology, may I also tender my apology to you, Mr. Illsley, for raising a sequence of long points of order on the non-production of this new clause? I know that I have tried your patience, but frankly my own patience and that of other Committee members was severely tried when a matter of some constitutional significance was not tabled until 24 January. Remarkably enough, that was the very same day that the previous incumbent of Gwydyr house decided to relinquish his position. I am not sure whether the events were linked, but it was a happy coincidence.
This group is of constitutional significance. It will grant law-making powers—primary legislative powers—to the Welsh Assembly. I understand that the powers were applied for by the Welsh Assembly Government as long ago as last summer, but the draft clause was not tabled until two weeks ago. It is clear that even in the early stages of the Committee stage, the Government were not wholly aware of the nature of the powers that were sought. I put the issue to the Minister for Local Government very early on in proceedings when I asked why such important powers did not appear in the Bill at that stage. He indicated that the powers were for Welsh Ministers in the areas for which they already have devolved competence. That is not the case. As we have heard from the Under-Secretary, these are new legislative powers, not for Welsh Ministers, but for the Welsh Assembly.
The new clause will insert three new matters in part 1 of schedule 5 to the Government of Wales Act 2006. By any standard, the 2006 Act is a remarkably convoluted piece of legislation. It sets up a framework by which primary legislative powers may be devolved to the Welsh Assembly, but there is no one route for doing that. At the last count, there were no fewer than 13 routes by which such powers can be devolved to the Assembly, although I believe that academics are still counting. The two most—I hesitate to use the word popular—common routes appear to be by framework powers, such as we are considering, and by legislative competence orders.
It is instructive to draw a distinction between those two procedures. Under the legislative competence order procedure there is a considerable level of scrutiny by the Welsh Assembly and by Parliament. In Parliament, the Select Committee on Welsh Affairs conducts evidence sessions and inquires very closely into the reasons for the application for the legislative powers and the likely effects of granting such powers. Remarkably, there appears to be a considerably lower degree of scrutiny for framework powers, such as those that we are considering. The only scrutiny that I can perceive in Parliament so far is this sitting of a half-empty Committee for what will probably be an hour’s debate.
As a minimum level of scrutiny, the Government should have contrived for the new clause to be available for debate by the whole House on Second Reading. I would suggest that future framework powers should be in the Bill at a far earlier stage.
Alun Michael (Cardiff, South and Penarth) (Lab/Co-op): I would hate Hansard to report something that is inaccurate. It seems to me that this is a quite well-attended Committee and other hon. Members and I are following what the hon. Gentleman is saying with interest.
Mr. Jones: I am glad that the right hon. Gentleman is following what I am saying with interest, but I can see empty places. I am sure that he will agree that they are empty.
The only evidence that we have seen so far of the need for the measures that the Welsh Assembly Government appear to want is in a memorandum prepared by them, which I first saw on 9 January. I do not know whether other members of the Committee have seen that memorandum, but it merits reading.
Also, there was an evidence session with the relevant Welsh Minister in a Committee Room here on the same date. I understand that only Members representing Welsh constituencies were invited to that evidence session, and I dare say that Members from other parts of the United Kingdom did not receive such an invitation. Notwithstanding the fact that this Committee had been formed at that stage, I would have thought that it would have been extremely informative if all its members could have attended that evidence session. The memorandum that the Minister has quoted from in part is of some assistance in understanding why the powers are sought, but frankly it is not of a great deal of assistance.
Mr. Llwyd: I do not know where the hon. Gentleman has been, but I have a copy of the statement from the Secretary of State for Wales that explains fully why those powers are required, and I shall refer to them later to educate some members of the Committee.
Mr. Jones: If the hon. Gentleman cares to look at the top of the memorandum, he will see that it was prepared by the Welsh Assembly Government and circularised by the Secretary of State for Wales.
Mr. Llwyd: But it is not the memorandum to which the hon. Gentleman referred.
Mr. Jones: It is the memorandum to which I am referring, although I do not know to which memorandum the hon. Gentleman refers.
The Welsh development plan system was set out comprehensively, as the Minister said, in a recent piece of legislation: part 6 of the Planning and Compulsory Purchase Act 2004. That includes 19 detailed sections setting out not only the Welsh spatial plan system, but the local development plan system, which is unique to Wales and the UK, as he also said.
Part 6 requires Welsh Minister to produce a national spatial plan for Wales, to which local authorities must have regard when preparing their own local development plans. That spatial plan sets out the policies that Welsh Ministers think appropriate in relation to the development and use of land in Wales. As the Minister said, the proposed new matter 18.1 would confer primary legislative competence on the Welsh Assembly, enabling it to pass measures in relation to the development and use of land in Wales. I have no violent objection either to the devolution of legislative competence in that regard or to Welsh Ministers moving the furniture around with regard to the Welsh spatial plan through primary legislation. However, I observe that section 60 of the 2004 Act already contains detailed powers and obligations for the Welsh Minister to review and revise the plan. Those are two aspects that Welsh Ministers say that they need to address by means of primary legislation.
Alun Michael: The hon. Gentleman goes on at some length and appears to be making a bit of a meal out of a biscuit, to be perfectly honest. If he does not object to the powers that he has just described, which is an interesting contribution to make, what is his point, because the responsibility for preparing the national spatial plan lies with the Ministers of the Welsh Assembly, and surely what we are discussing is in relation to what follows from that?
Mr. Jones: I am not entirely sure what the right hon. Gentleman’s point is. I have just said that I have not objected to that, but if he had cared to have regard to my amendments, he would see that they relate to matters 18.2 and 18.3, not 18.1.
Alun Michael: The hon. Gentleman, in his uniquely humourless way, does not see the point. He is contributing at some length to tell us what he does not object to, but will he tell us what he does object to?
Mr. Jones: Frankly, it is hard to show much of a sense of humour when dealing with the dog’s breakfast that is the Government of Wales Act 2006. Nevertheless, I shall press on and enlighten the right hon. Gentleman on my concerns about proposed matters 18.2 and 18.3 of the 2006 Act.
Proposed matter 18.2 will give the Assembly legislative competence
“in connection with the review by local planning authorities of matters which may be expected to affect...the development of the authorities’ areas, or...the planning of the development”
of such areas. Proposed matter 18.3 will give the Assembly competence to make provision in connection with local development plans and the removal of
“requirements for any such plans”.
However, the fact that Welsh Ministers have made an application for primary legislative competence does not necessarily mean that such competence should be granted. The right hon. Gentleman thinks that this is a biscuit of which I am making a meal, but I should remind him that we are talking about the devolution of primary legislative powers from Parliament to the Assembly.
I should also remind the right hon. Gentleman of what the new Secretary of State for Wales said about the issue in his speech to the Welsh Grand Committee:
“I do not believe for one second that we should be rubber-stamping LCOs or legislation for devolution, because we would not be doing our job as Members of this Parliament. We must scrutinise such matters properly for the purpose of correctness, certainly, but also to establish whether we think that there is a case to be made for the particular powers, whatever they might be, to be devolved to the National Assembly.”—[Official Report, Welsh Grand Committee, 12 December 2007; c. 27.]
That speech was made before he was appointed to his new position, but I would not expect that he has changed his mind since he became the incumbent at Gwydyr house. To that extent, the Secretary of State and I are in full agreement, and I hope that all members of the Committee share our view. My point is that, so far as I can see, no compelling case has been made for the devolution of primary competence in respect of proposed matters 18.2 and 18.3.
All of the issues that the Welsh Assembly Government identified in their memorandum relate to powers that are already devolved to Assembly Ministers. Given that this is a matter of some significance, I shall analyse the various powers that Welsh Ministers seek and allow the Committee to make its mind up on whether they require additional powers.
The memorandum indicates that the Welsh Assembly Government are seeking primary competence in respect of the matters that local planning authorities must keep under review, being matters that might be expected to affect the development of their area or the planning of its development, but section 69 of the Planning and Compulsory Purchase Act 2004 already provides for the review of local development plans.
The memorandum refers to the content of local development plans—that is, prescription of what the local development plan must set out—but section 62(4) of the 2004 Act already states:
“Regulations under this section may prescribe the form and content of the”
The memorandum refers to matters to which local planning authorities are to have regard when preparing LDPs. Section 62(5) sets those out in great detail, and includes the expression,
“such other matters as the Assembly prescribes”.
It is hard to think of a wider power residing with the Assembly.
The memorandum refers to the prescription of provisions relating to sustainability appraisal, but section 62(6) states explicitly that the planning
“authority must...carry out an appraisal of the”
LDP and
“prepare a report of the findings of the appraisal”.
The Assembly Government are seeking primary powers in respect of the preparation requirements in relation to LDPs, but section 63 sets out those requirements in great detail. What additional powers do the Assembly Government require?
The memorandum refers to the independent examination of LDPs by persons appointed by Welsh Ministers, but that is provided for comprehensively in section 64. The memorandum refers to powers for Welsh Ministers to intervene in the event that they consider an LDP to be unsatisfactory, but that is specifically provided for by section 65. The memorandum refers to the withdrawal, adoption, revocation, review and revision of LDPs, which sections 66 to 70 of the 2004 Act already provide for comprehensively and explicitly .
12.30 pm
The memorandum refers to the possible revision of part only of an LDP. Section 70(2) provides that the Assembly may direct the LPA to revise an LDP. It goes on to refer to powers for the Welsh Ministers to prepare, revise or approve an LDP if it believes the LPA is failing properly to carry out the function itself. Those matters are already specifically and comprehensively provided for in section 71. Finally, the memorandum refers to powers to make provision in relation to joint LDPs and annual monitoring reports. Again, those are specifically provided for in sections 72 and 76 of the 2004 Act.
Why do the Welsh Assembly Government seek primary law-making powers? Where is the compelling case made out? Perhaps one clue is that the memorandum indicates that Welsh Ministers are seeking legislative competence in respect of the content, status and procedures relating to supplementary planning guidance issued by local planning authorities. That is the nub of the application for primary powers made by the Welsh Ministers. They do not say why they want any such powers.
I understand from the Minister that the Welsh Local Government Association is supportive, but I have yet to find a member of that body who is. I believe that what we have now is an application by Welsh Ministers to hoover up further legislative competence from this place, to hoover up discretion from local planning authorities in terms of the preparation of the local development plan, and to deposit those powers on the desk of Ministers in Cardiff bay.
The Welsh Assembly Government have shown themselves over the years to be both acquisitive in terms of power and highly centralising. I am concerned that the powers that they seek under the clause will enable them to operate in an even more highly interventionist manner as far as local planning authorities are concerned. I do not believe that it is a function of this Parliament simply to hand over primary powers to the Welsh Assembly unless a strong and compelling case has been made.
Welsh Ministers have seen the Bill coming up on the horizon and thought it a useful vehicle for acquiring more powers for the Assembly. They have decided to do so without any real powers in mind. They have given utterly spurious reasons as to why those powers should be sought. As I have illustrated, the powers that they ostensibly seek are already in their hands under the 2004 Act. If they seek such powers, they will have to do considerably better.
Mr. Llwyd: The hon. Gentleman referred to hoovering. I have never heard so much rubbish in all my life. The National Assembly for Wales is a democratic body to represent the whole of Wales. His party leader in the National Assembly is very much in favour of these powers. I do not know whether he has conferred with his colleagues in the National Assembly—
Mr. Jones: I can assure the hon. Gentleman that the Conservative party at national level, Welsh Assembly level and at local government level is fully supportive of the amendments that I seek to make.
Mr. Llwyd: Well, that is news to me and to many members of the Committee, but there we are. I accept what the hon. Gentleman said. As a matter of correction, however, he said that the only paperwork about the clause was the statement that came to us via the Secretary of State for Wales, from which the hon. Gentleman read exhaustively. There was a written Cabinet statement on 14 December by Ms Davidson, who attended a meeting in this place to which all Members who represent Welsh constituencies were invited. Some of us took the trouble to attend. [Interruption.] There we are. If the hon. Gentleman attended too, he misled the Committee earlier.
Mr. Jones: If I may remind the hon. Gentleman, I said that Welsh Members were invited to attend that meeting. I went on to say that it would have been extremely helpful if members of the Committee, which had already been established at that stage, had also been invited.
Mr. Llwyd: Very well. My point is that planning is a devolved matter; it has been devolved to the National Assembly for Wales. If it is to improve the current planning system it needs these powers. I hear what the hon. Gentleman says; he was reading verbatim from that memorandum about the various sections that he says already apply. The whole point of the exercise is to ensure that Ministers are empowered to deal with this matter in its entirety in Cardiff rather than having to come through this place. That is the gist of it.
Alun Michael: Does the hon. Gentleman agree that the planning system is not just devolved but, under the Welsh legislation, different in a number of material characteristics already? The measures are being applied to a different system of planning.
Mr. Llwyd: Indeed. The right hon. Gentleman speaks with experience, having been an Executive Member of that body. The planning system in Wales is different; for example, we lay great emphasis on the Wales spatial plan and on local development plans. The proposed change in the law will enable matters, especially those not transacted in the same manner as in England, to be brought forward without having to come through the conduit of this House.
In opening the debate, the Minister was perhaps too kind to the hon. Member for Clwyd, West, who tabled wrecking amendments. If amendments (a) and (b) to new clause 22 were accepted, they would wreck this part of the Bill in its entirety. In effect, Ministers in Wales would have to attempt to carry out their responsibilities for planning and the economy with one hand behind their back. I would find it extraordinary if the Committee were minded to allow that in any shape or form.
On the gestation period of the new clause, I, too, was rather concerned that it was late coming forward, but at least we have it now, along with a memorandum that is more detailed than that which applies to any other clause and from which the hon. Member for Clwyd, West has read exhaustively. There are important reasons to accept new clause 22 and the Government amendment.
As I have said, planning is inextricably linked with the economy and if we are serious about allowing the National Assembly for Wales to do a proper job on behalf of the people of Wales, it must have the tools. That is exactly what new clause 22 will provide. I reject utterly virtually everything that has been said in support of the amendments to it, (a) and (b). I fully support the new clause and the Government amendment.
Mr. Dhanda: It appears that even a great rugby triumph cannot unite all Welsh members of this Committee. The hon. Member for Clwyd, West made an interesting point when he said that he had no violent objection to the proposal, but the hon. Member for Meirionnydd Nant Conwy is right that accepting the amendments would wreck what we are trying to do. It is entirely consistent to have a synergy between the Wales spatial plan and the local development plans and for them to line up.
Alun Michael: In the course of explaining the proposals, will my hon. Friend kindly tell us whether he believes that the Conservatives have set their face against the proposition before us, in the Assembly as well as in this place? The Conservatives in Cardiff bay want to give the impression of pursuing and supporting devolution, proper decision making and the rest of it, whereas there seems to be a more luddite tendency. It is important for the Committee to know what is going on.
Mr. Dhanda: My right hon. Friend makes a good point. The Conservatives in Cardiff may well be saying that they want powers to amend the system governing the spatial strategy and local development plans and that they want independent examination of that system, but that is in complete contradiction to the amendments before us.
Mr. Jones: On what basis is the Minister saying that Conservatives in Cardiff bay are of that opinion?
Mr. Dhanda rose—
The Chairman: Order. I was going to let the point go, in the hope that it would slip away without my needing to intervene. The Minister is not responsible for what the Conservative party does in Cardiff bay, or anywhere else for that matter, and he should return to the provisions before us. We are not debating the Welsh Assembly.
Mr. Dhanda: The hon. Member for Clwyd, West has posed a question, but we should probably leave it there, rather than get involved in a debate about it.
I commend Government amendment No. 513 and new clause 22 to the Committee and urge Opposition Members not to press amendments (a) and (b) to the vote.
Mr. Jones: It hardly needs saying that I am extremely dissatisfied with the Minister’s remarks, but I shall not press my amendments. I shall, however, return to them later.
Amendment agreed to.
Clause 188 , as amended, ordered to stand part of the Bill.
Clause 189 ordered to stand part of the Bill.
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