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Baroness Hanham: My Lords, both the noble Baroness, Lady Maddock, and I have received letters from major stakeholders saying that the meeting has not taken place and that they are very concerned.

Lord Rooker: My Lords, I have given them an explanation. My note says that the stakeholders were content with the change in the arrangements. The change was because Barker was published only last week on 17 March. It is a very substantial document, not a few pages of A4. It is a major document, notwithstanding the fact that there had been an earlier interim report.

We want people to use Barker and to get the best out of it, so that we can get as much of a consensus as possible. I am not aware of people complaining about it. There is no secret, no ulterior motive or problem, other than to allow the Barker report fully to sink in with people.

I have more than a few paragraphs on Barker here, and I will not go through them all. However, there are a few points in respect of the planning obligations

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reform which are worth putting on record. It is an initial response to the Barker recommendations. That is all it is: an initial response. Please do not complain that it is not full and detailed. It is an initial response by the Government to the Barker review, because this is very substantial and cuts across many departments.

First, we have to be clear about the context of the recommendations. Barker gives broad support to the direction of the Government's reforms to planning obligations, in particular the increase in certainty, clarity and transparency, and the reduction in negotiation costs for both local authorities and developers.

The Barker report proposes a new planning gain supplement. This would be a charge levied at the point of planning permission and related in size to the increase in the land value caused by the grant of planning permission. The grant of planning permission would depend on a payment of the planning gain supplement. The aim of this supplement would be to ensure that a proportion of landowner development gains are recycled back into the community. It is the community that grants the planning permission in the first place.

The report goes on to recommend that, if the Government were to introduce this new supplement, first, planning obligation should be scaled back to the aim of direct impact mitigation, and the Office of the Deputy Prime Minister should issue guidance or new legislation to this end. It is Parliament that issues legislation, of course, but that is the thrust of it.

Secondly, planning obligation should retain its current affordable and/or social housing requirements, as set out in circular 698. Thirdly, local authorities should receive a direct share of the receipts from planning gain supplement generated in their area, which local authorities should be free to spend as they wish.

The question is, how do the Government respond to these recommendations? I have already written to all the noble Lords who have spoken in these debates on planning obligations, setting out our response, and I will take this opportunity to state the views to the House.

First, we welcome Barker's support for the direction we are taking in planning obligation reform. These issues—that is, certainty, clarity and transparency—have consistently been identified in criticism of the current system, and it is right that we focus on them.

Secondly, the Chancellor of the Exchequer has proposed a national debate on the basis of the Barker report and has said that he will consider this particular proposal over the next 18 months. That is a reasonable point for the Chancellor of the Exchequer to make. He is not going to rush to judgment on this substantial issue. We do not think that the Barker conclusions or the Chancellor's proposal cause us to change our policy approach. We regard the reform of planning obligations as urgent, in view of the widespread criticism there has been of the present arrangements. On the other hand, I freely admit that, listening to the debate in this House, anyone would think that everything is hunky-dory and perfect. We did start off

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by saying that there were major problems with the way Section 106 had operated, and that remains our position.

We continue to believe that developers should have the choice of a charge or a negotiated agreement, depending on which seems to be the best and speediest option for them in the particular circumstances of their development. We want the new arrangements to be provided for at local level in the new development plans.

I am coming to the end of this. It is only an interim response. We should also note that Kate Barker says that if the Government decide not to proceed with her suggestion of a planning gain supplement, we should proceed with our present package of reforms, offering the choice of a charge or negotiation.

Were the Chancellor to decide in due course to proceed with a planning gain supplement, the provisions in the Bill would allow us to adjust our proposals to make them, if need be, complementary to the planning gain supplement.

Some might suggest that in the event of the Government accepting Barker's recommendations they might move to a framework for planning obligations using only the negotiated route. That would present a reason for deleting the clauses and the provision for an optional charge. However, that overlooks a significant point. An important advantage of reconstituting Section 106 in regulations is that it would allow us to ensure that planning contributions that are negotiated or contained in unilateral undertakings could be limited in future to direct impacts and affordable housing—that is, the Barker approach—if that is the route we decide to follow in due course. Under the present law we do not have that flexibility. Therefore, maintaining this approach and proceeding with the Bill as it is gives us the flexibility of converting Section 106 into the regulations.

7 p.m.

Baroness Hanham: My Lords, it is not for me to reply on this amendment, but I am so shocked that I think I have to say something before the noble Lord, Lord Lucas, replies. I am almost speechless. Here we are at the end of the Bill, in its dying days, and we are suddenly told that Section 106 is in the melting pot along with Kate Barker's report. The Government should withdraw all these clauses and put them into different legislation that everyone can examine. It is not as though we have not consistently been asking for details about the planning contribution. The Minister says that it is not possible to give details.

It is outrageous that legislation should go through in this hibbledy-hobbledy way. One minute we are told that the clauses are included, but the next we are told that the whole thing is effectively going to be reviewed on the back of Kate Barker. If it was not so late I would be very tempted to test the opinion of the House. I will not do that, but I do think there is a big mess here. It is very serious that this should arise at this

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late stage of the Bill, which—with the White Paper—has been in, around and through Parliament for jolly nearly two years.

Lord Lucas: My Lords, I cannot but say I agree with my noble friend. However, I am grateful for the reply to my amendments. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 41 and 42 not moved.]

Clause 47 [Planning contribution: regulations]:

Lord Bassam of Brighton moved Amendment No. 43:

Page 34, line 17, at end insert—

"( ) for a person obstructing the taking of such steps as are prescribed to be guilty of an offence punishable by a fine not exceeding level 3 on the standard scale;"

The noble Lord said: My Lords, this amendment supplements the Secretary of State's power to make regulations to provide for planning contributions. The amendment enables the Secretary of State to provide in regulations that where a person instructs a person authorised by the local planning authority to carry out steps to enforce a planning contribution, it shall be an offence punishable by a fine not exceeding level 3 on the standard scale.

As we have made clear, the Government intend to reconstitute the current Section 106 provisions in the regulations to be made under Clauses 46 and 47 which we will be publishing for consultation in due course. We therefore also intend to recreate the existing offence at Section 106(8), making it an offence to obstruct the enforcement of a planning obligation. However, for the avoidance of doubt about the power to make such a provision in the regulations, we have decided that this particular element of the current Section 106 should be explicitly provided for. For that reason we are seeking to make this amendment to Clause 47(6). I beg to move.

Baroness Maddock: My Lords, I listened with some amazement and wondered precisely what level 3 was. I discovered that, actually, it is £400. It does not seem a very large fine or likely to put off people not doing the right thing. However, I am pleased that it is the same as Section 106. And for the record, perhaps I can say that we did not say that Section 106 was perfect. We said that it should be reformed.

Lord Lucas: My Lords, I was a little disturbed by the noble Lord's use of the phrase "for the avoidance of doubt". Does he mean that it is generally accepted but not totally accepted wisdom now that you can create criminal offences by secondary legislation with no mention of them in the primary legislation, or did he actually mean that there is no doubt at all that you cannot do it?

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