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8.01 pm

Baroness Hamwee: My Lords, I start by thanking the Minister, who will probably be only too aware that everyone’s backs will be to the wall. I also thank, through the medium of Hansard, all the organisations which have briefed or lobbied noble Lords so fully right up to the very start of this debate. It is not possible at Second Reading to do justice to all that we have heard.

Of course, those briefings are not uniform; they divide very sharply into two groups. The first is “business”, if I can characterise it as that using the term in a very wide sense. This group supports the proposals. It would be unfair to say that it supports development at any price but it comes with a considerable presumption in favour of development. The second group comprises those whose concerns are about environmental issues and mechanisms, and they have not been quieted by the proceedings so far. It is sad that the Government have not been able to bring the two sides together. I read what either side—I characterise them as “sides”—says as being not intransigent but, rather, thoughtful.

However, there is intransigence in the air. It is intransigence by the Government or an inability to see some fundamental points in the same way as others of us do. The Bill is about planning—or about achieving development, because the whole point is to build—but underlying that is the basic constitutional matter of democratic accountability both in the role of the Infrastructure Planning Commission and the production of national policy statements and in several other issues with a slightly less high profile.

How can the Government be so resistant on aspects of their proposals? I believe—I say this with sadness but not lightly—that it is because the Executive now have so little regard for Parliament. That is a mindset which I do not think our Minister shares but it is becoming very apparent across government.

The Government dismiss calls for decisions on major projects to be those of the Secretary of State on the basis that what she has now is a quasi-judicial role and so nothing will be lost. However—here I would make points very similar to those raised by the noble Lord, Lord Dixon-Smith—whether or not one shares that view, and I have to say that I am persuaded otherwise, it fails to recognise the reality that the public see these things as political. Planning is a political process. It is about balancing objectives and it is multifaceted—and multi-fascinating, too. As the RSPB says in one of the many briefings, it is too important to be left to the planners.

We do not know from the Bill what qualifications the members of the new commission will have. From time to time, people call it the “Independent Planning Commission”—I think I have done so myself—and certainly the commissioners are described as independent experts, but independent of whom and expert in what? The Government say that there will be clear benefits in that there will be independent, objective and comprehensive investigation. I thought that that was what the planning inspectors did now. What procedures will there be that, if they are beneficial, cannot be used by the inspectorate with a few changes in the rules?

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Just how much will we see in two years? According to the Prime Minister, we will see eight nuclear power stations, but this concession—so called—of review after two years seems to me to have been the flimsiest possible. What experience can we draw on in so short a time?

Indeed, how quickly should we expect to see the national policy statements? According to the briefing pack, the Government say that they will provide a national debate on the infrastructure that the country needs to deliver established policies. I have to say that the logic of sorting out the policy first appeals to me very much, but what troubles me is what the practice will be. Will the NPSs cover all the right issues in the right way? The Minister referred to sustainability, but I am sure that sustainability and biodiversity will be a thread that runs through our debates as regards the IPC, the NPSs and the RSSs—and, I dare say, other acronyms too.

To take one intriguing question, because of their very status, could the national policy statements be claimed to be of overriding public interest and so override the EU habitats directive? Will their application to individual projects be clear? How long will it take to produce them? This is important because, as we have heard from the Minister tonight, the new system will not kick in until the relevant national policy statement is in place, and some of us may argue that more than one statement may be relevant to a particular project. What happens if they are out of kilter with the policies of a new Government? What is their status as regards decisions taken locally? Are they more material than other material considerations? Indeed, what is the comparative status for the IPC? Furthermore, what role, and what real input, will Parliament have? That, too, will be something that we discuss—the role of Parliament and of both Houses. It is right that the Government should be seen to take certain policy decisions, but should they do so by way of unamendable policy?

I suspect that in our discussions, if we become too caught up in the projects, we—perhaps I should apply this only to myself—will have quite a difficulty in focusing on the procedure and distinguishing it from the policies and projects. Some will be very desirable to some noble Lords and some will be very undesirable, and it will then be quite hard to follow through the logic. Therefore, I hope to be able to maintain that distinction.

I have not yet read the White Paper, which the noble Baroness’s department published last week, but I read the Secretary of State’s Statement when it was published. She said: “People are perfectly rational”—actually, what she said according to the printout was that they are “perfectly rationale” but I do not suppose that she really said that. She continued:

Quite so.

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We are supposed to produce garlic and call in the exorcists when we refer to T5, but, at the time of that inquiry and the run-up to it, I remember thinking how difficult the process was for objectors. Then I listened to Dermot Cox, who was leading the principal protest coalition, and how vividly he explained the importance of the status of objectors and the mechanisms available to them, agonising as it must have been for all of those who attended.

To think that a developer-led consultation could be adequate is, at least, disingenuous. A developer should consult, but should not be in a position to say, “X thousand people will be affected, but only Y turned up; QED there is no widespread objection”. The default position at hearings—written representations, reading out your essay as I am doing now—is a world away from engagement and involvement. This is one of many points in the Bill where matters are left to the Secretary of State: a relevant representation must contain material of a “prescribed description”—I suppose prescribed by the Secretary of State. There is a place for prescription, for regulation and for orders. That may be a relatively modest example.

My noble friend Lord Goodhart will speak as chair of the Delegated Powers and Regulatory Reform Committee. I have already commented to him privately that I think his committee’s report is exceptionally polite. It is very much in Lords-speak, but then we all speak the language and we all know that the stiletto can be more effective than the cudgel. The committee’s report deals with the community infrastructure levy. How can the Government justify retaining those clauses at all without detail? That is the part of the Bill that the Government should drop. The rumour I have heard—I have not heard the one about planning gain supplement, but it has a ring about it—is that no one has been available to draft the flesh for the skeleton. Even if it is done by October, I do not think that that will fully answer the point because the Bill will still allow for change. The Minister has described that as allowing flexibility over time, which I suppose is the other side of that coin.

The Local Government Association delicately expressed its dismay at the lack of time to debate CIL in the Commons. And there is much to debate. How will it relate to Section 106 and what effects will there be on what is now the subject of Section 106 agreements, particularly affordable housing, which seems to be given second-class status by the Bill, although the Minister has trailed some changes? There is also the impact on charities, which will be subject to it, and much more. The pity is that so much is unclear. We on these Benches support the principle that local communities should share the benefits of planning gain. One of the advantages of Section 106 is that a community that feels that it is having a development foisted on it can, at least, see the benefit.

There is so much to say about the Bill—issues of accountability, mechanisms and workability—and many noble Lords wish to speak. Several of my noble friends will cover different topics, so we will keep much for later stages. The Minister will have gathered that we on these Benches are not enthusiasts for the whole Bill—and that, too, is Lords-speak.

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8.13 pm

Lord Hart of Chilton: My Lords, I support the Bill. I too must declare an interest. For most of my working professional life, before I was captured by the noble and learned Lord, Lord Irvine of Lairg, I was involved in promoting or objecting to schemes of development. In so doing, I have learnt many things: the shy breeding habits of the Siberian tiger and the lowland gorilla and the fertility cycle of the household fly. I have discovered those things by spending many happy weeks, months and years at the laborious process called a planning inquiry and I have concluded that decisions on major infrastructure can and should be achieved quicker and at much less cost. In my time I have attended a huge number of public inquiries up and down the country and, as a result, I have been in the courts more times than I care to recall.

I have a great admiration for the planning Bar and its skills of advocacy and cross-examination, but the model of a planning system based on court procedure must be overhauled for large-scale infrastructure projects. It is too cumbersome. Not only does an inquiry take time, but an inspector’s report and the ministerial decision take even longer. I had clients who, as a result, decided not to engage with the inquiry system at all.

Since the end of the 19th century, the public local inquiry has been the instrument of British administrative procedure. The hallmarks of the inquiry are fairness, openness and impartiality. Over the years, large-scale infrastructure proposals have placed a huge and unacceptable strain on the inquiry system. Forward planning guidance, whether in the form of the development plan—often outdated—White Papers, ministerial statements or policy guidance, has often been very general and has given no real help to questions of where new infrastructure is to be located. Inquiries have become caught up in debates about policy-making and have raised issues far beyond local significance. Alternative locations, alternative developments and, ultimately, the need for any development at all have become the order of the day.

By my day, inquiries had become massive debating fora with armies of expensive experts and counsel ranged against each other, many parties with unequal firepower. There is no doubt that cross-examination can be valuable when conflicting assumptions have to be examined and challenged, but its value can be overestimated. It is a costly and time-consuming process only really suited to a two-party dispute with equal representation.

The proposals in this Bill are the first in a generation to seek to resolve the problems of the past. They separate a policy process from a site-specific inquiry process. In both cases, they involve new forms of consultation with local authorities, the public and Parliament. They occur at three stages: the policy stage, the applications stage and the independent commission hearing stage. As the text and principles of the Bill are thoroughly assessed in this House, I am sure that the Government will be listening carefully.

Attention will obviously focus on the process of consultation and public engagement as well as ministerial accountability. Do the new processes pass the tests of

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openness, fairness and impartiality and do they pass the accountability test? I think they provide a sensible framework capable of doing so.

As far as policy is concerned, the new process proposed is a great improvement. Policy will be published for consultation involving local, regional and informal bodies likely to have an interest. Parliament is consulted via a Select Committee, which could lead to a full House debate. There is an opportunity for legal challenge, and the Government acknowledge that to give clarity and certainty they must look forward for up to 25 years to examine demand, capacity and need. They must keep policy under review. Of course, it is only when the first statement appears that we can judge its quality but the principles seem correct and are much to be preferred to the current position of overlapping policy documents, many of which, as I have indicated, lack clarity and are out of date.

As far as the process before the new independent planning commission is concerned, much will depend upon the quality of the experience and expertise of the independent commissioners, who will clearly need training in the conduct of commission hearings. They will need forensic skills as well as expertise. The existing Planning Inspectorate is of high quality and experience, and some of its employees may well transfer to the commission. I hope so, but the independence of the commission is a strength, not a weakness. Ministers are still accountable for the overall performance of the commission. Appointments and performance are to be scrutinised by Parliament, and its committees can call Ministers and the chairman to account.

In law, a fair hearing does not automatically entitle anyone to an opportunity to be heard orally or to cross-examine, but a key question will be when the IPC is asked to allow oral submissions and cross-examination. The commission must be flexible, but the new process is clearly even-handed between the applicant and the objector, unlike the present system.

The Bill is to be welcomed as a sensible attempt to reform the planning system and cut cost and delay, but at the same time to maintain consultation and the involvement at all stages in the process of those who have a legitimate claim to be carefully considered. There is the promise of a review in two years, time, but the basic structure is sound, and I support it. I trust the Government will will the substantial resources needed to make it work.

8.20 pm

Lord Best: My Lords, unsurprisingly, my remarks on the Bill concern, first, the proposed arrangements for handling major infrastructure projects and, secondly, the community infrastructure levy. On both these points, my perspective is one of support for the Government’s reasons for introducing the planned new measures.

From 1999 to 2001, I served on the then Department of Trade and Industry’s foresight panel on the built environment and co-chaired a study on major infrastructure projects with Robert Upton, secretary general then and now of the Royal Town Planning Institute. Our study concluded, not least following an enlightening visit to Holland, that decisions on nationally

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significant infrastructure projects should be the subject of national policy statements and of decisions taken at the national level after full consultation on the principles behind the policy statements had been concluded. The international evidence we assembled certainly pointed to the wisdom of this approach, which leads me to welcome the Government’s conceptual framework for considering major infrastructure plans and for establishing an infrastructure planning commission.

To curry favour with your Lordships, bearing in mind the number of speakers this evening, I shall cut to the chase and my second issue, which concerns the community infrastructure levy. I am quite sure the Government have brought forward a basis for funding some of the costs for infrastructure that is significantly better than the previous ideas for a planning gain supplement. Even in the difficult market conditions ahead, a levy that extracts some funding from the increased value of land following planning consent could be a significant mechanism for meeting essential infrastructure costs. However, there are two major hazards with the levy. First, there are considerable anxieties, which have already been raised in this debate, for charities and for housing associations. If housing associations are required to bear an additional levy, they will need higher levels of social housing grant, which simply recycles funds from one government department to another, or, worse, if the level of grant funding remains the same, the community infrastructure levy will mean fewer affordable homes, which would be a terrible outcome. I hope the Minister will be able to bring forward amendments to address these concerns.

Secondly, and more broadly, there are the dangers of the community infrastructure levy being the final straw that prevents neighbourhood regeneration or required development of new homes proceeding because it means that potential schemes will make a loss. I have very little sympathy with the housebuilders’ arguments that higher standards of design, accessibility or a quota of affordable housing should be abandoned now that the housebuilding industry is in such a parlous state. This is no time to renege on obligations and commitments to improve design, to achieve carbon-neutral housebuilding by 2016, full lifetime home standards by 2013 and more affordable homes through the Section 106 agreements. I am sympathetic to the point that there is a limit to how much can be extracted through planning gain—through the increase in value created by the granting of planning permission, especially for contaminated, brownfield and complex regeneration projects.

Adding a community infrastructure levy will be a step too far in some cases, and local authorities must be given the flexibility to vary or waive the levy where that pushes projects over the line of financial liability. Rather, this seems the moment for some Keynesian economics, with central government funding the roads and other infrastructure which, in better times, the community infrastructure levy can support. I look forward to debating those key ingredients of the Bill as the legislation moves forward, but in respect of both Bills, I bring a positive and supportive recognition of the Government’s reasoning behind the new measures.

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8.25 pm

The Lord Bishop of Liverpool: My Lords, I thank the Minister for the clarity and the conviction of her exposition of the Bill. Planning is clearly about creating safe, secure and healthy landscapes and environments in which communities can flourish. As we all know today, they must be sustainable and as carbon-neutral as possible. I welcome the duty on Ministers expressed in the Bill to contribute to sustainable development in the preparation of national policy statements. I also welcome the Government’s commitment, given in the other place, to fulfilling the demands of the Climate Change Bill through the mechanisms in the Planning Bill.

My concern, however, is that the Bill does not go far enough and will not deliver sustainable development or contribute sufficiently towards the move to a low-carbon economy required by the Climate Change Bill. It may be there in spirit, but it is not there in the letter of the law. Without the law unequivocally on the side of carbon reduction, there are now too many pressures to take us in an opposite direction of carbon profligacy.

The Climate Change Bill is an overarching Bill affecting policy across government departments. We are treading a new path with the Climate Change Bill and we must work together on how to draw up future legislation that interweaves with that Bill. The Planning Bill is an opportunity to do that but, as presently drafted, it fails fully to take up that opportunity. Despite the Minister's assurances, there is nothing legally binding to say that decisions taken under the Planning Bill will take climate change into account. We are to take on trust that climate considerations will be embedded in decision-making, but neither Bill makes clear how to do that or makes specific provision for it.

The Climate Change Bill requires the Secretary of State to establish a process for managing the reduction of carbon emissions, but there is no obligation on the Secretary of State in either Bill to consider climate change during the preparation of national policy statements. Surely, there must be a requirement on the Secretary of State to consider climate issues in framing the national policy statement, in line with the provisions of the Climate Change Bill and recognised carbon budgets. At the moment, it is unclear how the carbon footprint of each national policy statement will be considered as a whole or, more importantly, in relation to one another.

I also believe that the new Infrastructure Planning Commission must have a legal duty to reduce carbon emissions. That is essential if we are to hit our 2020 and 2050 targets for emissions. Planning of major infrastructure provides a way to ensure the delivery of a low-carbon economy. That is possible only if carbon-intensive infrastructure is closely examined for its impact on overall emissions.

The IPC will have the authority to grant permission for the building of major infrastructure, including airports and power stations. It is vital that the process of decision-making fully considers climate change, with the objective of supporting the Government’s own carbon reduction trajectories. There is anxiety in the air. Observers fear that, as the economy turns, there is increasing pressure on the Government to reduce the level of ambition in carbon reduction and

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sustainability. A sustainable development duty for the IPC is an important environmental safeguard, and would mirror the duties of other developments. The Bill should make clear what factors need to be taken into account in contributing to its achievement. Although local government already has a sustainable development duty, and will have a new climate duty as a result of the Bill, no such duty or obligation in the Bill applies to the Government or the IPC.

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