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The CIL is not in any ordinary sense a tax. It is a charge, imposed under statutory powers, by the charging authority, which is not the Government except in those cases where the Secretary of State is the charging authority. It enables the charging authority to recover the costs of infrastructure construction, which is for the benefit of the developer or owner—no money passes through the Consolidated Fund. Paragraph 26 of the report lists a number of comparable charges where there is no financial privilege. I have spent some time in the past few days reading the relevant passages of Erskine May, which include, at page 901, the following:

I have to admit that that is somewhat close to the boundary, but in our view, as expressed in paragraph 26, it should not be a matter for the House of Commons alone to approve regulations under Part 11. Even if that is so in relation to some aspects of Part 11, many are not within the House of Commons privilege by any standards. It would therefore be appropriate, if your Lordships' House wished to do so, to amend Clause 207(2) to require regulations in Part 11 to be approved by both Houses.

I hope that the Minister will be able to take these questions on board and that we will, when we come back in October, be able to consider these matters in the proper form and not as they are now.

9.02 pm

Lord Mogg: My Lords, I am grateful to the noble Baroness, Lady Andrews, for her clear explanation of this complex, highly important Bill. I declare an interest as the chair of Ofgem, GB’s energy regulator, although many of my remarks will be made on a personal basis.

The present planning regime is probably the single greatest barrier to the radical changes that we need to deliver to secure an affordable and diverse energy mix. The noble Baroness, Lady Andrews, referred to the challenge of trebling the supply of electricity from renewable sources by 2015, replacing some 30 to 35 gigawatts of capacity. These are huge challenges from many different perspectives, but it is difficult to see how we will meet them and the targets that the Prime Minister and others have agreed.

Although I am no expert on planning, I could answer the question of how well the regime performs with two words: too slowly. I have learnt a good deal about it already from many of your Lordships’

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contributions, but I want to ground the debate a little more in the challenges that we would face if we were in an energy debate.

The dwindling of gas supplies from the North Sea makes gas storage particularly important for our security of supply in the future. The potential certainly exists; the markets are working. Proposals are in either the pre-planning or the planning process that would, if delivered without further delays, double our storage capacity in the early years of the next decade. However, there are problems.

I wanted to avoid cataloguing those problems, but I shall follow my noble friend Lord Best by giving a few factual details. A planning application was made for a gas storage facility at Preesall in Lancashire that could have added 20 per cent to our current gas storage capacity. The application started in November 2003. By October 2007, after an appeal was rejected, it was still on its way. There are others. Canatxx wants to build an even larger storage facility in Fleetwood, Lancashire, but that has been blocked by a local planning authority, which will certainly delay it until 2012, if we assume that it continues.

It is not only gas storage that is affected by the planning regime; for renewable generation, which the Government strongly support, the outlook is bleak. Wind farms such as Scout Moor and Fullabrook, although they may be small, are two to three years delayed. For conventional gas-fired generation it is the same picture. Staythorpe C in Nottinghamshire is suffering a two-year delay. The liquefied natural gas terminals that we need to bring in energy from around the world have also suffered the same difficulties on Canvey Island. The transmission electricity grid, which is crucial for Scotland to bring energy to the English consumer, has had similar problems, with the north Gateshead grid upgrade. But I have troubled your Lordships enough with those rather technical issues.

The debate so far seems far removed from my concerns as an energy regulator about ensuring that in future we will have security of energy supply, about which I hear constantly from around this House. We cannot continue in this way. I have heard very few noble Lords objecting to the proposal to streamline or accelerate the planning processes in England and Wales. To that extent, the Bill is welcomed. However, the Bill itself is not enough because, unlike the Bill, energy does not confine itself to a couple of countries. Equally, the supply of renewable energy from Scotland is of major importance to the Scots and to the English consumers. We need a change of regime in Scotland. Although this does not relate to the Bill before us, it is essential that the Government have discussions with the Scottish Executive—if they have not already had them—to encourage an acceleration of their processes. There are no borders for energy.

I should draw noble Lords’ attention to a further concern. The billions that we shall need to develop the infrastructure—the wind farms, the renewable energy arrangements and the new gas-fired and other arrangements—will need to involve private sector investment. It is no news to noble Lords that investors hate uncertainty, incoherence and delay.

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Concerns have been expressed in terms of the acronym BANANA. It is a particularly useful acronym, which I should like to pass on; it stands for “build absolutely nothing anywhere near anything”. It is unfair to dismiss the legitimacy of such concerns about the process, but, with the Infrastructure Planning Commission, perhaps the acronym should be changed. The Government’s proposals should not have the response that Mrs Lait gave in the other place. She said that she will,

The IPC should bring objectivity, expertise and judgment, and I support its creation, principally to accelerate the process that will deliver satisfactory support.

The remainder of my comments would have concentrated on how legitimacy of control at the political level is to be achieved and on the process—I very much endorse the comments of the noble Lord, Lord Jenkin—particularly with regard to national policy statements. Those seem to me fundamental. They give an opportunity for Parliament to review in detail the start of a process—and perhaps to agree with it—which will guide and control the final decision by the IPC. I also believe, from what I have read, that your Lordships can pursue and develop some of the improvements in the consultation processes that have been built into the Bill. It is clear that speed tends to restrict the ability to comment, but it is speed and my concern for energy that allows me to support the Bill and, in particular, to recognise that, if we are wrong, the review in a couple of years will be helpful.

9.09 pm

Lord Haskel: My Lords, I thank the Minister for explaining the Bill and for her careful briefings, as well as for all the other briefings that have enabled us to understand it. I support the Bill because it does what many noble Lords have already said it does: it provides a much more efficient way of dealing with large planning applications. If we are to remain an open economy in a globalised world, we will have to become more efficient in many ways to compete in the race for the top. The alternative is protectionism and who wants that? One of the major achievements of the Government is their constant rejection of protectionism. Nobody doubts that there will have to be a lot of infrastructure developments if we are to compete in the race—the noble Lord, Lord Mogg, just told us all about the energy sector.

I agree with the Minister that, if we separate the argument over need from arguments over planning and if we unify consent, the whole process becomes more efficient and more certain. More certainty helps business and local government to plan; it encourages investment and reduces planning blight. The principle is right, as is the requirement of democratic accountability to the public. The question is how well the process of involving people in communities is managed. It has to be managed well because, as the noble Baroness, Lady Hamwee, said, planning is a highly political issue. It is also very emotional. People demonstrate, march and get upset over planning. The process has to be right.

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The means of reaching a decision is particularly important. It cannot be a tick-box process; a decision must be reached only after careful consideration and full consultation. With the creation of the Infrastructure Planning Commission, the Bill proposes a major change to the means of reaching those decisions—a change from an adversarial to an inquisitorial process. Like my noble and learned friend Lord Boyd, I think that the inquisitorial way is fairer, cheaper and easier for communities to participate in.

Those doing the inquiries will need different skills. Instead of adversarial skills, they will need the skill of getting people to consult and listen to views adequately. A sure way of encouraging participation by local communities is to see that their participation is properly funded. Will there be any additional money for planning aid? They will need more money to pay for experts’ assistance, as there will be a lot of new technologies for them to understand and deal with.

The noble Lord, Lord Mogg, spoke of gas storage, which will have to be expanded enormously. Carbon sinks will become a planning issue, but we know little about that. Another area where the Government will need specialist assistance will be in sorting out the conflicting claims—some noble Lords listed them—of economic need and sustainability. The noble Lord, Lord Dixon-Smith, spoke about this.

The conflict between the environment and natural resources and the need for infrastructure will be settled in the policy document in Part 2 of the Bill. We cannot be too dogmatic about it. There is no settled view about the metrics. Neither do we know what new technologies will do for us. The Government will have to be very transparent about this. The national policy statement in Part 2 will involve forecasts, but in many sectors of our infrastructure forecasts change. For example, if we ever find a way of taxing aviation fuel, the effect on the forecast for aviation will be enormous. These policy statements will therefore have to be kept under review and carefully updated.

It will be helpful if, in managing the policy statements, the Minister gets the collaboration of the campaigning NGOs, partly because many parliamentarians agree with them but also because contact with the NGOs provides intelligence. As things change, Governments learn what the new issues are and can deal with them without confrontation.

The Government have promised a review after two years. It is right that there should be a formal review because there are bound to be flaws or mistakes in a new process such as this. Is two years sufficient time for these flaws to become apparent and for the Infrastructure Planning Commission to learn how to rectify them? During the first two years, there will be few applications from which to learn.

The Bill is right in principle and the principles form a good basis for social and economic agreement in an open, liberal economy. Giving the public greater rights to participate in decisions regarding major infrastructure makes for a fairer society. However, we must carefully scrutinise how this is managed. The other place has introduced some useful amendments to the management of this process. There may well be more to come from your Lordships’ House.

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9.16 pm

Baroness Gardner of Parkes: My Lords, my reason for speaking today is that I consider this new Planning Bill to be of great importance and yet of some cause for concern. I have not myself been actively involved as a planning decision-maker since my GLC days, but I have followed many development applications through a local amenity society of which I am a committee member—and also through finding myself in London in the unfortunate position of being in the centre of a building site for more than the past seven years, with all the dust and dirt and inconvenience that necessarily accompanies such work.

In your Lordships’ House, at the time when such matters of major infrastructure were dealt with as Private Bills, I took the London Transport Bills through the House. It was a long, slow process, with objectors’ hearings taking an inordinate amount of time before consideration reached the Chamber at all. The then-chairman of London Transport told me that he had built the whole of the Hong Kong Mass Transit Railway, from first thought to completion, in less time than it took to get the planning permission for the Jubilee line extension. I therefore welcome the idea of a much more speedy process for the “nationally significant infrastructure projects”. I am less sure about the Infrastructure Planning Commission, as I prefer to see a democratically accountable body dealing with these matters.

Clause 91 deals with “open-floor hearings” and I see that the examining authority must arrange this if at least one interested party informs the authority within the time limit. Are these open-floor hearings to be available for all or only for some applications? Clause 92(8) has what I consider to be helpful limitations, particularly subsections 8(a)—“irrelevant or frivolous”—and 8(c), whereby representations cannot be made if they,

A small, vociferous group can extend hearing times almost interminably by sheer repetition. Many speakers have mentioned the example of Heathrow. I welcome Clause 104, which creates a duty to make a decision within three months on an application for development consent.

Part 8—“Enforcement”—is very important in any planning situation. The late Lady Castle added her name to mine on an amendment on enforcement to an earlier Planning Bill when she first became a Member of this House. We were not successful. I am pleased to see that Clause 153 makes it an offence to carry out development without consent, and Clause 162 gives the local authority the right to demand reinstatement or remedy the breach of unauthorised development.

I have long thought that it is a vicious system where someone carries out a development without permission, much to the detriment of neighbours, and then applies for, and is granted, retrospective permission because the local authority feels that so much money has been spent that it would be unfair to refuse retrospective development permission, although it would normally not have granted permission at all. Lady Castle told the House that she had exactly that experience.

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Part 9 is headed,

Clause 167 is important in that it covers Section 106 agreements whereby local planning authorities are able to negotiate a better deal for an area or for other local residents or prospective residents at the time of consideration of a planning application. Usually permission is granted,

and the final details are agreed between the planning authority and the developer. Through this means an element of social housing is often agreed, and usually a condition established, that this must be an early part of such a development to be constructed before the more expensive housing for sale.

Where I am in London our footpaths are just being rebuilt and the road resurfaced under a Section 106 agreement. This goes some small way towards compensating locals for the seven plus years of development, dirt, noise and traffic that we have all had to endure.

I note that London Councils is concerned about the community infrastructure levy regulations and the effect that CIL will have on the ability of local authorities to use Section 106 agreements should they opt not to adopt the discretionary CIL. London Councils states:

The Local Government Association states that there was no time to debate CIL as a key aspect of the Bill during the final Commons stages. More debate is essential as in the past the introduction of levies and incentives has dramatically influenced what has been built and the impact, sometimes quite undesirable, has been far greater than expected. Local government is best placed to understand local needs. I support the LGA view that local flexibility must be maintained. Local authorities can work with local communities and developers to determine local needs which are very diverse and vary from community to community.

My hope is that this House will deal with the remaining points in the Bill that require amendment.

9.23 pm

Lord Burnett: My Lords, I draw the House’s attention to my declaration of interests. I and my law firm are involved in planning matters up and down the country. I am also a landowner in Devon.

It is worth making one or two general observations on planning at the outset. These observations link into some of the changes proposed in the Bill. As with much in life, the public’s attitude towards and perception of planning are sometimes inconsistent. At its simplest,

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the public recognise the importance of bringing forward housing development or a new power station. They know that people need housing, heat and light. Nevertheless, sometimes there is a reluctance to achieve those laudable objectives by conceding and agreeing the means to achieve them; in other words, designating and granting planning permission for housing development or a power station.

In my years of involvement in planning I have frequently heard conflicting views being debated at public inquiries. They function well on the whole and the Planning Inspectorates rightly goes to great lengths to ensure that communities and community groups have their say. The inspectorate is independent, its personnel are experts and it invariably acts swiftly, objectively and consistently.

I would add a note of caution in respect of the proposed community infrastructure levy. There is a desire by some councils to seek to extract unreasonably high planning gain obligations and payments under the existing Section 106 provisions. I am aware that a number of major schemes are stalled because they are completely unaffordable in the light of the planning gain demands. It would be interesting to hear in due course from the Minister what advice would be given in respect of these matters, as they impinge on the community levy.

Noble Lords have welcomed other important aspects of the Bill, particularly the proposals to draw up national policy statements for major infrastructure projects. I was a member of the Procedure Select Committee in the other place and dealt with the previous government proposal in respect of major infrastructure projects, which was flawed and was dropped. There is a lot of good sense in the proposed system of national policy statements with site identification. Nevertheless, these statements should have full parliamentary scrutiny, including through Select Committees, and they should be amendable on the Floors of both Houses.

Often and, in my opinion, very unfairly, the length of time taken by the Terminal 5 inquiry is cited as one of the reasons for the necessity for change. The Terminal 5 inquiry was conducted by a most distinguished planning barrister, Mr Roy Vandermeer QC. I put on record that I know, admire and have worked with him. He gave up an extremely successful career to give public service and his decision on a most complex matter was hardly challenged. He faced an inquiry with a completely out-of-date local plan which had to be constructed during the inquiry, and with no government traffic study, which also had to be worked out and calculated during the inquiry. Such matters take a considerable time.

I would hope that national policy statements will be properly scrutinised by both Houses. If this work is done properly, it will not be necessary for the vast additional work that often bedevils these major public inquiries when national and local government have, for one reason or another, not provided the decision makers with the appropriate information. I hope that they will be forced to do so by the provisions of the Bill. It is the laggardliness of national government and, sometimes, local government that causes the problem.

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