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In the present environment of control over local authorities—we are still living very much in a target culture—many local planning authorities resort to avoiding making decisions on more complicated applications so as to ensure that they are able to meet the target for processing applications within eight weeks of receipt. That is, as it were, working to the target. In those circumstances, it would be very unfair to levy fees on the appellant because in the end he was driven to appeal. Perhaps the noble Baroness is able to argue why that is right. I would argue that it is quite wrong in those circumstances. The local authority should bear the costs.

9 pm

Baroness Hamwee: On Clause 190, I have not seen the Minister’s letter and I should be grateful for a copy. I indicated my intention to oppose Clause 190 only towards the end of last week and that may be why I have not received it. It was an oversight that that was not done earlier. I may be persuaded, but there is a point of principle here about a right to be heard and a right to go face-to-face with the inspector who will make the decision. The noble Baroness will know that one suggestion for dealing with the unreasonable use of the right of oral representation would be to make use of the costs order.

I have had a look at the criteria proposed by the Government for the three types of response to an appeal set out in the consultation document. As regards written representations being those which can reasonably be argued and understood by all parties, what is reasonable to a third party is often not so to the applicant or objector. We are talking about the applicant. I am not using this as a basis for arguing about the rights of appeal for objectors. Things look very different when you are the applicant.

On when hearings will be suitable, the criteria suggest when the applicant or, in the case of enforcement, the appellant does not consider it necessary to be legally represented. I would say, “and does not intend” to be legally represented. These are fine points. The point of principle is a right to be heard, as well as a right for the local planning authority to call for an oral hearing. There is a wider public interest aspect to this.

On his other amendment in this group, the noble Lord, Lord Jenkin, referred to local planning authorities not taking decisions in order to avoid politically difficult situations locally. But when something is politically controversial, local people will want an assurance about thoroughness and effective investigation, and the opportunity to make their own position plain. I may be persuaded when I have heard the Minister’s arguments, but I am distinctly worried by Clause 190.

Lord Cameron of Dillington: I, too, oppose the Question that Clause 190 stand part of the Bill and point out that I have not seen the letter. I gather that this proposal was first aired through government consultation on the planning White Paper in 2007 when 81 per cent of businesses and 60 per cent of professionals and academics viewed the proposal negatively. However, the Government seem to be pursuing it in this Bill.



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A fairly powerful disincentive already exists in terms of costs and the additional delays associated with hearings and inquiries, so I should have thought that to do away by law with the party’s choice of hearing is not satisfactory. I do not see how the Planning Inspectorate can best judge from afar whether cross-examination is needed because the case will depend on a multiplicity of factors. For example, it may be that the local planning authority has decided similar applications differently and the appellant wishes to cross-examine on that. Equally, it may be something said by officers in pre-application discussions or an aspect of how the officer or the committee handled the determination that is in dispute. All these matters might merit cross-examination, and I do not see how the Planning Inspectorate can necessarily judge them.

Recently, for example, there was a successful enforcement appeal by inquiry where one of the reasons cited by the inspector for disagreeing with a previous inspector who had considered the same development on appeal following the application stage was the fact that the previous appeal had been determined only by written representations. That example demonstrates the need for appellants to have the right to demand a hearing if they wish to spend their money in that way.

Baroness Andrews: These are important issues and I am sorry if some noble Lords did not receive the famous letter. I shall make sure that they are sent it anyway, but now I shall speak for the record and thus tell noble Lords what was in it. The right to be heard raises serious issues and I hope that I can reassure noble Lords that the Bill provides for it.

Essentially the clause requires the Secretary of State to determine the procedure by which appeals and calling cases under the Town and Country Planning Act, the Listed Buildings Act and the Hazardous Substances Act should be considered, while Schedule 10 sets out consequential amendments to those Acts. I shall set out the reasoning for this and make clear the safeguards that are in place, but first I shall give a bit of background, which I am sure noble Lords will appreciate. The existing appeals system is under severe strain and does not always serve as well as it might the purposes of those who choose to appeal. It can be disproportionate in the way it handles cases. At the moment, parties are allowed to select the procedure by which a case can proceed—written representations, a hearing or an inquiry—regardless of the suitability of the process to the complexity of the case.

Under the present system, even the simplest cases such as appeals relating to dormer windows or boundary walls can proceed via a hearing or an inquiry when written representations would be just as appropriate and certainly speedier. I submit that they would also be much less stressful for all concerned. The use of disproportionately complex methods of appeal in cases that do not necessarily warrant them results in inefficiencies and delays, as well as a lack of credibility. It is important that we introduce more proportion and clarity into the appeals system so that the procedures reflect relative complexity without putting anyone at a disadvantage. Ensuring that all cases are dealt with using the most appropriate appeal method will lead to quicker decisions and will save everyone time, stress and money. In

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practice, this proposal would allow the Planning Inspectorate to use its delegated powers to determine on behalf of the Secretary of State the appropriate procedure for each case, whether it is a local inquiry, hearing or written representations.

I shall now go through the safeguards that are built into the process to ensure that the right and acceptable procedure is selected for each case. Clause 190 would simply enable the Planning Inspectorate, acting on behalf of the Secretary of State, to apply published criteria which Ministers have approved to determine the most appropriate procedure for appeals and calling cases. We are talking about transparency here. These criteria have already been consulted on in our consultation paper, Improving the Appeals Process in the Planning System: Making it Proportionate, Customer Focused, Efficient and Well Resourced. We will keep it under review, and further consultation obviously may be appropriate from time to time. These criteria are there for all to see and they will operate in a spirit of transparent fairness.

The principal parties, being the applicant, the appellant or the local planning authority, will be invited to indicate in the early stages of a case the procedure that they believe is most appropriate, and why. Any representations made by the parties as to the procedure they think is most appropriate will be taken into account by the Planning Inspectorate when making a decision—the right to be heard is clearly in place. Only in cases where there is a disagreement between the parties as to what is best and the planning inspector’s procedure team as to what procedure should be used will a professionally qualified inspector at assistant director level be called on to make the final decision. The parties will be informed of the method that the inspectorate considers the most appropriate and why. With all their huge experience, I am sure that we can trust them not only to come to the right decision but to communicate that decision in a way that people accept as trustworthy and efficacious.

In addition, I will be asking the Advisory Panel on Standards, which supports us across the planning system, for the Planning Inspectorate to look at any cases of complaint and report to me on how the system operates in practice. So we will be monitoring it through APOS. In tandem with this provision, we have already said that we will extend the costs regime, which currently applies to hearings and inquiries only, to the written representation procedure. This will ensure that, regardless of the procedure pursued, applicants and local planning authorities will have an opportunity to seek an award of costs in cases where unreasonable behaviour by another party has caused them unnecessary expense. I appreciate what the noble Lord said about having been persuaded by the process as set out in my letter. I believe genuinely that this does not deprive people of the right to be heard. It makes provision for proper choice and proper arbitration when there is a problem. Certainly people will have the right to be heard.

Case law demonstrates that the right to be heard can be satisfied by the provision of evidence through written representations. Cases that do not need an oral hearing could be fairly and effectively handled by

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means of written representations with no loss of quality or equity in the process or the decision. Obviously the outcome will depend on how convincingly the inspector finds the planning merits, not the method of their presentation. In this way we will ensure that people in vulnerable groups are given a fair hearing and an opportunity to put forward their case. That may well mean that a hearing or inquiry is appropriate even where this would not normally be justified by the complexity of the case.

Lord Tyler: How does the Minister propose to ensure that third parties, who may be local representatives, are built into the system so that they can make representations to seek a full hearing rather than simply a decision based on written representations? I, for example, as a local councillor, have several times appeared at planning inquiries to represent the views of the local community as opposed to the planning authority or the applicant. That can be the deciding factor.

Baroness Andrews: I am sure that provision can be made for that. However, because I do not have the detail of how it fits into the sequence of the process, I shall write to the noble Lord about it. It is an important point for all the reasons he has given. Indeed, third parties would not be disadvantaged by this proposal. They would still have the opportunity to put forward representations on a case regardless of the procedures selected. As now, these representations will be taken into account by an inspector. I am grateful to my officials for enabling me to put that on the record.

The noble Lord, Lord Jenkin, spoke to Amendment No. 433A and asked how we justify introducing an appeal fee—a general regime in which appellants pay a fee for pursuing a planning appeal even when they were appealing against a failure by the local planning authority to determine a planning appeal or a listed building application. That is the burden of the amendment. I had better read that again. The effect of Amendment No. 433A within a general regime in which appellants paid a fee for pursuing a planning appeal would be that those appealing against a failure by a local planning authority to determine a planning appeal or a listed building application would be exempt from such fees. The noble Lord asked me to justify the original intention.

9.15 pm

I sympathise with what I think is the underlying sentiment here, not least because the noble Lord spelled it out: that people should not have to pay for an appeal because a local authority fails to act. However, we have to look at the situation that, in practice, local authority planners find themselves in. In introducing an appeal fee our intention is to transfer part of the cost of running the appeals service from the general taxpayer to those who might actually benefit. That principle is applicable whatever the reason for an appeal or its eventual outcome, and any fee would be payable to the planning inspector to offset the costs of providing the appeals service.

It is worth recalling the real impact of this, because I think it will give the noble Lord some comfort. Local authorities have already reduced the time taken to

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determine planning applications. Around 80 per cent now consistently meet their target timescales for determining applications, so the number of appeals against non-determination should be relatively small. In any case, where applications are not determined within the prescribed timeframe, it may not just be default laziness or anything like that; it may be because planning officers are trying to resolve some concern about the application that would otherwise mean that it had to be refused. So it is not wholly the fault of the planning authority in many of these instances.

If an authority fails to determine a case within the prescribed period, an applicant has the option of continuing to negotiate an outcome with the authority. Frankly, that may be quicker than going to appeal. The prospect of paying a fee to appeal should encourage applicants to continue negotiations with local authorities; it could be a positive incentive, and could discourage appeals that are made for, shall we say, tactical reasons.

If there is evidence that a local planning authority has acted unreasonably in a non-determination case, the applicant could seek an award of costs as part of the appeal proceedings. The Planning Inspectorate intends to adopt a rigorous approach to such cases to ensure that appellants are not unfairly penalised, and I think we can meet the objections of the amendment.

Before we introduce an appeal fee, we will be consulting on the detail of the proposed regime. We will certainly reflect on the concerns that have been raised in this House and will take them into account in developing the fee options. It is also worth the House recalling that fee regulations made under this section would be subject to affirmative resolution in both Houses. We have built in a series of important safeguards to get it right, to protect people from carelessness and to give them options—sometimes better options. These safeguards will also ensure that we have a robust arrangement by way of consultation and parliamentary activity.

Lord Jenkin of Roding: Does that mean that if a planning inspector finds that a local authority has behaved unreasonably in the circumstances I described a few minutes ago, simply declining to make a decision and so running out of time, the inspector will then have the power to order the local authority to bear the whole cost? Is that right?

Baroness Andrews: Yes; I shall repeat the point. In those circumstances, if there is evidence that a local planning authority has acted unreasonably in a non-determination case, the applicant could seek an award of costs as part of the appeal proceedings. As I say, I think the Planning Inspectorate will be on the qui vive for that, to maintain its own high standards.

We are bringing forward government Amendment No. 434 in response to concerns expressed by the Delegated Powers and Regulatory Reform Committee on the scope of the power in new Section 303ZA in the Town and Country Planning Act 1990 to amend, repeal or revoke other legislation. As currently drafted, there is the power for regulations made under new Section 303ZA to amend, repeal or revoke any provision made by or under the TCPA or by or under any other Act. This amendment limits that power so that regulations

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can amend, repeal or revoke provisions under the TCPA or any other Act only in order to make provisions to the effect of paying, or failing to pay, an appeal fee or incidental supplementary consequential transitional or transitory provisions and savings. Amendment No. 434 therefore reflects the committee’s suggestion to restrict the scope of the power.

I turn to government Amendment No. 435. Clause 196 contains a power for the Welsh Ministers to make provision by order to apply England-only provisions in Wales. The Welsh Ministers are aware of the Government’s decision to drop local member review bodies in England and do not wish to proceed with the proposal in Wales. Amendment No. 435 therefore removes the local member review body provisions from the list of those that could be applied to Wales by order.

Lord Jenkin of Roding: Nobody has actually said, in the course of the debate, how grateful we are to the noble Baroness for having withdrawn the whole clause. It was clearly running into considerable difficulties and she has had the wisdom to take it back.

[Amendment No. 413A not moved.]

Clause 177 negatived.

Clause 178 [Determination of applications for certificates of lawful use or development by officers]:

[Amendment No. 413B not moved.]

Clause 178 negatived.

Clause 179 negatived.

Clause 180 [Determination of listed building applications by officers]:

[Amendment No. 414 not moved.]

Clause 180 negatived.

Clause 181 agreed to.

Schedule 7 agreed to.

Clause 182 agreed to.

Clause 183 [Removal of right to compensation where notice given of withdrawal of planning permission]:

Baroness Andrews moved Amendments Nos. 415 and 416:

415: Clause 183, page 106, line 42, leave out “In”

416: Clause 183, page 107, line 2, after “order)” insert “is amended as follows.

(2) After subsection (2) insert—

“(2A) Where—

(a) planning permission granted by a development order for development in England of a prescribed description is withdrawn by the issue of directions under powers conferred by the order, or

(b) planning permission granted by a local development order for development in England is withdrawn by the issue of directions under powers conferred by the order,

this section applies only if the application referred to in subsection (1)(b) is made before the end of the period of 12 months beginning with the date on which the directions took effect.”

(3) ”

On Question, amendments agreed to.



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Baroness Andrews moved Amendment No. 417:

417: Clause 183, page 107, line 4, leave out from beginning to end of line 19 and insert—

“(a) in the case of planning permission granted by a development order, the condition in subsection (3C) is met;

(b) in the case of planning permission granted by a local development order, the condition in subsection (3D) is met.

(3C) The condition referred to in subsection (3B)(a) is that—

(a) the planning permission is granted for development in England of a prescribed description,

(b) the planning permission is withdrawn in the prescribed manner,

(c) notice of the withdrawal was published in the prescribed manner not less than 12 months or more than the prescribed period before the withdrawal took effect, and

(d) either—

(i) the development authorised by the development order had not started before the notice was published, or

(ii) the development order includes provision in pursuance of section 61D permitting the development to be completed after the permission is withdrawn.

(3D) The condition referred to in subsection (3B)(b) is that—

(a) the planning permission is granted for development in England,

(b) the planning permission is withdrawn by the revocation or amendment of the local development order, or by the issue of directions under powers conferred by the local development order,

(c) notice of the revocation, amendment or directions was published in the prescribed manner not less than 12 months or more than the prescribed period before the revocation, amendment or directions (as the case may be) took effect, and

(d) either—

(i) the development authorised by the local development order had not started before the notice was published, or

(ii) the local development order includes provision in pursuance of section 61D permitting the development to be completed after the permission is withdrawn.””

[Amendment No. 417A, as an amendment to Amendment No. 417, not moved.]

On Question, Amendment No. 417 agreed to.

[Amendment No. 418 had been withdrawn from the Marshalled List.]

Baroness Andrews moved Amendment No. 419:

419: Clause 183, page 107, line 19, at end insert—

“(4) After subsection (4) insert—

“(5) Regulations under this section prescribing a description of development may (in particular) do so by reference to one or more classes or descriptions of development specified in a development order.

(6) In this section “prescribed” means prescribed by regulations made by the Secretary of State.””

On Question, amendment agreed to.

Clause 183, as amended, agreed to.

Clause 184 [Power to make non-material changes to planning permission]:


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