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[Amendment No. 442A not moved.]
Baroness Andrews moved Amendment No. 442B:
442B: Clause 204, page 128, line 9, at end insert—
“( ) Regulations under this section may provide that any interest, penalty or surcharge payable by virtue of the regulations is to be treated for the purposes of sections 202 to 205 as if it were CIL.
( ) The regulations providing for a surcharge or penalty must ensure that no surcharge or penalty in respect of an amount of CIL exceeds the higher of—
(a) 30% of that amount, and
(b) £20,000.
( ) But the regulations may provide for more than one surcharge or penalty to be imposed in relation to a CIL charge.
( ) The regulations may not authorise entry to a private dwelling without a warrant issued by a justice of the peace.”
On Question, amendment agreed to.
Clause 204, as amended, agreed to.
Baroness Andrews moved Amendment No. 442C:
442C: After Clause 204, insert the following new Clause—
(1) CIL regulations may require a charging authority to pay compensation in respect of loss or damage suffered as a result of enforcement action taken by the authority.
(2) In this section, “enforcement action” means action taken by a charging authority under regulations under section 204, including—
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(a) the suspension or cancellation of a decision relating to planning permission, and
(b) the prohibition of development pending assumption of liability for CIL or pending payment of CIL.
(3) The regulations shall not require payment of compensation—
(a) to a person who has failed to satisfy a liability to pay CIL, or
(b) in other circumstances specified by the regulations.
(4) Regulations under this section may make provision about—
(a) the time and manner in which a claim for compensation is to be made, and
(b) the sums, or the method of determining the sums, payable by way of compensation.
(5) CIL regulations may permit a charging authority to apply CIL (either generally or subject to limits set by or determined in accordance with the regulations) for expenditure incurred under this section.
(6) A dispute about compensation may be referred to and determined by the Lands Tribunal.
(7) In relation to the determination of any such question, the provisions of sections 2 and 4 of the Land Compensation Act 1961 (c. 33) apply subject to any necessary modifications and to the provisions of CIL regulations.”
On Question, amendment agreed to.
Clause 205 [Community Infrastructure Levy: procedure]:
Baroness Andrews moved Amendment No. 442D:
442D: Clause 205, page 128, line 26, at end insert—
“( ) procedures to be followed by a charging authority in relation to charging CIL;”
On Question, amendment agreed to.
6.15 pm
Lord Reay moved Amendment No. 443:
443: Clause 205, page 129, line 3, at end insert—
“( ) CIL regulations should make provision for it to be an offence for any applicant for development consent to seek to influence the decision by making improper donations.”
The noble Lord said: This amendment seeks to outlaw what I refer to as improper donations, but which in practice are known as goodwill payments, and now I believe in some cases are called community funds, as one euphemism seeks to replace another in the age-old fashion. These are the payments which developers seeking planning permission for onshore wind farms are in the habit of distributing to entities in the locality where they are making the application. The developers have discretion as to what sum they offer, to whom they offer it and at what moment they offer it. The practice is now commonplace. The CPRE published a table only last week that detailed 35 such cases and says that such payments are now routinely offered by at least three of the principal wind power generating companies with each development they bring forward. The sums offered can run into hundreds of thousands of pounds over the life of the project.
At one point, it looked as though the Government might be considering the regulation of these payments. They stated in the 2007 planning White Paper that:
“Developers are not prevented from making goodwill payments to individuals; however, any such payments would be outside the planning system and cannot directly influence or be taken into account by a local planning authority in its determination of any planning application”.
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No local authority in England has apparently got an official policy towards such payments, perhaps because the Government have said that they should be outside the planning system. But of course these payments are designed to influence the planning process and can, in fact, directly interfere with it.
For example, near to where I live, developers are applying for permission to build a large wind power station at Armistead in Cumbria. They offered £19,000 to redo the tennis court belonging to the youth club in a local village. This offer was accepted by the trustees of the club, two of whom were parish councillors and one of whom was married to a parish councillor. These councillors then had to absent themselves from the discussion on the proposal at the parish council meeting. As a result, the meeting lacked a quorum and the parish council was unable to deliver an opinion on the proposal to the district council. That is an example of interference in the planning system.
The time has come to regulate this area. The current situation provides too many opportunities for abuse. It also creates a highly divisive situation among local communities as developers, having already enriched selected farmers and landowners with the largesse supplied to them by the poor, unwitting electricity consumer, proceed after that to enrich selected elements among the local community.
As the Government will no doubt have noticed, this issue is gaining traction. Last week there was a 20-minute discussion on the subject at midday on Radio 4 following the publication of the CPRE paper. So I hope the Government will do something. The Minister explained today that wind turbines would not be liable to CIL. My point is that the present substantial contributions to the local community made by the developers should be regulated and that the current lawless and disturbing situation should not be allowed to continue and develop unchecked. I challenge the Minister to justify the Government’s present policy on this. To do so could be said to be the point of this probing amendment. I beg to move.
Baroness Andrews: I shall speak, first, to the government amendments in this group. Amendment No. 443ZA has been brought forward in response to concerns about the reserve powers that the Secretary of State would have to intervene in the way charging authorities set, collect and apply CIL. Representations have been made about the wide nature of the Secretary of State’s delegated powers and we have listened to those. The amendment therefore seeks to remove the regulation powers for the Secretary of State to provide herself with intervention powers over CIL-charging authorities.
The noble Earl, Lord Caithness, has indicated that he intends to oppose the Question that Clause 206 should stand part of the Bill. Following this amendment, Clause 206 would contain only a power for the Secretary of State to give guidance on any matter connected with CIL. I hope that that does not warrant a stand part debate and, on that basis, that the noble Earl will not oppose Clause 206 standing part of the Bill.
Government Amendment No. 444C provides for amendments to be made to four Acts of Parliament so that CIL can function effectively and efficiently. Under
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Section 38 of the Greater London Authority Act 1999 allows the Mayor of London to delegate functions. In particular, Section 38(2) allows the mayor to delegate his functions not only to the deputy mayor and any member of the staff of the Greater London Authority but also to the London Development Agency, the Common Council of the City of London and local authorities. The effect of proposed new subsection (2A) in the new clause is that the mayor may not delegate his CIL function to the latter three bodies.
There is a restriction in Section 9(8) of the Norfolk and Suffolk Broads Act 1998 which means that the Broads Authority may delegate functions in relation to its navigation area only to its navigation committee. Proposed new subsection (3) would mean that the Broads Authority would be able to delegate CIL functions, within its powers to delegate, to someone else should it so wish to do.
Finally, Section 71(1)(c) of the Deregulation and Contracting Out Act 1994 prevents a Minister making an order for the contracting out of,
Exceptions are made to that in Section 71(3) relating to the enforcement of things such as non-domestic rates and water charges. The amendment provides a similar exception for CIL purposes.
Government Amendment No. 460 is concerned with the commencement of two sets of provisions in Part 11. The effect of Amendment No. 460 would be that Clause 199 and the consequential amendments provided for in a new clause by Amendment No. 444C are to come into force by a commencement order by the Secretary of State.
Amendment No. 443, tabled by the noble Lord, Lord Reay, seeks to provide that the CIL regulations create a new offence when an applicant for development consent seeks to influence the decision by the consenting authority by offering what are called “improper donations”. I reassure him that government policy is extremely clear on this issue; it is a fundamental principle of the planning system that planning permission cannot be bought or sold. I know there is some concern—he has quoted the CPRE evidence—about the influence of benefits offered by some wind farms.
The question turns in part upon what is a material consideration relevant to a decision to grant planning permission for a particular development. That is a matter of both law and fact. It must be something that is about the development in question and the use of land, but in an individual case it will depend on the facts. The problem with the amendment is that it
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A planning authority is already acting unlawfully if it gives an unreasonable amount of weight to something in reaching a decision, or gives weight to something that is not a material consideration. If it does so, its decisions are potentially subject to judicial review or to investigation by the Local Government Ombudsman. I strongly believe that that is right and we should not alter the situation. I know that is a disappointing reply for the noble Lord, but I hope he can remove his amendment on that basis.
The Earl of Caithness: I am disappointed by the Minister’s response to my noble friend Lord Reay. I thought he had an extremely good point. I could regale the Committee with a number of examples where communities have been split by this developer behaviour. It is not just wind power; it is rich developers who are in a position to use money to try to secure local agreement by various means. In the case that has been mentioned, the parish council could not even take a vote on the issue. I hope she will look at this again. My noble friend has a good point and I felt she was a little dismissive of it, which is not her normal way.
The question of whether the clause should stand part follows from my Amendment No. 435J. However, I am grateful to the Minister for her Amendment No. 443ZA because it gets the Secretary of State out of where the Secretary of State should not be. I claim that as a little victory. The Minister has given precious little away throughout the Bill. It has been a long hard slog, and if she were opening bat for England we would not lose a test match.
Baroness Hamwee: I shall just say a word about two of the government amendments. On Amendment No. 444C—I relate this back to the question that I asked on Amendment No. 438M, which is now subsection (6) of the new clause in the amendment—I assume that the personal approval of the declaration under that new clause is not a function exercisable under Part 11. I am still puzzled, but maybe when I read it all it will become clear.
Baroness Andrews: I am sure there is an answer, and I will write to the noble Baroness. We will untangle all these clauses and explain the relationships in a letter.
Baroness Hamwee: I have put it as an observation. On Amendment No. 460 to Clause 226, which is the commencement clause, can the Minister explain why only these two provisions are to be subject to the Secretary of State bringing the commencement by order? Is it to enable the development of regulations? Perhaps I could say a word about the timing; noble Lords have touched on this already. I understand that the Government had indicated that they expect commencement to be in the spring of next year. The noble Baroness is nodding. Given the need for consultation on the regulations and the economic climate, this is ambitious, but I suppose the regulations will come in after the Bill has been enacted and the Act has commenced.
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The noble Baroness has said that she will write to noble Lords with some idea of when the new regime can be in place. That would have to be after the development of a charging schedule and its examination.
This has been a very difficult day. I take no pleasure in being as critical as I have been, but my noble friend and I feel extremely strongly that had the Government drafted regulations rather than focusing on how to get to the next stage of the Bill, then we would not have heard the difficulties, questions and criticism that have been voiced around the Committee today. The Government are often in this difficult situation of regulations following enactment. I do not expect the Minister to comment on this; I am being slightly self-indulgent in sounding off. But had regulations been thought through instead of an attitude of “How the hell can we get through this bloody Bill?”—unparliamentary language, maybe, but I think it expresses what quite a lot of people are feeling—we would have got to the end of this stage with much more consensus because our analysis of the problems might have come together rather more.
Baroness Andrews: I hear what the noble Baroness says. Having worked hard over the summer to put things on the face of the Bill, I think we have had a much better debate than we were able to have on Second Reading. I will write to her about the commencement orders and set out the schedules.
Lord Reay: I was disappointed with the noble Baroness’s reply to my amendment, as she realised I would be. However, I will read carefully what she said. I do not think that this issue will go away. Meanwhile, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 205, as amended, agreed to.
Clause 206 [Secretary of State]:
Baroness Andrews moved Amendment No. 443ZA:
On Question, amendment agreed to.
Clause 206, as amended, agreed to.
[Amendment No. 443A not moved.]
Clause 207 [CIL regulations: general]:
Lord Jenkin of Roding moved Amendment No. 444:
444: Clause 207, page 130, line 2, leave out “the House of Commons” and insert “both Houses of Parliament”
The noble Lord said: The amendment’s wording refers to the parliamentary approval of the regulations made under this part of the Bill. This was referred to very briefly by the noble Lord, Lord Goodhart, on Second Reading. I have been asked to say that he totally supports the amendment and offers his apologies to the Chamber for being unable to be here today. He chaired the Delegated Powers and Regulatory Reform Committee of this House and it is right that I draw attention to what it said on this issue.
Paragraph 26 of the report says:
“Regulations under clause 198 are subject to affirmative procedure in the House of Commons only. The memorandum”—
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that is, the government memorandum—
- “seeks to justify this on the basis that the regulations may result in the imposition of a charge, a matter for the financial privilege of the House of Commons”.
It is a matter for the other House to decide that; but one has to point out, as this report does, that,
- “receipts are not paid into the Consolidated Fund or any other particular fund but are to be spent by the receiving body (clause 202(1)); and that the regulations, so far as dealing with the matters referred to in clauses 202, 205 and 208, are not obviously financial”.
6.30 pm
Perhaps most significant, as the committee pointed out, is the statement that,
- “the following charges are subject to a procedure in both Houses: national insurance, council tax, business rates, the Business Improvement Districts levy, the climate change levy and indeed the two charges”,
which were mentioned in the Government’s memorandum. It goes on to recommend,
- “Except in so far as the House considers that provision in Part 11 ... is related to matters over which the Commons will claim financial privilege, we recommend that the power at clause 198 ... should be subject to control in both Houses”.
This is a matter of considerable constitutional significance. I have consulted the House authorities about the exact position. The first sentence in paragraph 7.173 of the Companion to the Standing Orders, which the authorities referred me to, says:
“Each House of Parliament is guardian of its own privileges. It alone may invoke them. Until it does so, the other House is free to act as it thinks fit”.
So it is entirely appropriate for us to table the amendment that I have tabled. It will be open to another place to claim the financial privilege, but only after the Bill is returned with the Lords amendment.
There is an exception to that rule—a category of matter which,
such as imposing a charge on public revenues, and so on. The Companion goes on to say:
“With these exceptions, the Commons may either invoke their financial privileges in respect of Lords amendments or waive them; and the Commons regularly accept Lords amendments which have financial implications. The Speaker of the Commons directs that a ‘special entry’ be made in their Journals implicitly asserting their general rights but stating that the Commons accept the Lords amendment, ‘the Commons being willing to waive their privileges’”.
Given the very clear and comprehensively argued case made by the Delegated Powers and Regulatory Reform Committee, it is not only entirely proper for us to table the amendment that I have, but incumbent on us to do so as we think fit as an expression of our entitlement to do so.
I add only one other point in favour of the amendment. When I was Secretary of State for the Environment, I had a very senior civil servant working for me with whom I kept closely in touch. He rose through the ranks and became a Permanent Secretary in another department. I speak of Sir Geoffrey Chipperfield, who has given me permission to use his name. At the end of a letter, in which he voiced a number of other criticisms, he said:
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