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The principal parties—the applicant/appellant and 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 will be taken into account by the Planning Inspectorate when making a decision on the procedure. It is worth saying that the inspectorate has a vast depth of experience in administering and handling appeals, which it will be able to draw upon to help it when applying the criteria to determine the method. Furthermore, this decision will not be made in a vacuum and close attention will be paid to the views of the principal parties.

In cases where there is a disagreement between the parties and the Planning Inspectorate’s procedure team as to what procedure should be used, a professionally qualified inspector at assistant-director level will be called upon to make the final decision. Parties will be informed of the method that the inspectorate considers the most appropriate and why. We have every confidence that this process will work well, but are not going to take that for granted. We intend to ask the independent Advisory Panel on Standards for the Planning Inspectorate Executive Agency to look at any cases of complaint and report to us on how the system operates in practice.

The proportionate approach that we advocate should reduce costs for everyone. For example, we should not require people to take time off work to travel to a hearing or inquiry, which could be some way from

12 Nov 2008 : Column 687

where they live, when their representations could be made as effectively in writing. Applicants and appellants would benefit from a reduction of time taken to determine their cases. Cases that do not need an oral hearing could be fairly and effectively handled by means of written representations with no loss of quality or equity to the process or the decision. The outcome will depend on how convincing the inspector finds the planning merits, not the method of their presentation. Case law demonstrates that the right to be heard can be satisfied by the provision of evidence through written representations.

We are also aware that some appellants may choose an oral hearing because that process carries an option for award of costs. 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, parties will have the opportunity to seek an award of costs in cases where unreasonable behaviour by another party has caused them unnecessary expense.

The process will bring many benefits. The more complex cases will be dealt with by the more complex procedures, while the simpler cases will be dealt with via the simpler written representations procedure. The safeguards that I have outlined will ensure that the most appropriate procedure is used for each case, and that vulnerable people will not be disadvantaged. The process will make the system more proportionate, which in turn will make it more effective and efficient for everyone. The clause should therefore stand part of the Bill.

Baroness Hamwee: My Lords, the Minister started by saying that the Government’s proposed new arrangements would be less stressful for all concerned. However, the appellant can now decide whether or not to seek a hearing, as I suggest that they should continue to be able to do. If the appellant wants a hearing, they take the accompanying stress; that is a matter for them. If it is stressful for the inspectorate, frankly it is their job to take the decisions.

I wonder how much time would be taken in assessing the representations for which procedure is to be followed. The net time saving may not be quite as suggested.

I am grateful to the noble Lord, Lord Jenkin of Roding, who said that my approach would mean taking out the whole clause covering a number of pages. However, all the pages make this simple provision, so I would not be jeopardising anything else. The award of costs that the noble Lord mentioned could be dealt with separately; it is a parallel issue that does not have to be swept up by this new clause.

I agree with the noble Lord that the Planning Inspectorate is a service that should serve all customers well. However, listening to the defence that he put forward, I would say that a good deal of this is about internal organisation. As the noble Lord, Lord Jenkin, said, this is about confidence in the system. I do not have that confidence. I believe that the Government’s approach would undermine public confidence. It is a matter of principle. The noble Lord talked about benefits; I see it as a reduction of opportunity. I beg to test the opinion of the House.



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5.16 pm

On Question, Whether the said amendment (No. 128) shall be agreed to?

Their Lordships divided: Contents, 108; Not-Contents, 143.


Division No. 1


CONTENTS

Addington, L.
Ashcroft, L.
Attlee, E.
Baker of Dorking, L.
Barker, B.
Bonham-Carter of Yarnbury, B.
Bowness, L.
Bradshaw, L.
Burnett, L.
Chidgey, L.
Chorley, L.
Clement-Jones, L.
Cobbold, L.
Colville of Culross, V.
Colwyn, L.
Cotter, L.
Courtown, E.
Craigavon, V.
Crathorne, L.
Crickhowell, L.
De Mauley, L.
Dean of Harptree, L.
Dholakia, L.
Dundee, E.
Dykes, L.
Elton, L.
Falkland, V.
Falkner of Margravine, B.
Ferrers, E.
Finlay of Llandaff, B.
Fookes, B.
Forsyth of Drumlean, L.
Fowler, L.
Garden of Frognal, B.
Glasgow, E.
Glenarthur, L.
Goodhart, L.
Greaves, L.
Greengross, B.
Hamilton of Epsom, L.
Hamwee, B.
Harris of Richmond, B.
Howard of Rising, L.
Howe, E.
Howe of Idlicote, B.
Inglewood, L.
James of Blackheath, L.
Jenkin of Roding, L.
Jones of Cheltenham, L.
Jopling, L.
Kingsland, L.
Kirkwood of Kirkhope, L.
Knight of Collingtree, B.
Laird, L.
Lee of Trafford, L.
Lester of Herne Hill, L.
Linklater of Butterstone, B.
Livsey of Talgarth, L.
McNally, L.
Maddock, B.
Mar, C.
Mar and Kellie, E.
Marlesford, L.
Mayhew of Twysden, L.
Methuen, L.
Miller of Chilthorne Domer, B.
Miller of Hendon, B.
Naseby, L.
Neuberger, B.
Newby, L.
Northbrook, L.
Northover, B.
Norton of Louth, L.
O'Cathain, B.
Onslow, E.
Razzall, L.
Redesdale, L.
Rennard, L.
Roberts of Llandudno, L.
Roper, L.
Ryder of Wensum, L.
Selkirk of Douglas, L.
Selsdon, L.
Sharman, L.
Sharp of Guildford, B.
Shaw of Northstead, L.
Shephard of Northwold, B.
Sheppard of Didgemere, L.
Shutt of Greetland, L. [Teller]
Slynn of Hadley, L.
Smith of Clifton, L.
Southwark, Bp.
Stewartby, L.
Stoddart of Swindon, L.
Taylor of Holbeach, L.
Teverson, L. [Teller]
Thomas of Gresford, L.
Thomas of Walliswood, B.
Thomas of Winchester, B.
Tordoff, L.
Trefgarne, L.
Trenchard, V.
Tyler, L.
Ullswater, V.
Waddington, L.
Wallace of Saltaire, L.
Walmsley, B.
Windlesham, L.

NOT CONTENTS

Adams of Craigielea, B.
Adonis, L.
Amos, B.
Anderson of Swansea, L.
Andrews, B.
Archer of Sandwell, L.
Barnett, L.
Bassam of Brighton, L. [Teller]
Berkeley, L.
Bernstein of Craigweil, L.
Bew, L.
Bhattacharyya, L.
Billingham, B.
Bilston, L.


12 Nov 2008 : Column 689

Blackstone, B.
Blood, B.
Boothroyd, B.
Borrie, L.
Boyd of Duncansby, L.
Bragg, L.
Brett, L.
Brooke of Alverthorpe, L.
Brooks of Tremorfa, L.
Cameron of Lochbroom, L.
Campbell-Savours, L.
Chandos, V.
Christopher, L.
Clark of Windermere, L.
Clarke of Hampstead, L.
Clinton-Davis, L.
Cohen of Pimlico, B.
Corbett of Castle Vale, L.
Crawley, B.
Cunningham of Felling, L.
Davidson of Glen Clova, L.
Davies of Coity, L.
Davies of Oldham, L.
Desai, L.
Dixon, L.
Donoughue, L.
Drayson, L.
D'Souza, B.
Dubs, L.
Elder, L.
Elystan-Morgan, L.
Evans of Parkside, L.
Evans of Watford, L.
Farrington of Ribbleton, B.
Faulkner of Worcester, L.
Filkin, L.
Ford, B.
Foster of Bishop Auckland, L.
Gale, B.
Gavron, L.
Gibson of Market Rasen, B.
Golding, B.
Gordon of Strathblane, L.
Gould of Potternewton, B.
Graham of Edmonton, L.
Grocott, L.
Harris of Haringey, L.
Harrison, L.
Hart of Chilton, L.
Haskel, L.
Haworth, L.
Hilton of Eggardon, B.
Hollis of Heigham, B.
Howarth of Breckland, B.
Howarth of Newport, L.
Howells of St. Davids, B.
Howie of Troon, L.
Hoyle, L.
Hughes of Woodside, L.
Hunt of Kings Heath, L.
Jay of Paddington, B.
Joffe, L.
Jones, L.
Jones of Whitchurch, B.
King of West Bromwich, L.
Kirkhill, L.
Lea of Crondall, L.
Lipsey, L.
Listowel, E.
Low of Dalston, L.
McDonagh, B.
Macdonald of Tradeston, L.
McIntosh of Hudnall, B.
MacKenzie of Culkein, L.
Mackenzie of Framwellgate, L.
McKenzie of Luton, L.
Mandelson, L.
Masham of Ilton, B.
Massey of Darwen, B.
Maxton, L.
Morgan of Drefelin, B.
Morgan of Huyton, B.
Morris of Aberavon, L.
Morris of Handsworth, L.
Morris of Yardley, B.
Myners, L.
O'Neill of Bengarve, B.
O'Neill of Clackmannan, L.
Parekh, L.
Patel of Blackburn, L.
Patel of Bradford, L.
Pendry, L.
Pitkeathley, B.
Ponsonby of Shulbrede, L.
Prashar, B.
Prosser, B.
Prys-Davies, L.
Quin, B.
Rea, L.
Rendell of Babergh, B.
Richard, L.
Rooker, L.
Rosser, L.
Rowlands, L.
Royall of Blaisdon, B.
Scotland of Asthal, B.
Sewel, L.
Simon, V.
Soley, L.
Stone of Blackheath, L.
Symons of Vernham Dean, B.
Temple-Morris, L.
Thornton, B. [Teller]
Tomlinson, L.
Truscott, L.
Tunnicliffe, L.
Turner of Camden, B.
Uddin, B.
Walpole, L.
Warner, L.
Watson of Invergowrie, L.
Wedderburn of Charlton, L.
West of Spithead, L.
Whitaker, B.
Williams of Elvel, L.
Williamson of Horton, L.
Woolmer of Leeds, L.
Young of Hornsey, B.
Young of Norwood Green, L.

Resolved in the negative, and amendment disagreed to accordingly.

5.26 pm

Lord Patel of Bradford moved Amendment No. 129:

129: After Clause 195, insert the following new Clause—

“Meaning of “local authority” in planning Acts



12 Nov 2008 : Column 690

In section 336(1) of TCPA 1990 (interpretation) in the definition of “local authority” after paragraph (aa) insert—

“(ab) the London Fire and Emergency Planning Authority;”.”

The noble Lord said: My Lords, I shall speak to government Amendments Nos. 129 and 163. The noble Baroness, Lady Hamwee, and the noble Lord, Lord Greaves, raised the difficulties faced by the London Fire and Emergency Planning Authority and tabled Amendment No. 432A in Committee to make the London Fire and Emergency Planning Authority a local authority for the purposes of Section 237 of the Town and Country Planning Act. The Minister agreed to reflect further on the points raised.

We decided that the best way forward would be to put the London Fire and Emergency Planning Authority in the same position as its predecessor, the London Fire and Civil Defence Authority, which was a precepting authority and so fell within the definition of a local authority in the TCPA, and in, by extension, the other planning Acts.

The London Fire and Emergency Planning Authority functions, in the main, like combined fire and rescue authorities, which are also specifically defined as local authorities. It might also be said to have a similar status within London’s government as the Metropolitan Police Authority, which is also defined as a local authority in the TCPA.

All these organisations are found in the definition of a local authority in Section 336(1) of the Town and Country Planning Act. The new clause introduced by Amendment No. 129 will mean that the London Fire and Emergency Planning Authority will join them.

Amendment No. 163 adds the new clause to those provisions in Clause 233 which will come into force two months after Royal Assent. I beg to move.

Baroness Hamwee: My Lords, I thank the Government for looking at and acting on this. As the noble Lord will know, it turns out that there has been an unintended consequence. I should perhaps apologise to all other fire and rescue authorities because the legislation that this seeks to amend seems to allow the overriding of covenants on land, which was what lay behind this. Given LFEPA’s PFI programme, it now seems that not only will LFEPA not have these powers, because the section in question deals with local authorities, not local planning authorities—I might have that the wrong way round—but that no other fire and rescue services will have them either.

I am informed in a message I received after proceedings started this afternoon that the Government do not consider corrective legislation appropriate at this time. I can understand that it is very difficult for the Government to be faced with this matter at this stage. However, I make a plea for it to be considered as quickly as possible and for some mechanism to be found to correct this problem. They have responded very quickly to the issue, but at that time nobody thought that it would throw up a different problem. I hope that something can quickly be tacked on to other legislation because clearly it is nonsensical not to sort this out and to enable all fire and rescue authorities to deal with covenants appropriately by placing them on the same footing as other local authorities.



12 Nov 2008 : Column 691

On Question, amendment agreed to.

Earl Cathcart moved Amendment No. 129ZA:

129ZA: After Clause 195, insert the following new Clause—

“Protection of gardens and green spaces

(1) The Town and Country Planning Act 1990 (c. 8) is amended as follows.

(2) After section 71A insert—

“71B Duty as respects gardens and urban green space in exercise of planning functions

In exercise of any function under or by virtue of the planning Acts, the Greater London Authority Act 1999 (c. 29) or the Planning and Compulsory Purchase Act 2004 (c. 5), special regard shall be had to the desirability of preserving gardens, groups of gardens and urban green spaces.”

(3) In section 336, after the definition of “function”, insert—

““green space” means—

(a) land laid out as a public garden;

(b) land used for the purposes of public recreation;

(c) a pocket of green, or predominantly green, space in an urban area which the local planning authority considers of townscape importance and which contributes to the character of the area or amenity of local residents;

(d) an area of open space which benefits wildlife and biodiversity;”

(4) Nothing in any guidance issued by the Secretary of State, a regional planning authority or other higher tier planning authority may be used by the Secretary of State to set aside a decision made in accordance with the adopted policies of a local planning authority for the protection and preservation of gardens or green space in their local authority area, unless the Secretary of State or planning authority can demonstrate that—

(a) it is essential in the specific case to the achievement of national housing targets; or

(b) the decision of the local planning authority was improper.

(5) Nothing in this section shall be construed as—

(a) enabling the Secretary of State or higher tier planning authority to impose targets for local housing densities on a local planning authority in order to override the protection or preservation of gardens, or

(b) interfering with permitted development rights.”

The noble Earl said: My Lords, this amendment concerns the preservation of gardens and open spaces and the current classification of gardens as brownfield. The amendment is inspired by Private Members’ Bills introduced in another place by my honourable friends Caroline Spelman and Greg Clark, which received strong support from all parties and NGOs, including the RSPB, as indeed did a similar proposal from Lorely Burt for the Liberal Democrats. For Labour, there was strong support from Gisela Stuart and Chris Mullin, who said that members of the Government—I am sure this does not include the noble Baroness, Lady Andrews—are in a “state of denial” over this issue.

The problem arises from the classification of back gardens as brownfield sites, the emphasis on “brownfield first” development and high density targets being forced on local authorities. A survey of six local authorities was conducted recently comprising Bradford, Chelmsford, Nottingham, Guildford, Oxford and Tunbridge Wells, which found that a staggering 72 per cent of all brownfield site development was on gardens. Gardens are under attack as never before from planning policies

12 Nov 2008 : Column 692

skewed in favour of infill, backfill and the demolition of suburban properties to increase housing density. There is currently an application to demolish two family homes in a Birmingham suburb and replace them with 71 new dwellings. This folly of the planning system actively encourages a mismatch between infrastructure and development. For example, the existing drainage system cannot cope with the extra load of housing.

Sir Michael Pitt told the BBC that the garden grabbing surge had increased the risk of further flooding. He said that,

It would be a great mistake to ignore Pitt and an even greater one to underestimate the strength of public feeling on the issue. This surge in garden grabbing not only puts pressure on infrastructure and increases the risk of flooding but destroys the environment, biodiversity and places in which to relax and play safely.

Earlier, the noble Lord, Lord Howarth, moved an amendment to protect our heritage. Are our gardens not part of that heritage? A recent survey concluded that people’s health is improved by being in a green or semi-rural area, including a general feeling of well-being and a lowering of blood pressure and feelings of stress. Where has it gone wrong? I would like to be generous and say that defining gardens as brownfield land was a form of drafting that gave rise to unintended consequences. When I moved a similar amendment during the Housing and Regeneration Bill, the noble Baroness used PPS 3 and PPS 17 as her defence of existing policy. PPS 17 deals with protection and planning for open space, sport and recreation places that communities need, but it does not mention the protection of gardens. They are brownfield sites.

PPS 3 on housing was developed in response to recommendations in the Barker report. It talked about brownfield targets, higher densities per hectare, efficient and effective use of land and on page 15 of,

That is a green light for garden grabbing: rich pickings for developers. Chris Mullin told the other place of developers flying over back gardens in his Sunderland constituency in helicopters looking for suitable sites to develop. Annex B of PPS 3 states that previously developed land is defined as,

That definition specifically does not exclude gardens. It includes them within the curtilage.

When I asked my planning officer why PPS 3 was so ineffective, he said,



12 Nov 2008 : Column 693

That sums up succinctly why PPS 3 is so ineffective in protecting gardens from development. There is even a note in the House of Commons Library which says,

This amendment seeks to increase protection for gardens and small urban green spaces. It does so by leaving it to local communities to decide, not to higher authorities and least of all to remote central government. It does not take away the householder’s right to extend their house by permitted development. It does not prevent local authorities setting frameworks that are more permissive. But it does prevent the wishes of local people being undermined; unless in the specific case it can be shown that development is essential to achieve housing targets. Even in such cases, full consideration would have to be given to the importance of green space.

The Government are behind the curve of public opinion and, as Chris Mullin said, they are in “a state of denial”. I beg to move.

Baroness Hamwee: My Lords, I support the amendment. The heading of the proposed new clause to the 1990 Act states:

“Duty as respects gardens and urban green space”,

but I think that the noble Earl has described a duty to respect those areas.

Our support for the aims of the amendment does not amount to disregard of housing need. I anticipate a criticism but I have enough of a track record, which some would call form, in leading these Benches through the Lobby on that issue. We should not allow developers to build on the easy plots and sites without regard to their function and value in terms of quality of life.

I am not entirely sure whether the proposed new clause as drafted is workable or how it fits in with current brownfield policies as they are expressed. Nor do I think that it particularly helps to refer to flooding, because there are other policies relating to that. The Government should take it away and, if I may say so without being disrespectful to the drafters, knock it into shape. The underlying point is important and the public would expect us to find the right way of expressing it.

Lord Howarth of Newport: My Lords, I have a great deal of sympathy with the spirit of the amendment. It is about our values as a society and the kind of environment and quality of life that we wish to have. Of course new housing is needed and often infill may be appropriate and should have permission. But this kind of development should not take place at any price. A civilised society does not permit developers, or even the owners of properties, to destroy gardens and urban green spaces without careful thought by decision-takers about where the public interest lies. When there is a genuine and important public interest in a development going ahead, no doubt it will do so, but it should never happen without deliberate and careful consideration. As the noble Earl said, it is the cumulative effect of small decisions that can have such devastatingly damaging consequences over time.


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