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12 Nov 2008 : Column 694

As the noble Earl also suggested, this issue is somewhat akin to that raised in Amendment No. 64—the proposed new clause on heritage—which, unhappily, the Government refused to accept. That debate was about the development consent regime and this is about the town and country planning regime. In the town and country planning regime, heritage assets are indeed protected, and so also should be our heritage of gardens and green spaces. I hope that my noble friend can offer some encouragement.

Baroness Andrews: My Lords, I start by saying that I am certainly not in a state of denial about the seriousness of the issue. There are serious concerns to be addressed. Despite what the noble Baroness, Lady Hamwee, said, serious issues have been raised by the amendment and the House deserves an explanation as to why we cannot accept it. We support the underlying aim of the amendment. I would not want to hear hollow laughter coming back at me from across the Chamber but it is true that we support the underlying aim of this amendment. The question is how best to stop the practice in a way that is consistent with the real pressures that face local authorities when it comes to having to build homes for people in desperate need. There is tension in the system.

5.45 pm

I do not have to be persuaded how important good- quality open green spaces are to the well-being of people. Gardens are an extraordinarily important part of our heritage and personal joy. There is a lot on which I agree with the noble Earl, but what would placing a duty in the Bill do? What would we be doing and what would be the consequences and the unintended consequences? I shall talk about the impact that this amendment would have on planning decisions. For reasons I went into earlier, we need to be very careful about adding new statutory duties to local authorities, and we also need to be very careful indeed about identifying one aspect of the planning system as more important than others. For the planning system to work, it has to be fairly balanced. We have to make sure that we anticipate consequences because they may have a serious knock-on effect on the way the whole system works.

I shall explain what might be some unforeseen consequences. If we were to require planning authorities to give some elements a special regard, that would imply that other elements should take second place. That would impose a level of hierarchy on the planning system that, because of the way it works, would have to be taken into consideration in decision-making, and would unbalance it. It goes against the way the system is designed to work, which is by allowing planning authorities to make judgments based on knowledge of the needs of their own area.

Furthermore, it would unduly restrict the discretion of the Secretary of State to take account of other material considerations in the determination of appeal decisions. Appeal decisions are determined on the basis of balancing a variety of material considerations, which may include policies and guidance issued at national and regional level. This amendment would unduly restrict the Secretary of State’s capacity to have regard to such guidance when considering an

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appeal against a planning authority’s decision that has been made in accordance with its policies for the preservation of gardens and green spaces. We are looking at a series of unforeseen, knock-on consequences that would effectively place restrictions on the right of appeal by an individual against the decision of the local planning authority. It is not in the best interests of a fair and impartial appeal process to have the deliberations of the Secretary of State in appeal decisions restricted by requiring that such guidance be disregarded.

As I said on the previous amendment, we would need to consult on this proposal in order to give local planning authorities and others the opportunity to put formal views on such a significant change. That is my problem with the amendment.

I shall go into the background because the speech of the noble Earl, Lord Cathcart, was very eloquent. There are real concerns about the phenomenon of garden grabbing. My argument is that this amendment will not prevent it, but that existing laws are capable of doing so. We made our policies on brownfield land areas and open spaces very clear through planning policy guidance. I shall come on to what the noble Earl said about PPS3 in a minute and especially what he quoted from his local planning officer. Planning authorities are required to take account of national policies in development plans, which provide the framework for decisions in individual planning applications. Local planning authorities are currently being encouraged to complete local development frameworks, which are designed to give clear strategic guidance about the local plan. There are statutory opportunities for local involvement in the preparation of these plans. National policies, where appropriate, can also act as material considerations in decisions on individual planning applications by planning authorities and, at appeal, by the Planning Inspectorate and the Secretary of State.

The history of the classification of gardens as brownfield goes back a long way and is complex. I think it goes back to 1985. Residential land has been classified as brownfield and covers all the land associated with a house or flat, including any garden as well as industrial, commercial, vacant and derelict land. The noble Earl will understand that simply to reclassify gardens so that they did not fall into the brownfield category would be extremely difficult because it would be impractical to define gardens in any way that separated the footprint of the building from the curtilage and the patios, drives or gardens that surround it. People want to do things in their gardens that may be well within their rights. Trying to separate the garden from the dwelling is extremely difficult and has serious implications for what people have a right to expect to be able to do most of the time. At the same time, it is not helpful to try to introduce blanket restrictions at national level that prevent well designed and much needed housing developments in areas where alternative land is in short supply, which applies to many boroughs in the south-east, in particular.

The noble Earl referred to planning policy statement 3. It sounds as though his local planning authority is rather sceptical about what it can enable it to do. We had a debate on the HCA to much the same effect.

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The provision was deliberately written to try to address some of those problems. We recognise the problem of the definition that sweeps up back gardens. The provision gives local planning authorities greater flexibility on the location of housing in their areas. They can set out within their local development frameworks strong and specific local policies to protect gardens in particular areas, if that is desirable. That includes—this is the way to do it—setting individual brownfield targets that apply only to back gardens, effectively separating them out from derelict land and vacant sites. That gives a red light to local planning authorities.

Many local authorities have done just that to protect against casual garden grabbing. Local authorities, especially those in areas of the country with mature residential suburbs, are under particular development pressure. They often have the choice between building out into greenfield sites or looking at what they have available that is plausible, practical, humane and fits in with what people can tolerate. They are already putting in place policies that will support them in refusing planning permission for proposals that would erode the supply of green spaces.

I can give two examples, which are significant because they are in the south-east and are boroughs under housing pressure. The Reigate and Banstead Borough local plan contains policies to maintain and protect high-quality residential environments. The unitary development plan of the London Borough of Sutton contains policies under which the council will resist the development of back-garden land considered to be of ecological value. In PPS3, we have given local authorities the tools to make those decisions and make them work and even greater flexibility to develop policies reflecting unique circumstances. All local authorities are free to do that.

I suggest to the noble Earl and his planning officer that they talk to some of those boroughs where they have reconciled those pressures and are using PPS3 creatively. As he said, the policy sits within a broader policy of protections for green space as a whole. He has already referred to PPG17, Planning for Open Space, Sport and Recreation, which lists what types of open space or recreational facility a planning authority may see fit to recognise as being worthy of protection within their policies. I will not repeat the list here, but it is very similar to that of the noble Earl’s amendment. It also states that existing open spaces and land should not be built on unless an assessment has been undertaken by the local authority. That assessment must have clearly shown the open space or land to be surplus to the requirements of the local community, taking into account all the functions that open space can perform.

We should not look to put additional legislation in place. Most of the time, this House would much rather that we proposed less legislation. The longer that I am a Minister, the more I am persuaded of that argument. We have to look for what works. We have argued consistently that making things work better should be our priority, but there is a serious problem and I am the first to acknowledge that there are concerns, not least for the reasons put forward by my noble friend Lord Howarth. Part of the problem is that, at the moment, we have only anecdotal evidence of where

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and how much garden grabbing is happening. We need better evidence. I therefore reassure noble Lords that, in the context of our 2007 White Paper commitment to review the national policy framework, we will consider how we can establish in the work that we are doing the extent of garden-grabbing and how we can strengthen and, crucially, communicate existing policies more successfully to help local planning authorities to address the problem.

We must ensure in the interim that all local authorities know that they have the tools to deliver all the improvements that we all wish to see. I mentioned that we have the happy accident of a new chief planner to adopt new priorities. I hope that he does not read Hansard tomorrow morning, as he may be rather surprised to see himself mentioned quite so often. We can ask him to look at this and to think about how we can best communicate to local authorities what in present planning law will enable them to take positive action to protect good-quality green spaces. My department does a lot of work to protect and enhance quality, not least through our green flag awards. The National Audit Office recently spoke about the enhancement of green spaces and parks, of which we are very proud. However, the noble Earl has drawn attention to a problem and we must consider what practical steps we can take to improve on what we are doing.

Earl Cathcart: My Lords, I am grateful to the noble Baroness, Lady Hamwee, and the noble Lord, Lord Howarth, for supporting the amendment. I thought at the beginning that I was going to be able to offer lukewarm thanks to the Minister for almost supporting it but, having listened to what she said, I am not convinced by her arguments. She has still not convinced me that the present planning policies will safeguard gardens and open spaces. Sadly, she has not even offered to shut the stable door after the horse has bolted. Instead, she proposes to leave it wide open. In view of the importance of this matter, I wish to test the opinion of the House.

5.56 pm

On Question, Whether the said amendment (No. 129ZA) shall be agreed to?

Their Lordships divided: Contents, 135; Not-Contents, 128.

Division No. 2


Addington, L.
Alton of Liverpool, L.
Anelay of St Johns, B. [Teller]
Ashcroft, L.
Astor of Hever, L.
Attlee, E.
Barker, B.
Bates, L.
Bonham-Carter of Yarnbury, B.
Bowness, L.
Bradshaw, L.
Bridgeman, V.
Brougham and Vaux, L.
Burnett, L.
Buscombe, B.
Byford, B.
Caithness, E.
Cameron of Dillington, L.
Carnegy of Lour, B.
Cathcart, E.
Chidgey, L.
Chorley, L.
Colwyn, L.
Cope of Berkeley, L.
Cotter, L.

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Courtown, E.
Craigavon, V.
Crathorne, L.
Crickhowell, L.
De Mauley, L.
Dean of Harptree, L.
Denham, L.
Dholakia, L.
Dixon-Smith, L.
D'Souza, B.
Dykes, L.
Elliott of Morpeth, L.
Elton, L.
Falkland, V.
Falkner of Margravine, B.
Finlay of Llandaff, B.
Fowler, L.
Freeman, L.
Gardner of Parkes, B.
Garel-Jones, L.
Glasgow, E.
Glenarthur, L.
Glentoran, L.
Greaves, L.
Greenway, L.
Hamwee, B.
Hanham, B.
Harris of Richmond, B.
Henley, L.
Hodgson of Astley Abbotts, L.
Hooper, B.
Howard of Rising, L.
Howarth of Breckland, B.
Howe, E.
Howe of Aberavon, L.
Howe of Idlicote, B.
Hunt of Wirral, L.
Inglewood, L.
Jenkin of Roding, L.
Jopling, L.
King of Bridgwater, L.
Kingsland, L.
Kirkwood of Kirkhope, L.
Knight of Collingtree, B.
Lawson of Blaby, L.
Lee of Trafford, L.
Lester of Herne Hill, L.
Linklater of Butterstone, B.
Livsey of Talgarth, L.
Low of Dalston, L.
McColl of Dulwich, L.
Maddock, B.
Mar, C.
Mar and Kellie, E.
Marlesford, L.
Masham of Ilton, B.
Mayhew of Twysden, L.
Methuen, L.
Miller of Chilthorne Domer, B.
Miller of Hendon, B.
Montrose, D.
Morris of Bolton, B.
Newby, L.
Newton of Braintree, L.
Northbrook, L.
Northover, B.
Norton of Louth, L.
O'Cathain, B.
O'Neill of Bengarve, B.
Razzall, L.
Reay, L.
Rennard, L.
Roberts of Conwy, L.
Roberts of Llandudno, L.
Roper, L.
Rowe-Beddoe, L.
Ryder of Wensum, L.
Sandwich, E.
Seccombe, B.
Selkirk of Douglas, L.
Selsdon, L.
Sharman, L.
Sharp of Guildford, B.
Sharples, B.
Shaw of Northstead, L.
Sheikh, L.
Shephard of Northwold, B.
Sheppard of Didgemere, L.
Shutt of Greetland, L. [Teller]
Skelmersdale, L.
Slynn of Hadley, L.
Smith of Clifton, L.
Steel of Aikwood, L.
Stern, B.
Stewartby, L.
Stoddart of Swindon, L.
Strathclyde, L.
Taylor of Holbeach, L.
Teverson, L.
Thomas of Walliswood, B.
Thomas of Winchester, B.
Tordoff, L.
Trefgarne, L.
Tyler, L.
Ullswater, V.
Verma, B.
Waddington, L.
Wallace of Saltaire, L.
Walpole, L.
Williamson of Horton, L.


Adams of Craigielea, B.
Adonis, L.
Amos, B.
Anderson of Swansea, L.
Andrews, B.
Archer of Sandwell, L.
Bassam of Brighton, L. [Teller]
Berkeley, L.
Bernstein of Craigweil, L.
Bew, L.
Bhattacharyya, L.
Billingham, B.
Bilston, L.
Blackstone, B.
Blood, B.
Borrie, L.
Boyd of Duncansby, L.
Bragg, L.
Brett, L.
Brooke of Alverthorpe, L.
Campbell-Savours, L.
Carter of Barnes, L.
Chandos, V.
Christopher, L.
Clark of Windermere, L.
Clarke of Hampstead, L.
Clinton-Davis, L.
Cobbold, L.
Cohen of Pimlico, B.
Corbett of Castle Vale, L.
Crawley, B.
Cunningham of Felling, L.
Davidson of Glen Clova, L.
Davies of Oldham, L. [Teller]
Dixon, L.
Donoughue, L.
Drayson, L.

12 Nov 2008 : Column 699

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.
Goldsmith, L.
Gordon of Strathblane, L.
Gould of Potternewton, B.
Graham of Edmonton, L.
Grocott, L.
Harrison, L.
Hart of Chilton, L.
Haskel, L.
Haworth, L.
Hilton of Eggardon, B.
Hollis of Heigham, B.
Howells of St. Davids, B.
Howie of Troon, L.
Hoyle, L.
Hughes of Woodside, L.
Hunt of Kings Heath, L.
Jay of Paddington, B.
Jones, L.
Jones of Whitchurch, B.
King of West Bromwich, L.
Kingsmill, B.
Kinnock, L.
Kirkhill, L.
Lea of Crondall, L.
Lipsey, L.
McDonagh, B.
Macdonald of Tradeston, L.
McIntosh of Hudnall, B.
MacKenzie of Culkein, L.
McKenzie of Luton, L.
Massey of Darwen, B.
Maxton, L.
Montgomery of Alamein, V.
Morgan of Drefelin, B.
Morgan of Huyton, B.
Morris of Aberavon, L.
Morris of Handsworth, L.
Morris of Yardley, B.
Myners, L.
Newcastle, Bp.
O'Neill of Clackmannan, L.
Parekh, L.
Patel of Blackburn, L.
Patel of Bradford, L.
Pendry, L.
Pitkeathley, B.
Prosser, B.
Prys-Davies, L.
Quin, B.
Rea, L.
Rendell of Babergh, B.
Richard, L.
Ripon and Leeds, Bp.
Rooker, L.
Rosser, L.
Rowlands, L.
Royall of Blaisdon, B.
Scotland of Asthal, B.
Sewel, L.
Simon, V.
Soley, L.
Southwell and Nottingham, Bp.
Symons of Vernham Dean, B.
Temple-Morris, L.
Thornton, B.
Tomlinson, L.
Truscott, L.
Tunnicliffe, L.
Turner of Camden, B.
Uddin, B.
Warner, L.
Watson of Invergowrie, L.
Wedderburn of Charlton, L.
West of Spithead, L.
Woolmer of Leeds, L.
Young of Hornsey, B.
Young of Norwood Green, L.

Resolved in the affirmative, and amendment agreed to accordingly.

6.06 pm

Clause 199 [The levy]:

Baroness Andrews moved Amendment No. 129A:

129A: Clause 199, page 114, line 10, leave out from “land” to end of line 11

The noble Baroness said: My Lords, we now come to a completely different part of the Bill, which I know that we are all looking forward to enormously; namely, the community infrastructure levy. These are important clauses, although they represent the end of the Bill. I will not restate the case for CIL, save to say once again that a considerable consensus has been reached that CIL is the right way forward. My amendments in this group and others deliver the additional clarity that was sought by noble Lords in Committee and respond to specific points raised.

Government Amendments Nos. 129A, 136B, 148A, 148B, 149A, 153A and 160A respond comprehensively to concerns raised in this House, particularly by the noble Baroness, Lady Valentine, and by the industry,

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that CIL clauses place too much emphasis on the concept of land value uplift arising from the grant of planning permission. These amendments are either identical or broadly similar in effect to amendments proposed by the British Property Federation, the royal institute of chartered surveyors and Members of this House and the other place during the passage of this Bill.

The Government have held extensive discussions with the industry over the terminology. The amendments in this group attempt to allay concerns that the Government are attempting through this legislation to introduce their previous proposals for planning gain supplement, PGS. The record will show that I was quite clear in Committee that this is not the case, but I have tabled further amendments to put to rest those concerns. These amendments delete mentions of value uplift arising from the grant of planning permission in this part of the Bill. The reference to value uplift at Clause 203(2)(b) as being something to which charging authorities should have regard would be replaced by a reference to a more general concept of the economic viability of development as a result of government Amendment No. 136B. I hope that noble Lords will recognise that this is an example of us listening closely to the industry and responding to concerns, while also making the right long-term choices for our country. Last week, in a statement, the British Property Federation welcomed the Government’s desire to,

This new amendment provides part of the explanation to the question of how CIL will work in London where there could be two charging authorities. I know the noble Lord, Lord Dixon-Smith, was particularly concerned about this.

The economic viability of development will include consideration of matters such as other costs that the development is likely to face. This would include developer contributions through planning obligations or CIL contributions due to another charging authority. The independent examiner would need to assess the combined impact of both charges on development and therefore consider the impact on development viability.

I should add that we do not envisage that the developer would be required to make two separate payments in London to two different authorities. That is clearly not efficient and we very much want to explore how a developer can make a single payment for all the CIL liability due. This would probably be to the borough, as boroughs will determine the great majority of planning applications in London, but we will consult on that. I hope that that will satisfy noble Lords.

Buried in the middle of the government amendments is an opposition amendment in the name of the noble Earl, Lord Caithness. It is better that I should hear him speak to his amendment first and then respond.

The industry has asked us whether we would be prepared to countenance a procedure by which a development in exceptional circumstances could receive

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a discount against CIL. For instance, it is suggested that where unforeseen factors were not taken into account in the setting up of the charging schedule, the imposition of CIL might render a development economically unviable.

Our position on that was set out in our August document at paragraphs 4.18 and 4.19. This legislation will provide charging authorities with a full range of tools to ensure that CIL charges are viable. For example, the Bill requires testing of the charging schedule by an independent person and it provides us with powers to create differential rates for different circumstances—paragraphs 3.61 to 3.63 of the August document—such as greenfield and brownfield land.

Government Amendments Nos. 148A and 148B propose two changes to Clause 214 to enable the charging schedule to both provide for exceptions to CIL and confer a discretionary power on a person. These amendments are supported by the industry. The changes will ensure that provision can be made to allow for exceptions and discretionary decisions within the CIL framework to be applied at the local level through the charging schedule as well as through the regulations directly. They are designed to give us the powers to ensure that CIL charging schedules are flexible local instruments. One key use of these powers could be to enable a procedure for exceptional cases, as I described earlier. We are committed to continuing what has been a very fruitful dialogue with the industry to see whether we can design something that will meet its concerns. I hope that reassures the House, particularly the noble Baroness, Lady Valentine.

For the record, we are not interested in designing a procedure that allows the exception to become the rule, nor a procedure in which there are protracted disputes about whether a developer can afford to pay CIL. That is not the point. Indeed, it is precisely those sorts of disputes that the industry saw as a key risk proposed by PGS. The whole purpose of CIL, and the reason the industry supports it, is to cut down on the lengthy and unpredictable negotiations which the current system is prone to and which many Members of this House are familiar with. We are trying to get away from that with this reform. We want predictability, simplicity and transparency so any procedure would need to be very carefully designed. I beg to move.

6.15 pm

The Earl of Caithness: My Lords, I thank the Minister. There has been quite a marked dawning of light in her department with regard to CIL as those there begin to look at it and work it out. Had it not been for the progress in this House, I fear what might have emanated in the form of an Act. There clearly has to be considerable rethinking and planning as to what CIL is about.

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