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A related problem is that no one has worked out what the relationship is to be between CIL and the planning obligations under Section 106 of the Town and Country Planning Act. It is very difficult. Perhaps it would be easier if the Government would accept that CIL would be applicable where Section 106 would not be applicable. Everyone would then know where they stand. Historically, Section 106 is applied to large planning applications which particularly involve—the noble Lord, Lord Best, will have an interest, although not a financial one—social housing. You can have large sections of social housing in large planning developments, but not in small ones.

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The noble Baroness may reply by saying that Section 106 will be applied to applications where it is appropriate, but where Section 106 is inappropriate CIL will be applied. That might be a solution to this dilemma, but we do not have that or any suggestion that that might be a possibility. We have heard that planning obligations will still apply, that it is still expected that social housing will be largely funded by Section 106 agreements and that CIL will be over and above this obligation. CIL, because it has to be part of the planning documentation system, will take real time to introduce. For a start, all local planning authorities will have to think much more clearly, and in much greater detail than they have previously been accustomed to doing, about what the possible local infrastructure obligations might be as a result of the development for which their local development plan provides.

This has to be a total approach—about that there is no question. I see that the Minister is nodding in agreement. That is why the system will be very complicated. If there is any suggestion that there should be haste or pressure on local planning authorities and local authorities to introduce this in anything other than a wholly considered and thoroughly developed way, I would be bound to say that such pressure would be completely disgraceful. It cannot be done like that.

I have no responsibility for introducing these proposals, but the Government have. It is an obligation for the Minister to explain exactly how she sees these proposals being developed. It would be nothing short of disgraceful if there should be the slightest hint that, because a local authority has not considered the matter thoroughly, there might be pressure on other aspects of its revenue as a consequence. I do not believe for a minute that that is what the Government intend, but we do not know and that is part of the difficulty.

We have very real problems. I would prefer, if it were technically possible, to settle the details of how the CIL might work. Although the Government have moved a long way on many of the aspects of which we have been critical, we still have not arrived at a conclusion.

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We still have the fundamental difficulty that the easy answer—perhaps I may put it this way in support of the noble Baroness—is that it might be wiser to reject the whole idea rather than to try to settle the details first so that we know how it might work and then consider whether one could accept or reject it.

I am sorry, but this is an instance where parliamentary procedures are not helping us to move forward. They are complicating our lives. I have made that point because I have a lot of sympathy with the noble Baroness’s proposal in the present circumstances.

Baroness Ford: My Lords, I resist this amendment and, in so doing, apologise to the noble Baroness, Lady Hamwee, for missing the first minute or so of her speech. I was scurrying up from the Barry Room with two very distinguished visitors from the Canadian and Australian housing systems, who are listening to the debate in your Lordships' House. They are very interested in the concept of the community infrastructure levy.

I hope I can assuage some of the concerns that have been articulated. In so doing I would like to draw on experience that certainly convinces me that the idea that local authorities have been doing nothing over the past year, waiting for Parliament to pass this legislation before they begin the process of preparing for the community infrastructure levy, is a bit wide of the mark.

I point to my experience with local authorities in Hampshire, Surrey, Sussex and other parts of England where, in anticipation first of the planning-gain supplement and then of the community infrastructure levy, many local authorities have begun their plans and been working quite hard to think through those projects which would benefit from the community infrastructure levy and how they might go about preparing to first strike the levy and then apply it. I have no doubt that in certain circumstances local authorities will choose not to charge a community infrastructure levy. In Committee it was widely accepted after an intervention by the noble Earl, Lord Caithness, that for brownfield sites it would be quite inappropriate to charge a community infrastructure levy because it would render those developments unviable. That, if nothing else, speaks to the question the noble Baroness, Lady Hamwee, raised about viability and zoning. It is right for zoning to protect those areas which would not be viable if a CIL were charged, while in other areas a CIL is absolutely necessary to pre-invest in necessary infrastructure. Lots of local authorities are busily working up their proposals and plans for the community infrastructure levy in anticipation of this legislation.

In response to the suggestion that we should call a halt to this and think again, I think we do a disservice to colleagues in local government. I hesitate to say this because I know that many noble Lords have had a distinguished career in local government and could claim to be much more expert in the workings of English local government than me, but I believe that across the country lots of councils not only are anticipating this but have donkey’s years of experience in procuring infrastructure. The big counties in England are very finessed and sophisticated in terms of procuring

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infrastructure. Although the community infrastructure levy suggests a different methodology, we have lots of expert, experienced people who know how to do this and who will adapt those skills to the new regime.

Noble Lords are aware of my interests in the register. I work with lots of local authorities that are interested in investing in infrastructure. Most people expect that this legislation is coming and welcome it. Lots of projects are simply stuck at the moment for want of that final gap that would make projects viable and maintain the momentum. For those reasons I hope noble Lords resist the amendment—

Lord Dixon-Smith: My Lords, I hear the noble Baroness and I am quite prepared to accept that a lot of local authorities will have given a great deal of thought to this. I also agree—particularly at county level; at district level I do not have the same experience—that they are very good at infrastructure provision in all its forms, including what I would determine to be the relevant aspect of this and what I would call social infrastructure.

The difficulty which the noble Baroness has not answered is how you incorporate this into planning documentation. Everybody is working on approved planning documentation. As I understand the process—and maybe I am incorrect—you cannot just add something to an approved planning document. It has to go through the total process. It is extremely difficult because you have one approved plan and the planning documentation is reviewed on a quinquennial basis. I do not see how this system can be incorporated into the existing one without questioning the validity of the current planning documentation—the Minister may be able to answer the point in her response—which means that the process inevitably must take time. I see no escape from that.

Baroness Ford: My Lords, no doubt my noble friend will correct me if I am wrong, but my understanding is that this could be done through some form of supplementary planning guidance; a number of other things are dealt with that way. However, I leave it to the Minister to confirm whether I am correct in that.

My final point in response to the noble Lord, Lord Dixon-Smith, is that a good feature of Section 106 and the community infrastructure levy is that again it is absolutely within the expertise of local authorities to understand how to distinguish when Section 106 should be applied and when a community infrastructure levy should be applied. Certainly in the examples I have looked at, it is anticipated that the levy will be used for what I would regard as economic development, employment and infrastructure purposes rather than for social housing. I have faith that local authority colleagues will be able to distinguish between these two things and manage them through the process. I hope that this is of assistance.

Lord Tyler: My Lords, I want briefly to support and supplement the comments of my noble friend Lady Hamwee in moving the amendment. She rightly laid emphasis on the complexity of the system in terms of London and the metropolitan cities, but I want to consider rural areas. Specifically I refer to

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those shire counties going through a considerable change as they move over to unitary authority status. As the Minister knows, a number are experiencing considerable change after a long period as two-tier administrations. Frankly, although I understand well the views expressed by the noble Baroness, Lady Ford, who says that we should trust the competence of local authorities—I agree that they are quite competent to deal with changes of this sort—those counties changing over to unitary status have had no time to concentrate on the changes. They have been entirely obsessed with the changes in how they will run local services—rightly so; I make no complaint about that. We should make no criticism because these are difficult and complicated changes.

In Part 11 we will be throwing at these authorities a very complex set of new requirements to implement over what I presume is to be a relatively short timescale. I hear what the noble Lord, Lord Dixon-Smith, says about the quinquennial review process, but I do not think that that is what the Government have in mind. I suspect that they are thinking of something a great deal speedier than that. At the very least, I hope that in her response the Minister will give us very clear guidance on expectations in terms of timescale on the implementation of Part 11. Without that, all planning authorities and charging authorities are going to feel that they are being led up the garden path in terms of how this can be introduced. The Government’s assurances of comparative simplicity will be shown to be entirely false.

The Earl of Caithness: My Lords, I am against CIL. I said so at Second Reading and I remain so despite a meeting with officials where I came to understand it a little better. However, I could not understand the levy fully because it has not yet been fully thought out. The officials were obviously not able to tell me. It is clear that what has happened in Committee and on Report has helped the department to focus on what CIL really means. But how can we possibly consider something like this when we cannot even see the regulations? We were promised nearly a year ago that the regulations would be ready by this autumn. Of course they have not appeared yet, and they are not going to appear for some time. That is another broken promise from another place.

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I have great sympathy with the noble Baroness, Lady Hamwee. There will be horrendous difficulties in implementing this. It is of real concern to me because, when I listen to the Minister’s defence of Amendment No. 153A, it is clear that the Government—or, perhaps, the Treasury, or both—do not think CIL is going to work. The Minister’s defence of not getting rid of PGS was that we need to assess how CIL will work. Why? Because it will not work very well, and central government will say that they have the paving Act for PGS. That is what they will then force on the local authorities, because they have not done their job properly. That is a real concern.

The Minister and the noble Baroness, Lady Ford, said that there is a lot of support for CIL out there. Of course there is. If the gun of PGS is held to someone’s head—if they are told that it, another form of

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development land tax, will be introduced—or perhaps they will only be wounded with CIL instead, which will they choose? They will prefer CIL. It is very simple and very human. Of course they will tell the Government to rush in CIL, for goodness’ sake, rather than PGS, because they do not want PGS. They do not really want CIL either. It is going to be very difficult.

What happened on Amendment No. 130 is another sign of the real sadness about CIL because this House has quite deliberately been cut out of consultation on the regulations. That is very bad for Parliament and this House. I hope the Minister will confirm clearly that this will not be a precedent for future legislation. I can see this being used by Governments time and again. I remember when I stood in the Minister’s place and some wonderful precedents emerged from the 1950s and the 1960s which I was happy to trot out because they helped my cause. In 10 years’ time I can see all of us being here and the next Minister saying, “Do you remember in 2008 that the House voted and agreed that only the House of Commons should deal with this?”. This is a bad day for Parliament and this House.

The noble Baroness, Lady Ford, was in favour of zoning, as I am. I am sure she will agree that it is just another factor that will distort the planning process. It is quite obvious that developers will look at those areas that can help them a bit more. In the past, if you wished to put up a building, enterprise zones would have helped you. Now, within a local authority there will be zones and you can say that you will not build in one village because you will have to pay CIL. You will build in another village, which will really upset everything because it has no railway station and the post office has just been closed. It does not matter; you will not pay CIL and it will be a more profitable development. Of course that will happen. CIL will bring its problems.

Having said all that, I have regularly been in the Minister’s position, with the House against what I have been trying to introduce. We are trying to improve this. It is the Government’s right to introduce their legislation; it is our job to try to make it work. It is not our job to defeat the principle. Therefore, I will not be able to support the noble Baroness, Lady Hamwee, but I am very sad about CIL. It has not been thought out and we have not given it the consideration it needs to justify to ourselves that this House has done a good job, and justify to the rest of the country that this is a good piece of legislation.

Lord Jenkin of Roding: My Lords, I shall intervene briefly, if I may. There was a point early on—after Second Reading, and in the light of the strictures that the Delegated Powers and Regulatory Reform Committee had aimed at what it described as a purely skeleton Bill—when I felt that there really was a case for persuading the Government to drop this part of the Bill altogether and reintroduce it as separate legislation after they had had a great deal more time to work out the details. Since then, the Government have tabled a large raft of amendments. As I said in Committee, I thought that perhaps in the circumstances it would not be right to try to defeat the whole of Part 11, and I withdrew the amendments that I had tabled to delete a large number of the clauses.

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However, my noble friend Lord Caithness has said many of the things that I have been increasingly feeling about the Bill as it has emerged. What I find particularly worrying is this creation of a system where developers will be allowed to play one authority off against another because there will be different rates of CIL, different kinds of exemptions and different treatment regarding CIL and Section 106 agreements. There is no doubt that this is going to be a field day for the lawyers. Should we be creating something that leaves so much uncertainty?

After these debates I end up a great deal more worried about this part of the Bill than when I started. At the same time I agree with my noble friend Lord Caithness that our job is to persuade the Government of how to make it work better. I am deeply disappointed that this House will have no role in any of the regulations. Due to the way the system works, as we do not have an amendment to that effect the other place cannot do anything about it. If we had passed the amendment—the noble Lord, Lord Goodhart, made this point—we would have been able to do that, but we lost it by six votes.

I am deeply disturbed by all this but, like my noble friend, I do not think I can support the noble Baroness, Lady Hamwee, in seeking to abolish the whole part; we have gone too far for that. That is the position I will take on this, but I do so with a very heavy heart. I am not a betting man, but I am prepared to bet that within two years we shall have another substantial Bill to try to correct what will be, by then, the apparent deep flaws in this legislation because it has not been properly thought through before it has been introduced. That will probably fall to the next Government. I hope I shall then be sitting behind my noble friends on the Front Bench. The last thing I shall want to say to them is, “I told you so”, but I will say so to the people who will then be sitting on the opposition Front Bench, along with, “Look what a mess you’ve left us”. That is what I feel is going to happen, and I find it a deeply depressing situation. However, I fear I shall not support the noble Baroness’s amendment.

Baroness Andrews: My Lords, when the noble Baroness, Lady Hamwee, began her speech she said that it was not a frivolous amendment. I accept that. I have listened closely, as I always do, to the tone as well as to the content of what noble Lords have said about the difficulties that they feel the inevitable absence of detail at different stages of our discussion has caused. This House is always concerned about workability, and rightly so. We are in the business of improving legislation and I am grateful to all noble Lords who, at each stage, have taken this part of the Bill in all seriousness and attempted to improve it. We have seen a number of improvements and a lot more detail.

The problem with where we are, in relation both to CIL and to the way we are discussing the Bill, is that this occurs at a difficult and rather curious stage of the debate. I take the point that the noble Baroness made earlier, but these amendments strike at the heart of the viability of CIL. I know that, across the House, nobody is in any doubt that we need additional funding for infrastructure because we need additional houses. We need additional homes for millions of people in this

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country. This Bill will make a significant difference to that. While I listen and take the criticisms in good part, I do have to ask noble Lords opposite what their alternative solution would be. We never said this would be easy but we do say it is necessary. We think it is fair and we know it is an improvement on what has gone before.

I was grateful as always for the contribution from my noble friend Lady Ford who addressed many of the issues which I want to address briefly now. She pointed out that there is a legacy of work already in place and that local authorities are knowledgeable and many of them are leading some of this work rather than trailing behind it. The noble Baroness has been concerned about process and it is worth putting on the record some of that process so that I can address some of the criticisms from other parts of the House.

The record shows and chapter 1 of our August document describes in detail how the CIL proposals were generated by careful analysis and diagnosis over several years. There was extremely wide discussion with stakeholders and public consultation on the best way to fund the infrastructure. We published six consultation documents to explore different proposals and in August we put out our more detailed analytical document. We have had numerous briefing events, conferences, seminars and web chats. I will not read the list I have here as it would take too long. There is widespread agreement and support for both the need for CIL and the broad approach we have taken to implementing it.

The noble Baroness said in the previous debate that she agrees that this is looking less emaciated because we have been able to meet the majority of the major concerns of the DPRRC with the right level of delegation and the committee itself says the Bill is no longer skeleton.

I would like to address the two particular points raised by the noble Lords, Lord Dixon-Smith and Lord Tyler. I say to the noble Lord, Lord Tyler, that regarding the timetable and capacity, CIL is a voluntary charge. No local authority will be required or forced to do this. There is no timetable. We fully respect the changes that are going on, especially in the unitary communities. With regard to the local development plan, CIL will be driven by the vision the local authority has for its community. That vision is set out in its local development framework. CIL is a brand new document. It will accompany—it does not have to be incorporated. These concerns about timetables and capacities, therefore, can be tempered a little by that reality.

Many noble Lords believe that, as the detail of how CIL will be delivered is sufficiently complex, regulations will be appropriate and sensible. We have to continue the serious discussions we began a long time ago with the many stakeholders in this field. It is not only our view; it was certainly the view of the British Property Federation and the Home Builders Federation, to name but two.

The noble Baroness raised serious issues about timing and capacity and I hope she will be comforted by what I am about to say. It is a good opportunity to turn to the matter of timing. We announced that CIL regulations would not be in place before the spring of

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2009. These are challenging economic times but, as we begin to see a return to growth, as we surely will, it will be important for communities to have the right tools to hand to provide the infrastructure that their plans have identified as necessary to guide development. CIL will have an important part to play at that time and authorities that choose to use it will want to prepare their charging schedules so that developers can plan ahead with CIL in mind.

I am persuaded, however, that we do need to allow time for confidence to return before this work by local authorities can properly begin and be taken forward to best effect. With that in mind, I can now say that the Government will not seek to make the regulations to implement CIL before October 2009, although we may prepare earlier regulations to facilitate preparatory work by local authorities as we are allowed by Amendment No. 136C, which my noble friend Lord Patel has already explained. We will use the time productively, to allow us extra space to work with stakeholders to develop the regulations, ensuring that we have the best, most substantial and most thoughtful possible basis to enable local authorities to implement CIL. The draft implementing regulations will be prepared for public consultation in the spring. I shall be happy to place copies in the Library for noble Lords to see.

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I take issue with some of the things that have been said. It is not right to say that these clauses are undercooked or that the policy is not thought through. The noble Baroness was gracious enough to pay tribute to the hard work that has been done over the summer, not least by many officials in partnership with the DPRRC. We have tried hard to work as comprehensively as possible so that this House can at least be secure about the basic architecture of how things will work. I understand why the noble Lord, Lord Jenkin, spoke as he did.

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