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It is really up to the local council to decide what constitutes its view of a town centre and what it wants for the local population. After all, local councils are best placed to set locally relevant policies for the scale and type of retailer they want to see in their area and to integrate them with other policies on housing and economic growth. The best place to do that, then as now, is in the local plan rather than in a separate retail diversity scheme. Earlier, the noble Lord, Lord Whitty,

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mentioned the word "holistic". I quite like that word because I think planning should be done on an holistic basis. More widely, local authorities can work with local businesses to help them offer a distinctive and attractive product to consumers using tools such as business improvement districts.

The noble Lord, Lord Beecham, asked a specific question about enterprise zones. Any retail development in an enterprise zone will still be subject to the strong town centre first policy as in national planning policy. I hope that that satisfies the noble Lord that the Government are ensuring that this matter is addressed properly. Further, I hope that my responses encourage the noble Lord to withdraw his amendment.

9 pm

Lord True: Before my noble friend sits down, may I say that I was disappointed by his absolutely granite remarks about supermarkets? There are serious issues around what is a vital, viable, sustainable and diverse high street. Many factors are involved, both economic and social, and I do not think that Parliament can for ever lag behind public opinion on this matter. We all acknowledge and respect small shops in high streets, but the reality is that, up and down the country, people believe that our high streets are being systematically parasitised in a property grab by a small number of large businesses, which frankly do not worry too much about the profitability of individual sites.

I do not know whether the answer lies in this Bill or in planning, but I would submit that in social terms Parliament must address this matter with some seriousness and urgency. The nature of our high streets is changing. I believe that it is changing too fast and, as I have asked in the course of our discussions on the Bill, we should at least look to see whether there is a way we can do slightly more to protect the diversity of our high streets. That may be through giving grants and setting up business districts, but we do not have the resources to do that kind of thing. However, if we could bar the gate to one or two predators, I believe that that would be extremely helpful.

Baroness Byford: My Lords, before the Minister responds to my noble friend, perhaps I may say that I am certainly a great advocate of variety and choice. However, it worries me that it is actually the shoppers themselves who do not support independent shops. That is why those shops have been squeezed out of many places. We need to resolve that in a philosophical way, and I am not sure how that can be done within this Bill.

I understand the point that has been made all around the Committee and I am sympathetic to it, but what we see, particularly in smaller towns, is that people will use the shops in a minor way but continue to do their bulk buying in a supermarket because that suits them better. This is the dilemma we face. Occasionally I think we ought to put our feet where our mouth is, if I can use such a dreadfully vulgar expression. I am not sure how this is to be done in a Bill. I should like to add a word of caution. I am a huge supporter of independents and we use our local shops whenever we

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can, but we are lucky in that our village is quite large and still has a variety of shops. In some areas, the shops have disappeared, so the nearest shop is probably in fact a supermarket.

Lord Taylor of Holbeach: Perhaps I might respond because otherwise we will prolong a discussion about something that is not particularly apposite to this group of amendments. I believe that all sides of the Committee have faith in liberal market economies, and one of the effects of liberal market economies is that consumers tend to make their own choices. My noble friend Lady Byford pointed that out. I am really rather sorry that my noble friend Lord True is slightly less enamoured with the market, but I would say to noble Lords that retailing is a highly competitive business. Any noble Lord who has been engaged with retailing in any way will know just how competitive it can be. Indeed, it is changing all the time. The latest development in the area from which I come is not a shop but a shed, where people go to collect their orders that they have placed online.

I am sorry, but we live in rapidly changing times. It is a great challenge to local communities and a great challenge to those who are trusted by election to run local authorities, but the Bill is designed to give local authorities power to set the framework in which I suspect noble Lords will all accept that the market has to operate. I hope that it is possible for noble Lords not to press their amendments at this stage.

Lord Greaves: I shall certainly not move my amendment when I come to it, but I want to make a slightly different point. My amendment does not in any way suggest that there should not be supermarkets of any size. It suggests that in any particular place there should be an appropriate balance which ought to be determined by local people in the normal processes of discussion and so on. It may well be that it is unreasonable to keep out a small supermarket from a shopping street. It seems to me that it is not unreasonable to prevent that shopping street being turned over to three or four such shops, or two or three such shops, which then drive the others out-that is not a matter of competition, it is anti-competition, because it is driving out the people who cannot compete at that level. Obviously, we all agree with the market, but I agree entirely with my noble friend Lord True-the Government need to think a bit more about this.

It is absolutely true that it is a very difficult world out there for retailers, but shopping centres, high streets and town centres can, to a degree, make their own fortune. If there is sufficient campaigning desire locally, as there is at Mill Road in Cambridge, that must in itself be a plus factor in keeping that shopping street going as a diverse street. I will refer yet again to my own town of Colne where, over decades, there have been active groups of local councillors, traders, residents, historians and others interested in the town centre who have formed organisations, campaigned and actually rolled up their sleeves and done things to make Colne an attractive place to be. If you have a shopping centre and a high street which is attractive and somewhere local people are proud of, that gives the traders, who

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are all part of this, a head start. There are a great many towns the same size as Colne across the north of England which have something like 30 per cent or 40 per cent of their properties boarded up and empty now. I dare not say that Colne is thriving, because every time I say that, the local people-

Lord Taylor of Holbeach: May I remind noble Lords that I have responded on behalf of the Government to these amendments and I believe that the noble Lord is reiterating arguments which have been very well laid before the Committee already. We want to get through quite a lot of business and I hope that my noble friend will appreciate my interruption-I hope that I have not annoyed him to the point at which he will press his amendment. Perhaps he will wind up.

Lord Greaves: I shall say one more thing. I apologise if I am going on too long. I invite the noble Lord, who is into flowers, to come to Colne and look at all the flowers in Colne now, done by the wonderful organisation Colne in Bloom as part of the Britain in Bloom system. He would be proud of it and it is the kind of thing that keeps people in the town and encourages people to shop there. I invite him to come to Colne; he would be proud of all the flowers there.

Lord Cotter: I thank the Minister for his responses. I deliberately said, in proposing my amendment, that I did not want to go on too long, because it is a very big issue and we know what pressure we are under on the Bill, so I will try to resist going on too long now. However, I say to the Minister that this is a very big issue. The few of us here this evening, including my noble friends Lady Byford and Lord True, and the noble Lords, Lord McKenzie and Lord Beecham, have come forward with tangible examples. If the House was full, which I do not expect it to be at this time of night-let us say that it was Question Time and everybody was here-I could guarantee that many people would come forward with many more.

I am grateful to my noble friend Lord Greaves for his support and for his example from Cambridge, which encapsulated what has been happening throughout the country for many years. Other noble Lords came up with other examples. Were we to have had a full debate, the number of examples would have been enormous. I shall resist trying to go on too long. It was good to hear the Minister express awareness of many similar problems throughout the country and talk about the need for healthy town centres. He spoke of the coalition's commitment to high streets and local shops and its desire to strengthen shopping areas. Although it is above my pay grade, he referred to the national planning framework coming along the line, as if that were something we can hope will help in this particular area.

It has been striking that, while the amendments are quite different, their whole thread expresses the same concern. I shall not go on very much longer, because I realise that we are under pressure. I did not wish this to become a discussion about the benefits or otherwise of market forces-we all approve of market forces, and I do not wish there to be a battle between

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supermarkets and small shops. However, when one goes down that road, one picks up the fact that, if you get a supermarket in an area, it reduces its prices until such time as it drives other competitors out. I shall not pursue that further save to say that very complicated issues surround market forces, competition and such like. Although I shall seek to withdraw my amendment, the concerns remain. I am sure that the Minister has listened to this debate, and will perhaps have a fresh look at my retail development Bill-which addresses a particular aspect of this matter-but also have regard to the points put forward by my noble friend Lord Greaves, the noble Lord, Lord McKenzie, and many others, which tangibly express a major concern for this country. I beg leave to withdraw the amendment.

Amendment 148ZZA withdrawn.

Clause 96 agreed.

Amendment 148ZZB

Moved by Baroness Smith of Basildon

148ZZB: After Clause 96, insert the following new Clause-

"Development plan documents: climate change and carbon budgets

(1) Section 19 of the Planning and Compulsory Purchase Act 2004 is amended as follows.

(2) For subsection (1A) substitute-

"(1A) Development plan documents must include policies designed to secure that the development and use of land in the local planning authority's area-

(a) achieves reductions of greenhouse gas emissions in line with the carbon budgets set under the Climate Change Act 2008; and

(b) meets the current national planning policy objectives on assessing the risk of and adapting to climate change in relation to that area.""

Baroness Smith of Basildon: My Lords, I shall speak also to Amendment 150ZA. The amendments were inspired by existing legislation to which the Government have already signed up, mainly the Climate Change Act 2008. The Government have agreed to and supported an overall target of a 60 per cent cut in CO2 on 1990 levels by 2030. That cannot be achieved unless there is real commitment behind it. That commitment cannot be isolated in the silo of just one government department; it has to be a theme across all government policies. If the Government wish to achieve their objective, there must be a culture change whereby all departments and Ministers in them have to be aware of the impact of policies which might seem unrelated on the Government's commitment. If the Government are truly serious about meeting that commitment, as I believe they are, that is what they have to do.

In many ways, there is nothing new in these amendments, which I hope will make it easier for the Minister to accept them. They do not seek to introduce new policies; they seek merely to assist the Government in making those linkages and connections between this proposed legislation and legislation that is already on the statute book.



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9.15 pm

The noble Lord and I spent many hours on the Energy Bill and we heard the Minister then say that the Government wanted to be the greenest Government ever. We wholeheartedly support the Government in that objective and we offer to help whenever possible and to be supportive. It is in that spirit that we bring forward these two modest and sensible amendments. If the Government cannot accept them tonight, I urge the noble Lord to take them away, consider them further and perhaps bring them back as government amendments in due course.

The amendments set this legislation in the context of the existing legislation. On Amendment 148ZZB, at present the duty to consider climate change applies to the preparation of LDFs but not-this is very important -to neighbourhood planning. The amendment seeks to bring the obligation to consider climate change into local planning. At the end of the existing Section 38A, it would include that it,

Amendment 150ZA provides for a stronger and clearer obligation on local councils to consider the implications of mitigation and adaptation and the provisions of the Climate Change Act to making their plans. There is no confusion about the Government's intentions. It is clear that the legislation is working with existing legislation and not against it or undermining it.

It may assist the noble Lord in considering this issue to know that there is very widespread support from all quarters for both amendments. I shall not read the entire list-that might tempt his patience with me-but it includes organisations such as the Campaign for National Parks, the Council for British Archaeology, the Environmental Law Foundation, the Royal Town Planning Institute, the RSPB, the Town and Country Planning Association and many other wildlife and environmental groups. It may also be of assistance if I point out that Birmingham City Council, which is, at the moment, a Tory and Liberal Democrat controlled council, and the London Borough of Sutton, which is a Liberal Democrat Council, both support these amendments. I hope that on that basis the noble Lord will be able to accept them.

Lord Berkeley: My Lords, I support these amendments. In some ways they are no-brainers: it is so obvious that they need to be there to close the gap that my noble friend mentioned.

Proposed new subsection (1A)(b) in subsection (2) of the amendment covers flooding risk, which gets greater all the time. However, many local authorities, sadly, do not take that into account when they allow new developments. Going back 20 years, there was an amazing story in Cornwall where someone wanted to develop a site near the beach in St Austell Bay. The developer produced the plans and everything went fine but the local people said, "The sea will overtop it"-many tens of millions of pounds had been spent on this development by then-but the developer said no and the council said nothing. A week later the sea did overtop it and flooded a large area. It was a high tide, which happens every now and then. Five years on, planning permission was finally obtained for this

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enormous development but with a very much higher sea wall. The amount of money and time wasted by people not taking into account the risks of climate change are tremendous.

I remind the Committee that proposed new subsection (1A) means including policies to encourage walking, cycling, public transport and much less use of the car; and the location of schools, hospitals and other such places where there is so often a consolidation which means that people have to travel much further to use them through no fault of their own. These issues never seem to come into the assessment. I hope that when the Minister responds he will support the amendment or come back with one in his own words if he thinks it is defective in its drafting, which I have heard him suggest before.

Lord Boyd of Duncansby: This is the first time that I have spoken in this stage of the Bill so I declare an interest as a solicitor in private practice, mostly in Scotland but also to some extent in England. I want to make two quick points. First, the Climate Change Act establishes legally binding objectives and targets for the reduction of carbon emissions by 2050. The development plan is the way in which the built environment is shaped for the future. It is really important that we ensure a seamless see-through in meeting these targets. The development plan is an important element of that.

Secondly, the national policy statements on nationally significant infrastructure projects all have within them considerable sections targeted at climate change. The Government are to be congratulated on taking forward those national policy statements in that way. There is an argument that, if the national policy statements make such a priority of ensuring that developments meet the carbon target, surely the development plan fulfils a similar function.

Lord Taylor of Holbeach: I share the concern of those wishing to be ambitious in meeting the challenges of climate change. I also agree that planning has a big part to play. We have underlined this in the carbon plan, our response to the Environmental Audit Committee's report on adaptation and-as the noble Baroness, Lady Smith, will know-the renewable energy road map published today. The national planning policy framework, which we will publish very shortly for consultation, will make tackling climate change a priority for planning.

We already have a climate change duty on plan-making which was introduced by the previous Government. That duty seemed to them to be sensible and I agree-let me explain why. The current, existing duty expects a local council's development plan documents, taken as a whole as their local plan, to include policies designed to contribute to mitigating and adapting to climate change. Neighbourhood development plans will need to be in general conformity with the strategic policies in local plans, including policies on climate change. The national planning policy framework will be clear on planning's important role in rising to the climate change challenge. On the point of the noble Lord, Lord Berkeley, the NPPF will be clear on the need to cut carbon emissions and properly adapt to the impacts of climate change, including flooding.



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Local planning authorities must have regard to national policy in preparing their development plan documents, as well as in determining planning applications. Neighbourhood development plans will need to be appropriate, having regard to this national policy. The current duty is a sensible approach-I hope that the noble and learned Lord, Lord Boyd of Duncansby, will accept that. It reflects that places are different and will be able to make different contributions to tackling climate change. It also recognises that not every development plan document, as a component of the local plan, can make the same contribution. One of the anxieties I have about these amendments, for example, is how every local planning authority would ensure that development in their area achieves reductions of greenhouse gas emissions in line with the national carbon budgets. Places are very different. Some are able to make big contributions, others less so however hard they try. For instance, some have natural energy resources, be it geothermal or wind in more exposed rural areas, that other areas just do not have.

While I understand the direction of travel intended by the two amendments in this group, I do not believe it will help get us to where we want to be in a trouble-free way. For that reason, I cannot support these amendments. I reassure the noble Baroness, Lady Smith, that the combination of the existing duty and planning policy within the framework provided by the Planning and Compulsory Purchase Act 2004 makes this amendment unnecessary and I hope she will feel able to withdraw it, because I do not think there is any disagreement between us on the objectives we are seeking to achieve. It is just whether these amendments achieve that objective.

Baroness Smith of Basildon: I am grateful to the noble Lord and, if I understand him correctly, he is saying the amendments are unnecessary because such provisions are already included. I suppose I had hoped that the temptation of joined-up government would have been irresistible and he would have wanted to accept these amendments to the Bill to make it absolutely clear that this is a thread that runs through all government policies.

I will take away and listen to what he has said. I am not for one minute suggesting that in every case the same contribution should be made to neighbourhood plans, but there should be some consideration of these issues at every level of the planning stage. I am grateful for his explanation. There is not much between us in terms of what we are seeking to do but I will look at that and be happy to withdraw my amendment at this stage.

Amendment 148ZZB withdrawn.

Clause 97 : Adoption and withdrawal of development plan documents

Amendment 148ZZZZBA not moved.

Amendment 148ZZZZBB

Moved by Lord Greaves

148ZZZZBB: Clause 97, Page 75, line 32, leave out from "modifications" to end of line 33



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Lord Greaves: My Lords, the numbering is getting bizarre but the content of the amendments makes up for it. I will also speak to the other amendments in this group. We are now on to the fairly short section of the Bill that deals with local development schemes and Clause 97 about the adoption and withdrawal of development plan documents. The purpose of these amendments is to set local authorities free, once again, to make their own decisions in a considered way, following independent examination by an inspector.

Individual documents make up the local development framework, the local plan, under the Planning and Compulsory Purchase Act 2004-the Act that was going to deliver our new streamlined planning system but has not quite worked out that way. Before then, the local plan was put to inspection-a public inquiry and an examination by an inspector. He or she made recommendations to the local authority and the local authority then had the freedom to accept those recommendations or not, modify them, or accept them in part or whatever they wished to do.

In 2004, the system was changed so the local authority, in effect, has to adopt what the inspector says. If the inspector says it is okay it has to be adopted; if the inspector recommends modifications they have to be accepted exactly as proposed. The local authority can decide not to follow the inspector's decision but if it does it is back to square 1 and has to produce its plan all over again.

I remember my noble friend Lady Hamwee opposing the changes in 2004 with some eloquence and we can all go back and read her speeches and others from then, so you do not need much more from me. However, there is a principle here-local authorities are elected and they should be responsible for agreeing their own plans. Nobody is objecting to the process of inspection and examination and most authorities in the past adopted most of what the independent inspector proposed, but they did not have to and could make up their own minds.

There was a promise, which I thought the coalition Government were going to deliver, of freeing local planning authorities to make up their own minds once again. However, what we have in front of us in this Bill is a very weak relaxation of restrictions, which does not fundamentally change the position. Under the Bill, local authorities can make additional modifications to those proposed by the independent examiner, but only if they do not make material changes to the policies in the plan. In other words, they can tidy up a few loose ends but that is about that. The purpose of these amendments is, essentially, to remove Sections 21 and 27 of the Planning and Compulsory Purchase Act 2004 in order to free local authorities to make up their own mind. I beg to move.

9.30 pm

Lord Taylor of Holbeach: My Lords, I thank my noble friend for introducing these amendments. I understand his purpose, but we are not minded to accept them. We are concerned particularly about the first two amendments, Amendments 148ZZZZBB and 148ZZZZBC, because they would reintroduce regulatory bureaucracy by restricting councils from making small

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text edits, such as correcting mistakes, page numbers and notation, before adopting their development plan documents. We do not see that that can possibly be justified.

If noble Lords are concerned that councils are being given powers to adopt or change policies without proper public debate, I reassure them that this is not the case. The Bill makes sure that councillors can adopt plans only when they are considered suitable by the inspector. We trust councillors to prepare plans that reflect local needs and bring forward sustainable economic growth.

Amendment 148ZZZZBD seeks to remove the Secretary of State's existing powers to direct withdrawal of a council's local plans during examination. We disagree with my noble friend on this issue, and we think that this is bottom-up. We have introduced Clause 97(5) to retain the existing backstop power in exceptional circumstances only, alongside our proposals in Clause 97(4), which will allow councils to withdraw their plans at any time before adoption. We believe that that is the right approach.

Amendments 148ZZZZBE, 148ZZZZBF and 148ZZZZBG collectively seek to remove sections from the 2004 planning Act that allow the Secretary of State to intervene in the preparation of local plans. These are existing long-standing measures that have not been used by this Government. In a practical sense, the powers are simply existing safeguards, which a future Government may consider it appropriate to use in the highly exceptional circumstance when a council is unwilling or unable to develop plans for their area. It acts as a useful reminder for local communities that their own councils should plan properly on their behalf and that they can hold them to account. I hope that with those assurances the noble Lord is prepared to withdraw his amendment.

Lord Greaves: My Lords, I am prepared to withdraw my amendment. I did not think I would get anywhere, but it is still very disappointing. The Minister said that the Government trust local councils to produce plans that will produce sustainable development, and so on. The truth of the matter is that no Government nowadays trust local councils at all unless they do what the Government or the inspector want, or follow the detailed rules and regulations. It is a very sad state of affairs, but it is clearly going to continue for some time. I beg leave to withdraw the amendment.

Amendment 148ZZZZBB withdrawn.

Amendments 148ZZZZBC to 148ZZZZBG not moved.

Amendment 148ZZZZBH

Moved by Lord McKenzie of Luton

148ZZZZBH: Clause 97, Page 76, line 13, at end insert-

"( ) In section 23 (adoption of local development documents) after subsection (3) insert-

"(4) Subject to subsection (5), if a development plan document has not been adopted by the date that this subsection is brought into force, it cannot constitute a reason for refusing planning permission.

(5) Subsection (4) does not apply in relation to a replacement or revision of an adopted development plan document that is sustainable.""



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Lord McKenzie of Luton: My Lords, this is a probing amendment, prompted by the National Housing Federation. It specifically focuses on an authority that has not adopted its local plan document and provides that this cannot constitute a reason for refusing planning permission. In a sense, this picks up just part of the federation's proposition, which sets this in the context of a statutory definition of sustainable development and the presumption in favour of sustainable development. We have already discussed definitions of sustainable development and whether they should be enshrined in primary legislation, and we touched on the Government's draft presumption in favour of sustainable development. We will doubtless return to these points on Report.

In the mean time, we have the demise of regional spatial strategies, no agreement-as the noble Lord, Lord Best, said last week-to preserve for at least a limited period related policies that are not directly incorporated into LDPs, and no draft official NPPF. Perhaps the Minister could spell out for us how things will work when local planning authorities have not yet adopted a local development plan. It must be right that the absence of a plan cannot automatically be used to deny an application for planning permission. However, is the Minister's position that, where a local plan is not yet complete, it is necessary to look just at the NPPF, given that the Government have heralded this as a framework that sets out government priorities only to the extent that it is relevant, proportionate and necessary to do so? Do they not envisage distinctive local and indeed neighbourhood issues that are clearly outwith the NPPF?

Clearly the answer to all this is for local authorities to get on and approve their LDPs. However, we should acknowledge that they are faced with challenges on resources-challenges faced generally by local authorities-that are not made easier by the requirement to support neighbourhood planning and not helped by the hiatus caused by the actions of the Secretary of State when coming into office. Nevertheless, I stress that this is a probing amendment, and I would be interested to hear the Minister's response to this issue.

Lord True: My Lords, I am conscious of the need to make haste and I am perhaps making too much. There are a lot of "nots" in this amendment. Obviously where local development frameworks are in place, local authorities are consistently working on development plan documents. In any clarification that may be being made, we would not want to arrive at a situation in which an emerging policy of an authority, which is traditionally given some weight by planning committees and often by the inspector, is disallowed because the final plan has not yet been formally adopted after the hearing by the inspector. I do not expect my noble friend to respond in detail on that point, but it is an extremely important point because emerging DPDs are very often the reflection of the latest thinking of local people and a response to localist pressure.

Lord Taylor of Holbeach: My Lords, the noble Lord, Lord McKenzie, is quite right in moving this probing amendment to emphasise that the preparation of plans is a great challenge for local authorities. It is central to the Localism Bill and is certainly very

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important for them. We believe in a timely plan-led system, free from unnecessary targets imposed by central government. We trust local councils and their communities to choose to prepare plans where they feel that they need to shape development in their areas as quickly as they can. This is why we have been careful to retain the basic process of developing local plans, including public examination, and we are trying to make them work better in the interests of transparency and accountability.

The noble Lord's amendment, which I accept is probing, would penalise councils without adopted plans in place by the time the Bill is enacted. I think we would all accept that this would not achieve good, responsible local planning. Perhaps I can help the noble Lord, because we agree that councils should get on with their plans. Our presumption in favour of sustainable development would be the right tool to ensure that planning applications are considered. We are clear that the presumption should be that councils should say yes to development if their plans are out of date. While we share the previous Government's ambition that the plans should not be delayed, we know that their approach of top-down deadlines imposed in the 2004 Act just did not work.

In addition, the amendment also comes across as an unnecessarily centralising measure. Instead we want to use positive incentives, such as the new homes bonus and the community infrastructure levy, to encourage councils to plan properly. We are clear that councils will be expected to say yes to development where their plans are out of date. There is a steady flow of plans coming through and we do not believe that legislating for deadlines is the right approach. The aforementioned NPPF and a policy presumption in favour of sustainable development are the right tools. Together they are more immediate and effective levers that will incentivise the same behaviour.

The amendment would also undermine a fundamental part of the system by removing the discretion from the decision-maker to determine what issues should be material considerations to an individual case. With those assurances, I hope that the noble Lord, Lord McKenzie, is in a position to withdraw his amendment.

Lord McKenzie of Luton: I am grateful to the Minister. I will certainly withdraw the amendment, but I am still a little unclear about the situation in which the local planning authority has not yet gone through the processes and got its local development plan in place. What will determine the acceptability of planning permissions that are sought in the interim? Very soon there will be the NPPF but I understand that it will be written at a fairly generic level-necessarily, as this is the virtue that has been made of it by the Government-so it will not pick up a lot of detail. How will those issues be settled, with the lacuna of no current plan? On what criteria will planning applications be made?

Lord Taylor of Holbeach: I think I gave the noble Lord the answer to this when I said that the presumption would be that the planning should be in accordance with the NPPF and any other material considerations.

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Outside that, the presumption must be that approval is given, so there is an incentive for local authorities to get these plans in place.

Lord Berkeley: Could the Minister clarify that? Is there not going to be a sort of bonanza before the LDP is finally approved? Before that, all the applicants will have to do is comply with the NPPF, which must be a very high-level document. Will there not be a flood of planning applications that, as the Minister said, the local authority will probably have to approve?

Lord Taylor of Holbeach: My Lords, there is an incentive for local authorities to get these plans in place-I think I have made that point throughout our discussions on these amendments-and all other material considerations have to be met, so it does not happen totally in the void. Local authorities must have regard to their own circumstances when taking other matters into account, which is all the more reason for them to be working on these plans at the present time.

Lord McKenzie of Luton: My Lords, I am grateful to the Minister again. I think that my noble friend Lord Berkeley has articulated the issue more effectively than I did. I would like to read the record on this. In the mean time, I beg leave to withdraw the amendment.

Amendment 148ZZZZBH withdrawn.

Clauses 97 and 98 agreed.

Amendment 148ZZZBA not moved.

9.45 pm

Clause 99 : Community Infrastructure Levy: approval of charging schedules

Amendment 148ZZZBB

Moved by Lord McKenzie of Luton

148ZZZBB: Clause 99, Page 76, line 40, at end insert-

"( ) In section 205 (the levy), at the end of subsection (2) insert "without prejudicing the provision of affordable housing in accordance with the development plan"."

Lord McKenzie of Luton: My Lords, in moving Amendment 148ZZZBB, I will also speak to the other amendments in my name, namely 148ZZZBC, 148ZZZBD and 148ZZBAA. I will comment on the other amendments in this group after they have been spoken to.

Amendments 148ZZZBB, 148ZZZBC and 148ZZZBD deal with the community infrastructure levy and its consequences for the provision of affordable housing. The amendments, which were prompted by the National Housing Federation, seek to ensure, first, that the need for affordable housing is taken into account when setting the CIL and, secondly, that the CIL charging schedules contain a provision that allows for the CIL to be waived if securing the entire amount would prejudice the provision of affordable housing.



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The NHF says that the community infrastructure levy will be in most cases mandatory on new developments. With 40 per cent of social housing having traditionally been delivered through Section 106 agreements, it is vital that the CIL is set at a level that does not prejudice the delivery of levels of affordable housing in accordance with local plan policy. It is also important that, where the combination of the CIL and affordable housing makes development not viable, there is a clear mechanism that allows the CIL to be waived in whole or in part so that levels of affordable housing do not fall automatically.

In the debate in the other place, all parties agreed that the CIL should not prejudice the provision of affordable housing. The Minister was explicit about this and said that the present arrangements in the Planning Act 2008 and the CIL regulations offered sufficient protection, though he did commit to return to the issue. The Minister suggested that the requirement in Section 211 of the 2008 Act to have regard to the economic viability of development meant that proper scrutiny would be given to the effect on affordable housing.

Regulation 14, which gives practical effect to Section 211, requires a balance to be drawn between the desirability of securing funding from the CIL and the effect on the economic viability of development across the area. However, this type of balancing exercise does not protect affordable housing and it cannot do so if, as is often the case, there is no clear numerical target for additional affordable housing units. It would be far better to legislate to make the position explicit that the CIL is not meant to lead to a reduction in levels of affordable housing or land for affordable housing. There is no evidence that affordable housing requirements have genuinely been taken into account in the emerging CIL charging schedules to date.

The documentCommunity Infrastructure Levy-An Overview, which was published by DCLG in May of this year, appears to make two things clear. First, it states:

"The regulations rule out the application of the levy for providing affordable housing".

In relation to planning obligations, the document says:

"The levy is intended to provide infrastructure to support the development of an area rather than to make individual planning applications acceptable in planning terms. As a result, there may still be some site specific impact mitigation requirements without which a development should not be granted planning permission. Some of these needs may be provided for through the levy but others may not, particularly if they are very local in their impact. Therefore, the Government considers there is still a legitimate role for development specific planning obligations to enable a local planning authority to be confident that the specific consequences of development can be mitigated".

However, the document then goes on to say in a sense that the planning obligations proposals had been drawn tightly by circular 5/05 and that is now enshrined on a statutory basis in the regulations.

Therefore, I have a fundamental question for the Minister. Given that the CIL cannot be used for affordable housing and the Section 106 agreements cause its focus to be narrowed, what will happen to the vital source of funding for affordable housing that

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came from the Section 106 stream? I stress that this is not a trick question. There is a genuine inquiry here; I am trying to understand how this should work and what the Government's intentions are. Funding generally for affordable housing has been heavily restricted. I know that the Government are looking at so-called affordable rents or intermediate rents as a means of generating resources for affordable housing. However, if that Section 106 stream is to be reduced, and potentially overshadowed by the CIL, how will that all work? How will it help the delivery of affordable housing? I beg to move.

Lord Greaves: My Lords, I have some amendments in this group, which I shall try to rattle through as quickly as possible. I start by saying that we support the broad thrust of what the noble Lord, Lord McKenzie, has just said.

Amendment 148ZZBBB is a kite-flying amendment that would include building improvement and renovation of housing. The noble Lord has spoken more eloquently than I would have done, so I shall say no more about that. However, this is a very serious problem with the new system.

Amendments 148ZZBBA and 148ZZCA, are very similar to amendments that were tabled in the House of Commons by my right honourable friend Simon Hughes. He asked us to table them again here, since he was given a fairly sympathetic response by the Minister when he talked to him about the amendments-they were tabled in the Commons but they were not debated there. They would widen the possible use of the CIL. Amendment 148ZZBBA leaves out the words "providing infrastructure to support" and inserts the word "supporting". The proposed provision refers to the development of an area. In other words, the amendment would allow the CIL to be spent on projects that support the development of an area, and not just what might be narrowly defined as infrastructure. The amendment would amend Section 205 of the Planning Act 2008.

Amendment 148ZZCA makes a similar amendment to Section 216 of that Act, which at the moment-ignoring the preamble-reads:

"CIL regulations must require the authority that charges CIL to apply it, or cause it to be applied, to funding infrastructure".

Amendment 148ZZCA would add "or any other matter". That means that CIL could be used to fund things that are desirable in the area but not necessarily described as infrastructure.

Many areas, particularly big cities, do not necessarily require extra investment in their infrastructure, but that does not mean that local residents are not inconvenienced by development. They might be inconvenienced by noise, dirt or dust, or there may be nuisance from the operation of the development. A supermarket could have people coming in and out all the time, and making noise around closing time. This could be mitigated by investment in, for example, double glazing. However, this is not currently allowed under the legislation; it is not regarded as infrastructure. In reality, councillors with the opportunity of getting CIL will always levy it and will always find ways of spending it. However, they will not necessarily spend it

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on the best and most useful thing that they could spend it on if they have to stay within the narrow definition of infrastructure.

Amendments 148ZZBBC and 148ZZCC just propose replacing "ongoing" with "continuous". I regard "ongoing" as being an unpleasant American word that came in probably several decades ago-I do not know-but the English word is, in my view, "continuous", which would be better and more elegant.

Amendment 148ZZCD refers to regulation-making powers in the Bill that refer to passing CIL,

I am not trying to remove that provision, and I should say that this is a probing amendment to find out what that phrase means and who these other persons might be that the authority would or might have to pass the CIL to.

Amendment 148ZZBAZA relates to the same argument about authorities being able to make up their own minds after a charging scheme has been examined by an examiner and to obtaining their recommendations. It is the same argument that was made two groups ago, and I will not say any more about it. I do not imagine that the Government will agree with me about that, but it is important. The next amendment in the group is about the same matter, so I shall not speak to it any further.

Finally, I speak to Amendment 148ZZZBE. On page 77 of the Bill, proposed new subsection (7A) to Section 211 states:

"A charging authority must use appropriate available evidence to inform the charging authority's preparation of a charging schedule".

That seems to be garbage. Why does that have to be in legislation? There are then eight indications of what CIL regulations may make provision for. I shall not read them all out, but only a couple of them to provide a flavour, including,

and,

They are all like this. Finally there is,

They are the kind of quite extraordinary provisions that ought not to be in legislation.

It is insulting that local authorities cannot make sensible decisions on their own without being given such minute and detailed instructions on exactly what to do. If the Government are to respond to all the criticisms made in this Committee about the detailed regulations that are being imposed, I hope that they might look at this provision as being at best redundant and at worst quite ridiculous.

Lord Lucas: My Lords, I wish to speak to my Amendment 148ZZCBA. It proposes to remove subsection (3)(b) of Clause 100, not, as my noble friend might think, in protest at the word "ongoing", although it is an entirely unnecessary word. Perhaps the clause should refer only to future costs. What costs would be in or out, or out or in, because of "ongoing" being in

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the clause? The word is totally unnecessary. However, I want to mention this matter because it is a breach in the whole principle of CIL, which should deal with the infrastructure costs that are caused, or need to be contributed to, as a result of the proposed development.

Once you start to allow consideration of future costs, you will allow the whole CIL to be diverted to revenue and you will not get the infrastructure that you are supposed to get, and you will create a large deficit in the provision of infrastructure, because cash-strapped local councils will just hang on as long as they can without building the infrastructure. They will allow the roads to become more crowded and the schools to become fuller until the local authorities have to do something, and spend the CIL money on current costs. This is the sort of budgeting for which we criticised the previous Administration. I am very surprised that we are contemplating it ourselves.

Baroness Hamwee: My Lords, perhaps I, too, may ask a question about the provision of infrastructure on an "ongoing" basis. I entirely sympathise with the search for elegance, as my noble friend put it. My question is whether providing infrastructure on an ongoing basis means maintaining it. If that was what was meant, these lines could simply read "providing and maintaining infrastructure". Presumably, therefore, it means something else. Does it mean something else excluding maintenance or something else and maintenance? Perhaps the Minister can aid the Committee in the interpretation of the provision.

10 pm

Earl Attlee: My Lords, the purpose of the CIL is for owners or developers of land to contribute to the cost of providing infrastructure that supports the development of the area. Almost all development has some impact on the need for infrastructure, or benefits from it. It is fair that such development pays a share of the cost of providing that infrastructure. In setting a charge, local authorities must have regard to the actual and expected costs of infrastructure and its other sources of funding. They must also have regard to the economic viability of development, which includes the need to deliver affordable housing.

The noble Lord, Lord McKenzie of Luton, proposes amendments to provide that affordable housing provision will not be prejudiced by any levy charges that an authority may set. As we explained in the other place and to the National Housing Federation, the existing legislation already provides appropriate safeguards to avoid negative implications for the delivery of affordable housing. The statutory guidance issued under Section 221 of the Local Planning Act 2008, to which local authorities are required to have regard, explicitly sets out that a charging authority must take development costs, particularly those for affordable housing, into account when setting a charge. The point of the levy is to support and not frustrate the delivery of a local development plan. The statutory guidance is specifically clear that an examiner should consider whether a local authority's proposed charges would put their affordable housing target at risk. Where the independent examiner considers that it does, they should not approve the proposed charge.



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The noble Lord, Lord McKenzie, asked me about the Section 106 funding source for affordable housing. It does not follow that the imposition of a CIL charge will result in lower Section 106 contributions. In setting a charge, a council has to consider the impact on the economic viability, including affordable housing, and ensure that the levy does not put it at risk, which will include affordable housing funds. These amendments are clearly well intentioned. We agree that affordable housing is important and must not be harmed by the implementation of a levy. I can reassure noble Lords that the amendments are unnecessary, as appropriate safeguards already exist.

The noble Lord, Lord Greaves, in his Amendments 148ZZZBE et cetera, seeks amendments that would in effect allow local authorities to implement a charge without first having to remedy any deficiency identified by the independent examination of their proposals. Local authorities are in the best position to know what level of charges will work in their area to support development and encourage growth, but we do not accept that they should have complete freedom to set any charges they like. Instead, we are maintaining proportionate safeguards to prevent unreasonable levy charges, which could put development at serious risk. Our proposals rebalance the relationship between the examiner and the local authority, to provide that it is the authority that has the final decision on how any deficiencies in their proposed charging schedule are addressed. However, we are clear that any changes made by the authority must be sufficient and necessary to remedy any non-compliance identified by the independent examination of the proposals.

Noble Lords also seek to remove powers that allow for regulations to make provision about the evidence that a local authority must or must not consider in setting a charge. Our experience of similar examination of local plan-making shows that the decisions of independent examiners vary. Councils have tended to give a great deal of weight to previous decisions, and that has sometimes led to restricted local flexibility and freedom. We want to ensure that that does not occur with the levy. The proposed power will enable the Government to respond in a robust and flexible way to practices which threaten to undermine the ability of councils successfully to introduce their local levy charges. Our proposals strike the right balance between ensuring that local authorities have real discretion to set charges in their area while retaining appropriate safeguards to ensure that proposals do not put development of the area at risk.

Amendment 148ZZBBA, tabled by my noble friend Lord Greaves, would widen the permitted use of levy receipts beyond infrastructure to matters that support the development of an area. My noble friend has raised an interesting point. We are clear that the point of the levy is to support growth and new development. Infrastructure is of course central to supporting new development and unlocking growth, but it is not the only matter necessary to enable and incentivise development. We want to reflect on whether continuing to limit spending solely to providing infrastructure restricts local authorities' ability to support and enable development of the area. We want to consider whether

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widening permitted uses of the levy would make the instrument more effective and better placed effectively to promote, support and enable new development.

My noble friend Lord Greaves also proposes Amendment 148ZZBBB, which would do two things. First, it would alter the purpose of the levy so that it is focused on supporting communities rather than development. We have set out proposals to pass a proportion of the funds raised in an area to the parish council for that area and for those funds to be spent on infrastructure to support the development of that area. Control over the remainder of the funds is to be retained by the charging authority-normally the unitary, district or borough council-to provide the infrastructure needed to support the development of the larger area. The point is that the impact of the development and the infrastructure needed to support it are not confined to the geography of the community. Some will be, and our changes to direct a meaningful proportion of funds to the communities where development takes place will deal with that. Other matters, such as transport, span communities-and, indeed, charging authorities.

Secondly, the amendment proposes to allow funds to be used for the building, improvement and renovation of housing. That is unnecessary, as existing primary legislation in the Planning Act 2008 already contains the power to allow for levy receipts to be spent on affordable housing. However, regulations currently prevent that. Allowing such spending is therefore not a matter for the Bill, but the treatment of affordable housing is relevant to the amendments sought. I can confirm that we will consult during the summer on making that change through regulations.

In Amendment 148ZZCB, my noble friend Lord Greaves seeks to remove the provision for regulation to set out the ongoing costs to be funded by the levy. The powers we propose mirror existing ones in the Planning Act 2008, which allow for regulations to set out the works, installations or other facilities to be funded by the levy. The existing powers are currently used to specify that the Mayor of London must use receipts to fund strategic transport infrastructure. London is unique in that the London boroughs may also levy charges in their area, but are free to spend the receipts on any infrastructure to support their areas. We have no plans to use the power to specify the ongoing costs to be funded, but we envisage that it is necessary to deal with similar exceptional circumstances.

Lord Berkeley: Can the noble Earl clarify what is covered by "future ongoing costs"? Is it maintenance of housing or maintenance of a road? It is a bit of an open-ended commitment. You can understand a capital cost but if it is maintenance for roads or housing forevermore, it seems a bit odd.

Earl Attlee: My Lords, perhaps it would be helpful if I first answered the question from my noble friend Lady Hamwee on whether ongoing means maintaining the infrastructure or excludes it. Clause 100 sets out that this includes maintenance and operation of infrastructure.

Amendment 148ZZBBC seeks to allow the levy to fund the provision of infrastructure on a continuous rather than ongoing basis. We do not believe that this

12 July 2011 : Column 709

amendment would have a material effect. Our changes clarify that levy receipts can be used to maintain the ongoing costs of providing infrastructure but such spending will still have to satisfy the requirement that it also supports development of the area. The reason for our change is that the current provisions are being construed as limiting spending only to the initial costs of providing infrastructure. This could prevent infrastructure that is wanted and needed from being provided where the funds necessary to maintain and run it are not available. This is a perverse outcome and we are making sure that councils have the flexibility to deliver what is needed to support development of their area.

My noble friend Lord Lucas seeks an amendment that would prevent regulations allowing levy receipts to be reserved for future ongoing costs. I have explained that our proposals are concerned with ensuring that local authorities have real flexibility to spend the funds on the matters that are needed to support development in their area. We believe that this amendment would constrain this flexibility and could result in inefficient and ineffective spending by requiring funds to be used now rather than retained for future strategic projects that are planned.

Amendment 148ZZCD, tabled by the noble Lord, Lord Greaves, and others, proposes to remove provisions that provide for regulations to place a duty on charging authorities to pass all or some of any community infrastructure levy received to other persons. Alongside the physical barriers to new development, growth can be slowed or restricted by local concerns about its impacts. We intend to use the powers conferred by Clause 100 to require charging authorities to pass a meaningful proportion of receipts raised from new development in an area to a parish, town or community council for that area where there is such a local council. The local council will be required to spend the funds to provide infrastructure to support the development of its area.

When communities understand that new development is directly contributing towards the cost of the demands that it places on the infrastructure of their area, and see that they will be given real control over how these resources are used to address those demands, they are more likely to accept and indeed support it. Our reforms to the levy will make it genuinely pro-growth. Addressing the demands that new developments place on infrastructure will enable development to happen and it will incentivise communities to accept it. Using receipts to invest in the local area will ensure that growth is supported and sustainable, which will in turn unlock new development and growth.

We want to reflect on the amendments proposed by my noble friends Lord Greaves and Lord Tope to allow the spending of the levy on matters other than infrastructure. It is essential that the levy operates in a way that helps drive growth as effectively as possible. We will carefully consider whether permitting spending on other matters can improve the instrument's ability to support and enable development. As ever, I am very happy to discuss these matters privately between this stage and Report. I hope that noble Lords will feel able to withdraw their amendments at the appropriate point.



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Lord Greaves: My Lords, I am grateful for the fairly positive response to some of the amendments I moved. I look forward to further discussions, and I hope that the Government will have completed their reflection by the time we get to Report.

The specific question I want to ask is on the payment to other persons. The Minister twice referred to the intention of paying over a proportion of the levy to parish town councils and community councils in Wales. Is it the intention that it would only be to parish and town councils, and to no other persons? If so, that would mean that in areas without parish and town councils no levy would be passed over to the community, which is a minority of the land in the country, but a clear majority of the people who live in England who do not have town and parish councils. Can the Minister also give us an indication of the proportion of CIL which the Government are thinking of requiring to be passed to parish and town councils?

10.15 pm

Earl Attlee: My Lords, that is quite a detailed point. It would probably be safer if I wrote to the noble Lord on that.

Lord Lucas: My Lords, I would certainly like to take up my noble friend's offer of conversations between now and Report. I think I heard three different answers to the question posed by my amendment, and I hope that I will end up with one answer by the time we get there.

Lord McKenzie of Luton: My Lords, I, too, thank the Minister for a full and indeed very positive, or broadly positive, reply. Certainly at this hour, I should like to read the record and perhaps revert to those who pressed this particular amendment on us to talk it through with them in detail. I am grateful to the noble Lord, Lord Greaves, for the thrust of his support. These issues around who else the levy should be paid to are certainly important ones, and I would be happy to be included in that correspondence if I may. It is also important that it is done by diktat of the Secretary of State rather than being the local authorities' decision.

Can I just check: did I hear the Minister correctly when he said that he thinks it is right that the legislation provides for affordable housing to be included within infrastructure-the regulations currently preclude that? Did the Minister say that he was looking to consult on that later this year to change that rule, so affordable housing could be included? Was that what he said?

Earl Attlee: My Lords, I think the noble Lord will have to read the Hansard, but what I said was quite clear and the words in my speech will make that clear. The short answer is yes.

Lord McKenzie of Luton: In which case, I am most grateful to the noble Earl.

Amendment 148ZZZBB withdrawn.

Amendments 148ZZZBC to 148ZZBAA not moved.

Clause 99 agreed.

House resumed.



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Royal Assent

10.18 pm

The following Acts were given Royal Assent:

Sports Grounds Safety Authority Act,

12 July 2011 : Column 712

Estates of Deceased Persons (Forfeiture Rule and Law of Succession) Act,Wreck Removal Convention Act,Police (Detention and Bail) Act.

House adjourned at 10.19 pm.


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